Archive for the ‘Symposium (Turner v. Rogers)’ Category
posted by Richard Zorza
The Turner Symposium is over. One week and 18 posts later, we are very proud of the ideas and insights that have been shared here. Thank you to all who posted for a spectacularly worthwhile and open conversation about Turner v. Rogers (the full list of participants is available after the leap).
While the Court found no categorical civil right to counsel it usefully clarified the obligations of trial court judges and courts toward unrepresented litigants, particularly those facing the risk of incarceration. Our panelists identified a range of possible positive jurisprudential and access-to-court impacts for Turner over time:
- If trial courts deliver on their new obligation to assure “fundamental fairness” through “procedural safeguards” (and not just in incarceration cases) we will look back at Turner as having opened up the courts, and as having shifted from the state to the courts the responsibility to provide access. If so, the case will indeed be a transformative landmark.
- If Access to Justice Commissions are empowered by Turner and state leadership to expand their role in reviewing and changing the accessibility of the system as a whole, then the case will be seen as an institutional game changer.
- If the case prompts national leadership within the courts and within the bar to develop national strategies for forms, judicial education and Justice Index type benchmarking, this too will have long term transformative impacts.
- If the Supreme Court later finds categorical rights to counsel for litigants in cases with governmental opponents, lawyers on the other side, or complications beyond civil contempt, Turner may be seen as laying the crucial foundation for those rights.
- If categorical rights to counsel resonate with more state courts and legislatures, Turner’s denial of an “automatic” federal right may be seen as largely beside the point.
- If we identify “safeguards” that work, and how best to use them, Turner may be seen as having prompted the research and analysis that assured “fundamental fairness.”
- If we figure out which litigants and cases need counsel, and which can be heard with alternatives, Turner may be seen as having made that progress possible too.
- If we loosen unauthorized practice laws, Turner’s reliance on “complexity” may be seen as having made the absoluteness of those laws impossible to justify whenever counsel is denied.
Of course, our panelists have seen darker scenarios too: the risks that “safeguards” in fact won’t mean much, and that civil right to counsel claims will find new barriers in Turner. These are the dangers.
We can’t control today what the Court did last week, but the Turner Symposium prompted deeper thinking in a shorter period of time on a broader range of issues than many of us could have imagined.
As to what will actually come to pass? Time will tell, but at least some of that will be up to all of us. Read the rest of this post »
posted by Jeanne Charn
What a thoughtful and provocative discussion over the past few days on the issues raised by the Turner opinion. In my thinking about this issue, I associate myself particularly with Mike Millemann and others who see opportunities in the Court’s reasoning, particularly the notion that some type of assistance is due. People in court with family disputes make up the largest single category of users of free legal asisstance, not only in the United States but in all peer nations (most with legal aid programs significantly more generous than ours). Likely, this is in part due to the on-going nature of custody, child support and related issues. The circumstances of Mr. Turner, the child’s mother and the grandparent with custody are all too familiar to those of us who have worked providing legal services. The parties in many family cases are often “repeat players” and whether poor or well above poverty (moderate to middle income) few can routinely afford traditional full service lawyers — thus the dilemma recognized by the Court of requiring counsel for the parent in Mr. Turner’s position but leaving the custodial party(ies) to reperesnt themselves. A simple approach is state provided counsel for all parties but this would impose on states costs of assistance for many who are well above typical legal aid guidelines (125% of poverty). With a mandate for counsel in every case in which a party might be confined as a result of civil contempt, cash strapped states are likely to direct existing legal aid resources, particularly those provided at the state and local level (about two-thirds of the $1.5 billion available in 2010 for civil legal services), away from other matters where counsel may be a significant game changer – e.g. mortgage foreclosure, evictions, complex consumer matters, severe domestic violence cases. Moreover full service counsel in the sea of family cases that turn on relatively straight forward fact issues (such as ability to pay child support) may be more help than is needed to aid all involved in presenting their best case to the court. Adviceand information, unbundled service, lawyer of the day assistance, help from an experienced non-lawyer are all options that might assure basic fairness and fully meet the needs of all parties involved. As Joie Moses points out all too often the underlying issue in the sea of recurrent child support matters is poverty. Her reference to specialized courts is an intriguing example of a creative approach.
Anecdotal evidence abounds that alternative approaches to providing legal help can be effective. However, we don’t have much data and almost no good quality studies to validate these non-traditional though now fairly common forms of legal advice and assistance. As Jim Baillie’s post suggests, good quality empirical data and research is needed in order to make the best match between party needs and the wide range of legal assistance now available in many states. Turner adds to the urgency for such data and research. While the Court has not mandated counsel, a fair reading of the case is that it has mandated assistance appropriate to the matter at hand. We should take up the challenge not only to continue innovation in modes of service delivery but also to undertake a serious and rigorous examination of what works best in what types of cases. With such evidence we will be able to isolate and document the need for expert lawyer assistance in some (likely many) matters while providing effective help by other means where such help “works” for all parties.
posted by Betty Torres
Legal Aid programs, courts, commissions and other access to justice partners should strive to develop effective approaches to effectuate changes prompted by Turner. The various stakeholders can use this as an opportunity to fully discuss Civil Gideon issues and the implications to low-income people who cannot obtain civil legal services. The numbers of those unable to afford services are staggering and continue to increase further stretching the resources of the courts and of legal aid programs.
A national forum to discuss Civil Gideon issues would help provide guidance to communities struggling with these issues. Ultimately, the solutions must be determined locally. Each state has its own dynamics vis a vis the access to justice community and the courts. In some states, the ATJ Commission may be able to take the lead and work on a potential framework for ways to ensure right to counsel, while in other states the leadership may need to come from the courts. Regardless of who takes the reins, there will need to be leadership by an entity/community if there will be any changes to the status quo.
Turner puts the spotlight on Civil Gideon issues both in context of “safeguards” and representation. This spotlight should remind state access to justice communities about the critical need for access to the courts by those who cannot represent themselves. Turner should remind us that the funding of legal aid in this country is completely inadequate and that very often there are important rights that are lost due to the lack of representation.
A complicated problem has no easy solutions. Clearly, the courts and legal aid programs need to be better funded to ensure people have access to the courts. Assuming that there will continue to be a lack of adequate funding, any solutions will have to be a part of a determined and strategic work by the stakeholders and, in some instances, may come from continued litigation on the issue.
posted by Norman Reimer
From the criminal defense practitioner’s standpoint, the Court’s decision betrays naïve simplicity and a breathtaking disconnect from the real world. The first of the three reasons cited against the Due Process Clause requiring the State to provide indigents with counsel in civil support contempt proceedings is that the critical issue is likely to be the defendant’s ability to pay. The Court blithely notes that the question of a defendant’s indigence “is sufficiently straightforward.” Slip Op. 13. Nothing could be further from reality.
The issue of the ability to pay is inexorably bound up in questions of intent – generally the thorniest of issues to resolve. Other bloggers, notably John Pollock and Mary Schmid Mergler, thoroughly and effectively address this issue. Criminal defense practitioners well know that the question of an individual’s ability to pay a fine or restitution is often inextricably interwoven with myriad issues that may involve medical issues, mental health issues, addiction, and an array of factual circumstances. Indeed, it is not uncommon when litigating an alleged violation of probation to rely upon fact witnesses and experts to demonstrate to the court that the failure to pay has not been willful. The guiding hand of counsel is an indispensable aid. Those who hover at the edge of abject poverty are usually the least capable of marshaling the evidence necessary to demonstrate a legitimate excuse for non-compliance.
Indeed, it was while thinking about litigating these issues on behalf of criminal clients in probation violation proceedings that I was struck by the Court’s reliance upon the Gagnon case, which held that there is no right to counsel at a probation revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778 (1973). On three occasions, just as it seemed that the Court was on the precipice of finding that a right to counsel in civil non-payment support proceedings is constitutionally required, the Court cited Gagnon. Slip Op. at 9 – 10, 12-13. The last of these cites immediately follows a paragraph that notes the important liberty interest at stake and references studies establishing the prevalence of the “ability to pay” question and that courts are often remiss in resolving that core question. These compelling factors are dismissed with a citation to Gagnon as authority for the proposition that the Due Process Clause does not always require the provision of counsel in civil proceedings where incarceration is threatened. Slip Op. 12. Indeed, the Court’s analysis in Turner closely tracks the analysis in Gagnon.
posted by Joy Moses
The Turner decision reflects the ongoing back and forth over child support enforcement efforts. Essentially, there are continuous efforts to pit the interests of men against those of women. In reality, this is a false contest with the real questions centering around poverty’s impact on families. It leaves both parents without the ability to adequately provide for their children—unfortunately, that status is not solely limited to women. Significantly for those concerned about justice, it leaves both fathers and mothers without the ability to have legal counsel in important matters tied to their freedom and needed support.
Although there is growing acceptance that pro se is here to stay, there should be some categories of cases where access to legal counsel is the norm. If the Mr. Turners of the world do not fit within that group, it is hard to imagine who would—at stake for him was a 1-year jail term. Given fairness demands, access to counsel for opposing parents is also necessary. The Supreme Court declined to require this, but there are other avenues—new state/local rules, expanding free legal services, pro bono, and unbundling. Providers must continue triage efforts, targeting those with the greatest complications and challenges for access to counsel. Mr. Turner was such a person with a history of unemployment, disability, substance abuse, and being threatened with jail on multiple occasions. In this way, we can maintain a vision for our courts that still provide justice for all, even those at the margins and who are the targets of public ire and labels like “deadbeat” which was repeatedly used by the dissent.
But we can go even a step further, more parents like Mr. Turner should end up in specialty courts like those that exist for the homeless and veterans. These courts save taxpayers the cost of jailing people who actually just need help. A fathering court could have paired Mr. Turner with rehab, employment services, and a reasonable repayment schedule in exchange for staying out of jail. In other words, it could have addressed some of the underlying poverty issues, ultimately benefiting him and his family while achieving something that more so resembles justice.
posted by Jo-Ann Wallace
The Turner decision, as others have recognized, leaves far more questions unanswered than it clarifies with regard to the right to counsel when personal liberty is at stake. As amicus in the case, The National Legal Aid & Defender Association (NLADA) argued that when the private interest at stake is someone’s personal liberty counsel should be made available to the alleged contemnor in all instances, as is currently the case in a majority of jurisdictions in the United States. Clearly, an important imperative of the response to Turner must be creative and aggressive advocacy around the areas left unanswered by the opinion, particularly in the very common situation in child support cases when the state is a party to the action.
One area of immediate concern, of course, is the preservation of the rights to counsel that currently exist in child support contempt hearings. I hope that John Pollock’s optimism in that regard proves true, but with many states facing the bleakest fiscal outlook on record, advocates must turn a keen eye to ensuring that Turner does not signal a retreat from existing rights. As states struggle to maintain even minimal funding for their court systems, this area could well be seen as an opportunity to save significant money. In fact, many states that currently provide a right to counsel in civil contempt cases for nonpayment of child support do not adequately enforce that right. In our haste to define adequate alternative safeguards to counsel in this area, we must be very careful not to erode what we already have.
Yet, I agree that Turner potentially creates a watershed moment in focusing a spotlight on how courts provide access to civil justice in this country, short of providing a right to counsel in certain cases. We have constantly been engaged in a balancing act in determining the highest and best use for the public and private lawyers available to the civil legal aid system. To the extent we can use the Turner due process analysis to ensure that courts provide a fair system for unrepresented litigants, our hopes of improving the administration of justice in this country are significantly improved. Read the rest of this post »
posted by Tina Rasnow
To impose an order re: civil contempt in a child support case the court must make a finding that the party to be held in contempt had the ability to pay child support but willfully refused. Civil contempt is not applicable for situations where the person charged with obeying a court order is unable to do so. Inability to afford legal counsel would also seem to indicate an inability to pay child support. Therefore, court appointed legal counsel based on indigence should not arise in a civil contempt re: child support case because to find the person in contempt should necessarily involve a finding of ability to pay. That being said, the divergence between what should happen, and what actually happens in many court proceedings makes the issues of due process and fundamental fairness raised in the Turner case quite real. For this reason, by recognizing that some affirmative action by the bench officer in determining ability to pay through direct questioning of the party would be needed to establish the basis for a finding of civil contempt, the majority opinion appears to encourage a more proactive fact finding role for judges where unrepresented litigants are involved. In theory this makes imminent sense, and if done well, could eliminate the need for appointed counsel while still achieving fundamental fairness. It somewhat changes the role of the bench officer from an arbiter to an inquisitor, contrary to our long established adversarial model of jurisprudence, but perhaps this change is necessary given the large volume of unrepresented litigants, particularly in family law court, the lack of resources for court appointed or pro bono counsel, and the competing demands for limited resources.
posted by Peter Edelman
The underlying facts are awful. South Carolina is not the only state to have a modern debtors’ prison. Men are being locked up, sometimes for long stints, for not paying child support. There are certainly far too many deadbeat dads in this country, and imprisoning a solvent scofflaw father, but with due process, is an acceptable way to put on the squeeze. But that’s not what’s happening. Men who simply can’t pay or have other defenses are being jailed without having had a fair chance to put forward their side of the story.
The underlying issue is poverty, of course, and poverty has a long list of terrible consequences, including the heart of how the criminal justice system works, and much more. In this case, the poverty means the man can’t pay no matter what we do to him and also can’t afford a lawyer to make the case for him. I have to wonder whether the majority (forget the other four) gets it. And these five are the good “guys.”
Okay, so they say there’s a better case for giving the defendant a lawyer when the state is the plaintiff. That helps. But it doesn’t deal with this case. Yes, there’s an imbalance when the mother is not represented but, then again, she’s not at risk of being sent to jail. To say that alternative measures would even the playing field is not to understand the world of trying to navigate the court system without a lawyer. We and can should do everything we can to make pro se representation somewhat less disastrous but, face it, it’s not the same. I have to wonder whether they get it.
So there’s an inch or two of progress here, but they could have done better. For now, anyway, it places a responsibility on all of us who work on access-to-justice issues, including access to justice commissions like the one I chair in Washington, D.C., to redouble our efforts to get more funding for lawyers and our advocacy for every possible step to ameliorate the hazards of pro se representation. But all of that is not the real way to run the railroad.
posted by Jack Londen
In August 2006, the American Bar Association House of Delegates unanimously voted:
“RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.”
One of the premises of the ABA resolution, and the current impetus toward recognition of a right to counsel in civil cases, is that not all civil cases should trigger the right. But which ones? The ABA resolution identified a sole criterion – whether basic human needs are at stake. Other selection criteria were not stated. No doubt, many proponents would like to read the resolution as a commitment to providing lawyers in every case that would determine a person’s shelter, sustenance, safety, health or child custody – and certainly involuntary detention. But the resolution can also be read as leaving the door open to the use of additional criteria that would exclude some civil matters even though these kinds of human needs and interests are involved.
Turner v. Rogers rejected the stakes of the interest involved as the sole selection criterion for invoking a due process right to counsel. All nine Justices agreed that even though the human interest in personal liberty was at stake, it was overridden by other considerations. The majority discussed three considerations: (1) the straightforwardness of the rules of decision; (2) the unrepresented status of the opposing party; and (3) the adequacy of methods other than providing appointed counsel for avoiding incorrect decisions; and the Court’s reliance on Matthews v. Eldridge, 424 U.S. 319, 335 (1976), suggests another: (4) fiscal and administrative burdens on the government if it must provide counsel at public expense.
We are, I think, beyond the point where it is feasible to deny that any considerations other than the human interest at stake are relevant as selection criteria. To the extent federal constitutional due process is the basis for the right, precedent leaves no room to deny that other criteria must be considered. The Turner majority proceeds directly from the criteria for “what process is due” in Matthews. While the first Matthews criterion, “the nature of the private interest that will be affected,” encompasses the ABA resolution’s criterion, the second Matthews factor is “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and the third is “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Id.)
There is good reason to conclude, as John Pollack says, that state courts are more promising venues than federal courts for seeking recognition of the right. That said, we should not expect states to differ with federal precedents about the relevance of the second and third Matthews criteria for assessing procedural due process claims.
The same is true, and more so, when we argue to executive officials and legislators that it would be good policy to provide publicly funded counsel in selected civil matters. There are many valid arguments that can be made that, on the merits, the additional Turner considerations do not outweigh the reasons for providing counsel in civil proceedings with important human interests at stake. But I cannot think of a persuasive argument why either a court or a legislature would accept an argument that those considerations are irrelevant.
Turner — Inplications for Civil Gideon, the Use of Unbundled Legal Services to Provide Access, and the Lawywers Practice Monopoly
posted by Michael Millemann
Turner, as several commentators have observed, is a glass that is neither wholly empty nor largely full. The majority opinion is useful in my view in organizing the vigorous national efforts, on several complementary fronts, that should and will continue to implement the constitutional right of civil litigants to access to the courts. For readers, I equate procedural due process, as implemented through the Mathews balancing test, and the access-to-court right. Here is what I take from the Majority Opinion in Turner, which I assume was written for Justice Kennedy:
Civil Gideon: In introduction, I note that this argument has been extraordinarily successful (well beyond my expectations), when made to the ABA, state legislatures, state access to justice commissions, and other policy-makers, based on logic, equity, justice, several different federal constitutional provisions and common sense. I hope the national leaders of the Civil Gideon movement will continue with it. For them, I would say that Turner deals only with a blatantly contemptuous, non-custodial parent who four times initially refused to provide for his child, then on each of these four occasions paid his arrearages immediately after he was sentenced to prison, proving that civil contempt works. On the 5th occasion, he “explained” that he was unable to pay because he “got back on dope…done meth, [and] smoked pot” after being released from prison the fourth time. Even then, in a compelling example of judicial patience, the court said: “If you’ve got a job, I’ll make you eligible for work release.” These facts lead to three thoughts: First, Turner’s was truly contemptuous conduct and based on Turner’s history, there was no dispute about the only factual issue the Court identified in the case: “Could he pay”? The answer clearly was “yes” when he had to, except when he decided the 5th time to spend his money on drugs. The majority said that the central can-he-pay issue can be, as in Turner, “sufficiently straightforward to warrant determination prior to providing a defendant with counsel.” Under this extreme set of facts, some alternative form of assistance other than counsel is what is constitutionally required. Note: Justice Breyer says that a lay neutral, e.g., a social worker, based on Vitek, might have been what was required. Second, this was a truly awful test case. Third, the justice who replaces Kennedy likely will cast the 5th vote on future Civil Gideon cases, and hopefully this justice will be a second-term Obama appointment. (Justice Kennedy will be 75 this July.)
The future of Civil Gideon: To the leaders, I say: keep making Civil Gideon arguments to the ABA, state legislatures, especially to state access to justice commissions, and to other policy-makers based on logic, equity, justice, several different federal constitutional provisions and common sense. If you litigate, however, base the arguments on state declaration of rights provisions and procedural due process provisions (state and federal), the latter converting Civil Gideon into Civil Betts, as in Betts v. Brady, the precursor to Gideon, which recognized a right to counsel in criminal cases on a case by case basis.
Implications of Turner for the access-to-justice right: Supporting the provision of limited legal assistance (including “unbundled” representation) and the assistance of a lay advocate? The Majority Opinion recognizes that some form of law-related assistance is necessary to satisfy due process requirements in civil contempt cases, based on the Mathews formula. The necessary assistance might be the assistance of a social worker (e.g., Vitek), forms (probably based on the success of simplified pleading forms in limited-assistance family law projects), and whatever additional assistance provides a fair “opportunity at the hearing for the defendant to respond to” key factual disputes. Where the opposing party is represented by counsel, especially by government counsel, something more likely is required in civil contempt cases and may be required in other civil cases. That is, depending on the three Mathews factors, some of the forms of limited assistance that many legal services projects provide to indigent litigants in family law cases may be constitutionally required in some of those and other civil cases, thus validating the access to court right. Note: In Murray v. Giarratano, 492 U.S. 1, a civil post-conviction case (capital petitioner), Justice Kennedy, in casting the deciding 5th vote, found that a form of unbundled legal assistance satisfied the access-to-court right.
Implications for the lawyers’ practice monopoly: There is a warning in prior cases, see e.g., Bounds v. Smith, as well as in Turner: In enforcing the constitutionally based access-to-court right, the lawyer’s practice monopoly will yield when a trained lay advocate can provide the assistance that the Mathews’ balancing test determines is minimally required and adequate. The lawyer practice monopoly may be at risk in some civil cases in the future. This gives paralegal programs new importance and may provide additional incentive to the organized bar to support the continuing and future Civil Gideon movement.
UPDATE (June 27 at 3pm):
Upon re-reading the above, let me clarify what seems like unduly harsh criticism of Turner. What I summarize about Turner from the opinion only (not the record) is based on his pro se appearance in court. With a lawyer, the record undoubtedly would have looked different. My point was not to suggest that the Majority Opinion correctly decided the issue—to the contrary, it should have held that Turner was entitled to a lawyer. Rather, my assessment of Turner and the Turner facts was intended to suggest how the Majority Opinion might be limited, and distinguished in future Civil Gideon cases.
University of Maryland School of Law
posted by Richard Zorza
Turner v. Rogers, 564 U. S. ___ (2011), (Slip Opinion here) should be considered a landmark decision for the self-represented. In its first ever trip to the civil self-represented courtroom (beyond right to counsel issues), the Court establishes that:
- There is a due process right to court “procedural safeguards” that ensure the protection of the right to be heard in casers involving potential deprivation of a constitutionally protected interest.
- The extent of those “procedural safeguards” depends on: “(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safe- guards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].” Slip Opinion at 6, quoting Mathews v. Eldridge, 424 U. S. 319, 325 (1976). (Interestingly, while the court does not explicitly limit the use of the costs of procedures as a “countervailing interest,” it does not mention cost in the application of the due process balancing test to these facts.)
- Ultimately overall “fundamental fairness” and accuracy are the touchstones as to what procedures are constitutionally required. Slip Opinion at 13-15.
- In this case of threatened civil contempt incarceration, the constitutionally required procedures include: (i) notice of the specific key determinative element (here ability to pay the overage); (ii) a form to gather information on the key elements; (iii) questioning on this key element from the bench (at least when needed to clarify the situation), and; (iv) an explicit (not implied) determination of the key element. Slip Opinion at 14
- The right to “fundamental fairness” and accuracy of one seeking government’s assistance in depriving someone of a constitutionally protected interest (i.e. plaintiffs) is very much part of the constitutional calculus, not only that of those facing the deprivation (i.e. defendants). (Here the risk of unfairness or inaccuracy caused by providing counsel to one side when the other did not have counsel was a major consideration for the Court. Of course, the Court had not been asked to, and did not consider providing counsel to both.) Slip Opinion at 13-14.
- The specific “alternative procedures” are required even though the government is not on the other side, and the opposing party is also self-represented. Were these different, greater protections, including possibly the right to counsel at state expense, might be required. Slip Opinion at 15-16.
I believe that this case therefore means that:
posted by Richard Zorza
As of day three, post Turner, some trends have begun to emerge in the commentary, on this blog at least. So, this is an attempt by the two co-hosts of this Symposium, David Udell and Richard Zorza to sum up what we see here, and to use it as a springboard for a new set of perhaps more general questions.
Posters commented at length with respect to the two core issues raised by Turner: i) the extent of trial court judges’ obligations to assure “fundamental fairness” through a variety of procedures, in civil contempt/incarceration or other types of cases and ii) the impact on whether and when a civil right to counsel is required by federal constitutional law.
As the first statement by the Supreme Court of trial court judges’ access to justice due process responsibilities (beyond criminal cases) to unrepresented persons, Turner is a landmark. The Court embraced the Solicitor General’s argument that trial court judges should provide safeguards to individuals facing incarceration in child support cases, specifically: 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. In endorsing, and in some situations requiring, the use of court forms and judicial questioning, it is a huge advance, especially given the level of opposition that each these access-friendly practices has faced.
Significantly, our posters observed both that the Court’s mandate to trial court judges to rely on “alternative procedural safeguards” offers the promise of better access (perhaps extending beyond civil contempt proceedings) but that such safeguards i) should not be presumed to exist or to be effective, without close scrutiny (David Udell and Jim Baillee), ii) may prove to be a sham without advocacy to strengthen them (Abel), iii) iii) fail to take into sufficient account the risk of erroneous incarceration (Engler), and iv) fail to take into account the complexities of civil contempt (Pollock) in the child support context (Mergler).
On civil right to counsel, Turner declines to recognize an “automatic” right to counsel in child support contempt proceedings initiated by an unrepresented party, but does not extinguish claims for a civil right to counsel in proceedings initiated by a represented party. Rather, it expressly saves these for another day. As pointed out by one blogger (Martin Guggenheim), Turner recognizes that counsel may well be categorically required in civil contempt cases in which the other side is the government, has an attorney, or in which the question before the court is unusually complex.
Beyond leaving open certain future claims for categorical rights to counsel, Turner implicitly recognizes, as articulated decades earlier in Lassiter, that trial court judges can make individualized decisions about whether counsel must be appointed in a given case. Moreover, as one poster observed (Engler), the court establishes something of a triage system, requiring judges to determine what level of protection is needed in an individual case, potentially requiring appointment of counsel in one case while relying on a package of safeguards short of providing counsel in another. In theory, it’s a “whatever it takes” approach to assuring “fundamental fairness.”
Our posters also identified ways in which the case is a step backward for civil right to counsel (Russell Engler, Marty Guggenheim) including:
- Turner focuses on the civil/criminal distinction even though the stakes in some civil proceedings are as important as in some criminal proceedings.
- Turner emphasizes incarceration as a required but not sufficient criterion to merit appointment of counsel, a position that had been more ambiguous under Lassiter.
- Turner may suggest that categorical rights to counsel should be limited to cases in which the government is a party, a position that would undermine claims for counsel in disputes among private individuals, such as child custody matters.
Notable too is that no Justice took a stand in support of a right to counsel for all persons facing civil contempt incarceration. Still, the majority was careful to limit its ruling to privately initiated contempt proceedings in which the initiator is unrepresented, and to explicitly leave open questions about what should happen in other categories of cases. A good thing about balancing tests is that they allow for re-balancing in other circumstances.
That said, on what might we be focusing our discussions in the next few days? Read the rest of this post »
posted by Bruce Green
As a professional responsibility professor, what I found surprising in the Court’s Turner decision was the view that assigning a lawyer to the defendant who faces imprisonment for nonpayment of child support “could make the proceedings less fair overall” by “increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive.”
For the organized bar, it is an article of faith that a lawyer’s participation makes judicial proceedings more fair, not less fair. And it’s not clear why that should not be true in this context. The Court’s sentiments conjure up the stereotype of the crafty lawyer engaging in sly tactics to distract jurors from the truth.
Here, the fact finder is a judge. Presumably, the defendant’s lawyer would marshal and present evidence that the defendant lacks financial means to make the required payments. How does this create an undue risk that the judge, as fact finder, will be erroneously persuaded in the defendant’s favor? Surely the concern is not that the judge, as a sophisticated fact finder, will be persuaded to rule incorrectly by the lawyer’s soaring rhetoric, or will make erroneous credibility determinations because of the lawyer’s artful cross-examination. And surely the court is not suggesting that the lawyer will manufacture evidence.
Anyway, isn’t the far greater risk that, without a lawyer, the defendant will be jailed for not making payments that the judge erroneously believes the defendant can afford? And as between an erroneous loss of liberty and an erroneous loss of financial support, which is the greater harm?
If the Court was looking for a consideration to put on the other side of the scale, to explain why due process does not require appointment of counsel in all civil contempt cases involving nonpayment of child support, it could have invoked the obvious one: money. It would cost the State a lot of money to make counsel universally available. Maybe it’s not worth spending the money to avoid erroneous deprivations of liberty, if one assumes that the risk of error is low because of the simplicity of the contempt proceeding. But the idea that the proceedings are so simple that the judge can get it right without the help of a lawyer for the defendant seems somewhat inconsistent with the idea that the truth-seeking process is so easily manipulable that a judge is likely to be snookered by the defendant’s lawyer.
posted by John Pollock
The Supreme Court’s ruling in Turner v. Rogers might appear at first blush to be a bellwether decision on the right to counsel in civil cases. But the fact is that it arrives three decades after the fight to establish the right to counsel in basic human needs cases left the federal constitutional battlefield and shifted to the state constitutions. Indeed, since the Lassiter decision in 1981, courts in various states have found rights to counsel under their state constitutions for proceedings involving custody, protective orders, paternity, civil contempt, waivers of parental consent for abortion, and other matters.
In finding these rights, state courts have shown a remarkable independence from the U.S. Supreme Court when necessary to protect the needs of the disenfranchised. Perhaps this is not surprising, given that even Lassiter recognized that “wise public policy … may require that higher standards be adopted than those minimally tolerable under the [U.S.] Constitution.” Time and again, state courts have recognized their ability to interpret their own due process and equal protection clauses more broadly than the U.S. Supreme Court, and they will undoubtedly continue to do so. As the one-time Chief Justice of the Idaho Supreme Court said, “Idaho’s Constitution stands on its own, and though the Idaho Supreme Court may look to rulings of federal Courts on the United States Constitution for guidance in interpreting Idaho constitutional guarantees, this Court interprets a separate and, in many respects, independent Constitution.” Hellar v. Cenarrusa, 682 P.2d 539, 543 (Idaho 1984). A prime example of this independence from the Supreme Court occurred when, in the wake of Lassiter, no less than eleven states that had found a federal constitutional right to counsel in termination of parental rights cases prior to Lassiter revisited the issue and affirmed the right under their own state constitution.
Sometimes, state courts have found that independent analysis of due process or equal protection is not even necessary, relying instead on the much more simple concept of fairness. Such was the conclusion of the Supreme Court of Minnesota when it determined it was unnecessary to even reach the question of the due process right to counsel question in contempt because it found counsel had to be appointed in such cases “pursuant to our supervisory powers to ensure the fair administration of justice.” Cox v. Slama, 355 N.W.2d 401, 403 (Minn. 1984).
Based on these developments, I believe the state courts will continue to increasingly recognize what the Supreme Court could not: litigants should not be expected to fend for themselves when extremely important interests (be they physical liberty, or parenting, or physical safety, or others) are at stake. With regard to civil contempt, the state courts interpreting their own constitutions to find a right to counsel have refused to follow the Supreme Court down the Turner path of creating a wall between criminal and civil cases, and instead have focused on the actual liberty interest at stake. We can hope to continue to see the same approach after Turner.
A few words must be said, though, about the Turner Court’s hurry to gloss over the complex realities of contempt cases, as only such a rush job could justify its finding of no right to appointed counsel.
posted by Mary Schmid Mergler
Already clearly established by the Supreme Court before this week’s decision in Turner v. Rogers was the fact that punishment cannot be imposed in a civil contempt proceeding for noncompliance with a court order, if the defendant is not able to comply with that order. Thus, Turner, who was imprisoned for one year for failing to pay court-ordered child support, should not have been imprisoned since he was unable to pay.
Today’s opinion in Turner v. Rogers oversimplifies this inability-to-pay defense, failing to appreciate the factual and legal complexities that may arise with such a defense. The Court’s opinion takes several paragraphs to describe the “highly complex system” designed to assure payment of child support. Yet, when it comes to civil contempt proceedings—often the last step in that system—the Court turns a blind eye to the complexity. Instead, the court merely states, “[The question of defendant’s ability to pay] is often closely related to the question of the defendant’s indigence.” Slip Op. at 13. And the Court suggests that the defendant can just be provided with “substitute procedural safeguards” like filling out a form about his assets and being given the opportunity to answer questions about his financial status.
Turner actually received process very close to these “substitute procedural safeguards.” Turner did fill out a form, see Pet. Reply Brief at 14-15, and was given an opportunity to make a statement in open court to the judge about why he had not complied with the child support order. Slip Op. at 3. Indeed in a footnote in his dissenting opinion, Justice Thomas notes: “Because the family court received a form detailing Turner’s finances and the judge could not hold Turner in contempt without concluding that he could pay, the due process question that the majority answers reduces to a factbound assessment of the family court’s performance.” (Slip Op. [Thomas, J., dissenting] at 7 n.3.) I do not mean to suggest that Mr. Turner received due process. Rather, these “substitute procedural safeguards” led to an inaccurate factual finding by the judge in Mr. Turner’s case, because an inability-to-pay defense is harder than it looks.
posted by David Udell
Among the facts brightly if indirectly illuminated in Turner v. Rogers by the Supreme Court’s analysis of the relationship between the “right to counsel” and “alternative safeguards,” is that so little is known about the status of unrepresented persons in our state courts and about the assistance available to help them. So little is known about what is necessary to assure “fundamental fairness” in our justice system.
What we do know is that society has been asking legal services programs, indigent defense programs, and the courts to do more with less. Demand for their services is up (foreclosures, evictions, domestic violence disputes, commercial matters, criminal prosecutions, have increased) while revenue to finance their services is down (forcing layoffs of staff, reductions in court hours, even suspensions of civil jury trials).
In this environment, data and best practices are needed to drive the funding and policy debates, but we don’t know even such basic things as:
–the number of people unrepresented in civil proceedings, and the number unrepresented when the other side is represented or when the other side is an entity of government.
–the nature and scope of services available to people who are unrepresented and whether those services are effective.
–the number of people receiving criminal convictions (pleading “time served”) without having received the right to counsel due under Gideon.
–the numbers that would tell us other important things (such as whether people are receiving needed waivers of court fees or needed interpreters).
The stakes are too high to allow us to go forward without such information. Line-drawing that relies heavily on ideas about how things are supposed to work, as opposed to how they actually work, can impose real hardship. Safeguards that are less protective than representation by counsel may prove valuable, but should not be assumed into existence or presumed valuable.
At the National Center for Access to Justice at Cardozo Law School we are building partnerships with courts and communities to develop a Justice Index and Representation Index – new systems that can make such information readily available via the internet. Of course, work is needed to create capacity both to track the information and to present it. But it is important to do this. Establishing access to relevant data and best practices, comparable over time and across jurisdictions, will highlight areas for reform, help to educate the public about the important roles of the courts, legal services and indigent defense services in our society, and help to realize the promise of “fundamental fairness.”
posted by Russell Engler
From an Access to Justice and Civil Right to Counsel perspective, the Supreme Court’s decision in Turner v. Rogers provides a basis for cautious optimism despite the opinion’s flaws. It is unsurprising that the Court would decline to find a categorical right to counsel in a fact pattern it viewed as an extension of settled law. Yet, the Court’s actual holding found that Mr. Turner’s due process rights were violated because he “received neither counsel nor the benefit of alternative procedures like those we have described.” Any notion of a civil right to counsel invariably will require some difficult line-drawing. No proponent of such a right claims that all indigent litigants in all civil proceedings are entitled to counsel at the state’s expense.
Many of us recognize that the right to counsel should be viewed as a component of an overarching access to justice strategy. I find it helpful to think of a three-pronged strategy. Prong 1 requires the courts to re-envision their procedures, and the roles of the judges, court-connected mediators to maximize the provision of meaningful access to justice. Prong 2 urges the support of a variety of forms of assistance short of full representation by counsel, paired with careful evaluation of case outcomes to help determine which forms of assistance are sufficient to provide the help needed, and which are not. Prong 3 supports the expansion of a civil right to counsel, where basic human needs are at stake and nothing short of full representation with provide the needed assistance.
Viewed this way, the right to counsel is inevitably tied not only to the rights at issue, but the procedures in place. The more the courts provide meaningful access, and assistance programs are proven to be effective, the smaller the pool of cases in need of counsel may be. The more that procedures deprive litigants of meaningful access and steamroll their claims, the more that appointment of counsel may be required. The Court’s approach is not inconsistent with the idea that the procedures matter in assessing the need for counsel.
So too does the complexity of the case. The Court found the child support cases here to be “sufficiently straightforward,” suggesting a different result as the claims get more complex. The Court adds to the calculus that the opposing party here was unrepresented by counsel. It is not necessarily antithetical to the call for an expanded civil right to counsel to consider the capabilities and circumstances of both parties, suggesting a different result in some settings where the opposing party is a well-funded represented party as opposed to an indigent, unrepresented one. The greater the imbalance of power between the parties, the greater the need for counsel will be.
None of this is to ignore the Court’s pronouncements that might instead set the march toward increased Access to Justice and an expanded Civil Right to Counsel backward. It is disappointing that the Court would characterize (in dicta) its jurisprudence as holding that the right to counsel under federal law exists “’only’ in cases involving incarceration.” Lassiter itself contemplated the possibility of counsel being constitutionally required in cases concerning the termination of parental rights.
The Court disappoints further by relying so heavily on the distinction between criminal and civil and its perceived role of the state. If our courts are to respond to the needs of the public who must turn to the courts – or are forced by others to appear in court – where basic human needs are at stake, we cannot continue to rely on mechanical distinctions that fail to comport with our values and our sense of fairness. If incarceration resulting from civil contempt might lead to a longer imprisonment than incarceration resulting from criminal contempt, it is small solace to those in peril of losing their liberty that their right to counsel turns entirely on the civil/criminal distinction. Moreover, most parents would prefer to serve thirty days in jail than lose custody of their children in a private custody dispute or have their families rendered homeless through eviction, yet the mechanical application of the criminal/civil distinction prioritizes the lesser harm for access to counsel.
Nor should we be comforted by the Court’s reliance on the distinction between cases brought by the State and those brought by private parties. The Court saves for another day the question of contempt proceedings for child support payments owed to the state, but the deprivation of liberty applies equally to defendants owing money to the state or someone else. Homeless families will find little solace in the realization that they were rendered homeless in proceedings in which the government was the landlord, as opposed to a private landlord, including one that might receive government subsidies. In the area of child custody, in the words of one state supreme court justice, a parent is deprived of the care, custody, companionship, and control of the children whether the State takes custody through termination or dependency proceedings or her former husband does through private litigation. The State plays too large a role in regulating the legal relationships and establishing the processes for enforcing our basic rights to hide behind such a distinction.
In the long run, the impact of the Turner decision will be less about its language and more about its application at the state and local level. If the disappointing portions of Turner lead states to roll back their existing provisions for counsel by declaring their procedures sufficient under Turner, or if what is meant by adequate procedures is little more than a rubber stamp, the decision will prove to be a devastating one indeed. If, instead, the decision prompts state courts, legislatures, access to justice commissions and bar associations to engage in a careful examination of the procedures where basic human needs are at stake, and provide counsel where the procedures are lacking, the law is complex or the litigants are on the wrong side of a power imbalance, the decision might prove to be the touchstone for reforms that further access to justice and lead to an expansion of a civil right to counsel.
posted by Jim Baillie
The main issue decided by the United States Supreme Court in Turner v. Rogers is whether in civil contempt proceedings due process requires that a state provide counsel to an indigent, non-custodial parent who is subject to a child support order if that individual faces incarceration. The court ruled that the Fourteenth Amendment’s due process clause does not automatically require a state to provide counsel and concluded that “substitute procedural safeguards” may be sufficient. (However, the court did decide that because South Carolina provided neither counsel nor substitute procedural safeguards Mr. Turner was denied due process and the Supreme Court vacated the order of the South Carolina Supreme Court.) The decision expressly does not address the right to counsel in civil contempt proceedings where the underlying support payment is owed to the state (by reimbursement of welfare payments) or in an unusually complex case where the defendant “can fairly be represented only by a trained advocate.”
Although the case presented an issue of constitutional law, a number of the justices had practical questions about what actually happens in these cases. “. . . [A]re there any data to show that in most of these cases counsel does, in fact, appear?” (Justice Kennedy, presumably the swing vote in the 5-4 decision). “Is there any model, any state where there is such a procedure?” (Justice Ginsbergh asking about the substitute procedural safeguards which may serve as an alternative to counsel.) “ … [H]ow often [do] these proceedings have the State on one side, how often [do] they have the custodial parent on one side … whether there are counsel on the opposite side in many of these cases?” (Justice Kagan).
With important issues not addressed there will be more litigation and the law will continue to develop. We can expect those states that do not provide counsel to modify their procedures in an effort to provide “substitute procedural safeguards.” Presumably, the procedures adopted will be varied and so the states will become alternative laboratories experimenting to find out what is efficient and what meets the requirements of fundamental fairness. In addition, those states which now provide counsel may limit the availability of counsel in the future to a narrower set of circumstances in various ways.
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.
posted by Laura Abel
Turner v. Rogers could be yet another in a long line of opinions papering over the difficulties regular folks have defending their rights without a lawyer. Or it could be a force for making the court system more user friendly. In Turner, the Court requires the lower courts to assess the adequacy of the proceedings in civil contempt cases in which personal liberty may be at stake. But how is a court to do that? According to Turner, it must: 1) provide notice that the ability to pay is a critical issue, 2) use “a form (or the equivalent) to elicit relevant financial information, 3) allow the defendant to respond to questions about his financial status, and 4) make an express finding that the defendant has the ability to pay.
So many questions must be answered. What sort of “form”? Many parents who owe child support never obtained a high school diploma. Does the form have to be written in plain English that can be understood by people with little education? What sort of form would suffice for an illiterate parent?
The Court says that the form must “elicit relevant financial information.” How detailed must it be? Who decides what financial information is “relevant”? What if the form does not ask about important factors, such as whether the defendant has unusually high health care expenses?
The Court says that there must be opportunity, at a hearing, for the defendant to respond to statements and questions about his financial status. What constitutes an adequate “opportunity . . . to respond”? What if the questions are phrased in legalese? What if the defendant did not know of his obligation to bring to the hearing documents to support his defenses – copies of job applications, for instance? Must the judge explain that requirement to the defendant and continue the hearing to allow him to gather the documents? If the defendant speaks only Spanish, must an interpreter be supplied?
These are not easy questions to answer. Yet the lower courts must answer them in order to ensure that counsel is provided whenever the civil contempt procedures are inadequate to ensure due process. Ironically, because most civil contempt defendants appear without counsel, in most cases the lower courts will have to assess the adequacy of their procedures without the assistance of counsel. This would seem to be precisely the sort of “unusually complex” question that the Turner majority acknowledged requires the involvement of “a trained advocate.”
There could be salutary results. Ideally, lower courts will develop better forms for pro se litigants, open pro se assistance centers, and educate their judges and court staff about how to work with pro se litigants, particularly those who have low literacy, limited proficiency in English, and other special needs. This will help the courts operate more accurately and efficiently. It will improve litigants’ experience with the courts, and enhance the public’s trust in the legal system.
But without close scrutiny by the courts and the bar, this could all be a farce. To satisfy the Turner opinion, the proceedings that the courts implement must truly allow unrepresented parents to demonstrate their inability to pay. Civil legal aid lawyers are familiar with the obstacles their clients face in accessing the court system. They need adequate funding to enable them to monitor the proceedings in their jurisdictions. Bar associations and local law schools should play a monitoring role, too. It is time to get to work.