# Opposition Brief — McLain v. Walker

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1068%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 474 U.S. 1061

## Text

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
--

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1068%3A3. Public record. Not legal advice.