Young v. Whitworth, No. C-1-81-619.

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Writing for the Court: Robert E. Taylor, Asst. Pros. Atty., Cincinnati, Ohio, for County
• Citation: 522 F. Supp. 759
• Parties: In re Steve YOUNG, Petitioner, v. William WHITWORTH, et al., Respondents.
• Docket Number: No. C-1-81-619.
• Decision Date: 25 September 1981

522 F. Supp. 759

In re Steve YOUNG, Petitioner,
v.
William WHITWORTH, et al., Respondents.

No. C-1-81-619.

United States District Court, S. D. Ohio, W. D.

September 25, 1981.

522 F. Supp. 760

Michael O'Hara, Robert Newman, Legal Aid Society of Cincinnati, Cincinnati, Ohio, for petitioner.

Robert E. Taylor, Asst. Pros. Atty., Cincinnati, Ohio, for County.

Terrence R. Cosgrove, Asst. City Pros., Cincinnati, Ohio, for City.

MEMORANDUM

HOGAN, Senior District Judge.

The petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. That petition was based on the failure of the juvenile judge to advise Young of his right to appointed counsel and to provide him with such counsel. Respondent

522 F. Supp. 761

Whitworth is unable to answer the charges alleged by the petitioner. Respondent Court of Common Pleas, Juvenile Division, Hamilton County, Ohio (hereinafter respondent court or juvenile court)¹ has filed a motion to dismiss, apparently pursuant to Fed.R.Civ.P. 12(b)(6). Since we find that the petition states a claim on which the writ of habeas corpus can be granted, the motion of the respondent is denied

I.

Steve Young is the father of four children, ages four, two, one and two months. The mother of these children is Darlene Young. Prior to their ceremonious wedding on April 13, 1981, Darlene sought public assistance from the Hamilton County Welfare Department (hereinafter HCWD). In order to be eligible for the requested aid, Darlene was required to assign her rights of support to HCWD. See Ohio Public Assistance Manual § 8109. Beginning August 29, 1980, the petitioner was obligated to pay child support to HCWD. Because of unemployment, the petitioner was unable to pay this support.

In April, 1981, HCWD initiated proceedings against Steve Young. On April 14, 1981, Young was found in contempt of court. He was given a ten (10) day suspended jail sentence and ordered to pay HCWD seventy-five dollars ($75.00) per week.² Young was unrepresented. In June, 1981, a second hearing was held due to Young's failure to meet the obligations imposed by the April 16 order. Young was again without counsel and was not advised of his right to appointed counsel. The juvenile court ordered Young to serve thirty (30) days in the Cincinnati Correctional Institute.³

The instant petition followed and the respondent court seeks to have the petition dismissed. We can dismiss this petition only if it appears beyond doubt that the petitioner can prove no set of facts in support of his claim which would entitle him to relief. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). We find that if the petitioner was not advised of his right to appointed counsel, or that such counsel was not provided at his request, the due process clause of the fourteenth amendment was violated, and the petitioner would be entitled to a writ of habeas corpus. As such, the respondent's motion must be denied.

II.

The issue before this Court, whether an indigent father cited for contempt of court for non-support can be jailed for such contempt if he was not provided counsel at the contempt hearing, is neither novel nor without dispute. Several state courts have dealt with the issue. Some, including Ohio, found no constitutional requirement that counsel be appointed in this type of case. See Duval v. Duval, 114 N.H. 422, 322 A.2d 1 (1974); Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976); In re Calhoun, 47 Ohio St.2d 15, 350 N.E.2d 665 (1976); Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980); Meyer v. Meyer, 414 A.2d 236 (Sup. Jud.Ct.Me.1980); Ex parte Wilson, 559 S.W.2d 698 (Tex.Civ.App.1977). Others have held that the fourteenth amendment commands appointment of counsel. See Otton v. Zaborac, 525 P.2d 537 (Alaska Sup.Ct. 1974); Tetro v. Tetro, 86 Wash.2d 252, 544 P.2d 17 (1975); Commonwealth ex rel. Brown v. Hendrick, 220 Pa.Super. 225, 283 A.2d 722 (1971). One court found that its state constitution required counsel. Brotzman v. Brotzman, 91 Wis.2d 335, 283 N.W.2d 600 (1979). The Sixth Circuit has not decided this issue, recently refusing to decide it in deference to the state court under the doctrine of abstention. Parker v.

522 F. Supp. 762

Turner, 626 F.2d 1 (6th Cir. 1980). With this diverse background of authority, we now undertake to determine whether the due process clause of the fourteenth amendment requires the provision of counsel in this case

A.

Due process analysis is bilateral. It must first be determined whether a protected liberty or property interest is at stake. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In this case such an interest is so clear as to require no further discussion. The next step is to determine what process is necessary for such an interest to be deprived. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). That issue is crucial before us today. In determining whether Young should have been provided with counsel, we must balance three factors:

1) the private interest that will be affected by the official action (Young's liberty),

2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, and

3) the government's interest, including the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Lassiter v. Department of Social Services, ___ U.S. ___, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).

Liberty is a lofty and majestic term. The concept of physical liberty is at the heart of democracy. In an atmosphere of expanding definitions of "liberty" and "property," physical liberty is often taken for granted as a protected interest, but what "liberty" is more rudimentary to our society than the freedom to move about without restraint. Chief Justice Burger pointed out the value of freedom in Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In Morrissey, the Court was addressing the issue of parole revocation. The importance placed on the physical liberty of the parolee arose from his possession of "many of the core values of unqualified liberty ..." Id. at 482, 92 S.Ct. at 2600. These "core values" have been protected vigorously by American courts whether the case is labeled criminal or civil. See 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); cf. Lassiter v. Department of Social Services, ___ U.S. ___, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). An individual should not be deprived of physical liberty in the absence of a full panoply of procedures, including the appointment of counsel, unless competing interests absolutely require the elimination of such procedures. Id. 101 S.Ct. at 2158-59; but see Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979).

The potential for erroneous deprivation in a case such as this is very similar to the risk of an erroneous result in criminal cases. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In Argersinger, Justice Douglas, writing for the majority, stated:

We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.

Id. at 33, 92 S.Ct. at 2010. The potential thorny legal issues and difficult factual analysis led the Court to require counsel in juvenile proceedings. In re Gault, 387 U.S. 1, 36, 87 S.Ct. 1428, 1448, 18 L.Ed.2d 527 (1967). Circuit courts have apparently recognized the same problems in requiring counsel before a contemnor can be jailed. See United States v. Anderson, 553 F.2d 1154 (8th Cir. 1972); In Re Di Bella, 518 F.2d 955 (2d Cir. 1975); United States v. Sun Kung Kang, 468 F.2d 1368 (9th Cir. 1972); In re Kilgo, 484 F.2d 1215 (4th Cir. 1973).

522 F. Supp. 763

The reduction of error related to misunderstanding of the law and lack of training in marshalling and analyzing facts can be accomplished by providing indigent parents with "the guiding hand of counsel." Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). Because of the extreme weight to be given to the petitioner's interest here, even a modest reduction in the potential for error in the deprivation of that interest justifies the imposition of appointed counsel.

There is a significant government interest in this case. It is in the public interest for parents to be required to provide adequate support for their children, thereby relieving society of that burden. It is also in the interest of both the public and the respondent court to have the mandates of that court...