Right to counsel

Key_development Question_mark

Litigation, Civil Contempt in Family Court

Relying on the due process clauses of both the state and federal constitutions, the Alaska Supreme Court ruled that indigent persons facing with nonsupport civil contempt proceedings are entitled to court-appointed counsel. Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974).  The Court based its rationale on the fact that there is a right to a jury trial in contempt proceedings, Id. (citing Johansen v. State, 491 P.2d 759 [Alaska 1971]), and “[i]f there is no accompanying right to counsel, the right to trial by jury becomes meaningless.” Id. (quoting Argersinger v. Hamlin, 407 U.S. 25, 45–46 [1972] [Powell, J., concurring]).  In Otton, the defendant was involved in a civil contempt proceeding for nonpayment of child support. Id.  There is a very real threat of incarceration in these cases, which more closely relates to penal proceedings. Id.  According to the Court, “One facing a possible deprivation of liberty must be afforded all of the fundamental constitutional rights guaranteed by the federal and state constitutions.” Id.  The Court also concluded that there was sufficient state action in a contempt proceeding initiated by a private party.[1]


It is unclear what effect Turner v. Rogers would have on Otton131 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”).  The question might be whether Otton would be considered to have an independent state constitutional ground.  The Otton Court repeatedly referred to the state and federal constitution in the same breath (e.g., “We have consistently held that one facing a possible deprivation of liberty must be afforded all of the fundamental constitutional rights guaranteed by the federal and state constitutions.”), which makes it difficult to tell. 525 P.2d at 539.

[1]  In reaching this conclusion, the Otton Court stated: 

Chief Justice Traynor, when discussing state involvement in civil mesne process, a procedure also initiated by and for the benefit of a private party, said:


‘A state cannot deprive a person of his life, liberty, or property without affording him an opportunity to be heard by a tribunal empowered to decide the lawfulness of the deprivation. . . . Under the statutory scheme for mesne civil arrest the state deprives the defendant of his liberty through the process of its trial courts executed by its law enforcement officers. Although the statutory machinery is set in motion by a private plaintiff to satisfy a civil claim, the deprivation of the liberty is effected by the State.’ In re Harris, 69 Cal.2d 486, 72 Cal.Rptr. 340, 343, 446 P.2d 148, 151 (1968). (citations omitted)


In a contempt proceeding for nonsupport the deprivation of liberty is also effected by the state.  Although the proceeding is characterized by its purpose of providing a remedy for a private party, disobedience of a lawful court order is a contempt “of the authority of the court.” AS 09.50.010.  Appearance in a contempt proceeding is compulsory.  The court trustee plays a role in the initiation of the enforcement proceedings. AS 09.55.210(5); Civil Rule 67(b).  Imprisonment to coerce compliance is a remedy supplied by the state through both its judicial machinery and its penal institutions. AS 09.50.050.  This use of the state's judicial machinery demonstrates state action which brings into play the due process clause.

Otton, 525 P.2d at 538-39.


Appointment of Counsel: categorical Qualified: yes