Originally published by the Philadelphia Bar Association
Although the U.S. Supreme Court found no automatic right to counsel in civil contempt cases, it did rule by a 5-4 vote that an indigent noncustodial parent who was subject to a child support order and who faced incarceration had his due process rights violated because he was not provided with counsel nor with procedural safeguards.
A South Carolina family court had ordered Turner to pay Rogers to help support their child. Turner repeatedly failed to pay and was held in contempt several times. Usually, he would pay, sometimes without being jailed and other times after spending a few days in custody. However, the last time he did not pay, but instead completed a 6-month sentence. After his release, the family court clerk issued a new "show cause" order against Turner because he was several thousand dollars in arrears. Both he and Rogers were unrepresented by counsel at his brief civil contempt hearing. The judge found Turner in willful contempt and sentenced him to 12 months in prison without making any finding as to his ability to pay or indicating on the contempt order form whether he was able to make the support payments. After Turner completed his sentence, the South Carolina Supreme Court rejected his claim that the U.S. Constitution entitled him to counsel at his contempt hearing, declaring that civil contempt does not require all the constitutional safeguards applicable in criminal contempt proceedings.
Gideon v. Wainwright guarantees an indigent defendant the right to state-appointed counsel in a criminal case. The Supreme Court has also held that the same rule applies in criminal contempt proceedings. However, the Court had not ruled as to whether the Due Process Clause grants an indigent defendant a right to state-appointed counsel at a civil contempt proceeding, which may lead to incarceration.
While the Supreme Court found no automatic right to counsel in such civil cases, it did, among other things, clarify the obligations of trial court judges and courts toward unrepresented litigants, particularly those facing incarceration. The Court also suggested that it might find a categorical right to counsel for litigants in cases with governmental opponents, attorneys on the other side or unusually complex cases.
The Court pointedly stated that Turner received neither counsel nor the benefit of alternative procedures. It found that he did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt hearing. He was not provided with a mechanism designed to elicit information about his financial circumstances. Additionally, the Court found that the trial court did not find that Turner was able to pay his arrearage, but nonetheless found him in contempt and ordered him incarcerated. Under these circumstances, the Court found that "Turner's incarceration violated the Due Process Clause."Ju
The Supreme Court recognized that in these very personal, recurrent and highly-charged family dispute cases, some type of assistance is necessary. The Court, therefore, has encouraged those who are advocates for greater "access to justice" by shining a light on strategies to address these problems, in the absence of counsel, such as those proposed by Professor Russell Engler of the New England School of Law, who recently participated in a "Chancellor's Forum" sponsored by The Philadelphia Bar Association and who has been a strong proponent of "Civil Gideon."
The Supreme Court:
- Encouraged a more proactive fact-finding role for judges where unrepresented litigants are involved.
- Opened the door for the use of and evaluation of more robust and effective assistance programs.
- Left the door open for full representation where loss of liberty is at stake and lesser forms of assistance cannot protect those rights.
Some would have preferred that the Court require an unequivocal right to counsel, however, hopefully, the Turner decision will continue to prompt state courts, legislatures, "access to justice" advocates and bar associations to carefully examine the procedures where basic human needs are at stake and provide counsel where procedures are lacking.
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