Analysis of Turner v. Rogers Opinion

[NOTE: The full-text opinion can be accessed here.]

[AlSO NOTE: For the sake of making my analysis available more quickly, I’ve not proofread this and I apologize in advance for typos!]

A significant moment of foreshadowing occurred in March, when the Supreme Court heard oral arguments for Turner v. Rogers.  During the respondent’s time, Justice Breyer and Justice Scalia got into a bit of an exchange about the consideration of suggestions made by the Solicitor General.  As Justice Breyer, and to a lesser extent Justice Kagan, inquired about how the family court judge assessed Turner’s indigence, Justice Scalia snapped, “I don’t understand all of this discussion. The question presented is not what due process procedures are required in these cases. That is not the question presented . . . . It is simply whether counsel is necessary. Isn’t that the only matter that we should be discussing?” Yet Justice Breyer was not backing down and uttered a set of words that would be predictive of today’s ruling:

 “Fine, but I would like to ask a different question. I’m trying to find out what happened here that was different from what the government suggests. The government suggests provide a piece of paper and ask certain questions. What I would like to know is: What’s different in this proceeding from what the government suggests?  That would have — perhaps no one else, but could have an effect on the way I decide the case.”

Indeed it did have an effect.  Today, Justice Breyer, writing for the majority, vacated Turner’s judgment of sentence in spite of finding that no constitutional right to counsel was mandated by by the Fourteenth Amendment.  The logic to support this decision was that there were other requirements that could satisfy due process but weren’t in Turner’s particular circumstances.  In so holding, the majority not only set forth a new test but went above and beyond the question presented.

Not surprisingly, they took some heat for this.  Justice Thomas dissented and, in a part of his opinion joined by Justice Scalia, Justice Alito and Chief Justice Roberts, wrote: “The majority errs in moving beyond the question that was litigated below . . . .”  This is true, Justice Thomas said, because, “it is the wise and settled general practice of this Court not to consider an issue in the first instance, much less on raised only by an amicus . . . . This is doubly true when we review the decision of a state court and triply so when the new issue is a constitutional matter.”

All of this suggests that in the coming months and years, Turner v. Rogers might become more known for its discussion of judicial activism, rather than the underlying explanation of procedural due process requirements.

I. DUE PROCESS AFTER TURNER

At the outset, we should consider what the intended effects of the majority are. I’ve reviewed the factual and legal background in much more detail here, here, here, here, here, here, here, and here. Yet I’ll provide a brief overview for those unacquainted with Turner v. Rogers already. At issue in this case was whether or not an indigent, non-custodial parent has a right to appointed counsel during a civil contempt proceeding where the non-custodial parent is facing imprisonment.  In the instant case, Mr. Turner was an indigent who was placed in jail because he failed to pay child support. Mr. Turner was unable to afford a lawyer to represent him and thus did not challenge the contempt charge by arguing he was unable to pay as a result of his indigence. It is essentially uncontested that if he had been represented by an appointed attorney, his indigence would have been proved in the hearing and he would not have been incarcerated.

Yet that was not the case and, accordingly, he was imprisoned. At this time, pro bono representation helped him appeal, arguing that he was denied his right appointed counsel. The South Carolina Supreme Court disagreed, holding that since the proceeding was civil and not criminal, there was not a guaranteed right to counsel. When Turner appealed this judgment to the United States Supreme Court, it granted cert to hear the case.  In March, oral arguments were held and today the decision was handed down.

The Court ruled on two issues. The first, which I only briefly mention due to its dryness, is a mootness issue. The respondents contested Turner’s ability to bring suit in the first place but the Court found that the case was “capable of repetition, yet evading review” and allowed the case to be decided on the merits.

The big issue was due process. In the beginning of the majority opinion (I-A), Justice Breyer described the legal background regarding child support in South Carolina. In (I-B), he laid out the background of Turner’s specific case. In II, he swiftly disposed of the mootness issue described above.

The heart of the opinion came in III. In III-A, Justice Breyer looked to the law and noted up front that, “the Sixth Amendment does not govern civil cases.  Civil contempt differs from criminal contempt in that it seeks only to coerc[e] the defendant to do’ what a court had previously ordered him to do.” And further, he asserted that, “the Court has made clear (in a case not involving the right to counsel) that, where civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case.”

From that alone, it looked grim for Turner. And indeed, the discussion continued that way as Justice Breyer gave considerable weight to Gagnon v. Scarpelli, 411 U.S. 778 (1973) (holding a criminal offender facing revocation of probation and imprisonment does not ordinarily have a right to counsel at a probation revocation hearing). This lead to an unusual statement, in its wording if not also its logic: “We believe those statements are best read as pointing out that the Court previously had found a right to counsel ‘only’ in cases involving incarceration, not that a right to counsel exists in all such cases (a position that would have been difficult to reconcile with Gagnon).” It’s not entirely clear what this is supposed to mean. Does this suggest that only cases where imprisonment is the only option count? In other words, if civil sanctions besides incarceration are available, there is no categorical right to counsel? If this is not the right way of reading that sentence, how is Justice Breyer’s statement not contradictory?

Yet, for the confusion this causes, it probably won’t make much difference at the end of the day. In III-B, Justice Breyer applied the law as the Court understood it to Turner’s situation. For a moment, it began to look like the Court might go for Turner after all.  Early in the analysis, Justice Breyer wrote: “The ‘private interest that will be affected’ argues strongly for the right to counsel that Turner advocates.”  Bolstering that sentiment, he went on to say that, “[g]iven the importance of the interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key ‘ability to pay’ question “

But enter the new factors.

After noting the importance of ensuring due process, the Court just as quickly said that three related considerations lead the Court to rule against providing counsel in “every proceeding of the kind before [it.]” First, the Court found that there were straightforward procedures that could determine ability to pay prior to the point at which an attorney would be appointed. Essentially, the idea here is that whatever method is used to determine if appointed counsel is necessary should also be sufficient to determine if the defendant can pay child support. Accordingly, why not cut out the middle-man?

Second, the Court took particular concern over the fact that mothers, who often instigate these child support proceedings, would also be unrepresented. To provide appointment for an indigent defendant would create an “asymmetry of representation” that would be unfair and “alter significantly the nature of the proceeding.”

Lastly, and most importantly in the long run, the Court set down four procedural safeguards other than appointment of counsel that would satisfy due process.  Justice Breyer listed them: “Those safeguards include (1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.”

The Court rounded out its analysis by noting that Turner’s arguments were strong but that, “a categorical right to counsel in proceedings of the kind before us would carry with it disadvantages (in the form of unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority over the alternatives that we have mentioned.”

It should not be overlooked that, although the Court introduced new factors for considering when procedural due process was afforded, this was a particularly limited holding. Specifically, the Court made sure to note that it was not making any comments on whether appointment of counsel would be necessary if the State, rather than a custodial parent, was bringing a case against a defendant in arrears on child support. Nor was the Court willing to say that counsel would be unnecessary to satisfy due process in “an unusually complex case . . . .”

All in all, the Court’s holding was both activist and restrained.  While the Court introduced new factors to consider in examining procedural due process, it did not rule on anything beyond the very narrow situation of civil contempt hearings for noncustodial parents accused of not paying child support.

II. POLITICS OF THE SUPREME COURT

All of the due process discussion above, while important and noteworthy, will perhaps garner less attention than the issue of judicial activism highlighted in the dissent. To begin, it’s worth reflecting on the 5 to 4 split. When one sees a 5 to 4 split these days, it is often indicative of a split along the so-called “conservative” and “liberal” sides of the Court. In reality, this is a somewhat imprecise way of explaining it. In actuality, the split reflects a difference between the judges who are usually deferential to Congress (Breyer is one of them) and those who tend to go looking down textual/originalist avenues. The “swing vote” is widely agreed to be Justice Kennedy. He’s been hard to nail down when it comes to his jurisprudence but a common theory is that he generally supports leaving the states alone, except for when individual liberty is in conflict with that. It seems that such a theory for his jurisprudence may well explain what happened today.

As the four dissenters make clear, they would have found no categorical right and they would have left the South Carolina Supreme Court decision alone. The wording in Justice Thomas’ opinion makes that clear enough. Yet Justice Kennedy sided with the majority today. It seems safe to say that he was the swing vote in the case, and it also seems safe to assume he voted as he did for precisely the reason that he was concerned about individual liberty. Consider the outcome: nothing is changed dramatically. Indeed, the new requirements that South Carolina will have to implement are minimal. Yet, Turner is absolved of his contempt of court charge and a strong commentary was made about the inadequacy of the process he was subjected to. This smacks strongly of Kennedy and I suspect he had quite a lot to do with what went into the opinion. The holding is incredibly narrow; it dodges the issue of illegal immigrants facing deportation (a type of proceeding that the respondents argued would have to also receive appointment of counsel if the Court were to rule for Turner) and leaves the door open for challenges to almost every other type of civil contempt proceeding except the child support type that Mr. Turner faced. In other words, it seems as if Justice Kennedy managed to engineer a delicate balance of preserving states rights while safeguarding an individual’s due process. As much as possible, those two competing interests were reconciled. Indeed, they were reconciled so delicately that surely Justice Kennedy is to thank— the other four majority members have been much more willing to let federal matters trump states’ rights.

Yet this delicate balance required a level of judicial activism that did not go unnoticed. To pull off this delicate maneuver, the majority had to go beyond the question they were asked to answer: does an indigent defendant have a categorical right to counsel in a civil contempt proceeding when (s)he faces incarceration? Instead, the question was transformed into: what satisfies the minimum due process requirements for an indigent defendant in an civil contempt proceeding who is facing incarceration? The distinction is nuanced but significant, for it allowed the Court to introduce new factors (ones it had decided that South Carolina did not meet) and use those to vacate Turner’s conviction. Regardless of whether this was the right result (I personally think it assuredly was), it is no doubt activist. The Court went beyond what was required, as Justice Thomas correctly pointed out.

So this leaves us with a question that hits the very core of judicial philosophy: is going beyond the question presented appropriate? I could give my opinions on it but they wouldn’t be a definitive answer. Instead, I leave you to consider for yourself whether the Court overstepped its role today—and, if it did, whether that’s o.k.

-Zachary Cloud

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