The U.S. Supreme Court recently heard oral argument in a child support case. The issue? Whether an indigent party is entitled to a court-appointed attorney in a civil contempt hearing when faced with the prospect of being sent to jail for violating a court order.

The case is Turner v. Rogers. Here’s what happened:

In January 2008, Michael Turner appeared in a South Carolina family court for failure to pay his court-ordered child support.  Mr. Turner was not represented by counsel.  At the time of the hearing, he owed nearly $6,000 in child support and had not made a payment in a year and a half.  Mr. Turner testified that his failure to pay was due to incarceration, drug addiction, unemployment, and injury.  The trial court found him to be in willful contempt of the child support order and sentenced him to twelve months in jail, which sentence he could purge himself of and avoid by full payment of his child support arrearage. In other words, if he paid the $6,000 he owed, he’d be released immediately. This is a remedy for civil contempt.

For more on the characteristics and differences between civil contempt and criminal contempt in Tennessee, see my earlier blog post, titled “A Primer on Contempt in Tennessee.”

Mr. Turner appealed to the South Carolina Supreme Court, arguing the Sixth and Fourteenth Amendments to the U.S. Constitution entitled him to the right to court-appointed counsel before being sentenced to one year imprisonment for civil contempt. The South Carolina Supreme Court disagreed.

In his brief, Mr. Turner argues that the same considerations that have led the Court to hold in other contexts that appointed counsel is required for a defendant who could be incarcerated apply to his case:  he needed an attorney to help him avoid incarceration by demonstrating that he could not afford to pay his child support obligations.  This conclusion, he continues, is also bolstered by due process considerations:  the risk of an erroneous outcome, with a resulting prison term, is high, particularly when compared with the state’s “minimal financial interest in refusing to provide counsel” and its complete lack of “interest . . . in maintaining a de facto debtors’ prison for child-support obligors who genuinely cannot pay.”

The mother argues there is no constitutional requirement that appointed counsel be provided whenever a defendant faces the prospect of incarceration.  Such a requirement finds no basis in the Sixth Amendment, which refers only to “criminal prosecutions”; moreover, she warns, requiring appointed counsel in civil cases could “blur the venerable distinction between criminal and civil contempt, inviting extension of a host of criminal procedures to various civil cases, such as immigration detentions.”

On March 23, 2011, the U.S. Supreme Court heard oral argument. A transcript can be found here. According to the New York Times’ report, the Justices struggled with the implications of their ruling.

Justice Kennedy told the lawyer on the other side, “there are thousands of these hearings around the country.” A blanket ruling requiring the appointment of lawyers would mean, he said, that “we’re going to change the entire landscape of domestic relations proceedings. . . .”

The point of civil contempt is coercion rather than punishment, and judges like to say that people held in such circumstances hold the keys to their own jail cells. All they have to do to be released is comply with the court’s order.

But Mr. Turner said he was too poor to pay what he owed, which turned his incarceration into pure punishment. He said a lawyer could have helped him convince the judge that jailing him in the circumstances was impermissible.

In a series of decisions starting with Gideon v. Wainwright in 1963, the Supreme Court has held that poor people facing the loss of liberty for crimes must be provided with lawyers. But those decisions were rooted in the text of the Sixth Amendment, which concerns only criminal proceedings.

A majority of states do provide lawyers to people in Mr. Turner’s situation, as a matter of state law. The question in the case argued Wednesday, Turner v. Rogers, No. 10-10, was whether court-appointed lawyers are required in civil contempt cases as a matter of the due process protections of the federal Constitution. . . .

Mr. Bibas cautioned the justices against disrupting the informality and effectiveness of child support proceedings in which neither side, he said, tends to be represented by a lawyer.

He added that requiring states to provide lawyers might cause them to decide not to pursue deadbeat parents at all. New Jersey, he said, had stopped trying to enforce child support orders through civil contempt after its Supreme Court recognized a right to counsel.

Justice Ginsburg questioned the wisdom of that financial calculation, noting that it costs money to lock people up, too.

While a majority of states may provide court-appointed lawyers to indigent parties facing civil contempt in child support cases, Tennessee does not. Thus, the U.S. Supreme Court’s ruling in this case has the potential to significantly change how child support cases are handled in Tennessee. Stay tuned to this blog for updates once this case is decided.