Turner's Trumpet: Child Support and the Right to Counsel

Questions arise about due process protection and the provision of counsel in a "civil contempt" case


The most compelling opinion of the day at the United States Supreme Court Monday wasn't necessarily the sweeping victory the justices handed to Walmart or the unsurprisingly unanimous defeat they handed to global warming foes in Connecticut and elsewhere. It may have been, instead, a case styled Turner v. Rogers, about the right to counsel in civil contempt cases. Justice Stephen Breyer wrote the opinion but it was Justice Anthony Kennedy's presence in the 5-4 majority which probably sealed the deal.

Think Gideon v. Wainwright meets the Lifetime Channel

The "Turner" in the caption is Michael Turner, a persistent deadbeat dad, who has been to jail at least twice for failing to meet his child support obligation. The first time he failed to pay the $51.73 per week that he owed, he was held in contempt of court and jailed for six months. The second time it happened, a judge sentenced him to 12 months in prison. All the while, the courts of South Carolina consistently held that Turner had no right to have a court-appointed lawyer represent him at the civil contempt hearings over his support obligations-- even though Turner's "liberty" was on the line.

Think Gideon v. Wainwright meets the Lifetime Channel. Under Sixth Amendment precedent, the Constitution guarantees a defendant the right to counsel in criminal cases and in "criminal contempt" cases. But there is no such precedent over "civil contempt" cases. What's the difference between the two types of "contempt" cases? Justice Breyer tells us: "A court may not impose punishment 'in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order.'"

Unwilling to simply extend Sixth Amendment protections for civil contempt cases, the Court in Turner instead mostly poked around the question of whether the due process clause of the Constitution might guarantee Turner the right to a lawyer. But the Sixth Amendment actually mentions the right to counsel--a point Justice Clarence Thomas raised with force in his dissent--while the due process clause does not. If the Sixth Amendment doesn't help Turner, Justice Thomas argued, why should the due process clause?

Why, indeed. On behalf of the Court's majority, Justice Breyer ruled that Turner got a raw deal the second time he was sent to prison for failing to pay his child support. The justice wrote:

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant "finding" section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner's incarceration violated the Due Process Clause.

That's the good news for Turner, The bad news is that, at the same time, the Court refused to recognize a general due process right to counsel at such proceedings. Justice Breyer wrote:

We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, 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).

Which means that there will be plenty of other people in Turner's position, men and women both, who will be sent to prison for up to a year after a legal proceeding in which they were not given the opportunity to confer with a lawyer. You can call it "civil contempt" instead of "criminal contempt," as South Carolina and many other states do. You can call it whatever you like, actually, to skirt the letter of Sixth Amendment precedent. But no matter what the proceeding is called, the defendant still faces serious prison time if he doesn't comply. Didn't the fabled Gideon opinion, handed down nearly 50 years ago now, mandate counsel in those circumstances?

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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