SUPPLEMENTAL PAGE FOR CONTEMPT PAPER
DUE PROCESS AND THE COLLECTION OF CHILD SUPPORT THROUGH
THE POWER OF CONTEMPT
This topic arises out of the United States Supreme Court’s decision of Turner v.
Rogers, ET Al. 564 U.S.____(2011), No. 10-10, June 20, 2011 (subject to revision before
publication). The Turner case (a five to four decision) affirmed the proposition of the
appointment of counsel not being required under the Sixth Amendment in civil contempt
but under the Due Process Clause added a caveat that the State must have in place
alternative procedures that assure a fundamentally fair determination of the critical
incarceration related question which is, whether the supporting parent is able to comply
with the support order.
The Turner Case majority stated it must “ decide whether the Due Process Clause
grants an indigent defendant, such as Turner, a right to state-appointed counsel at a civil
contempt proceeding, which may lead to his incarceration.”
The Turner Court considered an indigent's right to paid counsel when a contempt
proceeding is used to ensure the custodial parent receives support payments or the
government receives reimbursement but made no ruling relevant to a government case.
(The Court seems to be inferring the right to counsel may exist when the government is
pursuing the contempt and is represented by an attorney.)
This case held: 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:
adequate notice of the importance of ability to pay, fair opportunity to present, and to
dispute, relevant information, and court findings.
The Court has made clear (in a case not involving the right to counsel) 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. Hicks v. Feiock, 485 U.S.
624, 637-641(1988) (State may place the burden of proving inability to pay on the
defendant).
The Turner Court (citing Lassiter v. Department of Social Servs. Of Durham Cty.
,452 U. S. 18 (1981)) recognized the preeminent generalization which is an indigent’s
right to appointed counsel in civil cases “exist[s] only where the litigant may lose his
physical liberty if he loses the litigation” and added that right does not exist “in all such
cases.”
The Turner Court considered an indigent's right to paid counsel at such a contempt
proceeding (using contempt to ensure the custodial parent receives support payments or
the government receives reimbursement).
It appears the child support collection process must include an explicit notice to the
alleged contemnor that his ability to have paid or to pay will be the crucial issue. The
ability to comply has always been a key issue. The burden of showing the inability to
have complied does not appear to have been altered. Clear notice of the importance of
that issue is now required! A means of gathering relevant financial information (perhaps
a form) also seems to be required (of course the usual due process rights such as notice
and the right to be heard apply. (See footnote 46.) The Court must in its’ orders clearly
address the issue of ability or inability of the contemnor to have complied.
This case does not directly alter what has been stated in this material but it expands
upon the due process issue of representation and in so doing limits the assertion that a
defendant in a civil contempt case does not have a right to an attorney.
However, certain excerpts from the case give rise to unanswered questions.
The Turner Court expressly stated it did not address cases where the State is
collecting reimbursement of support owed to the State or unusually complex cases. Given
the emphasis placed on the symmetry of representation (both or neither being
represented) and the reference to complexity being such that one can fairly be represented
only by a trained advocate, one is inclined to conclude counsel for indigents’ in such
cases is going to be required. Therefore in such cases a violation of due process may exist
and might result in a reversal if appealed. This conclusion is reinforced by the following
language: the Due Process 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.
As an aside, in defense of our Supreme Court the dissenting opinion in the Turner
Court makes it clear the only issue presented our Court was the application of the Sixth
Amendment. As such the minority would affirm. The language and reasoning of the
minority opinion is a great example of logic and the application of accepted appellate
principles. The logic of not allowing a general provision (here meaning the Due Process
Clause of the Fourteenth Amendment) to render a specific one (here the Sixth
Amendment) superfluous seems compelling. It would solve the appealed issue without
unnecessarily creating new and unanswered issues.
THE PAPER WAS PRINTED JUST BEFORE THE TURNER CASE. THE SOUTH
CAROLINA SUPREME COURT ISSUED AN ADMINISTRATIVE ORDER AND
FORMS SUBSEQUENT TO THAT CASE. IT ALSO RENDERED AN OPINION ON
CONTEMPT SUBSEQUENT TO THE PRINTING. THE COMPUTER DISC
REFERENCES THOSE NEW CASES.