Indigent Father Appeals to U.S. Supreme Court

August 2, 2010

Investigative Reports

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The NerveAn indigent Upstate father jailed for a year for failure to pay child support has appealed his case to the nation’s highest court, contending he had a right to an attorney to contest his contempt charge.

In an ironic twist, Michael D. Turner is now being represented by one of the country’s leading appellate attorneys and a former U.S. Solicitor General – for free.

South Carolina is only one of five states in the nation –  along with Georgia, Florida, Maine and Ohio – that don’t guarantee indigent parents the right to counsel in civil contempt hearings that can result in jail time, according to Turner’s U.S. Supreme Court petition, which was filed in June.

The Nerve first profiled Turner’s case in April after the S.C. Supreme Court unanimously ruled in his case that indigent parents didn’t have the right to an attorney in civil contempt hearings.

“These ‘civil’ sanctions have become for Turner – and countless indigent parents like him who lack the financial ability to secure their release – a form of modern-day debtors’ prison,” Turner’s U.S. Supreme Court petition states.

The exact number of indigent parents serving time in South Carolina jails is unknown. Turner’s petition, citing a 2009 scholarly article by Elizabeth “Libba” Patterson, a University of South Carolina law professor and former director of the state Department of Social Services, noted that in 2005, about 1,500 people were in jails statewide at any given time for non-payment of child support.

In an interview last week with The Nerve, Patterson said she found a similar number of jailed parents in a 2009 survey of South Carolina jails, noting that the vast majority of them were sentenced for civil contempt in child support cases.

“There is really compelling reason to believe that most of the people in jail do not have the ability to pay the (owed) amount,” she said. “From my perspective, if the person is in jail, they are not paying child support, so what is the point of having them there if, in fact, they are indigent?”

Turner’s petition was submitted on his behalf by his South Carolina appellate attorney, Derek Enderlin of Greenville; Kathrine Hudgins of the S.C. Commission on Indigent Defense; and Washington, D.C., appellate lawyer Seth Waxman and other lawyers in his firm. Patterson is co-author of a friend-of-the-court brief supporting the petition.

Waxman was the nation’s 41st U.S. Solicitor General, who was appointed by President Bill Clinton and served in that position from 1997 to 2001. The solicitor general represents the United States in appeals before the U.S. Supreme Court, arguing the government’s position.

Waxman, a Harvard and Yale graduate, has argued 33 cases before the U.S. Supreme Court, according to the website of his law firm, Wilmer Cutler Pickering Hale and Dorr.

In 2008, he made international headlines when the high court in a 5-4 vote agreed with his legal position that “enemy combatants” held at Guantanamo Bay have the right to challenge their detention in U.S. civilian courts. President Barack Obama has since ordered that the island prison be closed.

Efforts last week by The Nerve to reach Waxman were unsuccessful. Enderlin told The Nerve last week that he and Waxman are representing Turner for free.

“I truly believe South Carolina can improve its process,” Enderlin said. “Our client was in jail, so the child wasn’t getting any money.”

The S.C. Department of Social Services is a defendant in the appeal. Mark Plowden, spokesman for state Attorney General Henry McMaster, confirmed last week that his office is representing DSS, though he declined to comment on specifics of the case.

“Our (response) is not due to the Court until late September,” Plowden said in a written response to The Nerve.

It’s far from guaranteed that the high court will agree to hear the case for its 2010-11 term, which officially starts the first week in October. The nine-member court typically receives about 10,000 petitions annually, though it usually hears only about 100 cases a term.

If the U.S. Supreme Court accepts the case and overturns the S.C. Supreme Court’s ruling, it likely would create even more of a strain on the state’s general fund budget, which has struggled in recent years to pay for court-appointed attorneys in civil cases.

On Jan. 3, 2008, Turner was ordered by Oconee County Family Court Judge Timothy Cain to serve one year in jail after he was found in civil contempt for failing to pay $5,728.76 in child support, court records show. According to Turner’s U.S. Supreme Court petition, Rebecca Price, who is a defendant in the appeal, gave birth to their daughter in 1996; Turner was ordered in 2003 to begin making weekly support payments of $51.73.

Price, who, according to the petition, was receiving public assistance at the time, assigned her right to collect child support to DSS in accordance with federal law, which requires South Carolina to forward a portion of collected child support payments to the federal government as reimbursement for its share of the financial assistance given to indigent parents. Patterson told The Nerve that contempt proceedings in child support cases became more frequent with federal changes in child support enforcement in the late 1980s and 1990s.

Initially, the Oconee County clerk of court forwarded any support payments Turner made to DSS, but in March 2004, the clerk began sending payments directly to Price after her public assistance ended, according to the petition. By May 2009, the child had been placed in the custody of Price’s grandmother; and the court approved DSS’ request designating the grandmother as the payee and forwarding any support payments to DSS, the petition states.

Turner fell behind on his child support after struggling to maintain employment, his petition states. Enderlin told The Nerve that his client had been jailed for contempt on at least three occasions, including the 2008 sentence, serving a total of about 2.5 years behind bars.

Enderlin said he was able to keep Turner out of jail earlier this year on another contempt charge after negotiating a suspended sentence in exchange for his client’s completion of a substance abuse treatment program.

Each jail term resulted in Turner falling behind on his support because he continued to owe payments while in jail though he couldn’t work, Enderlin said. Turner’s petition contains his in-court explanation that he made to Judge Cain on Jan. 3, 2008, about why he was unable to make the payments then. Following is an excerpt of the statement:

“Well, when I first got out (of jail), I got back on dope. I done meth, smoke pot and everything else, and I paid a little bit here and there. And, when I finally did get to working, I broke my back, back in September. … I didn’t get straightened out off the dope until I broke my back and (got) laid up for two months. … I just hope that you give me a chance. … I mean, I know I done wrong, and I should have been paying and helping her, and I’m sorry. I mean, dope had a hold (on) me.”

Cain wasn’t persuaded, however, finding Turner in civil contempt and sentencing him to a year in jail for failing to pay the court-ordered support. Turner had represented himself in the proceeding, though 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 his initial appeal to the S.C. Supreme Court, Turner in court papers argued that Cain violated his constitutional rights to an attorney and due process. But on March 29, the five-member court unanimously disagreed, ruling that he wasn’t entitled to a lawyer.

“The purpose of civil contempt is to coerce the defendant to comply with the court’s order,” Chief Justice Jean Toal wrote for the court. “In contrast, criminal contempt is intended to punish a party for disobedience and disrespect. … A (person) imprisoned 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.”

The state’s top court rejected written arguments by the American Civil Liberties Union and other legal groups supporting Turner. In a footnote in the ruling, the justices acknowledged that they were adopting the “minority position” compared to other similar court rulings nationwide.

Patterson told The Nerve that it’s easier for judges to cite defendants for civil rather than criminal contempt because the latter puts the burden of proof on the state and requires that defendants be allowed to have their own attorneys. In a civil contempt situation, the burden is on the defendant to convince the judge that he or she doesn’t have the money to pay the court-ordered child support, Patterson said, adding that indigent defendants with substance abuse problems or poor employment histories often don’t appear credible to judges, particularly if they make repeat appearances.

“It starts to sound like an excuse, and the judge doesn’t have a lot of tools to deal with it” she said.

In his petition to the U.S. Supreme Court, Turner said the S.C. Supreme Court ruling directly contradicted a 1981 U.S. Supreme Court ruling, as well as rulings by 22 federal appellate courts or top courts in other states. His petition claims that the S.C. ruling low-balled the number of opposing rulings and made other inaccurate statements about other states’ rulings.

“The federal courts laid down three sensible markers – each of which the Supreme Court of South Carolina brushed aside or ignored,” his petition states. “First, they understood that, for the purposes of the right to counsel, there is no meaningful distinction between civil and criminal proceedings when the outcome is incarceration.

“Second, the federal courts rejected the fiction that an indigent civil contemnor (a person charged with civil contempt) ‘holds the keys to his cell.’ … These courts recognized that although the defendant may end his sentence, his indigence will prevent him from doing so in fact.

“Third, and most fundamentally, the federal courts have acknowledged that the assistance of counsel is indispensible to a civil contemnor facing incarceration. … As the (U.S.) Fifth Circuit (Court of Appeals) has explained, without the assistance of counsel, an indigent defendant is at risk of ‘indefinite’ confinement if the trial court erroneously determines that he has ‘the means to comply with the court’s order.’”

The Nerve reported earlier that it’s unclear whether imprisoning indigent parents has improved collection rates in South Carolina. For fiscal year 2009, for example, a total of $174.1 million in child support was collected in South Carolina out of $339.7 million owed, or a collection rate of 51.25 percent, according to DSS records.

DSS did not immediately respond to a request last week by The Nerve seeking collection figures for the fiscal year that ended June 30.

Reach Brundrett at (803) 254-4411 or rick@scpolicycouncil.com.