Contempt After Turner

1. Contempt After Turner Ethan C. McKinney

2. Turner v. Rogers • Factual History • 131 S. CT. 2507 (2011) • Turner Ordered to Pay Support 2003 • 5 previous contempt findings. • 2008 Contempt and 12 months in jail. • This is the contempt finding and sentence that led to the appeal.

3. Turner v. Rogers • The Contempt Hearing • Mr. Turner was Unrepresented. • Title IV-D Attorney was not Involved. • Purge was the entire arrearage amount. • No Findings of Turner’s ability to pay the arrearage amount.

4. Turner v. Rogers • Due Process Argument • Mr. Turner argued that the Due Process Clause of the 14th Amendment required the state to provide him with counsel in a civil contempt hearing that could lead to incarceration.

5. Holding • Under these circumstances the State does not necessarily need to provide counsel to an unrepresented person if the State has in place “alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the court order.”

6. Alternative Procedures? • The Court left unresolved the question of what due process protections may be required where: • The other parent or the State is represented by an Attorney; • The unpaid arrears are owed to the state under an assignment of support rights; or • The case is unusually complex.

7. Adequate Safeguards • Notice that “ability to pay” is a critical issue. • Providing a form or the equivalent that can be used to elicit relevant financial information. • Opportunity to respond to statements or questions about his/her financial status. • An express finding by the court that the non-custodial parent has the ability to pay based upon the individual facts of the case.

8. Minimum Due Process • Used together the previous four procedures would have been sufficient to meet minimum due process under the circumstances where no party is represented by an attorney.

9. Castanias v. Lipton • 2012 US Dist. Lexis 55569 (Apr. 2012) Ohio (Southern District of Ohio) • Child Support Agency action. • NCP filed a § 1983 Claim. • NCP relied on Turner to allege he was improperly denied counsel. • Court restates that Turner does not automatically require counsel. • NCP’s case was dismissed with prejudice.

10. Liming v. Damos • 979 N.E. 2d 297 (Oct. 2012) Supreme Court of Ohio • Good discussion of Civil v. Criminal Contempt. • Child Support Agency Filed Contempt. • NCP had attorney for contempt finding. • NCP tried to argue that hearing on Motion to impose sentence required appointed counsel.

11. Liming v. Damos, Cntd • Motion to Impose Sentence and Purge hearing are part of the original contempt. • No attorney necessary as this is merely to see if Liming did what was ordered, all contempt issues already decided. • Review of Turner: Due process does not require appointment of attorney here.

12. Young v. Young • 736 S.E. 2d 538 (Dec. 2012) Court of Appeals of N.C. • No State Action • Great Findings of Fact by this Judge. • Review of Turner: Not automatically entitled to counsel. • Here NCP was not indigent, so he failed the first test of needing appointed counsel.

13. Deal v. Miller • 739 S.E. 2d 487 (Mar. 2013) Court of Appeals of Georgia • Class Action vs. Governor Deal and other State officials. (includes State IV-D Director and Managers of County Child Support Offices. • State Appealed Order certifying a class of indigent parents led by five named plaintiffs. • The parties alleged they were injured by being unconstitutionally denied counsel.

14. Deal v. Miller et al, Cntd. • The parties never requested counsel or appealed their contempt findings on those grounds. • Turner: Does not require counsel in every case. • Court does not have a duty to inquire if someone would like counsel. • No policy of denying counsel was shown. • As each case would be highly individualized, each member needs their own case, hence no class and the trial court’s certification of the class was reversed.

15. Prosecutor’s Response • OCSE AT 12-01: Turner Safeguards • Case Screening • In our office we were already conducing Administrative Review Hearings. These were created out of a mixture of limited court time and a desire to bring better Contempt proceedings before the Court.

16. Administrative Review Hearings • We created these prior to Turner to address two main concerns: • First: Limited Court Time for Contempt Hearings had us booking court 3-6 months out. • Second: We speculated some cases may pay without need of Contempt if we let them know we were considering that step.

17. Administrative Hearings • After Turner we began using Admin. Hearings as our “case screening.” • All new cases have an Admin before we do contempt. • Any case with history of compliance has Admin before Contempt. • Any case where we know there may be barriers to payment has an admin before contempt.

18. Administrative Hearing • Deputy Prosecuting Attorney’s Conduct • Advise NCP that this is a voluntary process, we are attorney’s for State and they can consult with an attorney if they’d like. • Some want attorney, vast majority comfortable talking with us. • Questions about ability to pay, work history, criminal history, other cases, other court ordered obligations, etc.

19. Benefit of Admin Hearing • Information Gathering: • SSD/SSI Issues • New Employment for IWO • Felony Issues barring employment • Other court ordered obligations, other children, probation restitution, etc. • Other barriers to employment, education, health, home life, etc. • Refer to alternative procedures.

20. Alternative Procedures • WorkOne (Unemployment Office: Child Support Improvement Program) • A program to assist in job search. • Resume Building • Online Job Search • Job Skills/Training • GED Classes • Interview Skills

21. Alternative Procedures • Goodwill 2nd Chance • Specific Program for Felons • Intensive job search assistance and referrals to employers willing to hire felons. • No Court Enforcement while in the program. • Goodwill Work Experience to build work history and pay support. • Modify Support Orders based on income.

22. Job Searches • Job Search Report • 30 Job Spreadsheet • Give NCP a time period to complete it or report new employment. • Job Leads • Membership on a business network of employers willing to hire felons. • Career Fairs and other Leads

23. Contempt • After Admin process we are better able to know which cases are likely to pay or not going to pay and which cases are not paying for a valid reason. • Cases that are still not paying and have no justification for it, we file Contempt Proceedings.

24. Indiana History • Indiana has required appointment of counsel for indigent non-payor since 1987. Marriage of Stariha 509 N.E. 2d 1117. “Therefore, we hold that where the possibility exists that an indigent defendant may be incarcerated for contempt for failure to pay child support he or she has a right to appointed counsel and to be informed of that right prior to commencement of the contempt hearing.”

25. Indiana History • This proposition was reaffirmed in two subsequent cases over the years. • Branum v. State, 822 N.E. 2d 1102 (Ind. App. 2005. “This court has observed that "'it is crystal clear that a person may not be incarcerated by the state without first being advised of his constitutional right to counsel, and, if indigent, without having counsel appointed to represent him, whether the contempt proceedings are initiated by a private person or the state.”

26. Marks v. Tolliver Warning • Marks v. Tolliver, 839 N.E. 2d 703 (Ind. App. 2005) • Prior to this case not all the Courts in St. Joseph County were following the rule. Our Probate Court that conducts over 85% of all our support related hearings was doing it correctly. • After this case came out, all the Courts began giving what they commonly called a Marks v. Tolliver warning.

27. Standard Proceeding • Court has “rights video” in lobby. • Magistrate advises NCP of the nature of hearing and right to have attorney, including appointment of the PD. • Specific PD days so hearings can be continued for PD. • Brief inquiry of indigence before appointing PD.

28. Ability to Pay • DPA presents Court with the information: • Support Order, Arrears Amount, period of non-payment. • DPA then inquires directly of NCP about: • Ability to Pay, Why Not Paying. • Work History, Job Search. • What is the plan for making payments • DPA may use new hire info, new vehicle info, or any other info we have.

29. NCP’s Response • Payor is able to state his own case or have PD do that for him. • PD may also inquire to illustrate reasons for non-payment that may not be contemptuous. • If Custodial parent is there, Court allows them a statement also. • These may elicit more justification for contempt or may elicit reasons against contempt.

30. Court’s Order • Our Contempt Orders, state clearly that the obligor has: • Willfully disobeyed the order by; • Not paying when able to do so and; • The non-payment is without justification. • Sentences can be up to 6 months per contempt finding, can run consecutive.

31. Purge Bonds • Our office argues for “reasonable purge bonds”. • Obligor more likely to pay bond and thus sentence be coercive if bond is something he can pay. • Practice of reducing bond if obligor offers to pay lesser amount to get obligor out of jail and obtain payment for children.

32. Contact Information Ethan C. McKinney, DPA Child Support Director St. Joseph County Prosecuting Attorney’s Office 227 W Jefferson Blvd South Bend, IN 46601 emckinney@stjoepros.org 574-235-5023 this is my direct line but I prefer email. I always check my email whether at work or not.