Right to counsel

In Black v. Div. of Child Support Enforcement, the court held that “an indigent obligor who faces the possibility of incarceration in a State initiated civil contempt proceeding does have a due process right to court appointed counsel,” but then immediately held that “the right of a defendant to have counsel appointed should be determined on an individual case basis in accordance with the presumption announced in Lassiter . . . . [W]e adopt the Lassiter presumption but conclude that there is no basis for enlarging this prescription under Delaware constitutional standards into a fixed rule of entitlement to counsel.” 686 A.2d 164, 168 (Del. 1996).  However, it appears the court was explaining it did not intend to provide a right to counsel where physical liberty is not threatened, since it stated that a trial judge must first determine whether a defendant faces a possibility of incarceration; if the defendant does, then “the presumption attaches and due process requires counsel be appointed for the indigent obligor.”  Id.  The court then added:

If after weighing these factors a court determines that, as a matter of due process and fundamental fairness, the defendant should be represented, then counsel should be appointed even if a loss of physical liberty is not threatened. In balancing the Mathews factors [Mathews v. Eldridge, 424 U.S. 319 (1976)] against the Lassiter presumption, a court should be sensitive to protecting the due process rights of the indigent defendant. Should one side of the analysis not clearly outweigh the other, the court should err on the side of appointing counsel in order to further the due process right to fundamental fairness in judicial proceedings.

Id. at 169.  The court in Black also found that the public defender could not be appointed to represented contemnors in civil contempt cases, as the statute governing the PD’s office, Del. Code Ann. tit. 29, § 4602, only applied to criminal cases. 686 A.2d at 169-70.  The court added that defendants were not entitled to appointed counsel in the hearing before the Family Court Master, as that court’s finding of contempt would only “red tag” the case for a full hearing before a judge.  Black, 686 A.2d at 169.

It does not appear that 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”), would have a negative effect on Black, as Black confined its ruling to state-initiated contempt proceedings, a situation explicitly excluded from the Turner ruling.  In fact, in a brief unpublished decision, the Delaware Supreme Court may have implied that Black is still good law despite the U.S. Supreme Court’s decision in Turner v. Rogers. See Hill v. Div. of Child Support Servs., No. 430, 2023, 2024 WL 3311448 (Del. July 3, 2024). In Hill, the court disagreed with appellant that Black was applicable, reasoning only that the facts at bar were distinguishable from Black (in that the child support case brought against Hill was initiated by a private party and not by the state).  The Hill court made no mention of Turner in finding Black inapposite.