Turner v. Rogers (2011)

____ U.S.____ (2011)
Oral arguments are available at: http://www.oyez.org

Vote: 5 (Breyer, Ginsburg, Kagan, Kennedy, Sotomayor) 
4 (Alito, Roberts, Scalia, Thomas)

Opinion of the Court: Breyer
Dissenting Opinion: Thomas


Michael Turner was held in contempt in a South Carolina family court five times for repeatedly failing to pay $51.73 per week to Rebecca Rogers to help support their child. For the first four, he was sentenced to 90 days’ imprisonment, but he ultimately paid what he owed (twice without being jailed, twice after spending a few days in custody). The fifth time he did not pay but completed a 6-month sentence. After his release, the family court clerk issued a new “show cause” order against Turner because he still owed $5728.76. Both he and Rogers were unrepresented by counsel at his brief civil contempt hearing. The judge held Turner in contempt and sentenced him to 12 months in prison without making any finding as to whether Turner was able to make the payments.

While in prison, Turner, with the help of pro bono counsel, appealed. He claimed that the U.S. Constitution entitled him to counsel at his contempt hearing. The South Carolina Supreme Court rejected his claim, declaring that civil contempt does not require all the constitutional safeguards applicable in criminal contempt proceedings.



South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so. We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.

Respondents argue that this case is moot. They point out that Turner completed his 12-month prison sentence in 2009.

The short, conclusive answer to respondents’ mootness claim, however, is that this case is not moot because it falls within a special category of disputes that are “capable of repetition” while “evading review.” A dispute falls into that category, and a case based on that dispute remains live, if “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.”

Our precedent makes clear that the “challenged action,” Turner’s imprisonment for up to 12 months, is “in its duration too short to be fully litigated” through the state courts (and arrive here) prior to its “expiration.” At the same time, there is a more than “reasonable” likelihood that Turner will again be “subjected to the same action.” Turner has frequently failed to make his child support payments. He has been the subject of several civil contempt proceedings. He has been imprisoned on several of those occasions….

[T]he underlying facts make this case unlike DeFunis v. Odegaard, (1974) … DeFunis was moot, but that is because the plaintiff himself was unlikely to again suffer the conduct of which he complained (and others likely to suffer from that conduct could bring their own lawsuits). Here petitioner himself is likely to suffer future imprisonment…

We must decide whether the Due Process Clause grants an indigent defendant, such as Turner, a right to state-appointed counsel at a civil contempt proceeding, which may lead to his incarceration. This Court’s precedents provide no definitive answer to that question. This Court has long held that the Sixth Amendment grants an indigent defendant the right to state-appointed counsel in a criminal case. Gideon v. Wainwright (1963). And we have held that this same rule applies to criminal contempt proceedings (other than summary proceedings).

But 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. A court may not impose punishment “in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order.” And once a civil contemnor complies with the underlying order, he is purged of the contempt and is free.

Consequently, 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.

This Court has decided only a handful of cases that more directly concern a right to counsel in civil matters. And the application of those decisions to the present case is not clear. On the one hand, the Court has held that the Fourteenth Amendment requires the State to pay for representation by counsel in a civil “juvenile delinquency” proceeding (which could lead to incarceration). …

On the other hand, the Court has held that a criminal offender facing revocation of probation and imprisonment does not ordinarily have a right to counsel at a probation revocation hearing. …

Civil contempt proceedings in child support cases constitute one part of a highly complex system designed to assure a noncustodial parent’s regular payment of funds typically necessary for the support of his children. Often the family receives welfare support from a state-administered federal program, and the State then seeks reimbursement from the noncustodial parent. Other times the custodial parent (often the mother, but sometimes the father, a grandparent, or another person with custody) does not receive government benefits and is entitled to receive the support payments herself.

The Federal Government has created an elaborate procedural mechanism designed to help both the government and custodial parents to secure the payments to which they are entitled. These systems often rely upon wage withholding, expedited procedures for modifying and enforcing child support orders, and automated data processing. But sometimes States will use contempt orders to ensure that the custodial parent receives support payments or the government receives reimbursement. Although some experts have criticized this last-mentioned procedure, and the Federal Government believes that “the routine use of contempt for non-payment of child support is likely to be an ineffective strategy,” the Government also tells us that “coercive enforcement remedies, such as contempt, have a role to play.” South Carolina, which relies heavily on contempt proceedings, agrees that they are an important tool.

We here consider an indigent’s right to paid counsel at such a contempt proceeding. It is a civil proceeding. And we consequently determine the “specific dictates of due process” by examining the “distinct factors” that this Court has previously found useful in deciding what specific safeguards the Constitution’s Due Process Clause requires in order to make a civil proceeding fundamentally fair. As relevant here those factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].”

The “private interest that will be affected” argues strongly for the right to counsel that Turner advocates. That interest consists of an indigent defendant’s loss of personal liberty through imprisonment. The interest in securing that freedom, the freedom “from bodily restraint,” lies “at the core of the liberty protected by the Due Process Clause.”

Given the importance of the interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key “ability to pay” question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt reinforces the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding. And since 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often.

On the other hand, the Due Process Clause does not always require the provision of counsel in civil proceedings where incarceration is threatened. And in determining whether the Clause requires a right to counsel here, we must take account of opposing interests, as well as consider the probable value of “additional or substitute procedural safeguards.”

Doing so, we find three related considerations that, when taken together, argue strongly against the Due Process Clause requiring the State to provide indigents with counsel in every proceeding of the kind before us.

First, the critical question likely at issue in these cases concerns, as we have said, the defendant’s ability to pay. That question is often closely related to the question of the defendant’s indigence. But when the right procedures are in place, indigence can be a question that in many—but not all—cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel, even in a criminal case. Federal law, for example, requires a criminal defendant to provide information showing that he is indigent, and therefore entitled to state-funded counsel, before he can receive that assistance.

Second, sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel. The custodial parent, perhaps a woman with custody of one or more children, may be relatively poor, unemployed, and unable to afford counsel. Yet she may have encouraged the court to enforce its order through contempt. She may be able to provide the court with significant information. And the proceeding is ultimately for her benefit.

A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would “alter significantly the nature of the proceeding.” Doing so could mean a degree of formality or delay that would unduly slow payment to those immediately in need. And, perhaps more important for present purposes, doing so could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive. The needs of such families play an important role in our analysis.

Third, as the Solicitor General points out, there is available a set of “substitute procedural safeguards,” which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. 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] government does not claim that they are the only possible alternatives, and this Court’s cases suggest, for example, that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient. But the Government does claim that these alternatives can assure the “fundamental fairness” of the proceeding even where the State does not pay for counsel for an indigent defendant.

While recognizing the strength of Turner’s arguments, we ultimately believe that the three considerations we have just discussed must carry the day. In our view, 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. We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings)…

We do not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody. … Neither do we address what due process requires in an unusually complex case where a defendant “can fairly be represented only by a trained advocate.”

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause.

We vacate the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.



The only question raised in this case is whether the Due Process Clause of the Fourteenth Amendment creates a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings. It does not.


Under an original understanding of the Constitution, there is no basis for concluding that the guarantee of due process secures a right to appointed counsel in civil contempt proceedings… No one contends that South Carolina law entitles Turner to appointed counsel. Nor does any federal statute or constitutional provision so provide. Although the Sixth Amendment secures a right to “the Assistance of Counsel,” it does not apply here because civil contempt proceedings are not “criminal prosecutions.” Moreover, as originally understood, the Sixth Amendment guaranteed only the “right to employ counsel, or to use volunteered services of counsel”; it did not require the court to appoint counsel in any circumstance….

Appointed counsel is also not required in civil contempt proceedings under a somewhat broader reading of the Due Process Clause.. Despite a long history of courts exercising contempt authority, Turner has not identified any evidence that courts appointed counsel in those proceedings. Indeed, Turner concedes that contempt proceedings without appointed counsel have the blessing of history.


Even under the Court’s modern interpretation of the Constitution, the Due Process Clause does not provide a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings. Such a reading would render the Sixth Amendment right to counsel—as it is currently understood—superfluous. Moreover, it appears that even cases applying the Court’s modern interpretation of due process have not understood it to categorically require appointed counsel in circumstances outside those otherwise covered by the Sixth Amendment.

Under the Court’s current jurisprudence, the Sixth Amendment entitles indigent defendants to appointed counsel in felony cases and other criminal cases resulting in a sentence of imprisonment. See Gideon v. Wainwright, (1963); Argersinger v. Hamlin, (1972); Scott v. Illinois. Turner concedes that, even under these cases, the Sixth Amendment does not entitle him to appointed counsel. He argues instead that “the right to the assistance of counsel for persons facing incarceration arises not only from the Sixth Amendment, but also from the requirement of fundamental fairness under the Due Process Clause of the Fourteenth Amendment.”

But if the Due Process Clause created a right to appointed counsel in all proceedings with the potential for detention, then the Sixth Amendment right to appointed counsel would be unnecessary. Under Turner’s theory, every instance in which the Sixth Amendment guarantees a right to appointed counsel is covered also by the Due Process Clause. The Sixth Amendment, however, is the only constitutional provision that even mentions the assistance of counsel; the Due Process Clause says nothing about counsel. Ordinarily, we do not read a general provision to render a specific one superfluous. The fact that one constitutional provision expressly provides a right to appointed counsel in specific circumstances indicates that the Constitution does not also sub silentio provide that right far more broadly in another, more general, provision…


The majority agrees that the Constitution does not entitle Turner to appointed counsel. But at the invitation of the Federal Government as amicus curiae, the majority holds that his contempt hearing violated the Due Process Clause for an entirely different reason, which the parties have never raised: The family court’s procedures “were inadequate to ensure an accurate determination of [Turner’s] present ability to pay.” I would not reach this issue.

There are good reasons not to consider new issues raised for the first and only time in an amicus brief. As here, the new issue may be outside the question presented. As here, the new issue may not have been addressed by, or even presented to, the state court. As here, the parties may not have preserved the issue, leaving the record undeveloped. As here, the parties may not address the new issue in this Court, leaving its boundaries untested.

Accordingly, it is the wise and settled general practice of this Court not to consider an issue in the first instance, much less one raised only by an amicus.

For the reasons explained [above], I would not engage in the majority’s balancing analysis…. It does not account for the interests of the child and custodial parent, who is usually the child’s mother. But their interests are the very reason for the child support obligation and the civil contempt proceedings that enforce it.

When fathers fail in their duty to pay child support, children suffer…

The interests of children and mothers who depend on child support are notoriously difficult to protect. In South Carolina alone, more than 139,000 noncustodial parents defaulted on their child support obligations during 2008, and at year end parents owed $1.17 billion in total arrears.

That some fathers subject to a child support agreement report little or no income “does not mean they do not have the ability to pay any child support.” Rather, many “deadbeat dads” “opt to work in the underground economy” to “shield their earnings from child support enforcement efforts.” To avoid attempts to garnish their wages or otherwise enforce the support obligation, “deadbeats” quit their jobs, jump from job to job, become self-employed, work under the table, or engage in illegal activity

Because of the difficulties in collecting payment through traditional enforcement mechanisms, many States also use civil contempt proceedings to coerce “deadbeats” into paying what they owe. The States that use civil contempt with the threat of detention find it a “highly effective” tool for collecting child support when nothing else works.

This case illustrates the point. After the family court imposed Turner’s weekly support obligation in June 2003, he made no payments until the court held him in contempt three months later, whereupon he paid over $1,000 to avoid confinement. Three more times, Turner refused to pay until the family court held him in contempt—then paid in short order.

Although I think that the majority’s analytical framework does not account for the interests that children and mothers have in effective and flexible methods to secure payment, I do not pass on the wisdom of the majority’s preferred procedures. Nor do I address the wisdom of the State’s decision to use certain methods of enforcement. Whether “deadbeat dads” should be threatened with incarceration is a policy judgment for state and federal lawmakers, as is the entire question of government involvement in the area of child support.

I would affirm the judgment of the South Carolina Supreme Court because the Due Process Clause does not provide a right to appointed counsel in civil contempt hearings that may lead to incarceration. As that is the only issue properly before the Court, I respectfully dissent.