Last summer, the United States Supreme Court issued an opinion that went unnoticed to most, but it certainly should not have gone unnoticed to family law attorneys. In Turner v. Rogers, et al. 564 U.S. ___ (2011), the United States Supreme Court rejected the argument that a child support obligor who cannot afford an attorney is entitled to court appointed counsel at a contempt hearing for failure to pay child support. Therein, the South Carolina trial court was considering a motion for civil contempt due to Turner’s failure to pay on a child support order. Although not a criminal contempt, the civil contempt proceeding carried with it the possibility of jail incarceration. Because of the possibility of jail, Turner requested that the trial court appoint him a lawyer.
The United States Supreme Court discussed at length the difference between civil and criminal contempt. It then recited well established precedence the Sixth Amendment right to counsel does not apply to civil proceedings. Id. citing Gideon v. wainwright, 372 U.S. 335 (1963); United States v. Dixon, 509 U.S. 688. The prior precedence also establishes that civil contempt is different in that it attempts to coerce compliance with a prior court order and, if a jail term is imposed, the defendant may purge his contempt to gain his freedom. With that, because the Sixth Amendment only applies to criminal cases, the issue is whether the Due Process Clause of the Fourteenth Amendment requires counsel as an element of providing due process. Here too, the Court began with the presumption that the state is permitted to provide fewer procedural safeguards in civil contempt hearings. Turner, citing Hicks v. Feiock, 435 U.S. 624.
The Court did acknowledge though that the threatened loss of liberty certainly demands due process protection. Turner, citing Addington v. Texas, 441 U.S. 418 (1979). Nonetheless, because it remains a civil proceeding, the court balanced the opposing interests sought to be protected in the proceeding. In Turner, the Court found three considerations to be critical. First, was that the contempt proceedings requires consideration of an ability to pay. The ability to pay question is similar to the ability to pay analysis which is a prerequisite to appointment of counsel itself and done without the right to counsel. Second, the person opposing the defendant in such cases is not always the government and is often unrepresented themselves. Appointing counsel where the motioning party is unrepresented will create another level of asymmetry. Third, the state proceedings had “substitute procedural safeguards” which the court believed could “significantly reduce the risk of an erroneous deprivation of liberty.”
With those three factors considered, the Court ultimately concluded that there is no automatic right to counsel for an indigent in civil contempt child support proceedings – provided however the state has adequate substitute procedural safeguards. And, the Court went further to explain that the holding does not apply to proceedings brought by the government as that party would then be represented by counsel.
The Ohio Supreme Court is now considering a very similar question. In December of 2011, after the Turner decision, the Ohio Supreme Court accepted for review the Fourth District Court of Appeals decision in Liming v. Damos, 2011-Ohio-2726. Therein, the Fourth District held similarly that indigent civil contemptors do not, as a categorical rule, have a due process right to counsel. That case was decided before Turner. The case was accepted because of a conflict with another Ohio Appellate District; hence, the Turner decision has not become an issue as of yet.