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.

Part 2 - THE DICE ARE LOADED: A CONSUMER'S PERSPECTIVE

Part two of the Dice are Loaded

10. WHY NO MANDATORY SERVICE FOR A LAW LICENSE: A tax supported state law school trains students for private practice of law. Students select cases in the law clinic on the basis of what interests them, not randomly or first come, first served. The clinic's clients must be at the dire poverty level (food stamps or equivalent) so as to avoid taking even a minimally paying client from the private divorce bar. Clinic clients, however, are getting quasi amateur services. For all of the public tax support (physical plant, teachers and support staff salaries) there is no public pay back in terms of mandatory public service. Why no obligatory service for students, or for members of the bar? Training for the new normal 'pro se' court lacks a syllabus because the reality of new normal hasn't been recognized. The same might be said of the judge's role training for a 'pro se' court. What is it? May we see a book of instructions, if there is one?

11. JUDICIAL DISCRETION ON STEROIDS: Judicial Discretion in family courts seems to be a creative act, badly in need of clear, consistent boundaries. We are told by legislators, "We make the law, the judiciary re-writes the law 'de facto' using judicial discretion in decisions". Individual judges use rampant discretion in court which the higher ups are unaware of, unless there is a successful formal public complaint. Oversight only exists as the result of a complaint pursued by a consumer, often without a lawyer and with no legal background. 

12. FREE LEGAL SERVICES - PAUPERS ONLY, PLEASE: A basic principle for free legal service seems to be that free legal service mustn't compete with the financial interests of the bar. Only food stamps qualifies, please. There are many not on food stamps who cannot receive 'pro bono' or other services because they haven't utterly exhausted every last penny of their own and their family's financial resources, sold their homes, emptied retirement and college plans and pauperized themselves. Like the rest of the legal system, eligibility criteria for low cost services are not well-publicized and are a near secret. The message to the public seems aimed at discouraging users, if possible. Don't want to take paying customers - even poor ones - from the divorce bar's billable hours.  This is a part of the reason why a committee of the legal profession's attention to the growing 'pro se population' doesn't move off of the dime.

13. KEEPING THE PRESS UNDER WRAPS: Freedom of the press gets tweaked by lawyer-lobby.  6000 lawyers don't like court reform essays, articles, opinions. 'Ex officio' we have been told that editors receive lawyer comment on contributions critical of the family courts, with un-rebutted, self-serving, predictable answers. Consumers may not quote the law impeccably, but they know when practices violate common sense and "legally correct" may not be justice. They know from experience when corrective mechanisms work and when they don't. There is also a political aspect that frequently comes into play.

14. MONEY MACHINE FUELS DYSFUNCTIONAL CONTENTION: The lawyers easy money machine is called divorce and custody. For it to pay maximally it necessitates a keep 'em fighting 'modus operandi". The "contentious divorce" is "Champagne and caviar" for the divorce bar. It is about endless, gorgeous, billable hours, consultants, GALs, Kids First.  BUCKS. The divorce bar blames clients for contentiousness, but it is their "coaching" of clients that cranks them up, eggs them on for continued fighting. I know we can win!  Are you going to let him/her get away with that? It is about billable hours. The contentious divorce ends when the client runs out of money and the lawyer loses interest.

15. SELF-POLICING, A NON-STARTER: Self-policing by the family court legal profession (a formal complaint from another lawyer) is rare among practitioners in the same courts, who are members of the local bar. Don't mess with your buddies. It is less rare when an outsider enters the game and horns in on turf. Lawyers may whisper and mutter under their breath about judges and bad judgements, but don't issue complaints, unless their interests suffer. They know the legal facts; they also know the "facts of life".  

16. EX OFICIO POWER: Want to win your case? Go to the "Godfather". He's expensive, but he has fingers in every pie with power and influence to spare. Certain lawyers play a huge political role in the family court system and get amazing results.

17. THE SWAMP INHABITED BY CONSULTANTS: Court psychological consultants are a piece of work! Often selected because they "deliver" for certain lawyers and judges on whose referrals they depend. Why do courts use the same old, same old and not contract with recognized quality consultants from, say, Maine Medical Center, the Mass General, etc?  It seems to be about control and "predictable" results. Why do the same consultants seem to get recommended again and again by the same lawyers and judges? Too bad, no statistics!   

18. GOLDFISH BOWL THERAPY: Court mandated counseling in which the details are shared with opposing counsel (not confidential) is professionally indefensible. It can never be therapy. When it occurs it is shameful judicial act, public mind rape and a travesty of any accepted therapy. It should be outlawed.

19. RECONCILIATION IS RARE AS A STATED GOAL: Reconciliation between allegedly abusive parents and child is very infrequently  a formal, written goal in family courts once a judgement is made; it is almost always a part of the plan in human services, Children's Protective cases. Why the difference in not requiring  a plan for reconciliation in every case? We'd say one word: Bucks! Keep the motions (bucks) for reconciliation coming in family courts. Don't reconcile till they run out of money.

Hi, stranger, care to gamble the custody of your child in this broken system? Who complains about this sad zero sum game that cheats parents and children? Is this war necessary? Does it do anyone any good? Have the courts, the Judicial Branch, the bar ever studied the impact of this barbarism on child development? Any simple evaluative studies, such as those done in every industry and profession? One court official opined that they are "tacky". Those who advocate change  are called, "Whiners. Bad sports! Radicals who want to destroy our fine legal system!"  

Every one of the items on our list has cases to back it. The structural problems we note do not come out of thin air. They cry for a legislative audit or courageous investigative reporting. Just ask. We can tell you case by case "where the bodies are buried."


MeGAL is working to bring about Guardian ad litem and Family Court reform. There are additional points to "The Dice Are Loaded" which may be found [HERE]. We encourage you to become involved and can do so by contacting us at MeGALalert@gmail.com as well as your state representative. 

The following have been added to the growing list (updated 02/23/2016):

20.  INADEQUATE SERVING INSTRUCTIONS/EXPLANATIONS FOR 'PRO SE' "USERS": Although the 'pro se' litigants are a 75% majority (17,000 people in 2015, they are not accommodated by the courts even on small matters like serving court papers. No one explains that a registered letter receipt requested, doesn't have to be signed - even when served to a court official. No one explains that a sheriff-served paper, although expensive, is the only sure way. There is also a lack of clarity about court fees. As of this writing, it is not clear whether expensive court fees have to be re-paid for a new attempt after failed service. There is also the matter of "grumpy" clerical officials, who are grudging in providing information to majority 'pro se' users, while more obliging to "frequent flyer" local lawyers, who know the ropes. It is a small but significant, symbolic example of a failure by the court system at even its lowest level to recognize the "new normal" of majority 'pro se' litigants.