“For the organized bar, it is an article of faith…”

by Walter Olson on July 20, 2011

“… that a lawyer’s participation makes judicial proceedings more fair, not less fair.” So should we be shocked that the U.S. Supreme Court does not partake of this article of faith? [earlier on Turner v. Rogers and Civil Gideon] Related: Are we sure we want judges who are “great lawyers”? [Chiang, Prawfs, Greenfield]

{ 3 comments }

1 shg 07.20.11 at 8:46 am

Breyer’s decision doesn’t say that the proceeding would be less fair by inclusion of a lawyer, but that the payment of support to the needy family would be impaired if the husband had a lawyer before being incarcerated (and putting aside how jailing dad puts food on the table).

The point is that if the husband had a lawyer, the wife might not win, and then she wouldn’t get the support payments she wants (and, Breyer presumes, to which she’s entitled, despite the fact that in a proceeding with a lawyer, she wouldn’t prevail). If the point of these proceedings is to go through the motions before imprisoning the husband based on a predetermined conclusion that the wife always wins, then he’s absolutely right, a lawyer could definitely gum up the works.

It doesn’t sound nearly as stupid if you don’t think about it.

2 Hans 07.20.11 at 10:33 am

If criminal defendants get a lawyer before being jailed for a crime, why shouldn’t civil defendants get a lawyer when they, too, face jail, and are about to be jailed for a court-ordered child-support obligation they say they can’t afford to pay, in a civil-contempt proceeding?

Non-custodial parents are often ordered to pay far more in child support than they ever actually spent on their kids during the marriage. Poor non-custodial parents’ failure to pay in full often reflects inability to pay more than unwillingness. People should not go to jail because of inability to pay, as opposed to unwillingness to do so.

There’s no reason to give potential criminals more rights to counsel than people facing jail who are not even accused of crimes, like people accused only of civil contempt over child support.

Giving such civil defendants a lawyer to show that they should not be jailed saves taxpayers money by keeping people from being jailed unnecessarily. Such jailings may lead to family members of the jailed parent temporarily coming up on one or two occasions with the child support arrearage to get them freed (known in family law circles as “magic money”), but in the long run, excessive child support obligations will not be paid in full, even if they are jailed. (After a while, poor people’s relatives run out of money to ransom them from jail, and if the non-custodial parent can’t pay the excessive amount, even the custodial parent may give up on collecting it in full, recognizing the futility of collecting the full, excessive amount).

Giving people facing jail a lawyer, even when the proceeding is nominally civil in nature rather than criminal, is very different than the broad “Civil Gideon” notion pushed by the American Bar Association, which would give poor people a lawyer not only as a shield against jailing, but also as a sword in bringing lawsuits against other people, giving them the right to a lawyer to sue someone else. That broad “Civil Gideon” notion is stupid and pernicious, and the ABA’s amicus brief pushing it in the Turner v. Rogers case probably backfired.

3 cowboy bebop 07.24.11 at 12:21 pm

When I read the Turner decision my first thought was, “yes! there IS a God! And God don’t like ugly!”

Surprisingly, there was no comment on men’s rights websites over the decision, which I thought was a MAJOR f— y– to so called “family courts.”

They work for women only. They follow their own rules, and don’t give a rat’s rear end what the law is unless the defendant (males) have the resources (big $$$) to pay a competent attorney.

And getting the money to pay an attorney? Ha!!! AFTER the state takes 25% out of your check and you pay for food, clothing, shelter, and an automobile, most of your paycheck is gone. Get a second job? Sure, they’ll go after that, too…and leave you with no time or energy for your “biweekly weekend visit.”

Then you realize if I want to see my kid(s), I don’t have any funds left over to spend on them. Or if I have any funds left over, do I: 1. Save it; 2. Spend it on my time with my kids; or 3. Pursue a social life? I only get to choose one, there’s not enough for two.

Sooooooo the hapless non-custodial Dad gets a summons for being in contempt of court…even if he proves why he couldn’t make the payments on time he’s still in hot water, regardless. The plaintiff is represented for free by the state, since, “it’s in the best interest of the child.” The Dad is just SOL for an attorney, he’s lucky if he can afford to eat anything but ramen noodles and occasionally hamburger, let alone come up with 2-4k to hire a lawyer.

Sure, the Dad can petition the court if there’s a “change in circumstances.” But only for future payments. The state (Mom) can, and will, collect for back support, but you can’t make a change in circumstances retroactive. Huh?

So the state attorneys representing the mother(for free) in family court become judge, jury, and executioner, and the father can only stand mute before a kangaroo court that will sentence him to jail with no legal representation whatsover.

I was also heartened to see SCOTUS also addressed the issue that the state court didn’t even follow its own guidelines, and the dissenting opinion agreed.

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