Turner v. Rogers Briefs Part 3: The Petitioner’s Reply Brief

As I mentioned in my last post, I learned that counsel for Michael Turner had filed a reply brief. Today, I finally had a chance to look the brief over. While I’m not going to address the document in great length (see my posts on the petitioner and respondent merit briefs for more depth), here are the basics:

The problem with jurisdiction in this case is that the petitioner is no longer in jail and that he did not file a stay pending appeal. The respondents argued in their merit brief that since Mr. Turner is not in jail his case is no longer active and the matter is moot.

Now, that’s not necessarily a bad argument– after all, the Supreme Court does not issue advisory opinions on matters. However, there are instances where a case is “capable of repetition yet evading review” because the time it would take for the case to reach the Supreme Court is longer than the duration of the event in question. It is this exception that is under dispute in Turner v. Rogers.

Respondents argued in their merit brief that petitioner will not face incarceration again unless he does not make future child support payments and they argue that the Court should presume any lack of payment will be voluntary on his part. Petitioners here respond by pointing out that if we’ve assumed him indigent for the purpose of this case, it follows that he will continue to be found in contempt unless afforded a right to counsel. That makes his case capable of repetition.

The issue of a stay pending appeal is also addressed. Petitioner notes that the South Carolina Supreme Court considered and ruled on his case after his jail time sentence had expired without any questioning of possible mootness. While procedure is important, it runs the risk of becoming incredibly boring, so I’ll move on to the substantive arguments.

In the last half of the reply brief, we see the rebuttal to what respondents said concerning right to appointed counsel. For the most part, the arguments made are the ones I advanced when I discussed the respondent’s brief. For example, I suggested that respondents inappropriately attempted to extend Middendorf v. Henry, 425 U.S. 25 (1976), a military tribunal case, to the civilian context. Petitioner also notes this in his reply brief. Another example is the criminal/civil distinction. Petitioner argues, as I have, that such a distinction is but a “formalism” that is untenable in face of reality. You can call a rose a carnation all you want; it’s still a rose.

Interestingly, petitioner also argues with the factual contention of respondents that proving indigent status in a family court context would be “simple” and would not require legal counsel to do. Citing to amici briefs, petitioner says that this is quite simply wrong. Also a good point, petitioner notes that having the defendant himself or herself prove indigent status would be inappropriate because a judge could simply chose to discredit this testimony. Instead, argues the petitioner, counsel is necessary to support this assertion with evidence.

Lastly, we see an attack respondent’s assertions that requiring right to appointed counsel would place an unfair burden on pro se plaintiffs and on the state. Petitioner points out that since the South Carolina DSS handles prosecution of non-paying parents, there is no disadvantage to a mother like Mrs. Rogers. In fact, petitioner makes a very good point that since (a) DSS automatically begins proceedings when payments fall behind and (b) the defendant is presumed guilty until he proves inability to pay, the only significant burden to bear falls upon a defendant.

The final arguments lie with the United States’ suggestion that a case-by-case approach, rather than a categorical holding, would be sufficient to ensure due process to indigent defendants. This argument is one that I did not cover previously since it is mostly contained in the United States’ amicus brief– which I’ve only had a chance to skim. For those more interested in this aspect of the argument, I recommend giving the Solicitor General’s brief a read here.

Nothing in the brief was a surprise. Most of the rebuttals are what I would expect and it seems that this case is pretty well developed. Oral arguments are this Wednesday morning, March 23, 2011. Transcripts from oral arguments should be up by close-of-business on Wednesday so expect a post from me on Wed. night with play-by-play analysis of the proceedings.

-Zachary Cloud

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