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A former solicitor general and a former Supreme Court clerk vigorously sparred before the justices on Wednesday over whether indigent persons have a constitutional right to counsel if they face jail for failing to pay child support. A number of justices appeared resistant to extending the Sixth Amendment right to civil contempt proceedings, which would be a significant step towards the “civil Gideon” sought by the American Bar Association and other organizations. Gideon v. Wainwright was the landmark 1963 decision holding that indigent defendants have a right to counsel in state criminal trials. “I just have the sense that there are thousands of these hearings around the country, and they’re very important to ensuring child support, and in many cases where counsel are now waived or not present, the noncompliant parent is going to ask for counsel and that we’re going to change the entire landscape of domestic relations proceedings,” Justice Anthony Kennedy told former solicitor general Seth Waxman of Wilmer Cutler Pickering Hale and Dorr during arguments in Turner v. Rogers. Waxman represented Michael Turner, a South Carolina father who first spent six months and later, 12 months in jail after being held in contempt of a court order to pay back child support. He did not have a lawyer at the contempt proceedings. Waxman argued that due process requires the state to provide a lawyer when it places the “affirmative burden” on an indigent person to demonstrate that he is unable to comply with a court’s order. “The burden is not insignificant here,” he said. “The showing the defendant has to make is both legal and factual. Here the state is sending a man to jail repeatedly on the theory that he holds the keys in his pocket.” In such a situation, he added, a lawyer is necessary to show that the sentence imposed is lawful.” But Justices Sonia Sotomayor and Samuel Alito Jr. asked why it wasn’t sufficient to require the state to tell a defendant before the proceeding what information he had to provide to show an inability to comply with the court order. “That is inconsistent with the adversarial system and misunderstands the burden [on the defendant],” answered Waxman. “The mine-run of cases involve the marshaling of evidence and testimony that the uncounseled defendant is unlikely to do.” Stephanos Bibas of the University of Pennsylvania School of Law, representing Rebecca Rogers, countered that “Mrs. Rogers and others like her need simple procedures to enforce child support.” The procedures here, he added, are “straightforward, informal and manageable by laymen.” In response to a question from Justice Kennedy, for whom he once clerked, Bibas said a ruling for Waxman would be a “massive” change. “Because any loss of liberty is overwhelmingly a factor in his calculus, [the ruling] would apply to thousands of immigration hearings, for example,” he said, noting there is no right to counsel for indigents in those hearings which often involve much more complex legal issues. Bibas told the justices that he could not think of a legal issue so complex in child support enforcement proceedings that it would “categorically” require a lawyer. The Obama Administration filed a brief supporting reversal in the case, but not a constitutional right to counsel. Acting Principal Deputy Solicitor General Leondra Kruger told the justices that due process required that the defendant get a hearing on the critical issue: inability to pay. The government contends that did not happen in this case. She suggested “modest and relatively inexpensive steps” that states and courts should take in these proceedings: provide information in advance to the defendant that inability to pay will be examined and provide a form for the defendant to complete on his resources; a hearing to respond to any questions prompted by the form, and an express finding that the defendant has the ability to comply with the court order. “It’s the kind of information that individuals provide on a regular basis without the assistance of a lawyer,” said Kruger. Justice Elena Kagan told her the government’s suggested procedures were “remarkably anemic.” Turner has drawn amicus support from the American Bar Association, the Constitution Project, the Center for Family Policy & Practice, the National Association of Criminal Defense Lawyers and others. In its amicus brief, the ABA argues that the Sixth Amendment right should apply to “low income persons in adversarial proceedings where basic human needs are at stake, such as those involving sustenance, safety, health, or child custody determinations.” A group of U.S. senators and nine states are among those supporting Rogers. The states, led by Texas which voluntarily provides counsel in civil contempt proceedings, argue they oppose “Turner’s efforts to constitutionalize a right to appointed counsel in civil contempt proceedings because it will open the door for litigants and courts to extend Gideon to habeas corpus proceedings and other civil proceedings that raise the specter of confinement. Although Turner purports to seek only a holding that requires appointed counsel in civil-contempt proceedings, he rests his argument on the principle that indigent litigants are entitled to appointed counsel whenever they are ‘facing incarceration.’” Marcia Coyle can be contacted at [email protected].

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