Turner v. Rogers, 564 U. S. ___ (2011), (Slip Opinion here) should be considered a landmark decision for the self-represented. In its first ever trip to the civil self-represented courtroom (beyond right to counsel issues), the Court establishes that:
- There is a due process right to court “procedural safeguards” that ensure the protection of the right to be heard in casers involving potential deprivation of a constitutionally protected interest.
- The extent of those “procedural safeguards” depends on: “(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safe- guards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].” Slip Opinion at 6, quoting Mathews v. Eldridge, 424 U. S. 319, 325 (1976). (Interestingly, while the court does not explicitly limit the use of the costs of procedures as a “countervailing interest,” it does not mention cost in the application of the due process balancing test to these facts.)
- Ultimately overall “fundamental fairness” and accuracy are the touchstones as to what procedures are constitutionally required. Slip Opinion at 13-15.
- In this case of threatened civil contempt incarceration, the constitutionally required procedures include: (i) notice of the specific key determinative element (here ability to pay the overage); (ii) a form to gather information on the key elements; (iii) questioning on this key element from the bench (at least when needed to clarify the situation), and; (iv) an explicit (not implied) determination of the key element. Slip Opinion at 14
- The right to “fundamental fairness” and accuracy of one seeking government’s assistance in depriving someone of a constitutionally protected interest (i.e. plaintiffs) is very much part of the constitutional calculus, not only that of those facing the deprivation (i.e. defendants). (Here the risk of unfairness or inaccuracy caused by providing counsel to one side when the other did not have counsel was a major consideration for the Court. Of course, the Court had not been asked to, and did not consider providing counsel to both.) Slip Opinion at 13-14.
- The specific “alternative procedures” are required even though the government is not on the other side, and the opposing party is also self-represented. Were these different, greater protections, including possibly the right to counsel at state expense, might be required. Slip Opinion at 15-16.
I believe that this case therefore means that: