Turner v. Rogers Briefs Part 2: The Respondents’ Merit Brief

Last week, the respondents in Turner v. Rogers, Docket No. 10-10 filed their merit brief. I’ve now had a chance to get the doc, read it, and share my analysis / comments. Remember a general rule in advocacy: if the law is on your side, argue the law. If the facts are on your side, argue the facts. Respondents’ brief is a prime example of this. As I’ll discuss in detail infra, the brief uses the messy facts to great advantage. Mr. Turner is painted into quite the villain here. That said, let’s get to business.


The respondents’ brief lists two respondents: Rebecca Rogers and Larry E. Price, Sr. These persons are represented by:

(1) Stephanos Bibas (the counsel of record), and a team of others working in the University of Pennsylvania Law School Supreme Court Clinic.

(2) Stephen B. Kinnaird of Paul Hastings’ D.C. office. For those unfamiliar with the firm, Paul, Hastings, Janofsky, and Walker, LLP is a major ‘Big Law’ firm that has numerous US offices and a strong international presence as well.

One last item: appendices are attached to the brief. Over 60 pages worth of material from the record is available at the end of the brief for those interested in more details.


The respondents’ team comes out swinging, stating:

“A child’s indigent mother repeatedly appeared pro se in a series of civil-contempt actions to enforce a child-support decree against the child’s father. At his sixth hearing, the father admitted fault and was confined for civil contempt. His appellate lawyer sought no stay, and he completed serving his twelve-month term of confinement. …”

They then go on to ask the two questions presented, although rewording the second question as follows: “In a mother’s pro se action to enforce a child support order, does the father have a categorical Sixth or Fourteenth Amendment right to appointed counsel before he can be confined for a limited time for civil contempt?”

For those unfamiliar with the term of art pro se, this indicates that the mother represented herself. Any person has a right to represent his or herself if desired, although it’s rarely a wise choice. In civil cases where a poor person wants to instigate proceedings, it may be the only choice however. The protections of Gideon v. Wainwright, 372 U.S. 335 (1963) and its progeny have never been extended beyond a defense context. In other words, when a person is accused of something or otherwise threatened by government action that seeks to limit his physical liberty, the due process concerns are great enough that they warrant a constitutionally mandated right to appointed counsel. However, the law has yet to suggest that a person who wants to bring a suit (a plaintiff) would be denied due process if he or she couldn’t afford an attorney…and at any rate this is usually a moot consideration since many lawyers will work for plaintiffs on contingency fees (e.g. you don’t pay unless we win, and if we win, I’ll get attorneys fees). The respondents make it clear from the get-go that no such arrangement was made in Mrs. Rogers’ situation. Creating sympathy from the start…arguing the facts.


When I discussed the petitioner’s brief, I made note of the fact that the parties section is completely unremarkable…usually. As with his brief, there is something to take note of when looking at what the respondent has to say.

We have an explanation of how Larry Price, Sr. factors into the case. The respondents write that:

“[b]ecause of her poverty, Mrs. Rogers had to relinquish physical custody of B.L.P. to her parents, Judy and Larry E. Price, Sr. Accordingly, in May 2009, the Oconee County Family Court redirected future child support payments from Mrs. Rogers to Mrs. Price. When Mrs. Price passed away in June 2010, Mr. Price retained sole physical custody of his granddaughter B.L.P., and the family court redirected future child support payments to him. Thus, Mr. Price is a second named respondent. This Court granted his motion to intervene when it granted certiorari. …”

The brief also explains in more detail what exactly is going on with the South Carolina Department of Social Services (DSS). Are they a party? Are they not? According to the respondents, the DSS is not involved. While the respondents attempted to add them, DSS refused to intervene stating that it was not a party to the early suit in the South Carolina Supreme Court. I’m a little surprised they wouldn’t want a piece of the action given what a direct interest this ruling will have on child support hearings…but c’est la vie. For one reason or another, they’re staying out of this.


I think it’s also worth discussing the respondents’ statement of the facts and law here because it gives us a clear picture of how they justify their position. The section begins by trying to arouse sympathy. Mrs. Rogers, a poor person herself, acted on her own numerous times over eight years to make an unsupportive father care for his child. They say, “millions of noncustodial parents (usually fathers) willfully avoid paying [child support], often by working off the books.” (emphasis added).

While that’s more or less true, the next point they suggest most certainly isn’t: “Child-support civil contempt proceedings…are straightforward and informal, so lawyers are unnecessary.” This argument doesn’t get us very far. I may find a traffic violation proceeding to be straightforward (show up, plead guilty, pay the fine, go home.) but that doesn’t mean I shouldn’t have a right to representation if I might facing jail time or the like (e.g. in a DUI case).

As if that argument weren’t silly enough, the next one adds insult to injury. The argument is advanced that allowing indigent defendants to have appointed lawyers would give an unfair advantage to them and ‘’unlevel’ [my made up term] the currently even playing field that pro se mothers have. …


First of all, when discussing the reason why lawyers aren’t necessary, one of the points suggested is that, “When lawyers are involved, they do little that requires legal expertise.” If that’s true then how would it make the playing field any less even? These two arguments (a. that lawyers are unnecessary due to the simplicity of the proceeding and b. that allowing lawyers to defendants would be unfair) cannot be reconciled so I will have to assume they are proposed as alternative arguments.

That being so assumed, the second argument is still very flawed. It presumes that a plaintiff has some right akin to the due process rights of a defendant. The reason we provide counsel to indigent criminal defendants is not focused on a “level playing field” for that necessarily requires a relative reflection on the quality of both parties’ legal representation. Indeed, defendants in civil cases have not generally been given a right to counsel…this hardly smacks of a level playing field. No, on the contrary, we provide indigent criminal defendants right to appointed counsel regardless of the other side’s representation. We do it not to craft an ideally-balanced adversarial environment but rather to make sure the individual right to due process is not abused or done away with entirely.

I could go on in much more depth about this point but we haven’t even gotten to the actual arguments yet…so I’ll restrain myself.

Also interesting in this section of the brief is the respondents’ explanation of the background facts. I recently posted a version of the background taken from the South Carolina Supreme Court opinion and Mr. Turner’s merits brief. Here, we get a different viewpoint (not surprisingly) of what happened that led up to this case. Mr. Turner was 19, Mrs. Roger 17, when B.L.P. (the child) was born. After Mrs. Rogers sought child support through DSS, Mr. Turner went through a series of different jobs including automotive, construction, and painting work. Nevertheless, Mr. Turner regularly fell behind on his payments and this led Mrs. Rogers to ask the family court (at a hearing on Sept. 14, 2005) to place him in confinement. The judge refused on the grounds that he’d need to know what Mr. Turner’s excuse was before he could determine proper sentencing (talk about innocent before guilty). Of course, as both sides note, Mr. Turner was placed in jail not long after that when he was haled into court on a bench warrant.

One other interesting detail of history: respondent says that Mr. Turner—more than just being a drug addict—sold drugs in 2009 and 2010. One incident mentioned was a buy and bust involving Xanax in 2009; this past November (not long after the Court granted cert. to hear this case), Mr. Turner pleaded guilty to three outstanding drug-related offenses. As it presently stands, he is serving suspended sentences for those drug counts, a year of probation for the Xanax offense, and a six-month suspended sentence for another offense relating to drug possession.

Respondents naturally suggest that someone dealing drugs and able to post surety bonds relating to these offenses (he did indeed post a $10,000 bond) obviously could have been paying his child support but was simply evading the matter. The facts are what they are, this may be true or it might be an unfair representation. Either way, I don’t think it bears much if any relevance on the legal issues of this case. Both the nicest and meanest people have constitutional rights, and they have those rights not because of their character but their citizenship as Americans.


So enough with the facts and how they’re being construed; let’s get into the argument. The brief lays out four specific positions, which I’ll list below and address in turn:

  1. The Court lacks jurisdiction because the case is moot.
  2. The right to appointed counsel is limited to criminal prosecutions, not pro se child support proceedings
  3. Due Process does not create a per se right to appointed counsel in all cases that might result in confinement
  4. Neither a case-specific balancing test nor the acting Solicitor General’s novel approach of “additional procedures” is properly before the Court

A. Jurisdiction

The respondents attempt to argue that the case should be considered moot because the petitioner did not seek a stay pending appeal. This matters since the year-long prison sentence in question has been completed. The brief points out that the petitioner does not specify what relief is sought anywhere in his brief. Further, the petitioner’s argument that his claim falls under the “capable-of-repetition-yet-evading-review” exception is squarely attacked because petitioner is not the only person who could bring this type of claim. Also criticized is the argument that petitioner is likely to be in this situation again if the Court does not address the matter. Further, it is suggested that since this is not an exceptional case but rather one seeking an advisory opinion, the exception should not apply. Even still, respondents do nothing to try negating the authority of 28 U.S.C. § 1257(a), which the petitioner relies upon in arguing that jurisdiction is proper.

B. Limitations on the Right to Counsel

It’s no surprise that the respondents want to keep the criminal/civil distinction intact.– they have to if they want to have any legal ground to stand on. But they mistake the point in suggesting that “Potential Loss of Liberty Does Not Turn a Civil Case Into a Criminal Case,” as argued in their point heading. The issue is not whether right to counsel should apply to criminal or civil cases– it’s whether the right should apply to people facing incarceration. Respondents rely on dicta from a military case, Middendorf v. Henry, 425 U.S. 25 (1976), to suggest that civilians are similarly without a categorical right to counsel when facing a loss of physical liberty. Moreover, the respondent again mistakes the point. Middendorf was talking more about defining criminal versus civil, not about when due process is threatened. Respondents drive home this argument about the criminal / civil distinction under the theory that the reason we protect criminal indigents is because they’d be up against professionals without attorneys of their own. So the theory goes, since most civil contempt proceedings are “straightforward” and instigated pro se, the indigent is not at a distinct disadvantage.

This argument is weak. As I touched on supra, this level playing field argument must lose because due process is not about how competent your opponent is…the right to counsel is categorical because of your lack of knowledge of the system irrespective of the other side’s skill level.

The respondents also make arguments about civil contempt as opposed to criminal contempt. For the most part, these arguments are what you would expect and I will direct those who have more interest in this aspect to read pages 35-40 of the brief itself.

Along with the arguments on criminal / civil distinctions above, the respondents argue that finding for the petitioner would “flood courts with litigation seeking to extend other criminal prosecutions to civil cases.” For the reasons I’ve suggested in my post, Turner v. Price: Thoughts on Civil Contempt, I still disagree.

C. Per Se Right to Appointed Counsel

Now we get to the arguments of what satisfies due process. It bears noting here that the argument respondents take up is that a right to counsel is not categorical here. In other words, they argue that the mere possibility of imprisonment does not automatically suggest due process is threatened if counsel is not appointed for indigent defendants. In so arguing, they attack the petitioner’s explanation of Lassiter v. Department of Social Services, 452 U.S. 18 (1981), suggesting that the case cannot be relied upon since it was not addressing an imprisonment situation. True enough, Lassiter was about a mother facing loss of custody of her child. Even still, the Court did say quite clearly there that the one thing guaranteeing a right to counsel was imprisonment.

Of course, the brief advances a strongly deferential approach to evaluating the constitutional claims of the petitioner. To very quickly summarize the point made at length: family law is a state issue best left to the state. The Court shouldn’t intervene unless there is some incredibly egregious injustice occurring.

Then comes my hot-button issue. The brief calls for highlighting the pro se aspect of civil contempt proceedings. It argues at some length that this case should be decided within the context of parents proceeding as plaintiffs pro se. Specifically, two arguments are made: (1) proceedings in these types of matters are simple enough that defendants don’t need lawyers, and (2) plaintiffs (and their children) will be disserved by appointing counsel to defendants in these proceedings.

I have a real problem with these notions. It is suggested that indigent defendants have no great need for representation because lawyers would contribute little in such proceedings and because defendants would have to prove essentially the same facts (lack of sufficient income) in order to get a court-appointed lawyer as they would to avoid civil contempt.

So what?

It does not follow to say that, because defendants don’t necessarily face insurmountable odds, they shouldn’t have a right to counsel. The test has never been whether or not defendants are have the skills to try a case themselves but rather, whether or not they are poor. The presumption is that all laypersons, regardless of income, lack sufficient legal skills to ensure they receive a fair trial. With that as a fundamental assumption set down in Gideon, the question then turns on whether or not a person has access to legal representation and what happens if they do not. It would be one thing if Mr. Turner was wealthy or if he was facing court fines yet this is not the reality. The reality is that Mr. Turner faced incarceration (and indeed was incarcerated) and that he could not afford an attorney. Here, I will admit that if the respondents’ assertions about Mr. Turner’s own ability to pay are correct, the right to an attorney obviously does not exist. However, this case takes up the question of indigent rights. If we operate on the assumption that Mr. Turner was unable to pay for an attorney, we necessarily must admit that he is of precisely the vulnerable population Gideon seeks to protect. It should make no difference what court he is in, how stringent the rules of procedure are, or how sophisticated the substantive claims are. What should matter is that he was threatened with jail time.

It is equally unsatisfying to dwell on the plaintiff’s rights. I have a great amount of sympathy and compassion for mothers…especially for those like Mrs. Rogers who are living below the poverty line. But for all my sympathy, the law is nevertheless clear on this point: there is not a duty to make sure indigent plaintiffs have representation. Though this may seem cold, the policy behind it is sensible. We must draw a line somewhere with respect to when tax-payer money will support a person’s legal representation. Both the respondent and I are in agreement that this line does (regardless of whether or not it should) fall short of purely civil matters. Both the respondents and I agree that an indigent defendant facing a personal injury suit does not have a constitutionally mandated right to appointed counsel…and that’s the party at risk. When a plaintiff brings an action it generally occurs after a wrong has happened (with the caveat of preliminary injunctions and temporary restraining orders readily acknowledged). My point here is that when we draw a line, we look to preventing or minimizing the risk of unjust harm befalling a person. This is the logic that underlies the “innocent until proven guilty” mantra. By the time of trial, the party at risk is no longer a plaintiff, who already alleges some harm, but rather a defendant. If the plaintiff loses, the status quo is preserved. If the defendant loses, he or she may face serious consequences that disrupt the status quo. That is why we have determined that appointed counsel is crucial to indigent defendants facing serious charges; there’s physical freedom at stake. One can argue, as I’m sure someone already has in a law review article, that plaintiffs who are indigent deserve more rights than they currently have. That might be true…but it is harder to justify providing a plaintiff representation than it is a defendant. If we must draw a line somewhere, as respondents argue we must, then we certainly cannot abide the notion that we must be concerned with the disadvantage brought to a plaintiff.

I am sympathetic to the arguments that the respondents close on in this section, noting that imposing requirements for representation would strain already-scare public resources. I recognize all too well the difficulties facing public defenders across this country. I also share sympathy for the mothers who desperately need child support. It doesn’t change my view however to say that these reasons are good enough to refuse a right to counsel. All but a handful of states have this policy in place; the handful that don’t are not experiencing any more effective payment of child support funds to mothers nor are they experiencing lighter loads on public defender offices. It is a mistake to argue under the logos of fear; it gets us nowhere. Similar arguments were advanced when Gideon came down in 1963 yet I doubt anyone would be willing to say it was the wrong decision because of all the work it created for public defenders. Sure poverty is a strain but it’s a strain regardless. The least we can do is work to ameliorate the inequalities of legal representation that are pervasive for the financially disadvantaged. I cannot agree that we should not hold for Mr. Turner merely because it will create a burden on the State or the system.

D. Rejection of Case-Specific and Additional Procedures Tests

I won’t discuss this section in too much detail. The basic are these: the respondents urge the Court not to adopt two tests or legal theories as a way of determining when court-appointed counsel is necessary. The respondents do not address these in depth but rather argue that the Court’s task at hand is to only examine the absolute, constitutional right of a defendant. As such, the respondents argue that the tests mentioned do not have a place in the Court’s analysis or ruling. This is in response to amicus curiae briefs that I’ve not yet had a chance to read. Thus, I’ll leave the matter for later consideration.


All in all, the brief is quite well-written. It’s evident that the counsel for the respondents are experienced. It’s also obvious that the brief is strongly fact and policy laden. It makes an emotional appeal to us. It asks us to think about the poor mothers, desperate for child support, who are battling the reprehensible deadbeat dads trying to avoid helping their own children. Further, it makes strong arguments about the burdens a ruling for the petitioner would create. Nevertheless, I think the arguments on the law are rather weak for the most part. As I said earlier and had predicted, this brief is about arguing the facts.

The strongest arguments are probably the ones relating to jurisdiction, actually. I think the respondents did a very convincing job of arguing that the Supreme Court has no place to hear this case. However, I don’t see this argument gaining much traction because a nearly identical argument was attempted in Kentucky v. King. There, the respondent argued that, since her client had already been freed from jail by the Kentucky Supreme Court, the case was moot. When she tried that argument in court, Chief Justice Roberts got fairly upset about it. Specifically, he noted that since the Court had obviously chosen to take the case and hear arguments, she’d be better off arguing the substantive issues rather than the procedural ones. I suspect a similar attitude will be taken here.

It will be very interesting to see what gets discussed and questioned in oral arguments. I’m hoping to do a post in the near future on how I expect the justices to fall. I’m also hoping to get some time to read the amicus briefs but that’s less likely. At any rate, if anything else happens between now and March 23 with Turner v. Rogers, I’ll be sure to post about it.

-Zachary Cloud

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