Academic journal article
By Zorza, Richard
Judicature , Vol. 95, No. 6
The Implications for Access to Justice Strategies
A watershed for the right to counsel and self-representation?
On June 20, 2011, the United State Supreme Court decided Turner v. Rogers.1 Turner should be considered a landmark decision for die self-represented, and indeed for access to justice. In its first ever trip to the civil self-represented courtroom (beyond right to counsel issues), the Court laid out requirements of fairness and accuracy as basic due process parameters for the self-represented.
In Turner, an indigent parent had been incarcerated for civil contempt for failure to pay child support, and sought review based on lack of counsel at the contempt hearing. The Court found, on the facts of the case, which involved a private party seeking the incarceration, also without counsel, no categorical right to counsel. However, at the suggestion of the Solicitor General,2 raising possibilities not presented by the parties to the state court, the Supreme Court reversed for lack of sufficient due process procedural protections. As the Court put it:
"The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant "finding" section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner's incarceration violated the Due Process Clause."3
Thus Turner explicitly recognized the need for procedures such as judicial questioning and the availability of court forms to meet constitutional requirements.
"[TJthere is available a set of 'substitute procedural safeguards,' Mathews v. Eldridge], 424 U. S. [319 [1976}], at 335, which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1) notice to the defendant that his "ability to pay" is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay."4
The principles the Court adopted have potential implications significantly beyond the specifics of civil contempt and the solutions of judicial questioning and forms. Turner indicates the structure of analysis to be used to determine what access procedures for the self-represented are required and when even those procedures alone might not be sufficient, and where therefore counsel would be required.5 While the specific decision deals with a threat to liberty, and while the interest in liberty is given the highest constitutional protection, there is nothing in the analysis to suggest that cases involving other constitutional interests are unworthy of appropriate due process protections, although what is appropriate will of course depend on the circumstances.6
The Court, in analyzing the ways that due process standards might be met, including through judicial questioning and court forms, effectively endorsed (although without citation) the work of state courts throughout the United States in the last fifteen years to develop low cost, effective and public trust and confidence building procedures that ensure access to justice.7 It is doubly significant that this entire approach was at the suggestion of the United States Solicitor General, representing the interests of the United States in the case. …