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Policy Library

BBA Joins with MBA on Amicus Brief Supporting Right to Counsel in Civil Contempt Proceedings

January 06, 2020

In 2008, as part of our Gideon’s New Trumpet report, the BBA reiterated and extended our support for a broad expansion of the civil right to counsel to adversarial proceedings where particular basic human needs are implicated. That included contempt hearings in which the defendant faces incarceration, “[b]ecause of the potential loss of liberty at stake”. In doing so, the BBA joined with the Access to Justice Commission, which had made the same recommendation in 2007.

That BBA report—authored by former BBA President Mary Ryan of Nutter McLennen & Fish, and IOLTA Committee Director Jayne Tyrrell—noted that the question of whether a right to counsel should apply in such instances “invites litigation”, and now with that question squarely before the Supreme Judicial Court (SJC) in the case of DOR v. Grullon, we have joined in a brief with the Massachusetts Bar Association (MBA), asking the justices to find that, under the federal and state constitutions, as well as case law, due process requires the appointment of counsel for an indigent defendant facing attorneys for the Commonwealth and a realistic risk of incarceration in a civil contempt proceeding.

[I]ndigent litigants are forced to navigate the legal system without legal representation even in cases where basic human needs are at stake.

BBA Task Force Report, Gideon’s New Trumpet

Here, the defendant-appellant—a partially disabled, indigent veteran—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 is now represented by Veterans’ Legal Services (“VLS”), the petitioner was then acting pro se (with limited VLS guidance) in the matter, which had been brought by the Department of Revenue (DOR).

The judge at the hearing took issue with a comment made by the petitioner, which she interpreted to mean that the petitioner was not taking his responsibility seriously. The judge found the petitioner in contempt of court and sentenced him to ten days in jail. Also at issue is whether the sentence was intended as punishment or to compel the petitioner to comply with the standing support order, and whether the court made the proper findings that the petitioner—who was homeless and engaged in a vocational rehabilitation program to help find work compatible with his disability—had the ability to pay the support order or the so-called “purge amount,” i.e., the amount that must be paid to secure the petitioner’s release from incarceration.

Because he could not afford the purge amount of $500, Grullon served the full ten days in jail, during which time he missed vocational training, further setting back his ability to return to work. (According to VLS, research demonstrates that incarceration is rarely effective in such circumstances and is counterproductive with regard to both future compliance and fatherhood engagement.)

In July, the SJC, without explanation, granted direct appellate review of the lower court’s decision. Our Amicus Committee—chaired by Erin Higgins of Conn Kavanaugh LLP and Neil Austin of Foley Hoag LLP—recommended that the BBA join an amicus brief in support of Grullon’s argument, and the Council voted to join the MBA’s brief, as drafted by Thomas J. Carey, Jr., of Hogan Lovells. The brief was also joined by Boston College Law School professor Mark Spiegel, and the ACLU of Massachusetts filed a separate letter expressing to the SJC their endorsement of the brief. (The Massachusetts Law Reform Institute, the Committee for Public Counsel Services, and the Jewish War Veterans of the USA each weighed in as well in support of a right to counsel in such cases.)

In a 2011 case, Turner v. Rogers, the US Supreme Court addressed this issue, reversing a state-court decision in which an unrepresented noncustodial parent was incarcerated for non-payment of child support. That Court concluded that the incarcerated parent’s due-process rights had been violated, but stopped short of recognizing that a right to counsel is “automatically” required in all civil contempt hearings. Among other concerns, the Court noted that asymmetry of representation between purely private parties might skew the playing field, and expressed a belief that procedural protections other than a per se right to counsel would be adequate to satisfy federal due process standards in most private cases.

Poor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.

MBA/BBA Amicus Brief in DOR v. Grullon

The MBA/BBA brief in Grullon argues that Mr. Grullon did not benefit from the specific alternate safeguards that might obviate the need for counsel under Turner, and that systemic flaws exist in the processing of civil contempt matters in the Probate and Family Court. “[W]hen government attorneys advocate imprisonment of unrepresented indigent defendants for debt,” the brief states, “the risk of error is unacceptable, and the value of court-appointed defense counsel is indisputable.”

It goes on to say that while the SJC may wish to take further remedial steps, in the exercise of its supervisory powers over the administration of justice—including promulgating clearer court forms, creating universal standards, requiring written findings, and tasking a working group to evaluate current practices and make recommendations—“such steps should be additional to and not in substitution for a constitutional right to court-appointed counsel for indigent defendants faced with government lawyers and a realistic risk of imprisonment”.

As argued in Gideon’s New Trumpet, 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.” The instant case arose from a family-law matter, but, as we learned in consultation with our sections, contempt hearings involving indigent alleged contemnors are also sometimes seen in other types of proceedings, such as bankruptcy.

The BBA has long advocated for a broader right to counsel in civil cases, including…

  • through the courts
    • See, e.g., amicus briefs the BBA joined in related 2014 and 2015 cases that resulted in such a right where a child may be taken from a parent/guardian.
  • and through legislation.
    • See, most recently, our support for the coalition seeking to enact a right to counsel for indigent tenants and landlords in eviction cases.

The SJC’s oral arguments in Grullon will be held this Thursday, January 9, and can be viewed, through the Suffolk Law School web-site, either live (starting at 9am) or in archived form. Veterans’ Legal Services will be representing the Appellant, and you can read their brief here. A decision is expected by May.