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., at

42–43. 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

Cite as: 564 U. S. ____ (2011) 11

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.