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.
The briefs and transcript of the argument show that with the varied state remedies now in place there are already laboratories but, unfortunately, we have not learned as much as might have been hoped because the available empirical information about the role of counsel has not been gathered and evaluated. According to the transcript of the argument, twenty-six states do provide counsel (fifteen as a constitutional right, the other eleven states by statute or court rule). At least seventeen states do not provide counsel. As to seven states the status is unclear. Presumably, the states that do not provide counsel offer varying procedures which fall along a continuum of fairness. And those states that do provide counsel may use a variety of procedures to permit enforcement procedures to proceed without involvement of counsel up until the point where there is an actual threat to the loss of liberty.
In Turner, counsel for the mother argued that the prospect of being found in contempt and jailed is a powerful incentive to payment. Appointment of counsel will deter enforcement efforts in the states and as public policy favors a system without appointed counsel. Counsel asserted that the State of New Jersey stopped using civil contempt as an enforcement tool as soon as the New Jersey Supreme Court ruled that the state would be required to provide counsel.
On the other hand other parties, including the American Bar Association argued that not only are lawyers necessary for fundamental fairness, but that they help facilitate the judicial process and may negotiate payment schedules and other relief short of jail with the potential of more support payments to families than without their involvement.
So with this situation we have an opportunity for some legal and sociological research on these systems as they have functioned and as they evolve:
1. How do the outcomes compare between those states that provide counsel and those which do not as to (a) use of civil contempt, (b) incarceration and (c) payments?
2. Which “substitute procedural safeguards” (as suggested in the Supreme Court’s opinion) are in use: (a) a notice that gives the respondent warning of the risk of jail, (b) forms to elicit information about the ability to pay, (c) opportunity for the respondent to speak at a hearing, and (d) express findings by the court imposing the penalty? What is the efficiency and the fairness of these procedures and others that may be tried?
The stakes are high. On the one hand in 2007 nationally non-custodial parents owed $34.1 billion in child support to 6.4 million to custodial parents. On the other hand, it is not clear that the threat of contempt works in South Carolina as 15% of the jail population are there on contempt orders at a cost of $13,000 to $17,000 per year per inmate.
My bias is for a right to counsel; I might even hope for a civil Gideon. But I think in the near future and perhaps forever, we need to recognize that counsel are not going to be provided through public funding in every circumstance where their participation would advance fairness. We could benefit by better understanding how the non-counsel alternatives actually function – when can they be both fair and efficient? We need to understand where the appointment of counsel may be most important to promote the goal of protecting important rights and to promote the goals of important public policies such as the support of families. Who knows, we may even find that these goals are not inconsistent!