Oral argument: Mar. 23, 2011
Appealed from: Supreme Court of South Carolina (Mar. 29, 2010)
CIVIL CONTEMPT, CHILD SUPPORT, RIGHT TO COUNSEL, SIXTH AMENDMENT, FOURTEENTH AMENDMENT
By the beginning of 2008, Michael Turner was six thousand dollars behind in his child support payments. A South Carolina family court eventually ordered Turner to appear to explain his failure to make any payments for the past year and a half. Turner alleged his personal and physical problems rendered him unable to pay. The family court imposed civil contempt sanctions as a result of Turner’s failure to comply with the earlier court order to pay child support. Turner appealed his twelve-month sentence, arguing that because there was a possibility that he would face imprisonment, the court should have provided him with counsel. The Supreme Court’s decision will likely determine whether indigent defendants in civil cases are entitled to representation where there is a possibility of incarceration, although the Court could possibly determine that it does not have jurisdiction to hear the case.
1. Whether the Supreme Court of South Carolina erred in holding—in conflict with twenty-two federal courts of appeals and state courts of last resort—that an indigent defendant has no constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration.
2. Whether this Court has jurisdiction to review the decision of the Supreme Court of South Carolina
1. Does an indigent defendant have the right to appointed counsel at a civil contempt proceeding that could result in incarceration?
2. Does the Supreme Court have jurisdiction to review the South Carolina Supreme Court's decision that such a defendant does not have a right to appointed counsel?
In January 2008, a South Carolina family court ordered Petitioner Michael Turner to appear in court to explain his failure to pay six thousand dollars in child support. See Price v. Turner, 691 S.E.2d 470, 471 (S.C. 2010). Turner attributed his inability to pay over the past year and a half to his imprisonment, addiction problems, unemployment, and physical health. See id. Although Turner was indigent, he was not provided counsel at this hearing. See id. at 471–72. The court found Turner in willful contempt as a result of his failure to abide by the court’s earlier order to pay child support. See id. at 471. The court ordered Turner to serve twelve months in detention unless he immediately paid the money owed. See id.
When the Supreme Court of South Carolina published its opinion in 2010, Turner had already served his one-year sentence. See Brief for Petitioner, Michael D. Turner at 13–14. After his release, the court rejected Turner’s argument that he was unable to find a job, and ordered him to serve another six months in detention for his failure to pay a smaller portion of his accruing child support payments. See id. at 14. Respondent Rebecca Rogers, the mother of Turner’s child, eventually granted custody of her child to her parents because she could no longer financially support the child. See Brief for Respondents, Rebecca L. Rogers et al. at 16. Rogers claims that by the end of 2010, Turner owed $13,814 in child support payments. See id. at 17.
In Turner’s appeal to the Supreme Court of South Carolina, he argued that the lower court proceedings violated his Sixth and Fourteenth Amendment rights because the court sentenced him to one year in jail without appointing him an attorney. See Price v. Turner, 691 S.E.2d at 472. The court disagreed, stating that civil contempt sanctions do not provide the same protections as criminal contempt sanctions. See id. The difference, explained the court, is that courts use criminal sanctions as a means to punish individuals for some defined period of time. See id. In comparison, the court stated that civil contempt sanctions are used as a means to persuade an individual to abide by a court order. See id. The court noted that in civil contempt proceedings, an individual “hold[s] the keys to his cell” because the court will free individuals immediately if they correct the situation that caused their imprisonment. See id.
The Supreme Court of South Carolina found that, in Turner’s case, he had the ability to completely avoid incarceration if he paid the six thousand dollars of child support he owed. See Price v. Turner, 691 S.E.2d at 472. Additionally, the family court told Turner that it would release him and drop the sanctions if he paid the money due at any time prior to his release from prison. See id. Thus, the Supreme Court of South Carolina found that, because the family court had not imposed a fixed or unconditional term of imprisonment, Turner was not entitled as a matter of constitutional right to appointed counsel. See id.
Petitioner Michael Turner argues that counsel is necessary in order to effectively present a defense in a civil contempt proceeding, and avoid erroneous incarceration. See Brief for Petitioner, Michael D. Turner at 35. The Constitution Project agrees, noting that individuals in civil cases are often confronted with a more difficult burden of proof than defendants in criminal cases. See Brief of Amicus Curiae The Constitution Project in Support of Petitioner at 22. The difference, says the Constitution Project, lies in the fact that, in criminal cases, the government has the burden of establishing the commission of a crime, whereas, in civil cases, the individual bringing suit need not prove that the defendant is able to pay the amount owed. See id. Rather, explains the Constitution Project, defendants must provide sufficient proof to establish that they are incapable of paying. See id. The Constitution Project adds that, without representation, defendants risk making statements that harm their case. See id. at 26. The result, says the Constitution Project, is that individuals are imprisoned even when they are legitimately unable to pay. See generally id.
Respondent Rebecca Rogers counters that, because civil contempt cases are relatively simple, representation is unnecessary and there is little risk of an incorrect outcome. See Brief for Respondents, Rebecca L. Rogers et al. at 50. In submitting an amicus brief, a group of States adds that, even if attorneys are present, there is no guarantee of a correct outcome. See generally Brief of Amici Curiae the States of Texas, Alabama et al. (“States”) in support of Respondents at 14–15. The States note that there is always a risk that a court may erroneously conclude that an individual is able to abide by a court order. See id. A group of Senators argue that guaranteeing counsel in civil contempt cases actually gives the non-custodial parent an unfair advantage over the custodial parent, who is not entitled to an attorney and often does not have one. See Brief of Amici Curiae Senators Demint, Graham et al. (“Senators”) in Support of Respondents at 11.
The American Bar Association ("ABA") notes that providing counsel will not enable a defendant to evade payment of child support obligations, because access to counsel has no bearing on whether an individual is actually able to pay. See Brief of Amicus Curiae American Bar Association (“ABA”) in Support of Petitioner at 9. The United States also notes that the government has an interest in avoiding imprisonment, because such a punishment only makes it more unlikely that the offender will have the financial resources to pay child support. See Brief for the United States as Amicus Curiae Supporting Reversal at 21. The ABA contends that attorneys may prove effective in advocating for reduced sanctions that allow their clients to pay a portion of what they owe and avoid the costs of incarceration. See Brief of ABA at 9.
Rogers counters that actual incarceration rarely occurs, because the mere threat of detention often results in payment. See Brief for Respondents at 8–9. The Senators warn that imposing counsel requirements might reduce the use of this technique. See Brief of Senators at 20. The Senators argue that providing counsel to the non-custodial parent would only serve to make it more advantageous for the parent not to pay child support. See id. at 15. The Senators contend that defendants will know that they have nothing to lose because the court will provide them with an attorney, and that they will have an opportunity to argue their inability to pay. See id. at 15–16.
The ABA argues that providing counsel supports a more efficient judicial system. See Brief of ABA at 11. The ABA asserts that, when individuals proceed without counsel, judges are often required to spend a great deal of time trying to understand the submissions, slowing the progress for all cases. See id. Additionally, the involvement of attorneys, says the ABA, may help reduce repeat offenses, avoiding court appearances and postponements that result from individuals needing more time to prepare their documents. See id. at 12.
Rogers contends that providing the right to counsel in this situation would not only lead to a greater financial burden on the states, but would also result in courts being swarmed with litigants demanding their right to counsel in other types of civil cases involving a risk of detention. See Brief for Respondents at 40, 61. The States agree, warning that by requiring courts to provide attorneys in all cases involving the possibility of incarceration, the Court would open the door to similar arguments in contexts such as habeas corpus cases, where incarceration is a challenged issue. See Brief of States at 15. Moreover, say the States, by concluding that the Sixth Amendment applies in this context, defendants would not only be entitled to attorneys, but also to jury trials and additional evidentiary safeguards. See id. at 14.
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense." See U.S. Const. amend. VI. This provision entitles criminal defendants to the right to counsel. See Brief for Respondents, Rebecca L. Rogers et al. at 30. The Sixth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV. The Supreme Court has held that the Due Process Clause not only requires that state felony criminal defendants have the right to counsel, but also that in certain civil matters defendants have the right to counsel. See Brief for Petitioner, Michael D. Turner at 31. These civil matters include juvenile delinquency hearings - which may result in the juvenile's institutionalization - and the transfer of a prisoner to a mental institution. See id. at 30–32.
Due Process: Right to Counsel
Turner argues that indigent defendants facing incarceration through civil contempt hearings should have the right to appointed counsel under the Due Process Clause of the Fourteenth Amendment. See Brief for Petitioner at 27. Turner claims that the Court's Sixth Amendment cases involving the right to counsel focus on the defendant's need for the guidance that counsel provides, and the seriousness of the stakes involved. See id. at 30. Turner asserts that in In re Gault, 387 U.S. 1 (1967), the Court determined that a juvenile is entitled to the right to counsel in civil juvenile delinquency hearings, which may result in institutionalization. See Brief for Petitioner at 30–31. The Court reasoned the juvenile had a right to counsel because the hearings could result in incarceration comparable to felony prosecution, and because the juvenile requires counsel to navigate the law and present an adequate defense. See id. Similarly, Turner asserts that the Court determined in Vitek v. Jones that a prisoner has a right to counsel in civil commitment proceedings, because commitment results in a substantial restriction of liberty, and the defendant would likely require counsel to adequately exercise and protect his rights. 445 U.S. 480 (1980); see id. at 31–32. Turner argues that these cases establish the proposition that a defendant in a civil proceeding facing incarceration has the right to counsel. See id. at 32.
Rogers claims that Turner's proposition is incorrect, because the Due Process clause does not create a presumptive right to counsel in civil cases where the defendant may be incarcerated. See Brief for Respondents at 42–43. Rogers explains that the Court in Gagnon v. Scarpelli, 411 U.S. 778 (1973), held that minors do not have the right to counsel when facing commitment to a mental hospital. See id. at 43–44. The Court found a "presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty." See id. at 44, quoting Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31 (1981). Rogers asserts that Lassiter does not create a presumption of a right of counsel; potential incarceration is not in itself sufficient to create an exception to the general rule that there is no right to counsel in civil cases. See id. at 44–45.
Rogers argues that due process does not require counsel for a defendant in a child-support civil-contempt hearing. See Brief for Respondents at 51. In order to provide a complete defense, the defendant need only show that he cannot pay by bringing in tax forms, or employment or doctors' letters. See id. at 52. Rogers claims that defendants do not need counsel because there are relaxed procedural and evidentiary rules, no juries, and technical issues involving the statute of limitations or res judicata rarely arise. See id. at 52–53. Rogers declares that if the defendant in a child support proceeding did have a right to counsel then the proceedings would become unbalanced; the child-support-seeking plaintiff would not have a corresponding right to counsel and likely could not afford to hire a private attorney. See id. at 59–60.
The United States agrees with Rogers that Due Process does not require appointed counsel for defendants in child support civil contempt hearings where the defendant could be imprisoned. See Brief for Amicus Curiae United States in Support of Reversal at 12. Nevertheless, the United States argues for reversal because the judge in this case did not provide the defendant with a way to prove that he could not pay the support, thereby violating due process. See id. at 11–12. Inability to pay is a complete defense to a civil contempt charge for non-payment of child support. See id. at 17–18. The United States contends that due process may be satisfied if the family court implements procedures, such as requiring financial forms, affidavits, or preliminary assessments of the defendant's ability to pay. See id. at 16, 24–25.
Turner argues that the Supreme Court has jurisdiction to decide the case. See Brief for Petitioner at 18. The Supreme Court has jurisdiction to review final decisions of the highest state courts that are actual cases or controversies. See id. Turner contends that the Court does not have the authority to hear cases that are moot, and that a case is moot when "the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” See id. at 20 citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). There is an exception, as stated in FEC v. Wisconsin Right to Life, Inc., that an otherwise moot case may be heard where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” 551 U.S. 449, 462 (2007); see id. at 20. Turner asserts that his case fits the exception because the civil contempt orders are short in duration. See id. at 21. Since South Carolina requires the clerk of family court to initiate contempt proceedings when any child support account becomes past due, Turner claims it is virtually certain that he will face another contempt hearing. See id. at 24–26.
Rogers asserts that the Court does not have jurisdiction because the case is moot. See Brief for Respondent at 20. Rogers argues that an appeal usually is moot once the defendant's sentence is served, and that Turner's sentence ended two years ago. See id. at 20–21. Rogers argues that this appeal also does not fit the exception to the case or controversy requirement. See id. at 21–22. She notes that any defendant in a civil contempt case may seek a stay postponing imprisonment until the case is appealed, thereby preserving the controversy through the appeals process. See id. at 23. Since Turner did not seek a stay, Rogers argues that the case became moot upon the completion of Turner's sentence. See id. at 23–25. The case is also not evading review because, according to Rogers, another litigant whose case is not moot may raise the issue to the Supreme Court. See id. at 25–26. Rogers argues that it is not clear whether Turner himself will ever face another civil contempt hearing without a lawyer because it is only speculation to assert that Turner will violate the child-support order in the future. See id. at 27.
The Supreme Court’s decision will determine whether indigent individuals facing civil contempt sanctions are entitled to appointed counsel. If the Court decides that individuals are entitled to representation in this situation, noncustodial parents might have a better opportunity to defend an alleged inability to comply with a court order. However, affirming an individual’s right to counsel might mean that courts should provide similar safeguards in other civil contexts in which liberty rights are at stake, thereby increasing costs to the states.
Edited by: Kate Hajjar
· Cornell Journal of Law and Public Policy, Elizabeth Patterson: Civil Contempt and the Indigent Child Support Obligor: the Silent Return of Debtor's Prison
· Findlaw: Civil Contempt of Court
· Department of Health and Human Services: Handbook on Child Support Enforcement