Right to counsel

Key_development Question_mark

Litigation, Civil Contempt in Family Court

In Thomerson v. Thomerson, 387 N.W.2d 509 (S.D. 1986) (contempt for failure to pay alimony), abrogated on other grounds, Sazama v. State ex rel. Muilenberg, 729 N.W.2d 335 (S.D. 2007), the high court held that "[s]ince the punishment for civil contempt could be imprisonment, the accused is entitled to be represented by counsel as a matter of right." Given that the court relied on U.S. Supreme Court rulings (in particular, a criminal contempt case) and ALRs, the ruling was likely based on the federal constitution. Thomerson was later confirmed in Wold Family Farms, Inc. v. Heartland Organic Foods, Inc., 661 N.W.2d 719 (S.D. 2003), abrogated in part on other grounds, Sazama v. State ex rel. Muilenberg, 729 N.W.2d 335 (S.D. 2007). ("In the case of indirect contempt, civil or criminal, unless the trial judge predetermines the nature of the infraction is of insufficient gravity to warrant the imposition of imprisonment if the accused is found guilty, the unrepresented accused must be advised of his or her right to counsel ...If the accused is determined to be indigent, counsel must be appointed before any critical stage of the contempt proceeding").


These holdings are questionable after Turner v. Rogers, 131 S.Ct. 2507 (2011) (Sixth Amendment does not apply to civil contempt proceedings, and Fourteenth Amendment does not require categorical right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter not "especially complex"), with respect to cases within Turner's bailiwick.

Appointment of Counsel: categorical Qualified: yes