Turner v. Rogers

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TURNER v. ROGERS ET AL.
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA
No. 10–10. Argued March 23, 2011—Decided June 20, 2011
After a South Carolina family court ordered petitioner Turner to pay
$51.73 per week to respondent Rogers to help support their child,
Turner repeatedly failed to pay the amount due and was held in con
tempt five times. For the first four, he was sentenced to 90 days’ im
prisonment, but he ultimately paid what he owed (twice without be
ing jailed, twice after spending a few days in custody). The fifth time
he did not pay but completed a 6-month sentence. After his release,
the family court clerk issued a new “show cause” order against
Turner because he was $5728.76 in arrears. Both he and Rogers
were unrepresented by counsel at his brief civil contempt hearing.
The judge found Turner in willful contempt and sentenced him to 12
months in prison without making any finding as to his ability to pay
or indicating on the contempt order form whether he was able to
make support payments. After Turner completed his sentence, the
South Carolina Supreme Court rejected his claim that the Federal
Constitution entitled him to counsel at his contempt hearing, declar
ing that civil contempt does not require all the constitutional safe
guards applicable in criminal contempt proceedings.
Held:
1. Even though Turner has completed his 12-month sentence, and
there are not alleged to be collateral consequences of the contempt
determination that might keep the dispute alive, this case is not
moot, because it is “capable of repetition” while “evading review,”
Southern Pac. Terminal Co. v. Interstate Commerce Comm’n, 219
U. S. 498, 515. A case remains live if “(1) the challenged action [is] in
its duration too short to be fully litigated prior to its cessation or ex
piration, 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. Here, the “challenged ac
2 TURNER v. ROGERS
Syllabus
tion,” 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.” First Nat’l Bank of Boston v. Bellotti,
435 U. S. 765, 774. And there is a more than “reasonable” likelihood
that Turner will again be “subjected to the same action” because he
has frequently failed to make his support payments, has been the
subject of several civil contempt proceedings, has been imprisoned
several times, and is, once again, the subject of civil contempt pro
ceedings for failure to pay. DeFunis v. Odegaard, 416 U. S. 312, and
St. Pierre v. United States, 319 U. S. 41, distinguished. Pp. 5–7.
2. The Fourteenth Amendment’s Due Process Clause does not auto
matically require the State to provide counsel at civil contempt pro
ceedings to an indigent noncustodial parent who is subject to a child
support order, even if that individual faces incarceration. In particu
lar, that Clause does not require that counsel be provided where the
opposing parent or other custodian is not represented by counsel and
the State provides alternative procedural safeguards equivalent to
adequate notice of the importance of the ability to pay, a fair oppor
tunity to present, and to dispute, relevant information, and express
court findings as to the supporting parent’s ability to comply with the
support order. Pp. 7–16.
(a) This Court’s precedents provide no definitive answer to the
question whether counsel must be provided. The Sixth Amendment
grants an indigent criminal defendant the right to counsel, see, e.g.,
United States v. Dixon, 509 U. S. 688, 696, but does not govern civil
cases. Civil and criminal contempt differ. A court may not impose
punishment “in a civil contempt proceeding when it is clearly estab
lished that the alleged contemnor is unable to comply with the terms
of the order.” Hicks v. Feiock, 485 U. S. 624, 638, n. 9. And once a
civil contemnor complies with the underlying order, he is purged of
the contempt and is free. Id., at 633. The Due Process Clause allows
a State to provide fewer procedural protections in civil contempt pro
ceedings than in a criminal case. Id., at 637–641. Cases directly con
cerning a right to counsel in civil cases have found a presumption of
such a right “only” in cases involving incarceration, but have not held
that a right to counsel exists in all such cases. See In re Gault, 387
U. S. 1; Vitek v. Jones, 445 U. S. 480; and Lassiter v. Department of
Social Servs. of Durham Cty., 452 U. S. 18. Pp. 7–10.
(b) Because a contempt proceeding to compel support payments
is civil, the question whether the “specific dictates of due process” re
quire appointed counsel is determined by examining the “distinct fac
tors” this Court has used to decide what specific safeguards are
needed to make a civil proceeding fundamentally fair. Mathews v.
Eldridge, 424 U. S. 319, 335. As relevant here those factors include
Cite as: 564 U. S. ____ (2011) 3
Syllabus
(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 pro
viding “additional or substitute procedural requirement[s].” Ibid.The “private interest that will be affected” argues strongly for the
right to counsel here. That interest consists of an indigent defen
dant’s loss of personal liberty through imprisonment. Freedom “from
bodily restraint” lies “at the core of the liberty protected by the Due
Process Clause.” Foucha v. Louisiana, 504 U. S. 71, 80. Thus, accu
rate decisionmaking as to the “ability to pay”—which marks a divid
ing line between civil and criminal contempt, Hicks, supra, at 635, n.
7—must be assured because an incorrect decision can result in a
wrongful incarceration. And because ability to comply divides civil
and criminal contempt proceedings, an erroneous determination
would also deprive a defendant of the procedural protections a crimi
nal proceeding would demand. Questions about ability to pay are
likely to arise frequently in child custody cases. On the other hand,
due process does not always require the provision of counsel in civil
proceedings where incarceration is threatened. See Gagnon v. Scar
pelli, 411 U. S. 778. To determine whether a right to counsel is re
quired here, opposing interests and the probable value of “additional
or substitute procedural safeguards” must be taken into account.
Mathews, supra, at 335.
Doing so reveals three related considerations that, taken together,
argue strongly against requiring counsel in every proceeding of the
present kind. First, the likely critical question in these cases is the
defendant’s ability to pay, which is often closely related to his indi
gence and relatively straightforward. Second, sometimes, as here,
the person opposing the defendant at the hearing is not the govern
ment represented by counsel but the custodial parent unrepresented
by counsel. A requirement that the State provide counsel to the non
custodial parent in these cases could create an asymmetry of repre
sentation that would “alter significantly the nature of the proceed
ing,” Gagnon, supra, at 787, creating a degree of formality or delay
that would unduly slow payment to those immediately in need and
make the proceedings less fair overall. Third, as the Federal Gov
ernment points out, an available set of “substitute procedural safe
guards,” Mathews, supra, at 335, if employed together, can signifi
cantly reduce the risk of an erroneous deprivation of liberty. These
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 equiva
lent) to elicit relevant financial information from him; (3) an oppor
tunity at the hearing for him to respond to statements and questions
4 TURNER v. ROGERS
Syllabus
about his financial status; and (4) an express finding by the court
that the defendant has the ability to pay.
This decision does not address civil contempt proceedings where
the underlying support payment is owed to the State, e.g., for reim
bursement of welfare funds paid to the custodial parent, or the ques
tion what due process requires in an unusually complex case where a
defendant “can fairly be represented only by a trained advocate,”
Gagnon, supra, at 788. Pp. 10–16.
3. Under the circumstances, Turner’s incarceration violated due
process because he received neither counsel nor the benefit of alter
native procedures like those the Court describes. He did not have
clear notice that his ability to pay would constitute the critical ques
tion in his civil contempt proceeding. No one provided him with a
form (or the equivalent) designed to elicit information about his fi
nancial circumstances. And the trial court did not find that he was
able to pay his arrearage, but nonetheless found him in civil con
tempt and ordered him incarcerated. P. 16.
387 S. C. 142, 691 S. E. 2d 470, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dis
senting opinion, in which SCALIA, J., joined, and in which ROBERTS,
C. J., and ALITO, JJ., joined as to Parts I–B and II.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–10
_________________
MICHAEL D. TURNER, PETITIONER v. REBECCA L.
ROGERS ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 20, 2011]
JUSTICE BREYER delivered the opinion of the Court.
South Carolina’s Family Court enforces its child support
orders by threatening with incarceration for civil contempt
those who are (1) subject to a child support order, (2) able
to comply with that order, but (3) fail to do so. We must
decide whether the Fourteenth Amendment’s Due Process
Clause requires the State to provide counsel (at a civil
contempt hearing) to an indigent person potentially faced
with such incarceration. We conclude that where as here
the custodial parent (entitled to receive the support) is
unrepresented by counsel, the State need not provide
counsel to the noncustodial parent (required to provide the
support). But we attach an important caveat, namely,
that the State must nonetheless have in place alternative
procedures that assure a fundamentally fair determina
tion of the critical incarceration-related question, whether
the supporting parent is able to comply with the support
order.
I
A
South Carolina family courts enforce their child support
2 TURNER v. ROGERS
Opinion of the Court
orders in part through civil contempt proceedings. Each
month the family court clerk reviews outstanding child
support orders, identifies those in which the supporting
parent has fallen more than five days behind, and sends
that parent an order to “show cause” why he should not be
held in contempt. S. C. Rule Family Ct. 24 (2011). The
“show cause” order and attached affidavit refer to the
relevant child support order, identify the amount of
the arrearage, and set a date for a court hearing. At the
hearing that parent may demonstrate that he is not in
contempt, say, by showing that he is not able to make the
required payments. See Moseley v. Mosier, 279 S. C. 348,
351, 306 S. E. 2d 624, 626 (1983) (“When the parent is
unable to make the required payments, he is not in con
tempt”). If he fails to make the required showing, the
court may hold him in civil contempt. And it may require
that he be imprisoned unless and until he purges himself
of contempt by making the required child support pay
ments (but not for more than one year regardless). See
S. C. Code Ann. §63–3–620 (Supp. 2010) (imprisonment
for up to one year of “adult who wilfully violates” a court
order); Price v. Turner, 387 S. C. 142, 145, 691 S. E. 2d
470, 472 (2010) (civil contempt order must permit purging
of contempt through compliance).
B
In June 2003 a South Carolina family court entered an
order, which (as amended) required petitioner, Michael
Turner, to pay $51.73 per week to respondent, Rebecca
Rogers, to help support their child. (Rogers’ father, Larry
Price, currently has custody of the child and is also a
respondent before this Court.) Over the next three years,
Turner repeatedly failed to pay the amount due and was
held in contempt on five occasions. The first four times he
was sentenced to 90 days’ imprisonment, but he ultimately
paid the amount due (twice without being jailed, twice
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
after spending two or three days in custody). The fifth
time he did not pay but completed a 6-month sentence.
After his release in 2006 Turner remained in arrears.
On March 27, 2006, the clerk issued a new “show cause”
order. And after an initial postponement due to Turner’s
failure to appear, Turner’s civil contempt hearing took
place on January 3, 2008. Turner and Rogers were pre
sent, each without representation by counsel.
The hearing was brief. The court clerk said that Turner
was $5,728.76 behind in his payments. The judge asked
Turner if there was “anything you want to say.” Turner
replied,
“Well, when I first got out, I got back on dope. I done
meth, smoked pot and everything else, and I paid a
little bit here and there. And, when I finally did get to
working, I broke my back, back in September. I filed
for disability and SSI. And, I didn’t get straightened
out off the dope until I broke my back and laid up for
two months. And, now I’m off the dope and every
thing. I just hope that you give me a chance. I don’t
know what else to say. I mean, I know I done wrong,
and I should have been paying and helping her, and
I’m sorry. I mean, dope had a hold to me.” App. to
Pet. for Cert. 17a.
The judge then said, “[o]kay,” and asked Rogers if she had
anything to say. Ibid. After a brief discussion of federal
benefits, the judge stated,
“If there’s nothing else, this will be the Order of
the Court. I find the Defendant in willful contempt.
I’m [going to] sentence him to twelve months in the
Oconee County Detention Center. He may purge him
self of the contempt and avoid the sentence by having
a zero balance on or before his release. I’ve also
placed a lien on any SSI or other benefits.” Id., at
18a.
4 TURNER v. ROGERS
Opinion of the Court
The judge added that Turner would not receive good-time
or work credits, but “[i]f you’ve got a job, I’ll make you
eligible for work release.” Ibid. When Turner asked why
he could not receive good-time or work credits, the judge
said, “[b]ecause that’s my ruling.” Ibid.The court made no express finding concerning Turner’s
ability to pay his arrearage (though Turner’s wife had
voluntarily submitted a copy of Turner’s application for
disability benefits, cf. post, at 7, n. 3 (THOMAS, J., dissent
ing); App. 135a–136a). Nor did the judge ask any followup
questions or otherwise address the ability-to-pay issue.
After the hearing, the judge filled out a prewritten form
titled “Order for Contempt of Court,” which included the
statement:
“Defendant (was) (was not) gainfully employed and/or
(had) (did not have) the ability to make these support
payments when due.” Id., at 60a, 61a.
But the judge left this statement as is without indicating
whether Turner was able to make support payments.
C
While serving his 12-month sentence, Turner, with the
help of pro bono counsel, appealed. He claimed that
the Federal Constitution entitled him to counsel at his con
tempt hearing. The South Carolina Supreme Court de
cided Turner’s appeal after he had completed his sentence.
And it rejected his “right to counsel” claim. The court
pointed out that civil contempt differs significantly from
criminal contempt. The former does not require all the
“constitutional safeguards” applicable in criminal proceed
ings. 387 S. C., at 145, 691 S. E. 2d, at 472. And the right
to government-paid counsel, the Supreme Court held, was
one of the “safeguards” not required. Ibid.Turner sought certiorari. In light of differences among
state courts (and some federal courts) on the applicability
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
of a “right to counsel” in civil contempt proceedings enforc
ing child support orders, we granted the writ. Compare,
e.g., Pasqua v. Council, 186 N. J. 127, 141–146, 892 A. 2d
663, 671–674 (2006); Black v. Division of Child Support
Enforcement, 686 A. 2d 164, 167–168 (Del. 1996); Mead v.
Batchlor, 435 Mich. 480, 488–505, 460 N. W. 2d 493, 496–
504 (1990); Ridgway v. Baker, 720 F. 2d 1409, 1413–1415
(CA5 1983) (all finding a federal constitutional right to
counsel for indigents facing imprisonment in a child sup
port civil contempt proceeding), with Rodriguez v. Eighth
Judicial Dist. Ct., County of Clark, 120 Nev. 798, 808–813,
102 P. 3d 41, 48–51 (2004) (no right to counsel in civil
contempt hearing for nonsupport, except in “rarest of
cases”); Andrews v. Walton, 428 So. 2d 663, 666 (Fla. 1983)
(“no circumstances in which a parent is entitled to court
appointed counsel in a civil contempt proceeding for fail
ure to pay child support”). Compare also In re Grand Jury
Proceedings, 468 F. 2d 1368, 1369 (CA9 1972) (per curiam)
(general right to counsel in civil contempt proceedings),
with Duval v. Duval, 114 N. H. 422, 425–427, 322 A. 2d 1,
3–4 (1974) (no general right, but counsel may be required
on case-by-case basis).
II
Respondents argue that this case is moot. See Massa
chusetts v. Mellon, 262 U. S. 447, 480 (1923) (Article III
judicial power extends only to actual “cases” and “contro
versies”); Alvarez v. Smith, 558 U. S. __, __ (2009) (slip op.,
at 4) (“An actual controversy must be extant at all stages
of review” (internal quotation marks omitted)). They point
out that Turner completed his 12-month prison sentence
in 2009. And they add that there are no “collateral conse
quences” of that particular contempt determination that
might keep the dispute alive. Compare Sibron v. New
York, 392 U. S. 40, 55–56 (1968) (release from prison does
not moot a criminal case because “collateral consequences”
6 TURNER v. ROGERS
Opinion of the Court
are presumed to continue), with Spencer v. Kemna, 523
U. S. 1, 14 (1998) (declining to extend the presumption to
parole revocation).
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 dura
tion 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 im
prisoned 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
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
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).
Moreover, the underlying facts make this case unlike
DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam),
and St. Pierre v. United States, 319 U. S. 41 (1943) (per
curiam), two cases that respondents believe require us to
find this case moot regardless. DeFunis was moot, but
that is because the plaintiff himself was unlikely to again
suffer the conduct of which he complained (and others
likely to suffer from that conduct could bring their own
lawsuits). Here petitioner himself is likely to suffer future
imprisonment.
St. Pierre was moot because the petitioner (a witness
held in contempt and sentenced to five months’ imprison
ment) had failed to “apply to this Court for a stay” of the
federal-court order imposing imprisonment. 319 U. S., at42–43. And, like the witness in St. Pierre, Turner did not
seek a stay of the contempt order requiring his imprison
ment. But this case, unlike St. Pierre, arises out of a
state-court proceeding. And respondents give us no reason
to believe that we would have (or that we could have)
granted a timely request for a stay had one been made.
Cf. 28 U. S. C. §1257 (granting this Court jurisdiction to
review final state-court judgments). In Sibron, we re
jected a similar “mootness” argument for just that reason.
392 U. S., at 53, n. 13. And we find this case similar in
this respect to Sibron, not to St. Pierre.
III
A
We must decide whether the Due Process Clause grants
an indigent defendant, such as Turner, a right to state
appointed counsel at a civil contempt proceeding, which
may lead to his incarceration. This Court’s precedents
8 TURNER v. ROGERS
Opinion of the Court
provide no definitive answer to that question. This Court
has long held that the Sixth Amendment grants an indi
gent defendant the right to state-appointed counsel in
a criminal case. Gideon v. Wainwright, 372 U. S. 335(1963). And we have held that this same rule applies to
criminal contempt proceedings (other than summary
proceedings). United States v. Dixon, 509 U. S. 688, 696
(1993); Cooke v. United States, 267 U. S. 517, 537 (1925).
But the Sixth Amendment does not govern civil cases.
Civil contempt differs from criminal contempt in that it
seeks only to “coerc[e] the defendant to do” what a court
had previously ordered him to do. Gompers v. Bucks Stove
& Range Co., 221 U. S. 418, 442 (1911). A court may not
impose punishment “in a civil contempt proceeding when
it is clearly established that the alleged contemnor is
unable to comply with the terms of the order.” Hicks v.
Feiock, 485 U. S. 624, 638, n. 9 (1988). And once a civil
contemnor complies with the underlying order, he is
purged of the contempt and is free. Id., at 633 (he
“carr[ies] the keys of [his] prison in [his] own pockets”
(internal quotation marks omitted)).
Consequently, the Court has made clear (in a case not
involving the right to counsel) that, where civil contempt
is at issue, the Fourteenth Amendment’s Due Process
Clause allows a State to provide fewer procedural protec
tions than in a criminal case. Id., at 637–641 (State may
place the burden of proving inability to pay on the defen
dant).
This Court has decided only a handful of cases that
more directly concern a right to counsel in civil matters.
And the application of those decisions to the present case
is not clear. On the one hand, the Court has held that the
Fourteenth Amendment requires the State to pay for
representation by counsel in a civil “juvenile delinquency”
proceeding (which could lead to incarceration). In re
Gault, 387 U. S. 1, 35–42 (1967). Moreover, in Vitek v.
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
Jones, 445 U. S. 480, 496–497 (1980), a plurality of four
Members of this Court would have held that the Four
teenth Amendment requires representation by counsel in
a proceeding to transfer a prison inmate to a state hospital
for the mentally ill. Further, in Lassiter v. Department of
Social Servs. of Durham Cty., 452 U. S. 18 (1981), a case
that focused upon civil proceedings leading to loss of pa
rental rights, the Court wrote that the
“pre-eminent generalization that emerges from this
Court’s precedents on an indigent’s right to appointed
counsel is that such a right has been recognized to ex
ist only where the litigant may lose his physical lib
erty if he loses the litigation.” Id., at 25.
And the Court then drew from these precedents “the pre
sumption that an indigent litigant has a right to appointed
counsel only when, if he loses, he may be deprived of his
physical liberty.” Id., at 26–27.
On the other hand, the Court has held that a criminal
offender facing revocation of probation and imprisonment
does not ordinarily have a right to counsel at a probation
revocation hearing. Gagnon v. Scarpelli, 411 U. S. 778(1973); see also Middendorf v. Henry, 425 U. S. 25 (1976)
(no due process right to counsel in summary court-martial
proceedings). And, at the same time, Gault, Vitek, and
Lassiter are readily distinguishable. The civil juvenile
delinquency proceeding at issue in Gault was “little differ
ent” from, and “comparable in seriousness” to, a criminal
prosecution. 387 U. S., at 28, 36. In Vitek, the controlling
opinion found no right to counsel. 445 U. S., at 499–500
(Powell, J., concurring in part) (assistance of mental
health professionals sufficient). And the Court’s state
ments in Lassiter constitute part of its rationale for deny
ing a right to counsel in that case. We believe those
statements are best read as pointing out that the Court
previously had found a right to counsel “only” in cases
10 TURNER v. ROGERS
Opinion of the Court
involving incarceration, not that a right to counsel exists
in all such cases (a position that would have been difficult
to reconcile with Gagnon).
B
Civil contempt proceedings in child support cases con-
stitute one part of a highly complex system designed to
assure a noncustodial parent’s regular payment of funds
typically necessary for the support of his children. Often
the family receives welfare support from a state
administered federal program, and the State then seeks
reimbursement from the noncustodial parent. See 42
U. S. C. §§608(a)(3) (2006 ed., Supp. III), 656(a)(1) (2006
ed.); S. C. Code Ann. §§43–5–65(a)(1), (2) (2010 Cum.
Supp.). Other times the custodial parent (often the
mother, but sometimes the father, a grandparent, or an
other person with custody) does not receive government
benefits and is entitled to receive the support payments
herself.
The Federal Government has created an elaborate
procedural mechanism designed to help both the govern
ment and custodial parents to secure the payments to
which they are entitled. See generally Blessing v. Free
stone, 520 U. S. 329, 333 (1997) (describing the “interlock
ing set of cooperative federal-state welfare programs” as
they relate to child support enforcement); 45 CFR pt. 303
(2010) (prescribing standards for state child support agen
cies). These systems often rely upon wage withholding,
expedited procedures for modifying and enforcing child
support orders, and automated data processing. 42
U. S. C. §§666(a), (b), 654(24). But sometimes States will
use contempt orders to ensure that the custodial parent
receives support payments or the government receives
reimbursement. Although some experts have criticized
this last-mentioned procedure, and the Federal Govern
ment believes that “the routine use of contempt for non
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Opinion of the Court
payment of child support is likely to be an ineffective
strategy,” the Government also tells us that “coercive
enforcement remedies, such as contempt, have a role to
play.” Brief for United States as Amicus Curiae 21–22,
and n. 8 (citing Dept. of Health and Human Services,
National Child Support Enforcement, Strategic Plan: FY
2005–2009, pp. 2, 10). South Carolina, which relies heav
ily on contempt proceedings, agrees that they are an im
portant tool.
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 spe
cific safeguards the Constitution’s Due Process Clause re
quires in order to make a civil proceeding fundamentally
fair. Mathews v. Eldridge, 424 U. S. 319, 335 (1976) (con
sidering 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 safe
guards,” and (3) the nature and magnitude of any counter
vailing interest in not providing “additional or substitute
procedural requirement[s].” Ibid. See also Lassiter, 452
U. S., at 27–31 (applying the Mathews framework).
The “private interest that will be affected” argues
strongly for the right to counsel that Turner advocates.
That interest consists of an indigent defendant’s loss of
personal liberty through imprisonment. The interest in
securing that freedom, the freedom “from bodily restraint,”
lies “at the core of the liberty protected by the Due Process
Clause.” Foucha v. Louisiana, 504 U. S. 71, 80 (1992).
And we have made clear that its threatened loss through
legal proceedings demands “due process protection.”
Addington v. Texas, 441 U. S. 418, 425 (1979).
12 TURNER v. ROGERS
Opinion of the Court
Given the importance of the interest at stake, it is ob
viously important to assure accurate decisionmaking in
respect to the key “ability to pay” question. Moreover, the
fact that ability to comply marks a dividing line between
civil and criminal contempt, Hicks, 485 U. S., at 635, n. 7,
reinforces the need for accuracy. That is because an incor
rect decision (wrongly classifying the contempt proceeding
as civil) can increase the risk of wrongful incarceration by
depriving the defendant of the procedural protections
(including counsel) that the Constitution would demand in
a criminal proceeding. See, e.g., Dixon, 509 U. S., at 696(proof beyond a reasonable doubt, protection from double
jeopardy); Codispoti v. Pennsylvania, 418 U. S. 506, 512–
513, 517 (1974) (jury trial where the result is more than
six months’ imprisonment). And since 70% of child sup
port arrears nationwide are owed by parents with either
no reported income or income of $10,000 per year or less,
the issue of ability to pay may arise fairly often. See
E. Sorensen, L. Sousa, & S. Schaner, Assessing Child
Support Arrears in Nine Large States and the Nation
22 (2007) (prepared by The Urban Institute), online at
http://aspe.hhs.gov/hsp/07/assessing-CS-debt/report.pdf (as
visited June 16, 2011, and available in Clerk of Court’s
case file); id., at 23 (“research suggests that many obligors
who do not have reported quarterly wages have relatively
limited resources”); Patterson, Civil Contempt and the
Indigent Child Support Obligor: The Silent Return of
Debtor’s Prison, 18 Cornell J. L. & Pub. Pol’y 95, 117
(2008). See also, e.g., McBride v. McBride, 334 N. C. 124,
131, n. 4, 431 S. E. 2d 14, 19, n. 4 (1993) (surveying North
Carolina contempt orders and finding that the “failure of
trial courts to make a determination of a contemnor’s
ability to comply is not altogether infrequent”).
On the other hand, the Due Process Clause does not
always require the provision of counsel in civil proceedings
where incarceration is threatened. See Gagnon, 411 U. S.
Cite as: 564 U. S. ____ (2011) 13
Opinion of the Court
778. And in determining whether the Clause requires a
right to counsel here, we must take account of opposing
interests, as well as consider the probable value of “addi
tional or substitute procedural safeguards.” Mathews,
supra, at 335.
Doing so, we find three related considerations that,
when taken together, argue strongly against the Due
Process Clause requiring the State to provide indigents
with counsel in every proceeding of the kind before us.
First, the critical question likely at issue in these cases
concerns, as we have said, the defendant’s ability to pay.
That question is often closely related to the question of the
defendant’s indigence. But when the right procedures are
in place, indigence can be a question that in many—but
not all—cases is sufficiently straightforward to warrant
determination prior to providing a defendant with counsel,
even in a criminal case. Federal law, for example, re
quires a criminal defendant to provide information show
ing that he is indigent, and therefore entitled to state
funded counsel, before he can receive that assistance. See
18 U. S. C. §3006A(b).
Second, sometimes, as here, the person opposing the
defendant at the hearing is not the government repre
sented by counsel but the custodial parent unrepresented
by counsel. See Dept. of Health and Human Services,
Office of Child Support Enforcement, Understanding Child
Support Debt: A Guide to Exploring Child Support Debt in
Your State 5, 6 (2004) (51% of nationwide arrears, and
58% in South Carolina, are not owed to the government).
The custodial parent, perhaps a woman with custody of
one or more children, may be relatively poor, unemployed,
and unable to afford counsel. Yet she may have encour
aged the court to enforce its order through contempt. Cf.
Tr. Contempt Proceedings (Sept. 14, 2005), App. 44a–45a
(Rogers asks court, in light of pattern of nonpayment, to
confine Turner). She may be able to provide the court
14 TURNER v. ROGERS
Opinion of the Court
with significant information. Cf. id., at 41a–43a (Rogers
describes where Turner lived and worked). And the pro
ceeding is ultimately for her benefit.
A requirement that the State provide counsel to the
noncustodial parent in these cases could create an asym
metry of representation that would “alter significantly the
nature of the proceeding.” Gagnon, supra, at 787. Doing
so could mean a degree of formality or delay that would
unduly slow payment to those immediately in need. And,
perhaps more important for present purposes, doing so
could make the proceedings less fair overall, increasing the
risk of a decision that would erroneously deprive a family
of the support it is entitled to receive. The needs of such
families play an important role in our analysis. Cf. post,
at 10–12 (opinion of THOMAS, J.).
Third, as the Solicitor General points out, there is avail
able a set of “substitute procedural safeguards,” Mathews,
424 U. S., at 335, which, if employed together, can signifi
cantly reduce the risk of an erroneous deprivation of lib
erty. 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 de
fendant that his “ability to pay” is a critical issue in the
contempt proceeding; (2) the use of a form (or the equiva
lent) to elicit relevant financial information; (3) an oppor
tunity 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. See Tr. of Oral Arg. 26–27; Brief for United
States as Amicus Curiae 23–25. In presenting these al
ternatives, the Government draws upon considerable
experience in helping to manage statutorily mandated
federal-state efforts to enforce child support orders. See
supra, at 10. It does not claim that they are the only
possible alternatives, and this Court’s cases suggest, for
Cite as: 564 U. S. ____ (2011) 15
Opinion of the Court
example, that sometimes assistance other than purely
legal assistance (here, say, that of a neutral social worker)
can prove constitutionally sufficient. Cf. Vitek, 445 U. S.,
at 499–500 (Powell, J., concurring in part) (provision of
mental health professional). But the Government does
claim that these alternatives can assure the “fundamental
fairness” of the proceeding even where the State does not
pay for counsel for an indigent defendant.
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 alterna
tives 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 repre
sented by counsel and the State provides alternative
procedural safeguards equivalent to those we have men
tioned (adequate notice of the importance of ability to pay,
fair opportunity to present, and to dispute, relevant in
formation, 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 compe
tent representative. Cf. Johnson v. Zerbst, 304 U. S. 458,
462–463 (1938) (“[T]he average defendant does not have
16 TURNER v. ROGERS
Opinion of the Court
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).
IV
The record indicates that Turner received neither coun
sel 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.
We vacate the judgment of the South Carolina Supreme
Court and remand the case for further proceedings not
inconsistent with this opinion.
It is so ordered.
Cite as: 564 U. S. ____ (2011) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–10
_________________
MICHAEL D. TURNER, PETITIONER v. REBECCA L.
ROGERS ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 20, 2011]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, and
with whom THE CHIEF JUSTICE and JUSTICE ALITO join as
to Parts I–B and II, dissenting.
The Due Process Clause of the Fourteenth Amendment
does not provide a right to appointed counsel for indi
gent defendants facing incarceration in civil contempt pro
ceedings. Therefore, I would affirm. Although the Court
agrees that appointed counsel was not required in this
case, it nevertheless vacates the judgment of the South
Carolina Supreme Court on a different ground, which the
parties have never raised. Solely at the invitation of
the United States as amicus curiae, the majority decides
that Turner’s contempt proceeding violated due process be-
cause it did not include “alternative procedural safe
guards.” Ante, at 15. Consistent with this Court’s long
standing practice, I would not reach that question.1
I
The only question raised in this case is whether the
Due Process Clause of the Fourteenth Amendment creates a
right to appointed counsel for all indigent defendants facing
incarceration in civil contempt proceedings. It does not.
——————
1 I agree with the Court that this case is not moot because the chal
lenged action is likely to recur yet is so brief that it otherwise evades
our review. Ante, at 5–7.
2 TURNER v. ROGERS
THOMAS, J., dissenting
A
Under an original understanding of the Constitution,
there is no basis for concluding that the guarantee of due
process secures a right to appointed counsel in civil con
tempt proceedings. It certainly does not do so to the ex
tent that the Due Process Clause requires “ ‘that our
Government must proceed according to the “law of the
land”—that is, according to written constitutional and statu
tory provisions.’” Hamdi v. Rumsfeld, 542 U. S. 507, 589
(2004) (THOMAS, J., dissenting) (quoting In re Winship,
397 U. S. 358, 382 (1970) (Black, J., dissenting)). No one
contends that South Carolina law entitles Turner to ap
pointed counsel. Nor does any federal statute or constitu
tional provision so provide. Although the Sixth Amend
ment secures a right to “the Assistance of Counsel,” it does
not apply here because civil contempt proceedings are not
“criminal prosecutions.” U. S. Const., Amdt. 6; see ante, at
8. Moreover, as originally understood, the Sixth Amend
ment guaranteed only the “right to employ counsel, or to
use volunteered services of counsel”; it did not require the
court to appoint counsel in any circumstance. Padilla v.
Kentucky, 559 U. S. ___, ___ (2010) (SCALIA, J., dissenting)
(slip op., at 2); see also United States v. Van Duzee, 140
U. S. 169, 173 (1891); W. Beaney, The Right to Counsel in
American Courts 21–22, 28–29 (1955); F. Heller, The
Sixth Amendment to the Constitution of the United States
110 (1951).
Appointed counsel is also not required in civil contempt
proceedings under a somewhat broader reading of the Due
Process Clause, which takes it to approve “ ‘[a] process of
law, which is not otherwise forbidden, . . . [that] can show
the sanction of settled usage.’ ” Weiss v. United States, 510
U. S. 163, 197 (1994) (SCALIA, J., concurring in part and
concurring in judgment) (quoting Hurtado v. California,
110 U. S. 516, 528 (1884)). Despite a long history of courts
exercising contempt authority, Turner has not identified
Cite as: 564 U. S. ____ (2011) 3
THOMAS, J., dissenting
any evidence that courts appointed counsel in those pro
ceedings. See Mine Workers v. Bagwell, 512 U. S. 821, 831
(1994) (describing courts’ traditional assumption of “in
herent contempt authority”); see also 4 W. Blackstone,
Commentaries on the Laws of England 280–285 (1769)
(describing the “summary proceedings” used to adjudicate
contempt). Indeed, Turner concedes that contempt pro
ceedings without appointed counsel have the blessing of
history. See Tr. of Oral Arg. 15–16 (admitting that there
is no historical support for Turner’s rule); see also Brief for
Respondents 47–48.
B
Even under the Court’s modern interpretation of the
Constitution, the Due Process Clause does not provide a
right to appointed counsel for all indigent defendants
facing incarceration in civil contempt proceedings. Such
a reading would render the Sixth Amendment right to
counsel—as it is currently understood—superfluous.
Moreover, it appears that even cases applying the Court’s
modern interpretation of due process have not understood
it to categorically require appointed counsel in circum
stances outside those otherwise covered by the Sixth
Amendment.
1
Under the Court’s current jurisprudence, the Sixth
Amendment entitles indigent defendants to appointed coun-
sel in felony cases and other criminal cases resulting
in a sentence of imprisonment. See Gideon v. Wainwright,
372 U. S. 335, 344–345 (1963); Argersinger v. Hamlin, 407
U. S. 25, 37 (1972); Scott v. Illinois, 440 U. S. 367, 373–374
(1979); Alabama v. Shelton, 535 U. S. 654, 662 (2002).
Turner concedes that, even under these cases, the Sixth
Amendment does not entitle him to appointed counsel.
See Reply Brief for Petitioner 12 (acknowledging that
4 TURNER v. ROGERS
THOMAS, J., dissenting
“civil contempt is not a ‘criminal prosecution’ within the
meaning of the Sixth Amendment”). He argues instead
that “the right to the assistance of counsel for persons
facing incarceration arises not only from the Sixth
Amendment, but also from the requirement of fundamen
tal fairness under the Due Process Clause of the Four
teenth Amendment.” Brief for Petitioner 28. In his view,
this Court has relied on due process to “rejec[t] formalistic
distinctions between criminal and civil proceedings, in
stead concluding that incarceration or other confinement
triggers the right to counsel.” Id., at 33.
But if the Due Process Clause created a right to ap
pointed counsel in all proceedings with the potential for
detention, then the Sixth Amendment right to appointed
counsel would be unnecessary. Under Turner’s theory,
every instance in which the Sixth Amendment guarantees
a right to appointed counsel is covered also by the Due
Process Clause. The Sixth Amendment, however, is the
only constitutional provision that even mentions the assis
tance of counsel; the Due Process Clause says nothing
about counsel. Ordinarily, we do not read a general provi
sion to render a specific one superfluous. Cf. Morales v.
Trans World Airlines, Inc., 504 U. S. 374, 384 (1992)
(“[I]t is a commonplace of statutory construction that the
specific governs the general”). The fact that one constitu
tional provision expressly provides a right to appointed
counsel in specific circumstances indicates that the Con
stitution does not also sub silentio provide that right far
more broadly in another, more general, provision. Cf.
Albright v. Oliver, 510 U. S. 266, 273 (1994) (plurality
opinion) (“Where a particular Amendment provides an
explicit textual source of constitutional protection against
a particular sort of government behavior, that Amend
ment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims”
(internal quotation marks omitted)); id., at 281 (KENNEDY,
Cite as: 564 U. S. ____ (2011) 5
THOMAS, J., dissenting
J., concurring in judgment) (“I agree with the plurality
that an allegation of arrest without probable cause must
be analyzed under the Fourth Amendment without refer
ence to more general considerations of due process”); Stop
the Beach Renourishment, Inc. v. Florida Dept. of Envi
ronmental Protection, 560 U. S. ___, ___ (2010) (opinion of
SCALIA, J.) (slip op., at 16) (applying Albright to the Tak
ings Clause).
2
Moreover, contrary to Turner’s assertions, the holdings
in this Court’s due process decisions regarding the right to
counsel are actually quite narrow. The Court has never
found in the Due Process Clause a categorical right to
appointed counsel outside of criminal prosecutions or
proceedings “functionally akin to a criminal trial.” Gag
non v. Scarpelli, 411 U. S. 778, 789, n. 12 (1973) (dis
cussing In re Gault, 387 U. S. 1 (1967)). This is consistent
with the conclusion that the Due Process Clause does not
expand the right to counsel beyond the boundaries set by
the Sixth Amendment.
After countless factors weighed, mores evaluated, and
practices surveyed, the Court has not determined that due
process principles of fundamental fairness categorically
require counsel in any context outside criminal proceed
ings. See, e.g., Lassiter v. Department of Social Servs. of
Durham Cty., 452 U. S. 18, 31–32 (1981); Wolff v. McDon
nell, 418 U. S. 539, 569–570 (1974); see also Walters v.
National Assn. of Radiation Survivors, 473 U. S. 305, 307–
308, 320–326 (1985); Goss v. Lopez, 419 U. S. 565, 583
(1975). Even when the defendant’s liberty is at stake, the
Court has not concluded that fundamental fairness re
quires that counsel always be appointed if the proceeding
is not criminal.2 See, e.g., Scarpelli, supra, at 790 (proba
——————
2 “Criminal contempt is a crime in the ordinary sense”; therefore,
6 TURNER v. ROGERS
THOMAS, J., dissenting
tion revocation); Middendorf v. Henry, 425 U. S. 25, 48
(1976) (summary court-martial); Parham v. J. R., 442
U. S. 584, 599–600, 606–607, 610, n. 18 (1979) (commit
ment of minor to mental hospital); Vitek v. Jones, 445
U. S. 480, 497–500 (1980) (Powell, J., controlling opinion
concurring in part) (transfer of prisoner to mental hospi
tal). Indeed, the only circumstance in which the Court has
found that due process categorically requires appointed
counsel is juvenile delinquency proceedings, which the
Court has described as “functionally akin to a criminal
trial.” Scarpelli, supra, at 789, n. 12 (discussing In re
Gault, supra); see ante, at 9.
Despite language in its opinions that suggests it could
find otherwise, the Court’s consistent judgment has been
that fundamental fairness does not categorically require
appointed counsel in any context outside of criminal
proceedings. The majority is correct, therefore, that the
Court’s precedent does not require appointed counsel in
the absence of a deprivation of liberty. Id., at 9–10. But a
more complete description of this Court’s cases is that
even when liberty is at stake, the Court has required
appointed counsel in a category of cases only where it
would have found the Sixth Amendment required it—in
criminal prosecutions.
II
The majority agrees that the Constitution does not
entitle Turner to appointed counsel. But at the invitation
of the Federal Government as amicus curiae, the majority
holds that his contempt hearing violated the Due Process
Clause for an entirely different reason, which the parties
——————
criminal contemners are entitled to “the protections that the Consti
tution requires of such criminal proceedings,” including the right to
counsel. Mine Workers v. Bagwell, 512 U. S. 821, 826 (1994) (citing
Cooke v. United States, 267 U. S. 517, 537 (1925); internal quotation
marks omitted).
Cite as: 564 U. S. ____ (2011) 7
THOMAS, J., dissenting
have never raised: The family court’s procedures “were
in adequate to ensure an accurate determination of
[Turner’s] present ability to pay.” Brief for United States
as Amicus Curiae 19 (capitalization and boldface type
deleted); see ante, at 14–16. I would not reach this issue.
There are good reasons not to consider new issues raised
for the first and only time in an amicus brief. As here,
the new issue may be outside the question presented.3 See
Pet. for Cert. i (“Whether . . . an indigent defendant has no
constitutional right to appointed counsel at a civil con
tempt proceeding that results in his incarceration”); see
also ante, at 4–5 (identifying the conflict among lower
courts as regarding “the right to counsel”). As here, the
new issue may not have been addressed by, or even pre
sented to, the state court. See 387 S. C. 142, 144, 691
S. E. 2d 470, 472 (2010) (describing the only question as
whether “the Sixth and Fourteenth Amendments of the
United States Constitution guarantee [Turner], as an
indigent defendant in family court, the right to appointed
counsel”). As here, the parties may not have preserved the
issue, leaving the record undeveloped. See Tr. of Oral Arg.
49, 43 (“The record is insufficient” regarding alternative
procedures because “[t]hey were raised for the very first
time at the merits stage here; so, there’s been no develop
ment”); Brief for Respondents 63. As here, the parties
may not address the new issue in this Court, leaving its
boundaries untested. See Brief for Petitioner 27, n. 15
(reiterating that “[t]he particular constitutional violation
——————
3 Indeed, the new question is not one that would even merit certiorari.
See this Court’s Rule 10. Because the family court received a form
detailing Turner’s finances and the judge could not hold Turner in
contempt without concluding that he could pay, the due process ques
tion that the majority answers reduces to a factbound assessment of the
family court’s performance. See ante, at 14–16; Reply Brief for Peti
tioner 14–15 (“[I]n advance of his hearing, Turner supplied to the
family court just such a form”).
8 TURNER v. ROGERS
THOMAS, J., dissenting
that Turner challenges in this case is the failure of the
family court to appoint counsel”); Brief for Respondents 62
(declining to address the Government’s argument because
it is not “properly before this Court” (capitalization and
boldface type deleted). Finally, as here, a party may even
oppose the position taken by its allegedly supportive
amicus. See Tr. of Oral Arg. 7–12, 14–15 (Turner’s coun
sel rejecting the Government’s argument that any proce
dures short of a categorical right to appointed counsel
could satisfy due process); Reply Brief for Petitioner 14–
15.
Accordingly, it is the wise and settled general practice of
this Court not to consider an issue in the first instance,
much less one raised only by an amicus. See this Court’s
Rule 14.1(a) (“Only the questions set out in the petition, or
fairly included therein, will be considered by the Court”);
Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110
(2001) (per curiam) (“[T]his is a court of final review and
not first view” (internal quotation marks omitted)); United
Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981)
(declining to consider an amicus’ argument “since it was
not raised by either of the parties here or below” and was
outside the grant of certiorari). This is doubly true when
we review the decision of a state court and triply so when
the new issue is a constitutional matter. See McGoldrick
v. Compagnie Generale Transatlantique, 309 U. S. 430,
434 (1940) (“[I]t is only in exceptional cases, and then only
in cases coming from the federal courts, that [this Court]
considers questions urged by a petitioner or appellant not
pressed or passed upon in the courts below”); Cardinale v.
Louisiana, 394 U. S. 437, 438 (1969) (“[T]he Court will not
decide federal constitutional issues raised here for the first
time on review of state court decisions”).
The majority errs in moving beyond the question that
was litigated below, decided by the state courts, petitioned
to this Court, and argued by the parties here, to resolve a
Cite as: 564 U. S. ____ (2011) 9
THOMAS, J., dissenting
question raised exclusively in the Federal Government’s
amicus brief. In some cases, the Court properly affirms a
lower court’s judgment on an alternative ground or accepts
the persuasive argument of an amicus on a question that
the parties have raised. See, e.g., United States v.
Tinklenberg, 563 U. S. ___, ___ (2011) (slip op., at 13). But
it transforms a case entirely to vacate a state court’s
judgment based on an alternative constitutional ground
advanced only by an amicus and outside the question on
which the petitioner sought (and this Court granted)
review.
It should come as no surprise that the majority confines
its analysis of the Federal Government’s new issue to ac-
knowledging the Government’s “considerable experience”
in the field of child support enforcement and then adopt
ing the Government’s suggestions in toto. See ante,
at 14–15. Perhaps if the issue had been preserved and
briefed by the parties, the majority would have had alter
native solutions or procedures to consider. See Tr. of Oral
Arg. 43 (“[T]here’s been no development. We don’t know
what other States are doing, the range of options out
there”). The Federal Government’s interest in States’
child support enforcement efforts may give the Govern
ment a valuable perspective,4 but it does not overcome the
strong reasons behind the Court’s practice of not consider
ing new issues, raised and addressed only by an amicus,
for the first time in this Court.
III
For the reasons explained in the previous two sections,
I would not engage in the majority’s balancing analysis.
But there is yet another reason not to undertake the
——————
4 See,
e.g., Deadbeat Parents Punishment Act of 1998, 112 Stat. 618;
Child Support Recovery Act of 1992, 106 Stat. 3403; Child Support
Enforcement Amendments of 1984, 98 Stat. 1305; Social Services
Amendments of 1974, 88 Stat. 2337.
10 TURNER v. ROGERS
THOMAS, J., dissenting
Mathews v. Eldridge balancing test here. 424 U. S. 319(1976). That test weighs an individual’s interest against
that of the Government. Id., at 335 (identifying the oppos
ing interest as “the Government’s interest”); Lassiter, 452
U. S., at 27 (same). It does not account for the interests of
the child and custodial parent, who is usually the child’s
mother. But their interests are the very reason for the
child support obligation and the civil contempt proceed
ings that enforce it.
When fathers fail in their duty to pay child support,
children suffer. See Cancian, Meyer, & Han, Child Sup
port: Responsible Fatherhood and the Quid Pro Quo, 635
Annals Am. Acad. Pol. & Soc. Sci. 140, 153 (2011) (finding
that child support plays an important role in reducing
child poverty in single-parent homes); cf. Sorensen &
Zibman, Getting to Know Poor Fathers Who Do Not Pay
Child Support, 75 Soc. Serv. Rev. 420, 423 (2001) (finding
that children whose fathers reside apart from them are 54
percent more likely to live in poverty than their fathers).
Nonpayment or inadequate payment can press children
and mothers into poverty. M. Garrison, The Goals and
Limits of Child Support Policy, in Child Support: The Next
Frontier 16 (J. Oldham & M. Melli eds. 2000); see also
Dept. of Commerce, Census Bureau, T. Grall, Custodial
Mothers and Fathers and Their Child Support: 2007, pp.
4–5 (2009) (hereinafter Custodial Mothers and Fathers)
(reporting that 27 percent of custodial mothers lived in
poverty in 2007).
The interests of children and mothers who depend on
child support are notoriously difficult to protect. See, e.g.,
Hicks v. Feiock, 485 U. S. 624, 644 (1988) (O’Connor, J.,
dissenting) (“The failure of enforcement efforts in this area
has become a national scandal” (internal quotation marks
omitted)). Less than half of all custodial parents receive
the full amount of child support ordered; 24 percent
of those owed support receive nothing at all. Custodial
Cite as: 564 U. S. ____ (2011) 11
THOMAS, J., dissenting
Mothers and Fathers 7; see also Dept. of Health and
Human Services, Office of Child Support Enforcement, FY
2008 Annual Report to Congress, App. III, Table 71 (show
ing national child support arrears of $105.5 billion in
2008). In South Carolina alone, more than 139,000 non
custodial parents defaulted on their child support obliga
tions during 2008, and at year end parents owed $1.17
billion in total arrears. Id., App. III, Tables 73 and 71.
That some fathers subject to a child support agreement
report little or no income “does not mean they do not have
the ability to pay any child support.” Dept. of Health and
Human Services, H. Sorensen, L. Sousa, & S. Schaner,
Assessing Child Support Arrears in Nine Large States and
the Nation 22 (2007) (prepared by The Urban Institute)
(hereinafter Assessing Arrears). Rather, many “deadbeat
dads”5 “opt to work in the underground economy” to
“shield their earnings from child support enforcement
efforts.” Mich. Sup. Ct., Task Force Report: The Under
ground Economy 10 (2010) (hereinafter Underground
Economy). To avoid attempts to garnish their wages or
otherwise enforce the support obligation, “deadbeats” quit
their jobs, jump from job to job, become self-employed,
work under the table, or engage in illegal activity.6 See
Waller & Plotnick, Effective Child Support Policy for Low-
Income Families: Evidence from Street Level Research, 20
J. Pol’y Analysis & Mgmt. 89, 104 (2001); Assessing Ar
rears 22–23.
Because of the difficulties in collecting payment through
——————
5 See Deadbeat Parents Punishment Act of 1998, 112 Stat. 618 (refer
ring to parents who “willfully fai[l] to pay a support obligation” as
“[d]eadbeat [p]arents”).
6 In this case, Turner switched between eight different jobs in three
years, which made wage withholding difficult. App. 12a, 18a, 24a, 47a,
53a, 136a–139a. Most recently, Turner sold drugs in 2009 and 2010
but paid not a penny in child support during those years. Id., at 105a–
111a; App. to Brief for Respondents 16a, 21a–24a, 29a–32a, 37a–54a.
12 TURNER v. ROGERS
THOMAS, J., dissenting
traditional enforcement mechanisms, many States also
use civil contempt proceedings to coerce “deadbeats” into
paying what they owe. The States that use civil contempt
with the threat of detention find it a “highly effective” tool
for collecting child support when nothing else works.
Compendium of Responses Collected by the U. S. Dept. of
Health and Human Services Office of Child Support En
forcement (Dec. 28, 2010), reprinted in App. to Brief
for Sen. DeMint et al. as Amici Curiae 7a; see id., at 3a,
9a. For example, Virginia, which uses civil contempt as
“a last resort,” reports that in 2010 “deadbeats” paid ap
proximately $13 million “either before a court hearing
to avoid a contempt finding or after a court hearing to
purge the contempt finding.” Id., at 13a–14a. Other
States confirm that the mere threat of imprisonment is
often quite effective because most contemners “will pay . . .
rather than go to jail.” Id., at 4a; see also Underground
Economy C–2 (“Many judges . . . report that the prospect
of [detention] often causes obligors to discover previously
undisclosed resources that they can use to make child
support payments”).
This case illustrates the point. After the family court
imposed Turner’s weekly support obligation in June 2003,
he made no payments until the court held him in contempt
three months later, whereupon he paid over $1,000 to
avoid confinement. App. 17a–18a, 131a. Three more
times, Turner refused to pay until the family court held
him in contempt—then paid in short order. Id., at 23a–
25a, 31a–34a, 125a–126a, 129a–130a.
Although I think that the majority’s analytical frame
work does not account for the interests that children and
mothers have in effective and flexible methods to secure
payment, I do not pass on the wisdom of the majority’s
preferred procedures. Nor do I address the wisdom of
the State’s decision to use certain methods of enforcement.
Whether “deadbeat dads” should be threatened with in
Cite as: 564 U. S. ____ (2011) 13
THOMAS, J., dissenting
carceration is a policy judgment for state and federal
lawmakers, as is the entire question of government in
volvement in the area of child support. See Elrod & Dale,
Paradigm Shifts and Pendulum Swings in Child Custody,
42 Fam. L. Q. 381, 382 (2008) (observing the “federaliza
tion of many areas of family law” (internal quotation
marks omitted)). This and other repercussions of the shift
away from the nuclear family are ultimately the business
of the policymaking branches. See, e.g., D. Popenoe, Fam
ily in Decline in America, reprinted in War Over the Fam
ily 3, 4 (2005) (discussing “four major social trends” that
emerged in the 1960’s “to signal a widespread ‘flight’ ”
from the “nuclear family”); Krause, Child Support Reas
sessed, 24 Fam. L. Q. 1, 16 (1990) (“Easy-come, easy-go
marriage and casual cohabitation and procreation are on a
collision course with the economic and social needs of
children”); M. Boumil & J. Friedman, Deadbeat Dads 23–
24 (1996) (“Many [children of deadbeat dads] are born out
of wedlock . . . . Others have lost a parent to divorce at
such a young age that they have little conscious memory of
it”).
* * *
I would affirm the judgment of the South Carolina
Supreme Court because the Due Process Clause does not
provide a right to appointed counsel in civil contempt
hearings that may lead to incarceration. As that is the
only issue properly before the Court, I respectfully dissent.