Category: Supreme Court


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. Read More


Turner v. Rogers

To impose an order re: civil contempt in a child support case the court must make a finding that the party to be held in contempt had the ability to pay child support but willfully refused. Civil contempt is not applicable for situations where the person charged with obeying a court order is unable to do so. Inability to afford legal counsel would also seem to indicate an inability to pay child support. Therefore, court appointed legal counsel based on indigence should not arise in a civil contempt re: child support case because to find the person in contempt should necessarily involve a finding of ability to pay. That being said, the divergence between what should happen, and what actually happens in many court proceedings makes the issues of due process and fundamental fairness raised in the Turner case quite real. For this reason, by recognizing that some affirmative action by the bench officer in determining ability to pay through direct questioning of the party would be needed to establish the basis for a finding of civil contempt, the majority opinion appears to encourage a more proactive fact finding role for judges where unrepresented litigants are involved. In theory this makes imminent sense, and if done well, could eliminate the need for appointed counsel while still achieving fundamental fairness. It somewhat changes the role of the bench officer from an arbiter to an inquisitor, contrary to our long established adversarial model of jurisprudence, but perhaps this change is necessary given the large volume of unrepresented litigants, particularly in family law court, the lack of resources for court appointed or pro bono counsel, and the competing demands for limited resources.


Does the Supreme Court Get It In Turner?

The underlying facts are awful.  South Carolina is not the only state to have a modern debtors’ prison.  Men are being locked up, sometimes for long stints, for not paying child support.  There are certainly far too many deadbeat dads in this country, and imprisoning a solvent scofflaw father, but with due process, is an acceptable way to put on the squeeze.  But that’s not what’s happening.  Men who simply can’t pay or have other defenses are being jailed without having had a fair chance to put forward their side of the story.

The underlying issue is poverty, of course, and poverty has a long list of terrible consequences, including the heart of how the criminal justice system works, and much more.  In this case, the poverty means the man can’t pay no matter what we do to him and also can’t afford a lawyer to make the case for him.   I have to wonder whether the majority (forget the other four) gets it.  And these five are the good “guys.”

Okay, so they say there’s a better case for giving the defendant a lawyer when the state is the plaintiff.   That helps.  But it doesn’t deal with this case.  Yes, there’s an imbalance when the mother is not represented but, then again, she’s not at risk of being sent to jail.  To say that alternative measures would even the playing field is not to understand the world of trying to navigate the court system without a lawyer.  We and can should do everything we can to make pro se representation somewhat less disastrous but, face it, it’s not the same.  I have to wonder whether they get it.

So there’s an inch or two of progress here, but they could have done better.  For now, anyway, it places a responsibility on all of us who work on access-to-justice issues, including access to justice commissions like the one I chair in Washington, D.C., to redouble our efforts to get more funding for lawyers and our advocacy for every possible step to ameliorate the hazards of pro se representation.  But all of that is not the real way to run the railroad.


Turner — Inplications for Civil Gideon, the Use of Unbundled Legal Services to Provide Access, and the Lawywers Practice Monopoly

Turner, as several commentators have observed, is a glass that is neither wholly empty nor largely full. The majority opinion is useful in my view in organizing the vigorous national efforts, on several complementary fronts, that should and will continue to implement the constitutional right of civil litigants to access to the courts. For readers, I equate procedural due process, as implemented through the Mathews balancing test, and the access-to-court right. Here is what I take from the Majority Opinion in Turner, which I assume was written for Justice Kennedy:

Civil Gideon: In introduction, I note that this argument has been extraordinarily successful (well beyond my expectations), when made to the ABA, state legislatures, state access to justice commissions, and other policy-makers, based on logic, equity, justice, several different federal constitutional provisions and common sense. I hope the national leaders of the Civil Gideon movement will continue with it. For them, I would say that Turner deals only with a blatantly contemptuous, non-custodial parent who four times initially refused to provide for his child, then on each of these four occasions paid his arrearages immediately after he was sentenced to prison, proving that civil contempt works. On the 5th occasion, he “explained” that he was unable to pay because he “got back on dope…done meth, [and] smoked pot” after being released from prison the fourth time. Even then, in a compelling example of judicial patience, the court said: “If you’ve got a job, I’ll make you eligible for work release.” These facts lead to three thoughts:  First, Turner’s was truly contemptuous conduct and based on Turner’s history, there was no dispute about the only factual issue the Court identified in the case: “Could he pay”? The answer clearly was “yes” when he had to, except when he decided the 5th time to spend his money on drugs. The majority said that the central can-he-pay issue can be, as in Turner, “sufficiently straightforward to warrant determination prior to providing a defendant with counsel.” Under this extreme set of facts, some alternative form of assistance other than counsel is what is constitutionally required. Note: Justice Breyer says that a lay neutral, e.g., a social worker, based on Vitek, might have been what was required. Second, this was a truly awful test case. Third, the justice who replaces Kennedy likely will cast the 5th vote on future Civil Gideon cases, and hopefully this justice will be a second-term Obama appointment. (Justice Kennedy will be 75 this July.)

The future of Civil Gideon: To the leaders, I say: keep making Civil Gideon arguments to the ABA, state legislatures, especially to state access to justice commissions, and to other policy-makers based on logic, equity, justice, several different federal constitutional provisions and common sense. If you litigate, however, base the arguments on state declaration of rights provisions and procedural due process provisions (state and federal), the latter converting Civil Gideon into Civil Betts, as in Betts v. Brady, the precursor to Gideon, which recognized a right to counsel in criminal cases on a case by case basis.

Implications of Turner for the access-to-justice right: Supporting the provision of limited legal assistance (including “unbundled” representation) and the assistance of a lay advocate? The Majority Opinion recognizes that some form of law-related assistance is necessary to satisfy due process requirements in civil contempt cases, based on the Mathews formula. The necessary assistance might be the assistance of a social worker (e.g., Vitek), forms (probably based on the success of simplified pleading forms in limited-assistance family law projects), and whatever additional assistance provides a fair “opportunity at the hearing for the defendant to respond to” key factual disputes. Where the opposing party is represented by counsel, especially by government counsel, something more likely is required in civil contempt cases and may be required in other civil cases. That is, depending on the three Mathews factors, some of the forms of limited assistance that many legal services projects provide to indigent litigants in family law cases may be constitutionally required in some of those and other civil cases, thus validating the access to court right. Note: In Murray v. Giarratano, 492 U.S. 1, a civil post-conviction case (capital petitioner), Justice Kennedy, in casting the deciding 5th vote, found that a form of unbundled legal assistance satisfied the access-to-court right.

Implications for the lawyers’ practice monopoly: There is a warning in prior cases, see e.g., Bounds v. Smith, as well as in Turner: In enforcing the constitutionally based access-to-court right, the lawyer’s practice monopoly will yield when a trained lay advocate can provide the assistance that the Mathews’ balancing test determines is minimally required and adequate. The lawyer practice monopoly may be at risk in some civil cases in the future. This gives paralegal programs new importance and may provide additional incentive to the organized bar to support the continuing and future Civil Gideon movement.

UPDATE (June 27 at 3pm):

Upon re-reading the above, let me clarify what seems like unduly harsh criticism of Turner. What I summarize about Turner from the opinion only (not the record) is based on his pro se appearance in court. With a lawyer, the record undoubtedly would have looked different. My point was not to suggest that the Majority Opinion correctly decided the issue—to the contrary, it should have held that Turner was entitled to a lawyer. Rather, my assessment of Turner and the Turner facts was intended to suggest how the Majority Opinion might be limited, and distinguished in future Civil Gideon cases.

Michael Millemann

University of Maryland School of Law



Solove in SCOTUS

Since he’s not the kind of guy to post this himself, I thought I’d alert readers that our own Dan Solove was cited today in Justice Breyer’s dissent in Sorrell v. IMS.  Eugene Volokh helpfully summarizes the case (and its ancestors) here.  I agree with everything he says, except for the phrase “I think the majority (the conservatives plus Justice Sotomayor) is basically right.”


John Marshall’s Nomination

One of our readers, Daniel Rice, sent me this picture that he took at the National Archives.  It is President Adams’ nomination of John Marshall to be Chief Justice.  I love how the nomination is framed as a second-best choice (John Jay said no, so I guess I have to pick this guy.)

Thanks to all of you who are regular readers!


Practice What You Preach

The recent release of interview transcripts with the Justices on the subject of legal writing is drawing a fair amount of media interest.  The headline is that the members of the Court think that briefs are too long.  “Lawyers somehow can’t give up the extra space,” Justice Ginsburg said, “so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief.”

If you substitute “Justices” for “Lawyers” and “opinion” for “brief,” you get a terrific description of the Court’s output most of the time.


Justice Bingham?

One curious letter that I stumbled upon in the Bingham papers was sent to him while he was Ambassador to Japan. Dated March 16, 1877 and sent by S.R. Frazier, the letter states that:

“It has been whispered among some prominent ones at Washington as it comes to me that had you been here at home you would have been quite sure of the place now supposed to be in the hands of Stanley Matthews had you wished it.”

Stanley Matthews was appointed to the Supreme Court in 1881. (So Frazier’s gossip was off by a few years).  I see no other indication that Bingham was ever considered for the Court, but the prospect of his service there while the Fourteenth Amendment was being initially construed is a tantalizing constitutional “what if.”

The picture, BTW, shows you what you can get at the local diner in Cadiz.  I passed on the Bingham — eggs benedict is not my favorite.


SCOTUS AT&T Opinion Par for Rhetorical Course

Par for the Supreme Court course, its opinion in AT&T Mobility is rich with empty rhetoric about arbitration being a creature of contract while being more explicit than ever that what matters in these cases is the Court’s powerful national policy strongly favoring a particular form of arbitration over other ways to resolve disputes.

In finding preempted California contract law holding unconscionable clauses in consumer adhesion contracts mandating bilateral arbitration, the Court’s 5-4 opinion by Justice Scalia breaks only that little bit of new ground. 

The opinion’s principal notable points are (1) to stress more intensively than ever that a primary purpose of federal arbitration law is to promote bilateral arbitration, to streamline dispute resolution, and celebrate the informality of bilateral arbitration against class arbitration and (2) to elaborate the differences between bilateral and class arbitration that the Court assumed everyone knew in last term’s Stolt-Neilsen opinion.  And the Court continues to say that all of this is a matter of contract!

The Court stresses that its jurisprudence treats the federal arbitration statute as expressing both a liberal federal policy favoring arbitration and that arbitration is a matter of contract. Without showing awareness of the inherent conflict in this paired purpose, and parading its rhetorical feathers, the Court said the upshot is to put arbitration agreements on an equal footing with other contracts, including as to defenses.

The Court could not accept the validity of the California unconscionability defense, however, because it did not advance the national policy. Justice Scalia gave a new definition of that national policy, again combining two ideas that are in conflict while pretending they are in harmony: “to ensure enforcement of arbitration agreements according to their terms, so as to facilitate streamlined proceedings” (emphasis added).

The opinion fights tirelessly but unsuccessfully to prove that it has not made up this new version of the national policy. It struggles strenuously but unsuccessfully to persuade us that there is no conflict between its devotion to arbitration and basic principles of Anglo-American contract law. Read More

Rethinking Sorrell v. IMS Health: Privacy as a First Amendment Value

The Supreme Court will soon hear oral arguments in Sorrell v. IMS Health. The case pits medical data giant IMS Health (and some other plaintiffs) against the state of Vermont, which restricted the distribution of certain “physician-identified” medical data if the doctors who generated the data failed to affirmatively permit its distribution.* I have contributed to an amicus brief submitted on behalf of the New England Journal of Medicine regarding the case, and I agree with the views expressed by brief co-author David Orentlicher in his excellent article Prescription Data Mining and the Protection of Patients’ Interests. I think he, Sean Flynn, and Kevin Outterson have, in various venues, made a compelling case for Vermont’s restrictions. But I think it is easy to “miss the forest for the trees” in this complex case, and want to make some points below about its stakes.**

Privacy Promotes Freedom of Expression

Privacy has repeatedly been subordinated to other, competing values. Priscilla Regan chronicles how efficiency has trumped privacy in U.S. legislative contexts. In campaign finance and citizen petition cases, democracy has trumped the right of donors and signers to keep their identities secret. Numerous tech law commentators chronicle a tension between privacy and innovation. And now Sorrell is billed as a case pitting privacy against the First Amendment.
Read More