The US Justice Department has filed an amicus brief in a civil Gideon case, albeit one dealing with a risk of incarceration, supporting reversal.  The case comes out of South Carolina, and involves one put in civil contempt for failing to provide previously ordered child support.

DOJ does not support the petitioner’s position that the failure to provide counsel to the civil contempt defendant automatically requires reversal,  but instead they take a more general position that may be supportive of a broader range of due process innovations.  The case is Turner v. Rogers, No 10-10, and the case is on for argument on Wed. March 23.

Regardless of how one might feel about the position as a whole, I think the brief can be understood and cited for the following, (page cites are to the amicus brief of the United States; key quotes below):

1. A right of access to justice exists and can require accessible court procedures even when there is no right to counsel (pp. 10-12)
2. An example of such a procedure that might meet these requirements might include the specifically mentioned availability of forms prior to a hearing. (pp. 16, 24-25)
3. Another example of such a procedure might include affirmative judicial questioning during the hearing to assist in bringing out facts critical to the decision. ( p. 21, 25)
4. (Somewhat more generally, but implied by the above,) there nothing inappropriate in judicial questioning of a litigant in order to assist in bringing out facts relevant to a decision. (pp. 21,25)
5. There are advantages in procedures that involve parents in the establishment of child support obligations. (p. 23)
6. There are advantages in flexible enforcement strategies such as order modification, increased contact with non-custodial parents, and use of automation. (p. 22)

“Although provision of government-provided counsel would have been a sufficient means of complying with due process requirements in this case, it was not a necessary one.  Other mechanisms, such as requiring an affidavit for disclosure of financial information and a preliminary assessment of petitioner’s current ability to pay child support, would have satisfied the requirements of due process.” (p. 16)

“At the contempt hearing, the court solicited no financial information from petitioner, nor was there apparently any mechanism in place for him to provide it on his own.  Petitioner’s statement at the hearing that he had been unable to work because he broke his back, Pet. App. 17a, could reasonably be understood to constitute a claim that he had no present ability to pay nearly $6000.  The court did not explore this question, however; it made no inquiry into petitioner’s income or assets.  Instead, the court imposed a jail sentence unaccompanied by any finding that petitioner had the ability to pay off his outstanding balance from a jail cell.[footnote omited]  Taking additional modest steps to determine whether petitioner had the present ability to discharge his obligation, . . .  would have improved the accuracy of the proceeding.” (pp. 20-21.)

“Appointment of counsel is certainly one way to help ensure an accurate determination of the obligor’s current ability to pay—the determination on which the “civil” nature of a civil contempt sanction rests—but it is not the only way.  It was the State’s failure to provide any meaningful mechanism for making that determination in this case, and not its failure to provide counsel in particular, that violated petitioner’s due process rights.” (pp. 23-24.

One other thought:

Relevance of State Action/Incarceration

It might be argued that the accessibility obligations urged on courts by the US in this brief depend on the fact that there was exposure to incarceration in the civil contempt proceedings, and that fact was surely relevant in the balancing tests the application of which the US was urging.  But the US explicitly urged that the risk of incarceration did not control.  At the very very weakest, the language in the amicus means that the US thinks that there is nothing wrong with the procedures of forms and judicial questioning discussed in the brief.

Moreover, the fact that the state is here moving for the deprivation is not controlling.  Even if a case is between private parties, there is still state action in the court making the decision and imposing the judgment, involving the coercive powers of the state, and therefore argument for the procedures urged by the US in this brief.

These are just my initial thoughts.  I would very much welcome either comments to the blog, or to me personally.