564 U.S. 431 (2011)
In June 2003 a South Carolina family court entered an order requiring petitioner Michael Turner to pay respondent Rebecca Rogers $51.73 per week to help support their child.1 Rogers' father Larry Price currently has custody of the child and is also a respondent before this Court.
Over the next three years Turner repeatedly failed to pay the amount due and was held in contempt on five occasions.2 The first four times he was sentenced to 90 days' imprisonment but ultimately paid what he owed. He paid twice without being jailed and twice after spending a few days in custody. The fifth time he did not pay but completed a six-month sentence.
After his release Turner remained in arrears.3 On March 27, 2006 the family court clerk issued a new show cause order because Turner was $5,728.76 behind. Following an initial postponement due to Turner's failure to appear, his civil contempt hearing took place on January 3, 2008. Turner and Rogers were both present without representation by counsel.
The court clerk stated the arrearage amount. The judge asked Turner if there was anything he wanted to say. Turner described getting back on drugs after release, breaking his back in September, filing for disability and SSI benefits, and hoping for another chance. The judge then asked Rogers if she had anything to say. The judge found Turner in willful contempt and sentenced him to twelve months in the Oconee County Detention Center. Turner could purge the contempt by reaching a zero balance.
The judge completed a prewritten Order for Contempt of Court form but left blank the statement indicating whether Turner was gainfully employed and had the ability to make support payments when due. Turner served the full sentence. While serving the sentence Turner appealed with pro bono counsel claiming a federal constitutional right to counsel at the contempt hearing. The South Carolina Supreme Court rejected the claim after Turner completed his sentence. Turner sought certiorari, and the United States Supreme Court granted review.
Within months of his release from the twelve-month imprisonment Turner was again the subject of civil contempt proceedings.4 He had arrears of $13,814.72 as of December 2010.5 Another hearing was scheduled for May 2011.
Whether the case is moot after Turner completed his twelve-month sentence with no alleged collateral consequences?6
No. The imprisonment for up to twelve months is in its duration too short to be fully litigated through the state courts prior to its expiration.9 There is a more than reasonable likelihood that Turner will again be subjected to the same action because he has frequently failed to make his support payments.10 He has been the subject of several civil contempt proceedings.11 He has been imprisoned several times.12 He is once again the subject of civil contempt proceedings for failure to pay.13 In June 2003 a South Carolina family court entered an order requiring petitioner Michael Turner to pay respondent Rebecca Rogers $51.73 per week to help support their child. Rogers' father Larry Price later had custody of the child.14 Over the next three years Turner repeatedly failed to pay the amount due and was held in contempt on five occasions. He received sentences of ninety days or six months.
After his release Turner remained in arrears. This led to a new show cause order on March 27, 2006 because he was $5,728.76 behind.15 His civil contempt hearing took place on January 3, 2008 without counsel for either party.16 The judge found Turner in willful contempt and sentenced him to twelve months.17 He served the sentence in full before appealing.18 Within months of his release from the twelve-month imprisonment Turner was again the subject of civil contempt proceedings. He had arrears of $13,814.72 as of December 2010.
The case is not moot because it is capable of repetition while evading review.19
Whether the Fourteenth Amendment's Due Process Clause automatically requires the State to provide counsel at civil contempt proceedings to an indigent noncustodial parent subject to a child support order who faces incarceration?20
The Due Process Clause does not automatically require the State to provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration.21 In particular, that Clause does not require that counsel be provided where the opposing parent or other custodian is not represented by counsel and the State provides alternative procedural safeguards equivalent to adequate notice of the importance of the ability to pay, a fair opportunity to present and to dispute relevant information, and express court findings as to the supporting parent's ability to comply with the support order.22
No. The private interest that will be affected argues strongly for the right to counsel because it consists of an indigent defendant's loss of personal liberty through imprisonment.23 Freedom from bodily restraint lies at the core of the liberty protected by the Due Process Clause.24 Accurate decisionmaking as to the ability to pay must be assured because an incorrect decision can result in a wrongful incarceration.25 An erroneous determination would also deprive a defendant of the procedural protections a criminal proceeding would demand.26
Three related considerations argue strongly against requiring counsel in every proceeding of the present kind.27 First, the likely critical question in these cases is the defendant's ability to pay, which is often closely related to his indigence and relatively straightforward.28
Second, sometimes the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel.29 A requirement that the State provide counsel to the noncustodial parent could create an asymmetry of representation that would alter significantly the nature of the proceeding.30
Third, as the Federal Government points out, an available set of substitute procedural safeguards, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. These include notice to the defendant that his ability to pay is a critical issue in the contempt proceeding.31 The use of a form or the equivalent to elicit relevant financial information from him.32 An opportunity at the hearing for him to respond to statements and questions about his financial status.33 An express finding by the court that the defendant has the ability to pay.34
The Due Process Clause does not automatically require the provision of counsel at such civil contempt proceedings.35
Related opinions on this issue
Justice Thomas would affirm the judgment of the South Carolina Supreme Court because the Due Process Clause does not provide a right to appointed counsel in civil contempt hearings that may lead to incarceration.36 Under an original understanding of the Constitution there is no basis for concluding that the guarantee of due process secures a right to appointed counsel in civil contempt proceedings.37 No historical evidence shows that courts appointed counsel in such proceedings.38
Even under the Court's modern interpretation of due process, the Clause does not provide a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings.39 Such a reading would render the Sixth Amendment right to counsel superfluous.40 The Court's holdings in due process cases regarding the right to counsel are narrow.41
The Court has never found a categorical right outside criminal prosecutions or proceedings functionally akin to a criminal trial.42
Whether Turner's incarceration violated due process because he received neither counsel nor alternative procedural safeguards such as notice that ability to pay was the critical issue, a financial information form, an opportunity to respond about his finances, and an express court finding on ability to pay?43
Under the circumstances, a defendant's incarceration violates due process if he received neither counsel nor the benefit of alternative procedures assuring a fundamentally fair determination of the critical incarceration-related question whether the supporting parent is able to comply with the support order.44
Yes. Turner did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding.45 No one provided him with a form or the equivalent designed to elicit information about his financial circumstances.46 The trial court did not find that he was able to pay his arrearage but nonetheless found him in civil contempt and ordered him incarcerated.47
At the January 3, 2008 hearing the judge asked Turner if there was anything he wanted to say.48 After Turner's statement the judge found him in willful contempt and sentenced him to twelve months without making any finding as to his ability to pay or indicating on the contempt order form whether he was able to make support payments.49 The court completed a prewritten Order for Contempt of Court form but left blank the statement indicating whether Turner was gainfully employed and had the ability to make support payments when due.50
Turner's incarceration violated due process.51