Right to counsel

Relying in part on Lassiter v. Dep't of Social Services, 101 S.Ct. 2153 (1981), the Vermont Supreme Court held the Due Process Clause of the Fourteenth Amendment of the United States Constitution includes a right to the appointment of counsel in a civil proceeding where an indigent defendant faces "actual imprisonment."  Choiniere v. Brooks, 163 Vt. 625, 626 (1995); Russell v. Armitage, 166 Vt. 392, 397 (1997). Although the United States Supreme Court had not expressly held counsel is required in civil contempt proceedings with a possibility of incarceration, the Vermont Supreme Court determined that it was compelled to find such a right to counsel consistent with United States Supreme Court decisions on related matters.

In Choiniere, a mittimus (arrest warrant) was issued by the family court after the defendant failed to pay child support. The Vermont Supreme Court asserted that "the Due Process Clause of the Fourteenth Amendment does not distinguish between the 'criminal' or 'civil' nature of incarceration proceedings."   Since the mittimus ordered the incarceration of a defendant who had not been afforded the benefit of counsel, the court vacated the incarceration order and ordered the family court to appoint counsel for the defendant. The Vermont Supreme Court encountered a similar scenario in Russell, where a parent was held in civil contempt for failing to pay child support. At the first hearing before the family court, the court did not appoint counsel for the parent but held him to be in civil contempt, and ordered him to comply with the child support order. At a later hearing, the Office of Child Support ("OCS") moved for incarceration, at which point the court, pursuant to the PDA, appointed a public defender to represent the parent. The Russell court held that a litigant is entitled to counsel at stages of the civil proceedings where a defendant is at risk of losing his liberty but that all due process requires a "full opportunity" to demonstrate, with the assistance of counsel, why defendant should not be incarcerated prior to incarceration. The court then reasoned that since "the [trial] court did not consider incarcerating the defendant without providing him another opportunity . . . to challenge his ability to comply with the child support order . . . with the aid of counsel," he was not at risk for incarceration and therefore not entitled to counsel at the first proceeding. 

Despite the holding of Turner v. Rogers, 131 S.Ct. 2507 (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter is not "especially complex"), in In re McCoy-Jacien, 2018 VT 116 (2018), the court stated in the context of a civil contempt proceeding (one involving a suspended attorney who failed to cooperate in an effort to protect her clients’ interests) that “Respondent has a right to represented by an attorney at this hearing and if she cannot afford an attorney, she has the right to request that an attorney be appointed for her by this Court”, and cited to Russell.   This suggests that Russell may have state constitutional underpinnings, or more probably that the presence of the State in Russell put the case outside of Turner.