Turner v. Rogers is watershed moment for civil justice guidance

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.

As we take aggressive steps to maximize the effect of Turner for unrepresented litigants, we must, however, ensure that the stakeholder community carefully weighs the impact of a decision that could potentially be interpreted to lessen the need for attorneys in cases in which they are essential.  We should not break into separate camps, some pushing for greatly enhanced court-based pro se services and others focused on maximizing the number of lawyers available to serve the needs of people living in poverty.   Both of these strategies should be pursued through a coherent, coordinated state and national planning process.

The current fiscal outlook facing states and court systems, as Bruce Green points out, is indeed the 900-pound gorilla in this debate.  For better or worse, the Supreme Court decided not to mention cost as a factor underlying its decision.  Yet, as a practical matter for advocates and stakeholders trying to implement Turner, the allocations of extremely scarce resources that flow from the decision could have a lasting impact on the future of state justice communities nationwide.

Some states may well interpret Turner narrowly, equating the need to provide substantial alternative safeguards only to situations where the private interest at stake under Matthews is extreme, e.g., the loss of personal liberty.   Such an approach would be in keeping with the inherent hostility that exists in many states toward pro se assistance currently.  This hostility often flows from a fear that judges and court administrative personnel would lose their impartiality if they helped an unrepresented person navigate the complex (not so much in Turner) minefield of civil litigation.  It can also result from clear power relationships, such as exist with landlords, creditors and the like.  Turner clearly provides an opportunity in such states to make significant advancement.

If the civil stakeholder community chooses, as it should, to use the decision as a lever to significantly enhance the fairness and responsiveness of the justice system to the needs of unrepresented litigants, then frank, real-world discussions of the tie between fully funding a myriad of pro se initiatives with the resource needs for direct representation must occur.

These discussions have obviously been going on in our community for some time now, not always in harmony.  The implementation of Turner requires all of us to more closely examine the types of cases that best lend themselves to substantial pro se safeguards and which do not.    These are fundamental delivery questions we have struggled with for many years, given the harsh choices providers and courts have to make every day because of our nation’s failure to invest anywhere near what it takes to deliver on the promise of equal justice for all.  Legal aid providers, access to justice commissions, courts, the bar and other stakeholders should take advantage of the opportunity provided by Turner to come together to better define in their state the set of cases most appropriate for pro se assistance and the types of forms, judicial guidance and other appropriate safeguards that are necessary to make it work.  Paramount in these discussions, however, should be the reinforcement of the notion of the critical roles attorneys play in ensuring just outcomes for clients and in ensuring that poor people have a seat at the table as critical decisions are being made that affect them and their communities.

Several commentators have pointed out the almost complete lack of data available to us to make informed decisions with respect to allocating precious resources.   We struggle to be able to characterize the actual need that exists for legal services among people living in poverty.  We know that almost 65 million people live within 125 percent of the poverty level in this country, but defining their legal needs for funders, courts and policymakers remains an elusive quest.  We also lack reliable evidence as to the impact of the wide spectrum of legal interventions, from full representation to court-based pro se, on successful and cost-efficient outcomes for clients and for systemic improvement for low-income communities.  As Justice Kagan (and Justice Thomas) pointed out in Turner, we don’t even have data on best practice safeguards in the area of civil contempt for non-payment of child support.  We should recognize Turner as a significant opportunity to develop and refine a research capacity among the various relevant stakeholders in the civil justice community.

So, a great deal of work needs to be done to ensure that Turner is more of a promise than a retreat, as Laura Abel pointed out early on in this discussion.  NLADA is anxious to work with all of its members and partners in that effort.

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