Contempts and the right to counsel

In the case of Turner v. Rogers, U.S Sup.Ct. No 10-10 June 30, 2011, the Supreme Court addressed the question of is a court appointed attorney required in civil contempt proceedings for the collection of child support. The simple answer is sometimes yes and sometimes no. Probably, most of the time, court appointed counsel will not be required. It is my opinion that under present Massachusetts practice, court appointed counsel must be appointed. If Massachusetts makes some minor changes, counsel won't be required in the majority of cases.

The decision of the court makes it clear that incarceration as a result of a contempt finding is just as harmful as incarceration in a criminal case. Before jail can be imposed for non-payment of child support, the court must either appoint an attorney to represent the defendant or provide “substitute procedural safeguards.” Substitute procedural 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 from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. Massachusetts practice includes the last three of these safeguards. What is lacking is the notice to the defendant that his ability to pay is a critical issue.

Notice of a complaint for contempt is provided by service of a summons and a complaint. The current form of a summons does not have any language that provides notice that ability to pay is a critical issue. As long as Massachusetts lacks this essential notice, it appears that Massachusetts will have to appoint attorneys to represent defendants in contempt cases. It should be a simple and inexpensive remedy for the state to revise the form of summons and include the language that is now constitutionally required. Until this is done, the language can be added to complaints or court appointed attorneys must be provided.

While the Supreme Court decision does not go further, I think that the decision requires more than notice and filling out a financial statement. It appears to require that the Defendant have the ability to understand the issue of ability to pay and to present testimony on this issue to the court. If the defendant lacks this ability, then the court needs to appoint counsel.