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Tagged: Symposium (Turner v. Rogers)

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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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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: 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.