Right to counsel

In State v. Creamer, 528 So. 2d 667, 668-69 (La. Ct. App. 1988), the Second Circuit found a right to counsel in a case involving a civil petition for child support “because the judgment rendered against the defendant wherein he was uncounseled was used as a basis to punish him for contempt.”  The court relied on precedent from the Louisiana Supreme Court relating to criminal neglect where the court held that the right to counsel attaches in some predicate proceedings even where jail is not immediate possibility. The defendant was appointed counsel for the actual contempt proceeding (the authority for which is not provided), but not for the initial determination of child support. See Id. at 669.

However, in State v. King, the Third Circuit disagreed with Creamer and held that “The fact that some of the provisions of [the civil child support statute] and [the criminal neglect statute] accomplish the same goal of providing needed support to children by the responsible party does not overcome the distinction of a civil versus a criminal proceeding.” 707 So.2d 1374, 1376 (La. Ct. App. 1998); see also Hebert v. Hebert, No. 09-558, 2010 WL 933808 (La. Ct. App. Mar. 17, 2010) (unpublished) (same result from Third Circuit for civil contempt).

See also State v. Walker, 386 So. 2d 908, 909 (La. 1980). It is unclear exactly what the case was about, as one dissent describes it as “a criminal prosecution for the violation of a criminal statute,” id. (Dixon, J., dissenting), while another dissent tabbed it as a “civil contempt proceeding.” Id. (Dennis, J., dissenting). The majority opinion simply stated in a single sentence that there was “no merit in the assigned errors” (which themselves were not explained), id., but one dissent stated that “[t]he majority finds that he is entitled to no relief from his imprisonment without counsel because it interprets Argersinger v. Hamlin . . . as requiring a person to have an attorney only when his liberty is deprived in a criminal proceeding.” Id. (Dennis, J., dissenting). The dissent urged the court to look beyond the civil/criminal distinction and find a right to counsel. See id. Neither Creamer nor King mentioned the Walker case.

The U.S. Supreme Court’s ruling in Turner v. Rogers, 131 S.Ct. 2507 (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter is not “especially complex”) may not have much of an impact on the Creamer ruling, given that Louisiana contempt proceedings are seemingly either criminal in nature or initiated by the state.[1]

[1] A Louisiana statute provides for fines of not more than $500 and/or imprisonment of not more than six months for criminal neglect of family under the “Deadbeat Parents Punishment Act of Louisiana.” La. Rev. Stat. Ann. § 14:75. Because this is a criminal charge, the state supreme court held in State v. Broussard (1986) that defendants must be “Boykinized” (have their rights explained to them as required by Boykin v. Alabama, 395 U.S. 238 [1969]) and appointed counsel if indigent. Additionally, claims for child support can also be brought under La. Rev. Stat. Ann. § 46:236.6, which allows the defendant to purge the contempt, but there is no provision for appointed counsel. However, it appears that the Department of Child and Family Services initiates all such contempt orders, La. Rev. Stat. Ann. § 46:236.6(A), so the contemnor must face the government’s “experienced and learned counsel,” in the words of the Turner court.