This is an excerpt from a brief filed in the Supreme Judicial Court of Massachusetts.
The names of the parties and any other information which might lead
to their identification have been changed.
WARNING: This brief was not successful. It was, I assume, either too critical of the Appeals Court three-judge panel or not read or read by a clerk just out of law school. The law is undisputable. I would welcome critiques by other attorneys. Email.
I was not the attorney who wrote the original appellate brief filed in the Appeals Court.
Nor did I argue before that panel.
NOTE: You must find the equivalent cases in your own state.
1. Where there was no clear and unequivocal order, there could be no finding of contempt.
To find civil contempt, there must be a clear and undoubted disobedience of an equally clear and unequivocal command. Warren Gardens Housing Co-op. v. Clark, 420 Mass. 699, 700 (1995). The obligation of the party must be set out in a sufficiently specific and unambiguous manner as to constitute a clear command regarding what is required to comply. Hobson v. Perry, 13 Mass.App.Ct. 944 (1982).
Even assuming arguendo that the panel was correct that the payment orders were clear as to who was to pay and to whom payment was to be made, there was no order stating the time by which payment was to be made. So contempt could not be found on the same day an alleged order issued. "Where a court's order lacks a critical term or contains an error, a finding of civil contempt is inappropriate." Demoulas v. Demoulas Super Mkts., 424 Mass. 501, 566 (1977). [Appellant's Brief at 19-23].
Given that John Doe, in violation of Dist./Mun.Cts.R.Civ.P. Rule 6(c), handed each of the motions and oppositions to Jane Smith as the case was called for hearing, she did not even receive proper notice of the several motions to show cause why she should not be found in contempt . . . and the panel must have overlooked these facts, for it chose only to include ADD-299-303 in its opinion, and not the Certificates of Service. [See n. 15 supra.]
Thus Jane Smith had no opportunity to meaningfully oppose those motions. Due process was being trampled on in that session: Mary Jones was not getting the discovery to which she had long since been entitled and Jane Smith herself was being punished for zealously advocating on her client's behalf. And Jane Smith told the court so [ADD-205].
It was improper for the court to punish Mary Jones for its anger at Jane Smith and to retaliate against Jane Smith for seeking justice for Mary Jones.
Neither woman was at any time granted an evidentiary hearing with or without indices of due process on the issue of contempt. Due process with an evidentiary trial is required for contempt to attach. Milano v. Hingham Sportswear Co., Inc., 366 Mass. 376, 378-79 (1974).
In sum, without a clear and unequivocal command, there can be no "clear and undoubted disobedience." Cf. Judge Rotenberg Educ. Center, Inc. v. Comm'r of Dept. of Mental Retardation (No.1), 424 Mass. 430, 448 (1997), the case which the panel cited. Neither can caprice be substituted for law. Clabburn v. Phillips, 245 Mass. 47, 52 (1923). Here caprice invited danger, and that danger came to fruition, in that the judge promised a hearing but then did not allow one to take place.
1a. Where the court's order on Paper 157 failed to state a time within which payment had to be made, a finding of civil contempt at the same hearing the order issued was clear error.
The endorsement on Paper 157 [ADD-261] faild to state an amount to be paid, failed to state the time within which the money had to be paid, failed to state the entity to whom money had to be paid, and failed to state who was to pay (Jane Smith or Mary Jones) [Appellant's brief at 5-7]. The only amount of money stated in that endorsement is the per diem rate for the in terrorem fine [ADD-300]*.
The court itself was confused: Paper 157 itself states that $261.25 was sought from Jane Smith, but the court wrote on December 13th [ADD-S.A. 6 and said on January 17 [JRA-76] that only Mary Jones was in contempt of the alleged order to pay $261.25.
Thus, it was out of the endorsement on Paper 157, which lacked all the critical terms necessary for a clear and unequivocal order, that the year-long confusion arose. [OPINION at 1 n. 1].
Jane Smith, therefore, could not have been found, on any legal or factual basis, in contempt for not complying with the endorsement on #157 on any day.
1b. Where the order to pay unspecified sums and the finding of contempt appear in the same endorsement (on #165), the order is reversible.
The endorsement on Paper 165
to state a total amount to be paid and failed to state the entity to
money had to be paid [Appellant's brief at 5-7]. According to the
on #165, Jane Smith and/or Mary Jones were to pay:
(b) an amount stated on or in Paper 162 (but there is no dollar amount on or in Paper 162) [ADD-267-268],
(c) an additional $558 on Paper 165 (but #165 contains no such amount in it),
(d) the monies were to be paid not only that day but during the hearing itself, and
(e) a civil penalty of $50 per day until an unspecified sum was paid [ADD-216].
Thus, where the endorsement on Paper 165 is ambiguous, there can be no clear and undoubted disobedience, and contempt cannot be found. Judge Rotenberg, 424 Mass. at 448.