S.Ct. Entitled to alternative procedural safeguards when incarcerated for failure to pay child support

In a 5-4 decision, the Supreme Court ruled that, according to the Fourteenth Amendment, civil contempt proceedings for failure to pay child support directly to the custodial parent do not require the government to appoint counsel for the defendant, but do require alternative procedural safeguards for a “fundamentally fair determination” of the defendant’s ability to pay. Turner v. Rogers, No. 10-10, 2011 WL 2437010 (June 20, 2011). Justice Breyer delivered the Court’s opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas wrote a dissenting opinion, joined in full by Justice Scalia and in part by Justices Roberts and Alito.

Michael Turner failed to pay child custody to Rebecca Rogers and her father and was found in civil contempt five times. After the fifth time, Turner was found again to be in arrears. He and Rogers were present at the civil contempt hearing, each without counsel. The judge found him in “willful contempt” and sentenced him to 12 months in prison without indicating any ascertainment of his ability to pay. Turner appealed his sentence on the grounds that, according to the Federal Constitution, he should have had counsel at his hearing, but South Carolina Supreme Court rejected his argument.

Citing disagreement among state and federal courts on the right to counsel in civil contempt cases to enforce child support orders, the U.S. Supreme Court granted certiorari. It vacated the South Carolina Supreme Court’s judgment and remanded. First, the instant Court found that the case was not moot, even though Turner had served his sentence because it could not have been fully litigated during his time in jail and because Turner could face imprisonment again. It ruled that the case is among those that are “capable of repetition, yet evading review” (e.g., Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546-547 (1976)).

Turning to the merits of the case, the Court noted that the Sixth Amendment did not apply because at issue was civil contempt, which depends on ability to comply, rather than criminal contempt, which does not (citing Hicks v. Feiock, 485 U.S. 624, 638, n.9 (1988).) Then, it recognized that its precedents did not provide a definitive answer and instead applied the “distinct factors” of the Mathews v. Eldridgetest to determine what Due Process under the Fourteenth Amendment requires for a fundamentally fair civil proceeding (424 U. S. 319, 335 (1976)). It cited three reasons that defendants are not entitled to appointed counsel when the plaintiff is the custodial parent. First, the defendant’s ability to pay can often be ascertained without counsel. Second, the custodial parent is often unrepresented by counsel, so that representing the non-custodial parent with counsel would make proceedings less fair. Third, alternative procedural safeguards can make the proceeding fair, such as those presented by the United States as amicus curiae.

The Court then ruled that, while Turner was not entitled to counsel, he was entitled to alternative safeguards. Since the record indicated no such safeguards, it concluded that his Due Process rights were violated. It suggested that, whatever form they take, such safeguards would inform the defendant that ability to pay is the critical question for civil contempt and would elicit information about the defendant’s financial circumstances.

Two parts of Justice Thomas’ dissent were joined by all the other dissenting justices. First, Thomas noted that reading the Fourteenth Amendment to grant “appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings….would render the Sixth Amendment’s right to counsel …superfluous.” Citing Gagnon v. Scarpelli, the dissent observed that “[t]he Court has never found in the Due Process Clause a categorical right to appointed counsel outside of criminal prosecutions or proceedings ‘functionally akin to a criminal trial’” (411 U. S. 778, 789, n. 12 (1973)). Second, it objected to the majority’s use of the United States’ amicus curiae to determine that there were alternative safeguards that Turner should have received. It noted that the parties did not raise this issue and thus reasoned that the Court should not have considered the issue in the first instance. Thus, the dissenters would have ended their analysis at the Sixth Amendment and not engaged in a Mathews test.

The dissent raised two other points that Justices Roberts and Alito did not join. First, it remarked that originalist and historical interpretations do not grant Due Process rights under the Fourteenth Amendment. Second, it disagreed with the application in the instant case of the Mathews test, which considers the interests of the individual and of the government but not the interests of the child and custodial parent.

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