MD high court reaffirms right to counsel in civil contempt cases

Maryland’s high court extended the right to counsel to certain civil contempt cases in Rutherford v. Rutherford, 464 A.2d 228 (Md. 1983). In that case, the court found an indigent defendant in a civil contempt proceeding could not be sentenced to actual incarceration unless he had first been afforded a right to counsel under the Fourteenth Amendment of the U.S. Constitution and Article 24 of the Maryland Declaration of Rights. Rutherford, 464 A.2d at 237. The court commented, “As repeatedly pointed out in criminal and civil cases, it is the fact of incarceration, and not the label placed upon the proceeding, which requires the appointment of counsel for indigents.” Id. at 235.

Although the Rutherford decision was issued prior to the U.S. Supreme Court’s decision in Turner v. Rogers, 131 S. Ct. 2507 (2011) (declining to find a categorical right to counsel for an indigent defendant facing potential incarceration in a civil contempt proceeding under the federal Due Process Clause, at least where the plaintiff was neither the State nor represented by counsel), at least one post-Turner decision from Maryland’s highest court relied on Rutherford, which suggests that it is still good law under the state constitution. Accord DeWolfe v. Richmond, 76 A.3d 1019 (Md. 2013).

In DeWolfe v. Richmond, the Court of Appeals of Maryland addressed the right to counsel in bail proceedings. As part of its opinion it stated, “we have reaffirmed that the right attaches in any proceeding that may result in the defendant’s incarceration”, and cited to Rutherford v. Rutherford, 464 A.2d 228 (Md. 1983). DeWolfe v. Richmond, 76 A.3d 1019, 1029 (Md. 2013).

Finally, in Bertram v. Yuthsakdidecho, the Court of Special Appeals distinguished Rutherford, finding that the appellant had no right to counsel at the civil contempt proceeding below, because “incarceration [was] not on the table”, as the other party did not request incarceration in order to coerce appellant’s compliance. No. 1819, 2020 WL 7690298 at *5 (Md. Ct. Spec. App. Dec. 28, 2020) (unpublished).