In a recent decision, the U.S. Supreme Court addressed the constitutionality of state civil contempt proceedings for a parent’s repeated failure to pay child support. The U.S. Constitution has been interpreted to entitle criminal defendants to legal counsel, but what about individuals facing jail time for non-criminal acts, such as failure to pay child support?
In 2003, a South Carolina family court ordered Michael Turner to pay Rebecca Rogers child support of $51.73 per week. Over the next three years, Turner repeatedly failed to make payments and was held in civil contempt five times. Twice he paid the amount due without being jailed, twice he paid after two or three days in jail, and the fifth time he did not pay but completed a six-month sentence. After being released, he remained in arrears and a family court clerk issued a new order to show cause.
Both Turner and Rogers were present without counsel at a brief hearing on the show-cause order. At this hearing, Turner admitted being in arrears but said that he had been “on dope” and then broke his back and was out of work. He concluded by asking for another chance. The judge then found him in willful contempt and sentenced him to twelve months in detention, stating further that he could purge himself by having a “zero balance” on or before his release. The court made no express finding as to Turner’s ability to pay, nor did the judge as any follow-up questions on this issue.
While serving his sentence, Turner appealed, claiming that the Federal Constitution entitled him to counsel at his contempt hearing. After the South Carolina Supreme Court rejected Turner’s claim , he sought certiorari and the United States Supreme Court granted a writ.
In a 5-4 opinion, the Supreme Court vacated the judgment of the South Carolina court and remanded for further proceedings. The Court first found that the appeal was not moot, despite the fact that Turner had already completed his sentence, as it fell within a category of disputes that are capable of repetition while evading review. The Supreme Court then turned to the heart of the case.
Justice Breyer, writing for the majority, began by noting that the Sixth Amendment only applies to criminal cases and that where civil contempt is at issue, the Fourteenth Amendment allows a State to provide fewer procedural protections than in criminal cases. Balancing the various interests, the Supreme Court held that the Due Process Clause does not automatically require provision of counsel at a civil contempt hearing, particularly where the opposing parent or other custodian is not represented and the State provides alternative procedural safeguards, such as adequate notice of the importance of ability to pay, fair opportunity to present and dispute relevant information, and court findings regarding ability to pay. Nonetheless, the Court found that Turner did not receive the benefit of such alternative safeguards; he did not receive notice that his ability to pay would be a critical question in the contempt proceeding and the court made no finding that he was able to pay his arrearage. Accordingly, the Supreme Court vacated the judgment and remanded the case to the South Carolina court for further proceedings.
Writing for the minority, Justice Thomas agreed that Turner was not entitled to counsel. He argued, however, that the Court should not have moved beyond that question and considered the issue of substitute procedural safeguards as that issue was not before the lower court, but raised in the Federal Government’s amicus brief.