MeGAL's response to the Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

The final salvo in the exchange between MeGAL and the Judicial Branch. After this we have not heard back from the Judicial Branch.

From: J M Coll
Sent: Mar 22, 2016 10:38 AM
To: "Mary.Ann Lynch"
Cc: Justice Andrew Mead , "Stephen D. Nelson Esq" , "Avery Day Esq." , Hank Fenton , Sen Burns , Beth Ashcroft , Barry Hobbins
Subject: Re: DOJ letter to State Judges re practices that run afoul of the US Constitution: 3-14-16

Mary Ann Lynch, Esq
Government and Media Counsel

Dear Ms Lynch,

Thanks for your prompt reply to my query about Maine courts' standing with regard to "practices which run afoul of the US Constitution", noted in the US  DOJ letter of 3-14-16. I respect your professional belief that the DOJ letter was intended for all 49 US court systems - other than Maine's, which they did not included. I admire your loyalty to Maine, and your heartfelt belief that "Maine Courts are the way courts should be", to paraphrase a popular marketing slogan for Maine.

You and I had this conversation before, last Spring on the editorial pages of the Portland Press Herald. Your statement of rather similar beliefs was on the PPH editorial page on April 3, 2015; my reply was in a letter to the editor, dated April 16th, 2015, which I include herewith. The public comments that follow the letter are worth reading as well, as they express sentiments contrary to those you are expressing.

2015-04-16 Letter to the editor: More assurances on Maine’s court fees would be welcome    

And once again, I would have to differ with you in public. The DOJ letter expresses concern about the social problems caused by abuse and impoverishment of people who use US courts (excluding Maine you might  claim), as a result of fines and imprisonments that "run afoul of the US Constitution". The letter is about courts which are causing public harm and the 7 points discussed in the letter have applications that can readily be applied to many cases that we know personally, and, yes, here in Maine.

Further, I would ask you, "How do you know that Maine courts are 'off topic' for the DOJ letter - that Maine's courts are not at all what they had in mind when they sent it to all 50  states?" Is there a DOJ certificate that excepts Maine from the intent of the letter? What is your data for your claims of near  perfection?  Have you a window on those Maine courts or a video camera that allows you to bear witness to what actually goes on inside family courts? We do have witnesses to what goes on - lots of them.  And there are recordings. But rather than debate our "truth" versus yours, I would ask, why has there been such strong opposition from the Judicial Branch (and allies) to allowing an evaluation, a legislative  audit or an  OPEGA study of even selected  courts? or a systemic evaluation by out of state experts, or even a simple, inexpensive  "consumer satisfaction survey"? The opposition to notions of any objective assessment is resounding every time we raise the issue. The need for "evaluation tools" is not about "mean-spiritedness" to the Judicial Branch; these, after all, are the universal tools of modern management all over the world. The defensive protection of courts from data-based oversight by you and others appears intellectually dishonest (no court system is "perfect", not even in Maine) and it implies that the public oversight has no role in seeking relief and improvement.

Your remarks about the DOJ letter and your position that Maine is excluded from their concerns, challenge us to approach the DOJ people who wrote the letter and ask them directly, is Maine excluded from their concerns? We'd be pleased to give them some brutal Maine cases and see how the DOJ evaluates their Constitutional cleanliness.

Yours for improving even alleged "perfection".

Jerome A Collins, MD

Kennebunkport, Maine

MeGAL is working for reform of the States Family Court and court vendors through education and legislative action. We encourage you to become involved in the process. To do so please contact us at MeGALalert@gmail.com or find us on Facebook.

Previous emails:
2016-03-27 Reply from Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees 
2016-03-27 To Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

Reply from Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

On March 20, 2016 we queried the Judicial Branch on whether or not they were aware of a recent letter published by the Department of Justice.The Judicial Branch responded a day later that they know but - the issues brought forth in the letter did not apply to Maine.

From: "Mary.Ann Lynch"
Sent: Mar 21, 2016 2:52 PM
To: J & M Coll
Cc: Justice Andrew Mead , "Stephen D. Nelson Esq" , "Avery Day Esq." , Hank Fenton , Sen Burns , Beth Ashcroft , Barry Hobbins
Subject: Re: DOJ letter to State Judges re practices that run afoul of the US Constitution: 3-14-16

Dear Dr. Collins:

This is to acknowledge receipt of your letter regarding the recent U. S. Department of Justice March 14, 2016 letter. 

First, an identical letter went to all 50 state courts.  These letters were sent without regard to the state of the law in the individual states.  As a result the public has been seriously misled at least with respect to the law and  fine default procedures in Maine.  

Maine is not among the states or court systems that jail defendants for the non payment of a court fine.  In Maine, a person will only end up in jail if:

1) they are seriously in arrears on fine payment AND they have disobeyed or ignored a court order to come to court and explain why they are in default under 17-A, Section 1304; or
2) The court finds that they have the ability to pay, and intentionally and knowingly refused to pay, otherwise known as an "unexcused default."
An unexcused default finding can only be made after a hearing in court under Section 1304. 

I cannot tell you how much time Maine judges spend working with defendants who are in default of their criminal penalties. The time and resources spent working with defendants on their fines is considerable.  The courts will order payment plans as low as $10/month, and permit community service, where appropriate,  in lieu of fines. 

Frankly, Maine judges are diligent in carrying out the laws enacted by the legislature, which sometimes include minimum mandatory fines that some defendants will have great difficulty ever paying. (Try paying a $1000.00 fine plus surcharges, if you are living on a disability or SSI income of  $800/month.)  The judges use as much discretion as they are allowed by law to work with defendants to come up with individualized payment plans, and still maintain respect for the law. 

It is discouraging to see the US Department of Justice paint all courts with the same broad brush that they have painted Ferguson,  Missouri. One would hope that federal officials would research the facts first, before aiming a broad missive at courts which are working hard to uphold the law.


Mary Ann Lynch, Esq.
Government and Media Counsel
Administrative Office of the Courts
Maine Judicial branch
P.O. Box 4820
Portland, ME 04112

"The administration of justice is the firmest pillar of government" -  George Washington


It should be noted that "unexcused default" seems to be a term only related to the State of Maine. When a search for what a legal definition of the term was done all we could find was related either to the purchase and sale of an item or Title 17.

With the first paragraph after the two line items we are told that the courts take great pains to work with consumers of Justice. While this may be true it has been witnessed just the opposite. We have numerous stories from people which contradict what the Judicial Branch are telling us.

MeGAL is a grass roots group working to educate and promote legislation to reform Family Court and Guardians ad litem (court vendors). You may get involved by emailing us at MeGALalert@gmail.com or find us on Facebook.


2016-03-27 To Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

To Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

In Family Courts parents are often faced with paying crushing fees for court vendors (Guardians ad litem) and lawyers or face jail time. The Department of Justice has indicated that this practice must stop in all courts as it infringes on the rights of citizens of this country and consumers of judicial services. We present here the first in a series of email exchanges between MeGAL and the Judicial Branch about this topic.

From: J M Coll
Sent: Mar 20, 2016 1:37 PM
To: Mary Ann Lynch*** , Justice Andrew Mead
Cc: "Stephen D. Nelson Esq" , "Avery Day Esq." , Hank Fenton , Sen Burns , Beth Ashcroft
Subject: DOJ letter to State Judges re practices that run afoul of the US Constitution: 3-14-16

Mary Ann Lynch Esq
Maine Judicial Branch

Dear Ms Lynch,

I am in receipt of an important letter from the US Department of Justice, Civil Rights Division, Office of Access to Justice, dated March 14, 2016. It is signed by Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Division and Lisa Foster, Director Office of Access to Justice. The letter is addressed to those responsible for the assessment and enforcement of fines in state and local courts. Its stated aim is to address common practices that run afoul of the United States Constitution due to illegal enforcement of fines and fees in certain jurisdictions, and it speaks to the harm caused defendants by these practices.  Can you confirm that the Maine Judicial Branch has received this letter and is prepared  to act on its specifics.

It is a lengthy letter- and fairly detailed; however, here are a few of the specific issues in very skeletal form:

1.) Courts must not incarcerate persons for nonpayment of fines without first conducting an indigence determination.

2.) Courts must consider alternatives to incarceration for indigent defendants unable to pay fines or fees.

3.) Courts must not condition "access to judicial hearings" on prepayment of fines or fees.

4.) Courts must provide meaningful notice and, in appropriate cases, counsel she enforcing fines and fees.

5.) Courts must not use arrest warrants and license suspensions as a means of coercing payment of court debt when individuals have not been provided constitutionally adequate procedural protection.

6.) Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.

7.) Courts must safeguard against unconstitutional practices by court staff and private contractors.

I am including a pdf  link that connects to the original letter from DOJ.

I would add that, in my opinion, the letter needs widespread circulation as a matter of professional and public education.  It also seems to call for immediate action to amend practices, which "run afoul of the US Constitution".

When- may we expect implementation of this DOJ call for "corrective action" from Maine's Judicial Branch?

Sincerely,

Jerome A Collins, MD

Kennebunkport, Maine

MeGAL is working for the reform of our dysfunctional Family Court system and the vendors (GALs) which are used. We do this through education and legislation actions and encourage you to get involved with this process. You can start by contacting us at MeGALalert@gmail.com or by finding us on Facebook.

Open Letter to Hon Andrew Mead and the Justice Action Group

Hon. Andrew Mead
Chair
Maine Justice Action Group

Dear Justice Mead,

I was very pleased to be able to speak with you briefly, Tuesday, and to hear your presentation to members of the Legislature's Joint Committee on the Judiciary. Your presentation was helpful in getting a brief, general overview of your group's work in seeking "justice for all".

I think everyone agrees with the title of your "Maine Voices" contribution to the Portland Press Herald in 2014: "To ensure that justice truly is for all in Maine". My questions are about just how the Justice Action Group is doing this. You kindly encouraged me to forward questions for consideration by members of the Justice Action Group and herewith are my concerns and questions:

1. Has the committee set any numerical goals for measuring an improvement in Maine's access to justice, year by year? 75% using Maine family courts are widely reported to be 'pro se' litigants. This, on its face, suggests an access to justice problem for these people. It also suggests that, with no lawyer to represent them, they are a disadvantaged class in court. From state figures for 2015, 75%" equals about 17,065 self-representing Mainers, or over 1% of the state population. Does the committee hope its planned programmatic "interventions" will reduce these figures in a calculable way? Say, from 75% to 70%, or 65% in 1-5 years (or in some other specific time period)? As we know, these statistical numbers are not static. Older cases without service accumulate, many cases remain active for more than a year. New cases keep coming in at various rates. Without working statistics, statistical targets and a population-oriented approach, it is hard to measure the effectiveness of various types of interventions aimed at reducing the numerical size of the problem.

2. On the very commendable news about the expansion of legal services for the 'pro se' population, we frequently hear user concerns expressed about financial eligibility for no fee or low fee legal service. People report: I don't understand if I am eligible for services from web information? People we talk with express great difficulty in getting clear, straight answers when they call. We have wondered why these low cost legal services don't post simple, explicit, user-friendly information on their web sites that would enable viewers to see at a glance, if it is worth trying for their service. It shouldn't be "rocket science" for consumers. One spokesperson for low cost legal service told me in a recent phone conversation that their formula was complex, but it essentially boiled down to "food stamp" eligibility. The spokesperson added, "We don't want to be perceived by the bar as competitors for clients." To us it suggested a special interest problem in solving the 'pro se' problem. To what extent are your allowable target populations defined by bar concerns about losing potential clients? Is the bar concerned about "losses" inhibiting more rapid movement by your group? I would also ask about the "match" between geographic spread of the 'pro se' problem across the state and geographic spread/location of services for this population?

3. There is a very old saying, "Beggars shouldn't be choosers"; however, in modern times, a part of any good program management is regular program evaluation. Is there any evaluation of the quality of various legal programs for the poor, or, more recently - for those of "modest means"? Is the professional quality served "the poor" the same as that of full pay legal services, or is there an "economy service"? How do the "consumers" of these services feel about them? Are consumer satisfaction surveys being done?

4. From what I can determine, the Maine Justice Action Group is heavily weighted with members of the legal profession, yet the large majority of "advocacy" in family courts (75%) is being done by 'pro se' litigants. They know the 'pro se' experience, they know their problems with it, they know the things that do and do not work. This population makes up a very sizable majority; only 25% have lawyers. The 'pro se' litigant is the "new normal" in family courts (certainly numerically). Has consideration been given to proportional representation of this population in your access to justice deliberations? It might give the Justice Action Group fresh insights into what the experience feels like from the perspective of a 'pro se' person, and it might provide a healthy challenge to the inherent conservatism of any professionally dominated planning group. It is about taking a more deliberately consumer-friendly  orientation and about  thinking "outside of the professional box". I would also emphasize that there is a difference between "public members" of Judicial Branch committees and actual 'pro se' litigants. It is the latter who need to be heard.

5. Where does Maine fit nationally in the access to justice "spectrum"? Top rank? Middle?  Bottom? Have recommendations for improvements in the Maine program been suggested by the  national group? Are you seeing promising developments in other states that might fit Maine?

ADDENDUM FOR CONSIDERATION: Two more radical concepts have been discussed with us, and both might solve the current stresses of the 'pro se' access to justice problem, while perhaps raising other issues: (a) the Scandinavian approach to divorce seems to remove divorce from the courts altogether except for cases of proven abuse.  (b) divorce is an enormous "profit center" for many lawyers.  Shouldn't this unrepresented divorce population also be a professional bar responsibility for the privilege of a law license? Dividing the 'pro se' population equitably amongst all lawyers in regular office practice might be an amazing catalyst for other changes. It might actually lead to pressure from the divorce bar to adopt the Scandinavian approach to divorce and custody. In a stroke, this would eliminate the 'pro se' build up in divorces. But to move from concept to implementation one would need to alter the "Stakeholder" political dynamic. A large representation of "consumer stakeholders" on the Justice Action Group might alter the group's political dynamic and speed up the accessing of justice.

I offer these questions and thoughts as an outsider to your group, who has been an active observer of the family court 'pro se' problem for 4 1/2 years. I would suggest with all due respect that the access to justice problem is a large one and requires urgent action. As numbers have expanded (75%), there is inevitably an increase of stress, tension and breakage in the system. The "new normal" is not a happy normal by any means, and it is producing an  erosion of how courts function (or don't), It is a very unbalanced,  awkward "new normal" that disrupts grounded professional traditions. Most importantly, along with this damage is the very disturbing loss of public respect for our judicial system.

Please, do not hesitate to call on me if any of my queries are unclear.

Sincerely,

Jerome A Collins, MD
Kennebunkport, Maine

MeGALs mission is bring about reform within the Guardian ad litem (GAL) and Family Court system. We do this though education and legislative process. If you have been hurt by court vendors (GALs) and/of Family Court we encourage you to let your representative know and please contact us. We may be reached at MeGALalert@gmail.com or find us on Facebook.