The Supreme Court has decided Turner v. Rogers, the case dealing with what procedures are required in child support civil contempt cases, not brought by the state, in which a non-payer is at risk of incarceration.
Opinion by Justice Breyer (5-4), with Justice Kennedy joining the majority. http://www.supremecourt.gov/opinions/10pdf/10-10.pdf.
It turns out to be a very important decision for self-represented litigants and our work.
The Court basically takes the position that reversal is required, not because there is a categorical right to counsel, but because the trial court failed to follow available procedures to establish whether the non-paying father had a current ability to pay.
Here are the major highlights of the majority Opinion:
• In determining whether there is a right to paid counsel at a civil contempt hearing, the Court applies the Mathews v. Eldridge factors of private interest impacted, risk of erroneous deprivation, and countervailing interest in not providing additional protections. (Slip Opinion at 11.)
• Arguments AGAINST need for counsel in all cases are: (1) Ability to pay is like indigence in that it is something that can often be determined before decision as to whether counsel can be provided; (2) the opposing side is NOT the state, and often there is no opposing counsel, and creating a right to counsel would “create an asymmetry of representation” increasing risk of unfair decisions; (3) as pointed out by the Solicitor General, there are “available at set of ‘substitute procedural safeguards’ quoting Mathews. (Slip Opinion at 13-14.)
• Importantly for the decision: “Those 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; (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); and (4) an express finding by the court that the defendant has the ability to pay.” (Slip Opinion at 14). Citing to Solicitor General Brief and oral argument.
• The Court is careful to limit its holding to cases in which the opposing party is not the state. (Slip Opinion at 14.)
• Also: “Neither do we address what due process requires in an unusually complex case where a defendant ‘can fairly be represented only by a trained advocate.'” Quoting Gagnon. (Slip Opinion at 16.)
• Dissent, per Justice Thomas, argues, inter alia, that the procedures suggested by the Solicitor General are not properly before the court, and so “[a]lthough I think that the majority’s analytical framework does not account for the interests that children and mothers have in effective and flexible methods to secure payment, I do not pass on the wisdom of the majority’s preferred procedures. (Slip Opinion [dissent] at 12.)
