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The U.S. Supreme Court on Monday delivered a major setback to those who want the right to counsel extended to indigent defendants in civil contempt cases. None of the justices came out in favor of the idea in Turner v. Rogers, a case involving a South Carolina man who spent a year in prison for civil contempt after failing to pay child support. The American Bar Association, among others, had urged the Court to find that the man, Michael Turner, had a right to counsel when facing imprisonment, whether the proceeding he was in was civil or criminal. The Court, however, split on a related question of whether Turner’s proceeding violated the Fourteenth Amendment’s due process clause. Justice Stephen Breyer wrote for a five-justice majority that the judgment against Turner had to be vacated because the proceeding lacked basic safeguards. Justice Clarence Thomas dissented, writing that the question wasn’t ripe for decision because it came up only in an amicus brief filed by the Solicitor General’s Office. On the question of right to counsel, Breyer wrote that there was little precedent to guide the Court. For example, in a 1967 case, the Court held that the Fourteenth Amendment’s due process clause requires states to pay for counsel in a civil “juvenile delinquency” proceeding, but that case was similar to a criminal prosecution. Breyer wrote that three reasons argue against providing counsel to child-support defendants like Turner: the proceedings are “sufficiently straightforward” that a lawyer isn’t necessary; the custodial parent often doesn’t have a lawyer and could be disadvantaged; and other procedural safeguards could given the defendant sufficient due process. Stephanos Bibas, who argued the case for Rebecca Rogers, said he was encouraged that none of the justices sided against his client on the question of right to counsel. “The court accepted our central argument that child support enforcement proceedings are typically simple and straightforward,” said Bibas, a professor at the University of Pennsylvania Law School. At oral argument in March, several justices expressed skepticism about extending the right to counsel. Justice Anthony Kennedy wondered about changing “the entire landscape of domestic relations proceedings.” Earlier, several amicus briefs warned that a ruling for Turner could open the door to government-provided counsel in habeas corpus proceedings and in immigration cases. Former solicitor general Seth Waxman, the head of the appellate practice at Wilmer Cutler Pickering Hale and Dorr, argued for Turner. He was not available for comment on Monday. Breyer’s opinion included several caveats. He said the Court was not addressing child-support cases in which the opposing parent has counsel, or in which the defendant is facing civil contempt for money owed to the government. Eric Angel, executive director of the Legal Aid Society of the District of Columbia, wrote in an e-mail that the latter caveat is important because “a substantial portion of the cases Legal Aid handles” falls within that category. Still, Angel wrote that he was “disappointed” the Court didn’t find an automatic right to counsel. Among the safeguards Breyer laid out that weren’t present in Turner’s case were the use of a form to elicit financial information and an explicit finding by the judge that the defendant has the ability to pay. “Under these circumstances Turner’s incarceration violated the Due Process Clause,” Breyer wrote. In his dissent, Thomas wrote that a proposal for such safeguards received no attention in the lower courts. As a result, he wrote, “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.” David Ingram can be contacted at [email protected].

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