The Sixth Amendment to the U.S. Constitution provides that in a criminal trial the accused has the right to the assistance of a lawyer. And we all know from listening to the Miranda warnings on TV cop shows that if the accused can’t afford a lawyer, one will be appointed for that person at state expense. But what about cases that aren’t criminal cases? Is there ever a right to an attorney there?

The U.S. Supreme Court recently tackled this question in an interesting context — a civil contempt hearing involving the nonpayment of child support. The result was a 5-4 decision authored by Justice Stephen Breyer. The case is Turner v. Rogers.

In June 2003, Michael Turner was ordered to pay $51.73 a week to Rebecca Rogers for the support of their child. Over the next three years, he repeatedly failed to do so. He was held in contempt of court five times. The first four times he was sentenced to 90 days in jail, but he usually paid what was owed, either without going to jail at all or after a few days in jail. The fifth time he did not pay and served the full six months of his jail sentence. When he got out, he still owed back support. So another civil contempt hearing was set for January 2008. Turner and Rogers were both there. Neither had a lawyer. Turner was found in contempt of court, and sentenced to one year in jail. The judge made no determination about whether Turner had the ability to pay, although the judge is supposed to do so. This proved to be highly significant.

While he was in jail, Turner filed an appeal arguing that his contempt hearing violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution because he was not provided appointed counsel at that hearing. After the South Carolina Supreme Court rejected this argument, the U.S. Supreme Court took his case.

Civil contempt proceedings are one way in which many states have chosen to collect child support payments from non-complying parents. Sometimes the payments are owed to the custodial parent; other times payments are due to the government as reimbursement for funds it has paid to the custodial parent. In the former, the parent sues the non-paying parent directly. In the latter, the government brings the action. Turner’s case involved the first kind of proceeding — one brought directly by the mother of his child, not by the state.

Civil contempt is different from criminal contempt. A person can be jailed in either kind of contempt. But in a civil contempt proceeding, a person cannot be held in contempt if that person is unable to comply with the court’s order. So a parent truly unable to pay child support cannot be jailed.

All nine justices agreed that Turner was not constitutionally entitled to appointed counsel in this case. A key factor in the majority decision on this point was that it was the mother, not the government, trying to collect support in this case, and the mother had no lawyer. In Justice Breyer’s view mandating a lawyer for the father in this situation would create an “asymmetry of representation,” imposing formality and causing delay when the opposite was needed. But this did not end the majority’s analysis.

Despite holding that Turner’s due process rights were not violated by failing to provide him with a state-appointed lawyer, the majority found that Turner’s due process rights were violated in this case because the state had failed to provide him with alternative procedural safeguards it held were necessary to meet due process. The key to this holding was the fact that no one can be sent to jail who really cannot pay support, and the judge did not make that determination in Turner’s case. So the safeguards required in these circumstances to meet due process are clear notice that ability to pay is the crucial issue at the contempt hearing, a form or an equivalent way to establish information about the non-payor’s financial condition, the opportunity for the non-payor to respond to the information presented, and a judicial determination that the non-payor has the ability to pay. The case was sent back for further proceedings, presumably to implement the procedural safeguards required by the majority opinion.

Justice Clarence Thomas wrote a heated dissent. To him, the only issue properly before the Court in this case was whether the due process clause of the Fourteenth Amendment created the right to appointed counsel for all indigent defendants facing jail time in a civil contempt hearing. To him, the answer to that question is a simple “no.” Under longstanding precedent, that right attaches only in criminal proceedings in which the Sixth Amendment is implicated. To Thomas, the whole issue of alternative procedural safeguards should never have been addressed by the Court, since the parties did not raise it. That issue was raised only by the U.S. government, in a friend-of-the-court brief filed in the case. Justices Scalia, Alito, and Chief Justice Roberts joined Thomas in dissent on these points.