Lead Opinion
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delivered the opinion of the Court.
South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so. We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that ensure a fundamentally fair determination of the critical incarceration-related question, whether thе supporting parent is able to comply with the support order.
I
A
South Carolina family courts enforce their child support orders in part through civil contempt proceedings. Each month the family court clerk reviews outstanding child support orders, identifies those in which the supporting parent has fallen more than five days behind, and sends that parent
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an order to “show cause” why he should not be held in contempt. S. C. Rule Family Ct. 24 (2011). The “show cause” order and attached affidavit refer to the relevant child support order, identify the amount of the arrearage, and set a date for a court hearing. At the hearing that parent may demonstrate that he is not in contempt, say, by showing that he is not able to make the required payments. See Moseley v. Mosier,
B
In June 2003 a South Carolina family court entered an order, which (as amended) required petitioner, Michael Turner, to pay $51.73 per week to respondent, Rebecca Rogers, to help support their child. (Rogers’ father, Larry Price, currently has custody of the child and is also a respondent before this Court.) Over the next three years, Turner repeatedly failed to pay the amount due and was held in contempt on five occasions. The first four times he was sentenced to 90 days’ imprisonment, but he ultimately paid the amount due (twice without being jailed, twice after spending two or three days in custody). The fifth time he did not pay but completed a 6-month sentence.
After his release in 2006 Turner remained in arrears. On March 27, 2006, the clerk issued a new “show
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3, 2008. Turner and Rogers were present, each without representation by counsel.
The hearing was brief. The court clerk said that Turner was $5,728.76 behind in his payments. The judge asked Turner if there was “anything you want to say.” Turner replied:
“Well, when I first got out, I got back on dope. I done meth, smoked pot and everything else, and I paid a little bit here and there. And, when I finally did get to working, I broke my back, back in September. I filed for disability and SSI. And, I didn’t get straightened out off the dope until I broke my back and laid up for two months. And, now I’m off the dope and everything. I just hope that you give me a chance. I don’t know what else to say. I mean, I know I done wrong, and I should have been paying and helping her, and I’m sorry. I mean, dope had a hold to me.” Apр. to Pet. for Cert. 17a.
The judge then said, “[o]kay,” and asked Rogers if she had anything to say. Ibid. After a brief discussion of federal benefits, the judge stated:
“If there’s nothing else, this will be the Order of the Court. I find the Defendant in willful contempt. I’m [going to] sentence him to twelve months in the Oconee County Detention Center. He may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release. I’ve also placed a hen on any SSI or other benefits.” Id., at 18a.
The judge added that Turner would not receive good-time or work credits, but “[i]f you’ve got a job, I’ll make you eligible for work release.” Ibid. When Turner asked why he could not receive good-time or work credits, the judge said, “[b]ecause that’s my ruling.” Ibid.
The court made no express finding concerning Turner’s ability to pay his arrearage (though Turner’s wife had voluntarily
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submitted a copy of Turner’s application for disability benefits, cf. post, at 455, n. 3,
“Defendant (was) (was not) gainfully employed and/or (had) (did not have) the ability to make these support payments when due.” Id., at 60a, 61a.
But the judge left this statement as is without indicating whether Turner was able to make support payments.
C
While serving his 12-month sentence, Turner, with the help of pro bono counsel, appealed. He claimed that the Federal Constitution entitled him to counsel at his contempt hearing. The South Carolina Supreme Court decided Turner’s appeal after he had completed his sentence. And it rejected his “right to counsel” claim. The court pointed out that civil contempt differs significantly from criminal contempt. The former does not require all the “constitutional safeguards” applicable in criminal proceedings.
Turner sought certiorari. In light of differences among state courts (and some federal courts) on the applicability of a “right to counsel” in civil contempt proceedings enforcing child support orders, we granted the writ. Compare, e.g., Pasqua v. Council,
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facing imprisonment in a child support civil contempt proceeding), with Rodriguez v. Eighth Judicial Dist. Ct., County of Clark,
II
Respondents argue that this case is moot. See Massachusetts v. Mellon,
The short, conclusive answer to respondents’ mootness claim, however, is that this case is not moot because it falls within a special category of disputes that are “capable of repetition” while “evading review.” Southern Pacific Terminal Co. v. ICC,
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to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonаble expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford,
Our precedent makes clear that the “challenged action,” Turner’s imprisonment for up to 12 months, is “in its duration too short to be fully litigated” through the state courts (and arrive here) prior to its “expiration.” See, e.g., First Nat. Bank of Boston v. Bellotti,
Moreover, the underlying facts make this case unlike DeFunis v. Odegaard,
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from that conduct could bring their own lawsuits). Here petitioner himself is likely to suffer future imprisonment.
St. Pierre was moot because the petitioner (a witness held in contempt and sentenced to five months’ imprisonment) had failed to “apply to this Court for a stay” of the federal-court order imposing imprisonment.
Ill
A
We must decide whether the Due Process Clause grants an indigent defendant, such as Turner, a right to state-appointed counsel at a civil contempt proceeding, which may lead to his incarceration. This Court’s precedents provide no definitive answer to that question. This Court has long held that the Sixth Amendment grants an indigent defendant the right to state-appointed counsel in a criminal case. Gideon v. Wainwright,
But the Sixth Amendment does not govern civil cases. Civil contempt differs from criminal contempt in that it seeks only to “coerc[e] the defendant to do” what a court had previously ordered him to do. Gompers v. Bucks Stove &
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Range Co.,
Consequently, the Court has made clear (in a case not involving the right to counsel) that, where civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case. Id., at 637-641,
This Court has decided only a handful of cases that more directly concern a right to counsel in civil matters. And the application of those decisions to the present case is not clear. On the one hand, the Court has held that the Fourteenth Amendment requires the State to pay for representation by counsel in a civil “juvenile delinquency” proceeding (which could lead to incarceration). In re Gault,
“pre-eminent generalization that emerges from this Court’s precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.” Id., at 25,101 S. Ct. 2153 ,68 L. Ed. 2d 640 .
And the Court then drew from these precedents “the presumption that an indigent litigant has a right to appointed
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counsel only when, if he loses, he may be deprived of his physical liberty.” Id., at 26-27,
On the other hand, the Court has held that a criminal offender facing revocation of probation and imprisonment does not ordinаrily have a right to counsel at a probation revocation hearing. Gagnon v. Scarpelli,
B
Civil contempt proceedings in child support cases constitute one part of a highly complex system designed to assure a noncustodial parent’s regular payment of funds typically necessary for the supрort of his children. Often the family receives welfare support from a state-administered federal program, and the State then seeks reimbursement from the noncustodial parent. See 42 U.S.C. §§ 608(a)(3) (2006 ed., Supp. III), 656(a)(1) (2006 ed.); S. C. Code Ann. §§ 43-5-65(a)(l), (2) (2010 Cum. Supp.). Other times the custodial parent (often the mother, but sometimes the father, a grandparent, or another person with custody) does not receive government benefits and is entitled to receive the support payments herself.
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The Federal Government has created an elaborate procedural mechanism designed to help both the government and custodial parents to secure the payments to which they are entitled. See generally Blessing v. Freestone,
We here consider аn indigent’s right to paid counsel at such a contempt proceeding. It is a civil proceeding. And we consequently determine the “specific dictates of due process” by examining the “distinct factors” that this Court has previously found useful in deciding what specific safeguards the Constitution’s Due Process Clause requires in order to make a civil proceeding fundamentally fair.
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safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].” Ibid. See also Lassiter,
The “private interest that will be affected” argues strongly for the right to counsel that Turner advocates. That interest consists of an indigent defendant’s loss of personal liberty through imprisonment. The interest in securing that freedom, the freedom “from bodily restraint,” lies “at the core of the liberty protected by the Due Process Clause.” Foucha v. Louisiana,
Given the importance of the interest at stake, it is obviously important to ensure accurate decisionmaking in respect to the key “ability to pay” question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt, Hicks,
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Clerk of Court’s case file); id., at 23 (“[R]e-search suggests that many obligors who do not have reported quarterly wages have relatively limited resources”); Patterson, Civil Contempt and the Indigent Child Support Obligor: The Silent Return of Debtor’s Prison, 18 Cornell J. L. & Pub. Pol’y 95, 117 (2008). See also, e.g., McBride v. McBride,
On the other hand, the Due Process Clаuse does not always require the provision of counsel in civil proceedings where incarceration is threatened. See Gagnon,
Doing so, we find three related considerations that, when taken together, argue strongly against the Due Process Clause requiring the State to provide indigents with counsel in every proceeding of the kind before us.
First, the critical question likely at issue in these cases concerns, as we have said, the defendant’s ability to pay. That question is often closely related to the question of the defendant’s indigence. But when the right procedures are in place, indigence can be a question that in many—but not all—cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel, even in a criminal сase. Federal law, for example, requires a criminal defendant to provide information showing that he is indigent, and therefore entitled to state-funded counsel, before he can receive that assistance. See 18 U.S.C. § 3006A(b).
Second, sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel.
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See Dept. of Health and Human Services, Office of Child Support Enforcement, Understanding Child Support Debt: A Guide to Exploring Child Support Debt in Your State 5, 6 (2004) (51% of nationwide arrears, and 58% in South Carolina, are not owed to the government). The custodial parent, perhaps a woman with custody of one or more children, may be relatively poor, unemployed, and unable to afford counsel. Yet she may have encouraged the court to enforce its order through contempt. Cf. Tr. Contempt Proceedings (Sept. 14, 2005), App. 44a-45a (Rogers asks court, in light of pattern of nоnpayment, to confine Turner). She may be able to provide the court with significant information. Cf. id., at 41a-43a (Rogers describes where Turner lived and worked). And the proceeding is ultimately for her benefit.
A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would “alter significantly the nature of the proceeding.” Gagnon, supra, at 787,
Third, as the Solicitor General points out, there is available a set of “substitute procedural safeguards,” Mathews,
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the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay. See Tr. of Oral Arg. 26-27; Brief for United States as Amicus Curiae 23-25. In presenting these alternatives, the Government draws upon considerable experience in helping to manage statutorily mandated federal-state efforts to enforce child support orders. See supra, at 444,
While recognizing the strength of Turner’s arguments, we ultimately believe that the three considerations we have just discussed must carry the day. In our view, a categorical right to counsel in proceedings of the kind before us would carry with it disadvantages (in the form of unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority over the alternatives that we have mentioned. We consequently hold that the Due Process Clause does not automatically require the provision оf counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).
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We do not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody. See supra, at 443,
IV
The record indicates that Turner received neither counsel nor the ben-
We vacate the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
Dissenting Opinion
SEPARATE OPINION
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with whom Justice Scalia joins, and with whom The Chief Justice and Justice Alito join as to Parts I-B and II, dissenting.
The Due Process Clause of the Fourteenth Amendment does not provide a right to appointed counsel for indigent defendants facing incarceration in civil contempt proceedings. Therefore, I would affirm. Although thе Court agrees that appointed counsel was not required in this case, it nevertheless vacates the judgment of the South Carolina Supreme Court on a different ground, which the parties have never raised. Solely at the invitation of the United States as amicus curiae, the majority decides that Turner’s contempt proceeding violated due process because it did not include “alternative procedural safeguards.” Ante, at 448,
I
The only question raised in this case is whether the Due Process Clause of the Fourteenth Amendment creates a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings. It does not.
A
Under an original understanding of the Constitution, there is no basis for concluding that the guarantee of due process secures a right to appointed counsel in civil contempt proceedings. It certаinly does not do so to the extent that the Due Process Clause requires “ ‘that our Government must proceed according to the “law of the land”—that is, according to written constitutional and statutory provisions.’ ” Hamdi v. Rumsfeld,
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(Black, J., dissenting)). No one contends that South Carolina law entitles Turner to appointed counsel. Nor does any federal statute or constitutional provision so provide. Although the Sixth Amendment secures a right to “the Assistance of Counsel,” it does not apply here because civil contempt proceedings are not “crimi
Appointed counsel is also not required in civil contempt procеedings under a somewhat broader reading of the Due Process Clause, which takes it to approve “ ‘[a] process of law, which is not otherwise forbidden, . . . [that] can show the sanction of settled usage.’ ” Weiss v. United States,
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B
Even under the Court’s modern interpretation of the Constitution, the Due Process Clause does not provide a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings. Such a reading would render the Sixth Amendment right to counsel—as it is currently understood—superfluous. Moreover, it appears that even cases applying the Court’s modern interpretation of due process have not understood it to categorically require appointed counsel in circumstances outside those otherwise covered by the Sixth Amendment.
1
Under the Court’s current jurisprudence, the Sixth Amendment entitles indigent defendants to appointed counsel in felony cases and other criminal cases resulting in a sentence of imprisonment. See Gideon v. Wainwright,
But if the Due Process Clause created a right to appointed counsel in all proceedings with the potential for detention, then the Sixth Amendment right to appointed counsel would
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be unnecessary. Under Turner’s theory, every instance in which the Sixth Amendment guarantees a right to appointed counsel is covered also by the Due Process Clause. The Sixth Amendment, however, is the only constitutional provision that even mentions the assistance of counsel; the Due Process Clause says nothing about counsel. Ordinarily, we do not read a general provision to render a specific one superfluous. Cf. Morales v. Trans World Airlines, Inc.,
2
Moreover, contrary to Turner’s assertions, the holdings in this Court’s due process decisions regarding the right to counsel are actually quite narrow. The Court has never found in the Due Process Clause a categorical right to appointed counsel outside of criminal prosecutions or proceedings “functionally akin to a criminal trial.” Gagnon v.
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Scarpelli,
After countless factors weighed, mores evaluated, and practices surveyed, the Court has not determined that due process principles of fundamental fairness categorically require counsel in any context outside criminal proceedings. See, e.g., Lassiter v. Department of Social Servs. of Durham Cty.,
Despite language in its opinions that suggests it could find otherwise, the Court’s consistent judgment has been that
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fundamental fairness does not categorically require appointed counsel in any context outside of criminal proceedings. The majority is correct, therefore, that the Court’s precedent does not require appointed counsel in the absence of a deprivation of liberty. Ibid. But a more complete description оf this Court’s cases is that even when liberty is at stake, the Court has required appointed counsel in a category of cases only where it would have found the Sixth Amendment required it—in criminal prosecutions.
II
The majority agrees that the Constitution does not entitle Turner to appointed counsel. But at the invitation of the Federal Government as amicus curiae, the majority holds that his contempt hearing violated the Due Process Clause for an entirely different reason, which the parties have never raised: The family court’s procedures “were inadequate to ensure an accurate determination of [Turner’s] present ability to pay.” Brief for United States as Amicus Curiae 19 (capitalization and boldface type deleted); see ante, at 447-449,
There are good reasons not to consider new issues raised for the first and only time in an amicus brief. As here, the new issue may be outside the question presented.
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“the right to counsel”). As here, the new issue may not have been addressed by, or even presented to, the state court. See
Accordingly, it is the wise and settled general practice of this Court not to consider an issue in the first instance, much less one raised only by an amicus. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”); Adarand Constructors, Inc. v. Mineta,
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either of the parties here or below” and was outside the grant of certiorari). This is doubly true when we review the decision of a state court and triply so when the new issue is a constitutional matter. See McGoldrick v. Compagnie Generale Transatlantique,
The majority errs in moving beyond the question that was litigated below, decided by the state courts, petitioned
It should cоme as no surprise that the majority confines its analysis of the Federal Government’s new issue to acknowledging the Government’s “considerable experience” in the field of child support enforcement and then adopting the Government’s suggestions in toto. See ante, at 447-448,
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efforts may give the Government a valuable perspective,
Ill
For the reasons explained in the previous two sections, I would not engage in the majority’s balancing analysis. But there is yet another reason not to undertake the Mathews v. Eldridge balancing test here.
When fathers fail in their duty to pay child support, children suffer. See Cancian, Meyer, & Han, Child Support: Responsible Fatherhood and the Quid Pro Quo, 635 Annals Am. Acad. Pol. & Soc. Sci. 140, 153 (2011) (finding that child support plays an important role in reducing child poverty in single-parent homes); cf. Sorensen & Zibman, Getting To Know Poor Fathers Who Do Not Pay Child Support, 75 Soc. Serv. Rev. 420, 423 (2001) (finding that children whose fathers reside apart from them are 54 percent more likely to live in poverty than their fathers). Nonpayment or inadequate payment can press children and mothers into poverty. M. Garrison, The Goals and Limits of Child Support Policy, in Child Support: The Next Frontier 16 (J. Oldham & M. Melli eds. 2000); see also Dept, of Commerce, Census Bureau,
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T. Grail,
The interests of children and mothers who depend on child support are notoriously difficult to protect. See, e.g., Hicks v. Feiock,
That some fathers subject to a child support agreement report little or no income “does not mean they do not have the ability to pay any child support.” Dept, of Health and Human Services, E. Sorensen, L. Sousa, & S. Schaner, Assessing Child Support Arrears in Nine Large States and the Nation 22 (2007) (prepared by The Urban Institute) (hereinafter Assessing Arrears). Rather, many “deadbeat dads”
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to job, become self-employed, work under the table, or engage in illegal activity.
Because of the difficulties in collecting payment through traditional enforcement mechanisms, many States also use civil contempt proceedings to coerce “deadbeats” into paying what they owe. The States that use civil contempt with the threat of detention find it a “highly effective” tool for collecting child support when nothing else works. Compendium of Responses Collected by the U. S. Dept. of Health and Human Services Office of Child Support Enforcement (Dec. 28, 2010), reprinted in App. to Brief for Sen. DeMint et al. as Amici Curiae 7a; see id., at 3a, 9a. For example, Virginia, which uses civil contempt as “a last resort,” reports that in 2010 “deadbeats” paid approximately $13 million “either before a court hearing to avoid a contempt finding or after a court hearing to purge the contempt finding.”Id., at 13a-14a. Other States
This case illustrates the point. After the family court imposed Turner’s weekly support obligation in June 2003, he made no payments until the court held him in contempt three months later, whereupon he paid over $1,000 to avoid confinement. App. 17a-18a, 131a. Three more times, Turner
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refused to pay until the family court held him in contempt—then paid in short order. Id., at 23a-25a, 31a-34a, 125a-126a, 129a-130a.
Although I think that the majority’s analytical framework does not account for the interests that children and mothers have in effective and flexible methods to secure payment, I do not pass on the wisdom of the majority’s preferred procedures. Nor do I address the wisdom of the State’s decision to use certain methods of enforcement. Whether “deadbeat dads” should be threatened with incarceration is a policy judgment for state and federal lawmakers, as is the entire question of government involvement in the area of child support. See Elrod & Dale, Paradigm Shifts and Pendulum Swings in Child Custody, 42 Fam. L. Q. 381, 382 (2008) (observing the “federalization of many areas of family law” (internal quotation marks omitted)). This and other repercussions of the shift away from the nuclear family are ultimately the business of the policymak-ing branches. See, e.g., D. Popenoe, Family in Decline in America, reprinted in War Over the Family 3, 4 (2005) (discussing “four major social trends” that emerged in the 1960’s “to signal a widespread ‘flight’ ” from the “nuclear family”); Krause, Child Support Reassessed, 24 Fam. L. Q. 1, 16 (1990) (“Easy-come, easy-go marriage and casual cohabitation and procreation are on a collision course with the economic and social needs of children”); M. Boumil & J. Friedman, Deadbeat Dads 23-24 (1996) (“Many [children of deadbeat dads] are born out of wedlock .... Others have lost a parent to divorce at such a young age that they have little conscious memory of it”).
I would affirm the judgment of the South Carolina Supreme Court because the Due Process Clause does not provide a right to appointed counsel in civil contempt hearings that may lead to incarceration. As that is the only issue properly before the Court, I respectfully dissent.
Notes
. I agree with the Court that this case is not moot because the challenged action is likely to recur yet is so brief that it otherwise evades our review. Ante, at 439-441,
. “Criminal contempt is a crime in the ordinary sense’’; therefore, criminal contemners are entitled to “the protections that the Constitution requires of such criminal proceedings,’’ including the right to counsel. Mine Workers v. Bagwell,
. Indeed, the new question is not one that would even merit certiorari. See this Court’s Rule 10. Because the family court received a form detailing Turner’s finances and the judge could not hold Turner in contempt without concluding that he could pay, the due process question that the
. See, e.g., Deadbeat Parents Punishment Act of 1998, 112 Stat. 618; Child Support Recovery Act of 1992, 106 Stat. 3403; Child Support Enforcement Amendments of 1984, 98 Stat. 1305; Social Services Amendments of 1974, 88 Stat. 2337.
. See Deadbeat Parents Punishment Act of 1998, 112 Stat. 618 (referring to parents who “willfully fai[l] to pay a support obligation’’ as “[d]eadbeat [p]arents’’).
. In this case, Turner switched between eight different jobs in three years, which made wage withholding difficult. App. 12a, 18a, 24a, 47a, 53a, 136a-139a. Most recently, Turner sold drugs in 2009 and 2010 but paid not a penny in child support during those years. Id.., at 105a-111a; App. to Brief for Respondents 16a, 21a-24a, 29a-32a, 37a-54a.