An Ohio intermediate appellate court of appeals case, Crain v. Crain, 2012-Ohio-6180http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2012/2012-ohio-6180.pdf correctly reads Turner v. Rogers, and reverses a contempt judgement in which counsel was denied.

The defendant had been found in civil contempt for failure to make child support payments, and had been refused an explicit request for counsel, with the magistrate purportedly relying on Turner as follows:

One thing I’m going to tell you, I’m going to deny your request for
counsel at this time.    There’s a recent U.S. Supreme Court decision that came down on contempt citations regarding child support, and the decision of the justices is that obligors that are facing jail time in civil contempts are not entitled to court appointed counsel. So we’ll proceed today without Court appointed counsel * * *. Crain at 3.

The Ohio Court of Appeals corrected this misreading of Turner as follows:

[W]hile Turner does not categorically require counsel to be appointed for persons facing criminal contempt convictions for nonpayment of child support, a reading of the opinion demonstrates that neither does it categorically require, as stated by the magistrate, the denial of appointed counsel. Instead, a court must determine whether there are procedural safeguards in place that adequately protect the obligor.    There was no such determination in this case. Crain at 5.

Aside from the unfortunate reference to “criminal contempt,” to which, of course, Turner does not apply, this is a powerful statement of the requirement that a court assess the sufficiency of the “procedural safeguards in place [to] .  .  . protect the obligor.”

The opinion goes further, however, excusing the lack of procedural objection to the ruling, both because the error is “plain and structural” and, in a comment of more general use outside the state, “In fact, the need to preserve error at the magistrate’s hearing by objecting to the magistrate’s decision is something that a layperson
would not be expected to know without the assistance of counsel.” Crain at 9.

The opinion also correctly distinguishes Turner based on the facts that this case was brought by the state, and that counsel appeared for the state. Crain at 5.

The case might have been somewhat complicated by an unusual statutory structure — but the Court really did not rely on that.

It’s a strong and clear decision.

Updated P.S.

I was remiss in not giving credit for this information to the National Coalition for a Civil Right to Counsel, from which I received the information about this decision.  The Coalaition obviously play a critical informational and advocacy role.