The nation’s top court will hear the appeal of an indigent Upstate father who contends his rights were violated because he wasn’t provided an attorney before being jailed for failing to pay child support.
The U.S. Supreme Court this month announced it accepted the case of Michael D. Turner v. Rebecca Price and the S.C. Department of Social Services. Oral arguments could be heard as early as March, with a ruling by the nine-member court likely by the end of June, based on the court's past practice, Greenville lawyer Derek Enderlin, one of Turner’s appellate attorneys, told The Nerve on Monday.
Having an appeal accepted by the top court is a rare legal feat: Out of about 10,000 petitions the justices receive annually, only about 100 are heard during a term, which started last month.
The S.C. Supreme Court unanimously ruled on March 29 that indigent parents didn’t have the right to an attorney in civil contempt hearings. Turner appealed to the U.S. Supreme Court.
South Carolina is one of only five states in the nation – along with Georgia, Florida, Maine and Ohio – that don’t guarantee indigent parents who owe child support the right to an attorney in civil contempt hearings that can result in jail time, according to Turner’s U.S. Supreme Court petition.
That situation creates modern-day debtors’ prisons, as judges are more likely to jail indigent parents without attorneys for contempt, Turner and his supporters say in court papers.
At any given time in South Carolina, there are about 1,500 people in jail for non-payment of child support, the vast majority of who were sentenced for civil contempt, according to research in 2005 and 2009 by Elizabeth “Libba” Patterson, a University of South Carolina law professor and former director of the S.C. Department of Social Services.
“The system just isn’t working that well,” Enderlin, who represented Turner for free before the S.C. Supreme Court, told The Nerve. “We’re putting people in jail, and by the time they get out, they’re twice as much in debt.”
Enderlin said he plans to attend the oral arguments before the U.S. Supreme Court. The lead appellate attorney, who also is representing Turner at no cost, is Seth Waxman of Washington, D.C., a former U.S. solicitor general appointed by President Bill Clinton.
The solicitor general represents the United States in appeals before the U.S. Supreme Court, arguing the government’s position. Waxman could not be reached for comment last week.
Stephanos Bibas of the University of Pennsylvania Law School Supreme Court Clinic, which is representing Price – who now goes by Rebecca Rogers – and her father, Larry Price Sr., declined comment when contacted last week by The Nerve. Bibas referred The Nerve to his clients’ legal filings.
The S.C. Attorney General’s Office, which had been representing DSS, did not respond last week to written questions from The Nerve. In court papers filed with the U.S. Supreme Court, Assistant S.C. Attorney General James Smith Jr. said DSS should be dropped from the appeal, contending that the agency was not a party in the earlier appeal to the S.C. Supreme Court.
In January 2008, Oconee County Family Court Judge Timothy Cain ordered Turner to serve one year in jail after he was found in civil contempt for failing to pay $5,728.76 in child support, according to court records. Turner’s daughter was born in 1996; he was ordered in 2003 to begin making weekly support payments of $51.73, records show.
Rebecca Rogers and her father, who now has custody of the girl, said in court papers that before the 2008 family court hearing, Turner had been found in civil contempt five previous times for failure to pay court-ordered child support. In four of those instances, support payments were made after the threat of a 90-day jail sentence; during those years, Turner found construction and automotive jobs, though he didn’t hold onto them, according to their reply brief.
Enderlin earlier told The Nerve that his client had been jailed for contempt on at least three occasions, including his 2008 sentence, serving a total of about 2.5 years behind bars, though Rogers and Price in their legal brief say that the total incarceration period was shorter.
At the 2008 hearing, Turner told Judge Cain that he couldn’t work because of drug addictions and a physical injury. Turner represented himself in the proceeding; Cain never informed him of his right to an attorney or made a finding on his indigent status, according to Turner’s U.S. Supreme Court petition.
In their response, Rogers and Price maintain that the right to an attorney under the U.S. Constitution is limited to criminal proceedings, noting that that the nation's indigent criminal defense system is “chronically overburdened and strapped for cash.”
Also, they argue in court papers, the government has an interest in keeping fathers who represent themselves in child support hearings “evenly matched” with mothers who don’t have an attorney and are seeking to enforce child support orders, as was the situation in Rogers’ case.
The S.C. Supreme Court in its March ruling said unlike a criminal contempt charge, a person jailed for civil contempt is “said to hold the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time by doing the act he had previously refused to do.”
But critics of the ruling say that indigent defendants typically are unable to pay their arrears after being jailed, and that holding them behind bars only exacerbates the problem.
“Ironically, low-income noncustodial parents who lack the ability to pay their child support debts are more likely to face incarceration than are noncustodial parents who have the means to pay child support and refuse to do so, Patterson, the former DSS director, and others say in a legal brief supporting Turner.
“The end result is that jails across the United States are filled with low- and no-income parents who have been incarcerated (largely through civil contempt processes) for nonpayment of child support.”
Patterson and others in their legal brief noted that according to the U.S. Office of Child Support Enforcement, of the more than $70 billion in child support debt nationally, 70 percent of all arrears due to the government as reimbursement for welfare payments are owed by noncustodial parents with no quarterly earnings or annual incomes of less than $10,000.
Turner was supported in his petition to the U.S. Supreme Court by various state and national organizations that submitted friend-of-the-court briefs, including: the S.C. Appleseed Legal Justice Center, the S.C. Center for Fathers and Families, the Center for Family Policy and Practice, the Constitution Project, the Brennan Center for Justice, the National Legal Aid and Defender Association, and the National Association of Criminal Defense Lawyers.
Reach Brundrett at (803) 254-4411 or firstname.lastname@example.org.