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?

1.            Promoting “safeguards” for Unrepresented Persons. If Turner stands for the proposition that access, fairness and accuracy are to be achieved not only by providing lawyers, but by making changes in the underlying processes of the courts, not just in civil contempt cases, but more broadly, the obvious question follows:  how will this come about?  Who is to take the leadership role in making this happen?  Should access to justice commissions be given greater powers and responsibilities, including potentially in the power to review court processes, advocate for changes and improvements, and suggest criteria for when counsel are to be provided and how? How will courts develop the resources and best practices to deploy the kinds of innovations that the Supreme Court envisions?  What also (as Laura Abel asks) are the roles of advocates and others in ensuring that these practices fulfill their promise?  Do we need broader national umbrella groupings to move a broad Turner agenda forward?

2.            Maintaining a Cooperative Approach Among Stakeholders. In the last few years there has been a relatively comfortable division of labor among courts and legal aid.  Each has desired and required increased funding, and each has supported the other.  While there is general consensus about the direction of innovation, the different sectors have allowed each other to take the leadership in implementing them.   If legal aid takes the lessons of Turner to heart, will they start litigating against courts because they do not provide forms or because judges do not ask questions?  Will access to justice commissions find themselves in awkward positions given that different members may take opposing views of each others’ institutional positions and especially regarding funding choices?  More fundamentally, by prioritizing the importance of “safeguards” for unrepresented persons, will Turner elevate those issues in importance relative to representation, and will it alter existing relationships in the context of funding? We would like to think that the cooperative relationships that have developed will be strong enough to withstand strains, and that courts and legal aid programs will find effective (and cost-effective) ways to effectuate changes prompted by Turner.

3.            Research Strategies and Partners. Jim Baillie and David Udell have focused on the need for research and data, while Laura Abel has observed that trial court judges will also be struggling to figure out what constitutes adequate safeguards.  The questions for advocates include who are the research partners, where are the research opportunities, and how can questions be focused to help the triage mixed model services that Turner envisions.  The ultimate questions will be to figure out what works, what works best, and what – despite potential surface appeal, including potential economic appeal – does not, in fact, work.  Basic data is also needed, for example, to determine how many people are unrepresented, and to determine what level and nature of assistance they may need.

4.            Forms and Judicial Education Strategies.  Courts across the country (at least those that do not provide counsel in this situation) are now going to have to put specific forms and judicial best practices in place.  We need national strategies to help states do this efficiently and with high quality. What can we do to establish standards that will set a floor, while aiming higher?  Where should national resources and support be focused?  How should these be provided and by whom?

5.            Next Steps with Civil Gideon. What elements can be developed to advance the argument for civil right to counsel in areas left relatively open by Turner, involving threat of incarceration, government involvement, unusual complexity, and representation of the opposing party? What might be done to advance the argument in other contexts, for example, where threat of incarceration is absent? To what extent does Turner give renewed life to the Lassiter concept of an individualized case-by-case determination as to whether counsel must be appointed.  To what extent should the focus be on state constitutions or on state legislatures?

Thanks again to all for your thoughtful and committed participation in this Symposium – pity you are not all on the Court!

David Udell and Richard Zorza

Note: One paragraph of this post was modified on Friday June 24.  The original posting was on Thursday June 23.  The original text of the second paragraph was: “Posters commented at length on the two basic holdings in the opinion.  Turner increases the obligation of trial judges to assure “fundamental fairness” in their treatment of unrepresented persons, and it decreases the opportunity to make claims for a civil right to counsel.”  We modified the original text since it was possibly too definite a summary of the differing views of multiple posters.

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2 Responses

  1. Jim Greiner says:

    Hi, David, Richard,

    Thanks to you both (and to concurringopinions) for organizing this symposium. I’ve learned a great deal already, and am looking forward to learning more. There’s one aspect of Turner which was not mentioned in the opinion but which came up repeatedly in the oral argument (and felt like the elephant in the room): the immigration context, where detention is commonplace (and where, spinning off John P’s post, kicking the can to the states using “wise policy” language is not an option). It felt from the oral argument that the justices were groping desparately for a line of reasoning that would allow them to avoid finding a RTC in immigration proceedings. I’d really love the benefit of the symposium participants’ wisdom on this. Did anyone feel the same way about the oral argument (I just read a transcript)? And regardless, does anyone have any guidance on this?

    Again, many thanks to you both!

  2. Richard Zorza says:

    A very good question. It does seem from the oral argument transcript that Justice Kenned was interested in the immigration issues and their implications. But, speaking personally, it seems that the Court ended up staying well away from the issue in the opinion. Immigration has some very powerful stories (like little kids, many of whom come here on their own looking for parents– see Sonia Nazario’s transcendent book “Enriques Journey” (http://www.enriquesjourney.com/author.html).) As to the legal issues, time will tell.