The Turner decision, as others have recognized, leaves far more questions unanswered than it clarifies with regard to the right to counsel when personal liberty is at stake. As amicus in the case, The National Legal Aid & Defender Association (NLADA) argued that when the private interest at stake is someone’s personal liberty counsel should be made available to the alleged contemnor in all instances, as is currently the case in a majority of jurisdictions in the United States. Clearly, an important imperative of the response to Turner must be creative and aggressive advocacy around the areas left unanswered by the opinion, particularly in the very common situation in child support cases when the state is a party to the action.
One area of immediate concern, of course, is the preservation of the rights to counsel that currently exist in child support contempt hearings. I hope that John Pollock’s optimism in that regard proves true, but with many states facing the bleakest fiscal outlook on record, advocates must turn a keen eye to ensuring that Turner does not signal a retreat from existing rights. As states struggle to maintain even minimal funding for their court systems, this area could well be seen as an opportunity to save significant money. In fact, many states that currently provide a right to counsel in civil contempt cases for nonpayment of child support do not adequately enforce that right. In our haste to define adequate alternative safeguards to counsel in this area, we must be very careful not to erode what we already have.
Yet, I agree that Turner potentially creates a watershed moment in focusing a spotlight on how courts provide access to civil justice in this country, short of providing a right to counsel in certain cases. We have constantly been engaged in a balancing act in determining the highest and best use for the public and private lawyers available to the civil legal aid system. To the extent we can use the Turner due process analysis to ensure that courts provide a fair system for unrepresented litigants, our hopes of improving the administration of justice in this country are significantly improved. Read More