"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, May 24, 2014

New York Family Courts reinvented debtors prisons for indigent parents, whether they have a present ability to pay arrears in child support or not - what do NYS Chief Judge Lippman and Governor Cuomo have to say about that?

Even though the difference between a civil and a criminal contempt is pretty straightforward, courts, in its zeal to collect child support, continue to conduct civil contempt proceedings as if they are criminal.

The difference is this:  does the parent have a present ability to pay.

Of course, the law somehow presumes that the parent does have a present ability to pay and puts upon the parent the burden of proof that he/she does not have such a present ability to pay.

Existence of such a presumption flagrantly flies in the face of economic realities of poverty and unemployment in the State of New York.

Yet, such a presumption is relentlessly adhered to by the courts.

And even then, recently a case was reported to me that a judge was aware that the parent was indigent (well, the judge has even assigned counsel to that parent), that the parent was homeless, and that the parent has neither the job, nor savings, nor assets.

That is enough to prove present inability to pay.

The parent also presented to the judge an affidavit stating that she has no present ability to pay, which the judge refused to accept into evidence.

The judge did not hear testimony of the parent either.

Instead, the Family Court judge gave the homeless indigent parent 10 days to pay approximately 10 thousand dollars in arrears, and put her in jail for 3 months, determinate, when, no surprises here, the parent was unable to pony up such an amount within 10 days.

Civil Contempt
Criminal Contempt
Remedial (at least that is claimed) – to ensure that child support is paid for the benefit of the child
Punitive – to ensure punishment upon a criminal defendant for violation of the law
Who brings the proceeding
Parent who has physical custody – the civil creditor with a personal interest in the outcome
The local district attorney – a public prosecutor who has no interest in the outcome of the proceedings
Burden of proof
1.       The Petitioner only has to establish three facts:  that there was a valid order of support in place, that respondent parent did not comply with it and how much is owed;  willfulness is presumed
2.       The burden of proof then shifts to the respondent parent who must show his or her present inability to pay (where courts routinely and erroneously “impute” income that the respondent parent should have been earning instead of analyzing what he or she presently have in order to be able to pay the arrears)
The burden of proof, in both of its aspects, the burden of production and persuasion, is on the prosecution at all times of criminal litigation.
1.       The petitioning parent files a petition for contempt of court before a support magistrate
2.       The support magistrate conducts a hearing, usually on the first appearance date, without any discovery or motions, as to whether the three facts: court order of support, non-payment and amount of arrears is determined
3.       Responding parent has no right to remain silent
4.       New York Family Courts allow appearances of petitioners by phone from outside of the state of New York
5.       None of the rules on the right are followed in Family Court
6.       After the magistrate makes a determination of willfulness, the case proceeds to a Family Court judge for a confirmation hearing
7.       Judges routinely perceive a confirmation hearing as an appearance without testimony and send parents to jail based on the results of a discussion between the court, the parents and their counsel, if any, without any testimony whatsoever
8.       In civil contempt proceedings, the court may order incarceration up to 6 months or until the parent pays the arrears
A criminal contempt of court is a misdemeanor, or, in other words, a crime in the state of New York.
A person charged with a crime in the state of New York has the following minimum rights:
1.       A legally sufficient accusatory instrument brought against him by the local County District Attorney;
2.       An arraignment in the local criminal court;
3.       An advice by the court that the defendant has a right to remain silent
4.       A right to attorney
5.       A right to discovery in accordance with Criminal Procedure Law
6.       A right to disclosure regarding the criminal defendant’s statements that the prosecution is planning to introduce at trial – a CPL 710.30 notice;
7.       Right to suppress evidence and confessions obtained in violation of statutory and constitutional law, and respective motion practice;
8.       The right to a jury trial where the complainant must testify under oath before the jury, a contempt may not be found on paper submissions
9.       At trial, criminal defendant has a right to remain silent, and his silence may not be held against him by the court or the jury, usually a special jury instruction is given to that effect;
10.   Failure of a witness to personally appear in court results in dismissal of criminal proceedings
11.   A criminal defendant has a constitutional right to confront witnesses against him at trial face-to-face, with such witnesses testifying under oath
12.   The right to a sentencing hearing
·         Probation,
·         Payment by installments;
·         Civil judgment against the respondent parent which the petitioning parent has a right to enforce as other civil judgments are enforced;
·         Incarceration for up to 6 months or until the parent pays up the arrears, whichever is earlier
·         Conditional discharge;
·         Probation
·         Incarceration – paying arrears does not let the convicted person out of jail earlier
Status of incarcerated individual
Civil contemnor, not a convicted criminal, no criminal history is created with a civil finding of contempt of court, no Department of Corrections rules or regulations must be applicable, the civil contemnor should not be held together with individuals convicted for crimes in general population – I have reports that all of that is ignored and civil contemnors are considered in jails on par with individual convicted for crimes
Convicted criminal

The distinction between civil and criminal contempt is quite easy.

There is a saying that a civil contemnor holds the keys to his or her own jail cell in his or her own pocket.

That means that the civil contemnor does have the money, but does not want to pay the amount ordered to be paid by the court.

The purpose of incarceration in a civil contempt proceeding is to make the parent pay, not to punish him or her for non-payment.

If the civil contemnor/ parent is indigent and does not have the money to pay the arrears, as ordered by the court, incarceration cannot force such a parent to pay.    One cannot get blood from a stone.

Thus, by incarcerating indigent parents for a set period of time, the Family Court acts as a criminal court, without any authority to do so, denies such parents all procedural constitutional rights they are entitled to in such criminal proceedings, starting from the right to remain silent and ending with the right to confront witnesses and for a jury trial.

Given that judges in New York State Family Court are elected only after a minimum of 10 years of practice of law, and indigent parents such judges are ordering into jail are poor and usually uneducated or undereducated, I see no way how such incarcerations, while having clear evidence of the parent's present inability to pay, may be considered an honest judicial mistake.

I cannot state the names of a parent who I know suffered such a fate at the hands of a New York state Family Court  judge recently, for obvious reasons.  I  do know the name of both the parent and the judge who did ordered incarceration of an indigent parent, and, according to my research of appellate decisions, such rulings are a common occurrence - and one must bear in mind that in case of an indigent and incarcerated parent appeals are extremely difficult from logistical point of view alone, and that far from all of such cases are appealed.

Even one wrongful incarceration is one too many, and we do not know how many more are out there.

Will Judge Lippman and Governor Cuomo pay attention to this problem  or are they too busy to look into the fates of indigent incarcerated parents and to make sure such wrongful incarcerations do not happen?


  1. You might be interested in the NJ version...

    1. Thank you for the tip. I've read the article your have alerted me to. It says exactly what I am saying in this post.

      To make sure that putting non-paying parents in jail is not punishment (criminal contempt), but only coercion (civil contempt), the courts must first find whether parents have a present ability to pay the arrears. If they have no such present ability to pay, the court has no way of "coercing" them (no way to get blood from a stone), and has no jurisdiction to punish them for criminal contempt unless the criminal contempt procedures are utilized. In New York (I do not practice in NJ and do not know NJ law) Family Courts do not have criminal jurisdiction and may not punish for non-payment of child support, they may only coerce, the distinction which is apparently lost on Family Courts in this state.

      Also, in New York the work release program the article writes about would be illegal because in New York, it is not allowed to garnish more than 10% of a paycheck, and in the "work release" program apparently the entire paycheck is taken.

      Apparently, the courts in NJ are trying to create a present ability to pay by the "work release programs", but do not contemplate while doing it the present federal poverty levels below which, in my opinion, it is a violation of due process of law to collect any child support at all. If hungry prisoners are released into the streets to try to find a job while they are provided no assistance for that by the County, and then their check is collected, their detention, in my humble opinion, is still criminal incarceration and not civil detention because by present ability to pay the present ability to pay the ENTIRE arrears must be contemplated, and present ability to pay must include present ability to cover basic needs of the parent in consideration of unemployment levels, the cost of living and the parent's employment status.

      Thank you for the article. What is being done in NJ is, in my view, deplorable.

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