Right to counsel

Key_development Question_mark

Litigation, Civil Contempt in Family Court

In Johnson v. Johnson, the court of appeals reversed the order incarcerating a civil contemnor who had not been appointed counsel in a case involving the failure to pay child support. 721 P.2d 290 (Kan. Ct. App. 1986).  The court's reversal was entirely based on the Tenth Circuit's ruling in Walker v. McLain, 768 F.2d 1181 (10th Cir.1985), finding that "due process does require, at a minimum, that an indigent defendant threatened with incarceration for civil contempt for nonsupport, who can establish indigency under the normal standards for appointment of counsel in a criminal case, be appointed counsel to assist him in his defense."  Thus, its ruling appeared to be based entirely on the federal constitution.  Because of this, this case would likely be limited by the U.S. Supreme Court's ruling in Turner v. Rogers, 131 S.Ct. 2507 (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter is not “especially complex”), at least with respect to cases within Turner’s purview. 


One appellate court decision suggests that any right to counsel that does exist would likely apply only at the initial contempt hearing and not at later enforcement proceedings. See Kearns v. Kearns, No. 71,070, 1994 WL 17120918 (Kan. Ct. App. Nov. 10, 1994) (unpublished).






Note:  Pursuant to Kansas Supreme Court Rule 7.04(g), unpublished opinions are not binding and are "not favored for citation and may be cited only if the opinion: (i) has persuasive value with respect to a material issue not addressed in a published opinion of a Kansas appellate court; and (ii) would assist the court in disposition of the issue".  Any unpublished opinions included here are for illustrative purposes only.

Appointment of Counsel: categorical Qualified: yes