Right to counsel

Ala. Code § 15-12-20 states:

In … civil and criminal nonsupport cases which may result in the jailing of the defendant . . . when a defendant is entitled to counsel as provided by law, the trial judge shall before arraignment ascertain from the accused, or otherwise: (1) Whether or not the defendant has arranged to be represented by counsel; (2) Whether or not the defendant desires the assistance of counsel; and (3) Whether or not the defendant is able financially or otherwise to obtain the assistance of counsel.

Although the statute appears to condition the right to counsel in civil nonsupport contempt on situations “when a defendant is entitled to counsel as provided by law,” at least one court has interpreted the statute to state that there is a right to counsel in such proceedings.  In Leftwich v. Vansandt, the court said in dicta that this statute establishes a right to counsel in civil contempt cases. 995 So.2d 172, 174 (Ala. Civ. App. 2008) (“[T]here are certain Alabama statutes that provide for appointed counsel in certain civil proceedings, e.g., ‘civil … nonsupport cases which may result in the jailing of the defendant,’ Ala. Code 1975, § 15-12-20 . . . .”).

The Alabama Court of Civil Appeals has discussed the question of whether the courts have an affirmative duty to notify defendants of their right to appointed counsel where the statute does not specify such a duty, such as under § 15-12-20.  In Watts v. Watts, 706 So. 2d 749, 752 (Ala. Civ. App. 1997), despite stating that it would not consider the appellant’s argument (presented for the first time on appeal) that his due process rights were violated based on the trial court’s failure to ascertain that he knew he was entitled to counsel, the court held that his rights were not violated by the omission.  The court reasoned that this particular defendant appeared familiar enough with legal procedure such that his invocation of due process on appeal was an “attempt[] to abuse that process.” Id.  Nevertheless, this case was accompanied by a vigorous dissent.  See id. (Crawley, J., dissenting) (“I think the trial court had an affirmative duty to advise Winford of his right to counsel.  Section 15-12-20 clearly places on the trial court, in the first instance, the responsibility to determine whether counsel should be appointed.”); see also Ex Parte Parcus, 615 So. 2d 78, 82 (Ala. 1993) (Maddox, J., dissenting) (in case involving parent held in criminal contempt for failure to pay support, judge observes that “[t]he right to the assistance of counsel is such a fundamental component of due process that trial courts cannot be allowed to assume that the accused has some vague knowledge of that right and has chosen to waive it.”).