Right to counsel

In County of Santa Clara v. Superior Court, 5 Cal. Rptr. 2d 7 (Ct. App. 1992), a court of appeals relied upon decisions from a number of other jurisdictions to hold that indigent civil contemnors have a right to appointed counsel.  The court cited to Lassiter and relied upon the threat to physical liberty, rejecting the state’s argument that some cases would not be complex enough to warrant counsel by commenting that “the U.S. Supreme Court made clear that complexity, as a determinant of what due process requires, will come into play only in a situation in which there is no risk the citee will lose his or her personal freedom.”

The Santa Clara decision must be qualified in several ways. First, the court concluded that in the case before it,

we need not grapple with distinctions between ‘criminal’ and ‘civil’ contempt or between federal and state grounds for the conclusions we reach … Patently the proceedings here were initiated and conducted under the punitive provisions of Code Civ.Proc., § 1218, rather than under the remedial provisions of id., § 1219. There is no showing that Legaspi was ever formally given an opportunity to avoid imprisonment by voluntarily purging the contempt. Thus even under ‘the most conservative analysis, that provided under the federal Constitution,’ this was a criminal contempt subject to federal due-process guarantees.

Because of this, anything in Santa Clara reaching the question of civil contempt is arguably dicta. Additionally, the U.S. Supreme Court’s holding in Turner v. Rogers, 131 S.Ct. 2507 (2011) (Fourteenth Amendment does not require categorical right to counsel in civil contempt, at least where opponent is neither the state nor represented) would likely have a significant impact on Santa Clara, due to the Santa Clara court’s heavy reliance on its mistaken interpretation of Lassiter (believing Lassiter required counsel whenever physical liberty is at stake) and its citation only to Fourteenth Amendment cases. It is likely that Santa Clara would no longer be good law with respect to any cases within the reach of Turner (opposing side neither the state nor represented, matter not especially complex, etc.)

Finally, the Santa Clara court commented that its prior rulings held both that courts cannot require the state to pay appointed counsel fees absent statutory authority and also that attorneys cannot be required to work without pay, and thus any perceived right may “be an empty one”, in the words of the court.