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Category: Symposium (Turner v. Rogers)

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A Final Turner Post from Your Co-hosts, Richard Zorza & David Udell

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 More

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Turner v. Rogers

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.

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Community Leadership in the Wake of Turner

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.

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Turner v. Rogers: The Right to Counsel Haunted by the Ghost of Gagnon

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.

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With Turner, Access to Justice Efforts Must Expand

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.

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Turner v. Rogers is watershed moment for civil justice guidance

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 More

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Turner v. Rogers

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.

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Does the Supreme Court Get It In Turner?

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.

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A Right to Counsel in Which Civil Cases?

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.

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Turner — Inplications for Civil Gideon, the Use of Unbundled Legal Services to Provide Access, and the Lawywers Practice Monopoly

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.

Michael Millemann

University of Maryland School of Law

410-706-8340

mmillem@law.umaryland.edu