Justices Grapple With Issue of Right to Lawyers in Child Support Cases

It's all about the double dipping of federal funds.

WASHINGTON — Members of the Supreme Court appeared frustrated Wednesday during an argument about whether poor people facing jail time for failing to pay child support are entitled to court-appointed lawyers. It seemed that there were procedural and practical problems with almost every potential ruling.

“It’s a little difficult to write the opinion if you are to prevail,” JusticeAnthony M. Kennedy told a lawyer arguing that lawyers are not always required.

Justice Kennedy mused about what such an opinion might say. “There’s no absolute right,” he said. “But there might be in some other case, depending. We don’t give much help to the system that way.”

On the other hand, Justice Kennedy told the lawyer on the other side, “there are thousands of these hearings around the country.” A blanket ruling requiring the appointment of lawyers would mean, he said, that “we’re going to change the entire landscape of domestic relations proceedings.”

The case involved a South Carolina man, Michael D. Turner, who was repeatedly held in civil contempt and jailed for as much as a year at a time for not paying child support.

The point of civil contempt is coercion rather than punishment, and judges like to say that people held in such circumstances hold the keys to their own jail cells. All they have to do to be released is comply with the court’s order.

But Mr. Turner said he was too poor to pay what he owed, which turned his incarceration into pure punishment. He said a lawyer could have helped him convince the judge that jailing him in the circumstances was impermissible.

In a series of decisions starting with Gideon v. Wainwright in 1963, the Supreme Court has held that poor people facing the loss of liberty for crimes must be provided with lawyers. But those decisions were rooted in the text of the Sixth Amendment, which concerns only criminal proceedings.

A majority of states do provide lawyers to people in Mr. Turner’s situation, as a matter of state law. The question in the case argued Wednesday, Turner v. Rogers, No. 10-10, was whether court-appointed lawyers are required in civil contempt cases as a matter of the due process protections of the federal Constitution.

Seth P. Waxman, a lawyer for Mr. Turner, urged the justices to adopt a bright-line rule that anyone facing the loss of liberty should have a lawyer in light of what the Supreme Court has called “the awesome prospect of incarceration.”

Some of the justices seemed concerned about how broadly such a ruling might sweep. Justice Ruth Bader Ginsburg, for instance, asked about “alimony and palimony.”

Mr. Waxman said contempt proceedings in such cases would be covered.

Stephanos Bibas, a lawyer for the woman who had sought child support from Mr. Turner, Rebecca L. Rogers, added that a ruling for Mr. Turner would also apply to “tens of thousands of immigration and extradition cases.”

“We’re talking about reformulating rules in a huge number of states that probably affect hundreds of thousands of cases,” Mr. Bibas said.

Mr. Bibas cautioned the justices against disrupting the informality and effectiveness of child support proceedings in which neither side, he said, tends to be represented by a lawyer.

He added that requiring states to provide lawyers might cause them to decide not to pursue deadbeat parents at all. New Jersey, he said, had stopped trying to enforce child support orders through civil contempt after its Supreme Court recognized a right to counsel.

Justice Ginsburg questioned the wisdom of that financial calculation, noting that it costs money to lock people up, too.

The federal government urged the justices to take a middle ground. Appointing counsel, the government said in its brief, is “a sufficient, but not a necessary, means of satisfying due process in this case.”

It would also be enough, the brief said, to give someone facing jail in Mr. Turner’s circumstances “a meaningful opportunity to establish his present inability to pay, such as asking him to complete an understandable form seeking his financial information or asking him questions on the topic as necessary at a hearing.”

At the argument on Wednesday, Justice Elena Kagan told a lawyer for the government, Leondra R. Kruger, that the proposal was “remarkably anemic.”

“Apparently, your idea of the procedure is just to give the person a form,” Justice Kagan said.

Ms. Kruger responded that the government’s proposal also called for notice to the person facing jail, a hearing and a judicial finding that the person is indeed capable of paying.

Justice Antonin Scalia said he was frustrated by the government’s proposal for a different reason. The court, he said, had agreed to answer just the question of whether a lawyer must be appointed and not what other procedures might satisfy due process
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