A Force for User-Friendly Courts or Empty Promises?

In a partial victory for indigent parents, the Supreme Court today held that the year-long incarceration of a South Carolina man for failure to pay child support violated the Constitution. However, the Court also ruled that, when the other party is unrepresented, indigent parents do not have a categorical right to a court-appointed defense attorney in child support hearings. The Brennan Center, with four other civil rights groups, submitted an amicus brief detailing why providing counsel in these civil proceedings is essential to preventing wrongful incarceration.

Crossposted at Concurring Opinions.

Turner v. Rogers could be yet another in a long line of opinions papering over the difficulties regular folks have defending their rights without a lawyer. Or it could be a force for making the court system more user friendly. In Turner, the Court requires the lower courts to assess the adequacy of the proceedings in civil contempt cases in which personal liberty may be at stake. But how is a court to do that?  According to Turner, it must: 1) provide notice that the ability to pay is a critical issue, 2) use “a form (or the equivalent) to elicit relevant financial information, 3) allow the defendant to respond to questions about his financial status, and 4) make an express finding that the defendant has the ability to pay.

So many questions must be answered.  What sort of “form”? Many parents who owe child support never obtained a high school diploma. Does the form have to be written in plain English that can be understood by people with little education? What sort of form would suffice for an illiterate parent?

The Court says that the form must “elicit relevant financial information.” How detailed must it be? Who decides what financial information is “relevant”? What if the form does not ask about important factors, such as whether the defendant has unusually high health care expenses?

The Court says that there must be opportunity, at a hearing, for the defendant to respond to statements and questions about his financial status. What constitutes an adequate “opportunity . . . to respond”? What if the questions are phrased in legalese? What if the defendant did not know of his obligation to bring to the hearing documents to support his defenses – copies of job applications, for instance? Must the judge explain that requirement to the defendant and continue the hearing to allow him to gather the documents? If the defendant speaks only Spanish, must an interpreter be supplied?

These are not easy questions to answer. Yet the lower courts must answer them in order to ensure that counsel is provided whenever the civil contempt procedures are inadequate to ensure due process. Ironically, because most civil contempt defendants appear without counsel, in most cases the lower courts will have to assess the adequacy of their procedures without the assistance of counsel. This would seem to be precisely the sort of “unusually complex” question that the Turner majority acknowledged requires the involvement of “a trained advocate.”

There could be salutary results. Ideally, lower courts will develop better forms for pro se litigants, open pro se assistance centers, and educate their judges and court staff about how to work with pro se litigants, particularly those who have low literacy, limited proficiency in English, and other special needs. This will help the courts operate more accurately and efficiently. It will improve litigants’ experience with the courts, and enhance the public’s trust in the legal system.

But without close scrutiny by the courts and the bar, this could all be a farce. To satisfy the Turner opinion, the proceedings that the courts implement must truly allow unrepresented parents to demonstrate their inability to pay. Civil legal aid lawyers are familiar with the obstacles their clients face in accessing the court system. They need adequate funding to enable them to monitor the proceedings in their jurisdictions. Bar associations and local law schools should play a monitoring role, too. It is time to get to work.