The forthcoming decision in Turner v. Rogers, No. 10-10, will represent one of those rare cases in which there is the very real chance that no one will win, at least long-term. The case pits the liberty of a man unable to pay his child support payments versus the cost that states would shoulder if they were required to appoint counsel in the thousands of civil contempt hearings that occur each year. Oh, and then there is that nebulous thing called the Due Process Clause.
Michael D. Turner racked up large debts owed to his child’s mother and the state for child support payments. When he stopped making payments, a hearing was held to decide whether Mr. Turner had willfully violated the child support order. At the hearing Turner claimed, without the assistance of counsel, that he was unable to pay—a defense authorized under state law. The judge believed otherwise and sentenced Turner to one-year in jail.
An attorney took Turner’s case on a pro bono basis and argued that due process requires the appointment of counsel in civil contempt proceedings for indigent litigants facing incarceration. The South Carolina Supreme Court rejected that argument, holding that the right to counsel only applies in the criminal context.
Last Wednesday, the Court heard arguments in Turner. As Adam Liptak noted, the Justices seemed “frustrated” with just about every possible outcome. It was clear that a majority of the Court believes that counsel is not categorically required for those facing incarceration through civil contempt hearings. But none of them were willing to say that due process required no protections.
Based on the Justices comments, there is a likely chance that the Court will say that some protections are required, but that counsel is not. That would give victory for the parent seeking child support in this case, and it would remove any financial burden states would pay for attorneys to be represented in civil contempt hearings. Unfortunately, it would also mean that the Mr. Turner and the states will be given no guidance on what procedure is due, which will undoubtedly be at issue when Turner is hailed in for another hearing (he has been subpoened to three such hearings already). And as Justice Ginsburg noted, incarcerating individuals who really do not have the ability to pay child support costs the states money, too—perhaps even more than appointing counsel. So while Ms. Rogers and the State may win this round, they may still be behind on the scorecard.