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U.S. Supreme Court Holds Civil Contemptor Facing Incarceration Requires Procedural Safeguards Absent Counsel

The U.S. Supreme Court held on June 20, 2011 that counsel need not be provided to a person facing civil contempt for failure to pay child support so long as 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 support order.”

A South Carolina family court ordered Michael D. Turner to pay $51.73 weekly to Rebecca Rogers to help support their child. Turner repeatedly failed to do so, and was held in contempt five times as a result. For the first four contempt findings he was sentenced to 90 days in jail; of those he avoided jail twice by paying, and only spent a few days behind bars the other two times.

The fifth time he was found in contempt Turner served six months in jail, which put him in arrears of $5,728.76 on his child support obligations. After his release the family court clerk issued a new “show cause” order against him. At a hearing during which neither Turner nor Rogers had counsel, the court again found Turner in contempt and imposed a 12-month sentence.

The court did not make a finding as to his ability to pay and did not indicate on the contempt order form whether he was able to make support payments. Turner obtained pro bono counsel, who argued that he was entitled to an attorney at the contempt hearing. The South Carolina Supreme Court rejected his claim and the U.S. Supreme Court granted certiorari. [See: PLN, July 2011, p.40; May 2011, p.22].

The Supreme Court first held that although Turner had completed his sentence, the case was not moot because it was “capable of repetition” while “evading review.” Specifically, the prison sentence that Turner received was “too short to be fully litigated” and there was a reasonable likelihood that he would again be “subjected to the same action” because he had regularly failed to make child support payments.

The Court noted its precedents provided no definitive answer as to whether the Due Process Clause grants an indigent defendant a right to state-appointed counsel in a civil contempt proceeding that may lead to incarceration. While such a right attaches to criminal cases, “the Sixth Amendment does not govern civil cases.” Civil contempt seeks to “coerce the defendant to do” what a court has already ordered, and once a civil contemptor complies “he is purged of the contempt and is free.”

Even in cases where a person faces incarceration, the Fourteenth Amendment’s Due Process Clause does not automatically require that counsel be provided to an indigent noncustodial parent who is subject to a child support order. This is especially true when the opposing parent is unrepresented by counsel and the state provides alternative procedural safeguards.

Although an attorney is not always required in civil contempt proceedings, a set of “substitute procedural safeguards” is necessary to significantly reduce the risk of an erroneous deprivation of liberty. Such safeguards include “(1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for [the defendant] to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.”

The Supreme Court’s decision did not address civil contempt proceedings where the underlying support payment is owed to the state, or the question of what due process is required in an unusually complex case in which a defendant “can fairly be represented by a trained advocate.”

Turner’s incarceration was found to violate due process. The Court noted that he had “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.”

The state court ruling was therefore vacated and the case remanded. Justices Thomas and Scalia filed dissenting opinions, in which Justices Roberts and Alito joined in part. See: Turner v Rogers, 131 S.Ct. 2507 (2011).

Part of the ongoing process that criminalizes poverty is the imposition of onerous and unpayable child support burdens on the poor which further increases the impact of mass imprisonment. Interestingly, in researching this article, there is no central source of statistics on how many people are imprisoned on a given day for failing to pay child support.

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Related legal case

Turner v Rogers