Ridgway v. Baker

Decision Date12 December 1983
Docket NumberNo. 82-1561,82-1561
Citation720 F.2d 1409
PartiesDonald A. RIDGWAY, Petitioner-Appellant, v. T.L. BAKER, Potter County Sheriff, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Samuel T. Jackson, West Texas Legal Services, Amarillo, Tex., for petitioner-appellant.

Chris Hanger, Asst. Atty. Gen., Larry W. Anderson, Jr., Fernando C. Gomez, Asst Atty. Gen., Edwin N. Horne, Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, TATE and JOLLY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A father who had failed to comply with a Texas state court judgment ordering him to pay child support was imprisoned for contempt in a proceeding in which he was not represented by counsel, despite his request for counsel and his uncontroverted assertion of indigency. Having unsuccessfully sought relief in Texas courts, he sought a writ of habeas corpus on the ground that he was denied due process of law. The federal district court transferred the case to state court for further proceedings. Because a federal court has no power to transfer a case to a state court and because the accused father was denied counsel, then condemned to imprisonment, we grant the writ.

During 1980, Ridgway's wife and child, who then resided in Wichita, Kansas, applied for and received Aid to Families with Dependent Children benefits. As a condition of receiving them, Mrs. Ridgway assigned her right to receive child support payments to the state of Kansas pursuant to the Federal Child Support Enforcement Act, 42 U.S.C. Sec. 651 et seq. The Kansas authorities enlisted the Texas Department of Human Resources to establish a court-ordered child support obligation against Ridgway in accordance with the provisions of the Uniform Reciprocal Enforcement of Support Act. In a Texas proceeding in June, 1980, Ridgway agreed to an order that he pay $125 monthly for the support of his daughter, Lucinday. At that time, Ridgway was represented by counsel. Thereafter, he failed to make regular payments, in violation of the order. When he was in arrears for the total sum of $2,125, he was cited for contempt of court. He appeared, alleging that he was indigent, and requested that the state judge appoint counsel for him. His request was refused, not on the basis of his ability to employ counsel but because the Texas judge thought that Texas law did not "allow" him "to appoint lawyers in these contempt actions." The court then proceeded to trial. The only evidence was testimony that Ridgway was delinquent in his payments and that the total past due was $2,125. The court ordered Ridgway imprisoned until he had purged himself of contempt by paying the arrearage, an accomplishment difficult to attain if he were both indigent and jailed. He unsuccessfully sought habeas corpus relief from the Texas Court of Civil Appeals and the Supreme Court of Texas.

Ridgway then sought a writ of habeas corpus from a United States District Court. After proceedings before a federal magistrate, the magistrate recommended that the case be "remanded" to the state court, from which it had never been removed, because the state trial judge had assumed that he "had no discretion to appoint an attorney to represent" Ridgway and, in fact, Texas law grants such authority, citing article 1917 of the Texas Civil Code. 1 The district judge approved the recommendation and ordered the case transferred to state court. After a hearing in state court pursuant to this transfer, the state judge refused to release Ridgway, finding that he had the ability to purge himself of contempt through a work release program. One day after the hearing, however, on August 27, 1982, Ridgway was granted probation. 2

While a case improperly removed from a state to a federal court may be remanded, 3 there is no authority to transfer a case from a federal to a state court. Even if the federal district court had such power, the constitutional issue would not be obviated: if Ridgway was jailed despite his lack of counsel, he is entitled to be released from custody, and the belated appointment of counsel now, a year and a half later, could not retroactively validate the proceedings. Due process cannot be accorded nunc pro tunc to validate a period of imprisonment imposed without proper proceedings.

The state presses the related argument that we should abstain to let the state courts decide the issue. Texas courts, however, have been presented with the question both in the appeal of this case and in at least one prior case and have not faced it save by implication, denying relief in each instance without explanation. Thus in Ex parte Wilson, 559 S.W.2d 698 (Tex.Civ.App.1977), the court denied a writ of habeas corpus to a petitioner who alleged that he was indigent and had not been given counsel in a non-support contempt action, stating that the issue was appropriate for the Texas Supreme Court to decide. The Texas Supreme Court, however, denied the application without an opinion. Ex parte Wilson (b-7220, 1978, unrep.) More important, the issue is one of interpretation of the federal Constitution, not of Texas statutes. The question is not whether state law, which the state now says was improperly understood by its courts, permits counsel to be appointed, but whether counsel is required. "The abstention doctrine is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court's equity powers." Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377, 387 (1964). As in Baggett, the special circumstances prerequisite to application of abstention are not present here. We do not construe the state statute or decide whether or not an indigent parent accused of failure to comply with an order to pay child support has a right to counsel under Texas law, but only whether Ridgway himself was denied due process when he was tried without counsel. Ridgway's plight cannot be remedied by a reinterpretation of Texas law.

The state suggests that the record does not establish Ridgway's indigency and that the case is, therefore, not ripe for adjudication. The lack of evidence of Ridgway's poverty beyond his assertion of it is itself evidence of his need for counsel. He offered neither testimony nor affidavit of poverty, but the state court asked for neither. The state court did not deny him counsel for lack of evidence of indigency. Both the state as prosecutor of the action and the state court elected to proceed on the assumption that Ridgway's indigency did not entitle him to counsel. Having imprisoned him for five months, then placed him on probation, the state cannot now be heard to assert an entirely different reason for denying Ridgway counsel.

Similarly, there is no merit to the state's contention that Ridgway's federal habeas petition is barred because he has failed to exhaust his state remedies. As we have noted, Ridgway presented his habeas petition to the Texas intermediate and supreme courts, both of which denied his claim without explanation. Once a federal claim has been submitted to a state's highest court, the exhaustion requirement is satisfied, even if the state court fails to address the federal claim. Smith v. Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978).

We turn, therefore, to the merits. The Constitution's fourteenth amendment guarantee of due process incorporates the sixth amendment assurance that the accused in a criminal prosecution has the right to counsel. This imposes a duty on the state to provide counsel to a person accused who, because of indigency, cannot afford a lawyer. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right extends to every case in which the litigant may be deprived of his personal liberty if he loses. Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640, 648 (1981). 4

The right to counsel turns on whether deprivation of liberty may result from a proceeding, not upon its characterization as "criminal" or "civil." 5 But were the label important, the Texas courts have long considered contempt proceedings growing out of civil actions criminal or quasi-criminal in nature. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153, 155-56 (Tex.1961); Ex parte Genecov, 143 Tex. 476, 186 S.W.2d 225, 227 (1945); Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 311 (1939). 6 Texas has extended the full armor of due process rights to the non-indigent accused contemnor because of the criminal nature of the proceeding. See Ex parte Green, 603 S.W.2d 216, 218 n. 3 (Tex.1980) (fair notice of charges); Ex parte Hiester, 572 S.W.2d 300, 303 (Tex.1978) (rights to counsel and to confront witnesses); Ex parte Werblud, 536 S.W.2d 542, 547 (Tex.1976) (privilege against self-incrimination); Cliett v. Hammonds, 305 F.2d 565 (5th Cir.1962) (guilt beyond a reasonable doubt); Ex parte Elmore, 161 Tex. 585, 342 S.W.2d 558, 561 (1961) (presumption of innocence); Ex parte White, 149 Tex. 155, 229 S.W.2d 1002, 1004 (1950) (notice and opportunity to be heard); and Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 311 (1939) (requirement of information or complaint).

The state's argument that the contemnor imprisoned only for civil contempt has, in the aphoristic phrase, "the keys of his prison in his own pocket," ignores two salient facts: that the keys are available only to one who has enough money to pay the delinquent child support and that, meanwhile, the defendant, whatever the label on his cell, is confined. If the court errs in its determination that the defendant has the means to comply with the court's order, the confinement may be indefinite. Such an error is more likely to occur if the...

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