Right to counsel

Relying on the due process clauses of both the state and federal constitutions, the Alaska Supreme Court ruled that indigent persons facing with nonsupport civil contempt proceedings are entitled to court-appointed counsel. Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974).  The Court based its rationale on the fact that there is a right to a jury trial in contempt proceedings, Id. (citing Johansen v. State, 491 P.2d 759 [Alaska 1971]), and “[i]f there is no accompanying right to counsel, the right to trial by jury becomes meaningless.” Id. (quoting Argersinger v. Hamlin, 407 U.S. 25, 45–46 [1972] [Powell, J., concurring]).  In Otton, the defendant was involved in a civil contempt proceeding for nonpayment of child support. Id.  There is a very real threat of incarceration in these cases, which more closely relates to penal proceedings. Id.  According to the Court, “One facing a possible deprivation of liberty must be afforded all of the fundamental constitutional rights guaranteed by the federal and state constitutions.” Id.  The Court also concluded that there was sufficient state action in a contempt proceeding initiated by a private party.[1]

It is unclear what effect Turner v. Rogers would have on Otton. 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”).  The question might be whether Otton would be considered to have an independent state constitutional ground.  The Otton Court repeatedly referred to the state and federal constitution in the same breath (e.g., “We have consistently held that one facing a possible deprivation of liberty must be afforded all of the fundamental constitutional rights guaranteed by the federal and state constitutions.”), which makes it difficult to tell. 525 P.2d at 539.