Right to counsel

Key_development Question_mark

Litigation, Civil Contempt in Family Court

The Wisconsin Supreme Court has held that individuals are entitled to appointed counsel in a remedial contempt proceeding “where the threat to liberty is real,” and when the state is a party to the action.  State v. Pultz, 556 N.W.2d 708, 715 (Wis. 1996) (indigent individual entitled to appointed counsel “when an arm of government brings a motion for a remedial contempt hearing against an individual, and that person's liberty is threatened”).  Pultz confirmed its pre-Lassiter holding from Ferris v. State, 249 N.W.2d 789, 791 (Wis. 1977) (finding right to counsel in contempt proceeding and holding that, “absent a knowing and intelligent waiver of counsel,” defendant must be  advised of right to counsel prior to contempt hearing), and rejected the state’s contention that Lassiter had negated Ferris as well as the state’s invitation to adopt a case-by-case test, noting that “an indigent defendant may not even ‘have the keys’ if he is not presently able to comply with the forfeiture requirement.”  The court did not state which constitution it was addressing, although it said the litigant was arguing that “under decisions of both the United States Supreme Court and this court, indigent civil litigants are entitled to the assistance of appointed counsel when they face the prospect of incarceration.” 


Note that the holding in Pultz was specifically premised on “an arm of government bring[ing] a motion for remedial contempt,” which is distinguishable from cases involving civil contempt proceedings related to matters initiated by private litigants.  See, e.g., Turner v. Rogers, 564 U.S. 431, 448 (2011) (Fourteenth Amendment “does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual subject to a child support order, even if that individual faces incarceration,” particularly where “the opposing parent … is not represented by counsel and the State provides alternative procedural safeguards[.]”) (emphasis in original).

Appointment of Counsel: categorical Qualified: no