#56, Drano Series
Complaint for Contempt
Against Court and Its Judge*
Because the judge was not a party in the interlocutory appeals, the contempt had to be brought against the court as well as the judge. The Complaint has been served.
No answer is yet due.
No date for hearing has yet been received.
The Order Contempted*
The Order which the judge ignored appears here below theAffidavit.It's a first!
You will not see another case where someone tried to have a judge and her court found in
contempt for not obeying the order of a
justice in the Supreme Judicial Court of Massachusetts . . .
but then again, it's not often
a lower-court judge disobeys an order of a high court.
All depends on whether the high court deems its order
clear and unequivocal (has to be obeyed)
or
unclear and equivocal (does NOT have to be obeyed)It'll be interesting to learn what the SJC will do.
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURTSUFFOLK COUNTY, ss. C.A. NO. SJ-2001-0000
______________________________________
John Smith
Plaintiff
v.The Honorable Nancy M. Gould, in her
judicial and individual capacities,
Suffolk County Probate & Family Court
Defendants
______________________________________
COMPLAINT FOR CONTEMPT OF SUFFOLK COUNTY PROBATE & FAMILY COURT
(A Mass.R.Civ.P. Rule 11(e) affidavit by Smith's counsel
accompanies this Complaint.)PARTIES
1. Your Plaintiff, John Smith ["Smith"], was the Petitioner in John Smith v. Pocahontas Smith and Suffolk County Probate & Family Court ["P&FCt"], entered in to the docket as Civil Action Number 2001-0000 in the single justice session of the Supreme Judicial Court ["SJC"], and is the defendant husband and father in Pocahontas Smith v. John Smith, entered as Docket Number 99D-0000-DV1 in the Suffolk County Division of the Probate & Family Court.
2. Defendant Nancy M. Gould ["Judge Gould"], who at all relevant times was (1) a sitting justice in the Probate & Family Court, (2) an agent for the Commonwealth, and (2) accountable to Smith, his family, and the people of the Commonwealth.1
1Com. v. Ellis, 429 Mass. 362, 371 (1999): "Article 5 [in Part the First, the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts], . provides that officers [including judges] of government `are at all times accountable to [the people].'"3. Defendant Suffolk County Probate & Family Court, which was the Respondent in the petition brought in the single justice session of the SJC, is a division of a department of the trial court of the Commmonwealth of Massachusetts and includes Justice Nancy M. Gould, who is the agent for the Commowealth, and who was at all relevant times accountable to Smith, his family, and the people of the Commonwealth.JUDGE SPINA'S ORDER AND COMMENTS ON IT
4. The complete verbatim statement of the Memorandum and Judgment is in the Addendum, at 1, to this Complaint.
a. The court summed up the proceedings below: "The Probate and Family Court judge ordered closure, sua sponte, without consulting the parties. There was no hearing, and there were no findings to support the need for closure." b. The court wrote that there have been suggestions "that public access to civil trials is established under the common law, and cited to the case in the margin 2
2 "[I]n some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases." Gannett Co. v. DePasquale, 443 U.S. 368, 386-387 n. 15 (1979). The Supreme Court has not yet said whether the First Amendment protects public access to civil trials. However, free access to civil trials is well established under the common law. Id. Boston Herald, Inc. v. Superior Court Department of the Trial Court, 421 Mass. 502, 507 n. 7 (1995).
c. The court also wrote: "A judge presiding over civil matters should follow the procedure set forth in Globe Newspaper Co. v. Superior Courts, supra, and Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, supra at 506,3 before ordering closure. See Commonwealth v. Martin, 417 Mass, 187, 194 (1994). 3 Closure may occur if the following four requirements are met: "[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] [the judge] must consider reasonable alternatives to closing the proceeding, and [4] [the judge] must make findings adequate to support the closure." [Cites omitted.] Further, the findings must be particularized and supported by the record. Martin, supra 417 Mass. at 195, 629 N.E.2d 297. Accord Press-Enterprise II, supra 478 U.S. at 13-14, United States v. Cojab, 996 F.2d 1404, 1408 (2d Cir.1993). Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, supra at 506.
5. The court which issued the Memorandum and Judgment was the single justice session of the Supreme Judicial Court (Spina, Francis X., J.).
6. The case for which the Memorandum and Judgment entered was John Smith v. Pocahontas Smith, and Suffolk County Probate & Family Court entered into the docket as Civil Action Number 2001-0000 in the single justice session of the Supreme Judicial Court.
7. Although Judge Spina identified the cases which set forth the procedures "[a] judge presiding over civil matters should follow before ordering closure,4 Probate & Family Court Judge Nancy M. Gould ignored Judge Spina's suggestion: on Friday, 17 August 2001, Judge Gould again secretly "ordered closure, sua sponte, without consulting the parties. There was no hearing, and there were no findings to support the need for closure." See the transcript of that proceeding at Addendum at 5.5
4 Single-justice session Appeals Court Justice Dreben also had expectations of Judge Gould of which she should have been aware [Addendum at 3].8. On 20 July 2001, Smith, seeking a declaratory judgment that the sessions will no longer be closed in his divorce case in Suffolk Probate & Family Court, filed a 2:21 appeal. It entered into the docket as SJC-00000. As of this writing, no decision has been rendered.5 At the very end of the transcript, the court reporter identified Attorney Dxxxxxx as asking the court for leave to address the court. That was in error. It was Smith's counsel who sought to put the facts on the record.
THE REPETITION OF CLOSING THE SESSION
9. As in March and April, during a break in the proceeding on 17 August 2001, Smith's counsel, upon returning to the courtroom, saw the CLOSED SESSION sign. She gave it to the court officer, who gave it to the judge, who put it on the record that counsel had removed the sign. Judge Gould refused to allow Smith's counsel to address the court on the subject. The purpose of the hearing was to hear only Smith's Motion to Recuse Judge Gould from the Smith case.
CLOSING THE SESSION TO HIDE THE COURT'S UNIQUE QUESTION
10. The hearing on the Motion to Recuse never went forward because of extraordinary, unique facts. [Seeaffidavit of Smith's counsel.]
A Little Background
11. On 9 March 2001, at opposing counsel's request, a discovery master was appointed: Attorney Gerald Nissenbaum, former president of the Massachusetts chapter of the American Academy of Matrimonial Lawyers. The parties were to share the costs.
12. The wife's counsel did not fully cooperate with an agreement made with Attorney Nissenbaum and each other, and after his first two recommendations -- filed on 26 April 2001 -- were in Smith's favor, wife's counsel's cooperation became non-existent. Exacerbating matters, Judge Gould has failed to act on the master's recommendations.
13. On Thursday, 26 July 2001, Smith's counsel contacted Attorney Nissenbaum to have him settle the impasse on the discovery issues. Nissenbaum's office contacted opposing counsel in order to set up a teleconference, the procedure which had been used in the past.
14. On Friday, 27 July 2001, it was announced that Governor Jane Swift had nominated opposing counsel, E. Chouteau Merrill, to fill a position of Circuit Judge in the Probate & Family Court.
15. On Friday, 27 July 2001, Merrill informed Nissenbaum that she would not participate in the teleconference because she was going to withdraw from the case.
16. Over the next few weeks, Merrill did not file a motion to withdraw. Neither did she cooperate with Smith's efforts to resolve the outstanding issues. Nor did a successor counsel for Smith's wife make an appearance.
17. On Friday, 17 August 2001, Judge Gould asked Smith's counsel whether she opposed Merrill's presenting Pocahontas Smith's position on the Motion to Recuse.
18. Given that Merrill had not filed a motion to withdraw, Smith's counsel was taken by surprise by such a remarkable request. Given that Merrill had not filed a motion to withdraw, Merrill was still attorney of record. With that said, Merrill had a right to argue.
19. Because Merrill should not have been able to "play it both ways, Smith's counsel wanted to oppose, but given that Merrill still had a technical right to argue, Smith's counsel wanted to put on the record Merrill's continuing refusal to cooperate with the discovery master as ordered and with Smith's counsel's attempts to resolve outstanding discovery matters.
20. It was at this impasse, when the judge would not allow Smith's counsel to speak, that a break was called in the proceeding. Merrill's uncooperative and unprofessional conduct was not to be put on the record in Judge Gould's courtroom.
21. Upon returning to the courtroom, Smith's counsel noticed the CLOSED SESSION sign. It had to have been secretly secured to the courtroom door immediately after the proceeding began.
22. That Judge Gould ignored the memoranda and judgments of both higher courts puts salt on the wound.
23. Judge Gould's act is capable of repetition and evading review, a fact which the higher courts either overlooked or misapprehended.
24. Given that the hearing was to be on the Motion to Recuse because of Judge Gould's unscrupulous acts, public scrutiny was critical. [Facts and arguments in petitions].
PRAYERS
WHEREFORE, Plaintiff John Smith requests that Defendants be required to appear before this Court to show cause why said Defendants should not be adjudged in contempt of Court and for such other relief as to said Court may seem just. Plaintiff also prays for an award of costs, including attorney's fees and interest.
11 September 2001 Barbara C. Johnson, Esq.Respectfully submitted,.
PLAINTIFF JOHN SMITH, JR.
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURTSUFFOLK COUNTY, ss. C.A. NO. SJ-2001-0000
______________________________________
John Smith
Plaintiff
v.The Honorable Nancy M. Gould, in her
judicial and individual capacities
Suffolk County Probate & Family Court,
Defendants
______________________________________
AFFIDAVIT BY BARBARA C. JOHNSON IN SUPPORT OF
COMPLAINT FOR CONTEMPT OF SUFFOLK COUNTY PROBATE & FAMILY COURTI, Barbara C. Johnson, hereby depose and say that:
1. I am a member in good standing with the bar in this Commonwealth.Signed under the pains and penalties of perjury.2. I represent the Plaintiff in the above-captioned action.
3. I hereby certify that I have kept in the ordinary course of business the documents included in the addendum.
4. The complete verbatim statement of the Memorandum and Judgment is in the Addendum to this Complaint.
5. As in March and April, during a break in the proceeding on 17 August 2001, I, upon returning to the courtroom, saw the CLOSED SESSION sign. I gave it to the court officer, who gave it to the judge, who put it on the record that counsel had removed the sign. Judge Gould refused to allow me to address the court on the subject. The purpose of the hearing was to hear only Smith's Motion to Recuse Judge Gould from the Smith case.
6. The hearing on the Motion to Recuse never went forward because of extraordinary, unique facts. [Seeaffidavit of Smith's counsel.]
7. On 9 March 2001, at opposing counsel's request, a discovery master was appointed: Attorney Gerald Nissenbaum, former president of the Massachusetts chapter of the American Academy of Matrimonial Lawyers. The parties were to share the costs.
8. The wife's counsel did not fully cooperate with an agreements made with Attorney Nissenbaum and each other, and after his first two recommendations -- filed on 26 April 2001 -- were in Smith's favor, wife's counsel's cooperation became non-existent. Exacerbating matters, Judge Gould has failed to act on the master's recommendations.
9. On Thursday, 26 July 2001, I contacted Attorney Nissenbaum to have him settle the impasse on the discovery issues. Nissenbaum's office contacted opposing counsel in order to set up a teleconference, the procedure which had been used in the past.
10. On Friday, 27 July 2001, I learned that Governor Jane Swift had nominated opposing counsel, E. Chouteau Merrill, to fill a position of Circuit Judge in the Probate & Family Court.
11. On Friday, 27 July 2001, a staffer at Attorney Nissenbaum's office phoned me saying that Merrill informed Nissenbaum that she would not participate in the teleconference because she was going to withdraw from the case.
12. Over the next few weeks, I did not receive from Merrill and therefore assume that she did not file a motion to withdraw. Neither did she cooperate with Smith's efforts -- through me -- to resolve the outstanding issues. Nor did a successor counsel for Smith's wife make an appearance.
13. On Friday, 17 August 2001, Judge Gould asked me whether I opposed Merrill's presenting Pocahontas Smith's position on the Motion to Recuse.
14. Given that Merrill had not filed a motion to withdraw, I was taken by surprise by such a remarkable request. Given that Merrill had not filed a motion to withdraw, Merrill was still attorney of record. With that said, Merrill had a right to argue.
15. Because Merrill should not have been able to "play it both ways, I wanted to oppose but given that Merrill still had a technical right to argue, I wanted to put on the record Merrill's continuing refusal to cooperate with the discovery master as ordered and with me in an attempt to resolve outstanding discovery matters. Merrill was, after all, still counsel of record, and her nomination to a judgeship did not free her of her existing professional responsibilities.
16. It was at this impasse, when the judge would not allow me to speak, that a break was called in the proceeding.
17. Upon returning to the courtroom, I noticed the CLOSED SESSION sign. It had to have been secretly secured to the courtroom door immediately after the proceeding began.
18. That Judge Gould ignored the memoranda and judgments of both higher courts puts salt on the wound.
19. At the very end of the transcript, the court reporter identified Attorney XXXXXX as asking the court for leave to address the court. That was in error. It was Smith's counsel who sought to put the facts on the record.
20. Judge Gould's act is capable of repetition and evading review, a fact which the higher courts either overlooked or misapprehended.
10 September 2001 Barbara C. Johnson, Esq.
Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833