News Releases
June 26, 2020

BBA Statement on DOR v. Grullon Ruling

Letter or Statement

Yesterday’s ruling by the Supreme Judicial Court (SJC) in DOR v. Grullon provides helpful guidance where civil contempt proceedings may result in an unrepresented defendant’s incarceration. Although the Court did not address the question—as raised by the Boston Bar Association (BBA) in an amicus brief filed jointly with the Massachusetts Bar Association (MBA)—of whether a constitutional right to counsel exists in such cases, the opinion outlines the procedural due process protections that must be afforded to a noncustodial parent facing the risk of incarceration.

Because the defendant was deprived of each of the required procedural safeguards under federal and state law, as well as under the Department of Revenue’s own policies, the Court vacated the lower court’s judgment of civil contempt. Indeed, even DOR conceded that the judge below erred in holding the defendant in contempt.

While the unanimous opinion by Justice Cypher “leave[s] open for another day” whether a right to counsel applies, the concurring opinion by Chief Justice Gants lays the groundwork for the Court to consider that issue in a future case, adding that he “will await a case that provides a more complete record as to whether the constitutionally required procedural safeguards are being complied with in DOR sessions throughout the Commonwealth where the question regarding a right to counsel that was deferred by this court might need to be answered.”

Here, the defendant was incarcerated for non-payment of child support on a civil contempt, after having made unsuccessful attempts to modify his order to reflect a loss of income. Though he was represented on appeal by Veterans’ Legal Services (VLS), the petitioner was then acting pro se (with limited VLS guidance) in the matter, which had been brought by DOR. As argued in the BBA’s Gideon’s New Trumpet report, this issue is important for access to justice because “[p]oor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.” This case arose from a family-law matter, but contempt hearings involving indigent alleged contemnors are also sometimes seen in other types of proceedings, such as bankruptcy.

The BBA joined the MBA’s brief in support of the argument that the order to incarcerate Mr. Grullon should be reversed because he was acting pro se in a matter where there was a potential loss of liberty at stake. The brief further argued that deprivation of personal liberty because of inability to pay a debt is a serious violation of a fundamental right, and that attorneys are essential to offset the high risk of an erroneous deprivation of liberty in these cases. Therefore, the constitutional right to counsel should attach when an indigent defendant is facing government lawyers and a realistic risk of incarceration or imprisonment for debt, whether under the Federal constitution or under Massachusetts law, which Chief Justice Gants noted has recognized a right to counsel where Federal law does not.

“The BBA has long supported a broad expansion of the civil right to counsel in adversarial proceedings where basic human needs are at stake,” said BBA President Christine M. Netski. “And we continue to believe that this principle should extend to contempt hearings whenever a potential loss of liberty is at stake.”

The BBA will continue to advocate—both in the courts and in the Legislature—for an expansion of the civil right to counsel.


Amicus Curiae means, literally, friend of the court. Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2019-2020 BBA Amicus Committee is co-chaired by Neil Austin of Foley Hoag LLP and Erin Higgins of Conn Kavanaugh.