-: SJC-12784,
Department of Revenue Child Support Enforcement,
v. Joshua Grullon
-: Miss Richardson, good morning.
-: Morning, may it please the Court.
My name is Anna Richardson.
I'm here from Veterans Legal Services
on behalf of the appellant Joshua Grullon.
I want to recognize our senior staff attorney Eve Elliot,
who's second chairing the case today,
as well as our co-counsel from Skadden Catherine Fisher
and Caroline Trustee on the briefs.
The case before you today concerns the critical issue
of what process an indigent person is due
before we use the power of the court
and the Commonwealth to deprive them
of their physical liberty in a civil contempt action.
As Mr. Grullon's case illustrate,
the appointment of counsel for an indigent defendant
is essential to prevent wrongful incarceration
of persons both too poor to comply with the court's orders
and unable to advocate for themselves adequately.
This case makes clear
that substitute procedural safeguards are not enough
to protect an indigent defendant whose freedom is at stake.
-: Is that in every DOR,
whenever DOR brings a contempt action,
do they always request the alternative of jail time?
-: You would have to ask the department
as to their traditional procedures with regard to jail time.
In each contempt, incarceration
is a theoretical possibility.
-: Right, that's what I'm trying to understand.
So, is there an all,
is it an all or nothing proposition?
Could we say that you get counsel
if DOR is seeking, requesting
the option of incarceration.
Say it's the first step in the process.
They're coming in, they're holding him in contempt,
but they're not seeking jail time.
Do we need a lawyer in that case?
-: If jail time is not being sought,
the only circumstance in that case where potentially
a lawyer might be required as if at some point
in the proceeding,
the judge begins to think sua sponte
that they think incarceration might be appropriate.
-: There's a practical consideration here because,
CPCS is supposed to set up a bullpen,
so I mean, in this case, in many ways,
your client talked himself into contempt, right?
So it was going okay,
until he said something he shouldn't have said,
and recognized that and the judge says,
"No, now you gonna go into jail".
We can get into whether that should have happened or not,
but showing should have happened,
I'm so sure you'll discuss that.
But practically speaking,
as Justice Kafker's alluding to,
the judge should basically in your world,
stop the hearing and say, "I'm thinking about sending
"you to jail".
Now we're gonna appoint counsel?
-: That's correct.
So we're not seeking the counsel be appointed
in all contempt matters.
As this Court has distinguished in cases like patent,
there is a difference between when incarceration
is a theoretical possibility
versus when it's a palpable potential result
of the proceeding.
So what we're asking this court to do is to hold
that the defendant may not be sentenced to jail
in a civil contempt matter unless counsel
is appointed at a meaningful time
and in a meaningful manner.
Here, with that--
-: Just tryna understand how that's gonna work
in the real world.
But, 'cause there's always a sort of a possibility
that things are gonna get messy.
But, so you're not saying that a counsel needs
to be appointed whenever DOR brings a contempt action?
Anna: Correct, um, Well--
-: But I'm trying to stand, what's the theory?
How do we define this theoretical possibility?
Is that a request for incarceration?
Or is it as soon as the judge decides like this judge,
he's aggravated and he's thinking of putting you in jail,
then you stop the proceedings and call for counsel?
I'm just trying to understand practically
'cause we gotta get some guidance out there,
'cause there're I guess 60, 000 of these,
you know, there's a huge number of them going on.
-: So what we're suggesting here is that when
the other party is requesting incarceration,
the trial court judge would need to determine if that
is reasonably a remedy that it wants to retain
the discretion to order in that case--
-: When the other party,
I take it when the other party is DOR
not when the other party is an pro se.
If we have to pro ses, aren't we running into this asymmetry
the US Supreme Court talked about?
Is it only when DOR request it
or is it when anyone,
whenever anyone requests incarceration?
-: It's when the court determines that it wants to retain
the discretion to order incarceration as a remedy.
So a pro se party could come in and say,
"I want incarceration even though the Father
has shown up and paid 90% of the arrearage that day
and the judge may know, immediately,
that's not something they want to entertain.
Conversely, there could be instances,
they're rare where the party is not requesting it,
DOR is not requesting it,
but the judge does determine through the course of
the proceeding at some point
they're contemplating ordering it.
-: Is that only gonna happen when there's a determination
by the judge that the person did this before
the judge has the ability to pay but chooses not to?
-: Yes, ability to pay is a critical inquiry--
-: Yeah, it's an inquiry though
that can be made ahead of time
is what you are suggesting,
as I understand it, in the brief.
-: Yes, and I would submit that if the department is doing
its due diligence in inquiring into ability
to pay before bringing these contempt actions
as required by DOR's own procedures,
and the federal regulations,
the instance in which you have an indigent defendant
that the Commonwealth would have to pay for counsel for
that also is found to have the ability to pay
is going to be relatively rare
because by definition, -: Yeah.
-: DOR should regularly be bringing a contempt
in those instances when that person's income is so limited
to begin with.
-: Will that be the only issue really, that's a play?
I mean, there are not other issues and playing
in terms of contempt that an indigent person
would be facing.
Contempt for having violated what other kinds of orders
are there other than payment orders?
-: Certainly, and what we're arguing for is that
the issue here is that we are depriving a person
of their physical liberty.
We are by definition, taking something away from them
that we have no capacity to give back.
So we need to be certain--
-: But it's a way of saying you have the ability to do this,
you're choosing not to, you're in defiance of the court.
Right?
-: Yes, and in the case where the defendant truly holds
the keys to their own release
and is able to comply,
then these additional procedural safeguards
are not necessarily warranted.
But as here where you have a defendant
who would not have been allowed to make the comments
to the court that he did if he had had counsel present,
he would have had someone to effectively advocate for him,
he would not have been incarcerated on this record,
had he had counsel because the case would (mumbles)
and presented radically different.
-: That's what makes me nervous,
'cause that case, no one was considering incarceration.
I guess DOR requested incarceration in that
in his case, right?
As a possibility.
Anna: That's correct.
-: Okay, so there he should have been appointed counsel,
in your view, because they've requested it?
-: Or the judge should have indicated it on the record,
"I'm not appointing counsel,
"because I am not entertaining that remedy at this time".
So, you know, again,
we're not proposing every single contempt action,
but that where the court is going to order incarceration
that can only happen if the defendant's been appointed
counsel at a meaningful time and in a meaningful manner.
Judge: Thank you.
-: What you're saying is it wouldn't be meaningful here
because he had already started to talk
and get himself into trouble.
-: That happened after DOR had requested incarceration.
So at the very outset of the hearing,
when that request was made,
the judge would need to determine if--
-: That's the only time it would be meaningful.
-: Yeah, if I can step back,
put aside the issue of counsel for a moment,
let's just focus purely on what is required under Turner.
The world as it should be under Turner,
and for that matter under Birchall,
would be that when there is the possibility of somebody
being held in civil contempt
and being placed in custody as a result,
there would need to be notice given
to the defendant,
that ability to pay matters a great deal
and they would need to be a inquiry into ability to pay,
correct?
Anna: Correct.
-: Do we have any by the way reason to believe
that that, in fact, is happening in the DOR session
of our Probate and Family Court?
-: As DOR noted in their brief,
they send a stuffer I believe with the complaints.
They can speak better--
Judge: What's a stuffer?
-: A piece of paper that is sent out with the complaints.
It's, you know, again, they can speak better
to their own procedures than I can.
-: Is that supplement number seven,
important notice regarding contempt?
-: I believe so yes.
-: That's a stuffer?
-: So you would pay child support as critical issue
in determining whether or not you'll be found in contempt?
That's the record, it's page seven.
-: That's my understanding.
I have...
I don't know if Mr. Grullon was served at in this case.
It's certainly not something that's delivered with
the summons or the court complaint which he was served with
by the sheriff.
I would also note another requirement of Turner
is expressed findings to as ability to pay.
And--
-: Which would require there to be some hearing,
or some evidentiary.
-: Yes, and the Birchall standard articulates
it must be by clear and convincing evidence.
If I can draw the Court's attention to the order
in the Jimenez matter on addendum page 91, 92.
You can see there's as recently as July of 2017,
the form order in these cases did not include
an express finding as to ability to pay.
Which causes, and that form order was in place
in some of the other cases that we also referenced
in our brief from the lower court
where we had indigent veterans
who were incarcerated without counsel
and without those findings being made.
-: So going back to Justice Kafker's earlier question
in terms of the practical consequences today,
where there is no right to counsel,
and there is a DOR request
to say I wish this particular
person to be held in civil contempt
and that the person be jailed for failure to pay,
does the judge then give the defendant
the opportunity to sort of
establish the inability to pay?
I mean, there would need to be some hearing on that.
Is there some, is there a continuance given
in order for that to occur?
Or do they just ask the person right then and there,
"Tell me about your ability to pay".
-: Well, the burden is on the defendant to show
at least some type of prima facie evidence
of inability to comply
because the prior order was put in place, presumably,
as a well founded order.
But I would submit that, you know,
as the record reflects here,
it's important the counsel be appointed
before a defendant potentially prejudices themselves,
as to the final outcome of the matter.
There are 33 states that recognize some form of right
to counsel in civil contempt in family court,
and each of them has taken varying approaches to this.
So for example, in New Jersey
in the matter of Pasco v. counsel,
the court found a right to counsel
and then referred the matter to a committee,
to determine how best to develop rules for implementation
of that right.
In Connecticut in Texas,
the courts have held that counsel is indicated when
the court determines that incarceration may be appropriate
as a remedy.
In Ohio, defendants must apply for Public Defender Services
if they believe they need them
when they receive the contempt summons.
And in other contexts, such as Maryland,
where incarceration may result, counsel is required.
So there's a range of options that this court could look to
in terms of the implementation of a right,
but I would submit that that's a distinct inquiry
from whether the right itself exists.
-: Pragmatically going to the question Justice Gaziano,
and Justice Kafker asked,
it would mean that you'd have to say,
"We will, I will appoint counsel in your world,
"I will appoint counsel for you Mr. Grullon
"and we will have it heard on a new DOR Day?
-: That's correct.
And I think this case illustrates how helpful
that cooling off period could be in terms of the environment
of the Probate and Family Court can be quite frustrating.
DOR Day can be quite hectic,
you know, had that happened
and had everyone had to come back.
And it could be very short return data.
It's not something that requires months and months of delay.
But if everyone had had to come back
with Mr. Grullon having counsel to explain his comments
to the court,
I don't believe that he would have been incarcerated.
-: Miss Richardson, can you tell me why with your analysis,
an individual wouldn't be entitled to counsel
in the district court and supplementary process session
when there's been a judgment that has entered
and there's a determination of whether or not somebody
has the ability to pay
and if they don't, that they face incarceration?
What's the analysis as to why that individual
in the district court supplementary process session wouldn't
be entitled to counsel?
-: Well, I'm not sure that they wouldn't be.
You know, our our critical inquiry here, again,
is the deprivation of that liberty interest.
And we believe that under the Massachusetts Constitution,
where that fundamental right is at stake
counsel should be appointed.
That is not the case before you today.
There could certainly be nuances
to the supplementary process session
that I'm not aware of where
other substitute procedural safeguards could be adequate.
You know, apart from that we have the Federal Constitution
and Turner also setting a floor not a ceiling
on these cases,
and where, you know, opposite counsel,
as we have in this case,
I think that that shifts the analysis under
the federal standard as well.
-: Just to be clear we're dealing here with a DOR attorney
who was seeking it,
are you saying that we should extend this right
to a situation where DOR is not involved
and there's simply one spouse,
who is herself, usually herself unrepresented,
asking for contempt for the husband?
-: If the other spouse is asking for jail time,
and the court is seriously considering ordering jail time,
then yes, yes, we would.
It's the, again the deprivation of that person's freedom by
the state that we believe triggers the right
in these instances.
-: But isn't almost every one of these contempt actions
that somebody's seeking, yeah...
All the pro bono ones,
they're often seeking jail time, aren't they?
I'm just trying to understand,
again, the limits of this.
-: I'm not sure that I follow as to the pro bono component--
Judge: Self represented.
-: The, jail time should only be sought when the defendant
has the ability to comply with the order
and is willfully choosing to do so.
So someone who has...
There is evidence that this person has income
or assets that they are not applying
to fulfill this obligation.
-: Once DOR is involved,
and we're assuming a certain level
of professional investigation,
when they're requesting jail time,
you've got a lawyer and a request for jail time
when we've got self represented on both sides,
you know, obviously they think that you can pay
and they're angry.
I'm just, are we really,
every time a self represented person seeks jail time,
you have to appoint it
or is the judge gonna make it a determination
in the hearing?
-: I would submit the judge is making a determination
in that hearing as to whether they feel jail time
is something they want to retain the discretion to impose.
And most often, the court has some idea throughout
the course of the proceedings,
that's something I'm considering or not
and that could be based on your prior history
in the Probate and Family Court,
is there, you know, like the history of this person
having assets and not using them to fulfill this obligation?
Is there evidence on the financial statements
that there is ability to pay?
Has that due diligence been conducted prior to the hearing?
If DOR is involved, that there is evidence
that this person has resources and again,
is willfully choosing not to use them for this purpose.
-: Who willfully chooses not to work.
-: What's that?
-: Willfully chooses not to work.
-: Well, and you're correct,
the court can impute or attribute income
in certain circumstances,
that can be quite a complicated inquiry
into someone's earning capacity,
and one where, you know, counsel may be necessary to assist
the person in presenting why it is
that they're not able to work.
I know in our context with veterans,
the average wait time on VA benefits appeals is five years.
So we may have a disabled individual who is trying to access
the benefit, not able to do so
and simultaneously unable to work
and has a great deal of difficulty presenting that evidence
to the court.
Judge: All right, thank you.
-: Thank you.
-: Mr. Kravitz.
(clears throat)
-: Thank you, Mr. Chief Justice,
and may it please the Court.
The, as the Supreme Court held in Turner versus Rogers,
the fundamental and critical question in this case,
in cases of this kind,
is whether there has been a fundamentally fair determination
of the key due process question,
that is the ability to pay, in cases like this.
And on the record that we have in front of us in this case,
it appears to us that for three different sets of reasons
that we cannot be confident that that occurred in this case,
and therefore, unfortunately,
we agree with, I agree with my colleagues,
that the contempt judgment in this case should be vacated.
So, and as I said, there are three sets of reasons
why we think that so.
The first has to do with the safeguards
that are laid out in Turners.
As you referenced earlier, there are four safeguards.
We cannot, we are not confident about two of them
in this case.
There is the requirement as was referenced earlier,
that notice, clear notice must be given
that the ability to pay is the essential issue in the case.
And it is not apparent from the record whether Mr. Grullon
was so advised when the complaint was served
or at another time.
And perhaps--
-: We're not yet.
So this supplementary appendix number seven,
that we're not sure whether that was sent to him?
-: We cannot tell from the record, that's correct,
but that is the paper that we're referring to.
Judge: Yeah, mm-hmm.
-: And then the second issue perhaps
a more important one even
is that Turner also references express findings
by the trial court,
that there is an ability to pay the order
and under Birchall of course,
it must be by clear and convincing evidence in Massachusetts
and again, from the record that we have,
there was a form,
in and the record appendix of page 31.
It's a little bit difficult to tell whether the box
that indicates that an ability to pay finding was made
has been checked.
And there's nothing in the transcript of the hearing
that indicates findings made on the record
that there was an ability to pay,
certainly not that there was an ability to pay the
specific purge amount to $500.
So that's the first set of issues.
The second set of issues here, is that,
as was referenced earlier,
federal regulations and DOR's own policy require
that these cases should be screened by DOR staff
before DOR determines to participate,
to serve the complaint,
to appear and then to advocate for contempt
and for perhaps a particular conditions of contempt.
Again, it is not apparent from the record
that that occurred in this case,
and so that's the second set of issues.
And then the third--
-: I'm confused.
How could they have been hired if they hadn't screened it?
How could they appear in court if they hadn't screened it?
-: My understanding of the way this works
and I'm sort of outside the record a little bit here,
is that this complaint was filed directly at the court.
It was not filed with,
it was not sent to DOR , which is another way you can do it.
It was filed with the court.
Somehow something happened.
It sort of bypassed the screening process
and went directly to the office that serves the complaints.
And then the case was scheduled for the DOR session.
And so then the DOR Attorney was present
and had the information that is reflected in the record.
So that's sort of what we know as to what happened
and so again, that's why we're not confident
that DOR's proper role was exercised here.
And then the third issue is as was mentioned earlier,
the probate judge in this case appears
to have allowed her perception of the "poor attitude"
of Mr. Grullon,
to have influenced her decision to incarcerate.
We agree that that was error.
And so sorry for those--
-: That doesn't happen too frequently,
but DOR is a,
DOR Day is a very stressful day.
And it seems like this was more, you know, punishment
for a comment that he made about
the mother's ability to function okay, should be okay,
whatever the comment might be.
Isn't this case the quintessential example of why,
in at least limited circumstances
that counsel should be available?
-: Well so to speak to that broader issue,
we don't think it's necessary as to have a blanket rule
in these cases.
And, of course, this is laid out in the brief but,
we don't think it's necessary that there's a blanket rule
that in all of these cases,
or in some sort of globally defined subset of these cases
that counsel be present.
We agree there were multiple errors
that occurred in this case,
perhaps the presence of counsel might have prevented them.
But we hope and expect that this is a rare case,
this sort of a perfect storm of factors that happened here.
And as Mathews v. Eldridge itself makes clear,
due process rules of this sort,
are supposed to come from the generality of cases,
not from the particular rare exception
where essentially everything goes wrong.
-: You tell me what it was, that should have happened here
that didn't happen here.
What should have happened?
Once this is underway, what should have happened?
-: Once the hearing was underway?
Judge: What should have happened?
-: So Well, what should have happened
is there should have been an inquiry
at the hearing into Mr. Greon's ability to pay either
the full amount or some modification of child support.
-: Right, and how could he do that?
How could he do that without counsel?
-: Well, so the question, this Court has considered
the issue of defendant's ability to pay
on multiple occasions in a slightly different context,
which is the determination of indigency.
But as the Supreme Court has recognized
in Turner versus Rogers,
that is a closely related inquiry to the question here.
It's ability to pay for counsel versus ability
to pay child support.
But in both situations,
all of the information that goes into that,
at least on the input side,
is in the control of the defendant.
The defendant knows what his income is,
what his assets are, what his expenses are, and so forth.
And there's a form, a standard sort of income and asset
and expense form,
that is in volume two of the appendix.
-: Has the Judge already determined that he is indigent?
-: There was no determination either way in this case,
of indigency, 'cause there was no request for indigency
and there was no request for counsel prior
to the hearing in this case.
-: Doesn't that sort of prove the point
that counsel would be very beneficial
with the Father?
-: Well, I guess I don't see that that follows.
I would add, first of all, that the answer
to the complaint for contempt
and the counterclaim for modification,
those were prepared with the assistance of counsel,
and there was no request,
there was no request for a determination of indigency
or request for counsel made at that time.
That was all prior to the hearing.
And so, you know, this goes to the general,
as we've stated in the brief,
we are sort of uncertain whether this broad question
of right to counsel ought to be addressed in this case.
It's not clear that it was properly presented--
-: But if DOR is pushing for incarceration,
I mean, I'm giving those two examples
that your sister just...
DOR is pushing for incarceration,
we have a able lawyer representing DOR,
Or the judge on her own is starting to think,
"I'm gonna put him in jail".
You don't think counsel in those two subsets, is required?
-: Not as a global matter in these kinds of cases.
And the reason for that simply goes back to
the three Mathews v. Eldridge factors.
And so let me turn to that, if I may.
So the first factor, of course,
is the private interest at stake,
avoiding improper incarceration.
Absolutely no dispute that that
is an extremely important interest.
But that's not the end of the inquiry.
That is one fad--
-: And there're two parts more go ahead.
-: Correct.
The second part is,
the risk of erroneous deprivation,
and given the existing safeguards
and the relative Value
of including additional safeguards
against improper incarceration, right?
And then the third, is the governmental interest.
-: Okay, so, in the second part of this,
the DOR is determined to put the person in jail
and believes the person has the assets.
You believe that,
because it's a financial inquiry we don't...
To me, then I'm just wondering if that's always the case,
then there's never a lawyer,
'cause, is it your position then
that this can be done without a lawyer because it's just
how much money do I have?
-: As the Supreme Court has recognized,
as the Appeals Court has recognized,
in most cases, not in every case,
but in most cases, the ability to pay inquiry
is likely not to be a complex one.
-: An example of a case that's the exception.
-: Of the complicated case?
Judge: Yeah.
-: So, I think you know, a possible counter example
is the porter decision from this court.
That was in indigency in terms of whether
it was criminal case.
So it was appointed to counsel on that context.
But the facts there, were not straightforward,
in that there were,
I think three properties owned by the defendant.
And there were tax liens and mortgages
and possible attribution of spousal assets and so forth.
That was a certainly a much more complicated set of facts
than this case.
But even so, I would say in that case,
the determination of indigency,
namely, whether she was entitled to a lawyer at her trial,
proceeded pro se,
and this court, I'm not sure the issue was raised,
but the court did not perceive any difficulty
with having a pro se
and the court also concluded that at the end of the day,
it was appropriate to place the burden of proving indigency
on the defendant in that case, again, for the same reason
that however complex the facts may be,
it was the defendant who was in control of them,
who had the best access to them.
So, if I could just say a couple of words more about
the governmental interest on the sort of a third prong of
the Matthews inquiry in this case.
The interests are not only that,
you know, of course, the Commonwealth has an interest
in avoiding unnecessary administrative
and financial burden of locating
and compensating appointed counsel,
but the entire purpose
of this federal state construct
for child support enforcement is to ensure
that parents who are entitled,
'cause the custodial parent who is entitled by court order
to child support,
gets it in a reasonably timely fashion,
so that she can, she in most cases, not every case,
but so that the custodial parent can look after the child
and can adequately feed and clothe and house the child.
So that is the governmental interest in this case,
it is an important one.
And one of the...
So to return to the discussion
that occurred earlier about sort of the practicalities
of how this would work,
I would agree that if this goes the way it's been proposed,
so that there's some sort of determination in the hearing,
the judge concludes that incarceration
is perhaps appropriate,
at that point, presumably the hearing would have to stop,
there would be a determination as to whether
the defendant is indigent,
and if he is, then counsel would be located,
counsel would be appointed and presumably given time
to confer and to learn the case
so that the representation can be effective.
You are building delay into this process.
-: Along with lines, -: Yeah.
-: Can you tell me where you think under the public burden,
this is or isn't a legitimate concern
because there's no record behind what I'm going to suggest.
If the,
mother is in court seeking
to have the child support paid,
and the case is continued to another day,
Kravitz: Mm-hmm.
-: I expect many times what that means is
in addition to coming back another day,
it's another day in the mother missing work.
And losing money.
Is that a fear consideration to Matthew's as to the
as to the public interest issue?
Kravitz: Just in terms of having
to come back to another--
-: Well, the burden on the custodial parent
of making another appearance in court,
including the financial burden involved,
Kravitz: Sure.
-: When they're in there trying to get enough money
to pay for that kid.
-: Sure, absolutely.
I would say there are a number of costs
to the custodial parent
that the delay and rescheduling would impose,
this would be one of them.
Certainly, and in addition, just the fact of delay means
that you have an additional number of days
or weeks in which presumably the custodial parent
is not receiving the child support payments
that they are entitled to.
So all of these things weigh in,
in the government's interest.
So then what really drives this I think,
is the the risk of erroneous deprivation factor,
and that is what really distinguishes a case like this,
from cases like JKB,
where the court has found that there is right to counsel
in civil, in certain civil proceedings
of family law proceedings.
And the court emphasized in JKB,
that when you're talking about termination
of parental rights, it's essentially, it's a trial.
There's evidence, there are witnesses
that have to be examined and cross examined,
there may be, as the court said,
"sophisticated expert testimony".
So experts have to be located, prepared,
examined, cross examined and so forth.
This is what lawyers are trained to do.
And that is the proceeding that was at stake in JKB
and then it's progeny have held similarly.
This case, again, the inquiry here, in most cases,
is not likely to be that complicated.
It's like to be reasonably straightforward,
there's nothing in this record, for example,
that suggests the inquiry is complex here.
-: So if it's all so simple,
why is DOR have to be involved then?
I mean, you know,
if the mother can just walk in and do this,
and the judge can sort this out, you know,
you're bringing the power of DOR to the equation
that seemed to be the issue for the Supreme Court,
um, as well.
So, this is all so simple,
what's DOR need to have a lawyer there for?
-: So I mean, DOR under both federal and state law has
the obligation to offer assistance,
which includes enforcement of child support,
so it is directed by--
-: No, I get why they're there, -: Yeah.
-: They're there because it's not quite so simple right?
-: I get, let me answer it this way that--
-: Can I ask another question? -: Yeah.
-: Do you work in garnish wages, right?
Kravitz: Correct.
-: So, DOR has,
in the simple case where somebody's got a job,
they can just go directly and garnish the wages right?
-: I believe that's right.
There is a wide range of remedies
that the DOR has available.
-: So I'm just trying to understand,
is what we're dealing with the more complicated case?
where DOR thinks they have money,
but they can't just simply, you know...
This is a old memory but I thought DOR
can just garnish someone's wages.
-: I believe that's correct.
I don't off the top of my head know the exact procedure
that's involved in that.
But, yes, as I said DOR has a wide range of remedies
and you know, no one, DOR included,
is interested in just sort of incarcerating people
because they can't pay.
Judge: Right.
-: This is used, you know, should be seen as the last resort
when it's other options have failed,
but it believes there is a need to coerce compliance
and if the system is working as it's supposed to,
that should be the limit of how this remedy is used.
-: How much notice did the defendant here give
that there was to be a request for him to be held
in contempt and to be held in custody?
-: If memory serves,
the complaint was served
on him in October,
I think October 19th, something like that.
I can pull up the exact--
-: The complaint for civil contempt?
-: The complaint for contempt.
-: Okay, and was it made known that he would--
-: Excuse me, yeah.
The complaint was served on September 17th.
Was served on him September 17th according to the document,
this is page 15 in the appendix.
-: And the hearing was?
-: And the hearing was November 1st,
so roughly six weeks.
And again, there should have been included with the summons,
the stuffer that was mentioned.
-: Okay, so you're here on behalf of DOR.
Can you tell me how often there is truly
an evidentiary hearing or a true opportunity
to examine ability to pay at a DOR hearing.
-: I mean, as the public records request
that was submitted as part of
the supplemental appendix indicates there are a lot
of hearings in these cases.
In over about two and a half years,
something north of 12, 000 hearings occurred.
I cannot give you--
-: And my question is how often I mean,
I know that there're,
the record reflects a number of cases involving
a number of Probate and Family court judges
who have ordered contempt with custody without a finding
of ability to pay.
-: You're referring to the cases in the footnote--
-: Cases in the footnote.
-: In my colleagues brief.
-: Right, this question I'm asking you is,
based on your client's involvement in DOR hearings,
how often are their true evidentiary examinations
of ability to pay?
-: I cannot give you a percentage.
-: Isn't that, I mean,
just can you give me any information
as to whether this is...
You have characterized this as an outlier.
Do you have any basis to characterize this
as an outlier as opposed to something within
the realm of the norm?
-: I have no reason to think that,
that in general, DOR is not following its procedures.
But I can ask for further information from the agency--
-: I'm referring to whether the Probate and Family Court
is following its procedures as well.
I mean, here basically,
this is a perfect case for them to bring
it as a test case.
So DOR fell down,
Probate and Family Court fell down.
This is a complete failure to abide
with obligations under both the Massachusetts
and United States Constitution to examine
the ability to pay.
And they're basically saying that the remedy
that we should impose for that
is to appoint an attorney to ensure
that those obligations are followed.
Can you give me any, any information
to indicate whether or not this is an outlier
or whether this is within the norm?
-: I certainly don't think it's within the norm Your Honor,
but I cannot give you, I cannot give you information off
the top of my head.
I can submit a letter after argument
if that would be helpful to the court.
-: Isn't that sort of what this case is about?
-: I think what the case, (laughs)
I think what this case is about is what are
the requirements of due process
in these kinds of hearings?
-: But the requirements to due process are in part,
based on the extent to which attorney is needed to ensure
that a fair hearing is being conducted,
and the extent to which a fair hearing
is routinely being conducted
and all the protections that you identify
or require constitutionally are being in fact, furnished
would matter in terms of our evaluation as to whether
or not we have a systemic problem or not.
-: Mm-hmm.
In terms of information that I could helpfully supply
to the Court,
again, I will consult with my colleagues at the agency
and I can get back to you.
-: And I asked...
Let me throw you a little Lifeline here.
I'm not sure,
the financial statement is often required
in these cases, right?
The Probate and Family Court
has a financial statement.
Kravitz: That's correct.
-: So, is that mandatorily attached to
the civil contempt summons
or any of the other documents?
Do we know sort of practices in this area?
-: It is supposed to be included with the summons,
the financial statement,
the information about what is going
to be at issue with the hearing,
is all supposed to be included with the summons.
You know, again, we don't have in the records--
-: So there's some, you may have some ability
to determine just by how often that occurs whether
this is an outlier or not.
I mean, 'cause it looks like financial information
as a matter of course is required--
-: It is, it is absolutely correct, yeah.
I mean, that statement is supposed to be present
in every case.
-: It may not be quite the danger the Chief is worried about
but--
-: One certainly hopes not, you know.
-: Can I just satisfy my curiosity, what is a stuffer?
-: It's just a piece of paper,
it's exactly the piece of paper that is at,
I think page seven, page seven of the--
Judge: Another word for insert.
-: It's an insert, yes, exactly.
I don't know where the, I don't know why the (mumbles)
but it's a piece of paper that is included
in the envelope along with the complaint for contempt.
-: Okay, but there's no reason to think it was included
in this case, is that what you're saying?
-: We cannot tell from the record whether it was.
It is standard practice, it is DOR standard practice
that that piece of paper along with the financial statement
is included in with the complaint,
if DOR chooses to serve the complaint.
But again, it is not apparent either way
from the record whether it was included in this case.
-: Now, the brief makes clear that DOR is not acting
as the attorney,
-: Correct.
-: In this case, but it is a party seeking civil contempt.
So, what...
How is it's role defined?
-: So, you're absolutely correct
that DOR does not represent either parent in these cases
and it does not have any sort of attorney-client obligation
to either parent.
And so again, the way it is supposed to work,
is that DOR is sort of a broker of information,
if it has done the investigation
that's set out in its procedures,
it will presumably have information
about various potential sources of ability to pay.
And its obligation is to present that information
to the court,
in order to help the court make a determination one way
or the other about whether there is ability to pay
in this case.
-: Isn't that a little understating DOR's role in there?
That the woman in this case doesn't even show up, right?
-: Oh, she is present at the first hearing.
-: Not the second.
DOR is the sole person pursuing her interests, right?
It's not really acting as a neutral here (coughs).
-: So, let me sort of clarify the sequence of the hearings
if I could.
So at the first hearing, the mother is present,
but absolutely DOR is present at that hearing
and does advocate both for contempt and for incarceration
and as we have agreed,
that was error under the circumstances.
At the subsequent hearings, I believe,
well the second hearing, there's confusion about whether
the counterclaim was filed and so forth.
But the third hearing, the mother is not present.
DOR is present, but there has been,
I do think it's important to address this.
There's a, the characterization of DOR is advocating against
the modification in that hearing.
It's a short hearing,
I've read the transcript multiple times,
I honestly don't see it.
It seems to me What DOR does in that case,
is at that hearing,
is that they agree that Mr. Grullon's income has gone down
from the previous month to the present month,
and that that might affect the bottom line.
And then at the end of the hearing,
the judge enters a very substantial modification,
and there's no objection from DOR.
So it does not...
I just don't think it's an accurate characterization
of DOR's role at that hearing
that it was advocating against the modification,
if anything, it was agreeing that
the circumstances had changed.
-: Chief can I ask one last question?
Chief: Sure.
-: So, say we disagree with you,
and believe that a lawyer is required
if a judge is going to,
considering putting the, you know,
the non-responding spouse into jail.
Kravitz: Mm-hmm.
-: The Commonwealth's interest,
the Commonwealth's gonna have to pay for this lawyer, right?
Kravitz: Correct.
-: Have you done any thinking on sort of how much
that would cost and how,
'cause I take it in the second calculus,
or the third calculus, the Commonwealth interest,
we would have to consider the cost of the Commonwealth
of imposing such a burden, right?
-: That is certainly part of the government's interest
in this case.
Judge: And what, you have any sense of what
that could amount to?
-: I mean, I don't because it depends on
the parameters of the right.
You know, I think there's some disagreement
between my colleagues and between some of the amici
as to what the triggering event ought to be.
My colleague argues that,
even if it's pro se against pro se,
as soon as the judge is considering incarceration,
then the right to counsel ought to attach.
-: We know the number of people who've been incarcerated.
I've read some of the brief,
but I've not read all the amicus briefs.
Do we know the number who've been incarcerated?
-: I do not think we have a global number for that.
What we have, there are some public records requests,
responses to public records in the supplemental appendix
from a couple of different counties,
and so we have information, I believe,
from Essex and Middlesex,
as to the number of persons who are incarcerated
on orders of this kind over a period of about seven years.
And the numbers are relatively small,
but, not you know, not insignificant.
And so, but--
-: In comparison, the number of DOR lawyers who show up
to do these cases are how many?
-: The actual number of people on staff?
-: Well I'm trying to compare, you know,
when we look at CPCS in the Commonwealth and criminal cases,
we can look at both sides.
Do we know how many lawyers at DOR come to do these cases?
-: I can certainly find that information out.
I don't know it off the top of my head.
But again, the number of hearings
at which this will be required will depend, you know,
substantially on whether the right,
should this Court find one is limited to cases
in which DOR appears,
or if it's simply all cases in which incarceration
and also what is the trigger?
Whether incarceration is guaranteed
or just on the table or wherever it is.
So those will all obviously affect the number of instances.
-: Oh, can't be guaranteed,
otherwise the judge will have had to make a decision before
the judge appoints counsel.
So, it would have to be reasonably contemplated.
Kravitz: Right.
-: And what meaning do we take from the fact
that Middlesex which is the most populous county
has many, many fewer than Essex,
which is a far less populous county?
And that about 75, between two thirds
and 75% of those individuals are not paying the amount due
but in fact completing their civil contempt term.
-: You know, honestly, I don't know what to take from that
other than simply the fact of the numbers.
We obviously don't know anything about what happened
in those hearings,
we don't know anything about the relative means
of the individuals who chose to pay versus who did not pay.
There is obviously the numbers are...
I don't know what to make of the difference between
the numbers from Middlesex and from Essex to be honest.
Judge: Okay, thank you.
-: Thank you.