State v. Currier

• Decision Date: 08 February 2013
• Docket Number: No. S–12–0114.,S–12–0114.
• Citation: 295 P.3d 837
• Parties: STATE of Wyoming, DEPARTMENT OF FAMILY SERVICES, Petitioner, v. Tanya S. CURRIER and Ronnie Hauck, Respondents.
• Court: Wyoming Supreme Court

295 P.3d 837

STATE of Wyoming, DEPARTMENT OF FAMILY SERVICES, Petitioner,

v.Tanya S. CURRIER and Ronnie Hauck, Respondents.

No. S–12–0114.

Supreme Court of Wyoming.

Feb. 8, 2013.

Representing Petitioner: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Jared Crecelius, Senior Assistant Attorney General.

Representing Respondents: No appearance.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

KITE, Chief Justice.

[¶ 1] This Court granted the State of Wyoming, Department of Family Services' (DFS) petition for a writ of review of the district court's ruling that due process requires the state to provide an indigent party with counsel in a civil contempt proceeding for non-payment of child support when incarceration is one of the possible penalties. We conclude that appointment of counsel is not required because Wyoming has sufficient substitute procedural safeguards to protect indigent obligors against the possibility of wrongful incarceration. Consequently, we reverse.

ISSUES

[¶ 2] DFS presents the following issues for our review:

I. Does the Due Process Clause of the United States Constitution, as interpreted by the United States Supreme Court in Turner v. Rogers, –––U.S. ––––, 131 S.Ct. 2507 (2011), give indigent litigants the right to appointment of counsel in child support civil contempt proceedings where incarceration is a possibility?

II. If indigent litigants have a due process right to appointment of counsel in child support civil contempt proceedings, is the State of Wyoming Department of Family Services required to pay for the litigant's attorney's fees?

Respondents Tanya S. Currier (Mother) and Ronnie Hauck (Father) did not file briefs.

FACTS

[¶ 3] In 2008, the district court entered a default judgment and order establishing Father's paternity of a child and ordering him to pay $228.00 per month in child support, which was the presumptive amount under the child support guidelines. On June 10, 2011, DFS filed a petition for an order to show cause as to why Father should not be held in contempt of court for failing to pay child support. The petition alleged he owed $9,681.25 in child support and attorney fees and costs, which included $7,996.25 to Mother and $1,685.00 to DFS. One of the possible sanctions for contempt included in the petition was “a jail sentence.”

[¶ 4] The district court held a hearing on September 12, 2011.¹ Father appeared at the hearing without counsel and the district court advised him that he was entitled to appointed counsel at the state's expense if he was indigent. Father completed an affidavit for appointed counsel and the district court appointed a public defender to represent him. DFS filed an objection to the district court's order appointing counsel and the district court vacated the order with respect to the appointment of the public defender, presumably because public defenders do not handle these types of civil cases.

[¶ 5] After that, however, the district court entered an order denying DFS's objection to appointment of counsel and appointing counsel. The district court ruled that under the United States Supreme Court cases, Turner v. Rogers, ––– U.S. ––––, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011) and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), “due process does require court-appointed counsel when the State of Wyoming, through legal counsel, brings a child support enforcement proceeding against an indigent defendant.” It then ordered DFS to make arrangements for compensation of counsel through any means available and have an attorney enter an appearance within fifteen days.

[¶ 6] DFS filed a petition with this Court for a writ of review of the district court's decision, and we granted a writ.

STANDARD OF REVIEW

[¶ 7] The issue raised in this case is purely one of constitutional law; thus, our standard of review is de novo. Jacobsen v. State, 2012 WY 105, ¶ 9, 281 P.3d 356, 358 (Wyo.2012); Tucker v. State, 2009 WY 107, ¶ 11, 214 P.3d 236, 240 (Wyo.2009).

DISCUSSION

[¶ 8] This Court has not previously considered the precise question presented in this case-whether an indigent litigant in a civil contempt case is entitled to appointed counsel when incarceration is a possible penalty. In GGV v. JLR, 2005 WY 14, 105 P.3d 474 (Wyo.2005), the appellant claimed she was denied due process because the district court did not appoint counsel to represent her in a civil contempt proceeding where she was jailed for failing to pay a prior award of attorney fees and guardian ad litem costs. We noted that “some courts have held that an indigent contemnor may be entitled to appointed counsel even in civil contempt proceedings (where incarceration is a real possibility),” but ruled that we need not reach the question because GGV “did not offer any meaningful evidence to the district court that she was indigent.” Id., ¶ 13, 105 P.3d at 480.

[¶ 9] Prior to the United States Supreme Court ruling in Turner, 131 S.Ct. 2507, there was a split of authority among courts as to the “applicability of a ‘right to counsel’ in civil contempt proceedings enforcing child support orders.” Id., 131 S.Ct. at 2514.See also, M. Caner, Right to Appointment of Counsel in Contempt Proceedings, 32 A.L.R.5th 31 (1995 and Supp.2012) and cases collected therein. The United States Supreme Court ruled in Turner that due process does not automatically require appointment of counsel in child support contempt cases involving indigent obligors even when incarceration is a possibility. Id., 131 S.Ct. at 2520. A comprehensive review of that decision is necessary to our analysis in this case.

[¶ 10] Turner was ordered to pay child support to Rogers by a South Carolina family court, but repeatedly failed to do so. He was held in contempt and sentenced to jail on several occasions. During the contempt proceeding at issue in the Supreme Court, both he and Rogers appeared without counsel. At the conclusion of the hearing, the judge found Turner in willful contempt of court and sentenced him to serve twelve months in the county detention center. He could purge himself of the contempt and avoid the jail sentence by paying his arrearage in full. The judge did not make an express finding or otherwise address Turner's ability to pay the amount due. Turner, 131 S.Ct. at 2513–14.

[¶ 11] Turner appealed, claiming the United States Constitution entitled him to appointed counsel at the contempt hearing. The South Carolina Supreme Court ruled that, because the contempt was civil in nature, the right to government paid counsel was not applicable. He petitioned the United States Supreme Court for certiorari and, because of a split of authority among state and some federal courts, it granted the writ. Id. at 2514.

[¶ 12] Although the Sixth Amendment to the United States Constitution guarantees indigent defendants the right to appointed counsel in criminal cases, including criminal contempt proceedings, it does not apply in civil cases. Id. at 2516, citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The Fourteenth Amendment's guarantee of due process does, however, apply to civil contempt actions. Id. The Supreme Court reviewed other cases where it had considered whether a litigant has a right under the Fourteenth Amendment to counsel in civil matters and concluded that its precedent established an indigent litigant has the right to appointed counsel only when he risks being deprived of his liberty, and not in every one of those instances. For example, under Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), a criminal offender does not ordinarily have the right to appointed counsel at a parole or probation revocation hearing. Turner, 131 S.Ct. at 2516–17.

[¶ 13] In determining whether Turner was entitled to appointed counsel, the Court applied the well-known test from Mathews, 424 U.S. at 335, 96 S.Ct. at 903, to determine “what specific safeguards the Constitution's Due Process Clause requires in order to make a civil proceeding fundamentallyfair.” The Mathews factors include: “(1) the nature of the ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’ ” Turner, 131 S.Ct. at 2517–18, quoting Mathews, 424 U.S. at 335, 96 S.Ct. 893.

[¶ 14] Applying the Mathews factors to Turner's situation, the Court concluded the first factor, “the private interest that will be affected,” argued strongly in favor of a right to counsel because that interest involves the possibility of loss of personal liberty by imprisonment. Due to the importance of the interest, it is critical to ensure accurate decision making with regard to the key “ability to pay” question because the answer ultimately determines whether the matter is civil or criminal in nature and whether the obligor will be held in contempt of court. Id. at 2518.

[¶ 15] Nevertheless, the Court stated that due process does not always require the appointment of counsel in civil proceedings even when incarceration is threatened and the opposing interests and the value of providing additional or substitute procedural safeguards must be considered. Id. The Court found three considerations in Turner's case that argued against due process requiring appointment of counsel:

First, the critical question likely at issue in these cases concerns, as we have said, the defendant's ability to pay. That question is often closely related to the question of the defendant's indigence. But when the right procedures are in place, indigence can be a question that in many—but not...