Some Optimism after Turner
posted by Marty Guggenheim
Long gone are the days when we can expect too much from the Court. Pining for the good-old-days is an understandable, but futile, endeavor. In light of this, let me be the optimist here and stress some valuable things to come out of Turner. I think there are four very positive things to say about the decision or the outcome.
First, the Court went out of its way to suggest that counsel would be constitutionally required if the government were the party seeking the contempt order. The strongest reasons the Court gave for refusing to hold there is a right to court-assigned counsel in these cases set up very nicely the right to counsel when the other party is represented. The way the Court decided the case makes it very likely that lower courts will require court-assigned counsel for indigents at risk of being imprisoned for civil contempt whenever the party seeking the contempt is represented by counsel. Since that will always be the case when the government is the petitioner, I believe the case will come to stand for this new rule. There’s virtually nothing left to say against the right to counsel in contempt cases when the petitioner is represented. The decision was written with this in mind and I think lower courts will get the message. Even if the Court doesn’t revisit this issue for a long time and hold what it made implicit this time, I think Turner will come to stand for an important new right to counsel for indigents.
Second, there is an activist quality to the decision. The four conservatives chided the majority for reaching out and deciding an issue neither briefed nor decided in the lower courts. They are correct. That’s exactly what happened.
Third, the decision stands in magnificent contrast with the perhaps the key precedent from the past. In Lassiter v. Dept. of Social Services, the Court ruled that even indigent parents at risk of permanently losing their parental rights do not have an automatic right to counsel. In a narrow sense, Turner technically reaffirmed Lassiter. But that would overlook a signal difference between the two cases. In Lassiter, the Court affirmed the trial court order which went against the unrepresented parent. The Court announced the rule that all cases must meet the Mathews v. Eldridge test of overall procedural fairness. But the outcome in Lassiter was just as upsetting as the rule announced that day. In Lassiter, as was made clear from a reading of the trial transcript, the trial judge revealed a vicious contempt for the indigent (and counsel-less) parent. Despite the Court pronouncing a rule that trials involving indigent parents must be fundamentally fair, the Court affirmed the result terminating Lassiter’s parental rights.
Turner gets it right this time. Not only did it hold that the Constitution protects indigent parties who are forced to appear without counsel, the Court reversed the outcome and held that the indigent father’s constitutional rights in this case were violated. This is a stunning contrast with Lassiter and reflects the liberal bloc’s commitment to do something about the rampant unfairness that passes for justice in too many of the lowest trial courts in the country.
Finally, the outcome in Turner came without any dissent on the merits. The four conservatives who dissented simply objected to the Court reaching the issue on which it decided to reverse the lower court. But no Justice disagreed with the underlying point made by the court: the Constitution requires special procedures when indigent parties appear before judges. At a minimum, judges must employ certain “alternative procedures” if they do not choose to appoint a lawyer for the indigent party. They will have to provide “clear notice” of what is the “critical question” in the case. This may simply be another of saying that judges will be required to inform the unrepresented party of what they will need to prove in order to win. Moreover, judges may have to assist the unrepresented party to prepare a defense. The Court criticized the trial court for failing to provide the father with a form “designed to elicit information about his financial circumstances.” Finally, the Constitution requires that trial judges actually make findings of fact that support the judgment of contempt.
These are not small matters. I think it very likely that intermediate appellate courts will pay closer attention to the result in Turner than to the rule that the Constitution does not require that indigent parties be given counsel in all civil contempt proceedings. The result, to reiterate, is that the Court found a violation of the Constitution. Appellate judges throughout the country now have ample tools to review outcomes in cases where a party was unrepresented by counsel. For the first time, we now know the Due Process Clause has some teeth.
June 20, 2011 at 3:47 pm
Tags: turner v. rogers
Posted in: Symposium (Turner v. Rogers)
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Responses (5)
Laura Abel - June 21, 2011 at 11:21 am
This thoughtful post will help frame the case for me and many others. As it points out, the Court reversed, demonstrating its willingness “to do something about the rampant unfairness that passess for justice in too many of the lowest trial courts.” Too bad the Court’s action won’t actually help Mr. Turner, who had completed his sentence by the time the case reached the Supreme Court.
Michael Olenick - June 21, 2011 at 12:21 pm
This is a landmark decision that I believe will have ramifications not only in family court but, arguably, in foreclosure court in state’s that have judicial foreclosures. That is because, like family court, foreclosure court is always in equity.
Somebody could argue that the right to counsel only applies when incarceration is involved — assuming the other party is represented — but the due process clause is unambiguous: “life, liberty, or property…” In foreclosures, the bank is always represented by counsel, the overwhelming majority of defendants are pro se, and — as the ACLU decisively illustrated in their recent due-process filing with its exhaustive appendix — the pro se defendants are routinely steamrolled.
It may even be more applicable in foreclosure court
James J. Brosnahan - June 21, 2011 at 12:49 pm
I am also optimistic about the Turner decision but the question is, how much did the progressives have to give up to get Kennedy’s vote? As always, Justice Kennedy is the key. As in the prison overcrowding case, there is reason to hope that he understands what is happening in the civil courts of America. Parental rights and evictions involve fundamental rights. But the court is lost in analytical fog. Future cases may be limited to criminal prosecution or jail confinement for contempt. The second troubling rationale is the complexity issue. If complexity turns out to be one of the standards, it will leave a great many litigants unrepresented, wandering in the judicial system. The most disturbing aspect is the court’s comfort with substitutes for lawyers. I see this as a federalist society success in unrelenting attacks on the legal profession for thirty five years. It is simply unacceptable to put together a synthetic substitute for legal advice, lawyers’ pleadings, lawyers’ strategies, lawyers’ counseling and lawyers’ abilities to resolve matters by negotiation.
Despite these obvious questions, it is clear the progressives are fighting for something in this opinion. They are attracted to pragmatic administration but there is hope that Kennedy and the four, presented with the right case, will do the right thing. So the decision at bottom may begin to reduce the space between law and justice.
Jim Brosnahan
Joe - June 21, 2011 at 2:46 pm
“the space between law and justice”
The ruling underlines that sometimes they need not be different things. Justice — see the Preamble to the Constitution — can be part of our law.
Bob Boruchowitz - June 22, 2011 at 11:58 pm
I agree with Marty Guggenheim that there is some optimism in this decision.
I am planning to cite it in my motion to reconsider in a Washington State Supreme Court case reversing a court of appeals decision providing counsel to a child in a truancy proceeding.
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