State Bar v. Cramer

• Decision Date: 01 November 1975
• Docket Number: No. 11,11
• Citation: 249 N.W.2d 1,399 Mich. 116
• Parties: The STATE BAR of Michigan, a public body corporate, and all active and inactive members, parties united in interest and all others similarly situated, Plaintiffs- Appellees, v. Virginia CRAMER, Defendant-Appellant. ,
• Court: Michigan Supreme Court

Page 1

249 N.W.2d 1

399 Mich. 116 The STATE BAR of Michigan, a public body

corporate, and all active and inactive members,

parties united in interest and all

others similarly situated, Plaintiffs- Appellees, v. Virginia CRAMER, Defendant-Appellant.

No. 11, November Term, 1975.

399 Mich. 116, 249 N.W.2d 1

Supreme Court of Michigan.

Dec. 30, 1976.

W. Gerald Warren, Detroit, for The State Bar of Michigan, plaintiffs-appellees.

Robert L. Reed, Alan W. Houseman, William Burnham, Michigan Legal Services, Detroit, for amicus curiae.

Virginia Cramer, in pro. per.

PER CURIAM.

The history of this case is convoluted and confusing. The business of defendant Cramer which is the source of this controversy is described by Judge O'Hair in his findings following a hearing on December 18, 1972.

'In May, 1972, defendants Graham and Gordon formed a partnership to conduct a business that consisted of the sale of so-called 'divorce kits.' Later in August they expanded their firm to include the defendant Cramer as a partner. Their business is known as Gordon-Graham & Cramer Associates, and its offices are located at 15800 W. McNichols, Detroit, Michigan.

'Defendants, who admittedly are not attorneys, have solicited over 400 customers or clients by advertising 'DIVORCE' in daily newspapers having a general circulation throughout the State of Mcihigan. A. 'Do-It-Yourself Divorce Plan,' as defendants characterize it, is made available to members of the public for a fees of $75 or $100, plus $30 to $50 costs.

'When a person is interested in purchasing defendants' 'Do-It-Yourself Divorce Plan,' he has a conference at the defendants' place of business. At the conference the client is advised that defendants are not lawyers, but that they do provide the forms and service which enables one to obtain his own legal divorce. A 'Questionnaire-Agreement' is completed before the termination of the conference.

'From the information set forth in the client's completed questionnaire, the complaint and summons are prepared by the defendants. Thereafter, all documents incident to the divorce proceedings are prepared for the client's or the court's signature. The completed documents are filed with the court and served upon the adverse party, if necessary, by the defendants or by the clients pursuant to the defendants' instructions. Clients are not given a so-called kit of divorce forms, but each form is completed and executed at defendants' office as needed at each appropriate step of the divorce proceedings.

'Before the evidentiary hearing for the entry of judgment, the defendants provide their clients with a statement setting forth suggested testimony to be offered by the client to the court and a list of suggested questions to be asked by the client of a corroborating witness.

'At all stages of the divorce proceedings the defendants, expressly or inferentially, advise the clients as to the legal procedures involved, provide all legal forms incident to the divorce proceedings, provide the service to complete the aforesaid forms and provide optional assistance in filing and serving all documents.

'Defendants state that at present they are primarily interested in making their 'Do-It-Yourself Divorce Plan' available to persons who anticipate divorce proceedings that are uncontested and do not involve questions relative to children, alimony or marital property. In the past they have not been so selective.' (Footnote omitted.)

The State Bar of Michigan, alleging that it constituted the unauthorized practice of law, sought to enjoin defendant from engaging in this business. On January 5, 1973 Judge O'Hair of the Wayne Circuit Court entered an order permanently enjoining the defendants from:

'(1) Holding themselves out to the public as qualified to render advice and service to persons intersted in obtaining a divorce in the courts of Michigan;

'(2) Rendering counsel and service to persons seeking to dissolve a marital relationship by obtaining a judgment of divorce in the courts of the State of Michigan; and,

'(3) Furnishing or offering to furnish kits, forms or documents with assistance in their completion or execution, to persons seeking to dissolve a marital relationship by obtaining a judgment of divorce in the courts of the State of Michigan.'

The defendant continued in the business despite several orders finding her in contempt. We finally agreed to consider the matter and at oral argument the defendant frankly admitted she intended to keep on with it.

I

May defendant constitutionally be enjoined from providing divorce forms, assisting in the completion of these forms, and counseling persons seeking a no-fault divorce in Michigan on the grounds that she was engaged in the unauthorized practice of law, contrary to M.C.L.A. § 600.916; M.S.A. § 27A.916?

Plaintiff asserts that whether or not defendant was engaged in the unauthorized practice of law, she is guilty of contempt for violating the injunction of the Wayne Circuit Court. It is a general rule that

'(A)ll orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect. Howat v. Kansas, 258 U.S. 181, 189--190, 42 S.Ct. 277, 280--281, 66 L.Ed. 550 (1922); Worden v. Searls, 121 U.S. 14, 7 S.Ct. 814, 30 L.Ed. 853 (1887). The orderly and expeditious administration of justice by the courts requires that 'an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.' United States v. United Mine Workers, 330 U.S. 258, 293, 67 S.Ct. 677, 696, 91 L.Ed. 884 (1947).' Maness v. Meyers, 419 U.S. 449, 458, 459, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975).

'(I)n one important respect the violation of a court order generally is treated differently from the violation of a criminal statute; If the statute is invalid, the invalidity will require the defendant's acquittal. If a court order is invalid, its violation may nonetheless be treated as contempt, except where the court lacks jurisdiction to issue the order or, perhaps, where the defendant has no opportunity to contest the validity of the order.' Kuhns, Limiting The Criminal Contempt Power: New Roles For The Prosecutor And The Grand Jury, 73 Mich.L.Rev. 484, 504 (1975).

The reasons for this principle were set forth by the United States Supreme Court in Walker v. City of Birmingham, 388 U.S. 307, 320--321, 87 S.Ct. 1824, 1832, 18 L.Ed.2d 1210 (1967), upholding convictions for criminal contempt of civil rights marchers who were in violation of an injunction: '(I)n the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives * * *. (R)espect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to consititutional freedom'.

In the judgment and injunctive order of January 5, 1973, defendant was enjoined from engaging in the unauthorized practice of law, and specific instances of prohibited conduct were listed.

There is no doubt that defendant continued to violate the January 5 order, and, indeed is still doing so. Judge O'Hair adjudged defendant 'guilty of civil contempt' on April 23, 1973, and ordered her jailed until she purged herself 'by demonstrating that she will discharge her statutory and judicially imposed duty to cease permanently from engaging in the conduct proscribed by the Court's judgment and injunctive order of January 5, 1973 * * *.'

Defendant was jailed April 30, 1973, and on May 1, 1973 appeared before Judge O'Hair and made certain representations to purge herself of contempt, and was released.

On August 6, 1973, Judge O'Hair found that defendant 'has violated her purgation of contempt and has broken her promise given in connection with said purgation of contempt to this Court on May 1, 1973 wherein she promised to abstain from the proscribed activities', and again adjudged her in contempt and sentenced her to five days in jail and assessed a fine and costs.

On December 19, 1973, Judge O'Hair again adjudged defendant guilty of contempt and sentenced her to five days in jail.

On October 15, 1974, Judge O'Hair found: 'Defendant's * * * conduct from February 14, 1974 through June 27, 1974, has been in violation of the Court's Judgment and Injunctive Order of January 5, 1973. The contemptuous conduct has been willful, flagrant, and in absolute defiance of the Wayne County Circuit Court.' Defendant was adjudged 'guilty of civil contempt * * * as a result of her willful conduct * * * (and) as punishment * * * is to be sentenced to the Wayne County Jail for a period of thirty (30) days, and, in addition thereto, is fined $250.00.'

There is disagreement over the nature of these contempt proceedings, I.e., whether defendant was found guilty of civil or criminal contempt.

'Essentially, the difference between civil and criminal contempt is that the former seeks to change respondent's conduct by threatening him with a penalty if he does not change it, while the latter seeks to punish him for past misdoings which affront the dignity of the court. Criminal contempt being for past misconduct, there is no way for one so convicted to purge himself of the contempt.' Jaikins v. Jaikins, 12 Mich.App. 115, 120, 162 N.W.2d 325, 328 (1968).

There is no doubt that the April 23, 1973 finding was that defendant was guilty of civil contempt. Judge O'Hair specifically told the defendant that she would be jailed until she purged herself. She therefore was able to 'carry the 'keys of (the) prison in (her) own pocket' (and) the action is essentially civil.' People v. Goodman, 17 Mich.App....