Right to counsel

A federal court and several Connecticut state courts have found a right to counsel for indigent defendants in civil contempt proceedings where the defendant may be incarcerated, at least where the proceeding is state-initiated.

In Lake v. Speziale, a federal district court held that where a defendant faces potential incarceration in a Connecticut civil contempt proceeding to enforce child support orders existing for the benefit of the state, the defendant must be notified of his or her right to counsel and, if the person is indigent, of their right to court appointed counsel. 580 F. Supp. 1318 (D. Conn. 1984).

Then, in Dube v. Lopes, the Fairfield Judicial District Superior Court extended this Fourteenth Amendment right to counsel to contempt proceedings initiated by a private individual. 481 A.2d 1293, 1294 (Conn. Super. Ct. 1984).  In Dube, two noncustodial parents filed writs of habeas corpus, claiming their imprisonment for failing to pay child support was unconstitutional because they were not advised of their right to appointed counsel.  Because the State initiated plaintiff Dube’s contempt proceedings, the court held his case was clearly controlled by Lake; however, the second plaintiff’s proceedings were initiated by his ex-wife.  But because incarceration could result from either proceeding, the court determined:

There is no logical reason why Lake should not apply to contempt proceedings initiated by a private person. The result is the same and that is incarceration for failure to comply with a court order of support. Surely, the requisite state action which is necessary to trigger the due process clauses is present when a person is deprived of his physical liberty by the court.

Dube, 481 A.2d at 1294.  Citing to Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981), the Dube court added, “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 initiated by a private person or the state.” Id.  

Furthermore, the court noted that contempt proceedings for failure to pay child support also include issues of whether the individual is currently capable of furnishing payment and whether the individual is deliberately indifferent to the order for payment. Id. at 1295.  Because the hearing requires several determinations, and because counsel helps the court make accurate findings, “counsel is indispensable.” Id.  The court expressly rested its holdings on both federal and state constitutional grounds, potentially insulating its effect from Turner v. Rogers, 564 U.S. 431 (2011).  Because the case focused on incarceration and the complexity of determining whether one can pay, this case would likely apply to all contempt orders for failure to pay a fine, fee, or other court ordered payment.  (For more on this subject, see Incarceration for Fees/Fines.)

Finally, in Emerick v. Emerick, an appellate court cited to various federal appellate cases in addition to Lake v. Speziale to hold that “[t]he due process clause of the fourteenth amendment to the United States constitution guarantees the right to appointed counsel to any indigent civil contemnor who might be incarcerated,” reasoning, “[t]his right to counsel is merely a logical extension of the right to counsel in criminal cases in which an accused is incarcerated.” 613 A.2d 1351, 1353 (Conn. App. Ct. 1992).  The Emerick court also held that “[t]he trial court has an obligation to inform the potential contemnor of his right to appointed counsel to ensure that any waiver of the right to counsel is intelligent and competent.” Id.  It reached this holding under both the Due Process Clause of the Fourteenth Amendment (citing Argersinger v. Hamlin, 407 U.S. 25 [1972] and Lassiter) and Conn. R. Super. Ct. Fam. § 25-63 (formerly, found at Section 484A of the Practice Book).  

Subsequent to these cases, the U.S. Supreme Court held in Turner v. Rogers, that there is no categorical Fourteenth Amendment right to counsel in civil contempt proceedings where the opponent is neither the state nor represented by counsel. 564 U.S. 431 (2011).  It did hold that an “unusually complex” case might require counsel and left for another day the question of whether cases involving the state or a represented party would require counsel.  The holdings of Lake, Dube, and Emerick relating to state-initiated proceedings is likely intact, as that was not addressed by Turner, but the portion of Dube finding a right to counsel even in privately-initiated contempt proceedings may no longer be good law, at least in cases where the private party is not represented by counsel.