Below find the full text of my post on ConcurringOpinions titlted Turner’s Trombone Blows for Every Self-Represented Litigant.  It is, of course, part of the Synposium on the case that David Udell and I are co-hosting.

Turner v. Rogers, 564 U. S. ___ (2011), (Slip Opinion here) should be considered a landmark decision for the self-represented.  In its first ever trip to the civil self-represented courtroom (beyond right to counsel issues), the Court establishes that:

• There is a due process right to court procedural safeguards” that ensure the protection of the right to be heard in casers involving potential deprivation of a constitutionally protected interest.
• The extent of those “procedural safeguards” depends on:  “(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safe- guards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].” Slip Opinion at 6, quoting Mathews v. Eldridge, 424 U. S. 319, 325 (1976).  (Interestingly, while the court does not explicitly limit the use of the costs of procedures as a “countervailing interest,” it does not mention cost in the application of the due process balancing test to these facts.)
• Ultimately overall “fundamental fairness” and accuracy are the touchstones as to what procedures are constitutionally required. Slip Opinion at 13-15.
• In this case of threatened civil contempt incarceration, the constitutionally required procedures include: (i) notice of the specific key determinative element (here ability to pay the overage); (ii) a form to gather information on the key elements; (iii) questioning on this key element from the bench (at least when needed to clarify the situation), and; (iv) an explicit (not implied) determination of the key element. Slip Opinion at 14
• The right to “fundamental fairness” and accuracy of one seeking government’s assistance in depriving someone of a constitutionally protected interest (i.e. plaintiffs) is very much part of the constitutional calculus, not only that of those facing the deprivation (i.e. defendants). (Here the risk of unfairness or inaccuracy caused by providing counsel to one side when the other did not have counsel was a major consideration for the Court.  Of course, the Court had not been asked to, and did not consider providing counsel to both.) Slip Opinion at 13-14.
• The specific “alternative procedures” are required even though the government is not on the other side, and the opposing party is also self-represented.  Were these different, greater protections, including possibly the right to counsel at state expense, might be required. Slip Opinion at 15-16.

I believe that this case therefore means that:

• The procedures in place in any self-represented case that involves potential deprivation of a constitutionally protected interest must comply with Mathews, and now Turner.
• Above all, the “alternative” procedures must be sufficient to provide fairness and accuracy to both sides – i.e., this is about both plaintiffs’ and defendants’ right to be heard.
• Forms and judicial questioning, since they can be implemented at minimal cost, and with minimal burden, are likely to be found constitutionally required (when needed for accuracy and fairness) in a wide variety of self-represented cases, for both sides.  (Evaluation will be an important part of the rollout process.)
• The claim that judicial questioning is inappropriate and inherently non-neutral is now finally dead.
• Similarly, the now much less frequently made claim that court provision of forms is wrong as non-neutral is also blown away. (Those resistant to change will surely claim that the opinion was limited to incarceration/civil contempt.  This is wrong.  It is only that so far forms are only required in that context – although the logic goes far further.)
• These last points can more generally be made about a wide variety of neutral court-based services to the self-represented, such as informational centers, informational materials, and neutral assistance in moving the case forward.  Moreover, potential costs of such procedures, while far from irrelevant to the balancing, are likely to be less constitutionally determinative than they were before Turner.

In addition, the decision may have many further ramifications.  For example:

• The decision, and particularly its focus on accuracy and “fundamental fairness,” strengthens the argument for innovation in the creation of other alternative procedures.  These might include as lay advocates before and during court or the use of neutral court staff to assist in preparation of the facts for the hearing (generally mentioned in the opinion.)
• The decision will help focus courts’ attention on the process by which they decide what kind of procedures or services are necessary in a particular case.  It may well be that the judge is not the best placed to make that decision, at least in the first instance.  The choices, or course, go way beyond attorney or no attorney, but include unbundled assistance, technology services, as well as new forms of intermediate services, components of an increasing continuum.
• Thus triage – individualized assessment of needs – will need serious exploration as part of the court intake process.  Where needs cannot be met by alternative procedures, civil Gideon claims including categorical claims, will continue to be likely and appropriate.
• The decision will provide Access to Justice Commissions and court Self-Represented Task Forces with a Constitutional imperative for addressing the sufficiency of their state’s self-represented procedures.  National players should be ready to provide assistance and support.
• To the extent that courts fail to take leadership in the post-Turner world, they may find themselves subject to challenge, either on civil Gideon or Turner-violation grounds.
• We will need national strategies to encourage and support forms adoption, judicial engagement, and, indeed, broader innovation and experimentation.

I believe that those concerned with access, including courts throughout the system, will be working out the full implications of this decision for decades.

(I have used “Trombone” rather than the perhaps more expected “Trumpet”  in the title to this post because: a) I assume that the biblical trumpet had only one note, and, b) the trombone, like this opinion, sounds different depending on its context.  Thanks for the naming concept to Andrew Cohen in the Atlantic who earlier used the phrase “Turner’s Trumpet”.)