Liming v. Damos

Therefore, petition, dismissed Muhammad’s appeals properly the court of affirm the court’s dismissal. and we affirmed.

Judgment Lundberg O’Connor, C.J., and Pfeifer, Stratton, O’Donnell, Lanzinger, Brown, JJ., and McGee concur. Cupp, Muhammad, pro

Mustafa se. County

Liming, Appellant, Damos; v. Athens Appellee. Support Agency, Child Damos, [Cite 2012-Ohio-4783.] 133 Ohio St.3d

(Nos. 2011-1170 May and 2011-1985 Submitted 2012.) 2012 Decided October J. Lanzinger, case, indigent parent, In this we must determine whether an whose previous hearing

sentence for civil at a for failure that he with his suspended comply child-support obligations was on condition a to at a on a motion to year, appointed subsequent hearing to impose suspended noncompliance the sentence due with the conditions. We subsequent hearing original hold that the retains the civil nature of the civil- and that therefore due does not that an contempt proceeding be with counsel. indigent parent provided appointed Background

I. Factual 8, Denday Michael' married Damos on Appellant, Liming, August 1993. 19, couple They January The had two children. were divorced on 2005. Al- to though Liming pay monthly support, stipulation had been ordered child was to Liming’s Chapter bankruptcy filing, support obligation entered due the would be during bankruptcy proceedings. lifted The divorce decree noted stipulated this deviation and named the mother legal custodian and residential parent. 30, 2007, April appellee, County On Athens Support Child Enforcement (“the

Agency agency”) filed a motion to modify Liming’s child-support obligation. Finding that the mother granted stay had been relief from the to bankruptcy determine and collect child support, magistrate recommended that the trial court to Liming begin payments order effective June the date on which stay the relief from was trial granted. adopted The court the magistrate’s decision and ordered to Liming pay support current child with an additional sum month to per arrearage. address the later, six months Approximately agency filed a motion for contempt

based on Liming’s comply failure to with the order. child-support magis- The 2008, hearing trate conducted October at which Liming present was and represented by attorney. magistrate The recommended that the court hold him Liming contempt days jail and sentence to 30 with the term suspended long as as he his full paid monthly current and arrearage payments and complied with other conditions for one year. The would be considered filed, as purged long compliance. objections remained No were and the trial court adopted magistrate’s decision on November 2008. Liming appeal. did not following September, agency filed a motion to impose sentence Liming’s comply failure with the seek-work program, report employment

changes agency, to the and to motion support. pending, While the was magistrate hearing objections conducted a on the mother’s agency’s administrative modification of proposed Liming’s monthly child-support obli- gation. couple present The divorced but neither was hearing, monthly that Liming’s recommended magistrate counsel. The

represented court adopted The trial be reduced. child-support arrearage payments filed. objections no were on after further June magistrate’s decision sanction, held a the trial court respect With 6}{¶ Liming’s hearing”) on 2010. (“purge June impose the motion to sentence him was represent public at the outset that a defender request order, Liming found after the November denied. The March, for the months child-support arrearage payments failed make amount October, pay any and also failed and December 2009 May, August, ten imposed The court his the first five months arrearage toward term, jail 20 on condition 30-day suspending remaining of the requirements year, Liming for one the conditions fully monthly child-support judgment entry, which had reduced June arrearage obligations. to and On relied on the Sixth Fourteenth Amendments appeal, Liming

{¶ 7} Constitution, I, the United Constitution and on the Ohio Article Sections States to the court refused argue right 10 and 16 to counsel was violated when jail a hearing a criminal in nature because appoint to counsel him at that was 10CA39,2011-Ohio-2726, Damos, v. 4th Dist. imposed. Liming sentence was No. however, of determined Appeals, 2011 WL 2225067. Fourth District Court the, in It then contempt hearing against Liming was civil nature. original hearing did Liming’s purge held that enforcement of sentence not convert Instead, court criminal-contempt appellate into a concluded proceeding. of the original contempt proceed- the civil character purge hearing retained therefore, and Constitution ing, the Sixth Amendment to United States Constitution, I, not apply. the Ohio Article Section 10 did had District then a due The Fourth addressed {¶ 8} 424 Eldridge, to test in v. applied counsel the three-factor Mathews (1976). 319, 893, Liming’s considering U.S. S.Ct. 47 L.Ed.2d 18 After 96 hearing, at the the low risk an erroneous liberty diminished decision, cost to government providing appointed and the categorical parties previously a rule that appeals declined create contempt hearing process right a a due represented by counsel at have at later purge hearings. found that decision conflicted the decision The Fourth District its A.R., N. Nos. Lee 6th Dist. Appeals the Sixth Court of Samantha v. District (Feb. 2001). E-00-037, 16, a recognized E-00-036 2001 WL 127343 We 1492, 2011-Ohio-6556, N.E.2d also 130 Ohio 956. We conflict exists. St.3d 1493, 2011-Ohio-6556, 958 St.3d accepted discretionary appeal. 130 Ohio N.E.2d 956. Legal Analysis

II.

A. v. Contempt Civil Criminal question The certified this case asks: “Is a a impose sentence for a

suspended failing proceed- civil or criminal 1492, 2011-Ohio-6556, ing?” 130 Ohio St.3d N.E.2d question 956. The is more than it complex appears. first In general, “[proceedings in generis They are sui the law.

bear some in equity, resemblance suits to criminal proceedings ordinary actions; civil but are they none of these.” Cincinnati v. Cincinnati Dist. Council 51, (1973). 197, 201-202, 35 Ohio St.2d 299 N.E.2d 686 Athough the distinction between civil and criminal contempt is often it murky, important. is See Union, Internatl. 821, 827, United Mine Workers Am. v. Bagwell, 512 U.S. 2552, (1994). S.Ct. 129 L.Ed.2d 642 A party subject to criminal contempt is many afforded of the same safeguards constitutional that a defendant Dixon, criminal trial enjoys. United States v. 509 U.S. 113 S.Ct. (1993). instance, For the burden of proof criminal contempt proof beyond is Co., reasonable doubt. v. Gompers Buck’s Stove & Range 418, 444, (1911). 31 S.Ct. 55 L.Ed. 797 case, More relevant in this person subject to criminal to counsel. Cooke United States, 517, 537, 69 L.Ed. 767 all Because involves type some of sanction or punishment, the distinction between civil and criminal contempt usually based on purpose Russo, be served by the sanction. State ex rel. Com v. 90 Ohio St.3d 740 N.E.2d 265 If the sanction is remedial or coercive and for the benefit of the complainant court, rather than the the contempt proceeding is usually 200, Inc., classified as civil. Brown v. Executive 64 Ohio St.2d (1980). Often, N.E.2d 610 contempt civil is by characterized conditional sanc- tions, i.e., jailed the contemnor is until he or she complies with the court order. hand, Id. On the other criminal contempt usually is by characterized uncondition- al prison terms or fines. Id. at 253-254. The purposes behind the sanction in criminal contempt primarily are to punish the contemnor and to vindicate the authority of the court. at Id. 254. To purpose determine the sentencing court, Kilbane, the entire record must be reviewed. State v. 61 Ohio St.2d (1980) (the 206, 400 N.E.2d 386 trial court’s sanction does not dispose of the issue contempt nature; rather, whether is civil or criminal in it is some evidence of sought what was accomplished). There is no that dispute Liming’s original contempt proceeding was

civil nature. Athough jail he was sentenced to 30 days failing support, child the trial court suspended that term and ordered that he could purge the contempt complied he with several year. conditions for one There that trial court’s sentence was meant to be

was no evidence the record punitive. contrary, Liming given opportunity purge To the contempt by making payments, payments and the benefitted the mother —facts contempt. agency alleged characteristic of civil This case arose because the that had failed to with those conditions. Liming comply purge with days’ contends the latest sanction of ten incarceration remaining days stayed on the condition that he with the child- hybrid contempt. order from June 2010 was of civil and criminal According Liming, part of the sanction that remained suspended nature, conditions was civil in but the unconditional purge ten-day sentence was and, therefore, criminal a right he had counsel. previously recognized contempt This court has that a sanction can be Brown, Brown,

both civil and criminal. at In 64 Ohio St.2d 416 N.E.2d 610. days jail, one of the contemnors was sentenced to ten seven of which could be purged. appeals The had held that the was criminal in nature and reversed the trial court judgment because the had used the clear-and- sentence, convincing standard. We reinstated a of the portion determining because ten-day seven of the sentence could be purged, portion was however, criminal, civil in days, nature. Id. 255. The unconditional three were Nevertheless, and the case was trial remanded court. Id. Brown is distinguishable, as it concerned initial than a proceeding rather two hearing. hearings are distinct. A purge is not a new but a proceeding conclusion of originating contempt hearing, purpose because its is to determine the contemnor has satisfied the conditions. If the unful- conditions are filled, the court is already entitled to enforce the sentence imposed, the sanction that could have been avoided compliance. respect contemnor’s With cases of support, an indigent parent already enjoyed a number of procedural safeguards by point. this For the initial example, contempt charge must be in writing, parent and the must be provided hearing. R.C. 2705.03. The notice of hearing must also be accompanied by summons includes notice that appear may assets, failure to result in arrest or an withholding order notice to counsel if the parent apply and of the need to days summons, counsel within three business of receipt of the notice that the court may grant refuse to to continuance obtain and notice of the 2705.031(C)(1) potential if penalties parent the is found in contempt. R.C. (4). through protections These for the parent help ensure the issue of is contempt correctly only decided. The issue left for the is purge hearing complied requirements. the contemnor with the purge ten-day Liming longer purge it is true that could no the So while 17} {¶ punishment. in this was not a new sentence or a new imposed sentence June by the time the keys” jailhouse year had “held the to the door for over Liming conducted, not with the November fully complied was but he had purge hearing court to trying order. It also that the trial was still appears the Liming’s compliance child-support obligations. Although with his obtain was ordered to serve ten of the 30 Liming order was more coercive because it nonetheless served as an incentive for previously suspended, the court had days. wished to avoid compliance Liming serving remaining future with Fourth and answer certified Accordingly, agree we District civil, that if the sanction is question by holding original contempt purge hearing proceeding. retains the civil nature of that Inability Pay Contempt

B. to Is a to Defense law, why In his another proposition Liming proposes second reason him should classified as criminal. He contempt proceeding against it impossible comply contends when is for an contemnor to with a order, nature, purge hearing is criminal and the contemnor is to trial court court-appointed representation. Liming argues entitled obligated pay determine whether he was able to as ordered reject failed to argument. do so. We this It long contempt proceeding, inability been held that in a is a pay subject defense and the burden of is on the proving inability party to the Cook, order. ex rel. v. State Cook 66 Ohio St. 64 N.E. 567 (1902). The trial court fixing paid party’s order the amount to be and a failure to with that order serve as facie prima contempt. evidence of Id. presumption ability pay just favor of arises this case not from the judgment entry the amount of child establishing support, Liming’s but also from Smith, object failure to to or from that order. appeal Bly See 94 Ohio St. Placing inability 113 N.E. 659 the burden of showing pay Cook, party charged is not unreasonable. As we explained financial ability pay peculiarly defendant’s condition and were within his “[t]he own not knowledge. They certainty could be known with the same to the complainant, easily produce nor could she evidence to maintain the proposition Feiock, 571; proof placed upon were the burden of her.” Id. at see also Hicks v. 624, 637-638, (placing the burden proof regarding ability constitutionally on the contemnor valid civil-contempt proceedings). sentence, impose suspended At the on the motion to any inability pay. questioned why agency

did not offer evidence of his He payment court for bankruptcy amount to the arrearage had not submitted his arrearage. acknowledged that he owed readily but he discharge, before his monthly to make the child- that he was unable made bare assertions Liming in by the trial court originally ordered arrearage payments and support in the handle the reduced amounts June he believed that he could but he said statements, however, satisfy his are insufficient judgment entry.1 His 722 F.2d Hayes, this issue. See United States v. proof burden of on (11th Cir.1984), Rylander, citing United States beyond must mere assertion (respondent go 75 L.Ed.2d 521 introducing on the evidence inability satisfy production point by his burden of claim). in of his support that the dire financial situation was so obvious Liming argues his in monthly obligation to reduce his he was

agency even moved record verifies support proceedings. Nothing bankruptcy throughout Moreover, Liming’s review. statement that he who initiated the administrative been Liming’s bankruptcy proceedings long is inaccurate. had bankruptcy was August original contempt occurred in before the discharge over. His by was counsel and to proceeding, proceeding Liming represented which evidence objections. Liming’s bankruptcy proceeding not file is not which he did in 2009 inability monthly child-support arrearage obligations of his his pay and 2010. court, trial agency Based on the evidence before the established of proof had not met his conditions. Because he had the burden trial court’s failure to produce inability pay,

and failed to evidence of hearing did not convert the expressly ability pay find he had Therefore, into a criminal to counsel under the Sixth proceeding. Constitution, and under the Amendment to the United States Constitution Ohio I, apply. Article Section 10 did not Right

C. Due Process to Counsel civil nature of the purge hearing determined that a retains the Having now must whether the Due Process original civil-contempt proceeding, we decide appointment of the Ohio and United States Constitutions Clauses for failure to child parents civil-contempt proceedings pay counsel for indigent addressed a similar issue. Supreme recently The United States Court support. — -, Rogers, Turner v. S.Ct. arrearage Liming argues monthly child-support that the reduction of the

1. To the extent that inability pay, we note obligations trial ordered in June 2010 is some evidence of that the during conducted nothing in of what occurred the administrative review that there is the record objections magistrate April agency January hearing 2010 or the on before Turner, In man who previously South Carolina had been held in five times for failure to to 12 sentenced months’ incarceration a new show-cause following arrearage. The trial court ordered that the father could himself of contempt and avoid the by having sentence a zero balance on or before his Supreme release. The Court identified the issue before it as “whether the Due Process Clause grants defendant, Turner, such as right state-appointed counsel at a civil contempt proceeding, may which lead to his incarceration.” Id. at 2515-2516. After cases in which it noting process found a due right counsel not,3 for civil proceedings existed2 and cases in which it Supreme did Court stated: “We believe those statements are best read as pointing out that the Court ’ previously had found a right ‘only incarceration, to counsel cases involving not sic.) that a right to counsel exists all such cases.” (Emphasis Id. at 2517. Although the loss of personal liberty through imprisonment is an consideration, important the Supreme Court nonetheless found that other factors outweigh private interest and held that

the Due Process Clause does not automatically require provision of counsel civil contempt proceedings to an indigent individual who is subject order, to a child support even if that individual faces incarceration (for up year). to a In particular, that Clause does not provision (to of counsel where opposing parent or other custodian owed) whom support funds are is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have (adequate mentioned importance notice of the of ability to fair pay, opportunity present, and to dispute, information, relevant and court findings). sic.)

(Emphasis Id. at 2520. The Turner dissent was even more emphatic that the Due Process Clause does not .provide right appointed counsel for indigent defendants facing incarceration in civil-contempt It proceedings. reasoned that Gault, 1, 1428, (1967) (juvenile 2. In re delinquency); 387 U.S. 87 S.Ct. 18 L.Ed.2d 527 Vitek v. Jones, 480, 1254, (1980) (transfer 445 U.S. 100 prison S.Ct. 63 L.Ed.2d 552 inmate to state ill); hospital mentally Dept. Cty., 18, for Lassiter v. Social Servs. Durham 101 U.S. S.Ct. (1981) (termination parental rights). 68 L.Ed.2d 640 Gagnon (1973) Scarpelli, revocation); (probation Henry, (summary court-martial). S.Ct. L.Ed.2d 556 Middendorf v. in all appointed created a Process Clause the Due detention, Amendment then the Sixth with the

proceedings potential * * * The Sixth unnecessary. counsel would that even men- Amendment, however, provision constitutional only is the says nothing about counsel; Due Process Clause tions the assistance to render general provision not read a Ordinarily, counsel. we do superfluous. one specific (Thomas, J., dissenting).

Id. at 2522 instructive, question precise it does not answer the Turner is While the initial us, rights with due process are not concerned before as we rather, Because due purge hearing. for the contempt proceeding, but will the Mathews v. El- fundamentally proceeding, employ a fair we requires a there is appeals the court of to determine dridge by test used civil in nature. The hearing to counsel for a purge constitutional (1) that will affected private include the interest be factors to be considered (2) action, through of that interest deprivation the risk of an erroneous the official procedural of additional or different probable used and the value procedures the interest, the fiscal or administra- government’s including safeguards, procedural requirements. or substitute providing tive burdens of additional Mathews, 335, 893, 47 L.Ed.2d 18. U.S. at 96 S.Ct. Turner, of personal in interest involved here is the loss private As Turner, however, Liming’s the father

liberty through imprisonment. Unlike his continued with the liberty already compliance was conditioned on personal as An counsel diminishes purge indigent parent’s conditions. liberty Dept. also diminishes. Lassiter v. Social Servs. personal his interest of (1981). This 101 S.Ct. 68 L.Ed.2d 640 Cty., Durham U.S. recognized by interest has been the United personal-liberty previously diminished when consider regard parolees probationers Court with Supreme States hearings. or applies parole- probation-revocation whether due ing Brewer, (1972); Gagnon Morrissey v. 92 S.Ct. Morrissey, In 36 L.Ed.2d Scarpelli, individual, an not of the observed, parole] deprives the court “Revocation [of entitled, only of the conditional every to which citizen is but liberty absolute at restrictions.” Id. special parole on observance liberty properly dependent continued freedom was conditioned Liming’s or probationer parolee, 480. Like compliance therefore, on his with his purge requirements; personal-liberty interest was a diminished one. The second Mathews factor procedure evaluates the risk that the will an

lead to erroneous decision. highly unlikely We believe this is for purge start, hearings. To the nature and scope purge are hearing straightforward and limited. The issue of contempt parent has failed —whether support already ordered—will have been at initial decided proceeding which the parent date, will have been given notice of the right to 2705.031(C). if indigent, and the potential penalties. R.C. At that initial contempt hearing, parent will have had opportunity to defend against the contempt charges object and otherwise to or appeal from a finding any purge conditions. Because the propriety or finding purge conditions is not in question at a purge hearing, only issue for the court to decide is whether parent complied case, those conditions. In this represented by an at attorney contempt hearing October 2008. objected Neither he nor his counsel to the magistrate’s decision or otherwise appealed the contempt only order. The issue that Liming prepared needed address hearing was whether he had complied with the conditions. The risk of the court’s reaching erroneous decision at hearing, therefore, was minimal. The final factor government’s Mathews is the interest and the fiscal or

administrative burdens of providing additional or procedural substitute require- ments. The government has a strong ensuring that parents financially their children resolving these matters as quickly as possible. Otherwise, the state may step Moreover, have to in and provide aid. requiring appoint the court to in every counsel case in which there is the potential that the contemnor will be incarcerated for violating purge conditions would add significant fiscal and administrative burdens on the state. In light of Liming’s interest, diminished personal-liberty the low

{¶ 32} risk decision, an erroneous strength interest, and the of the government’s we conclude that the factors weigh against requiring provide state to indigent parents with counsel civil-contempt purge hearings. We therefore hold that the Due Process Clauses of the Ohio and United States Constitutions do not an indigent parent has the right appointed counsel at a purge when hearing, that parent previously represented by counsel at the originating civil- contempt proceeding.

III. Conclusion Because a purge hearing does not amount to a contempt proceed- new {¶ 33} ing, we answer the question by certified that a holding hearing to determine whether a contemnor purged has himself of civil a civil contempt is proceeding. and United States Due Clauses of the Ohio hold Process also

We counsel indigent parent an guarantee not Constitutions do purge hearing. at a civil-contempt appeals affirmed. The court judgment

{¶ 34} affirmed.

Judgment JJ., concur. O’Connor, C.J., and McGee Lundberg and Cupp, Brown, Stratton, JJ., dissent. O’Donnell, Pfeifer J.,

O’Donnell, dissenting. indigent In we with the issue whether this are confronted appeal, {¶ 35} conditions incarceration for failure to with facing comply contemnor I a counsel. on of child nonpayment a order based a trial I believe that majority from the view of because respectfully dissent ability the contemnor’s hearing court must hold a determine incarceration. imposing for an before appoint counsel Background Factual and Procedural 11, 2008, Agency Enforcement County On the Athens Child September alleging against Liming, to R.C. contempt pursuant a motion 2705.031 filed January of the dated with an order court comply that he failed to regarding payment support. 15, 2008, hearing. a juvenile magistrate court held On October attorney represented a staff represented by at that time was

Liming issued decision recom- child-support-enforcement agency. magistrate him to 30 court find and sentence mending Liming and other payment certain Liming complied which jail, purged could to that hearing, in the recommendation. Subsequent conditions set forth Liming withdrew. recommendation, and objected magistrate’s parties None of the it on November adopted 15, 2009, jail sentence agency impose moved to On September in the set forth failed to with the conditions because had June the court held November 2008 order. On motion, The court denied court-appointed counsel. Liming requested jail 28, 2010, original 30-day ten the imposed days request, July on Liming comply 20 condition remaining but suspended sentence 3, 2010, child-support his monthly which decreased with an order entered June review to an administrative entry response issued that The court payments. by agency, but the downward modification set forth in entry had no bearing on the finding or the alleged inability of that contempt. 11, 2010, On an August attorney employed by the Ohio Public Defender

filed a notice of appeal the Fourth District Court of Appeals on behalf of Liming, as well affidavit of indigency and a motion appointment appellate counsel. In an entry 21, 2010, dated September juvenile granted motion, appointing counsel and ordering transcript 14, June prepared at state expense. appeal, Liming On relied on the Sixth and

{¶ Fourteenth 41} Amendments to the United States Constitution, Constitution and on the I, Ohio Article Sections 16, 10 and asserting he had a right counsel at the purge hearing. The court rejected of appeals the Sixth Amendment argument because hearing “retained the civil character of original contempt proceed- ing” and “did not constitute a criminal prosecution.” Damos, Liming v. 4th Dist. ¶ 10CA39, No. 2011-Ohio-2726, 2225067, 2011 WL at respect With to his argument involving Amendment, the Fourteenth the court of appeals applied process due analysis established in Mathews v. Eldridge, 96 S.Ct. (1976), 47 L.Ed.2d 18 and concluded that Liming did not have a procedural due process right to counsel.

Due Process “Freedom bodily from restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental Louisiana, action.” Foucha v. 71, 80, U.S. 112 S.Ct. 118 L.Ed.2d 437 (1992). A governmental action that infringes upon this freedom “constitutes a significant deprivation liberty that requires due protection.” Adding Texas, ton v. 99 S.Ct. To determine governmental whether a action satisfies the dictates of

procedural due process, the Supreme Court established an analysis Mathews v. Eldridge that requires the balancing (1) of three competing factors: private (2) affected governmental action, the risk of an erroneous deprivation of such interest through procedures used and probable value of additional or different procedural safeguards, and governmental inter- stake, est including the fiscal or administrative burdens of providing additional or substitute procedural requirements. 334-335, 424 U.S. at L.Ed.2d 18. Supreme recently Court applied

{¶ that analysis 44} to determine “wheth- er the Fourteenth Amendment’s Due Process Clause requires the State to (at provide counsel a civil-contempt hearing) to an indigent person potentially — sic.) Turner U.S. (Emphasis Rogers, with such incarceration.” faced case, In a South that -, not been Turner, had indigent parent an who court found Michael Carolina and sentenced counsel, child-support a order previous appointed “the him that Due Supreme The Court held to 12 months of incarceration. at civil of counsel automatically provision the not Process Clause does subject support a child who is to to an individual contempt proceedings sic), at but (emphasis id. order, if that individual faces incarceration” even alternative place have in the caveat that “the State must nonetheless attached incarcer- critical fundamentally a fair determination the assure procedures with the the is able to question, supporting parent ation-related whether order.” at 2512. Id. safeguards as for following examples The court the sufficient regarded process: of due purposes

(1) “ability pay” notice to the to a critical issue the defendant his (2) (or equivalent) of a form the elicit proceeding; use information; (3) for opportunity relevant financial an at the financial questions defendant to statements and about his respond status, form); (e.g., by his on the triggered responses those ability pay. the court defendant express finding by that the at 2519. Id. case, In the a motion for agency contempt pursuant instant filed statute, safeguards As required by

R.C. 2705.031. the summons contained Turner, “[njotice a accused has including right listed appointed that if must or court indigent, apply public the accused defender receipt counsel within three business after the summons.” R.C. 2705.031(C)(2). allows pursuant A to this statute is civil and proceeding nature, Due civil purge by payment arrearage. contemnor to its than in a contemnor with proceedings provide procedural protections “fewer case.” at criminal Turner in a turn on the civil proceeding to counsel does not The 47}

{¶ attached, but dictates procedure specific label rather on satisfies analysis starting of this process prescribed by point of due Mathews. Id. which it Liming qualified indigent, the court to determine whether required three factors set forth Assuming indigency, balancing competing did not do. compels Liming’s right conclude in Mathews me to that the violated it denied counsel. procedural process request due when his First, the private interest affected governmental action weighs heavily Here, favor of to counsel. stake Liming’s purge hearing freedom, personal consisted and the threatened loss of that n — n liberty through imprisonment Id., demanded due protection. -, 131 S.Ct. at 180 L.Ed.2d 452. Although Liming had a diminished liberty interest, if truly indigent, he did not “hold keys jailhouse to the door.” explained As by the Tenth Circuit Court of Appeals Walker v. McLain:

It is true that the defendant’s right counsel diminishes as his in personal interest liberty However, diminishes. petitioner’s liberty truly cannot be viewed as conditional. If petitioner is truly indigent, liberty interest is no more conditional than if he were serving sentence; a criminal he does not have keys prison door he cannot the price. The fact that he should not jailed have been if he afford truly indigent only highlights counsel, the need for for the assistance a lawyer would greatly have him in aided establishing his indigency and ensuring that he was not improperly incarcerated. The argument that the petitioner has keys jailhouse to the door does not apply to dimmish petitioner’s liberty interest. omitted.)

(Emphasis Id., (10th added and citation Cir.1985). 768 F.2d In the anof indigent parent, case the opportunity to purge a finding of contempt made pursuant to R.C. 2705.031 is illusory. For purposes of determin- ing counsel, a right to there is no real difference between an initial contempt hearing and a subsequent purge hearing, because both proceedings are part of a single contempt Further, action. the inability of an indigent parent to comply with the purge conditions of the contempt order renders imprisonment a substan- tial certainty, thereby virtually guaranteeing the loss of personal liberty. Thus, given the requirement in R.C. 2705.031 that an indigent contemnor provided with notice of to counsel when a contempt filed, action is the express acknowledgement by majority purge hearing “[a] is not a new contempt proceeding but a conclusion of the originating contempt hearing” highlights the fallacy even making this distinction. Regarding factor, the second contrary

{¶ to the 50} view of the majority, purge hearing carried with it high risk of an erroneous determination. The Supreme Court noted in Turner that “[g]iven the importance of the interest at stake, it is obviously important to assure accurate decision-making in respect — the key ‘ability Turner, to pay’ question.” U.S.-, 131 S.Ct. at L.Ed.2d 452. The need for accuracy is further underscored by the fact that “ability to comply marks a dividing line between civil and criminal contempt.”

Id., Feiock, citing Hicks v.

(1988), Indeed, fn. 7. as one court explained:

When an indigent litigant is forced to proceed at an ability-to-pay without a high there is risk of an erroneous determination and wrongful incarceration. seemingly However simple support enforce ment proceedings may be for a judge or lawyer, gathering documentary evidence, presenting testimony, marshalling legal arguments, and articu lating a defense probably are awesome and perhaps insuperable undertak ings to the uninitiated layperson. The task is that much more difficult when the indigent must defend himself after he has already been deprived his freedom. See, e.g., Walker [v. McLain,] 768 F.2d ^[1181] [(10th Cir.1985)] (“The issues a proceeding for wilful nonsupport are not so straightforward that counsel will not be of assistance in insuring the accuracy and fairness of the proceeding. This is particularly true where petitioner is indigent and is to attempting prove his indigency as a wilfulness”). defense to Council,

Pasqua v. 127,145, 186 N.J. 892 A.2d 663 case, In this indigency {¶ claimed 51} the purge bore the burden of proving the defense of inability pay. to The court denied his request for the appointment counsel, of the purpose of which is to aid in providing defense, that and did so without first determining Liming qualified as indigent. The failure of the court to make “an express finding” regarding ability to pay a deficiency constituted aof critical safeguard 2519; noted Turner. Id. at see (“the also id. at 2518-2519 critical question likely at concerns, issue these cases said, as we have the defendant’s ability to pay. That question is often closely related to the question of the indigence”). defendant’s In addition, within weeks of denying the request by Liming at the purge hearing appoint counsel, to him when the risk of the deprivation of liberty fruition, interest came to juvenile granted his motion for the appointment of appellate counsel based on his affidavit of indigency. The irreconcilable nature of these actions empha- sizes the risk factor associated with an erroneous deprivation of interests. I Lastly, concur in the assessment of the majority government an ensuring that parents financially support children, their although providing counsel to indigent parents increases the fiscal and adminis- state, trative burdens of the the interest government of the is not somehow undercut providing parents counsel to who have no ability fiscal to comply with the conditions to purge previous contempt order. determine juvenile of the court to on failure foregoing, Based of a safeguard. the absence critical Liming qualified indigent as marks it so when indigent, as the court determined

Assuming Liming qualified which having appoint- of denied him appellate only him counsel within weeks forth three factors set hearing, balancing competing at the purge ed counsel procedural process. was denied due compels me to conclude he in Mathews process. not the strict mandates of due Thus, in this case did meet procedure

Conclusion to contempt pay. of an action for for failure Ability pay is the essence as hearings action to determine well as A includes parent noncompli- of a incarceration due to contempt. right facing not of a order is dependent with the conditions ance Rather, is civil or criminal. specific hearing of a or whether the action nature counsel from the of incarcera- indigent possibility of an emanates parent indigent when the alleged tion for failure order to not ability pay. Although appoint- has no Turner does contemnor instances, Liming qualified indigent counsel in all as assuming ment of such factors in favors balancing competing the three Mathews purge hearing, at the to. express and the failure of the court make an appointment appoint upon finding indigency, as to his finding ability pay, process. violated his due procedural reasons, judgment For these I would reverse the the Fourth District 55}

{¶ juvenile the matter to the court for determination Appeals Court of and remand for the of counsel appointment to whether as Liming qualified finding upon indigency. J., opinion. in the foregoing concurs

Pfeifer, Defender, Kelly Mihocik, E. Public Young, Ohio Public Assistant Timothy Defender, appellant. Wiens, appellee.

Keith M.

Case Details

Case Name: Liming v. Damos

Court Name: Ohio Supreme Court

Date Published: Oct 24, 2012

Citation: 979 N.E.2d 297

Docket Number: 2011-1170 and 2011-1985

Court Abbreviation: Ohio