Right to counsel

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Litigation, Civil Contempt in Family Court

The Alabama Court of Civil Appeals has extended to the civil contempt context the Alabama Supreme Court’s reasoning regarding the existence of a right to counsel in criminal contempt cases pursuant to substantial due process.  In State ex rel. Payne v. Empire Life Insurance Co., the Alabama Supreme Court found a right to counsel in criminal contempt cases, most likely under the federal constitution (since the court relied on federal cases), saying:


A proceeding in contempt for noncompliance with a lawful court decree is sui generis and not a ‘criminal prosecution’ as that term is commonly understood.  Because the sanctions employed by the court, pursuant to a criminal contempt adjudication, partake so heavily of a criminal nature (i.e., the actual or potential restraint of the body), however, it is essential in all but a narrow category of cases that constitutional principles be applied to this process to assure substantial due process is afforded the accused.


351 So. 2d 538, 542 (Ala. 1977) (internal citations omitted).  The court went on to hold that the “substantial due process” included the assistance of counsel “if requested.”  Id. at 543. 

Later, in Wright v. Wright, the Court of Civil Appeals applied Payne to civil contempt cases. 630 So. 2d 450, 452 (Ala. Civ. App. 1992) (husband in divorce failed to execute deed to ex-wife as required by court order: “We would note initially that, pursuant to [Payne], the accused in a [civil] contempt proceeding is entitled to assistance of counsel, ‘if requested’”; court later suggests proceeding is one for civil contempt by responding to request for attorney’s fees in the case by saying, “[O]ur supreme court has held that such fees are recoverable in civil contempt proceedings and may be awarded in the sound discretion of the trial court.”).  It is unclear what effect 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”) would have on Wright, as Wright relied entirely on Payne, which in turn was based on the Sixth Amendment.

Appointment of Counsel: categorical Qualified: yes