I would love to see our South Carolina Supreme Court explain how an indigent holds the key to his cell door by paying $6,000.00 he doesn’t have. Today’s Supreme Court opinion in Price v. Turner, 387 S.C. 142, 691 S.E.2d 470 (2010), makes that claim but does nothing to substantiate it.
I have previously noted two potential challenges to the way that South Carolina handles civil contempt for child support enforcement. One of the challenges is that requiring a parent to pay the full amount of past due support in order to purge the civil contempt sentence when that parent has no present ability to do so is improper: See Is the application of civil contempt in South Carolina’s “daddy round-ups” improper? In footnote 13 of my lecture material for Enforcement (or Defending Enforcement) of Family Court Orders I observe that many states require the appointment of counsel for indigents required to defend civil contempt charges.
Price resolves that second challenge. Despite noting that the majority of states that have resolved this issue find that an indigent is entitled to a court-appointed attorney in defending civil contempt, our Supreme Court ruled with the minority: Mr. Turner, despite being indigent, is not entitled to a court-appointed attorney to defend a civil contempt charge.
Perhaps surprisingly, I am not bothered by the holding that an indigent is not entitled to court-appointed counsel to defend a civil contempt charge. If the matter being pursued is truly treated as civil contempt–that is the alleged contemnor truly has the ability to do the act required and purge him or herself of contempt–there is no reason such indigent contemnors need court-appointed counsel. However, too often, the contemnor has no present ability to purge him or herself of the contempt. In such cases, I believe the courts are using criminal contempt in the guise of civil contempt. And it is clear that any criminal charge that might lead to incarceration gives an indigent the right to court-appointed counsel. Alabama v. Shelton, 535 U.S. 654 (2002).
While I am not bothered by the general holding of this case, I am bothered by the Supreme Court’s decision. In Price, the Supreme Court found that Mr. Turner was indigent and that he owed nearly six thousand dollars in child support payments. Yet the court also claimed that “he holds the keys to his cell door and is not subject to a permanent or unconditional loss of liberty.” As noted above, I would love to see the Supreme Court explain how an indigent holds the key to his cell door by paying $6,000.00 he doesn’t have. And I would love someone to make the challenge my blog on Is the application of civil contempt in South Carolina’s “daddy round-ups” improper? raises.