Updated: Apr 2, 2021
The Massachusetts Supreme Judicial Court issued a decision yesterday in the matter of Department of Revenue Child Support Enforcement vs. Joshua Grullon. Veterans Legal Services represents Mr. Grullon.
The Background of the Case
After leaving the military, Mr. Grullon, a partially-disabled post-9/11 veteran, was struggling to find work while sleeping on his parents' couch because he did not have anywhere else to go. He fell behind on his child support and was served with a Complaint for Contempt. Mr. Grullon attempted to represent himself in Court at the Contempt hearing, but he was up against a lawyer from the Department of Revenue's Child Support Enforcement Division who requested the Court order him to pay $500 or go to jail. Even though the other side had the help of a government lawyer, since the matter was technically a civil case, Mr. Grullon was not entitled to assistance from an attorney the way he would have been in a criminal case. When he could not come up with $500, he spent ten days in jail, effectively a modern day debtors' prison. Both state and federal law prohibit this practice. The governing U.S. Supreme Court case, Turner v. Rogers, requires that Courts provide certain procedural safeguards to prevent wrongful incarceration in these cases, including make express findings that a defendant has the ability to pay the order, none of which occurred in Mr. Grullon's case. VLS helped Mr. Grullon with appealing the Court's decision on the grounds that the Court had violated Mr. Grullon's constitutional rights and that he was entitled to representation if the Court was considering sending him to jail. VLS Co-Director & Chief Counsel Anna Richardson argued the case before the Supreme Judicial Court on January 9, 2020, and VLS Senior Staff Attorney Eve Elliott, and Catherine Fisher and Caroline Trusty of Skadden were on the briefs. The Massachusetts Bar Association, the Boston Bar Association, BC Law School Professor Mark Spiegel, Jewish War Veterans of America, the Committee for Public Counsel Services, Massachusetts Law Reform Institute, and the American Civil Liberties Union of Massachusetts all filed amici in support of VLS's position.
The Court's Decision
The Supreme Judicial Court agreed with VLS that Mr. Grullon was deprived of his constitutional rights when the Probate and Family Court wrongfully incarcerated him without regard to his ability to pay and the Department of Revenue failed to fulfill its obligations to him, stating "[t]he failure of the department and the Probate Court Judge to provide the Turner procedural safeguards, or their equivalent, or to follow Federal regulations, State law, or the department's own policies resulted in the defendant wrongfully being held in civil contempt and spending ten days incarcerated." The Court also strongly reaffirmed the need to carefully set appropriate orders that reflect a defendant's ability to pay, particularly when incarceration is at stake, and noted that the contempt process is frequently not effective in securing support for children. "Mr. Grullon served 10 days in jail for being poor. Veterans Legal Services celebrates the Supreme Judicial Court’s acknowledgment that was wrong and the SJC's affirmation of his constitutionally protected rights — an important step away from the criminalization of poverty. The decision critically underscores and clarifies the obligations of the Court and the Department of Revenue to ensure appropriate, fair child support orders that reflect the actual financial circumstances of individual families, that prevent the wrongful incarceration of parents who lack financial resources, and that avoid unintended consequences, such as negatively impacting employment prospects of child support payors and removing them from their children's lives," said VLS's Anna Richardson. In his concurrence, Chief Justice Ralph Gants also highlighted that while the Court did not reach the question of a right to counsel, that conclusion was based on the assumption that the Court and the Department of Revenue will faithfully provide sufficient protections to future defendants, and that if it emerges that Mr. Grullon's case "is more than an isolated exception, a right to counsel would be necessary to ensure that these procedural safeguards are faithfully applied." VLS will continue its work to assist veterans like Mr. Grullon to ensure they are afforded the constitutional rights they have fought so hard to defend during their service, regardless of their financial circumstances.