Opposition Brief — McLain v. Walker

Supreme Court, U...

FILE wv

CY) DEC 19 1985

No. 85-853 JOSEPH F. SPANIOL, JR.

CLERA

Yrthe Supreme court of the Wnited States

OcToBER TERM, 1985

Ray McLarn, Sheriff of Lincoln County, Oklahoma,

Petitioner,

vs.

EDWARD JOHN WALKER,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for

The Tenth Circuit

RESPOND ’*S BRIEF IN OPPOSITION

Steven A. Novick

‘\

es Legal Aid of Western Oklahoma

<X 2901 Classen Boulevard, Suite 110

x Oklahoma City, Oklahoma 73106

(405) 557-0020

Attorney for Respondent

December, 1985

~ BEST AVAILABLE COPY "9

QUESTIONS PRESENTED BY PETITIONER

FOR REVIEW

1. Whether the Sixth Amendment to the United States

Constitution requires the appointment of counsel to indi-

gent defendants who have been cited for contempt in a

civil contempt proceeding brought by a private party to

enforce a child support obligation.

2. Whether the Fourteenth Amendment of the United

States Constitution requires the appointment of counsel to

indigent defendants in the above mentioned situation.

=.

—— th tee

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TABLE OF CONTENTS

Questions Presented By Petitioner For Review —_. cae

Tehde Ge oe eee iii

CNN TIO is ecciccerncanicnsencasseoiion cebsochiaicidadaidecemaleaniealta 1

eateinens OS The Ce cetacean 2

Reasons Why The Writ Should Be Denied:

I. The Questions Presented For Review Are

Likely To Become Moot During The Pendency Of

TES BE os. cotsceeees i sis 4

II. The Question Of Whether The Sixth

Amendment Requires The Appointment Of Coun-

sel For Indigent Civil Contempt Defendants Is Not

Properly Before This Court 6

III. An Indigent Defendant Threatened With

Incarceration In A Civil Contempt Action For Non-

Support Is Entitled To The Appointment of Coun-

sel Under The Due Process Clause of The Four-

teenth Amendment - Biss 7

A. The Decision Of The Tenth Circuit Is In

Harmony With The Decisions Of All Other

Courts Of Appeals That Have Considered

70 ED ke ee 8

B. The Decision Of The Tenth Circuit Is Con-

sistent With The Applicable Decisions Of

The United States Suyzermne Court — 11

IV. The Questions Of Whether Respondent

Was Indigent, And Whether His Failure To Pay

Support Was Contemptuous Are Not Material To

The Determination Of Certiorari —..-.._.. 17

| perneratme nee et meer ee OS Vs ad 19

Carvonte GF Darwies: .....—.....-.. eee ee

TABLE OF AUTHORITIES

Federal Cases: PAGE(S)

Argersinger v. Hamlin, 407 U.S. 25 (1972) 11

Carafas v. LaValle, 391 U.S. 234 (1968) == i(iti«a

Cobb v. Green, 574 F.Supp. 256 (W.D. Mich. 1983) 10,15

In re DiBella, 518 F.2d 955 (2d Cir. 1975) 10

Gagnon v. Scarpelli, 411 U.S. 778 (1972) — 15, 16

In re Gault, 387 U.S. 1 (1967) 7,11

Gideon v. Wainwright, 372 U.S. 335 (1963) _-_. 11

Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir. 1973) —_. 8,9

Hormel v. Helvering, 312 U.S. 552 (1941) ~~ 6

Johnson v. Zurz, 596 F.Supp. 39 (N.D. Ohio 1984) _. 10

In re Kilgo, 484 F.2d 1215 (4th Cir. 1973) 0... = 10

Lake v. Speziale, 580 F.Supp. 1318 (D. Conn. 1984)_..10, 13

Lassiter v. Department of Social Services,

452 U.S. 18 (1981) - ates Preven

Mastin v. Fellerhoff, 526 F. Supp 969°

(S.D. Ohio 1981) - ait EMSeoae F

Matthews v. Eldridge, 424 US. 319 (1976) - seine? a

Miranda v. Arizona, 384 U.S. 436 (1966) 7

Morrissey v. Brewer, 408 U.S. 471 (1972) 15, 16

Perez v. Ledesma, 401 U.S. 82 (1971) ~~~... 7

Powell v. Alabama, 287 U.S. 45 (1932) 14

Rex v. Owens, 585 F.2d 432 (10th Cir. 1978) — 4

Ridgeway v. Baker, 720 F.2d 1409

SEN a 6, 8, 9, 10, 14, 16, 18

Sevier v. Turner, 742 =.2d 262 (6th Cir. 1984) __. 8,9, 18

Sibron v. New York, 392 U.S. 40 (1968) _.___-__-__ 4

St. Louis DDTC Parents’ Assoc. v. sided

767 F.2d 518 (8th Cir. 1985) _ a 6

United States v. Anderson, 553 F.2d 1154

(8th Cir. 1977) - inci iiietilicsiedibentedindien' =) ae

United States v. Bobart Travel Agency,

699 F.2d 618 (2d Cir. 1983) . ST ieiivaananieees- ae

—jy—

AUTHORITIES CONTINUED PAGE(S)

Vitek v. Jones, 445 U.S. 480 (1980) __ 12

Walker v. McLain, 768 F.2d 1181 (10th Cir. 1985). passtm

Weinstein v. Bradford, 423 U.S. 147 (1975) _..___ iis 4

Young v. Whitworth, 522 F.Supp. 759

(S.D. Ohio 1981) ede geeliliasetndecSendnaccssaned 10, 14, 15

State Cases:

McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982) __10, 16

Pirrong v. Pirrong, 552 P.2d 383 (Okla. 1976) _.... 4

Potter v. Wilson, 609 P.2d 1278 (Okla. 1980)... 5

Whillock v. Whillock, 550 P.2d 558 (Okla. 1976) 16

Statutes:

Ea eres 4

ESE ee aE +

ee 3 Geer a

ki RE A kes IS oe 16

Court Rules:

eS is CIN FE ensesitethinttcencnsdoesmherniens chicateataanligies 8,17

es Sa I snc cccesencnsernoennetnniiinnictnielastltichalancpiaeds 5

No. 85-853

In THE

Supreme Court of the United States

OcToBER TERM, 1985

Ray McLarn, Sheriff of Lincoln County, Oklahoma,

Petitioner,

vs.

EDWARD JOHN WALKER,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for

The Tenth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

OPINION BELOW

The May 23, 1984 opinion and order of the district

court is unreported, but appears in the petition for cer-

tiorari as Appendix B. The Tenth Circuit’s opinion, styled

Edward John Walker vs. Ray McLain, Sheriff of Lincoln

County, Oklahoma, was filed on July 25, 1985 and is pub-

lished at 768 F.2d 1181 (10th Cir. 1985), and appears in

the Supplemental Appendix to the Petition for Writ of

Certiorari. |

~

STATEMENT OF THE CASE

The material facts are not in dispute. After a divorce

from his wife, respondent was effectively ordered to pay

$500 per month in child support. Of this amount, $120

represented payments to be made out of respondent’s in-

come, and $380 represented the children’s share of respon-

dent’s social security benefits based upon his disabling con-

dition of advanced degenerative heart disease. The wife

has received the $380 each month, but respondent has not

vaid the $120 per month additional support obligation. Re-

spondent claims that he is unable to meet this obligation

due to his indigency.

On September 7, 1983, respondent was tried and found

guilty of contempt for wilful failure to pay support, but

was not incarcerated at that time. Thereafier, on February

15, 1984, respondent was again found guilty of contempt

for nonsupport. Based upon both the September %, 1983

and February 15, 1984 contempt orders, respondent was

sentenced to ninety days in the county jail, or until he paid

a lump sum of $1000 to purge the contempt. Respondent

began serving his sentence on February 17, 1984.

Respondent was not represented by counsel at either

contempt hearing. It is undisputed that the state trial court

did not advise respondent of any right to the appointment

of counsel at either hearing, nor was counsel appointed.

It is also undisputed that the state trial court never made

any inquiry into respondent’s financial ability to employ

counsel, even though respondent expressly claimed an in-

ability to afford an attorney.

—

a

On March 27, 1984, respondent sought habeas corpus

in the Oklahoma Supreme Court, claiming inter alia that

he had been denied due process of law by the trial court's

failure to advise him of his right to appointed counsel at

the contempt hearings. The Oklahoma Supreme Court de-

nied habeas corpus without a full development of respon-

dent’s constitutional claim.

On March 29, 1984, respondent commenced this action

for habeas corpus in the district court claiming that his

imprisonment was illegal because the state trial court had

failed to advise him of his right to appointed counsel, and

had failed to appoint counsel to represent him. Following

the submission of authorities, the available state court rec-

ord and a deposition of the state court judge, the district

court entered an order on May 23, 1984 denying the habeas

corpus petition.

Respondent filed a motion to alter or amend judgment

on May 31, 1984, and the motion was denied by the dis-

trict court on June 13, 1984. Respondent then filed his

notice of appeal on June 21, 1984. Upon respondent’s ap-

plication, the district court issued a certificate of probable

cause for appeal on August 6, 1984.

The cause was argued in the Court of Appeals for the

Tenth Circuit on April 19, 1985. On July 25, 1985, the

Court of Appeais issued its order reversing the judgment

of the district court, and holding that due process compels

the appointment of counsel, and advice as to the availability

thereof, for an indigent defendant threatened with incar-

ceration in a civil contempt proceeding for nonsupport. Pe-

titioner now seeks review of this order by writ of certiorari.

live

REASONS WHY THE WRIT SHOULD BE DENIED

I.

The Questions Presented For Review Are Likely to Be-

come Moot During The Pendency Of This Appeal.

The Court of Appeals correctly found that respondent's

constitutional claim was not moot, even though he had been

released from jail,! because there was a reasonable expec-

tation that the challenged conduct was capable of repetition,

yet evading review. Walker v. McLain, 768 F.2d 1181, 1182

(10th Cir. 1985). See Weinstein v. Bradford, 423 U.S. 147

(1975); Rex v. Owens, 585 F.2d 432 (10th Cir. 1978). The

Court of Appeals aiso noted the possibility of collateral

consequences flowing from respondent’s contempt convic-

tion. Walker v. McLain, 768 F.2d at 1183. See Sibron v.

New York, 392 U.S. 40 (1968). Under Oklahoma law, for

example, the still valid contempt order could be used to

affect respondent's rights in subsequent custody, visitation

or support proceedings. See, e.g., Pirrong v. Pirrong, 552

P.2d 383 (Okla. 1976).

The finding of the Court cf Appeals that this case was

not moot, however, implicitly depended upon the existence

of a crucial underlying fact, viz., the minority of respon-

dent’s children.* This is so because, under Oklahoma law,

a child support order may not be enforced by contempt

1 Even though respondent had been released from, his imprisonment,

nabeas corpus was still an available remedy because 28 U.S.C. §2254 “does

not limit the relief that may be granted to discharge . . . from physical

custody.” Carafas v. LaValle, 391 US. 234, 239 (1968).

2 Children attain majority in Oklahoma at the age of eighteen. Sv

15 OS. 1981 §13. See avo 10 OS. 1981 §991 and 1/01.

=

once the minor children of the parties have attained ma-

jority. Potter v. Wilson, 609 P.2d 1278, 1281 (Okla. 1980).

Thus, the future prospect of repeated contempt prosecutions

against respondent is limited in time by his children’s at-

tainment of majority. Similarly, the collateral consequences

of the contempt conviction upon the issues of ustody and

visitation will also cease to exist upon the m: jority of re-

spondent’s children.

The state court record does not reveal the birthdates

of respondent's children. The record merely reflects that

the children were aged fifteen and thirteen at the time the

divorce petition was filed on May 28, 1982. At a minimum

then, the older child has already attained majority, while

the younger child is anywhere from sixteen and a half to

seventeen and a half years of age

Given the mechanics of the appellate process in this

Court on certiorari, it is extraordinarily unlikely that this

case could be argued before the October, 1986 term. Even

assuming a relatively speedy grant of certiorari, the brief-

ing cycle could not be completed in time for the case to be

argued during the October, 1985 term of Court. See Rule

35, Supreme Court Rules. Thus, there is a realistic prob-

ability that both of respondent's children will have at-

tained majority by the time this case is argued and de-

cided, thereby mooting the federal constitutional question.

In the interest of judicial economy, this Court should not

waste its resources and the resources of the parties where

the likelihood of mootness exists. Accordingly, certiorari

should be denied.

a

It.

The Question Of Whether The Sixth Amendment Requires

The Appointment Of Counsel For Indigent Civil Contempt De-

fendants Is Not Properly Before This Court.

Petitioner seeks certiorari to have this Court review

the question of whether the Sixth Amendment compels the

appointment of counsel for an indigent defendant threat-

ened with incarceration in a civil contempt action for non-

support.* Respondent asserts that this issue is not properly

before the Court.

It is true that the Sixth Amendment issue was mar-

ginally addressed by the district court, and was presented

by petitioner to the Court of Appeals. See Appendix B to

Petition at 10b-11b (district court’s discussion limited to

analysis of New Mexico Supreme Court case). Respondent,

however, expressly conceded for the purposes of his appeal

that he possessed no Sixth Amendment right to appointed

counsel. Reply Brief of Appeliant at 2 n.1. But see Ridge-

way Vv. Baker, 720 F.2d 1409 (5th Cir. 1983). As a result,

the Tenth Circuit neither discussed nor ruled upon the Sixth

Amendment question petitioner has presented for review.

Since the Sixth Amendment question was not fully aired

or developed in the Court of Appeals, it is not ripe for re-

view by this Court. See Hormel v. Helvering, 312 U.S. 552

(1941); St. Louis DDTC Parents’ Assoc. v. Mallory, 767 F.2d

518, 520-21 (8th Cir. 1985).

3 Although petitioner failed to include the factor of threatened incar-

ceration in the questions presented for review, respondent assumes that

petitioner intended to include that factor since it is the crucial element

triggering the right to counsel. See Lassiter v. Department of Social Serv-

ices, 452 US. 18 (1981).

endiinns

Respondent’s concession on the Sixth Amendment issue

in the Court of Appeals effectively made the petitioner the

prevailing party on this question. Approval of a petition

for certiorari brought by a prevailing party would be in-

consistent with this Court’s settled refusal to entertain ap-

peals by parties who have obtained favorable results in the

lower courts. See, e.g., Perez v. Ledesma, 401 U.S. 82, 87

n.3 (1971). Respondent therefore contends that the only

question properly before this Court on certiorari is whether

the Due Process Clause of the Fourteenth Amendment re-

quires the appointment of counsel for an indigent defendant

threatened with incarceration in a civil contempt action for

nonsupport.

iil.

An Indigent Defendant Threatened Witk Incarceration In

A Civil Contempt Action For Nonsupport Is Entitled To The

Appointment Of Counsel Under The Due Process Clause Of

The Fourteenth Amendment.

Petitioner also seeks certiorari to challenge the Tenth

Circuit’s holding that indigent defendants threatened with

‘imprisonment in a civil contempt action for nonsupport en-

joy the right to appointed counsel. This right necessarily

imposes the concomitant obligation to inform defendants of

the availability of appointed counsel if they are indigent.

Walker v. McLain, 768 F.2d at 1185. See In re Gault, 387

U.S. 1, 41-42 (1967); Miranda v. Arizona, 384 U.S. 436, 473

(1966). The resolution of this question must be undertaken

in light of this Court’s decisions and the decisions of the

lower courts concerning the right to counsel.

— om

A. The Decision Of The Tenth Circuit Is In Harmony

With The Decisions Of All Other Courts Of Appeals

That Have Considered The Question.

Among the inquiries to be made on a petition for cer-

tiorari is whether there is a conflict among the circuits on

the same matter. Rule 17.1(a), Supreme Court Rules. In

addition to the Tenth Circuit, three other Courts of Appeals

have considered the indigent’s right to appointed counsel in

a civil contempt proceeding for nonsupport.* Sevier v.

Turner, 742 F.2d 262 (6th Cir. 1984); Ridgeway v. Baker,

720 F.2d 1409 (5th Cir. 1983); Henkel v. Bradsaw, 483 F.2d

1386 (9th Cir. 1973). Each of these cases have stated a con-

clusion in harmony with the decision of the Tenth Circuit.

Thus, it is not surprising that petitioner has failed to ad-

dress the inquiry of a confiict among the circuits on the

question presented for review.”

Tn Henkel, an indigent contemnor who had been denied

appointed counsel in a civil nonsupport proceeding brought

a civil rights action in which the district court declared

+ Petitioner’s assertion that “{t}he only authority cited by respondent

for extending [the] right to court-appointed counsel to civil cases of this

type are two Federal District Court cases arising out of Ohio . . . as well

as a later Federal District Court case out of Michigan, . . .” is patently

false. Petition at 9. All relevant authority cited herein was presented by

respondent to the Tenth Circuit.

® Under Rule 17.1(a), Supreme Court Rutes, a further consideration

is whether the Court of Appeals decision is in conflict with the decision

of the state court of last resort. The Teath Circuit's decision cannot be

said to be in conflict with the decision of the Oklahoma Supreme Court,

because the Oklahoma Court did nox directly address or fully develop the

merits of respondent’s constitutional claim. See Appendix A to Petition.

a

that the indigent was entitled to appointed counsel if im-

prisonment might be the result of the contempt proceeding.

While the Ninth Circuit reversed on the basis of Younger

abstention principles, the Court of Appeals nevertheless

commented:

[W]e share the District Court’s view that Henkel, ab-

sent the representation of counsel, could not be sen-

tenced to jail in the contempt proceedings.

o* * *

The state trial judge, now cognizant of Argersinger,

will most assuredly know that if a lawyer is not ap-

pointed for Henkel’s representation, Henkel cannot be

confined even if found to have been contemptuous.

483 F.2d at 1388-89.

Electing to proceed by habeas corpus, the indigent pe-

titioner in Ridgeway successfully argued that he was con-

stitutionally entitled to appointed counsel where imprison-

ment may result from a civil contempt proceeding for non-

support. Noting that “[t]he right to counse] turns upon

whether deprivation of liberty may result from a proceed-

ing, not upon its characterization as ‘criminal’ or ‘civil’,”

the Fifth Circuit concluded that “[i]f . . . imprisonment,

by whatever process it is adjudicated, is the possible result

of a proceeding, the defendant who is threatened with jail

has the right to a lawyer.” 720 F.2d at 1413, 1415. Likewise,

on habeas corpus in Sevier, the Sixth Circuit had no diffi-

culty concluding that “[{s]ince Sevier was incarcerated for

sixteen days as a result of the civil contempt hearing, he

was entitled to have the assistance of counsel during that

proceeding [citations omitted].” 742 F.2d at 267.

In contexts other than nonsupport proceedings, the

Courts of Appeals are equally unanimous in concluding that

_— we

indigent civil contemnors are constitutionally entitled to

appointed counsel when subjected to imprisonment. See,

e.g., United States v. Bobart Travel Agency, 699 F.2d 618

(2d Cir. 1983) (failure to produce records under IRS sum-

mons); United States v. Anderson, 553 F.2d 1154 (8th Cir.

1977) (failure to produce records); In re Kilgo, 484 F.2d

1215 (4th Cir. 1973) (refusal to testify before grand jury).

See also In re DiBella, 518 F.2d 1154 (2d Cir. 1975). These

cases are not dissimilar from the civil contempt action for

nonsupport in that in each instance the contemnor pur-

portedly has the ability to free himself from imprisonment

simply by complying with the court order.* There is thus

no conflict whatsoever among the circuits on either the

question presented for review or on related questions. This

unanimity among the circuits militates strongly against the

grant of certiorari in this case.?

6 The indigent defendant in a nonsupport action, however, faces a

difficult Gordian Knot. Since compliance with the court order in a non-

support action involves the payment of money, the indigent defendant's

ability to free himself from imprisonment is merely illusory. Walker v.

McLain, 768 F.2d at 1184; Ridgeway v. Baker, 720 F.2d at 1413-14; Mc-

Nabb v. Osmundson, 315 N.W.2d 9, 11 (Iowa 1982).

7 The federal district courts are likewise unanimous in finding a due

process right to appointed counsel for the indigent defendant in a civil

contempt action for nonsupport Johnson v. Zurz, 596 FSupp. 39 (N.D.

Ohio 1984); Lake v. Speziale, 580 FSupp. 1318 (D.Conn. 1984); Cobb

v. Green, 574 FSupp. 256 (W.D. Mich. 1983); Mastin v. Fellerhoff, 526

FSupp. 969 (S.D. Ohio 1981); Young v. Whitworth, 522 FSupp. 759

(S.D. Ohio 1981).

ae

B. The Decision Of The Tenth Circuit Is Consistent With

The Applicable Decisions Of The United States Su-

preme Court.

In the landmark decision of Gideon v. Wainwright, 372

U.S. 335 (1963), this Court held that the Sixth Amend-

ment’s guarantee of the assistance of counsel was applicable

to the states as a matter of due process of law, and accord-

ingly concluded that the indigent felony defendant was

entitled to appointed counsel. This rule was extended to

encompass all criminal prosecutions wherein the accused

is subjected to imprisonment in Argersinger v. Hamlin, 407

U.S. 25 (1972). The cutting edge for this expanded right

to counsel was whether “an accused is deprived of his lib-

erty,” and not whether the offense be characterized as petty

or serious. 407 US. at 32.

While Gideon and Argersinger dealt primarily with the

Sixth Amendment, this Court has aiso had occasion to ad-

dress the question of whether the due process concept of

fundamental fairness required the appointment of counsel

for an indigent child in a juvenile delinquency proceeding.

In re Gault, 387 U.S. 1 (1967). In the historically civil de-

linquency proceeding, this Court eschewed the civil label

of convenience and held that:

|T}he Due Process Clause of the Fourteenth Amend-

ment requires that in respect of proceedings to deter-

mine delinquency which may result in commitment

to an institution in which the juvenile’s freedom is

curtailed, the child and his parents must be notified

... [that] if they are unable to afford counsel, that

counsel will be appointed to represent the child.

387 U.S. at 41 [Emphasis supplied].

—

In terms of the indigent defendant’s right to appointed

counsel, then, these cases reflect the Court’s increasing con-

cern and emphasis on the outcome of a proceeding, viz.,

loss of physical liberty, rather than on the label attached

to it as civil or criminal. Wherever the outcome results in

a loss of physical liberty, the trend is to impose the right

to counsel. See Vitek v. Jones, 445 U.S. 480, 496-97 (1980)

(plurality opinion).

This Court’s emphasis on the outcome of a proceeding

in defining the right to counsel has most recently been re-

iterated in Lassiter v. Department of Social Services, 452

U.S. 18 (1981). In Lassiter, this Court was called upon to

determine whether the ue Process Clause compelled the

appointment of counsel in a civil action for an indigent

who, while threatened with the loss of a fundamental lib-

erty, viz., parental rights, was not directly confronted with

the loss of physical liberty. Proceeding from “[t]he pre-

eminent generalization that .. . an indigent’s right to ap-

pointed counsel . . . has been recognized to exist only where

the litigant may lose his physical liberty, . . .” this Court

held that when personal freedom is not at stake the right

to counsel must be deterrnined on a case-by-case basis em-

ploying a two part due process balancing test. Lassiter, 452

U.S. at 25.

This test first involves a balancing of the three ele-

ments to be evaluated in deciding what process is due, as

outlined in Matthews v. Eldridge, 424 U.S. 319 (1976).

8 These elements are: (1) the private interests at stake; (2) the risk

that the procedures employed will lead to error, and the probable value of

additional safeguards; and (3) the government's interest, including the

fiscal and administrative burden the additional safeguards would impose.

a age

— ee

Then, the “net weight” of these Eldridge factors must be

set “in the scales against the presumption that there is a

right to appointed counsel only where the indigent, if he is

unsuccessful, may lose his personal freedom.” Lassiter, 452

U.S. at 27.

In adopting this case-by-case balancing test, however,

this Court did not retreat from, but rather reinforced, its

emphasis on the loss of physical liberty in defining the

right to counsel:

[I]t is the defenda%:’s interest in personal freedom,

and not simply t.. special Sixth and Fourteenth

Amendments right to counsel in criminal cases, which

triggers the right to appointed counsel... .

Lassiter, 452 U.S. at 25 [Emphasis supplied]. Clearly then,

when personal freedom hangs in the balance, the Lassiter

presumption against the appointment of counsel is inappli-

cable, irrespective of the civil nature of the nonsupport

contempt proceeding.® Walker v. McLain, 768 F.2d at 1183

n.1.

Looking to the Eldridge factors in the context of the

civil contempt proceeding for nonsupport, there is no dis-

pute that the guvernment possesses strong interests in see-

ing that minor children are supported and in preserving the

enforceability of its judicial decrees. Significantly, how-

ever, “[t]hese interests will not be hindered by the re-

® Respondent had argued in the Court of Appeals that where unfet-

tered personal freedom was at stake, a court need not employ the Eldridge

factors in evaluating the right to counsel, because the right was absolute.

See Lake v. Speziale, 580 F.Supp. at 1339; Mastin v. Feilerhoff, 526 F.

Supp. at 973. The Tenth Circuit disagreed, and held that the Eldridge

factors should be applied as in any other claim to due process of law.

Walker v. McLain, 768 F.2d at 1183 2.1.

idle

quirement [of appointed counsel].” Young v. Whitworth,

522 F.Supp. at 763. Accord, Walker v. McLain, 768 F.2d at

1184. Thus, only the government’s fiscal interest is impli-

cated in the Eldridge equation.

Petitioner asserts that the risk of error in a nonsupport

proceeding is low because such a proceeding “is normally

a simple bookkeeping matter. .. .” Petition at 14. Such

an assertion, however, presents an unduly simplistic view

of whether the failure to pay support was wilful. To be

sure, wilfulness in the context of a nonsupport proceeding

is a legal term of art — it does not possess the same mean-

ing as its common usage in the English language. The

factual and legal issues which permeate virtually every

nonsupport proceeding involving an indigent defendant are

clearly beyond the ken of the indigent unrepresented lay-

man, who is often uneducated or illiterate. Accordingly,

the Tenth Circuit correctly concluded that “[t]he issues in

a proceeding for wilful nonsupport are not so straightfor-

ward that counsel will not be of assistance in insuring the

accuracy and fairness of the proceeding.” Walker v. Mc-

Lain, 768 F.2d at 1184. Accord, Ridgeway v. Baker, 720 F.2d

at 1414.

The Eldridge risk factor cannot be viewed as a static

concept. As a defendant’s interest in the outcome of a pro-

ceeding increases, the degree of potential for error necessary

to trigger the claimed safeguard becomes correspondingly

less. What is at stake is the integrity of the fact-finding

process. When that process may lead to imprisonment, this

Court fo» more than fifty years has spoken with virtually

one voice about the heightened need for counsel to preserve

the integrity of that process. See Powell v. Alabama, 287

= =

US. 45, 69 (1932). Thus, when the interest at stake is per-

sonal freedom, “even a modest reduction in the potential

for error in the deprivation of that interest justifies the im-

position of appointed counsel.” Young v. Whitworth, 522

F.Supp. at 763.

The final Eldridge factor to be evaluated is the private

interest at stake. It is beyond cavil that “{t]he [respon-

dent’s] interest in this case is one of the most important

protected by our constitution — the interest in personal lib-

erty.” Walker v. McLain, 768 F.2d at 1183. Petitioner, how-

ever, seeks to denigrate the indigent contemnor’s liberty

interest in personal freedom by asserting that respondent

enjoyed only conditional liberty, and therefore his situation

is akin to the probationer or parolee in a revocation pro-

ceeding. See Gagnon v. Scarpelli, 411 U.S. 778 (1972);

Morrissey v. Brewer, 408 U.S. 471 (1972). This argument

rests on the oft-quoted cliché that the civil contemnor “has

the keys to his own prison” and may avoid incarceration

simply by complying with the support order or proving

his inability to do so.'° Appendix B to Petition at 12b.

Petitioner’s analysis, however, is specious.

As the Court of Appeals correctly concluded, respon-

dent’s liberty interest cannot be viewed as conditional, for

“fijf [respondent] is truly indigent, his liberty interest is

10 It is of no moment that the pro se indigent may attempt to prove

at trial that his failure to pay support was not wilful, and thus avoid in-

carceration. One's present ability to afford counsel may bear little relation-

ship to one’s past ability to make support payments, which is the factual

inquiry at the contempt hearing. See Cobk v. Green, 574 F.Supp. at 262

Moreover, as noted in the discussion of the Eldridge risk factor, sxpra, the

integrity of the fact-finding process is impugned in the absence of counsel.

=~

no more condiuonal than if he were serving a criminal

sentence; he does not have the keys to the prison door if

he cannot afford the price.” Walker v. McLain, 768 F.2d

at 1184. Accord, Ridgeway v. Baker, 720 F.2d at 1413-14;

McNabb v. Osmundson, 315 N.W.2d at 9.

Petitioner’s reliance on Gagnon and Morrissey to con-

fer no more than conditional liberty upon the respondent

is likewise flawed in that the posture of the civil contemnor

is distinctly different from that of the probationer and

parolee. Both the probationer and parolee have had judg-

ment and sentence imposed. Thus, unlike respondent, they

have already had a trial at which they enjoyed the assist-

ance of counsel to preserve the integrity of the fact-finding

process,!!

Clearly, one in respondent's position enjoys “the ab-

solute liberty to which every citizen is entitled, ...” Gag-

non v. Scarpelli, 411 U.S. at 781. Giving respondent's lib-

erty interest in personal freedom the “extreme weight” it

is due radically alters the Eldridge equation employed by

the district court and argued by petitioner. Young v. Whit-

worth, 552 F.Supp. at 763. Indeed, in balancing the Eldridge

factors, the Tenth Circuit properly concluded that:

While the state does have an interest in minimizing

the cost of [nonsuppert] proceedings, this interest in

11 Gagnon and Morrissey are also distinguishable in that revocation

proceedings are jiistorically informal with an eye toward rehabilitation of

the offender. See Ridgeway V. Baker, 720 F.2d at 1413 n4. On the other

hand, a civil contempt proceeding is cloaked with many of the formalities

of a criminal prosecution. See 21 OS. 1981 $1981. See also Whillock v.

W hillock, 550 P.2d 558 (Okla. 1976) (proof by clear and convincing

evidence required).

a

_—

monetary savings cannot outweigh the strong private

interest of the [respondent| and the substantial pro-

cedural fairness achieved by providing a lawyer for

the indigent defendant in a civil contempt proceeding

[citations omitted}.

768 F.2d at 1184.

It is thus evident that the Tenth Circuit evaluated the

Eldridge factors in a fashion entirely consistent with the

decisions of this Court regarding the right to counsel, be-

ginning with Powell and culminating in Lassiter. Certio-

rari, therefore, should be denied. See Rule 17.1(c), Su-

preme Court Rules.

rv.

The Questions Of Whether Respondent Was Indigent And

Whether His Failure To Pay Support Was Contemptueus Are

Not Material To The Determination Of Certiorari.

Although not specifically raised as questions for re-

view, petitioner has injected the issues of respondent’s in-

digency and the factual merits of the state court contempt

hearings. In so doing, petitioner has not made a fair pre-

sentation of the facts. These issues serve only to obfuscate

the proper inquiries as to whether certiorari should be

granted. See Rule 17, Supreme Court Rules. Indeed, the

district court properly noted that these issues were outside

the scope of a federal court’s inquiry on habeas corpus:

It is not this court’s function to determine whether

the original support order should be modified or to

determine whether [respondent] is indigent, or to de-

termine [respondent's] present ability to comply with

the support order . . . This court’s function in this

action is solely to determine whether [respondent]

atti

is being held in custody in violation of the Constitu-

tion, laws or treaties of the United States.

Appendix B to Petition at 14b. It is not the merits of the

state court contempt actions that respondent challenged;

rather, he attacked the process by which those issues were

adjudicated. Certainly, a court does not consider one’s guilt

or innocence in appointing counsel in a criminal prosecu-

tion.

Similarly, the issue of respondent’s indigency cannot

now be considered in deciding whether to grant certiorari.

Responaent was not denied counsel for lack of proof of his

indigency. Rather, the state court judge did not advise the

respondent of any right to appointed counsel based upon

that court’s view that no_such right existed in the law.

See Appendix B to Petition at 4b. Thus, even if respondent

had affirmatively demonstrated his inability to afford coun-

sel, none would have been appointed. Having imprisoned

Mr. Walker for ninety days, “the state cannot now be heard

to assert an entirely different reason for denying [Walker |

counsel.” Ridgeway v. Baker, 720 F.2d at 1412.

Moreover, respondent claimed not only a right to ap-

pointed counsel, but also the right to be advised of the

availability of appointed counsel, if indigent. This latter

right exists quite independently of respondent’s claimed

indigency. The state trial judge obviously “could not know

whether {Mr. Walker] was indigent unless [he] inquired

about the matter.” Sevier v. Turner, 742 F.2d at 266 n.4.

It is undisputed that the state court judge made no inquiry

into respondent’s indigency vis-a-vis his ability to employ

counsel.

~ a a

oie

The Court of Appeals, therefore, properly rejected pe-

tioner’s argument that the case should be remanded for

a determination of respondent’s indigency. Walker v. Mc-

Lain, 768 F.2d at 1185. See Miranda v. Arizona, 384 U.S.

at 473 n.43. This Court should likewise reject this argument

in deciding whether to grant certiorari.

CONCLUSION

The petition presents no issue warranting review by

this Court. Respondent, therefore, respectfully prays that

this Court deny the petition for certiorari.

Steven A. Novick

Legal Aid of Western Oklahoma

290i Classen Boulevard, Suite 110

Oklahoma City, Oklahoma 73106

(405) 557-0020

Attorney for Respondent

December, 1985

online

CERTIFICATE OF SERVICE

This is to certify that three (3) true and correct copies

of the Respondent’s Brief in Opposition were mailed this

day of December, 1985, postage prepaid, to: S. Paul

Richards, Assistant District Attorney, Pottawatomie County

Courthouse, Shawnee, Oklahoma 74801.

Steven A. Novick