In a case with sympathies on both sides, the Supreme Court unanimously held on Monday in Turner v. Rogers (No. 10-10) that a “deadbeat†father has no automatic due process right to counsel in a civil contempt proceeding, even when he is facing jail time for failing to pay child support. However, Justice Stephen Breyer’s decision for the Court, joined by four other Justices, held that the Fourteenth Amendment does provide “substitute procedural safeguards†to parents who have not paid child support. Because the South Carolina state courts did not provide the petitioner, Michael Turner, with any such substitute safeguards to determine whether he in fact could pay the court-ordered child support, the five-Justice majority vacated the civil contempt charge against him.Â
           In the case, a South Carolina state court ordered Mr. Turner to serve one year in jail for failing to pay his child support. Like other states, South Carolina uses contempt proceedings and incarceration to try to ensure that parents who owe child support pay on time. During the contempt hearing, neither Mr. Turner nor Rebecca Rogers, the mother of his child, were represented by lawyers. While the court received some information about Mr. Turner’s finances, it never explicitly decided whether he had the resources to pay what he owed. While in jail, Mr. Turner appealed to the South Carolina Supreme Court, arguing that because he was facing the prospect of incarceration, the Fourteenth Amendment gave him a right to counsel – appointed and paid for by the state. That court rejected his argument and affirmed; the U.S. Supreme Court then granted Mr. Turner’s petition for certiorari, which asked only whether there is “a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration.â€
           Yesterday the Court answered that question with a unanimous “no.â€Â In an opinion by Justice Breyer that was joined by Justices Kennedy, Ginsburg, and Sotomayor, the Court made clear that the Sixth Amendment’s right to counsel applies only to criminal proceedings. Although the Fourteenth Amendment’s guarantee of due process guarantee applies to civil contempt proceedings, the Court held that it does not “automatically require the provision of counsel . . . even if that individual faces incarceration.†According to the majority, requiring courts to appoint counsel for deadbeat parents would create a new problem – an “asymmetry of representation†– because “[t]he custodial parent, perhaps a woman with custody of one or more children, may be relatively poor, unemployed, and unable to afford counsel.â€Â Reviewing the factors for establishing due process protections that the Court outlined in Matthews v. Eldridge  (1976), the Court concluded that appointing a lawyer for the deadbeat parent “could make the proceedings less fair overall.â€
           However, the majority also held that the state court should have provided due process substitute safeguards short of appointing counsel – such as informing Mr. Turner of the legal significance of whether he can pay; soliciting financial information using a form; allowing the defendant to respond in court to questions about his financial resources; and possibly appointing a social worker. These safeguards, the Court explained, would “assure a fundamentally fair determination of the critical incarceration-related question†– whether Mr. Turner could actually pay what he owed. Because the state court had failed to provide these safeguards, the Court vacated the decision below and remanded the case for further proceedings.
           Justice Thomas filed a dissenting opinion, which Justice Scalia joined in full and which the Chief Justice and Justice Alito joined in part. Justice Thomas agreed with the majority that neither the Sixth Amendment nor the Fourteenth requires the state to appoint counsel in a civil contempt hearing, even where the defendant faces incarceration. But he went further. According to Justice Thomas, the original intent of the Fourteenth Amendment does not envision anything to do with counsel. Because the Sixth Amendment deals with that issue, he reasoned, it is not proper ever to read the more general Fourteenth Amendment to provide a right that the more specific amendment does not.
           Much of Justice Thomas’s dissent takes aim at the majority’s decision to impose the “substitute safeguardsâ€Â He emphasized that the parties had not raised the issue; instead, the United States had raised it for the first time in an amicus brief to the U.S. Supreme Court, in a case involving a constitutional issue, and which originated in a state court. Thus, he contended, the majority is “triply†wrong. Indeed, he pointed out, Mr. Turner’s own lawyer disagreed with the position of the United States.
           Significantly, both the majority and dissenting opinions agreed (with Justice Thomas doing so in a footnote) that the case was not moot, even though Mr. Turner had already served his sentence by the time the Court heard the case. Because Mr. Turner could not have appealed his case through the court system during the single year of his jail sentence, the Court explained, the Court has jurisdiction because it is capable of repetition but would otherwise evade review. Â
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