Russell v. Armitage

Annotate this Case

Russell v. Armitage (95-364); 166 Vt. 392; 697 A.2d 630

[Filed 2-May-1997]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 95-364

Sherry Russell Supreme Court

On Appeal from
v. Rutland Family Court

John Armitage January Term, 1996

Theresa S. DiMauro, J.

Agnes S. Hughes, Child Support Collections Attorney, Rutland, for
Vermont Office of Child Support

Robert Appel, Defender General, and William A. Nelson, Appellate
Attorney, Montpelier, for defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

GIBSON, J. Defendant John Armitage appeals from an order of the
Rutland Family Court that ordered him incarcerated for failing to purge
himself of civil contempt in this child-support enforcement action.
Defendant contends that the court erred by (1) failing to appoint counsel
to represent him at the initial contempt hearing; (2) holding him in
contempt without first finding that he had the present ability to pay the
child support; and (3) imposing a purgative condition so indefinite that he
was unable to comply. In addition, the Defender General moves to withdraw
as counsel on the ground that the public defender act, 13 V.S.A. §§
5201-5277, does not authorize assignment of a public defender in a civil
contempt proceeding. We affirm the trial court's order of incarceration
and deny the motion to withdraw.

Sherry Russell and John Armitage were married in 1980 and divorced in
1986. They have two daughters. The final order of divorce granted custody
to plaintiff and ordered defendant to pay child support in the amount of
$35 per week per child, with support payments to increase annually by $2
per week per child. Defendant soon fell behind in his support payments,
and in

1989 a wage assignment was ordered. In 1992, the Office of Child Support
(OCS) brought enforcement proceedings, and the magistrate issued a new
order, which the family court affirmed, entering judgment for accumulated
arrearages and setting support at $389 per month. In 1993, OCS filed
another petition for contempt. The court again entered judgment for
arrearages and renewed the support order.

In March 1994, OCS commenced this enforcement proceeding, alleging
once more that defendant had willfully failed to comply with the
child-support order. The magistrate issued another order maintaining
defendant's support obligation at $389.97 per month, but noted that
defendant shortly expected to settle a workers' compensation claim, and
accordingly, scheduled a hearing for November 1994 to review the support
order. Following the November hearing, the magistrate found that defendant
owed child-support arrearages of $28,847.85 and would have the ability to
pay the arrearages upon settlement of his workers' compensation claim, but
that he had refused to settle the claim because he did not want plaintiff
to have the money. Based on these findings, the magistrate referred the
matter for contempt proceedings before the family court judge. See 4
V.S.A. § 462(a).

At a December 8, 1994 hearing, the court found that defendant had
presented no medical evidence to show that he is unable to work, and had
made little effort to find employment or settle his workers' compensation
claim. The court concluded that defendant was in contempt of the
magistrate's orders but stated that it would allow defendant to purge
himself of the contempt before ordering incarceration. In its written
order, issued on December 12, 1994, the court set four conditions that
defendant was required to satisfy to purge himself of contempt:

1. Defendant shall report to the Vocational Rehabilitation office in
Bennington, Vermont no later than December 16, 1994 and get himself
enrolled in their program. He shall participate fully in any programming
recommended by that agency. He shall provide documentation at the next
hearing that he has complied with this order.

2. Defendant shall, no later than December 16, 1994, go to Dr. Block's
office and review the results of his MRI test. If Dr. Block is not
available due to his schedule to review the MRI results by December 16,
1994, Defendant shall make an appointment by December 16, 1994 to review
the

test results as soon as possible.

3. Within 14 days of the above review of Defendant's MRI test results,
he shall provide a statement from his treating physician(s) to this Court
regarding the nature of his medical condition, his ability to work, and any
restrictions on his ability to work.

4. Defendant shall diligently pursue his worker's compensation claim
and provide documentation at the next hearing regarding the progress of the
claim.

The court further ordered that a hearing be scheduled to monitor
defendant's compliance with the court's conditions. Defendant took no
appeal from the contempt order.

At a hearing on May 19, 1995, defendant admitted that he had failed to
meet with Dr. Block to review his MRI results, and as a result had not
obtained an evaluation of his medical condition sufficient to satisfy the
second, third, and fourth contempt conditions. Based on defendant's
statements, the OCS attorney requested that defendant be incarcerated for
failing to purge himself of contempt. The court responded:

Well, before I can consider incarcerating an individual for nonpayment of
child support, I have to appoint an attorney to represent [defendant], and I
will do that at this point. We will call someone from the public defender's
office to come over and talk to you [defendant], before we continue with this
hearing.

Following a recess, during which defendant was found to be a financially
needy person who qualified for assigned counsel, attorney William Buckman
from the Rutland Public Defender's Office appeared in response to the
court's call.

After reviewing defendant's circumstances, Mr. Buckman conceded that
defendant had not complied with the contempt order but claimed, as his
defense, the inability to comply. He requested a continuance to allow him
to become more familiar with the case and to amass evidence to support the
defense. The court granted a continuance until June 28, 1995 and indicated
that the burden would be on defendant to show an inability to comply with
the order.

Before the June 28 hearing, Mr. Buckman moved to withdraw as counsel
on the ground that the public defender act did not authorize assignment of
a public defender to represent a defendant in a civil contempt proceeding.
At the hearing, the court denied the motion to

withdraw without rationale. Mr. Buckman then stated that he had no
evidence to present for the defense. Later, he claimed that defendant had
met with the doctor to review the MRI results and presented a letter from
an employer indicating that defendant was currently working for him as a
painter. The court found that defendant continued to be in contempt and
ordered him incarcerated under 12 V.S.A. § 122. Defendant was told that he
could purge himself of contempt by complying with the four conditions of
the December order. Mr. Buckman requested clarification of the order, and
the court stated that it would accept letters from the people with whom
defendant was required to meet indicating that he had complied. The
present appeal followed.

Defendant was entitled to appointment of counsel prior to being
incarcerated under our decision in Choiniere v. Brooks, 163 Vt. 625, 625,
660 A.2d 289, 289 (1995) (mem.), where we held that the Due Process Clause
of the Fourteenth Amendment requires the appointment of counsel in a civil
contempt proceeding in which an indigent defendant faces "actual
imprisonment." Although the United States Supreme Court has not ruled on
this issue, its decisions on related issues compel this result. In
Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), the Court held that, under
the Sixth Amendment to the United States Constitution, "no person may be
imprisoned for any offense, whether classified as petty, misdemeanor, or
felony, unless he was represented by counsel at his trial." Subsequently,
in Scott v. Illinois, 440 U.S. 367, 373-74 (1979), the Court clarified
Argersinger, holding that the Sixth Amendment right to counsel extended
only to those criminal defendants faced with "actual imprisonment," not
simply "fines or the mere threat of imprisonment." The Court has held
that, under the Due Process Clause of the Fourteenth Amendment, a child has
a right to counsel in juvenile delinquency proceedings that may result in
commitment to an institution, In re Gault, 387 U.S. 1, 41 (1967), noting
that such proceedings, while denominated civil, are "functionally akin to a
criminal trial." Gagnon v. Scarpelli, 411 U.S. 778, 789 n.12 (1973).
Against this background, we adopted the

rule of Choiniere, requiring assignment of counsel for indigent defendants
in civil contempt proceedings that result in incarceration.

As we noted in Choiniere, "the overwhelming majority of other
jurisdictions" have reached the same conclusion. 163 Vt. at 626, 660 A.2d
at 289. Indeed, every federal circuit court of appeal that has addressed
the issue has determined that due process prohibits incarceration of an
indigent defendant in a civil contempt proceeding absent appointment of
counsel. See, e.g., Walker v. McLain, 768 F.2d 1181, 1185 (10th Cir. 1985)
(due process requires appointment of counsel for indigent defendant
incarcerated in civil contempt proceeding for nonsupport), cert. denied,
474 U.S. 1061 (1986); Servier v. Turner, 742 F.2d 262, 267 (6th Cir. 1984)
(same); Ridgway v. Baker, 720 F.2d 1409, 1415 (5th Cir. 1983) (same);
Henkel v. Bradshaw, 483 F.2d 1386, 1389 (9th Cir. 1973) (same); see also
United States v. Bobart Travel Agency, Inc., 699 F.2d 618, 620-21 (2d Cir.
1983) (defendant entitled to counsel in civil contempt proceeding for
failure to produce records that resulted in his incarceration); United
States v. Anderson, 553 F.2d 1154, 1156 (8th Cir. 1977) (same). And the
vast majority of state courts have reached the same result. See, e.g.,
McNabb v. Osmundson, 315 N.W.2d 9, 14 (Iowa 1982); Mead v. Batchlor, 460 N.W.2d 493, 504 (Mich. 1990); McBride v. McBride, 431 S.E.2d 14, 18 n.2, 20
(N.C. 1993) (listing other state courts).(FN1)

II.

Defendant's main argument concerns the timing of the appointment of
counsel in the contempt proceeding. He maintains that he was entitled to
counsel at the December hearing in which he was first found in contempt,
not just at the June hearing in which the court determined that
incarceration was the appropriate coercive measure. According to
defendant, the court must appoint counsel for an indigent defendant at the
outset of a civil contempt proceeding unless the court excludes the
possibility of incarceration. OCS contends that the court correctly
appointed

counsel at the hearing in which the court considered and ordered
defendant's incarceration; thus, counsel was available to aid defendant in
meeting his burden of showing that he was unable to comply with the
purgative conditions of the December order.

Civil contempt for failure to pay child support involves three issues.
First, the obligee must show that the obligor violated the court's
child-support order. The obligor then has the burden of showing an
inability to comply. Spabile v. Hunt, 134 Vt. 332, 335, 360 A.2d 51, 52
(1976). If the obligor fails to meet this burden, the court may find him in
willful violation of the order and, in the final step, determine
appropriate means by which to ensure compliance with the order. See Bowen
v. Bowen, 471 So. 2d 1274, 1278-79 (Fla. 1985) (explaining "correct
procedure for establishing civil contempt in family support matters"). In
this case, all three steps were completed twice by the court: at the
initial hearing in December and again at the purge hearing conducted in May
and June. Defendant was represented by counsel on all three issues at the
purge hearing that resulted in the order of incarceration. We find no case
indicating that due process requires appointment of counsel at an earlier
point in the proceeding. Cf. Ex parte Gunther, 758 S.W.2d 226, 226-27
(Tex. 1988) (indigent defendant entitled by statute to appointment of
counsel at initial hearing in contempt proceeding).

The family court first held defendant in civil contempt at the
December 8, 1994 hearing, but the court did not order incarceration.
Rather, the court advised defendant that he could purge himself of the
contempt by satisfying four conditions, and informed him that failure to
comply would result in incarceration. We conclude that defendant was not
entitled to counsel at this hearing because the court did not consider
incarcerating defendant without providing him another opportunity, if
necessary, to challenge his ability to comply with the child support orders
and the reasonableness of the purge conditions with the aid of counsel.
"If the alleged contemnor is only to be `jaw-boned,' such appointment is
not required under the United States Constitution." McNabb, 315 N.W.2d at
14; see also Wilson v. New Hampshire, 18 F.3d 40, 41 (1st Cir. 1994) (no
right to counsel where defendant was held in contempt for failure to pay

child support but no order of incarceration resulted). The net result of
the December hearing, aside from a finding that defendant was in contempt,
was another order prescribing specific steps for defendant to take to purge
himself of the contempt.

At the May 19, 1995 hearing, the court questioned defendant and
perceived that little had changed since the previous hearing. OCS moved
for incarceration. The court then indicated that, before considering
incarceration, it was required to appoint counsel for defendant. After a
recess, counsel appeared on behalf of defendant. Defense counsel conceded
that defendant had failed to comply with the court's December order but
claimed he had a defense. Although the court told him that he had the
burden of establishing an inability to comply, counsel presented no
evidence even after a continuance was granted specifically for the purpose
of enabling defendant to amass evidence for his defense. See Spabile, 134
Vt. at 335, 360 A.2d at 52 (defendant bears burden to establish facts
necessary to justify failure to comply with purgative conditions). The
court then held defendant in "continuing contempt," and ordered
incarceration to coerce compliance with the December order. We conclude
that defendant's right to counsel was fully protected in these proceedings.

While it may have been advisable for defendant to have had counsel at
the December hearing, he was not then at risk of losing his liberty, even
if the court had imposed arbitrary and unreasonable conditions. After
counsel was appointed, the court relitigated three issues: (1) whether
defendant had violated the December order, (2) whether he had the ability
to comply with the order, and (3) what was the appropriate coercive
measure. Thus, defendant had a full opportunity at the purge hearing prior
to confinement to demonstrate, with the assistance of counsel, the
impossibility of compliance, if such was the case. This is all that due
process requires, and the legal system should not be burdened with an
unnecessary requirement for pro bono or State-financed legal services at a
preliminary stage of the process.

III.

Defendant maintains that the court could not hold him in contempt at
the December hearing

without finding that he had the present ability to pay the child support
ordered by the magistrate. We find no merit to this claim. Defendant did
not dispute that he had failed to comply with the magistrate's orders. He
had the burden of establishing inability to comply. Spabile, 134 Vt. at
335, 360 A.2d at 52. The court found that defendant presented no medical
evidence that he was unable to work, had made little effort to obtain
employment, and had not diligently pursued his workers' compensation claim.
Consequently, the court held defendant in contempt, not because he had the
present ability to pay the child support, but because he failed to
establish an inability to comply with the court's order.

According to defendant, the court should not have held him in contempt
but should have ordered him to take specific concrete steps toward
obtaining work and settling the worker's compensation claim. He maintains
that only after he failed to comply with those specific steps could the
court hold him in contempt. But the court has already done just as he
proposes. The magistrate imposed specific concrete steps in earlier
orders, such as the July 1994 order requiring that defendant telephone OCS
every Monday to report on employment prospects for the week and to report
any change in address. Defendant did not comply with the nonmonetary
provisions he now argues that the court should have imposed. The family
court then held defendant in contempt and issued another specific order in
December. Finally, in June, the court held him in continuing contempt when
he failed to comply or demonstrate an inability to comply with the
nonmonetary provisions of the December order. We find no error.

IV.

Defendant also contends that the fourth purgative condition should be
stricken because it is so indefinite that defendant is unable to determine
what he must do to comply. He relies on State v. Pownal Tanning Co.. 142
Vt. 601, 605, 459 A.2d 989, 991 (1983), in which we stated that "before a
person may be held in contempt for violating a court order, the order
should inform him in definite terms as to the duties imposed upon him."
"The order must be specific and definite so that it leaves no reasonable
basis for doubt as to its meaning." Id. Condition

four states: "Defendant shall diligently pursue his worker's compensation
claim and provide documentation at the next hearing regarding the progress
of the claim." Upon defense counsel's request, the court clarified the
conditions for defendant's release, stating that defendant must submit
letters from the people with whom he is required to meet indicating that he
has complied with the condition.

Defendant claims that he does not know what steps will suffice to show
"diligent pursuit." We find condition four to be specific and definite.
Indeed, the Court of Appeals for the Second Circuit applied a strikingly
similar test in a civil contempt action: whether the party was reasonably
diligent and energetic in attempting to accomplish what was ordered. See
United States v. O'Rourke, 943 F.2d 180, 189 (2d Cir. 1991). It is clear
to this Court that defendant's assertion that his seeking counsel to
represent him in his workers' compensation case is insufficient to satisfy
the condition. He has previously testified that he was thinking about
hiring an attorney and had talked to several attorneys about his claim,
yet, as the court noted, little has changed over the past several years.
We find no need to strike the fourth condition.

The Defender General moves to withdraw as defense counsel, arguing
that assignment of a public defender in civil contempt proceedings does not
fall within the public defender's statutory responsibilities. As the
Defender General acknowledges, the lack of statutory authority does not
prevent this Court from mandating assignment of counsel in civil contempt
cases where counsel is constitutionally required. See A.O. 4, § 1 ("The
circumstance that statutory authority of the right to representation by
counsel does not appear to reach the matter involved is not to bar exercise
of the inherent power to provide counsel where it may be constitutionally
required."). He contends, however, that the authority expressly granted by
the Legislature to the Defender General in the public defender act, 13
V.S.A. §§ 5201-5277, precludes assignment of public defenders in civil
contempt proceedings.

The public defender act provides that

A needy person who is being detained by a law enforcement officer
without charge or judicial process, or who is charged with having
committed or is being detained under a conviction of a serious crime, is
entitled . . . [t]o be represented by an attorney to the same extent as a
person having his own counsel; . . . .

Id. § 5231(1) (emphasis added). The act defines "serious crime" to be a
felony, a misdemeanor for which a defendant will be sentenced to any period
of imprisonment or a fine greater than $1000, or an act committed by a
juvenile that would otherwise be a serious crime. Id. § 5202. In addition,
public defenders may be assigned in certain federal court criminal actions,
id. § 5203, and in extradition, habeas corpus and other proceedings to
obtain release from state penal or mental institutions, as well as in
certain proceedings in juvenile court. Id. § 5232. The Legislature has
also made clear that "[t]he defender general has the primary responsibility
for providing needy persons with legal services under this chapter," and
that "[n]o other official or agency of the state may . . . assign [the
defender general] duties in addition to those prescribed by this chapter."
Id. § 5253(a) (emphasis added).

Our goal in interpreting statutes is to effect the intent of the
Legislature, which we attempt to discern first by looking to the language
of the statute. State v. Wool, 162 Vt. 342, 348, 648 A.2d 655, 659 (1994).
When the meaning of a statute is plain on its face, we have no need for
construction, but rather must enforce it according to its terms. Paquette
v. Paquette, 146 Vt. 83, 86, 499 A.2d 23, 26 (1985). We conclude from the
plain language of the public defender act that the act does not authorize
courts to assign civil contempt proceedings to the Defender General even
where the trial court considers ordering incarceration. Cf. Maloney v.
Bower, 498 N.E.2d 1102, 1104 (Ill. 1986) (chief judge of circuit court did
not have authority to issue general order directing judges to appoint
public defenders to represent indigents in civil contempt proceedings, thus
enlarging duties of office of public defender beyond what legislature had
provided). Nor does it authorize compensation of appointed counsel to be
made from funds appropriated to the Office of the Defender General. Cf. 13
V.S.A. § 5272 (compensation of appointed counsel under public defender act
shall be made from appropriations to Office of

Defender General).

Although we conclude that the public defender act does not authorize
assignment of a public defender in this case, this does not end our
inquiry. In Mallard v. United States District Court, 490 U.S. 296, 310
(1989), the United States Supreme Court held that 28 U.S.C. § 1915(d) did
not authorize federal courts to require unwilling attorneys to represent
indigent litigants in civil cases. Because the trial court had assigned
counsel pursuant to § 1915(d) ("court may request an attorney to represent"
indigent litigant) (emphasis added), the Court granted assigned counsel's
petition to withdraw. The Court explicitly declined to address whether the
trial court had inherent authority to compel an unwilling attorney to
render service because the court had not invoked its inherent
authority.(FN2) See id.

In the instant case, the court did not state the source of its
authority to appoint Mr. Buckman, and Mr. Buckman did not appeal from the
denial of his motion to withdraw. Instead, the Defender General moves on
appeal to withdraw on the ground that this Court has no authority under the
public defender act to appoint him. The Defender General has not
challenged the Court's inherent authority to appoint attorneys to represent
indigent litigants. This Court has previously noted that it has the
inherent "power to require attorneys to serve and protect the vital
interests of uncounselled litigants where circumstances demand it." Caron
v. Betit, 131 Vt. 53, 55, 300 A.2d 618, 619 (1972). Public defenders, like
all members of the bar, are subject to such appointment. Accordingly, we
deny the motion to withdraw.

Trial courts may not, however, routinely assign public defenders to
all civil contempt proceedings against indigent litigants. More than an
occasional case would unduly interfere with

their statutory caseload; further, it would be inequitable to require any
one segment of the bar to bear the entire burden of providing
representation in these cases. Some of the demand may be met by attorneys
offering pro bono services, and we support the continuation of such
practice. The burden of funding constitutionally required legal
representation, however, rightfully rests upon the Vermont community as a
whole not simply a few members of the bar. See State ex rel. Scott v.
Roper, 688 S.W.2d 757, 767 (Mo. 1985) (en banc) (holding it unjust that
handful of individuals should bear burden that is properly burden of whole
community).

Only the Legislature may provide a comprehensive plan addressing the
need for legal counsel in civil contempt proceedings. The courts have no
other alternative at this point than to exercise their inherent power to
assign counsel to represent persons constitutionally entitled thereto.

Affirmed; the Defender General's motion to withdraw is denied.

FOR THE COURT:

______________________________
Associate Justice

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Footnotes

FN1. The dissent would adopt the case-by-case approach to
assignment of counsel adopted by the United States Supreme Court in Gagnon
v. Scarpelli, 411 U.S. 778 (1973). In Gagnon, the Court held that due
process does not require the State to provide counsel to all indigents in
probation or parole revocation hearings, even if they result in
incarceration. Id. at 788. It concluded that a case-by-case determination
of whether counsel is necessary was sufficient to protect due process
interests. Id. The Court justified its case-by-case approach by the
"critical differences between criminal trials and probation or parole
revocation hearings," id. at 788-89, the main difference being that
"`[r]evocation deprives an individual, not of the absolute liberty to which
every citizen is entitled, but only of the conditional liberty'" of the
parolee or probationer. Id. at 781 (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). The Court viewed a revocation proceeding as differing
significantly from a criminal trial because the "State is represented, not
by a prosecutor, but by a parole officer," and the hearing is far less
formal than a trial. Id. at 789.

The Court also adopted the case-by-case approach to the appointment of
counsel for proceedings to terminate parental rights. In Lassiter v.
Department of Social Servs., 452 U.S. 18, 31-32 (1981), the Court rejected
a per se right to counsel primarily because there was no potential
deprivation of physical liberty, noting that it employs a "presumption that
an indigent litigant has a right to appointed counsel only when, if he
loses, he may be deprived of his physical liberty." Id. at 26-27.

We rejected the case-by-case rule in Choiniere v. Brooks, 163 Vt. 625,
660 A.2d 289 (1995) (mem.), a civil contempt proceeding in which the court
was considering incarceration. Neither Lassiter nor Gagnon supports a
case-by-case rule in such cases. Lassiter is clearly distinguishable
because the defendant's physical liberty was not there at issue. See 452 U.S. at 26-27. Gagnon is not applicable because the two factors important
to the Court therein -- the conditional liberty interest of a probationer
or parolee and the informality of revocation proceedings -- are not present
here. See Ridgway v. Baker, 720 F.2d 1409, 1413 n.4 (5th Cir. 1983).
Incarceration will deprive defendant herein of absolute liberty, not the
conditional liberty of the probationer. The fact that defendant may have
the key to the jail cell does not lessen the liberty interest. See Walker
v. McLain, 768 F.2d 1181, 1184 (10th Cir. 1985). Moreover, the attorney
for the State who is prosecuting this contempt proceeding is seeking
incarceration, making it more like a criminal proceeding than a
violation-of-probation hearing. See Henkel v. Bradshaw, 483 F.2d 1386,
1389 (9th Cir. 1973) (although contempt proceeding not criminal, label is
not determinative; state is party and court is concerned with possible
penal outcome); Tetro v. Tetro, 544 P.2d 17, 19 (Wash. 1975) (civil
contempt proceeding had trappings of criminal trial where complaint brought
by county prosecutor and defendant faced possible imprisonment).

Finally, the opinions adopting the minority position are not
persuasive and are diminishing in recent years. For example, Sword v.
Sword, 249 N.W.2d 88 (Mich. 1976) was overruled by Mead v. Batchlor, 460 N.W.2d 493, 504 (Mich. 1990), which adopted the majority position.
Similarly, Jolly v. Wright, 265 S.E.2d 135 (N.C. 1980), which followed
Sword has also been overruled. See McBride v. McBride, 431 S.E.2d 14, 19
(N.C. 1993).

FN2. In Mallard, four justices dissented, however, stating that "a
court's power to require a lawyer to render assistance to the indigent is
firmly rooted in the authority to define the terms and conditions upon
which members are admitted to the bar." 490 U.S. at 312 (Stevens, J.,
dissenting, joined by Marshall, Blackmun, and O'Connor, JJ.). In addition,
Justice Kennedy stated, in a concurring opinion, that lawyers have a
professional obligation to accept a court's request to represent an
indigent litigant. Id. at 310-11 (Kennedy, J., concurring).

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Concurring

No. 95-364

Sherry Russell Supreme Court

On Appeal from
v. Rutland Family Court

John Armitage January Term, 1996

Theresa S. DiMauro, J.

Agnes S. Hughes, Child Support Collections Attorney, Rutland, for
Vermont Office of Child Support

Robert Appel, Defender General, and William A. Nelson, Appellate
Attorney, Montpelier, for defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

MORSE, J., concurring. Although I concur in the Court's holding
affirming the judgment of contempt, my analysis of the issues differs
substantially from that of the Court.

I agree that defendant was not unconstitutionally deprived of the
right to counsel, but the reason, in my view, is because he was not
entitled to a court appointed lawyer. The United States Supreme Court has
never held that the Due Process Clause of the Fourteenth Amendment requires
the appointment of counsel in a civil contempt proceeding for nonpayment of
child support. Nevertheless, this Court so holds today, relying on the
recent decision in Choiniere v. Brooks, 163 Vt. 625, 660 A.2d 289 (1995)
(mem.). Choiniere was a summary entry order, which merely noted that a
majority of jurisdictions have found in favor of the right to appointed
counsel in these circumstances; indeed, the right-to-counsel issue was
raised sua sponte by the Court and was neither briefed nor argued by the
parties. Not surprisingly, the entry order contains no meaningful
discussion or analysis of the issue. Significantly, it omits any mention
whatsoever of the contrary view held by a minority of jurisdictions, a view
that, as explained

below, is both pragmatic and constitutionally sound.

I also agree with the Court's decision upholding the appointment of
the public defender. Contrary to the Court's judgment, however, I believe
that the public defender act authorizes such appointments. Accordingly, I
do not perceive the necessity, nor do I join in the Court's call, for
comprehensive legislative reform in this area.

I. Right to Counsel

The United States Supreme Court has held that the right to appointed
counsel arises "only where the litigant may lose his physical liberty if he
loses the litigation," Lassiter v. Department of Social Servs., 452 U.S. 18, 25 (1981), and has qualified the right by observing that as a
litigant's interest in "personal liberty diminishes, so does his right to
appointed counsel." Id. at 26. Thus, in Gagnon v. Scarpelli, 411 U.S. 778
(1973), the Court declined to hold that indigent probationers have a right,
per se, to a lawyer at probation revocation hearings, notwithstanding the
fact that they face possible incarceration if found to have violated
probation. The Court noted that the defendant in such cases has already
been sentenced; that in most cases the factual inquiry is simplified by the
defendant's conviction of another crime or admission of the probation
violation; that while the defendant may offer evidence to explain or
mitigate the offense "evidence of this kind is often not susceptible of
proof or is so simple as not to require either investigation or exposition
by counsel," id. at 787; and that the introduction of counsel would "alter
significantly the nature of the proceeding" by turning it into a full-blown
adversarial hearing, prolonging the decisionmaking process and incurring
substantial financial costs to the State. Id. at 787-88. Although the
presence of counsel was thus "undesirable and constitutionally unnecessary
in most revocation hearings," id. at 790, the Court acknowledged that there
may be some cases where the nature or complexity of the evidence or the
issues required the presence of a state-appointed attorney for the
defendant to be fairly represented. Id. at 786-88. Therefore, the Court
concluded that "the need for counsel must be made on a case-by-case basis
in the exercise of a sound discretion by the state authority." Id. at 790.

Counsel should be presumptively provided, the Court explained, in those
cases where the probationer requests such assistance based on a "colorable
claim" that the probationer did not commit the alleged violation, or where,
even if uncontested, "there are substantial reasons which justified or
mitigated the violation and make revocation inappropriate, and the reasons
are complex or otherwise difficult to develop or present." Id.

It is against this decisional backdrop that the Supreme Court has more
recently described the right to counsel as a "presumption" where physical
liberty is at issue, which must be balanced in each procedural setting
against the private and governmental interests at stake, and the risk that
the procedures used will lead to erroneous results. Lassiter, 452 U.S. at
27-28. In Lassiter itself, the issue was not personal freedom, but parental
rights. Nevertheless, in view of the important parental and state
interests at stake, and the parties' joint interest in a correct decision,
the Court adopted the standard found appropriate in Gagnon, leaving the
decision "whether due process calls for the appointment of counsel for
indigent parents in termination proceedings to be answered in the first
instance by the trial court, subject, of course, to appellate review." Id.
at 32.

II. Civil Contempt

Here, we are concerned with a civil contempt proceeding stemming from
the violation of certain court-imposed conditions in connection with a
child support order. The trial court found defendant in contempt for
violating the court's directives, further found that defendant had failed
to satisfy the stated conditions necessary to purge himself of the
contempt, and ordered him incarcerated. To evaluate defendant's right to a
court-appointed attorney in these circumstances requires some attention to
the nature of a civil contempt, and the specific procedural setting in
which it arises.

Originally a common-law mechanism to enforce court orders and decrees,
Andrew v. Andrew, 62 Vt. 495, 501, 20 A. 817, 819 (1890), contempt
proceedings are currently authorized by statute "[w]hen a party violates an
order made against him in a cause brought to or pending

before a superior judge or a county court or the district court after
service of the order upon that party." 12 V.S.A. § 122. There are two
classes of contempt, civil and criminal, either of which may be punished by
imprisonment. See 12 V.S.A. § 123. The two categories are distinguishable
principally by the purpose of the punishment imposed. "In a criminal
contempt the purpose of the commitment is punitive and in a civil contempt
the purpose is coercive." In re Sage, 115 Vt. 516, 517, 66 A.2d 13, 14
(1949). The goal of criminal contempt is simply to punish the defendant
"to vindicate the `authority and dignity' of the trial court." Bonser v.
Courtney, 481 A.2d 524, 531 (N.H. 1984) (quoting Scarborough v. R.T.P.
Enters., 422 A.2d 1304, 1308 (N.H. 1980)). The prison sentence,
accordingly, must be definite, Sage, 115 Vt. at 517, 66 A.2d at 14, and "no
amount of repentance will remit it." Town of Nottingham v. Cedar Waters,
Inc., 385 A.2d 851, 854 (N.H. 1978).

In a civil contempt, the purpose of imprisonment is something quite
different. There, "the imprisonment is inflicted as a means to compel the
party to do some act ordered by the court for the benefit or advantage of
the opposite party," Sage, 115 Vt. at 517, 66 A.2d at 14, and thus the
sentence may be indeterminate until the contemnor complies with the court
order. Id. "[O]nly compensatory fines or coercive sanctions may be imposed
on a civil contemnor," State v. Pownal Tanning Co., 142 Vt. 601, 603, 459 A.2d 989, 990 (1983), and these must be "purgeable," id. at 604, 459 A.2d
at 991, i.e., they must be "capable of being avoided by defendants through
adherence to the court's order." Vermont Women's Health Ctr. v. Operation
Rescue, 159 Vt. 141, 151, 617 A.2d 411, 417 (1992). Thus, it is commonly
said that the contemnor holds the "`keys to the jail'" and stands committed
only until the act required by the court is performed. Bonser, 481 A.2d at
531 (quoting Town of Nottingham, 385 A.2d at 854). The requirement that a
defendant must be presently able to perform implies the opposite, as well;
the "inability, without fault, to render obedience to an order or decree of
a court is a good defense to a charge of contempt." Socony Mobil Oil Co.
v. Northern Oil Co., 126 Vt. 160, 164, 225 A.2d 60, 63 (1966).

It is thus readily apparent that the liberty interest at stake in a
civil contempt proceeding is qualitatively unique. Unlike the normal
criminal prosecution or criminal contempt proceeding, imprisonment in a
civil contempt may not be ordered unless it is shown that the defendant has
the present ability to comply with the court's directive, and the defendant
may further secure immediate release from incarceration simply by acceding
to the order. As distinct from the criminal setting, where the defendant
has no control over continued incarceration, the defendant's liberty and
property interests in the civil context are far less vulnerable; the
defendant holds the "key to the cell," and, by definition, may gain release
at any time. "As a litigant's interest in personal liberty diminishes, so
does his right to appointed counsel." Lassiter, 452 U.S. at 26. Because
the liberty interest at stake in the civil contempt context is thus
limited, the historical "presumption" in favor of the appointment of
counsel is substantially weakened.

III. Other Lassiter Factors

Another important factor in determining an indigent's right to an
appointed lawyer is the risk of an erroneous decision. Lassiter, 452 U.S. at 27-28. Generally, the legal and factual issues in a civil contempt
hearing are not complex. Issues relating to the merits of the court's
order have already been adjudicated; the only questions before the court
are thus whether the defendant has violated the order and has the present
ability to comply. In a support enforcement proceeding, the issues are
singularly uncomplicated and straightforward; arrearages are simple
accounting matters and rarely are subject to substantial dispute. The
plaintiff, be it the custodial spouse or the Office of Child Support (OCS),
will rarely have the occasion to call expert witnesses or to take advantage
of OCS counsel's superior advocacy skills. The violation is often
uncontested, and the defendant seeks merely to explain or mitigate his
conduct. As the Supreme Court has observed, "evidence of this kind is
often not susceptible of proof or is so simple as not to require either
investigation or exposition by counsel." Gagnon, 411 U.S. at 787. Thus,
the presence of a court-appointed attorney for the defendant will not, in
reality, enhance the

accuracy of the court's findings or reduce the risk of erroneous results.
See Lassiter, 452 U.S. at 27-28.

Finally, the "financial cost to the State" of assigning counsel in
every civil contempt proceeding where incarceration is a possibility must
be weighed against the potential benefit of a more reliable adjudication.
Gagnon, 411 U.S. at 788. As I have elsewhere observed, "due process cannot
be made perfect at any price. If added burden is placed on one part of the
criminal justice system, a price is exacted from another." State v.
Porter, ___ Vt. ___, ___, 671 A.2d 1280, 1285 (1996) (Morse, J.,
concurring). In view of the fact that most civil contempt proceedings for
nonpayment of support pose relatively simple fact questions of compliance
and arrears, the requirement that counsel be afforded to all indigent
defendants "is simply too big a price to pay for the relatively small
marginal gain in `reliability.'" Id.

On balance, therefore, the critical considerations identified by the
Supreme Court in Lassiter and Gagnon weigh against the appointment of
counsel in every case in which an indigent may be incarcerated for failure
to comply with an order of support. Rather, the flexible standards adopted
by the high court in Gagnon and Lassiter seem most appropriate to this
setting. The trial court should have the discretion to evaluate the need
for counsel on a case-by-case basis, and decide, based on articulated
reasons, whether fundamental fairness requires the appointment of a lawyer
to assist an indigent defendant in a civil contempt proceeding for non-
payment of support.

Although, as the Court notes, a majority of jurisdictions have
concluded otherwise, it is noteworthy that the states are not unanimous. A
number of courts analyzing the Supreme Court precedents have concluded that
due process does not require the appointment of counsel in every case where
an indigent defendant faces the possibility of incarceration if found in
civil contempt for failure to comply with an order of support. These
states include Illinois, In re Marriage of

Betts, 558 N.E.2d 404 (Ill. App. Ct. 1990), appeal denied, 567 N.E.2d 328
(1991)(FN1); Maine, Meyer v. Meyer, 414 A.2d 236 (Me. 1980) and Colson v.
State, 498 A.2d 585, 587 n.4 (Me. 1985); New Hampshire, Sheedy v. Merrimack
County Superior Court, 509 A.2d 144 (N.H. 1986); New Mexico, State ex rel.
Dep't of Human Servs. v. Rael, 642 P.2d 1099 (N.M. 1982); amd Ohio, In re
Calhoun, 350 N.E.2d 665 (Ohio 1976) and Courtney v. Courtney, 475 N.E.2d 1284 (Ohio Ct. App. 1984); see also Andrews v. Walton, 428 So. 2d 663 (Fla.
1983) (parent not entitled to court-appointed counsel in civil contempt
proceeding because indigent cannot be imprisoned for failure to pay
support).

The Supreme Court of New Mexico has succinctly summarized the position
of these courts as follows:

[T]he defendant's liberty and property interests are not as
vulnerable in the context of the civil contempt hearing as in the
criminal setting. The provision of court-appointed counsel would
do little to reduce erroneous decisions here, where the legal and
factual issues are not complex. These factors, when added to the
state's interests, militate against a rule requiring appointment of
counsel in all cases . . . .

Rael, 642 P.2d at 1103.

The views expressed in Rael are sound. Civil contempt does, in fact,
carry built-in safeguards that are sufficient to protect most defendants in
most routine enforcement proceedings: the issues are simple; the trial
court must find a present ability to comply; the defendant virtually
controls the duration of the incarceration. Furthermore, the trial court
retains

broad discretion to appoint counsel in any case where it appears necessary
for a fair presentation of the issues. Thus, the Court need not choose
between the extremes of requiring court-appointed counsel in every case,
or in none. The flexible standards adopted by the high court in Gagnon and
Lassiter provide the appropriate model for decision here.

IV. Appointment Standard Applied

Defendant was held in contempt not strictly for failing to make
payment under the support order in effect, but rather for failing, as
ordered, to take certain specific steps to secure employment, and to
prosecute a workers' compensation claim for a back injury which would have
enabled him to pay substantial child-support arrearages. At the initial
contempt hearing, defendant admitted that he had not taken the required
steps and offered various excuses for his lack of diligence. The court
was unpersuaded and held defendant in contempt. It also set forth four
specific conditions to purge the contempt. At the next scheduled hearing,
the court, after listening to defendant's explanation, observed that "not a
lot has changed." The court then expressed an inclination to order
defendant's immediate incarceration, but noted that it was constrained
under Choiniere to appoint counsel if defendant met the financial criteria.
Defendant's financial application reported negligible income and no assets.
A public defender was duly appointed, who argued, briefly, that defendant
had experienced some difficulties in gaining access to transportation and a
telephone. The court set a new hearing one month later to provide counsel
an additional opportunity to investigate and gather any pertinent evidence.
At the new hearing, counsel represented that defendant had taken some
minimal steps to purge himself of the contempt, but otherwise offered no
evidence that defendant was unable to comply with the remaining provisions.
The court ordered defendant to be incarcerated forthwith, but stated that
it would order his release upon his demonstrating a willingness to comply
with the order. Counsel promptly filed a notice of appeal, and this Court
granted a stay of sentence to consider issues relating to defendant's right
to appointed counsel.

The facts of this case provide a perfect illustration of the futility
of appointed counsel in

the typical support enforcement proceeding. The issues were simple and
straightforward. The trial court had ordered defendant to diligently
pursue his workers' compensation claim. Defendant violated the order, was
held in contempt, and failed to satisfy the specific conditions necessary
to purge himself of the contempt. Counsel, appointed under compulsion of
Choiniere, offered no evidence of defendant's inability to comply with the
order, and made only perfunctory arguments to excuse defendant's behavior,
arguments that were no more effective than those defendant himself had
earlier advanced. All that appointed counsel accomplished here was to
needlessly prolong the proceeding, consume additional state resources, and
blunt the only effective weapon left in the court's arsenal to obtain
support payments for defendant's two minor children. The trial court
should have been allowed to assess the circumstances and determine whether
the appointment of counsel was necessary for defendant's position to be
fairly represented. Had the court been so empowered, I have no doubt it
would have concluded, correctly, that counsel was unnecessary to safeguard
defendant's right to a fair hearing.

V. Appointment of Public Defender

Also before the Court is the question of who shall represent indigent
defendants in civil contempt proceedings for non-payment of support. The
issue is undoubtedly important to the bar, but otherwise of no great
practical significance. Under the approach outlined above, the need for
assigned counsel in these circumstances should be quite limited, given the
general lack of complexity that characterizes such proceedings. It should
also be apparent that in most circumstances a finding that the defendant is
sufficiently needy to qualify for the services of appointed counsel would
effectively preclude incarceration, since a present financial ability to
comply with the support order is a prerequisite to imprisonment. See
Spabile v. Hunt, 134 Vt. 332, 334-335, 360 A.2d 51, 52 (1976) ("[T]he
inability without fault to obey an order of court is a valid defense to a
charge of contempt since `contempt by its very nature is inapplicable to
one who is powerless to comply with the court order.'") (quoting Yoder v.
County of Cumberland, 278 A.2d 379, 390 (Me. 1971)). Absent a threat of
incarceration, there is, of

course, no constitutional requirement to appoint counsel. Conversely, if
the parent has the present ability to pay, the parent may not qualify as a
needy person entitled to the services of appointed counsel. Thus, I would
expect the number of cases actually requiring court-appointed counsel in
this context to be quite small.

Where it does become necessary, I would hold, contrary to the Court,
that assignment of the public defender is authorized by the public defender
act. 13 V.S.A. §§ 5201-5277. It is true that one provision of the act
refers to needy persons charged with "a serious crime." Id. § 5231. It
does not necessarily follow, however, that the act is limited to criminal
proceedings. On the contrary, the broader purpose of the act is plainly to
provide counsel to indigent persons faced with a potential loss of liberty,
regardless of the precise nature of the proceeding. This is apparent from
the provision expressly requiring assignment of counsel in extradition
proceedings, habeas corpus and other proceedings where a person is confined
in a penal or mental institution and seeks release, and juvenile court
matters. See id. § 5232. Such proceedings may, but need not necessarily,
involve serious criminal charges. As we observed in In re A.C., 134 Vt.
284, 287, 357 A.2d 536, 538 (1976), "so far as the right to assistance of
counsel is concerned, juvenile proceedings generally have been placed by
the Legislature in the same category with criminal offenses, without
distinction as to whether the juvenile proceedings do, or do not, involve
an act otherwise criminal." Furthermore, the act provides unrestricted
access to assigned counsel in habeas corpus proceedings, which may involve
petitioners confined for reasons completely unrelated to "serious crimes."
See, e.g., Allen v. Smith, 126 Vt. 546, 237 A.2d 354 (1967) (petitioner
found in civil contempt and incarcerated for failure to make child support
payments, without opportunity to purge contempt, may seek release by writ
of habeas corpus); 12 V.S.A. § 3979 (person who disobeys order, decree,
judgment, or process of court, and imprisoned for contempt, is entitled to
file petition for writ of habeas corpus).

The Legislature, moreover, has expressly charged this Court with the
duty to "make

such rules as shall further the intent and purposes of" the public defender
act. 13 V.S.A. § 5204. To this end, the Court has promulgated
Administrative Order 4, governing the "Assignment of Counsel and Payment
Therefor by the Defender General." That order states, in part, as follows:
"The purpose of these rules is to assure the availability of counsel to all
persons adjudged in need thereof, confronted by proceedings which may
involve potential loss of personal liberty, irrespective of their ability
to pay for such representation." A.O. 4, § 1 (emphasis added). Thus, in
implementing the "intent and purposes" of the public defender statute, the
Court itself has drawn no distinction between criminal and civil matters,
but rather has provided broadly for the right to appointed counsel in all
"proceedings which may involve potential loss of personal liberty." I
cannot imagine better proof of the act's applicability to civil contempt
proceedings where incarceration is a possibility and counsel is
constitutionally necessary for a fair hearing.

Constitutional rights are not static, but reflect changing perceptions
over time of what is fundamentally fair in a civilized society. The scope
of the constitutional right to counsel under the Sixth and Fourteenth
Amendments has been broadened substantially over the last several decades.
The public defender act is, and must be, sufficiently supple to respond to
these changing needs. Accordingly, the same administrative order referred
to above further provides as follows: "The circumstance that statutory
authority of the right to representation by counsel does not appear to
reach the matter involved is not to bar the exercise of the inherent power
to provide counsel where it may be constitutionally required." Id. This
is not, in my view, merely a restatement of the Court's inherent "power to
require attorneys to serve and protect the vital interests of uncounselled
litigants where circumstances demand it." Caron v. Betit, 131 Vt. 52, 55,
300 A.2d 618, 619 (1972). Rather, it is a recognition that merely because
a category of cases requiring counsel is not specifically mentioned in the
public defender act, does not mean that the Legislature intended to
prohibit their assignment when necessary to protect the liberty interests
of indigent defendants. That is, after all, the fundamental purpose of the
act, and it

does no violence to the letter or spirit of the law to extend the services
of public defenders to defendants threatened with incarceration in civil
contempt proceedings, where necessary to protect their constitutional right
to a fair hearing.

In sum, I would accord trial courts broad discretion, under the
standards outlined above, to determine whether the appointment of counsel
in a civil contempt proceeding for nonpayment of support is necessary to
provide a fair representation of the defendant's position. Because an
assigned counsel was not, in my view, constitutionally compelled in this
case, I concur in the decision affirming the judgment of contempt. In
other cases where the assignment of an attorney becomes necessary, the
office of the public defender, or appointed counsel as prescribed by 13
V.S.A. § 5272, should normally be assigned to handle the case.

_______________________________________
Associate Justice

----------------------------------------------------------------------------
Footnotes

FN1. There is a split of authority among the Illinois District
Courts of Appeal. Compare Sanders v. Shepard, 541 N.E.2d 1150, 1156-57
(Ill. App. Ct. 1989) (indigent facing incarceration in a civil contempt
proceeding for nonsupport is entitled to appointed counsel per se) with In
re Marriage of Betts, 558 N.E.2d 404, 422 (Ill. App. Ct. 1990), appeal
denied, 567 N.E.2d 328 (1991) ("Contrary to the recent decision [in
Sanders] . . . we conclude that a respondent in an indirect civil contempt
proceeding is not entitled to appointed counsel if he or she is indigent,
even though the contempt proceeding may result in imprisonment."). Having
denied review in Betts, which followed Sanders, the Supreme Court of
Illinois may incline toward the later decision holding that counsel should
be appointed only when necessary to a fair hearing.

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