Note: Turner v. Rogers (2011)

 

In Turner v. Rogers (2011), the Supreme Court considered “whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel at a civil contempt hearing to an indigent person potentially faced with…incarceration.” In a 5-4 decision written by Justice Breyer and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, the Court held

Where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.

The state holds a civil contempt hearing when a parent has outstanding child support payments. If the parent demonstrates that he cannot make the payments, he is not held in contempt of court. However, if the parent cannot make this demonstration, the court may hold him in civil contempt. He may be imprisoned up to one year or until he makes the payments.

A South Carolina family court determined that Michael Turner must pay child support to Rebecca Rogers. Turner failed to regularly make these payments and was held in contempt five times and jailed twice. After remaining in arrears, the court held a contempt hearing in which both Turner and Rogers were unrepresented by counsel. Turner told the judge that he had problems with drug addiction and had filed for disability and Social Security Income. However, the Court did not make a finding regarding Turner’s ability to pay the amount owed. Still, the Court found Turner in willful contempt of court and placed him in jail for twelve months. In this action, Turner “claimed that the Federal Constitution entitled him to counsel at his contempt hearing.”

The Court recognized that precedent did not answer this question. Although the Sixth Amendment requires a state to provide an indigent defendant with counsel in a criminal case where there is possible imprisonment, Turner’s case was a civil case. Thus, the Court noted that “where civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case.”

Following that reasoning, the Court turned to the factors laid out in Mathews v. Eldridge (1976) to determine whether the proceeding was fair under the Due Process Clause. These factors include “(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substituted procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’ ” Initially, the Court found that the “freedom ‘from bodily restraint’ lies ‘at the core of the liberty protected by the Due Process Clause.’ ”

Still, looking to these factors, “three related considerations…when taken together, argue strongly against the Due Process Clause requiring the State to provide indigents with counsel in every proceeding of the kind before us.” First, the initial question was whether the defendant actually had the ability to pay. The Court noted that this determination should be made “prior to providing a defendant with counsel, even in a criminal case.”

Second, the Court recognized that the “person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel.” The hearings would be unbalanced if the custodial parent did not have counsel and the noncustodial parent was provided with counsel. Therefore, the proceedings would be “less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive.”

Third, additional procedural safeguards are available which would “significantly reduce the risk of an erroneous deprivation of liberty.” These include

(1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.

After weighing these three considerations, the Court decided that “[i]n our view, a categorical right to counsel in proceedings of the kind before us would carry with it disadvantages (in the form of unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority over the alternatives that we have mentioned.”

However, in Turner’s case, the state did not provide him with counsel nor did it offer any alternative procedural safeguards. Furthermore, the lower court did not expressly find that he could pay his arrearage. Thus, the Court ruled that “[u]nder these circumstances, Turner’s incarceration violated the Due Process Clause.”

Justices Thomas and Scalia dissented, joined in part by Justices Roberts (C.J.) and Alito. Thomas acknowledged that the Due Process Clause did not give indigent defendants a right to counsel in civil contempt proceedings. From an originalist perspective he reasoned,

[b]ut if the Due Process Clause created a right to appointed counsel in all proceedings with the potential for detention, then the Sixth Amendment right to appointed counsel would be unnecessary. Under Turner’s theory, every instance in which the Sixth Amendment guarantees a right to appointed counsel is covered also by the Due Process Clause.

Thomas also wrote against the majority’s holding about the need for the state to provide procedural safeguards which were only mentioned in an amicus brief. He said,

[t]he majority errs in moving beyond the question that was litigated below, decided by the state courts, petitioned to this Court, and argued by the parties here, to resolve a question raised exclusively in the Federal Government’s amicus brief…. [I]t transforms a case entirely to vacate a state court’s judgment based on an alternative constitutional ground advanced only by an amicus and outside the question on which the petitioner sought (and this Court granted) review.