July 14, 2014 by Robert Franklin, Esq.
Two years ago in Turner v. Rogers, the United States Supreme Court ruled that indigent non-custodial parents who’ve failed to pay all they owe in child support do not have the right to a court-appointed lawyer to represent them. As I discussed here, that decision was based in part on Justice Breyer’s fantasies about the nature of child support enforcement hearings. Specifically, he imagined that, perhaps, judges in those hearings might assist indigent litigants in producing the type of evidence and arguments that might allow them to avoid jail as by proving they have no assets with which to pay. Breyer’s happy thoughts were utterly at odds with the reality of child support hearings that more closely resemble the processing of dog food than of justice. According to attorneys practicing in those courts, “hearings” typically last as short as five minutes, hardly enough for a litigant to make his case of inability to pay, with or without the assistance of a kindly judge.
Breyer of course has never been anywhere near a courtroom in which child support defendants find themselves on a conveyor belt, one end of which is in the courtroom and the other in jail. Nor did he evince the slightest knowledge of other pertinent realities easily acquired by a few minutes of googling. Does he (or the rest of the august personages on the country’s highest court) know or care that courts routinely set support levels higher than fathers can pay? Do the justices know that 63% of those in arrears report earning under $10,000? If so, they didn’t let on about the fact. Breyer’s thoughts about what might occur in court were wholly fabricated by him and all in the service of denying ever more fathers the ability to actually support their kids to the extent they can.
Perhaps discomfited by his majority opinion, Breyer emphasized its limitations. The main one was that Turner applies only to cases in which the state is not a party to the case. In Turner, a mother had sued a father for back support. In those cases, reasoned the majority, both parties are equally likely (or unlikely) to have a lawyer. Neither has a clear advantage in the ability to hire counsel. So Turner specifically doesn’t apply to cases in which the party suing the non-custodial parent for back child support is some department of the state.
At the time, many of us wondered how long that limitation would last. Now we know. It proved to be every bit as frail a reed as we feared.
In a recent case out Georgia, the state Supreme Court simply ignored the fact that the indigent fathers were opposed by the state Department of Social Services. As the dissent pointed out,
Our state constitution coupled with state statutory law requires that the Georgia Attorney General represent state executive agencies in any court of record. That means our state law effectively grants to the Department of Human Services (DHS) a categorical right to be represented by a lawyer in any civil contempt proceeding against any parent, whether indigent or not, for nonpayment of child support.
That of course was the whole point of the limitation in Turner; when an individual, particularly an indigent one, comes into court, any proceeding in which he has no legal representation and is opposed by the state is fundamentally unfair. The invariable provision of an attorney by the state to the state and at the expense of the state cannot but place a heavy hand on the scales of justice when an individual litigant stands in the dock alone. As such, it should violate the constitutional requirement of due process of law.
To that the Georgia Supreme Court offered only the vaguest of replies. The Court cited precedents holding that there is not an “automatic” right to counsel even in cases that threaten the liberty of the person charged. Yes there is a “presumption” of that right, but there may be ways in which to overcome the presumption. What might those be? The court doesn’t say. What’s the constitutional difference between an automatic and a presumed right? The court doesn’t say. If there’s a presumed right to counsel, why doesn’t the Supreme Court, you know, presume the right and allow the case to go forward? The court doesn’t say. If presumptions can be rebutted, what facts did the Department of Human Services produce to do so? The court doesn’t say, but it seems clear it produced none.
We suppose that due process sometimes may require the appointment of counsel for an indigent parent in a civil contempt proceeding in which the parent is threatened with incarceration. And as in Gagnon, perhaps there is even a “presumptive” right to appointed counsel in some such proceedings if the parent is opposed by government lawyers.
“We suppose that... sometimes?” “Perhaps there is... a right?” That’s about as vague as it gets and doesn’t encourage readers of the court’s opinion that the justices know much about the topic on which they’re ruling.
Here’s a novel idea: look at the facts of the case as found by the trial court, apply existing law to them and decide whether there’s a right to counsel in this case, under those facts or not. After all, someone’s going to have to do that at some point. But no, the majority preferred making a judicial hash of the rights of fathers facing jail to a principled elucidation of rights. Needless to say, that doesn’t bode well for the future.
Now, of course the justices will point out that they’re not deciding the right to counsel, they’re just deciding that the case can’t go forward as a class action lawsuit. After all, if we don’t know whether the various fathers who were threatened with imprisonment by the DHS even have a right to state-appointed counsel, they clearly don’t represent a class of people whose rights were violated.
But of course that’s just passing the buck. What’s likely to happen is that one or more of those individual men is going back to the trial court to assert his individual right to counsel. That court will either say (a) he has one or (b) he doesn’t. If (a), the state will appeal; if (b) the dad will. And soon the case will land in the Georgia Supreme Court that will decide whether the trial court was right or wrong.
It could have done so last Friday. That it ducked the job in the first place strongly suggests it doesn’t want to do it at all. And that’s not a good sign for fathers.
In the meantime, I’ll let the dissent have the final word.
Purposefully or not, the State has fostered a fundamentally unfair system for collecting child support from indigent parents.
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