Monday, May 09, 2005
SOME SUGGESTIONS FOR FAMILY COURT REFORM
We have never suggested that every person who is incarcerated for allegedly violating Family Court Orders is a victim. However, there is no question that every week there are a number of people who are victimized by the system and who should not be incarcerated. And, we suspect that a visit to Family Court on one of the "cattle call" days will yield numerous examples of the flaws in the system as well as victims of the system.
Under our system of Jurisprudence, there are two sides of the Court system. They are the so-called "Courts of Law" and the so-called "Courts of Equity." In England, which provided us with the model for our judicial system, equity jurisdiction is vested, principally, in the High Court of Chancery. This Court is distinct from Courts of Law.
American Courts of Equity are, in some instances, distinct from Courts of Law. In other instances, the same tribunals exercise the jurisdiction both of Courts of Law and Courts of Equity, although their forms of proceeding are different in their two capacities. For example, both the Supreme Court of the United States and the other Federal Courts are vested with general equity powers and act either as Courts of Law or Equity, according to the form of the process and the subject being adjudicated. In some states, South Carolina for example, the Equity Court is a distinct tribunal, having its appropriate judge, or Master-in-Equity.
The jurisdiction of a Court of Equity differs from that of a Court of Law in two essential respects. First, is that the remedies for wrongs or for the enforcement of rights are distinct. Second, only Law Courts utilize juries.
This may all seem to be a little confusing or convoluted, but the basic distinction is that the remedy provided by a Court of Law is an award of monetary damages, whereas, Courts of Equity grant "equitable relief;" that is, Courts of Equity tell a party to either perform, or refrain from performing, some act. For example, a party might seek a Restraining Order in a Court of Equity prohibiting another party from coming onto his property. On the other hand, parties seeking monetary damages--for personal injuries for example--proceed in a Court of Law.
By definition, Family Courts can only grant equitable relief. That means that, because there are no juries, the trial judge has sole discretion to determine the facts without the protections afforded by a jury. More importantly, that means that a person who is indebted to another can be jailed in Family Court for failure to pay that debt. Although this practice has been severely criticized as being in violation of the Constitutional prohibition against imprisonment for debt, Courts have avoided this pitfall by inventing the judicial fiction of Civil Contempt. They simply say that the person has been jailed for willful violation of a valid Court Order rather than for the debt itself; that person can secure his or her release upon coming into compliance with the Court Order. It is said that he or she "has the keys to his (or her) own jail."
The problem is that, because the trial judge has sole discretion to decide the factual issue of willfulness, people can find themselves in jail because they were unlucky enough to trust their ex-spouses to tell the Court that the oldest child had become emancipated, or they were hurt on the job and their Worker's Compensation lawyer did not seek a temporary reduction, or they were fifteenth in line on the day that numbers 1-14 in line were jerks and liars. And sometimes people do not pay court-ordered support because they cannot pay. The reality is that an incarceration can often have nothing to do with a willful act.
Once a person is incarcerated, he or she may not be able to easily raise the money necessary to secure release. And, even if they do have the money, they may be incarcerated before they are given the opportunity to purge themselves of Contempt because they are not given access either to money machines or telephones to call friends. Nor does the Clerk of Court accept credit cards.
We have never suggested that every person who is incarcerated for allegedly violating Family Court Orders is a victim. However, there is no question that every week there are a number of people who are victimized by the system and who should not be incarcerated. And, we suspect that a visit to Family Court on one of the "cattle call" days will yield numerous examples of the flaws in the system as well as victims of the system.
Under our system of Jurisprudence, there are two sides of the Court system. They are the so-called "Courts of Law" and the so-called "Courts of Equity." In England, which provided us with the model for our judicial system, equity jurisdiction is vested, principally, in the High Court of Chancery. This Court is distinct from Courts of Law.
American Courts of Equity are, in some instances, distinct from Courts of Law. In other instances, the same tribunals exercise the jurisdiction both of Courts of Law and Courts of Equity, although their forms of proceeding are different in their two capacities. For example, both the Supreme Court of the United States and the other Federal Courts are vested with general equity powers and act either as Courts of Law or Equity, according to the form of the process and the subject being adjudicated. In some states, South Carolina for example, the Equity Court is a distinct tribunal, having its appropriate judge, or Master-in-Equity.
The jurisdiction of a Court of Equity differs from that of a Court of Law in two essential respects. First, is that the remedies for wrongs or for the enforcement of rights are distinct. Second, only Law Courts utilize juries.
This may all seem to be a little confusing or convoluted, but the basic distinction is that the remedy provided by a Court of Law is an award of monetary damages, whereas, Courts of Equity grant "equitable relief;" that is, Courts of Equity tell a party to either perform, or refrain from performing, some act. For example, a party might seek a Restraining Order in a Court of Equity prohibiting another party from coming onto his property. On the other hand, parties seeking monetary damages--for personal injuries for example--proceed in a Court of Law.
By definition, Family Courts can only grant equitable relief. That means that, because there are no juries, the trial judge has sole discretion to determine the facts without the protections afforded by a jury. More importantly, that means that a person who is indebted to another can be jailed in Family Court for failure to pay that debt. Although this practice has been severely criticized as being in violation of the Constitutional prohibition against imprisonment for debt, Courts have avoided this pitfall by inventing the judicial fiction of Civil Contempt. They simply say that the person has been jailed for willful violation of a valid Court Order rather than for the debt itself; that person can secure his or her release upon coming into compliance with the Court Order. It is said that he or she "has the keys to his (or her) own jail."
The problem is that, because the trial judge has sole discretion to decide the factual issue of willfulness, people can find themselves in jail because they were unlucky enough to trust their ex-spouses to tell the Court that the oldest child had become emancipated, or they were hurt on the job and their Worker's Compensation lawyer did not seek a temporary reduction, or they were fifteenth in line on the day that numbers 1-14 in line were jerks and liars. And sometimes people do not pay court-ordered support because they cannot pay. The reality is that an incarceration can often have nothing to do with a willful act.
Once a person is incarcerated, he or she may not be able to easily raise the money necessary to secure release. And, even if they do have the money, they may be incarcerated before they are given the opportunity to purge themselves of Contempt because they are not given access either to money machines or telephones to call friends. Nor does the Clerk of Court accept credit cards.
So, once a person is deemed to be in Contempt, that person is going to be handcuffed, taken to jail, fingerprinted, photographed, and incarcerated for at least the better part of the day, unless, he--it is almost always "he"--just happens to have the exact amount--preferably in small bills--of money to pay the arrearage along with whatever amount of fine or surcharge the trial judge may impose. And there are neither guidelines on what the judge can impose and the amount of the "fine" can be up to $1500, even if the "arrearage" is minimal.
In South Carolina, the bookkeeping system itself is a mess. And Bookkeeping Rules--those initiated by the Court--are based upon a review of the file by the Clerk rather than upon an Affidavit filed by either of the parties. This means that if, for whatever reason, the Clerk and the Trial Judge make a mistake, there is no redress for the victimized party.
To recap, people who are not criminals sometimes find themselves in jail because:
- The Family Court Computer system is outdated;
- The Clerk who determines whether an arrearage exists made a mistake in interpreting the relevant Order;
- There is no one to assist the Trial Judge in making factual determinations;
- Once the determination of Contempt is made, there is no way to avoid incarceration.
There may be no practical solution to avoid wrongfully jailing some people who are not guilty of contempt. However, it is our belief that many of the problems discussed hereinabove could be avoided in the future if:
- A party who acted on the advice of counsel could not be deemed to be in willful Contempt of Court;
- Parties who are held in Contempt were given a meaningful opportunity to purge themselves of Contempt before being processed (this means having access to bank machines);
- Parties were allowed to either post bond to avoid incarceration or to avoid incarceration pending an appeal or rehearing on the matter;
- All Rules had to be supported by an Affidavit from the aggrieved party rather than from the Clerk of Court;
- The prevailing party would be awarded attorney's fees;
- The prohibition against ex parte communications between an attorney and a judge be extended to include communications delivered by the attorney's employees to the judge through the Clerk of Court; and,
- Judges who repeatedly jailed people without a proper showing of Contempt were required to attend appropriate Family Court Seminars and to pass a proficiency test.
Labels: Family Court Reform
