Right to counsel

Key_development Question_mark

Litigation, Civil Contempt in Family Court

An intermediate court found a federal due process right to counsel for indigent respondents in child support civil contempt proceedings, which includes the right to be informed of the same. See e.g.In re Marriage of Stariha, 509 N.E.2d 1117 (Ind. Ct. App. 1987).


In In re Marriage of Stariha, the court found a Fourteenth Amendment right to counsel in cases involving contempt for failure to pay child support, due to the risk of incarceration, regardless of whether the movant is the state or a private party. 509 N.E.2d 1117 (Ind. Ct. App. 1987) (affm'd in Marks v. Tolliver, 839 N.E.2d 703, 706 [Ind. Ct. App. 2005]).  In other words, it found sufficient state action at play, despite the contempt having been filed by an individual:


It is difficult to imagine how the present case does not involve state action. Admittedly, Rebecca initiated this action as a private individual. However, the trial court found John in contempt for failure to pay child support pursuant to Rebecca's motion and sentenced him to thirty days. Certainly, John's incarceration, depriving him of his physical liberty for thirty days, amounted to state action. The court enforced a contempt proceeding that was initiated privately ... Here, there is a definite nexus between Rebecca's complaint for failure to pay child support and the trial court's finding of contempt and incarceration of John for the same activity.


Stariha, 509 N.E.2d at 1122.  Quoting a case from the Connecticut Supreme Court, the Stariha court found a due process right to appointed counsel and the right to be informed of the same. Id. (quoting Dube v. Lopes, 481 A.2d 1293 (Ct. 1984) ("It is crystal clear that a person may not be incarcerated by the state without first being advised of his constitutional right to counsel, and, if indigent, without having counsel appointed to represent him, whether the contempt proceedings are initiatied by a private person or the state."); see also Branum v. State, 822 N.E.2d 1102 (Ind. Ct. App. 2005) (reversing contempt finding where court failed to advise father of his right to counsel).

Though Stariha pre-dates Turner v. Rogers, 564 U.S. 431 (2011) (finding no right to appointed counsel under Fourteenth Amendment in civil contempt cases, at least where private party initiates contempt), Stariha has been relied upon post-Turner.  In a 2014 decision, Moore v. Moore, the Court of Appeals of Indiana, without mentioning Turner at all, relied on Stariha for the right to appointed counsel for child support contempt and Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. Ct. App. 2005) for the proposition that the right attaches even where a private person initiates the contempt. Moore11 N.E.3d 980 (Ind. Ct. App. 2014).  

In addition, in Branum v. State, the Court of Appeals of Indiana relied on Webb v. Baird, 6 Ind. 13, 15, 6 Ind. 11 (1854) in addition to Stariha in support of the right to counsel in privately initiated civil contempt cases, which could be seen as an attempt to ground the right to counsel in the state constitution as opposed to the Fourteenth Amendment:

Indiana has long recognized a person's right to have counsel appointed under such circumstances.  As Chief Justice Shepard has observed, “more than a century before Gideon v. Wainwright was decided,” in Webb v. Baird, 6 Ind. 13, 15, 6 Ind. 11 (1854), our supreme court recognized an indigent defendant's right to an attorney at public expense. See Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 IND. L. REV. 575, 578 (1989). In Webb, the court stated:


It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be debarred of counsel because he was too poor to employ such aid. No Court could be respected, or respect itself, to sit and hear such a trial. The defence of the poor, in such cases, is a duty resting somewhere, which will be at once conceded as essential to the accused, to the Court, and to the public.

Branum v. State, 822 N.E.2d 1102, 1104 (Ind. Ct. App. 2005).  However, the quote from Webb was made in the context of a criminal proceeding.

Appointment of Counsel: categorical Qualified: yes