MD court: threat of incarceration makes right to counsel attach

In Chapman v. Black, 2020 Md. App. LEXIS 650 (2020), the defendant faced civil contempt for failure to pay child support. The notice of the hearing informed him that he could go to jail if he lost and that he had the right to counsel. The hearing was set before a magistrate, who lack the power to incarcerate people, but on the day of the hearing, the case was reassigned to a judge. The defendant argued he therefore had a right to counsel via representation by the Office of the Public Defender and asked for a continuance of the whole proceeding so that he could be appointed counsel. The Office of Child Support Enforcement (“The Office”) opposed the appointment and argued for the judge to only determine how much the defendant could pay and then order him to pay that amount before the next hearing, and at the next hearing the defendant could have a PD. The court decided to take this approach, and the defendant said he understood it (but never said he agreed to it). The defendant was found to be able to pay $300/mo and so had arrears of $5,595, and then held in contempt with a $251 purge amount (but not incarcerated). He appealed, and argued that under the Public Defender Act he was entitled to counsel since the hearing notice told him he was at risk of jail and since the substitution of a judge for the magistrate made that threat real. The Office responded that their petition did not mention incarceration and that incarceration did not come up at the hearing. The defendant responded that “the Office may not rely upon the fact that incarceration was not imposed at the end of the hearing as a post hoc rationalization for why he was not entitled to representation during the hearing.”

The Court of Special Appeals agreed with the defendant, noting that § 16-204(b)(1)(iv) of the Public Defender Act says a defendant is eligible for representation in any “proceeding in which confinement under a judicial commitment of an individual in a public or private institution may result”, that this protection stems from the Court of Appeals’ ruling in Rutherford v. Rutherford (establishing due process right to counsel in civil contempt cases), and that while the State did not say in its petition that it was seeking incarceration, it also did not say it was not seeking incarceration. Moreover, the Court of Special Appeals held that “Once Mr. Chapman's right to counsel was triggered by being brought before the circuit court on the contempt petition that was filed in this case, the judge could not satisfy his right to counsel by simply limiting herself to narrow findings and not discussing incarceration as a potential sanction.”