Turner v. Rogers

Background

The petitioner in this case, Michael D. Turner, was jailed six times between 2003 and 2010 for accumulated child support payment arrears. The duration of Turner's jail spells ranged from one day to eight months. (A person being in arrears on child support payments is not unusual: in 2008, 11.2 million U.S. child support cases had arrears due. The number of persons kept in jail or in prison for child support arrears is not generally tracked. Based on a publicly available collection of relevant data, an estimated 50,000 persons are kept in jail or in prison on any given day in the U.S. for child support arrears.)

During his most recent term in prison, Turner appealed his sentencing, claiming that he was entitled to counsel at his hearing. Before the case was heard by the South Carolina Supreme Court, however, Turner's sentence expired, and the South Carolina Supreme Court subsequently rejected the claim, distinguishing between civil contempt and criminal contempt, arguing that counsel was only required for the latter. Turner's pro bono counsel then appealed the case on Turner's behalf to the U.S. Supreme Court.

Questions presented

1. Whether the Supreme Court of South Carolina erred in holding—in conflict with twenty-two federal courts of appeals and state courts of last resort-that an indigent defendant has no constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration
2. Whether the Court has jurisdiction to review the decision of the South Carolina Supreme Court.

Ruling

In a 5–4 ruling, in a decision written by Justice Stephen Breyer, the Supreme Court rejected the claim of mootness by South Carolina, arguing that the period of the sentence is too short to allow for full adjudication of the sentence, the likelihood of Turner being subjected to civil contempt proceedings again (that is, being capable of repetition) made the case not moot (distinguishing this case from DeFunis v. Odegaard, where the case was decided to be moot), proceeding to rule on the merits. Breyer held that a state is under no obligation to provide free counsel to indigent defendants in civil contempt cases, especially if the plaintiff is not represented by counsel (as was the case here). However, Breyer held that the South Carolina courts were under an obligation to provide an alternative procedure to ensure a fair determination of the questions at hand. Since Turner did not have clear notice that "ability to pay" would be the "critical question" in this proceeding, nor was he provided with information or forms that would have allowed Turner to disclose such information, the South Carolina courts erred in finding him able to pay and thus in civil contempt. Breyer stated:

Third, as the Solicitor General points out, there is available a set of “substitute procedural safeguards,” Mathews, 424 U.S., at 335, 96S.Ct. 893, which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (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. Turner v. Rogers, 131 S.Ct. 2507, 2519 [11] (2011)

Breyer went on to reiterate those things that must be present so that Due Process does not require the appointment of counsel, stating:

We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute relevant information and court findings).

Thus there must be notice to the obligor-parent that his/her ability to pay is an issue. Then the must be forms designed to elicit this information and presumably a consideration by the court of the obligor-parent's ability to pay. After this, courts are then required to make a specific finding in child support contempt cases whether or not the obligor-parent has or had the ability to pay in order to satisfy Due Process because this is the critical issue.

However, Breyer specifically declined to address whether Due Process would require the appointment of counsel when the state is collecting overdue support payments due the state because then the state would be represented by counsel or in complex cases. Breyer seemed to recognize that the "average defendant" probably lacks the skill to adequately defend themselves. Breyer quoted from Johnson v. Zerbst, 304 U.S. 458, 462–463, 58S.Ct. 1019, 82 L.Ed. 1461 (1938), stating with emphasis:

([T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel (emphasis added)). And this kind of proceeding is not before us. Neither do we address what due process requires in an unusually complex case where a defendant can fairly be represented only by a trained advocate.

Dissent

Justice Clarence Thomas authored a dissenting opinion in which he noted that the Fourteenth Amendment never provided for alternative safeguards to ensure that protections under the Fourteenth Amendment were not violated, and that the Sixth Amendment only applies to criminal prosecutions, and not civil cases, and that as such, the Sixth Amendment does not require the state to provide counsel to indigent defendants (in this case, neither side was represented by counsel at the initial civil contempt hearing). Thomas further argued (with only Justice Antonin Scalia joining) that the majority opinion did not consider the effects of this decision with respect to child support payments, and expressed concern that the majority opinion would undermine state efforts to collect child support payments.

Effect on states providing counsel

Because states are free to provide more constitutional protections under state constitutions than the federal government provides under the United States Constitution, the ruling did not overturn the requirements of many states that counsel be appointed for indigent litigants facing incarceration at civil contempt hearings.

The federal agency responsible for enforcing child support is the Office of Child Support Enforcement (OCSE). In response to the Supreme Court's Turner v Rogers decision, OCSE responded that states should review their procedures to ensure that the proceedings are fair by giving the obligor-parents an opportunity to provide and respond to questions regarding their finances and ability to pay. The Office of Child Support Enforcement Commissioner's blog states:

As a result of the Turner v. Rogers decision, state child support agencies and courts are examining their civil contempt procedures. The goal is not to eliminate contempt procedures in cases where it may be appropriate, but instead to implement fair and cost-effective procedures that assure that families receive reliable child support payments, improve fairness and access to justice for parents without an attorney, and reduce the need for jail time. Incarceration may indeed be appropriate in those cases where noncustodial parents can afford to support their children but willfully evade their parental responsibilities by hiding income and assets. However, jail is not appropriate for noncustodial parents who do not have the means to pay their child support debts. The first step to reducing the need for contempt hearings is to set accurate child support orders. The research is clear that setting realistic orders based on actual income can actually improve compliance, increasing both the amount of child support collected and the consistency of payment. The research says that compliance falls off when orders are set above 15 to 20 percent of a noncustodial parent’s income.