Argument preview: Right to counsel for civil contempt cases

By Amy Howe
on Mar 22, 2011 at 12:32 pm

Petitioner Michael Turner and respondent Rebecca Rogers are the parents of a child.  In 2003, a South Carolina family court ordered Turner – who was then unemployed – to pay approximately sixty dollars per week in child support through the court.  Four years later, in 2007, Turner was nearly six thousand dollars in arrears on his payments, and the court issued a warrant for his arrest.  At a hearing in 2008, Turner – who was not represented by counsel – told the judge that he had been using drugs but had stopped.  He apologized for not paying his child support and asked the judge to “give me a chance.”  However, the court deemed Turner to be in “willful contempt” and sentenced him to twelve months in prison, explaining that Turner could “purge himself of the contempt and avoid the sentence by” paying his arrearages.  Turner was therefore jailed — his fourth such stint for failing to pay child support.

Turner obtained pro bono counsel, who filed an appeal arguing that he had a right under the Sixth Amendment and the Due Process Clause to have appointed counsel in the contempt proceeding.  Before the state’s intermediate appellate court could decide the appeal, the South Carolina Supreme Court granted review and affirmed the family court’s decision.  It emphasized that because Turner’s conditional sentence – which allowed him to avoid the sentence by paying his back child support – was a “classic civil contempt sanction,” he was not entitled to appointed counsel.

Turner filed a petition for certiorari, which the Court granted on November 1, 2010.  In addition to the question presented by the petition – regarding whether Turner had a due process right to appointed counsel – the Court asked the parties to brief the question whether it has jurisdiction to review the state court’s decision at all, because Turner had already completed his prison term.

In his brief on the merits, Turner first contends that the Court has jurisdiction to review the decision below, which he characterizes as a “final judgment of the State’s highest court conclusively resolving [his] right-to-counsel claim under the U.S. Constitution.”  And the case is not moot, he argues, because the controversy “is virtually certain to recur” in light of his poverty, the amount of money that he owes in back child support, and the state’s enforcement procedures.

Turner next argues that the same considerations that have led the Court to hold in other contexts that appointed counsel is required for a defendant who could be incarcerated apply to his case:  he needed an attorney to help him avoid incarceration by demonstrating that he could not afford to pay his child support obligations.  This conclusion, he continues, is also bolstered by due process considerations:  the risk of an erroneous outcome, with a resulting prison term, is high, particularly when compared with the state’s “minimal financial interest in refusing to provide counsel” and its complete lack of “interest . . . in maintaining a de facto debtors’ prison for child-support obligors who genuinely cannot pay.”

The United States filed an amicus brief supporting reversal.  It agreed with Turner that the Court has jurisdiction to review the South Carolina Supreme Court’s decision.  It further agreed that Turner’s prison sentence violated due process, but in its view the due process violation stemmed from the family court’s failure to determine whether Turner was actually capable of paying his child-support arrearages, rather than its failure to provide Turner with appointed counsel.  The government argued that appointed counsel “would have been a sufficient, but not a necessary, means of satisfying due process,” as other avenues – such as asking him to complete a basic form regarding his finances – could also help him to establish his inability to pay.

In their brief on the merits, respondents Rebecca Rogers and Larry Price (Rogers’s father, who now has custody of the child) begin by emphasizing the plight of custodial parents and the extent to which noncustodial parents such as Turner seek to avoid paying child support.  Civil contempt proceedings, they contend, are an effective last resort to induce parents to pay child support.

Turning to the question of the Court’s jurisdiction to hear the case, Rogers and Price argue that the case is moot because Turner could have asked for a stay of his sentence pending appeal, but failed to do so.  In any event, they assert, there is no constitutional requirement that appointed counsel be provided whenever a defendant faces the prospect of incarceration.  Such a requirement finds no basis in the Sixth Amendment, which refers only to “criminal prosecutions”; moreover, they warn, requiring appointed counsel in civil cases could “blur the venerable distinction between criminal and civil contempt, inviting extension of a host of criminal procedures to various civil cases, such as immigration detentions.”

Nor does due process require appointed counsel in all cases, particularly given the relative simplicity of the child-support civil contempt proceedings at issue in this case.  Rogers and Price concede that “more tailored remedies” may be appropriate to ensure due process in some cases – for example, by appointing counsel in “unusually complex cases” or, as the federal government argues, by using financial disclosure forms.  However, they emphasize that these issues were neither litigated below nor included within the question presented.