Category: Symposium (Turner v. Rogers)

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Turner’s Trombone Blows for Every Self-Represented Litigant

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:

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Turner Plus Three — A Mid-Symposium Reviewing and Focusing Post

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 More

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A Professional Responsibility Perspective on Turner v. Rogers

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.

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Turner v. Rogers: Why the Supreme Court is a Day Late and a Dollar Short

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.

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New Avenues for Right to Counsel Reform Necessary After Turner Decision

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.

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Known Unknowns, What Turner Suggests About the Need for a Justice Index

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.”

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Turner v. Rogers: A Basis for Cautious Optimism Despite the Opinion’s Flaws

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.

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Turner v. Rogers: An Opportunity for More Empirical Research on the Role of Counsel?

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.

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Some Optimism after Turner

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.

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Turner v. Rogers: A Force for User-Friendly Courts or Empty Promises?

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.