Colorado appellate court recognizes right to counsel in contempt cases post-Turner

In In re A.C.B., 507 P.3d 1078 (Colo. App. 2022), the Colorado Court of Appeals held that indigent defendant parents in child support contempt proceedings initiated by the government have a due process right to appointed counsel if indigent.  In the case, the respondent parent was given a suspended sentence of 30 days in jail.

The A.C.B. court began by noting that some of its caselaw that had been supportive of such a right to counsel prior to the U.S. Supreme Court’s decision in Turner v. Rogers (which found no federal due process right to counsel in civil contempt cases initiated by a private party). Id. at 1085 (citing e.g., Padilla v. Padilla, 645 P.2d 1327, 1328 [Colo. Ct. App. 1982] [relying entirely on the threat to physical liberty in finding a due process right to counsel for indigent litigants in civil contempt proceedings, but not clarifying whether it was interpreting the state or federal constitution]).  The court went on to apply the Mathews v. Eldridge balancing test and noted that the physical liberty interest weighed strongly in favor of counsel.  It observed that the State had been represented by counsel, creating an asymmetry of representation that had concerned the Turner court.  It then pointed out that 

The need for counsel is particularly acute in cases like this one, where an alleged contemnor’s present ability to pay is at issue, as answering that question incorrectly carries with it the very real risk that the alleged contemnor will be wrongfully imprisoned for an indefinite period with no viable means of performing the act necessary to secure his freedom.

The court added that the State only bears the proof of demonstrating that the defendant did not comply with the order, whereas the defendant has a heavier burden of defending the non-compliance, and the defendant in the instant case had known to put on no evidence other than his own uncorroborated testimony:

As the trial court put it, “Broyhill has chosen to litigate this case the way he has chosen to litigate which is to simply call in and say I’m disabled.”  A trained advocate would undoubtedly have assisted Broyhill by advising him on the applicable law, raising appropriate objections to CSS’s evidence, cross-examining CSS’s witnesses, introducing documentary and testimonial proof about his past and present inability to pay (e.g., employment, financial circumstances, health, disability), or uncovering, perhaps, another viable defense to the charge. Appointed counsel is also essential to guard against general constitutional infirmities or specific due process violations as described in Turner. See 564 U.S. at 447-48. So, from the preparation of his defense to the last fall of the gavel, Broyhill was clearly disadvantaged.

The court also pointed out that there were no procedural safeguards in place, such as “a form to facilitate the elicitation of relevant and complete financial information”, and the court’s questioning had been “conclusory.”  It found that appointing counsel would not unduly delay the proceedings, and in fact might have sped things up, because the present case had been continued several times to allow the defendant to try to secure pro bono counsel.  The court concluded by saying that the costs to the State “don’t weigh heavily when compared with the danger of unjustly depriving a person of her or his liberty.”  The court declined to address whether a trial court is required to advise defendants of their potential right to counsel since the defendant in the present case had made an express request.

Various groups, including the ACLU of Colorado, the Family Law section of the Colorado Bar Association, and the Colorado Chapter of the American Academy of Matrimonial Lawyers all filed briefs in support of the right to counsel.

The ruling was covered by Colorado Politics.