THIS NOW RETIRED JUDGE, RANDY KAPLAN, IN EFFECT DENIED FREEDOM [AMERICA’S MOST PRECIOUS ASSET] TO A MAN IN VIOLATION OF OUR CONSTITUTION AND NOW KAPLAN [RETIRED] IS BOOKED TO TEACH LAW FOR A TUITION FEE TO LAWYERS …..RANDY KAPLAN TOOK A MAN’S FREEDOM IN A CELL AND NOW IS A TEACHER OF LAW! ANOTHER MASSACHUSETTS OUTRAGE! UNJUST IMPRISONMENT BY THEN JUDGE RANDY KAPLAN, NOW TEACHER ?

JORDAN LEWIS RING, ESQUIRE, A GREAT LAWYER WHO KNEW TURNER V ROGERS….AND RANDY KAPLAN, FORMER POLITICAL APPOINTED JUDGE, NOW RETIRED, LOCKED UP A MAN IN DENIAL OF OUR CONSTITUTION THIS MUST BE AIRED TO AMERICA….JUDGES APPOINTED BY POLITICAL DOINGS…..OUR CHIEF JUSTICE VENTED HIS DISGUST! CHIEF JUSTICE ON UNJUST IMPRISONMENT BY FORMER JUDGE KAPLAN, NOW TEACHER OF LAW!

GANTS, C.J. (concurring). The court’s opinion ably demonstrates that the order of
civil contempt in this case, which resulted in the unjust imprisonment of defendant
Joshua Grullon for ten days, was the product of a compendium of errors. He was
effectively denied every procedural safeguard that he is entitled to as a matter of due
process under the Fourteenth Amendment to the United States Constitution: (1) he
was not given the required notice “that his ‘ability to pay’ is a critical issue in the
contempt proceeding”; (2) he was provided with a financial information form, which
he filled out, but it appears that neither the judge nor the attorney with the child
support enforcement division of the Department of Revenue (department) reviewed it
or in any way considered it; (3) no apparent inquiry was made into his ability to pay
the amount due in child support payments; and (4) the judge made no finding that the
defendant had the ability to pay the purge amount of $500. See Turner v. Rogers, 564
U.S. 431, 447-448 (2011). The court correctly vacates the civil contempt order but does
not reach the question whether there is a constitutional right to counsel for indigent
defendants in civil contempt proceedings who face a realistic risk of incarceration. The
court declares that it need not answer that question “where the procedural safeguards
or their equivalent are provided.” Ante at .
I do not quarrel with the court’s decision not to reach this question in this case. I
write separately, however, to raise six points.
First, it is important to emphasize the premise that underlies the court’s rationale
for deferring this question — that the procedural safeguards that were denied the
defendant in this case will be faithfully provided to future defendants. The record in
this case is inadequate to allow us to determine whether the denial of the procedural
safeguards required under the Fourteenth Amendment by the Turner decision is the
exception or the norm in the so-called “DOR session” of the Probate and Family Court.
If it emerges over time that it is the norm, or more than an isolated exception, a right to
counsel would be necessary to ensure that these procedural safeguards are faithfully
applied. The Supreme Court in Turner attached “an important caveat” to its
conclusion that the State need not provide counsel to a parent in a civil contempt
proceeding for failure to provide child support — “the State must . . . have in place
alternative procedures that ensure a fundamentally fair determination of the critical
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incarceration-related question, whether the supporting parent is able to comply with
the support order” (emphasis added). Turner, 564 U.S. at 435. If the required
procedural safeguards are not, in practice, consistently applied in the DOR session to
“ensure” that a thorough inquiry is made into the defendant’s ability to pay and that a
judge makes a careful finding by clear and convincing evidence regarding the
defendant’s ability to pay, then the caveat would not be satisfied and a right to counsel
would be required under the due process clause of the Fourteenth Amendment.
Second, because a finding of civil contempt may result in a loss of liberty, the
standard of proof is a demanding one: “clear and convincing evidence of disobedience
of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 838-839
(2009) (Birchall). The violation of the court’s order must be wilful, which means there
must be clear and convincing evidence that the defendant had the ability to pay the
amount ordered. See Salvesen v. Salvesen, 370 Mass. 608, 611 (1976), citing Sodones
v. Sodones, Mass. 366 Mass. 121, 130 (1974) (“A person judged in civil contempt may
not be sentenced to prison for failure to pay a compensatory sum of money if he shows
that he is unable to comply”). See also Commonwealth v. Henry, 475 Mass. 117, 121
(2016) (“A defendant can be found in violation of a probationary condition only where
the violation was wilful, and the failure to make a restitution payment that the
probationer is unable to pay is not a wilful violation of probation”). In fact, a “jail term
is a coercive civil contempt sanction rather than a punitive criminal contempt
sanction” only “because the contemnor retains the ability to obtain his [or her] release
from custody by paying an amount he [or she] is able to pay.” Birchall, 454 Mass. at

  1. Therefore, as here, where a purge amount was ordered to be paid forthwith, there
    must be a finding by clear and convincing evidence that the defendant has the ability to
    pay that purge amount.
    Third, the Supreme Court in Turner recognized that “the critical question likely at
    issue in these cases concerns . . . the defendant’s ability to pay.” Turner, 564 U.S. at
  2. But the Court declared that a defendant’s ability to pay is “often closely related to
    the question of the defendant’s indigence,” and concluded that, because courts
    routinely make an indigency finding at the beginning of a criminal case to determine
    whether a defendant is entitled to appointed counsel, a finding of ability to pay in
    many cases will be similarly “straightforward.” Id. I believe this analogy is
    misleading. If we were to provide a right to counsel where the department seeks
    incarceration of a noncustodial spouse through an order of civil contempt, the right
    would be limited only to indigent defendants, but that would not mean that every
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    defendant who would be entitled to counsel would, as a consequence of the finding of
    indigency, be entitled to a finding of not guilty on the charge of civil contempt because
    of his or her inability to pay. The issue of ability to pay in civil contempt cases is far
    more complex than an indigency determination regarding a defendant’s entitlement to
    counsel, in part because it may include findings regarding a defendant’s imputed
    income, that is, the amount he or she could earn but chooses not to earn. See C.
    Kindregan, M. McBrien, & P.A. Kindregan, Family Law and Practice § 92:4 (4th ed.
    2013) (judge may hold defendant in civil contempt not only where judge has
    determined that defendant has sufficient assets to satisfy support obligations, but may
    also consider such matters as whether defendant has voluntarily left employment or
    stripped self of assets).
    Fourth, our Massachusetts case law provides a right to counsel in circumstances
    where the Fourteenth Amendment’s due process clause does not. Therefore, even if
    there were no such right under the United States Constitution, there may yet be a right
    under Massachusetts law. For instance, in Massachusetts a defendant has a right to
    counsel in a probation revocation proceeding “whenever imprisonment palpably may
    result from a violation of probation.” Commonwealth v. Patton, 458 Mass. 119, 125
    (2010), citing Williams v. Commonwealth, 350 Mass. 732, 737 (1966) (“‘simple justice’
    requires that, absent waiver, a probationer is entitled to assistance of counsel”). The
    Supreme Court, however, has declined to recognize a right to counsel in probation
    revocation cases. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). This court has
    held that indigent parents have a “constitutional right to court-appointed counsel in a
    contested proceeding to terminate parental rights.” See Department of Pub. Welfare v.
    J.K.B., 379 Mass. 1, 6 (1979).[1] The Supreme Court has found otherwise under the
    United States Constitution. See Lassiter v. Department of Social Servs. of Durham
    County, N.C., 452 U.S. 18, 31-32 (1981) (Constitution does not require appointment of
    counsel for indigent parents in every parental status termination proceeding).
    Fifth, where a defendant faces the risk of incarceration for failure to pay a fine, we
    have declared that an indigent defendant has a right to counsel. See Commonwealth v.
    Gomes, 407 Mass. 206, 211 (1990). If a defendant is entitled to counsel when he or she
    faces the risk of incarceration for failing to pay a fine, it is fair to ask why the same
    right would not apply where a defendant faces the risk of incarceration for failing to
    pay a court-ordered child support payment.
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    The distinction appropriately made in response to this question, and one
    highlighted by the Supreme Court in Turner, is that where the party “opposing the
    defendant at the hearing is not the government represented by counsel but the
    custodial parent unrepresented by counsel,” (emphasis in original), Turner, 564 U.S. at
    446, “[a] requirement that the State provide counsel to the noncustodial parent in
    these cases could create an asymmetry of representation that would ‘alter significantly
    the nature of the proceeding,'” id. at 447, quoting Gagnon, 411 U.S. at 787. I certainly
    appreciate the risk of such “an asymmetry of representation” where the spouse who has
    failed to pay child support, for whatever reason, is granted a right to counsel and the
    custodial spouse who is owed child support payments is not. But this asymmetry only
    exists where the custodial spouse is without the assistance of counsel. Where the
    attorney for the department is at the contempt hearing seeking to enforce a child
    support order through a finding of contempt, the custodial spouse is not the attorney’s
    client (the department is the client), but the interests of the custodial spouse and the
    department attorney are closely aligned. The “asymmetry” appropriately feared by the
    Supreme Court in Turner does not exist where the department appears in court
    seeking a finding of contempt to enforce a child support order.
    Sixth, the concern about an “asymmetry of representation” suggests that civil
    contempt proceedings regarding child custody payments are always a zero-sum game,
    but that is often not the case. The goal of the hearing should be the provision of child
    support, as ordered by the judge, but incarceration for civil contempt may not always
    be the most effective way to accomplish that goal, as illustrated by this case. Here, the
    defendant was ordered incarcerated when he was just weeks away from graduation
    from the New England Tractor Trailer School, whose tuition was being paid by the
    United States Department of Veterans Affairs through its vocational rehabilitation
    program. The record does not reflect whether his incarceration prevented his
    graduation from that program, but even if it did not, it certainly put his graduation at
    risk and therefore risked diminishing his subsequent ability to find stable work in the
    trucking industry that would enable him to make his child support payments.
    An appointed attorney would certainly assist a defendant in proving that the
    defendant should not be imprisoned for contempt because he or she was unable to pay
    the amount ordered or any designated purge amount. But a more able appointed
    attorney, with the help of the resources of the Committee for Public Counsel Services,
    might also help a defendant to pay more child support in the future.[2] For instance,
    an attorney could help the defendant to obtain financial counselling that could enable
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    the defendant to increase future income by applying for public benefits to which the
    defendant is entitled or by helping the defendant to find job training opportunities. Or
    the financial counselling may help the defendant to cut expenses, thereby freeing up
    income that can be devoted to pay child support.
    I therefore concur with the court’s opinion in this case, and 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.
    footnotes

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