Mead v. Batchlor
| Decision Date | 28 August 1990 |
| Docket Number | No. 81950,81950 |
| Citation | 460 N.W.2d 493,435 Mich. 480 |
| Parties | Marvetta MEAD, Plaintiff-Appellee, v. William BATCHLOR, Defendant-Appellant. 435 Mich. 480, 460 N.W.2d 493 |
| Court | Michigan Supreme Court |
This appeal raises again the question whether an indigent defendant is constitutionally entitled to the assistance of counsel in a contempt proceeding for failure to pay child support. In Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976), this Court concluded that in such a civil proceeding there is no right per se to appointed counsel. In light of more recent developments in due process jurisprudence and changes in Michigan statutes governing child support enforcement, we now are persuaded that our holding in Sword must be modified to recognize that the Due Process Clause of the Fourteenth Amendment of the United States Constitution precludes incarceration of an indigent defendant if he has been denied counsel in a contempt proceeding for failure to pay child support.
Plaintiff Marvetta Mead and defendant William Batchlor were divorced April 23, 1976, and the Cass Circuit Court ordered defendant to pay $30 a week as support for his two children. 1 Defendant complied with the order until sometime in 1980.
On January 27, 1981, the court entered an order which had the effect of assigning $35 per week from defendant's earnings for child support. 2 The assignment was effective until July 1985 when defendant was laid off. He continued for a while to make support payments out of his unemployment compensation. However, when his unemployment benefits expired and he did not find another job, defendant and his present wife applied for welfare (general assistance benefits). After June 1986, he and his wife received only welfare in the amount of $235 per month, and defendant paid no child support.
On December 2, 1986, the Cass County Friend of the Court 3 petitioned on plaintiff's behalf for an order requiring defendant to show cause why he should not be held in contempt for failure to comply with the court's child support order. Responding in writing in propria persona, defendant asserted indigency and requested that counsel be appointed to represent him. The court denied the request without a hearing on January 8, 1987. A few days later, on January 12, 1987, the court conducted a show cause hearing, and defendant appeared without counsel. The court questioned defendant about his employment status and receipt of welfare; however, no determination was made concerning defendant's claim of indigency or his ability to pay the ordered child support. Nevertheless, the court entered an order holding defendant in contempt for "[f]ailure to pay out of currently available resources all or some portion of the amount due," 4 and directed defendant to pay $30 a week for support and an additional $10 a week to be applied against the arrearage. The order further provided:
In the Court of Appeals defendant claimed that the circuit court erred by denying his request for appointed counsel. Two weeks after defendant filed his appeal, the circuit court, upon motion of the Friend of the Court, entered an order reciting that "the child support shall abate ... until such time as the Defendant obtains employment or obtains other income."
Thereafter, in a brief per curiam opinion, the Court of Appeals affirmed, stating:
"Inasmuch as defendant is no longer under the threat of incarceration, we do not believe it appropriate for this Court to address the question of whether defendant was entitled to court-appointed counsel at the contempt proceeding." 5
We granted leave to appeal. 430 Mich. 890 (1988).
Although the facts of this case suggest that the question may be moot, we decline to follow the route taken by the Court of Appeals. Where a court's adverse judgment may have collateral legal consequences for a defendant, the issue is not necessarily moot. In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the United States Supreme Court considered whether the challenge to a criminal conviction was moot where the defendant had already served the imposed sentence. The Court stated that such a challenge is moot "only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." 392 U.S. at 57, 88 S.Ct. at 1900. 6
In this case, defendant faces possible adverse consequences even though the circuit court has temporarily abated defendant's obligation to make support payments. The finding of contempt has not been rescinded, and the circuit court, at any time, 7 could reinstate its order directing defendant to pay support. 8
Even if it might be said that the contempt order is no longer valid, defendant faces the possibility of future contempt proceedings. A disposition based on mootness is not required where the underlying conduct is capable of repetition, yet evades review. 9
Finally, we have granted leave to appeal because the issue raised in this case is of sufficient public importance that a decision on the merits is warranted:
20 Am Jur 2d, Courts, Sec. 81, p 443.
This is not the first time that we have recognized the public-interest exception to the mootness doctrine. See, e.g., Civil Rights Dep't ex rel Forton v. Waterford Twp Dep't of Parks & Recreation, 425 Mich. 173, 387 N.W.2d 821 (1986); Lafayette Dramatic Production v. Ferentz, 305 Mich. 193, 9 N.W.2d 57 (1943). 10
We turn now to the question whether an indigent defendant in a contempt proceeding for failure to pay child support is constitutionally entitled to appointed counsel before he can be incarcerated.
It is noted initially that the right to counsel, at public expense if necessary, is well established with respect to proceedings that are criminal in nature. The Sixth Amendment's guarantee of counsel in criminal prosecutions has been applicable, through the Due Process Clause of the Fourteenth Amendment of the federal constitution, in all state felony trials since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and to indigents who, if they lose, could be incarcerated for petty or misdemeanor offenses since Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
When this Court decided Sword, supra, we focused upon the civil nature of such a hearing--the fact that it is not a criminal proceeding. The Sword ruling also rested on an assessment that a contempt proceeding for nonsupport was not complex.
A number of decisions by the United States Supreme Court and federal courts of appeal issued after Sword prompt us to reexamine the significance of incarceration as a factor in determining whether and when the Due Process Clause of the Fourteenth Amendment requires that counsel be appointed for an indigent in such a civil proceeding. Moreover, in the light of significant changes since Sword in this state's statutes governing child support enforcement, we believe a new assessment concerning the complexity of such a proceeding is required.
Lassiter v. Durham Co. North Carolina, Dep't of Social Services, 452 U.S. 18, 24, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640 (1981). Although application of the Due Process Clause is an "uncertain enterprise," the Supreme Court has counseled that its meaning in a particular case is discovered "by first considering any relevant precedents and then by assessing the several interests that are at stake." Id. at 25, 101 S.Ct. at 2158.
As we read the precedents, even though an indigent defendant in a civil nonsupport proceeding is not entitled to the full panoply of process due a criminal defendant, it does not follow that he can be incarcerated without having had the benefit of counsel simply because the proceeding is considered to be civil in nature.
In Argersinger, supra, the Supreme Court held that absent a knowing and intelligent waiver, a defendant may not be imprisoned, no matter how petty the criminal offense, unless represented by counsel at trial. The rationale supporting such a rule turned on the deprivation of physical liberty by incarceration, even if it were for only a brief period. 407 U.S. at 32-33, 41, 92 S.Ct. at 2010-11, 2016 (Burger, C.J., concurring).
The defendant in Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1161-62, 59 L.Ed.2d 383 (1979), was fined $50 for shoplifting, but he was not incarcerated. He claimed nevertheless that he was entitled to appointed ...
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...based on mootness is not required where the underlying conduct is capable of repetition, yet evades review." Mead v. Batchlor, 435 Mich. 480, 487, 460 N.W.2d 493 (1990). In addition, this case raises an issue of sufficient public importance that a decision on the merits is warranted. Id.16 ......
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...of state courts have reached the same result. See, e.g., McNabb v. Osmundson, 315 N.W.2d 9, 14 (Iowa 1982); Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493, 504 (1990); McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14, 18 n. 2, 20 (1993) (listing other state courts). Defendant's main argumen......
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