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.

Part 3 - THE DICE ARE LOADED: A CONSUMER'S PERSPECTIVE

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.

For a list of issues as we see them with our Family Courts read [PART1] and [PART2]. Family Courts and the vendors (GALs and court experts) who work within do so in a broken system. To change this system we encourage you to contact your representatives and let them know of the troubles you have experienced. Let them know that there are over 17,000 others.

Part 1 - THE DICE ARE LOADED: A CONSUMER'S PERSPECTIVE

As members of the "divorce bar" are fond of saying when divorce and custody judgements are questioned by a "consumer", "Somebody has to win, and somebody has to lose." To which we would ask: "…but what if the dice are loaded?" Winning and losing a parent are very sad decisions to give a child, who needs both parents. Should divorce be played by the divorce bar as a "zero sum" courtroom gamble over children? In the "win or lose" dynamic are children well served, or is it a "championship game" for the divorce bar? Who gets the gold medal? Certainly not the children. Isn't the adversarial model inappropriate in a divorce where children are involved? What is "justice" for such children? What is justice for the parent who loses? Why does the bar never push for reform of this barbaric "win or lose" mode?

Herewith are a few topic headings viewed from a consumer's perspective that are about "broken family court structures" that load the dice against many who use family courts and in favor of those with expertise in "gaming" these courts. Individual divorce and custody cases get ground up for hamburger meat in this game. Our topic list aims to describe the broken family court "grinder". These structural topics (when filled in with cases) ought to explain the need for a legislative audit of family courts or "investigative reporting" by a courageous newspaper. Or both.

1. OUT OF DATE MANAGEMENT: There is no higher level management of the judges, GALs and lawyers who populate family courts, and there no systemic data for a manager to work with for "big picture" oversight of the family court  system. This information lack hides patterns of hard, recurrent data about courts/judges/lawyer/GALs who may present consistent problems to the public. It hides judge/lawyer relationships, and judge/lawyer patterns of outcomes that might suggest coziness, it hides averages for court time for divorce trials (billable hours) and masks  the practices of lawyers who might be considered "frequent flyers" or "contention profiteers".   

2. BROKEN: "Corrective Mechanisms" that don't correct. Protocols for complaints about GALs, lawyer, Judges and appeals challenge the 'pro se' complainant in the extreme.  These take hours to put together, they then go through screening procedures that "screen out" complaints said to be unworthy. But even after screening out "bad" complaints, few actual complaints yield "corrective action" of any kind. How to interpret this? A sign of perfection, or protection? Look at the micro (or non-existent)  numbers of corrective actions in each of these categories. There is also the awkward question: how does one correct a bad Supreme Court decision - or do they never make a bad decision? Guess not.  Get over it!

3. NO REAL MANAGERIAL OVERSIGHT: Oversight, such as it may be, relies entirely on non-lawyer "consumers'" cobbling together a quasi legal complaint and defending it; not professional surveillance of professionals by management. The only way those higher in the Judicial Branch know there is a problem is as a result of a successful complaint from the public. Almost no complaints filter through the various tight screens. Higher ups remain in blissful ignorance of malfunctioning. There is no modern management of defective functioning in this system. Bad practices can fly under the radar and continue to malpractice.   

4. OPACITY OF REGULATORY DEVELOPMENT: Regulations for the family court judicial system are developed "in the closet" of the Judicial Center behind closed doors with no public observation. Unlike legislative deliberative sessions and hearings,there is no transparency of the deliberative process- or of who deliberates (same old, same old committee members?). Why this "opacity"? Secrecy in deliberations will tend to promote 'status quo' conservatism, legal protectionism, rampant legal self-interest and nothing really changes. This is not in the public interest and hard to justify. Regulation development is treated like "top secret" activities.

5. DEFECTIVE VETTING OF JUDGES FOR APPOINTMENT/RE-APPOINTMENT: Every step in this process is opaque and leaves out the public, until near the ceremonial end. It is largely a popularity contest for political elements of the bar. Is a judge liked by small segments of the bar, who work at this task? Why is there no standard, formal testing and grading of a judge's knowledge of the law, knowledge of new laws, new regulations? The legislative reviews are an act of faith, rubber-stamping the bar committee's, (as is the Governor's). They simply sign-off on the bar's "judge- friendly vetting" decisions. The public would be better served if judges were obliged to take a certifying/re-certifying exam that tested their knowledge of the law and regulation, with results made public.  Otherwise, how do we know, how does the legislature know, how does the governor know? In plain English, they don't.

6. ABSENT PROFESSIONAL DISTANCE: The judiciary promotes friendly bench/bar relations,  But how friendly? Cozy lawyer/judge relationships are suggested by certain lawyers always scoring a win with certain judges in family courts. There are reports we hear of local bar members ganging up on a judge who dares to disfavor the more political members. Re-appointment is not in their "interest". There is a need for open statistical data That would show judges, lawyers, outcomes. A legislative audit would sample a few courts where anecdotal data suggest high frequency Judge/lawyer results.

7. INTIMIDATION: Intimidation of lawyers who fight too hard for their clients. A common client observation: "My lawyer is a lion in the office, but acts like a mouse in front of the Judge." Why? Lawyers who advocate too strongly for a client learn to beware of 'sua sponte' complaints of unprofessional behavior or claims of "contempt" (shown by brusqueness?). Maybe you don't fit in family law?  What about a career in bill collecting? What is contempt of court and how does it play-out when a judge is contemptible by any normal standards?   

8. ABUSE OF ABUSE ALLEGATIONS: The child abuse conundrum Lawyers' claims of abuse vs Children's Protective. Claims of child/spousal/other abuse are extremely common in divorce and custody cases, and such claims are used for "winning" decisions and money and generating billable hours. Referrals of abuse claims to Children's Protective are not favored.  They stop billable hours for the divorce bar. Follow the money. The billable hours stop when a referral is made to CP. The preference is to use "court consultants", who are "frequent flyers" with certain judges and certain lawyers.

9. ABSENT ACCESS TO JUSTICE: The 75% access to Justice failure is the core situation that is transforming Family Courts into a broken, unpredictable system in which self-representing people struggle for justice. This is approximately 17,062 people for 2015, using Judicial Branch numbers to calculate 75% of the total. It is the population of 'pro se' users, a "time bomb" that will in the end destroy family courts - with or without reform. 'Pro se' numerical dominance is "the new normal" for family courts, which are struggling to maintain "an old normal" in which lawyers were the interface for the pubic with justice. No more. Judges are at a loss about managing the 75% majority of self-representing litigants. Self-representing parties are just plain lost. It cries for answers. The absence of the old structure leads judges to perform in more high-handed, totalitarian, arbitrary ways and leads to huge problems of badly crafted outcomes. It cries for in-depth study.

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. 

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.

Please, Give Us, "Access to Justice"!

This week the Maine Bar is hosting their annual meeting. This year the Bar is promoting the idea of Access To Justice (A2J). Their idea of what Access To Justice is different than what we would consider a consumers Access To Justice. Presented here is our letter to the Maine Bar regarding this very sensitive issue of Justice and how consumers are able to access this service:

Stephen D Nelson, Esq.

President

Maine Bar Association

Dear Mr Nelson:

Many members of the public are pleased to learn that the Maine Bar Association has chosen as this year's convention theme, "Access to Justice".  We hope that this uplifting theme inspires your membership to address the growing "Access To Justice" problem of self-representation in Maine courts.  In family courts, the statistic that 75% are 'pro se' means that the 'pro se' litigants outnumber lawyers by a wide margin, and family courts ought to be renamed, 'pro se' courts. The "new normal" in these courts is 'pro se'. Though 'pro se' litigants are the majority in family courts, one would never know it from the power dynamics as attempts to preserve the old ways prevail. And 'pro se' litigants receive 2nd class services (or worse).

I present the following extracts from actual cases for illustrative purposes. They are intended as examples that illustrate the human aspect of "Access To Justice". With a 75% statistic, there are literally hundreds of additional "access to justice" human problems. It needs action from the bar, unless the bar is to limit its legal practice in family courts to those with access to "money". No money, no service - except for limited 'pro bono' charity, which, though worthwhile, doesn't seem to reduce the 75% numbers.

Herewith samples that put a human dimension on the 'pro se'  problems:

1.)  Access to Justice: for many 'pro se' this means inaccessibility of access to 'pro bono"? A case example: one of many.

On several occasions, I sought out legal services that were pro bono, or 'a la carte,' or, in one instance, an hour consult to prepare for a 'pro se' two hour trial in which both myself and my former husband were to be 'pro se', I was told by attorney after attorney that neither pro bono, nor  "a la carte" was an option (not even a FREE one hour consultation).

One highly regarded law office was so bold as to point blank state, Attorney ******* will not meet with you because it would not be "cost effective for her". Cost effective?

2.)  Does "Access To Justice" have to mean bankrupting  clients?

"Once a post-judgement plaintiff and / or defendant has spent every last bit of savings - including all retirement funds- and has liquidated all material assets (as in my case: a home that was once the primary home for our two minor children, all home furnishings, etc....), there will no longer be "access to justice"?

3.)  Does Judicial Role Distortion in 'pro se' cases mean "access to justice"?  Or does judicial improvisation signal the collapse of courts as we have known them?

"In our last trial - as both parties were  'pro se' - the judge did all the questioning. I was unable to cross examine. The defendant told untruths and because the judge did not know the truth from Adam, he had no idea when to challenge a response from the defendant. If I had an attorney, I would have been allowed to challenge the untruths.

A few times I objected and attempted to shed light on what was spoken as truths as being untrue BUT I was not given the benefit to explain the "objections" without presenting as "difficult". Being 'pro se' and without being able to counter defendants claims - there was no access to justice on that day in court. In our first trial - with an attorney present on both sides - "no hear-say was permitted in court."

4.)  Attorney intimidation limits access to justice even for clients who can pay for a lawyer.

'Sua sponte' disciplinary complaints to the Overseers, if an attorney provides too robust a defense, is another factor limiting a client's "Access To Justice". Even those family court defendants who can afford a lawyer may find that their lawyer is intimidated by threats of sanction if a defense is perceived as too robust. In a family court system that is 75% 'pro se', an over-scrupulous concern about how things get done, seems misplaced.  What indeed are the legal standards for a 'pro se' court? Are there any? Selective scrupulosity, using "old normal", standard tools in a "new normal" situation seriously limits "Access To Justice" for clients who can pay, and, looks like a variant of the approach used to control lawyers in Boston in the heyday of the Catholic Church scandals.

Our proposal to the Maine Bar:

We would propose that the Maine state bar seek a legislative mandate to take immediate legal representation responsibility for all 'pro se' litigants in all civil courts, such as the 75% 'pro se' litigants, and that the bar make an equal, fair division of all 'pro se' litigants, to be allocated amongst all licensed bar members, as a condition of receiving a license to practice law in Maine. It would solve the 'pro se'  problem pronto (and the human hardship therein), while research goes on. Alternatively, the bar might decide to turn family courts entirely over to the 75% 'pro se', and establish a separate court for the wealthy, full paying parties.  It is rapidly reaching that point of inflection anyway.

Yours for seeking solutions to 'pro se' "outside of the box"!

MeGAL has been working for Guardian ad litem and court reform. Access to Justice (A2J) is another part of the problem with our Courts where over 50% of the population who consume judicial services are doing so on their own. The Maine Bar Association is having their annual meeting and the theme for this year is Access to Justice. Or is it? If you have had issues with the courts, as a Pro se litigant, represented by a lawyer who fears the courts - we ask that you contact us with your story. We can be reached at MeGALalert@gmail.com or find us on Facebook. 

Further resources:

A2J Canada - Canadian Bar

Canadian Forum on Civil Justice

2013-08-13 Access to justice in Canada ‘abysmal’: CBA Report

2014-02-05 Access to Justice: Help coming for people headed to Canada’s civil and family courts

National Center for Access to Justice ( NCAJ )

Department of Justice - Access To Justice