Tuesday, June 28, 2011

Contempts and the right to counsel

In the case of Turner v. Rogers, U.S Sup.Ct. No 10-10 June 30, 2011, the Supreme Court addressed the question of is a court appointed attorney required in civil contempt proceedings for the collection of child support. The simple answer is sometimes yes and sometimes no. Probably, most of the time, court appointed counsel will not be required. It is my opinion that under present Massachusetts practice, court appointed counsel must be appointed. If Massachusetts makes some minor changes, counsel won't be required in the majority of cases.

The decision of the court makes it clear that incarceration as a result of a contempt finding is just as harmful as incarceration in a criminal case. Before jail can be imposed for non-payment of child support, the court must either appoint an attorney to represent the defendant or provide “substitute procedural safeguards.” Substitute procedural safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. Massachusetts practice includes the last three of these safeguards. What is lacking is the notice to the defendant that his ability to pay is a critical issue.

Notice of a complaint for contempt is provided by service of a summons and a complaint. The current form of a summons does not have any language that provides notice that ability to pay is a critical issue. As long as Massachusetts lacks this essential notice, it appears that Massachusetts will have to appoint attorneys to represent defendants in contempt cases. It should be a simple and inexpensive remedy for the state to revise the form of summons and include the language that is now constitutionally required. Until this is done, the language can be added to complaints or court appointed attorneys must be provided.

While the Supreme Court decision does not go further, I think that the decision requires more than notice and filling out a financial statement. It appears to require that the Defendant have the ability to understand the issue of ability to pay and to present testimony on this issue to the court. If the defendant lacks this ability, then the court needs to appoint counsel.

Thursday, June 23, 2011

Assents in Probate

Recently, I was asked to explain an assent form for the administration of an estate of a deceased person.  In the probate process, there are a number of actions of the Executor that require approval by the Judge. Our probate system generally works on the assumption that the parties to the estate have the most knowledge. If the parties (heirs) want to object to the actions of the executor, then the court will look at the actions with more care. Otherwise, the court can assume that everything is proper. So when a judge's approval is requested, the heirs and other parties are given notice of the issue and given an opportunity to approve or object. If all parties approve, it can expedite the process and decrease the cost. If a person objects, it may create an issue for the court to investigate and hold hearings to resolve. The third choice is to do nothing and let the court decide what action to take without guidance from the parties.

If a party is requested to sign an assent, there are documents that will be submitted to the court which explain the proposed action. The first opportunity to assent is to approve the will and appoint the executor. The subsequent assents could be all sorts of things. Nobody should sign an assent unless they have copies of the documents relating to the issue and understand the contents. The assent will identify the document that is submitted to the judge. An assent says to the court that you approve the proposed action of the executor. It also says to the court that you don't need further notice of the proposed action.

The following is an example of how this works. When the probate is filed, the petitioner files a copy of the will with a petition to probate, a death certificate, and a bond. If you sign the assent, you probably won't get further notice of the petition to probate. If you don't sign the assent, you will be "served" (probably by mail but possibly by a sheriff) with a court document called an order of notice that tells you the petition and will were filed and that you are an interested party and have the right to object to the petition. It will also tell you the date by which you must file your objection. If you don't file the objection by that date, you will not have the right to contest the will or appointment.