McNabb v. Osmundson

• Citation: 315 N.W.2d 9
• Decision Date: 20 January 1982
• Docket Number: No. 64621,64621
• Parties: Allen Eugene McNABB, Plaintiff, v. Judge Robert OSMUNDSON, and The Iowa District Court for Johnson County, Defendants.
• Court: Iowa Supreme Court

Page 9

315 N.W.2d 9

Allen Eugene McNABB, Plaintiff, v. Judge Robert OSMUNDSON, and The Iowa District Court for Johnson County, Defendants.

No. 64621.

Supreme Court of Iowa.

Jan. 20, 1982.

Richard H. Zimmerman, Mears, Zimmerman & Mears, Iowa City, for plaintiff.

Thomas J. Miller, Atty. Gen., and John R. Martin, Asst. Atty. Gen., for defendants.

Considered en banc.

REYNOLDSON, Chief Justice.

We granted certiorari in this case to determine whether an indigent facing a jail sentence in a contempt of court proceeding has a right under the United States Constitution to be provided counsel at public expense.

Plaintiff McNabb was obligated under an October 13, 1977, dissolution decree to pay $30 per week toward the support of his minor daughter. He made no payments and the Johnson County Attorney caused him to be cited for contempt, the mother having assigned the support payments to the Iowa Department of Social Services. See generally § 598.34, The Code.

As this case finally reaches us after a series of district court actions, petitions for certiorari, stays, a remand, and a retained jurisdiction by this court, it appears that plaintiff McNabb, after a brief pro se appearance comprising only two and one-half pages of printed transcript, was sentenced to 232 days in the county jail, two days for each of 116 unpaid installments of child support. The order provided McNabb could purge himself of contempt by payment of $480 and weekly payments of $50, of which $30 was to apply on the current installment and $20 to the delinquent amounts.

After McNabb spent eight days in jail, his present volunteer counsel, citing United States v. Anderson, 553 F.2d 1154, 1156 (8th Cir. 1977), persuaded the defendant court to suspend the sentence pending a hearing on a motion to reconsider the sentence, and the refusal to appoint counsel.

A subsequent hearing at which McNabb was represented by his volunteer counsel developed that McNabb is about twenty-three years old, has no property, and suffers from epilepsy. He takes medication in an effort to control symptoms of his epilepsy, but has a drinking problem that exacerbates his incidents of seizures. He has never held a job that would pay more than the minimum wage, has never held any job over three months, and has been living with his parents. At least some of his unemployment history may be attributable to his epilepsy. The total support McNabb has paid is $100, which he borrowed from his parents after being jailed in this action. The final financial statement in the district court file reflected that McNabb was then employed earning $35 to $40 weekly, had earned $1341 in the past twelve months, owned no property or motor vehicle, had no bank account, and owed debts totaling $316.40. Trial court found McNabb was indigent, but refused to appoint counsel.

Thus the posture of the case when we granted certiorari was that McNabb had been found in contempt of court and sentenced to 232 days imprisonment, of which 8 days had been served and the balance suspended pending future hearing. Trial court had consistently refused to appoint counsel at public expense although finding McNabb indigent. Upon application of the county attorney the district court had issued still another order requiring McNabb to appear and show cause why he should not be held in contempt of court.

In this proceeding McNabb raises three issues: (1) Is an indigent faced with the possibility of incarceration for contempt for not paying child support entitled to court-appointed counsel under the United States Constitution? (2) Should a contempt order and sentence incarcerating an indigent who is without counsel be vacated? (3) In a contempt proceeding under section 598.23, The Code, is it legally permissible to incarcerate an indigent who has no ability to make payment to purge the contempt? In the course of this proceeding, McNabb also moved for allowance of his attorney fees in this court. We ordered this motion submitted with the case.

I. Did McNabb Have a Constitutional Right to Counsel in the Contempt Action?

Section 665.4, The Code, delineates the punishments for contempt "where not otherwise specifically provided." In the underlying support proceeding the punishment is specifically provided in section 598.23, The Code, the relevant portion providing that

(i)f any party against whom any ... final decree has been entered shall willfully disobey the same, or secrete his property, he may be cited and punished by the court for contempt and be committed to the county jail for a period of time not to exceed thirty days for each offense.

It is apparent that the full application of these penalties under the district court's rationale (that each unpaid support installment was a separate contempt) would subject this indigent to imprisonment for almost ten years. Cf. Wilson v. Fenton, 312 N.W.2d 524, 529 (Iowa 1981) (punitive fine under section 665.4(2) can be levied retrospectively for separate acts of contempt); Clark v. District Court, 255 Iowa 1005, 1010-11, 125 N.W.2d 264, 267-68 (1963) (same). This potential sentence justifies our position that the nebulous distinctions between civil and criminal contempts are of no consequence in this jurisdiction. Knox v. Municipal Court, 185 N.W.2d 705, 707 (Iowa 1971). The jail doors clang with the same finality behind an indigent who is held in contempt and incarcerated for nonpayment of child support under section 598.23 as they do behind an indigent who is incarcerated for violation of a criminal statute. In Lutz v. Darbyshire, 297 N.W.2d 349, 353-54 (Iowa 1980), we wrote:

Contempt proceedings are commonly treated as criminal in nature even when they generate from civil cases.... Exercise of the contempt power is a delicate one requiring care to avoid arbitrary or oppressive conclusions.

....

... This proceeding was criminal in nature. The plaintiff's personal liberty was at stake.

See Wilson, 312 N.W.2d at 528.

McNabb contends the sixth amendment and the due process clause of the fourteenth amendment to the United States Constitution require that he, an indigent, be provided counsel when confronted with the loss of his liberty.

We believe the protections that shelter this defendant are to be found in the due process clause of the fourteenth amendment, although sixth amendment decisions of the Supreme Court may influence our determination. The case before us involves an alleged indirect, or constructive, contempt. An indirect contempt is an act committed outside a court's presence that obstructs or prevents the administration of justice. Lutz, 297 N.W.2d at 353. A direct contempt consists of contemptuous actions committed in the presence of a court. Gibb v. Hansen, 286 N.W.2d 180 (Iowa 1979); Knox, 185 N.W.2d at 707. The due process requirements surrounding an indirect contempt proceeding were laid out in In re Oliver, 333 U.S. 257, 275-76, 68 S.Ct. 499, 508-09, 92 L.Ed. 682, 695 (1948):

Except for a narrowly limited category of contempts, due process of law ... requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eyes of the court, are actually observed by the court, and where immediate punishment is essential to prevent "demoralization of the court's authority ... before the public." If some essential elements of the offense are not personally observed by the judge, ... due process requires ... that the accused be accorded notice and a fair hearing as above set out.

(Emphasis added.) We adopted and quoted most of this language in Knox, 185 N.W.2d at 708. However, the issue raised here was not present in Knox, where an attorney was appointed for the contemner without dispute. See Knox, 185 N.W.2d at 707.

Of course, it is plain that the right to be represented by counsel does not answer the question when and in what circumstances the due process clause requires that an attorney be appointed for an indigent. See Lassiter v. Department of Social Services, --- U.S. ----, ----, 101 S.Ct. 2153, 2163, 68 L.Ed.2d 640, 653 (1981); Gagnon v. Scarpelli, 411 U.S. 778, 787-91, 93 S.Ct. 1756, 1762-64, 36 L.Ed.2d 656, 664-67 (1973). Nor have the opinions of the United States Supreme Court laid out a clear path to the answer.

In In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), a juvenile proceeding characterized as "civil," Gault, a fifteen-year-old boy, was committed as a juvenile delinquent to the Arizona State Industrial School. The Court, reversing and remanding, held:

We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.

Gault, 387 U.S. at 41, 87 S.Ct. at 1451, 18 L.Ed.2d at 554 (emphasis added). The Gault Court observed that a proceeding in which the issue whether a child "will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution." Id. at 36, 87 S.Ct. at 1448, 18 L.Ed.2d at 551. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), were cited in Gault for the proposition that the presence of the juvenile court...