Right to counsel

Key_development Question_mark

Litigation, Civil Contempt in Family Court

In Hunt v. Moreland, 697 S.W.2d 326, 328-330 (Mo. Ct. App. 1985), the Eastern District held in a child support contempt proceeding that “ in the case of indirect contempt, civil or criminal, unless the trial judge predetermines the nature of the infraction is of insufficient gravity to warrant the imposition of imprisonment if the accused is found guilty, the unrepresented accused must be advised of his right to counsel and, absent a knowing and intelligent waiver thereof, be given adequate opportunity to obtain representation. If he be found indigent, counsel must be appointed before any critical stage of the contempt proceeding.” 


The Western District came to a similar conclusion in State ex rel. Family Support Division-Child Support Enforcement v. Lane, 313 S.W.3d 182, 187-88, 187 n.7 (Mo. Ct. App. 2010) (holding that notification to contemnor that he had right to attorney but not that he could have an appointed attorney if he was indigent was insufficient to satisfy due process and affirming that threat of "'actual imprisonment'" is an essential guidepost to assessing due process in such cases).


Then in Carothers v. Carothers, 337 S.W.3d 21, 25-26 (Mo. 2011), the Missouri Supreme Court relied entirely on Lane to hold that a trial court in a civil contempt case must either predetermine that there is no danger of imprisonment or advise the defendant of the right to be represented by counsel. The Carothers court, however, did not answer the question of appointment of counsel because the defendant in question was not indigent, although it observed that the courts of appeal in both the eastern and western district had found that counsel must be appointed.


These civil contempt cases are under question after 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"), with respect to cases within Turner's bailiwick, given that they relied entirely on the Fourteenth Amendment and the threat of imprisonment. However, see State v. Churchill, 454 S.W.3d 328 (Mo. 2015) (citing to Lane for proposition that “for purposes of triggering a defendant's right to counsel under the due process clause, the distinction between a 'criminal' and a 'civil' proceeding is irrelevant if the outcome of the civil proceeding is imprisonment”).


In Lane, after concluding that the trial court lacked the authority to appoint the public defender to represent the respondent, it concluded, "the circuit court has the inherent authority to appoint members of the bar to represent the defendant." The Lane court added that "[w]hen neither the state legislature nor the subject county has provided a mechanism for the defense of civil contempt actions, . . . the court's inherent power to appoint counsel appears to be the only mechanism by which an indigent defendant, facing actual imprisonment in a civil case, can be afforded his constitutionally guaranteed right to counsel. The court must use that power when the right to due process requires it."


A recent appellate court decision has clarified that a trial court does not have the statutory authority to appoint a public defender as counsel. State ex rel. Family Support Div.-Child Support Enforcement v. Lane, 313 S.W.3d 182, 187 (Mo. Ct. App. 2010) (citing State ex rel. Sterling v. Long, 719 S.W.2d 455, 455 (Mo. 1986)). Instead, to satisfy a defendant’s federal due process rights, the trial court has “the inherent authority to appoint members of the bar to represent the defendant,” which might include public defenders in their capacity as bar members.

Appointment of Counsel: categorical Qualified: yes