In State Dept. of Family Services v. Currier, 2013 WY 16, the Wyoming Supreme Court rejected the claim that the risk of incarceration required appointment of counsel in civil contempt child support cases in which the relief was sought by the state, with the assistance of counsel.
This, of course, is a question reserved in Turner v. Rogers.
The opinion is disturbing, not only in the result, or the fact that this is the first state supreme court to decide the issue since Turner, but because of the logic, which seems fallacious.
The court correctly notes that the issue is held open by Turner, and then discuses the analysis of Turner and Mathews v. Edgridge, but then makes the following leap.
By contrast, the procedure employed in Wyoming contempt proceedings for failure to pay child support was described by the district court in this case as:
The Respondent in this and all Child Support Enforcement matters are informed in the Petition, and by the Court, of the burden on the State to show a failure to pay court ordered child support is willful. Respondents are provided forms upon which they can set forth current income, asset and liability information and are given opportunity to explain any reasons they may have for failure to pay.
These procedures meet the notice and opportunity to be heard requirements set out in Turner. Given those procedures, it is hard to imagine what more appointed counsel could bring to the dialogue.
There are two problems here. First, the question, as indeed accurately stated but never properly analyzed by the court is: “We must consider what procedures are in place or may be put in place to offset the lack of symmetry occasioned by DFS being represented while the obligor is not to determine the comparative risk of erroneous incarceration.“
The procedures approved by by the Wyoming Supreme Court, however, were the same as those approved in Turner for use in situations where the plaintiff is not the state and no party is represented by counsel. The Wyoming Supreme Court did not examine whether these same procedures could also suffice in the case before it, where the state is the plaintiff. In fact, it is hard to know how the Wyoming Supreme Court really could have passed on these procedures as applied to the facts, given how little detail it had about the facts from the trial court. The court also gave little heed to the warning in Turner that state-initiated proceedings “more closely resemble debt-collection proceedings” (Turner at 15) and that, “[T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” (Turner at 15-16, cf cite, quoting Johnson v. Zerbst)
Secondly, the conclusion that “it is hard to imagine what more appointed counsel could bring to the dialogue” is hard to understand, given the absence of any record as to the details of the case, and the absence of counsel on appeal. (This is partly the result of the procedural context of the case, in which the trial court ordered appointment of counsel, to be paid by the state agency, and the agency appealed, thereby apparently cutting off the presentation of any counter argument. It appears from the docket entries that one of the nominal respondents (probably the non-paying father) moved and left no forwarding address, that no opposing brief was filed, and that the case was expedited for decision without hearing. In contrast, there are four lawyers listed as appearing for the government.
In short, the opinion should be given no deference by other states that ultimately consider the issue.
P.S. Thanks to the National Coalition for Civil Right to Counsel for information for this post.