Already clearly established by the Supreme Court before this week’s decision in Turner v. Rogers was the fact that punishment cannot be imposed in a civil contempt proceeding for noncompliance with a court order, if the defendant is not able to comply with that order. Thus, Turner, who was imprisoned for one year for failing to pay court-ordered child support, should not have been imprisoned since he was unable to pay.
Today’s opinion in Turner v. Rogers oversimplifies this inability-to-pay defense, failing to appreciate the factual and legal complexities that may arise with such a defense. The Court’s opinion takes several paragraphs to describe the “highly complex system” designed to assure payment of child support. Yet, when it comes to civil contempt proceedings—often the last step in that system—the Court turns a blind eye to the complexity. Instead, the court merely states, “[The question of defendant’s ability to pay] is often closely related to the question of the defendant’s indigence.” Slip Op. at 13. And the Court suggests that the defendant can just be provided with “substitute procedural safeguards” like filling out a form about his assets and being given the opportunity to answer questions about his financial status.
Turner actually received process very close to these “substitute procedural safeguards.” Turner did fill out a form, see Pet. Reply Brief at 14-15, and was given an opportunity to make a statement in open court to the judge about why he had not complied with the child support order. Slip Op. at 3. Indeed in a footnote in his dissenting opinion, Justice Thomas notes: “Because the family court received a form detailing Turner’s finances and the judge could not hold Turner in contempt without concluding that he could pay, the due process question that the majority answers reduces to a factbound assessment of the family court’s performance.” (Slip Op. [Thomas, J., dissenting] at 7 n.3.) I do not mean to suggest that Mr. Turner received due process. Rather, these “substitute procedural safeguards” led to an inaccurate factual finding by the judge in Mr. Turner’s case, because an inability-to-pay defense is harder than it looks.