Child Support Contempt Defendants Not Entitled to Counsel, Says U.S. Supreme Court

August 16, 2011 | Child Support, Court Decisions, Legal Perspective

Icon for author Brian Vertz Brian Vertz

Child support contempt defendants are not entitled to court-appointed representation even in cases where incarceration is threatened, says the U.S. Supreme Court, but the state courts must follow procedures that ensure the fundamental fairness of contempt proceedings. In Turner v. Rogers, Docket No. 10-10, June 20, 2011, the Court considered the rights of a South Carolina defendant who had been held in contempt of a child support order five times in three years. Each time, the Defendant Michael D. Turner (“Father”) paid the purge condition, twice without being jailed and twice after being jailed for a few days. In the fifth proceeding, Father did not pay and served a six month sentence in jail. Just weeks after his release, Mr. Turner received another hearing notice to show cause why he should not be held in contempt.

At the sixth contempt hearing, Father testified that he had been addicted to meth and marijuana, broke his back, and applied for disability and SSI. He was approximately two years behind in child support payments. He asked the trial court for an opportunity to catch up. The trial court held him in contempt, sentencing him to one year in jail with no good-time or work credits, but eligible for work release if he could find a job. The trial judge’s ruling did not explicitly address Father’s ability to pay and left blank the areas in a preprinted form where the court could indicate whether the defendant was working and had the ability to pay.

While serving time, Father filed an appeal with the assistance of pro bono counsel. The South Carolina Supreme Court rejected his argument that he was entitled to court-appointed counsel at his civil contempt hearing under the U.S. Constitution, distinguishing civil contempt proceedings from criminal contempt. The U.S. Supreme Court granted certiorari, noting a split among state supreme courts concerning the right to counsel in civil contempt proceedings.

The U.S. Supreme Court first considered whether the 14th Amendment due process clause guarantees indigent contemnors the right to court-appointed representation in civil contempt proceedings that may lead to incarceration, a novel federal question[1] distinct from the 6th Amendment right to counsel in criminal proceedings (including criminal contempt). The Court reiterated the well-known principle that civil contempt proceedings are intended to coerce the defendant to comply with a court’s order, rather than to punish, and that a defendant may not be held in contempt where he or she lacks the ability to comply. The defendant “carries the keys of his prison in his own pockets” and is purged of civil contempt when he complies with the order. Id.

The Court acknowledged that the 14th Amendment due process clause offers fewer procedural protections in civil cases than the 6th Amendment in criminal cases, which is why the defendant may bear the burden in civil contempt proceedings to prove their inability to comply. See Hicks v. Feiock, 485 U.S. 624 (1988); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 442 (1911); accord, Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Travitsky v. Travitsky, 534 Pa.Super. 1081 (Pa.Super.1987).

Next, the Supreme Court examined the role of civil contempt proceedings in family law, which is to ensure the payment of funds necessary for the support of children, often to reimburse welfare funds paid by the states to indigent families. The Court observed the complex network of regulations and agencies established to regulate and monitor child support collections, including expedited procedures, statewide guidelines, mandatory wage attachment, and interstate reporting and enforcement.

The Court in Turner also referenced its earlier decision in Matthews v. Eldridge, 424 U.S. 319, 335 (1976), which established three criteria for measuring the fundamental fairness of civil proceedings under the 14th Amendment due process clause: (1) the private interest to be affected in the proceeding; (2) the risk of erroneous deprivation of that interest with and without additional or alternative procedural safeguards; and (3) the governmental interest involved, including the fiscal and administrative burdens the additional procedural requirements would entail. Accord, Corra v. Coll, 451 A.2d 480 (Pa.Super. 1982). Applying those criteria, the Turner Court found that the defendant’s private interest in personal liberty was a strong factor in favor of court-appointed representation, particularly in ensuring accurate decision-making on the issue of the defendant’s ability to comply. The Court stated that “an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding.” Id.

Yet, the Supreme Court held that three other considerations weighed more heavily in favoring of not requiring court-appointed counsel in civil child support contempt proceedings. Those considerations were: (1) the relative simplicity of judging the contemnor’s ability to pay; (2) the risk of assymetry in a category of cases where the custodial parent seeking enforcement is equally likely to be indigent; and (3) the availability of alternative procedural safeguards, including notice to the defendant that “ability to pay” is a critical issue in the hearing, the use of forms to elicit the defendant’s financial information, the opportunity for a defendant to testify about his or her ability to pay and an express finding by the court about the defendant’s ability to pay. Ultimately, the Court held that these procedural safeguards might be an adequate substitute for court-appointed legal representation in child support contempt proceedings.

Interestingly, the Supreme Court noted that its decision did not apply to Title IV-D cases where the primary purpose of the contempt hearing is the collection of child support to reimburse welfare payments made to the custodial parent. Comparing those cases to “debt collection proceedings,” the Court found that the state is likely to have legal representation. The Court did not specifically rule on that category of cases, but its silence is not mute. The Court also declined to rule on complex cases “where a defendant can fairly be represented only by a trained advocate.” These clarifications greatly limit the scope of the Court’s decision in Turner.

Turning to the facts of the case, the U.S. Supreme Court found that Father was neither afforded counsel nor the benefit of alternative procedural safeguard to ensure fundamental fairness. He did not receive clear notice that his ability to pay was a critical issue, nor a form to elicit his financial information. The trial court had left blank the portion of its order where a finding of the defendant’s ability to pay should be completed. The decision was vacated and case remanded for further proceedings.

Four Justices, led by Justice Thomas, dissented from the majority opinion authored by Justice Breyer. First, Justice Thomas wrote that even the Sixth Amendment does not guarantee the right to court-appointed counsel in criminal proceedings, but merely “the right to employ counsel,” as it was “originally understood.” Justice Thomas also noted that Father had cited no binding authority requiring the appointment of counsel in civil contempt proceedings. (This portion of the dissenting opinion was not joined by Justices Roberts and Alito.)

Justice Thomas went on to say that even under the Court’s “modern interpretation” of the Constitution, the Due Process Clause does not require the appointment of counsel for indigent defendants facing incarceration in civil contempt proceedings. The Gideon protections afforded to criminal defendants under the Sixth Amendment does not extend beyond criminal proceedings under existing law and precedent. Gideon v. Wainwright, 372 U.S. 335 (1963). The Justice rejected Father’s argument that due process requires the extension of those protections to civil proceedings where imprisonment is possible. Justice Thomas cited a string of cases where the Court had rejected pleas for the appointment of counsel in civil cases on the grounds of due process and fundamental fairness, including Lassiter, Gagnon, and Middendorf, supra.

Finally, Justice Thomas attacked the majority’s ruling that civil contempt proceedings require procedural safeguards in lieu of court-appointed counsel in cases where imprisonment is threatened. The Justice expressed his opinion that the issue had not been argued or developed in the state court proceedings, and was first raised by the Solicitor General in an amicus brief. No substantive argument was offered by Justice Thomas in opposition to this aspect of the Court’s decision, other than carping about the manner in which the issue had been raised on appeal. The Justice concluded his dissent by remarking on the hopelessness of attempting to collect child support, and the immorality of parents who do not raise their children within the confines of intact marriages.

[1] The Court noted analogous, but not controlling, decisions in civil cases involving juvenile delinquency, In re Gault, 387 U.S. 1 (1967); involuntary hospitalization of inmates, Vitek v. Jones, 445 U.S. 480 (1980); and termination of parental rights, Lassiter v. Dept. of Soc. Srvcs. of Durham Cty., 452 U.S. 18 (1981). While these cases held generally that defendants facing incarceration are entitled to legal representation, the Court also noted cases where the threat of imprisonment did not create a right to counsel. Gagnon v. Scarpelli, 411 U.S. 778 (1973) (revocation of probation); Middendorf v. Henry, 425 U.S. 25 (1976) (court-martial).

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