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Appellate Procedure, Mootness Doctrine: Repetition-Review Doctrine; Right to Counsel, Civil Proceeding: Doesn’t Automatically Attach, Even Where Incarcerative Consequence

Michael D. Turner v. Rogers, USSC No. 10-10, 6/20/11

Appellate Procedure – Mootness Doctrine

Turner’s appeal – he challenges denial of appointed counsel in a civil contempt proceeding but has fully served the resultant 12-month sentence –  isn’t moot:

The short, conclusive answer to respondents’ mootness claim, however, is that this case is not moot because it falls within a special category of disputes that are “capable of repetition” while “evading review.” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). A dispute falls into that category, and a case based on that dispute remains live, if “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per curiam).

Our precedent makes clear that the “challenged action,” Turner’s imprisonment for up to 12 months, is “in its duration too short to be fully litigated” through the state courts (and arrive here) prior to its “expiration.” See, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 , 774 (1978) (internal quotation marks omitted) (18-month period too short); Southern Pacific Terminal Co., supra, at 514–516 (2-year period too short). At the same time, there is a more than “reasonable” likelihood that Turner will again be “subjected to the same action.” As we have pointed out, supra, at 2–3, Turner has frequently failed to make his child support payments. He has been the subject of several civil contempt proceedings. He has been imprisoned on several of those occasions. Within months of his release from the imprisonment here at issue he was again the subject of civil contempt proceedings. And he was again imprisoned, this time for six months. As of December 9, 2010, Turner was $13,814.72 in arrears, and another contempt hearing was scheduled for May 4, 2011. App. 104a; Reply Brief for Petitioner 3, n. 1. These facts bring this case squarely within the special category of cases that are not moot because the underlying dispute is “capable of repetition, yet evading review.” See, e.g., Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546–547 (1976) (internal quotation marks omitted).

Without making too fine a point of it, for federal purposes, mootness is an aspect of standing to litigate a claim. E.g., Arizonans for Official English et al. v. Arizona et al., 520 U.S. 43, 68 n. 22 (1997) (“Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).”) And, because mootness implicates the Article III “case or controversy” requirement, the doctrine is probably applied more strictly by federal than Wisconsin courts, whose jurisdiction isn’t similarly restricted. That may also explain why Wisconsin analysis asks whether a mootness “exception” applies, whereas the Court here denies that the appeal is moot: a case that’s moot simply doesn’t present a case or controversy, hence simply can’t support review. In any event, the “capable of repetition yet evading review” language is certainly consistent with Wisconsin mootness caselaw which, as suggested, seems to be a bit more generous in overlooking this potential impediment to review. For a general statement of the test, see State v. Leitner, 2002 WI 77, ¶14, 253 Wis. 2d 449, 646 N.W.2d 341.

Right to Counsel – Civil Proceeding, Due Process

Because the sixth amendment applies only to criminal cases, an indigent defendant’s right to appointed counsel in a civil contempt proceeding must be found, if at all, in the due process clause. After weighing the competing considerations, the Court concludes that such a right doesn’t automatically attach, even where incarceration is a potential outcome, if certain alternative safeguards are otherwise in place.

We here consider an indigent’s right to paid counsel at such a contempt proceeding. It is a civil proceeding. And we consequently determine the “specific dictates of due process” by examining the “distinct factors” that this Court has previously found useful in deciding what specific safeguards the Constitution’s Due Process Clause requires in order to make a civil proceeding fundamentally fair. Mathews v. Eldridge, 424 U. S. 319, 335 (1976) (considering fairness of an administrative proceeding). As relevant here those factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].” Ibid. See also Lassiter , 452 U. S., at 27–31 (applying the Mathews framework).

While recognizing the strength of Turner’s arguments, we ultimately believe that the three considerations we have just discussed must carry the day. In our view, a categorical right to counsel in proceedings of the kind before us would carry with it disadvantages (in the form of unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority over the alternatives that we have mentioned. We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).

We do not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody. See supra , at 10. Those proceedings more closely resemble debt-collection proceedings. The government is likely to have counsel or some other competent representative. Cf. Johnson v. Zerbst, 304 U. S. 458, 462–463 (1938) (“[T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel ” (emphasis added)). And this kind of proceeding is not before us. Neither do we address what due process requires in an unusually complex case where a defendant “can fairly be represented only by a trained advocate.” Gagnon, 411 U. S., at 788; see also Reply Brief for Petitioner 18–20 (not claiming that Turner’s case is especially complex).

As for Turner himself (remember: he’s already served out his time), failure to provide counsel did violate his right to due process, given the circumstances: he didn’t receive clear notice of the significance of ability to pay; the State made no effort to elicit such information from him; the trial court made no finding about his ability to pay. In other words, failure to provide either counsel or “alternative procedural safeguards” worked a violation. And it may well be that where the State is the real party in interest – a question the Court explicitly reserves – nothing short of counsel will do. That question is long-resolved in Wisconsin, Ferris v. State ex rel. Maass, 75 Wis.2d 542, 249 N.W.2d 789 (1977) (“However, where the state in the exercise of its police power brings its power to bear on an individual through the use of civil contempt as here and liberty is threatened, we hold that such a person is entitled to counsel.”). This right is codified by § 977.05(6)(b) (SPD appointment for support contempt where action is brought by state and incarceration is sought). At the same time, the SPD lacks authority (because none is provided by ch. 977) to appoint in instances such as Turner’s, because appointment authority is limited to state-involved contempts. If the contempt matter is brought by a private party, then appointment will have to be undertaken by some other agency or under exercise of the court’s inherent appointment authority, e.g., State v. Dean, 163 Wis.2d 503, 512-13, 471 N.W.2d 310 (Ct. App. 1991).

Laura Abel is simultaneously hopeful and skeptical: the outcome “will help the courts operate more accurately and efficiently. … But without close scrutiny by the courts and the bar, this could all be a farce.” She calls for adequate funding for civil legal aid agencies, and close monitoring by bar associations and law schools. Much more discussion will undoubtedly ensue, including a Concurring Opinions Symposium.

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