Right to counsel

A number of Ohio cases have addressed the question of whether indigent civil contemnors have a constitutional right to counsel, and there is a district split on the matter. In In re Calhoun, 47 Ohio St. 2d 15, 16-17, 350 N.E.2d 665, 666-667 (Ohio 1976), a case preceding Lassiter, the Ohio Supreme Court held there was no right to counsel in contempt proceedings, and focused on the criminal/civil distinction as well as the fact that “the ‘adverse’ party, the mother of the children, was not represented by counsel.”  But in In re Contemnor Caron, 110 Ohio Misc. 2d 58, 744 N.E.2d 787 (C.P. 2000), a court of common pleas weighed whether Lassiter had implicitly overruled Calhoun. It noted that despite Lassiter‘s focus on incarceration as the key consideration (as opposed to the civil/criminal distinction relied upon in Calhoun), a number of Ohio state and federal appellate courts had continued to follow Calhoun.  The Caron court also noted that some Ohio appellate courts had found Lassiter implicitly overruled Calhoun and then found a right to counsel. The Caron court chose to find that Calhoun had been implicitly overruled by Lassiter and thus found a right to counsel. 

Other courts subsequent to Caron have also found a right to counsel. See, e.g., Schock v. Sheppard, 7 Ohio App. 3d 45, 453 N.E.2d 1292 (Ohio Ct. App. 6th Dist. 1982); In re Miami Cty. Grand Jury Directive to Creager, 82 Ohio App. 3d 269, 611 N.E.2d 881 (Ohio Ct. App. 2nd Dist. 1992); Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D. Ohio 1981); Young v. Whitworth, 522 F.Supp. 759 (S.D. Ohio 1981); and Sevier v. Turner, 742 F.2d 262 (6th Cir. 1984).

These decisions supporting a right to counsel in contempt proceedings are of dubious strength after 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 and matter is not “especially complex”), with respect to cases within Turner‘s purview, since they did not rely on the Ohio Constitution. However, one appellate court has suggested they might survive in part. In Crain v. Crain, Slip Copy, 2012 WL 6737836 (Ohio App. 2012) (unpublished), an Ohio appellate court was faced with a situation where a civil contemnor was denied counsel at trial because the trial judge relied on Turner to say, “I’m going to deny your request for counsel at this time. There’s a recent U.S. Supreme Court decision that came down on contempt citations regarding child support, and the decision of the justices is that obligors that are facing jail time in civil contempts are not entitled to court appointed counsel. So we’ll proceed today without Court appointed counsel.”  

On appeal, the 2nd District Court of Appeals correctly stated:

[W]hile Turner does not categorically require counsel to be appointed for persons facing criminal contempt convictions for nonpayment of child support, a reading of the opinion demonstrates that neither does it categorically require, as stated by the magistrate, the denial of appointed counsel. Instead, a court must determine whether there are procedural safeguards in place that adequately protect the obligor. There was no such determination in this case. The magistrate’s denial of counsel was, therefore, error.

The appellate court also noted that Turner only applies to situations where the government is not a party, whereas “In this case, an agency of the State, CSEA, brought the contempt action. The agency was represented by counsel. Thus, this action is in the nature of the government action that Turner declined to address, as opposed to the private-party action that was at issue in the Turner case. Again, this is an indication that the magistrate’s reliance upon Turner was misplaced.”  The appellate court also pointed out that entirely separate from Turner, an Ohio statute specifies that civil contemnors have a right to counsel and must apply for a public defender within 3 business days, and the trial judge in this case made no attempt to find out if the defendant had tried to secure the services of a public defender within the specified time period.

Finally, rather than conduct a “harmless error” test, the Crain court concluded, “A total deprivation of the right to counsel constitutes structural error”, and also that the error was “both plain and structural, and was therefore not waived by her failure to have objected to the magistrate’s decision. In fact, the need to preserve error at the magistrate’s hearing by objecting to the magistrate’s decision is something that a layperson would not be expected to know without the assistance of counsel.”  So the court reversed and held that “On remand, the trial court must either assign Protsman counsel, find that she had the financial ability to retain counsel, or find that she waived or forfeited her right to counsel.