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No right to counsel for civil contempt

By: David Ziemer, [email protected]//June 21, 2011//

No right to counsel for civil contempt

By: David Ziemer, [email protected]//June 21, 2011//

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Indigent defendants facing incarceration for civil contempt do not have an absolute right to appointed counsel.

Nevertheless, the U.S. Supreme Court on June 20 vacated a contempt order, because the defendant received neither an attorney, nor any alternative that would have sufficiently protected his rights.

In 2003, a South Carolina family court ordered Michael Turner to pay child support to Rebecca Rogers. Turner was found in contempt and jailed on various occasions in the ensuing years for failure pay support.

In 2008, however, after receiving a 12-month sentence, he appealed, arguing that he was denied the right to counsel. The South Carolina Supreme Court rejected his claim and the U.S. Supreme Court granted review.

The court unanimously agreed that there is no automatic right to counsel in civil contempt cases. But the majority opinion by Justice Stephen Breyer concluded that there is a right in some cases.

The majority acknowledged that it has recognized a right to appointed counsel in civil cases under the Fourteenth Amendment’s Due Process Clause in other contexts: juvenile delinquency proceedings that could lead to incarceration; transfer to a state hospital for the mentally ill; and loss of parental rights.

But it has also denied it in other cases, such as revocation of probation.

Here, the court concluded civil contempt does not automatically trigger the right to appointed counsel.

Although the possible loss of liberty weighs strongly in favor of the right to counsel, the court found that interest outweighed by three factors.

First, the critical question is usually ability to pay, a straightforward question on which a defendant usually must present evidence on his own anyway, just to obtain appointment of counsel.

Second, the defendant’s opponent is frequently not the government, but the custodial parent, who may also be unrepresented by counsel. The court explained, “A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would ‘alter significantly the nature of the proceeding.’”

Third, the court found that there are alternative procedural safeguards that can reduce the risk of erroneous deprivation of liberty.

The court thus issued the following holding: “that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).

In dicta, however, the court suggested that if the State is the party pursuing contempt, the defendant likely would be entitled to counsel: “We do not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody. … The government is likely to have counsel or some other competent representative. (‘[T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, WHEREIN THE PROSECUTION IS PRESENTED BY EXPERIENCED AND LEARNED COUNSEL (emphasis added by court; cites omitted).

Turning to Turner’s case, the court found that he never received either counsel, or the procedural substitutes, and thus held that his incarceration violated the Due Process Clause.

Justice Thomas dissented, concluding that there can never be a right to counsel in civil cases under the Due Process Clause, because such a right would render the Sixth Amendment right to appointed counsel in criminal cases superfluous.

Thomas wrote, “The fact that one constitutional provision expressly provides a right to appointed counsel in specific circumstances indicates that the Constitution does not also sub silentio provide that right far more broadly in another, more general, provision.”

Analysis

The opinion is inconsistent with Wisconsin case law addressing the issue.

In Ferris v. State ex rel. Maass, 75 Wis.2d 542, 249 N.W.2d 789, 791 (1977), the Wisconsin Supreme Court held that when a person’s liberty is threatened through civil contempt proceedings, he has the right to appointed counsel if he is indigent.

Subsequent cases reaffirm that right. Brotzman v. Brotzman, 91 Wis.2d 335 (1979); State v. Pultz, 206 Wis.2d 112, 556 N.W.2d 708 (1996).

Nevertheless, the opinion will not change current procedures in Wisconsin.

After the Wisconsin Supreme Court issued its opinion in Ferris, the Wisconsin legislature codified the opinion in sec. 967.06, which provides for appointment of counsel to indigents facing any civil commitment proceeding.

However, that statute is limited by sec. 977.05(6)(b)(1), which provides that the state public defender may not appoint counsel for a person subject to contempt of court proceedings for failure to pay child or family support, unless the action is brought by a government agency, rather than an individual.

In accordance with the statute, State Public Defender Kelli Thompson said the SPD does not appoint counsel when the petitioner seeking a contempt finding is the other parent.

The SPD’s current practice is therefore consistent with the U.S. Supreme Court’s dicta regarding civil contempt cases brought by the State

As a result, Thompson said, the opinion will not change anything in Wisconsin.

“The opinion is in line with what Wisconsin already does in distinguishing between actions brought by the government and private parties,” she said.

What the Court Held

Case: Turner v. Rogers, No. 10-10

Issue: Is an indigent defendant facing jail for civil contempt entitled to the appointment of counsel?

Holding: No. Other safeguards are available to protect the defendant’s liberty.

David Ziemer can be reached at [email protected].

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