16 July 2014
There has been much ado over the jailing of a retired 73
year-old man by Massachusetts District Court Judge Robert S. Murphy, Jr. over
the failure to pay $508.27 as reported in the Boston Globe on July 2,
2014. As a cursory review of the on-line
comments about the story illustrate, not much provokes more debate than how
debt collection should work and what exemptions society should allow. Those comments also show a widespread ignorance
of the basics of the debt collection process in Massachusetts. Before attempting to defend Judge Murphy’s
actions, a few basic pointers are in order.
First, yes there are no debtor’s prisons. That means if you do not have the means to
pay, you do not go to jail for failure to pay, or to force you to earn to pay
through forced hard labor, for your debt.
But if you do have the means, a court can order you to pay. And you do go to jail (as Mr. Okaroafor arguably
did) for failure to obey an order. So,
yes, people can and do go to jail for not paying a debt (that our society
believes you have the means to pay, as determined by a judge applying the
applicable exemption laws).
Second, the process Mr. Okaroafor was in was not small
claims court, although that apparently was the court that rendered the initial judgment,
it was really the supplemental process session at work here. This is the session where straight up this-guy-now must-pay-me type collections
occur. Typically, a creditor gets a
judgment and then files a separate action in the supplemental process session
if it choose that path for collections, and many do. Sometimes, for whatever reason, the author
has observed a small claims judgment obtained in the small claims session just
automatically roll into supplementary process.
What this means is that in the supplementary process session, the legal
fact that you owe the money has been established, and that question is off the
table so to speak.
A side note is in order.
In general, pro se litigants often argue something off point at a
hearing due to their lack of knowledge and understanding as to what the
particular hearing they are appearing at is to decide. Doing this indicates a lack of knowledge of
procedure and can hurt the pro se litigant’s credibility to argue legal
arguments. In the supplementary process
session, this translates into a pro se trying to argue the merits of the case,
when, as Judge Murphy correctly stated to Mr. Okoroafor when he did this very
thing, “that ship has sailed.” It is
very common occurrence in the supplementary process session to the frustration
of the clerk or judge presiding. To
avoid this waste of time, for example, one of the clerks in the supplementary
process session in Springfield District Court regularly announces before the
session starts to all in the courtroom that it is not the place or time to
argue the merits of your case. This
announcement is analogous to the no parking sign “Don’t even think of parking
here” that we all see in places that are tempting to illegally park in. The point is, day after day when pro se
litigants raise this, it becomes difficult for the human beings involved, even
if they are supposed to be professional lawyers, clerks, or judges, not to
become frustrated.
Third, civil contempt is the act of knowingly violating a
clear and direct court order that you had the ability to follow. This is the end of the road for debtors. And what all people need acknowledge is that
society needs that force to keep it civilized.
Somehow, we all instinctively know (and must rationally acknowledge)
that there has to be an end of the line, and in debt collection, it is to be jailed
by civil contempt for a debt someone has the ability to pay with non-exempt
income.
Now with these basics in mind, the author will turn to
defending Judge Murphy’s order and then make a few equitable observations based
only on a review of the on-line Boston Globe July 2, 2014, article and the
audio recording of the hearing at issue.
First, it appears that there was an order already in place before Judge
Murphy found Mr. Okaroafor in contempt.
The prior order required Mr. Okaroafor to make payment before the hearing
and he did not comply. And Mr. Okaroafar
had been to multiple hearings involving orders to pay that he did not comply
with before. It is true that
Massachusetts pension income is exempt from collection and that was the only
income the debtor stated he had personally at the hearing.
However, all of this about Judge Murphy not
following exemption laws, and more specifically, being ignorant that
Massachusetts pension income is exempt, appears not to be as deserved as
reported because there is more to consider here. Judge Murphy did not act alone. If the contempt finding was wrong, the
responsibility for it is shared with the judge that issued the prior order to
pay that Judge Murphy was enforcing, as it should be safe to assume that the
issue of whether Mr. Okaroafar was required and had the ability to pay was
decided in the affirmative at a prior time.
We are assuming here that at the prior hearings the other judge(s) did
not have adequate basis to make the order, such as learning that Mr. Okaroafor
had non-exempt assets or income to satisfy this $508.27 debt. Yes, Judge Murphy made a mistake, but he did
correctly believe he had an obligation to enforce the prior judge’s order.
Second, debtors in supplementary process are required to
complete a form listing their assets and income and expenses. Did Mr. Okaroafar complete this form? Or did he refuse? If there was a form, what appeared on it? Is there more information that was before
Judge Murphy when he made his decision?
Third, at the hearing, Mr. Okaroafor stated as one of his
expenses his wife’s medical bills.
Although it is laudable to pay your spouse’s medical bills, it can be argued
that such an expense is not necessary since it is essentially a gift to an
adult third party, which is not to take priority over paying a judgment
creditor. Moreover, he stated his wife
had insurance and social security income, which
supports the idea that money from Mr. Okaroafor to pay the bills was not
needed even if it could be considered to take priority over paying a judgment
creditor. All of this could have been in
Judge Murphy’s mind that day. So, the
error of his decision was more about not realizing Mr. Okaroafor’s income was
exempt, and less about his actual ability to pay.
Fourth, Mr. Okaroafor was not a help to himself. He did what many pro se debtors do at
supplementary process hearings, try and argue the merits of the case that have
already been decided. In addition, the author has a hard time believing that
Mr. Okaroafor was not informed prior to the hearing, if not many times at the
multiple collection hearings he was afforded over the 18 months since the
judgment issued, that arguing the merits of the case was off-point at these
types of hearings. There are two points
here, one that by doing this he most likely lost his credibility to make a
legal argument, and more importantly, if it was believed he was repeatedly told
“that ship had sailed” then by raising it repeatedly he was exhibiting a
refusal to follow and acknowledge rules and procedure. Not a wise choice when being subject to a
contempt hearing and facing possible incarceration for not following orders.
In addition, it was Mr. Okaroafor who was supposed to
advocate for himself and had the most responsibility to argue that his income
was exempt, but he did not. After 18 months
of collection proceedings, he had ample notice that he would have to defend
himself. The article stated that judges
should “know and apply the law correctly” when dealing with unrepresented
parties. That may be true, but it is
equally true that judges are also not to be advocates for one side, but instead
impartial judges. Keep in mind that
there was another pro se litigant on the other side. Who should he favor? The answer is neither party. This is not to say that a judge should ignore
the law when it is before him, but the point is that just how far a judge is
supposed to advocate for one party and not the other is debatable and there is
a point that a judge can go to far in advocating for one side. The judge’s proper role should be considered
in any debate on the subject.
Another interesting fact on this point that did not
appear in the article is that Mr. Okaroafor can be heard stating that he wanted
to make payment arrangements. But this
was in stark contrast to his prior statements that he could not afford to pay
and after the order was issued to put him in custody. This indicates he may have thought he could
have avoided the contempt at the last minute by offering to pay, but wanted to
push it until the very end.
Lastly, Judge Murphy was not mistaken in finding that Mr.
Okaroafar did not comply with the prior order; he did not make the payment by
the hearing date. According to the
article, there were many orders issued requiring him to pay and he repeatedly did
not comply and raised the wrong argument when questioned. Thus, Mr. Okaroafar had many orders to pay
issued against him that he did not follow.
Yes, Judge Murphy apparently considered exempt income in finding Mr.
Okaroafar could have complied with the payment order, and based only on the
information presented at the hearing at issue, that was legally incorrect. But he was correct that the payment was not
made.
Some final, non-legal common sense points are in
order. The day Mr. Okaroafar was jailed
he was entering a hearing where the question of whether he was in contempt of
court was to be decided. It is clear
from the audio recording that Mr. Okaroafar was unfamiliar with the legal
process in general and was not adequately prepared. (For example, he thought at one point that
the Massachusetts District Attorney’s Office could represent him). Simply put, he should not have been
there. He never should have been
playing with the fire of a civil contempt hearing. The point is that you do not let your friend
or loved one enter a civil contempt hearing after they have not paid and risk ending
up getting jailed over a $508.27 debt.
Why wasn't this avoided? Where were the friends and family?
Where were they at the hearing?
Why was the debt not paid for him?
Why, at the least, was he not armed with the correct legal argument by
someone with that knowledge?
It is easy to rest the responsibility on Judge Murphy (and
the rest of the government) and his legal mistake makes a good headline for the
Boston Globe, but Mr. Okaroafar, those close to him, and the entire private
sector have some responsibility here. All
of us, especially those wanting to point blame on some government official,
should take some of the responsibility for the unfortunate result of what happened to Mr. Okaroafar on 11 June 2014.
