Two years after the United States Supreme Court reversed the South Carolina Supreme Court in Turner v. Rodgers, 131 S.Ct. 2507 (2011), I see no evidence that our family court system has taken any of Turner’s ruling to heart. This is partially the fault of our state Supreme Court, which has failed to exercise its rule making authority pursuant to Article V, § 4, of the South Carolina Constitution. It is partially the fault of the legislature, which, under that same constitutional provision, has concurrent authority to create procedural rules. It is partially the fault of the family court system, which has largely failed to apply the holdings of Turner. However the systemic denial of due process in family court civil contempt collection proceedings, that I noted before Turner, continues. It is a disgrace.
One thing noteworthy about Turner is that the United States Supreme Court reached an issue not addressed by the South Carolina Supreme Court in order to reverse our state Supreme Court. It did so despite upholding the primarily holding of the state court decision–that there was no due process right to mandatory appointed counsel for indigent defendants in civil contempt collection proceedings. In addressing an issue not raised by appellant in the lower court, the United States Supreme Court not only reversed the state Supreme Court’s decision, it also laid out explicit, if not necessarily clear, rules for insuring that family court support collection proceedings comported with due process. I assume it did this because it had the same concerns regarding South Carolina’s unconstitutional procedures that I had previously noted.
Of great concern to the United States Supreme Court was that South Carolina was doing an inadequate job on the “ability to pay” issue of civil contempt proceedings, leading to the danger that what were ostensibly civil contempt proceedings were imposing defacto criminal contempt sanctions:
Given the importance of the interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key “ability to pay” question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding. And since 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often.
Id. at 2518 (citations omitted).
The South Carolina family courts have utterly failed to assure accurate decisionmaking in respect to the key “ability to pay” question. Many other states handle these civil contempt proceedings by having family court judges make two separate determinations: the first on the contemnor’s “out of compliance” amount and the second on what the contemnor has the present ability to pay. To qualify as civil contempt incarceration can only occur until the present-ability-to-pay amount is paid. Two years after Turner, I have yet to encounter a civil contempt order explicitly making these two distinct factual findings.
Further, in deciding that court appointed counsel was not uniformly required for indigent defendants in civil contempt proceedings, the United States Supreme Court noted that procedural safeguards could reduce the risk that such defendants were erroneously deprived of liberty:
[T]here is available a set of “substitute procedural safeguards” which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.
Id. at 2519 (citation omitted)
Two years later there is no uniform procedure to insure that these procedural safeguards are put in place. Nothing in the current South Carolina Supreme Court promulgated rule to show cause form provides “notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding.” The current form, SCCA 415, was last modified before Turner, in December 2009. The financial declaration form, SCCA430, is not routinely or uniformly provided to defendants with the rule to show cause and often such defendants are first asked to fill such forms out at the courtroom during the rule hearing. I’ve not heard of family court judges asking such defendants questions about their ability to pay triggered from these financial declarations. The South Carolina Supreme Court promulgated civil contempt order for non support, SCCA 437, requires an explicit finding on the amount of arrears but no explicit finding on the amount the contemnor has the current ability to pay.
Further, one important holding apparently lost on everyone is that the right to court-appointed counsel, while not absolute, was mandated by the United States Supreme Court for family court collection proceedings in which the opposing party was represented by counsel:
We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).
Id. at 2520 (first emphasis in original; second emphasis added).
Note the emphasized conjunction in the final sentence. Under Turner, even if the state provides these alternative procedural safeguards, it must still provide indigent defendants counsel if the opposing parent or other custodian is represented by counsel. Yet the South Carolina family courts read Turner as not imposing a right to indigent counsel under any circumstances and continue to deny indigent defendants counsel even if the opposing party is represented by counsel.
I don’t handle civil rights cases but some intrepid attorney could make a reputation and some money challenging the due process-denying methods that South Carolina continues to utilize in prosecuting civil contempt support collection. Two years after Turner, we haven’t learned any lesson from our United States Supreme Court spanking.