The Georgia Court of Appeals (intermediate appellate court), in a complex, but none-the-less discouraging and hard to understand (in both senses of the phrase) decision has de-certified the class in a case designed to answer a question left open in Turner, whether those facing civil contempt incarceration sought by the state are entitled to counsel. (The named members of the class were all incarcerated.) The case is Deal v. Miller.
As I understand the logic of the decision, the Court of Appeals found that, because the named members of the class had failed to request counsel below, they had not been “denied” counsel, and thus there was absence of all of actual injury, common question, typicality, or the same refusal to act with respect to members of the class.
Again, as I understand it, these conclusions all stem from the fact that in 1978 the Georgia Supreme Court rejected a claim that the courts had a duty to inquire as to the desire for counsel in this kind of case.
The logical defect is obvious, the Turner decision throws the 1978 decision into, at the very least doubt. Indeed, in Turner, there was not request in the trial court for counsel, and the Supreme Court reached the issue. (It must be admitted, however, that the South Carolina Supreme Court did reach the issue before US Supreme Court review.) The Georgia Appeals Court tried to square the circle by asserting that “[t]o find otherwise — absent actual request for and denial of counsel — would be to decide the ultimate issue in the case, which is whether indigent child support obligors are entitled to counsel in civil contempt proceedings where the State is a party and has representation. The ultimate issue is not before us.” It seems to me, by relying on the 1978 decision, it it in fact relying on an assumption about the ultimate decision.
In the end, however, I am less concerned with the rights and wrongs of this unfortunate decision, and more with the pattern that is starting to evolve. With the Wyoming Supreme Court decision, there are now two states where the court has treated the post-Turner claim with logic that is hard (for me at least) to understand. There may be a message in this for advocates: the judicial climate is not sympathetic in states that in the past have not provided counsel in these situations.
There may be a message her that the judicial climate in states that have in the past not provided counsel in these situations is not sympathetic to these claims. This surely reflects the reality that it is very hard, in the current environment, for judges to order the state to incur significant additional expenditures.
It may be that a more productive path in creating useful progeny for Turner may be not in focusing on the unanswered contempt question in the case (at least in states already hostile to the claim.) Rather there may be more fertile ground in using the general tests of Turner to expand services, including a right to counsel, in those states that have shown their general sympathy to such claims by, for example, providing counsel to the Turner class.
Should a trial judge rule, in response to a pleading possibly prepared with the assistance of a self-help center or legal aid program, that the judge can not make the procedural adjustments needed to ensure access in a particular case, and that therefore counsel is needed, it would have to be a strong-minded appellate court to reject the claim on appeal. Such a claim would be particularly likely to survive in a state in which the public defender statute had been structured to provide payment in all cases in which the law provides for counsel. (see, e.g. Massachusetts General Laws Ch 211D, Section 5 (“laws of the commonwealth or the rules of the supreme judicial court“).)
Thanks to the National Coalition for the Civil Right to Counsel for pointing out this case.