Sevier v. Turner

• Decision Date: 20 September 1984
• Docket Number: No. 82-5758,82-5758
• Citation: 742 F.2d 262
• Parties: Freddie SEVIER, Plaintiff-Appellant, v. Kenneth TURNER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 262

742 F.2d 262

Freddie SEVIER, Plaintiff-Appellant, v. Kenneth TURNER, et al., Defendants-Appellees.

No. 82-5758.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 24, 1984.

Decided Aug. 8, 1984.

Rehearing and Rehearing En Banc Denied Sept. 20, 1984.

Wayne Chastain (argued), Memphis Area Legal Services, Inc., Memphis, Tenn., for plaintiff-appellant.

J. Minor Tait, Jr. (argued), Memphis, Tenn., for defendants-appellees.

Before EDWARDS, JONES and CONTIE, Circuit Judges.

CONTIE, Circuit Judge.

Freddie Sevier, the plaintiff, appeals from a district court judgment dismissing this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Sevier's complaint had asserted claims for habeas corpus relief under 28 U.S.C. Sec. 2254, declaratory relief under 28 U.S.C. Sec. 2201, injunctive relief under 42 U.S.C. Sec. 1983 and damages under 42 U.S.C. Secs. 1983 and 1985(3). For the reasons set forth below, we affirm in part, reverse in part and remand for further proceedings.

I.

Assuming the plaintiff's factual allegations to be true, as this court must do when reviewing a district court judgment dismissing an action pursuant to Rule 12(b)(6), see Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965), the facts in this case may be summarized as follows. Freddie Sevier, a father who is obligated to pay child support, resides in Memphis, Tennessee. Defendant Turner is a Shelby County, Tennessee Juvenile Court judge. Defendant Person is a Shelby County Juvenile Court referee who also holds the office of Tennessee state senator. Defendant Justice is a paid employee of Judge Turner and also acts as an agent of the Tennessee Department of Human Services.

Willful failure to make child support payments is a misdemeanor under Tennessee law. See Tenn.Code Ann. Sec. 39-4-102. Sevier alleges that Judge Turner, under a contract with Shelby County, performs the prosecutorial function of collecting overdue child support payments from fathers within the county. With the aid of defendants Person and Justice, Judge Turner threatens to prosecute fathers who are delinquent on their support payments and extracts consent orders obligating the fathers to pay specified amounts of child support per week. Moreover, fathers failing to comply with executed consent orders are held in civil contempt. These fathers then are ordered to make "purge payments" or are incarcerated or both. Portions of the purge payments are used to pay the salaries of Turner, Person and Justice. The consent orders are extracted and the civil contempt penalties are imposed without hearings before Judge Turner. Nor are fathers informed of their rights to testify, to present evidence, to confront and cross-examine witnesses, and to have the assistance of counsel, including appointed counsel if indigent.

In the present case, ¹ the plaintiff fell behind on his child support payments. On July 13, 1977, defendant Justice filed an affidavit of complaint against Sevier under Rule 3 of the Tennessee Rules of Criminal Procedure. Justice represented himself to be both an agent of the Tennessee Department of Human Services and the assignee of the rights of Sevier's wife. No arrest warrant was issued under Rule 4 of the Rules of Criminal Procedure.

The plaintiff subsequently received a letter from Justice threatening the former with arrest if he did not appear in Juvenile Court to respond to the criminal complaint. When Sevier appeared on July 20, 1977, Justice did not reveal that no arrest warrant had been issued and did not inform Sevier of the right to be represented by counsel. Instead, Justice threatened to have the plaintiff arrested and placed under a $1,000 bond if Sevier refused to sign a consent order obligating him to pay $15 per week in child support. Fearing immediate arrest, Sevier signed the order. Judge Turner later approved the consent order without a hearing.

Sevier made the child support payments until March 1981. At this time, he again fell into arrears allegedly because his new employer did not honor a wage assignment established under the consent order. In September 1981, the plaintiff was served with an order to show cause why he should not be held in civil contempt. Sevier appeared on October 2, 1981 before referee Person. Person did not advise Sevier of his right to counsel, retained or appointed. Person proceeded to adjudge the plaintiff guilty of civil contempt and sentenced him to jail until he made a $200 purge payment. In addition, Person ordered that the arrearage be paid within ten months. Judge Turner adopted Person's recommendation without a hearing.

Since Sevier was unable to make the purge payment, he spent sixteen days in jail. His employer discharged him during this time period for absenteeism. Shortly after the plaintiff was released, he again received a notice ordering him to appear before the Juvenile Court to show cause why he should not be held in contempt.

Mr. Chastain of Memphis Area Legal Services represented Sevier at the second civil contempt hearing which occurred on February 18, 1982. ² Since the thirty-day period in which to appeal from the October 2, 1981 contempt order had lapsed, Chastain moved the Juvenile Court, William Ingram presiding, to vacate both the contempt order and the original consent order. Ingram denied the motions and issued an arrest warrant.

Sevier then appealed to the Tennessee Court of Appeals via Rule 10 of the Tennessee Rules of Appellate Procedure. This rule empowers Tennessee appellate courts, in their discretion, to hear extraordinary appeals from interlocutory orders of lower Tennessee courts where the lower courts have "so far departed from the accepted and usual course of judicial proceedings as to require immediate review ...." The Court of Appeals declined to hear the case through an order which read in its entirety:

The appellant's application for extraordinary appeal under rule 10, T.R.A.P. is denied. Cost in this court is adjudged against the appellant. Enter: March 30, 1982.

Sevier then appealed to the Tennessee Supreme Court, which also refused to hear the case. The court's order read in full:

The Motion to Correct Error in Application for Permission to Appeal filed by the Defendant-Appellant is granted.

The Court has considered the application for permission to appeal filed by the Appellant and the answer of the Appellee, the briefs of counsel and the entire record and is of the opinion that the application should be and the same is hereby denied.

Costs will be borne by the Appellant.

After the Tennessee Supreme Court issued its decision, and while the arrest warrant remained in effect, ³ the plaintiff filed his complaint in the district court. In the prayer for relief, Sevier first asked that both the July 1977 consent order and the October 1981 civil contempt order be voided. Second, Sevier requested a declaration that when ordered to appear at future contempt hearings involving failure to pay child support, he is entitled to testify, to present evidence, to confront and cross-examine witnesses, and to have the assistance of counsel (including appointed counsel if indigent). ⁴ Third, the plaintiff requested an order enjoining the defendants from violating the above enumerated rights. Finally, Sevier requested compensatory damages for lost wages, punitive damages and attorney's fees. The district court granted the motion as to all defendants under the doctrine of judicial immunity. It is from this judgment that the plaintiff appeals.

II.

The plaintiff's primary claim is that he was entitled to be informed of the right to counsel, and to have counsel appointed if he were indigent, both at the October 1981 civil contempt hearing and during the July 1977 meeting with defendant Justice at which the consent order was signed. Since Sevier was incarcerated for sixteen days as a result of the civil contempt hearing, he was entitled to have the assistance of counsel during that proceeding. See Lassiter v. Department of Social Services, 452 U.S. 18, 25-26, 101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640 (1981); Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D. Ohio 1981); Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981). As indicated by the Supreme Court in Lassiter, the relevant question in determining if a defendant is entitled to counsel during this type of contempt proceeding is not whether the proceeding be denominated civil or criminal, but rather is whether the court in fact elects to incarcerate the defendant.

Whether the plaintiff was entitled to the assistance of counsel during the meeting with defendant Justice presents a more difficult question. Sevier contends that he signed the consent decree in order to avoid being arrested and prosecuted for willful failure to pay child support. Although the consent order is a civil judgment, the order resulted from a discussion between the plaintiff and defendant Justice about the affidavit of complaint that had been filed under Tennessee Rule of Criminal Procedure 3.

The plaintiff presents two theories to support his claim that he was entitled to the assistance of counsel during his meeting with Justice. First, he argues that in filing the affidavit of complaint, Justice initiated adversary judicial criminal proceedings on behalf of the state within the meaning of Moore v. Illinois, 434 U.S. 220, 226-27, 98 S.Ct. 458, 463-64, 54 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882-83, 32 L.Ed.2d 411 (1972) (plurality); and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Those cases stand for the proposition that once adversary judicial criminal proceedings have commenced, the sixth amendment right to counsel attaches. Since the affidavit of complaint was filed before Sevier was ordered to meet with Justice, Sevier contends that he was entitled to have counsel present during the...