U.S. Supreme Court opens door to right to counsel in civil cases

By David Frank and Kimberly Atkins

Dolan Media Newswires

PROVIDENCE, RI--A recent U.S. Supreme Court case could lead more trial judges to find a right to counsel in civil cases in which litigants face the potential loss of liberty or other rights and procedural protections are lacking.

The case, Turner v. Rogers, "sets a precedent allowing judges to be a little more proactive in deciding when pro se litigants" can get appointed counsel in civil cases, said Albert S. Dandridge, a Philadelphia lawyer who has written about the ruling's implications.

But just how far that right might extend remains an open question, as judges in Rhode Island and around the country begin exercising the new discretion granted to them by the court.

"By and large, the appellate courts are going to give [trial] court judges a lot of leeway and try not to get involved too much," Dandridge said. "At some point in time, the [trial] court judges will work out the parameters of the right to counsel. We'll have to wait for those cases to percolate."

Andrew Horwitz of Roger Williams University School of Law said it is undisputed that the Sixth Amendment provides litigants the right to counsel in criminal cases. But he said he was not aware of any court, until now, ever applying the principle to a civil proceeding.

"I've certainly read reams of advocates taking the position that we ought to, on a whole host of levels, be providing counsel when basic fundamental human rights are at stake in a civil matter," he said. "But I've never seen it done by a judge, and I applaud the court for taking the position they took here."

Determining the 'critical question'

The case before the Supreme Court involved Michael Turner, who was sentenced to 12 months in jail for civil contempt for failing to pay child support. He was not represented by counsel at his contempt hearing.

He later obtained pro bono counsel and appealed the sentence, arguing that his Sixth Amendment rights were violated because he could not afford a lawyer and court-appointed counsel was not provided to him.

The South Carolina Supreme Court rejected his appeal, finding that the right to counsel only attaches in criminal cases, not civil contempt proceedings.

But the U.S. Supreme Court reversed.

Although the court held that the 14th Amendment's due process clause does not automatically require the state to provide counsel to an indigent party for civil contempt proceedings, the 5-4 majority ruled that the defendant's constitutional rights were violated because the state provided neither counsel nor "alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question" -- in this case, his ability to pay child support.

Turner "did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding," Justice Stephen G. Breyer wrote for the majority. "No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that [he] was able to pay his arrearage, but instead left the relevant 'finding' section of the contempt order blank. The court nonetheless found [him] in contempt and ordered him incarcerated. Under these circumstances [his] incarceration violated the Due Process Clause."

Rule extension

Horwitz, director of Roger Williams' clinical programs and criminal defense clinic, said the right to counsel should not be limited to civil proceedings in which a person's liberty is at stake, like in Turner's case. It should also apply to those facing the possibility of losing housing, government benefits and driving privileges, he said.

The Rhode Island Traffic Tribunal, where unrepresented litigants often face lengthy license losses, is another area in which the court's ruling should be utilized, Horwitz said.

"The court finally appears to recognize this sort of fiction we have created that the only thing that matters in terms of the right to counsel is going to jail," he said. "This case at least opens the door to a recognition that we ought to be thinking more broadly about fairness and access to justice, because right now in Rhode Island we have a legal system that is incredibly unequal and unfair to poor people who have no ability to look out for their legal rights."

While the case was far from a slam-dunk win for those who advocate for a broader right to counsel in civil cases, it does crack open the door far enough for a first step.

"I think that this is very much a glass half full or a glass half empty opinion," said Russell Engler, director of clinical programs at New England Law-Boston.

The justices gave more leeway for digging into the record to determine if the facts, coupled with the lack of counsel, demonstrate a lack of due process, he said.

On the other hand, the court did not find such a right to be automatic, even in cases in which incarceration is a possibility. And the court was split, meaning the flexibility lower courts now enjoy could be cut off in the future.

"There is no automatic right, and four justices have said, 'That's all you should say,'" Engler noted.

Difficult line-drawing ahead

Now lower courts will begin issuing decisions that will shape the parameters of the civil right to counsel. The expectation is that they will draw lines based on the severity of the potential punishment, the fairness of the process that litigants face, and the power of the party on the other side.

"The devil will be in the details," Engler said.

He suggested the argument for appointed civil counsel will be strongest in cases involving the potential loss of "basic human needs," such as "liberty, the right to raise your kids, the right to have a roof over your head and [protect] your health."

But even in those areas, the line-drawing can be tricky.

"If you have two parents who are pro se litigants, do you appoint counsel for both of them?" Engler asked.

Most states have access to justice programs in place to help evaluate the effectiveness of judicial processes, he said.

But courts are bound to disagree, and their rulings could give the Supreme Court a chance to weigh in again on the civil right to counsel.

"It could work its way back up the Supreme Court," Dandridge said. "That is how these things tend to work."

Entire contents copyrighted © 2011 by Dolan Media Company.

Published: Thu, Sep 8, 2011

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