Fourteenth Amendment: Due Process and the Right to a Lawyer in Civil Proceedings

In Turner v. Rogers (10-10), the Court held that the Fourteenth Amendment Due Process Clause does not automatically require the provision of counsel to an indigent defendant at a civil contempt proceeding, even if the defendant faces incarceration; however, the Court also held that “alternative procedural safeguards” must be provided to ensure a fair determination of the incarceration-related question.  This case involved repeated failure by the petitioner, Michael Turner, to pay child support.  After a civil contempt hearing, Turner was found to be in willful contempt of his court-ordered obligation to pay child support, and was sentenced to 12 months in prison.  The sentencing judge made no findings about Turner’s ability to pay the accrued child support obligation, and neither Turner nor the mother of his child was represented by legal counsel at the hearing.  While serving his sentence, Turner (with the help of pro bono counsel) claimed that his Fourteenth Amendment Due Process rights had been violated through the failure to provide legal representation at his civil contempt hearing.  The South Carolina Supreme Court denied this claim, and Turner appealed.  The Supreme Court granted certiorari to resolve differences among state courts as to whether there is a right to counsel in civil contempt proceedings enforcing child support orders.

Writing for the majority, Justice Breyer first addressed the question of “mootness.”  He reasoned that Michael Turner’s case should not be deemed “moot” (i.e., no longer justiciable due to the lack of a live, continuing controversy), despite the fact that his jail sentence had already been served, because there was insufficient time to fully adjudicate the case before the sentence ended, and because there was a reasonable likelihood that Turner could be subjected to the same penalty again.  Proceeding to the merits, the Court determined that states are not obligated under Fourteenth Amendment Due Process principles to provide counsel in civil contempt cases carrying the potential for incarceration, so long as the opposing party is unrepresented by counsel and the state provides adequate alternative procedural safeguards, including notice to the defendant that his ability to pay child support obligations is a critical issue in the proceeding.  In applying this analysis, the Court concluded that, while petitioner Turner was not entitled to court appointed counsel, his Due Process rights had nevertheless been violated because the South Carolina family court had failed to apply alternative procedural safeguards, including safeguards that would have involved some assessment of Turner's ability to pay the child support owed. 

Justice Thomas authored the dissent – joined by Chief Justice Roberts and Justices Scalia and Alito – which asserted that the majority had imprudently gone beyond the arguments of the parties (at the invitation of the United States as amicus curiae) in holding that Fourteenth Amendment Due Process requires alternative procedural safeguards in civil contempt cases involving the potential for incarceration.  In a portion of the opinion joined only by Justice Scalia, Justice Thomas hinted that an originalist understanding of the Constitution undermines even the established principle that legal representation must be provided in criminal cases.