Contempt After
Turner
Ethan C. McKinney
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Turner v. Rogers
Factual History
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131 S. CT. 2507 (2011)
Turner Ordered to Pay Support 2003
5 previous contempt findings.
2008 Contempt and 12 months in jail.
This is the contempt finding and sentence
that led to the appeal.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Turner v. Rogers
The Contempt Hearing
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Mr. Turner was Unrepresented.
Title IV-D Attorney was not Involved.
Purge was the entire arrearage amount.
No Findings of Turner’s ability to pay the
arrearage amount.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Turner v. Rogers
Due Process Argument
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Mr. Turner argued that the Due Process
Clause of the 14th Amendment required the
state to provide him with counsel in a civil
contempt hearing that could lead to
incarceration.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Holding
Under these circumstances the State
does not necessarily need to provide
counsel to an unrepresented person if
the State has in place “alternative
procedures that assure a fundamentally
fair determination of the critical
incarceration-related question, whether
the supporting parent is able to comply
with the court order.”
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Alternative Procedures?
The Court left unresolved the question of
what due process protections may be
required where:
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The other parent or the State is
represented by an Attorney;
The unpaid arrears are owed to the state
under an assignment of support rights; or
The case is unusually complex.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Adequate Safeguards
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Notice that “ability to pay” is a critical issue.
Providing a form or the equivalent that can
be used to elicit relevant financial
information.
Opportunity to respond to statements or
questions about his/her financial status.
An express finding by the court that the noncustodial parent has the ability to pay based
upon the individual facts of the case.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Minimum Due Process
Used together the previous four
procedures would have been sufficient to
meet minimum due process under the
circumstances where no party is
represented by an attorney.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Castanias v. Lipton
2012 US Dist. Lexis 55569 (Apr. 2012)
Ohio (Southern District of Ohio)
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Child Support Agency action.
NCP filed a § 1983 Claim.
NCP relied on Turner to allege he was
improperly denied counsel.
Court restates that Turner does not
automatically require counsel.
NCP’s case was dismissed with prejudice.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Liming v. Damos
979 N.E. 2d 297 (Oct. 2012) Supreme
Court of Ohio
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Good discussion of Civil v. Criminal
Contempt.
Child Support Agency Filed Contempt.
NCP had attorney for contempt finding.
NCP tried to argue that hearing on Motion to
impose sentence required appointed
counsel.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Liming v. Damos, Cntd
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Motion to Impose Sentence and Purge
hearing are part of the original contempt.
No attorney necessary as this is merely to
see if Liming did what was ordered, all
contempt issues already decided.
Review of Turner: Due process does not
require appointment of attorney here.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Young v. Young
736 S.E. 2d 538 (Dec. 2012) Court of
Appeals of N.C.
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No State Action
Great Findings of Fact by this Judge.
Review of Turner: Not automatically entitled
to counsel.
Here NCP was not indigent, so he failed the
first test of needing appointed counsel.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Deal v. Miller
739 S.E. 2d 487 (Mar. 2013) Court of
Appeals of Georgia
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Class Action vs. Governor Deal and other State
officials. (includes State IV-D Director and
Managers of County Child Support Offices.
State Appealed Order certifying a class of indigent
parents led by five named plaintiffs.
The parties alleged they were injured by being
unconstitutionally denied counsel.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Deal v. Miller et al, Cntd.
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The parties never requested counsel or appealed
their contempt findings on those grounds.
Turner: Does not require counsel in every case.
Court does not have a duty to inquire if someone
would like counsel.
No policy of denying counsel was shown.
As each case would be highly individualized, each
member needs their own case, hence no class and
the trial court’s certification of the class was
reversed.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Prosecutor’s Response
OCSE AT 12-01: Turner Safeguards
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Case Screening
 In our office we were already conducing
Administrative Review Hearings. These were
created out of a mixture of limited court time and
a desire to bring better Contempt proceedings
before the Court.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Administrative Review Hearings
 We created these prior to Turner to
address two main concerns:
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First: Limited Court Time for Contempt
Hearings had us booking court 3-6 months
out.
Second: We speculated some cases may
pay without need of Contempt if we let them
know we were considering that step.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Administrative Hearings
After Turner we began using Admin.
Hearings as our “case screening.”
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All new cases have an Admin before we do
contempt.
Any case with history of compliance has
Admin before Contempt.
Any case where we know there may be
barriers to payment has an admin before
contempt.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Administrative Hearing
Deputy Prosecuting Attorney’s Conduct
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Advise NCP that this is a voluntary process,
we are attorney’s for State and they can
consult with an attorney if they’d like.
Some want attorney, vast majority
comfortable talking with us.
Questions about ability to pay, work history,
criminal history, other cases, other court
ordered obligations, etc.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Benefit of Admin Hearing
Information Gathering:
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SSD/SSI Issues
New Employment for IWO
Felony Issues barring employment
Other court ordered obligations, other
children, probation restitution, etc.
Other barriers to employment, education,
health, home life, etc.
Refer to alternative procedures.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Alternative Procedures
WorkOne (Unemployment Office: Child
Support Improvement Program)
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A program to assist in job search.
Resume Building
Online Job Search
Job Skills/Training
GED Classes
Interview Skills
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Alternative Procedures
Goodwill 2nd Chance
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Specific Program for Felons
Intensive job search assistance and referrals
to employers willing to hire felons.
No Court Enforcement while in the program.
Goodwill Work Experience to build work
history and pay support.
Modify Support Orders based on income.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Job Searches
Job Search Report
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30 Job Spreadsheet
Give NCP a time period to complete it or
report new employment.
Job Leads
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Membership on a business network of
employers willing to hire felons.
Career Fairs and other Leads
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Contempt
After Admin process we are better able
to know which cases are likely to pay or
not going to pay and which cases are not
paying for a valid reason.
Cases that are still not paying and have
no justification for it, we file Contempt
Proceedings.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Indiana History
Indiana has required appointment of
counsel for indigent non-payor since
1987. Marriage of Stariha 509 N.E. 2d
1117. “Therefore, we hold that where the
possibility exists that an indigent defendant
may be incarcerated for contempt for failure to
pay child support he or she has a right to
appointed counsel and to be informed of that
right prior to commencement of the contempt
hearing.”
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Indiana History
This proposition was reaffirmed in two
subsequent cases over the years.
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Branum v. State, 822 N.E. 2d 1102 (Ind.
App. 2005. “This court has observed that "'it is
crystal clear that a person may not be incarcerated
by the state without first being advised of his
constitutional right to counsel, and, if indigent,
without having counsel appointed to represent him,
whether the contempt proceedings are initiated by a
private person or the state.”
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Marks v. Tolliver Warning
Marks v. Tolliver, 839 N.E. 2d 703 (Ind.
App. 2005)
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Prior to this case not all the Courts in St.
Joseph County were following the rule. Our
Probate Court that conducts over 85% of all
our support related hearings was doing it
correctly.
After this case came out, all the Courts
began giving what they commonly called a
Marks v. Tolliver warning.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Standard Proceeding
Court has “rights video” in lobby.
Magistrate advises NCP of the nature of
hearing and right to have attorney,
including appointment of the PD.
Specific PD days so hearings can be
continued for PD.
Brief inquiry of indigence before
appointing PD.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Ability to Pay
DPA presents Court with the information:
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Support Order, Arrears Amount, period of
non-payment.
DPA then inquires directly of NCP about:
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Ability to Pay, Why Not Paying.
Work History, Job Search.
What is the plan for making payments
DPA may use new hire info, new vehicle
info, or any other info we have.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
NCP’s Response
Payor is able to state his own case or
have PD do that for him.
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PD may also inquire to illustrate reasons for
non-payment that may not be contemptuous.
If Custodial parent is there, Court allows
them a statement also.
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These may elicit more justification for
contempt or may elicit reasons against
contempt.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Court’s Order
Our Contempt Orders, state clearly that
the obligor has:
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Willfully disobeyed the order by;
Not paying when able to do so and;
The non-payment is without justification.
Sentences can be up to 6 months per
contempt finding, can run consecutive.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Purge Bonds
Our office argues for “reasonable purge
bonds”.
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Obligor more likely to pay bond and thus
sentence be coercive if bond is something
he can pay.
Practice of reducing bond if obligor offers to
pay lesser amount to get obligor out of jail
and obtain payment for children.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina
Contact Information
Ethan C. McKinney, DPA
Child Support Director
St. Joseph County Prosecuting Attorney’s Office
227 W Jefferson Blvd
South Bend, IN 46601
emckinney@stjoepros.org
574-235-5023 this is my direct line but I prefer
email. I always check my email whether at
work or not.
ERICSA 51st Annual Training Conference & Exposition ▪ May 18 – 22 ▪ Sheraton Greensboro ▪ Greensboro, North Carolina