MD court: Threat of incarceration makes right to counsel attach

In an unpublished decision, a Maryland appellate court held that statutory law entitles civil contempt defendants to counsel when they are threatened with incarceration. In Chapman v. Black, the defendant faced civil contempt for failure to pay child support. No. 282, 2020 WL 5202097 (Md. Ct. Spec. App. Sept. 1, 2020) (unpublished). The notice of the hearing informed him that he could go to jail if he lost and that he had the right to counsel. The hearing was set before a magistrate, who lacked the power to incarcerate people, but on the day of the hearing, the case was reassigned to a judge. 2020 WL 5202097 at *2.

The defendant argued he therefore had a right to representation by the public defender and asked for a continuance of the whole proceeding so that he could be appointed counsel. Id. The Office of Child Support Enforcement (“The Office”) opposed the appointment and argued for the judge to only determine how much the defendant could pay and then order him to pay that amount before the next hearing, at which the defendant could have a PD. Id. The court decided to take this approach, and the defendant said he understood it (but never said he agreed to it). Id. at *2-3. The Office argued that the defendant was able to pay $300 per month, and the court found him in contempt, found his arrears to be $5,595, and set a purge amount of $251 purge amount. Id. at *3.

Though the court did not incarcerate the defendant, he appealed, arguing that under the Public Defender Act he was entitled to counsel, because the hearing notice told him he was at risk of jail and the substitution of a judge for the magistrate made that threat real. The Office responded that their petition did not mention incarceration and that incarceration did not come up at the hearing. The defendant responded that “the Office may not rely upon the fact that incarceration was not imposed at the end of the hearing as a post hoc rationalization for why he was not entitled to representation during the hearing.” Id. at *4.

Id. at *5. The court reasoned, “In a civil contempt proceeding, a defendant’s right to counsel is protected by both the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights and is triggered when a defendant in a civil contempt proceeding faces a possibility of actual incarceration.” Rutherford v. Rutherford, 464 A.2d 228 (Md. 1983). The court explained that although the State did not say in its petition that it was seeking incarceration, it also did not say it was not seeking incarceration. Id. at *4. Moreover, the Court of Special Appeals held that “Once Mr. Chapman’s right to counsel was triggered by being brought before the circuit court on the contempt petition that was filed in this case, the judge could not satisfy his right to counsel by simply limiting herself to narrow findings and not discussing incarceration as a potential sanction.” Id. at *6.

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Note: This case is included here for illustrative purposes only. Please check local court rules before citing to any case as precedent. Md. Rule, R. 1-104 states, “An unreported opinion of the Supreme Court or the Appellate Court is not precedent within the rule of stare decisis.”