Right to counsel

In Sanders v. Shephard, 541 N.E.2d 1150 (Ill. App. Ct. 1989), a defendant was imprisoned for indirect civil contempt for failure to produce a child at court when ordered, and the court relied on Walker v. McClain, 768 F.2d 1181 (10th Cir. 1985) and Lassiter v. Dep't of Social Services, 101 S.Ct. 2153 (1981) to find a right to counsel (presumably under the Fourteenth Amendment, based on its reliance on federal cases). Quoting Lassiter, the court reiterated that"'[i]t is the defendant's interest in personal freedom, and not simply the special sixth and fourteenth amendment right to counsel in criminal cases, which triggers the right to appointed counsel.'" Sanders, 541 N.E.2d at 1156.  The court, citing to a string of cases, went on to state that nearly every court dealing with the issue of counsel in an indirect civil contempt case had rejected a distinction between civil and criminal proceedings if there is a threat of incarceration.  Concluding that the defendant in the case before them was entitled to counsel, the court went on to affirm that when the person is indigent, counsel should be appointed.

On appeal, the Illinois Supreme Court stated that "[t]he prior appeal resolved, correctly, the respondent's contentions regarding the . . . limited availability of appointed counsel." Sanders, 645 N.E.2d 900, 906 (Ill. 1994). It is not clear what the phrase "limited availability" means, and it is also noteworthy that the court made no reference to a different Illinois appellate court that had reached a different conclusion as to the right to appointed counsel. 

Given that Sanders relied entirely on the risk to personal liberty and read Lassiter as essentially creating a favorable presumption in favor of counsel, it is unclear what effect the U.S. Supreme Court's decision in Turner v. Rogers will have on this case. See 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”).  Additionally, in In re Marriage of Betts, the court of appeals (Fourth District) took note that the primary difference between the criminal and civil designations was not based on the ramifications each defendant faced, but rather centralized on the “purpose for which contempt sanctions are imposed.” 558 N.E.2d 404, 415 (Ill. App. Ct. 1990).  With civil contempt, “the contemnor must have an opportunity to purge himself of contempt by complying with the pertinent court order,” if the possible outcome is incarceration, the person should hold the “‘keys to his cell.’” Id. at 416 (citing In reMarriage of Logston, 469 N.E.2d 177 [Ill. 1984]).  However, with criminal contempt, the objective is punishment for past wrongdoing, and a current change in behavior cannot remove the sanction. In re Marriage of Betts, 558 N.E.2d at 416-418.  In splitting with its sister Appellate District’s decision in Sanders, the Betts court concluded that Sanders misinterpreted Lassiter and went on to hold:

Imprisonment for civil contempt is unique in that the contemnor may secure his immediate release from incarceration by either complying with the court order which he has refused to obey or demonstrating that he is unable to comply with that order. Neither compliance nor establishing the impossibility of compliance is such a difficult task that the assistance of counsel is necessary. 

Also, unlike criminal contempt proceedings, civil contempt proceedings often do not pit a respondent against a prosecutor backed by the entire resources of the State. 

Id. at 424.  In holding that indirect civil contemnors facing possible incarceration are not entitled to court appointed counsel, the court suggested that “courts should, of course, afford respondents every reasonable opportunity to establish that compliance with the court orders which they are accused of violating is impossible and to request vacatur of the contempt sanctions imposed upon them on that basis.” Id. at 57; see also Redman v. Greiff, Nos. 1-12-1119, 1-12-1612, 2013 WL 2457281 (Ill. App. Ct. June 4, 2013) (agreeing with Betts).