The tide turns toward a civil Gideon?

Yevgeny Shrago

A few months ago, the New York State judiciary recognized that the rising costs and complexity of litigation made denying counsel to civil defendants increasingly tantamount to entering a default judgment against them. Recently, the US Supreme Court began to inch its way back from the post-Lassiter ledge, picking out a civil situation where right to counsel (or some other substantial due process rights) is required by due process. Those frustrated by the the massively important rulings (and painful defeats for progressives) in Dukes and American Electric Power should take some solace in the small victory for rights represented by the positive ruling in Turner v. Rogers.

As often happens in due process rights cases, the defendant, a dead-beat dad jailed on civil contempt charges for failing to pay child support, is not the most sympathetic party to trot out there. Still, law is supposed to apply equally to upstanding citizens and those who wander.

The difference between civil contempt and criminal contempt is that in a civil contempt case, the party held in contempt can end their incarceration by rectifying the situation for which they are held in contempt. Because the party has control over his own incarceration, civil contempt proceedings are not covered by the Sixth Amendment. Still, the Court found that the defendant’s due process rights had been violated because he had been provided neither counsel nor sufficient other protections. By basing the decision in the 14th Amendment Due Process protections and not the Sixth Amendment right to counsel, the Court declined to find a sweeping right to counsel or even a specific set of due process protections in this case, leaving other civil contempt cases to be litigated piecemeal in the lower courts.

Although this smells suspiciously like another defeat for the idea of a civil Gideon, there are a couple reasons for hope. Unlike Lassiter, where the court’s acknowledgement that civil counsel might be necessary in some cases rang hollow as it was denied in the case at bar, the court in Turner actually reversed the conviction at issue. This step becomes a precedent all its own, letting lower courts know that they too can reverse civil judgments when they feel the defendant’s due process rights have not been respected. This is a precedent that future iterations of legal services suits can exploit and expand, providing increased advocacy for the indigent. Prospects for further expansion look good: crucial swing Justice Anthony Kennedy loves liberty. In a battle between (1) the Mathews balancing test every 1L loves to hate and (2) high, overarching principle, Kennedy will reach for the principle every time. As long as future suits can plausibly stress the liberty interest, they should have a good chance to command the five votes that matter.

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