The Better Chancery Practice Blog

By Ben McMurtray

Yesterday the United States Supreme Court handed down its decision in the case of Turner v. Rogers. The question before the court was whether a respondent in a civil contempt proceeding, namely someone who was being threatened with jail time for failure to pay child support, has a right to have counsel provided to him.  The Court 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).”  The Court went on to hold that “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. . . .”

The practical effect of this ruling has actually very little to do with the right to counsel.  Instead, the focus of the courts and attorneys should be on the “alternative procedural safeguards” mentioned by the Court.  The Supreme Court identified four such safeguards in its opinion, which, if employed together, can “significantly reduce the risk of an erroneous deprivation of liberty” and therefore negate the need to appoint counsel to an indigent civil defendant.  These safeguards are:

1. Notice to the Defendant that his “ability to pay” (the child support) is a critical issue in the contempt proceeding;
2. The use of a form (or the equivalent) to elicit relevant financial information;
3. An opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form);
4. An express finding by the court that the defendant has the ability to pay (before finding him in contempt).

This list is not inclusive of all possible safeguards that a state could employ.  In fact, the Court stated that past cases “suggest . . . that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient.”

Turner, though, is quite limited in its scope.  The Court does not address several potential situations in this ruling, so the issue of whether counsel should be provided to indigent civil defendants is far from dead.  The Court did not say whether counsel should be provided when the party seeking the child support is represented by an attorney.  Instead, it was quite careful to limit the opinion to cases where the person seeking the child support was also represented pro se.  Furthermore, the Court explicitly held that this opinion does “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.”   Also, the Court did not address what due process requires in an “unusually complex” case where a defendant “can fairly be represented only by a trained advocate.”  In each of these instances, the holding suggests that the Court would be far more likely to hold that an attorney must be provided to an indigent civil defendant if the other side is represented by counsel.

So how does Turner v. Rogers affect one’s practice?  When a defendant is served with process in a child support action, just include something telling him that his ability to pay is an issue at the hearing.  Go ahead and attach some kind of a financial disclosure form too so that the court has all the information it needs to determine if the defendant is able to pay.  Make sure the defendant has a chance to talk about his financial statement and any testimony deriving therefrom during his hearing.  Finally if the court finds him in contempt, ensure that the judge makes a finding that the defendant has the ability to pay.

[Ben McMurtray is an Ole Miss law student who served as an intern in the 12th District this summer. His internship has involved learning about the inner workings of the courts, how lawyers operate out here in the real world, and how different judges handle things. He has observed trials, docket calls, motion hearings, chamber conferences and probate matters in Lauderdale and Clarke Counties, and he has sat in with Judge Clark in Scott County and Judge Fenwick in Neshoba. He even sat at defense counsel’s table in a rape trial in Lauderdale Circuit in which the defendant was acquitted. He observed an adjudicatory hearing in Lauderdale Youth Court. He has helped inventory the probate docket in Clarke County. This is his last week, and we will miss him when he is gone, but we wish him the best in the rest of law school and his legal career.]