The Supreme Court has decided Turner v. Rogers. Opinion by Justice Breyer (5-4), with Justice Kennedy joining the majority. http://www.supremecourt.gov/opinions/10pdf/10-10.pdf.

AP Story, via NYT

David Udell and I have launched our Symposium on ConcurrngOpinions.

The post below is a copy of the launching post.

The Court basically accepts the Solicitor General’s position that reversal is required, not because there is a categorical right to counsel, but because the trial court failed to follow available procedures to establish whether non-paying father had a current ability to pay.

Here are the (to me) major highlights of the majority Opinion:

• The Court reaches the case as “capable of repetition,” while “evading review.” (Slip Opinion at 6.)
• Civil contempt has lesser protection than criminal. (Slip Opinion at 7)
• In determining whether there is a right to paid counsel at a civil contempt hearing, the Court applies the Mathews v. Eldridge factors of private interest impacted, risk of erroneous deprivation, and countervailing interest in nor providing additional protections.  (Slip Opinion at 11.)
• Arguments AGAINST need for counsel in all cases are: (1) Ability to pay is like indigence in that it is something that can often be determined before decision as to whether counsel can be provided; (2) the opposing side is NOT the state, and often there is no opposing counsel, and creating a right to counsel would “create an asymmetry of representation” increasing risk of unfair decisions; (3) as pointed out by the Solicitor General, there are “available at set of ‘substitute procedural safeguards’ quoting Mathews.  (Slip Opinion at 13-14.)
• Importantly for the decision: “Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.”  (Slip Opinion at 14).  Citing to Solicitor General Brief and oral argument.
• The Court is careful to limit its holding to cases in which the opposing party is not the state. (Slip Opinion at 14.)
• Also: “Neither do we address what due process requires in an unusually complex case where a defendant ‘can fairly be represented only by a trained advocate.’” Quoting Gagnon.  (Slip Opinion at 16.)
• Dissent, per Justice Thomas, argues, inter alia, that the procedures suggested by the Solicitor General are not properly before the court, and so “[a]lthough I think that the majority’s analytical framework does not account for the interests that children and mothers have in effective and flexible methods to secure payment, I do not pass on the wisdom of the majority’s preferred procedures. (Slip Opinion [dissent] at 12.)

Here are some questions that I hope our symposium addresses in the week to come.

• What do we do to make sure that this decision is not used to undercut the current law in those states that do provide counsel in these cases?
• Does the discussion of the roles of the “civil” label and of the threat of incarceration provide any openings for ongoing strategies?
• Does this emphasis on the absence of the state on the other side impact the overall strategy to enhance the provision of counsel?  Is there a follow up case, and what are the implications of the fact that this case was brought first?
• Does the Court’s limitation of the case to those that are not “unusually complex” and acknowledgement that some cases require a “trained advocate” suggest a long-term strategy to illustrate the complexity of such cases, starting with examples of obviously complex cases?  Does this suggest an attempt to re-read Lassiter to focus on its implication, here arguably strengthened, of a right to an individualized determination of the need for counsel (or other procedures)?
• Does the Court’s emphasis on the accuracy of the decision under the Mathews test mean that we need to emphasize the accuracy issue more in future analysis and litigation?
• Does the reference to “substitute procedural safeguards” open a door for urging on courts (both through access to justice commissions and potentially litigation) the constitutional significance, as well as the underlying value, of courts reviewing their procedures and services to ensure that litigants are properly heard in all matters?
• Does the reference to the “the use of a form (or the equivalent) to elicit relevant financial information” in the discussion of these safeguards similarly strengthen the arguments for much broader use of forms – including automated forms – in a broad range of cases?
• Does the reference to the “opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form” similarly open the door for much broader court attention to the role of judges in asking engaged but neutral questions designed to get at the truth?  What are the roles of codes of judicial ethics in this process?
• Does the reference (in the Slip Opinion at 15) to the possibility that “sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient,” open the door to advocacy for more court-based informational services, or even innovations with non-lawyers being allowed to provide different kinds of help in preparing or presenting cases?

P.S.  My co-moderator of this Symposium, David Udell, has not yet been able to add his always highly valuable perspectives to this post.  I am sure he will have points to make and questions to ask.  We will both be adding more detailed analysis in the week to come.