Colorado Recognizes Right To Counsel In Remedial Contempt Cases Brought By The Government

There are not many circumstances in the United States where you have a right to have legal counsel appointed for you at government expense if you are indigent. But, last week, the Colorado Court of Appeals established a new class of cases where this right applies in the first clear Colorado case to do so, in the case of In re A.C.B., 2022CA3 (January 6, 2022) (this right had previously existed in Colorado from 1978-2011, when a new U.S. Supreme Court case muddied the waters).

The main class of cases where there is a right to counsel, first established in the U.S. Supreme Court case of Gideon v. Wainwright, 372 U.S. 335, 344 (1963), established this right for criminal defendants which was subsequently clarified to extent to any criminal proceeding in which incarceration was a possibility, Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), and to direct appeals from convictions in those cases (but not collateral attacks on convictions).

Another case extended the right to indigent defendants in termination of parental rights cases. 

There are three kinds of contempt of court proceedings that can result in incarceration.

One is called direct contempt, in which a judge summarily fines or incarcerates you for disrespectful content in the presence of the judge in court, without a separate proceeding or hearing (in theory this can be criminal or civil, depending upon whether subsequent compliance by the person held in contempt can cause that person to be relieved of further sanctions).

The second is called indirect criminal contempt a.k.a. indirect punitive contempt, in which you have allegedly willfully violated a court order outside the presence of the judge, and the court sentences you to a fine or incarceration to punish you for violating the court order (rather than to compel you to comply with it going forward) in a quasi-criminal proceeding often handled by the lawyer for the party benefitting from the court order rather than a government prosecuting attorney. It has long been clear that there is a right to counsel identical to that of criminal cases in these proceedings.

A third is called indirect remedial contempt, which is "civil" rather than "criminal" even though you can be fined (typically on a "per day" basis) or incarcerated until you comply with a court order which you have breached outside the presence of the court, if you are able to comply with the court order at any time, and are simply willfully refusing to do so. This too is a proceeding often handled by the lawyer for the party benefitting from the court order rather than a government prosecuting attorney.

In People v. Lucero, 196 Colo. 276, 284, 584 P.2d 1208, 1214 (1978), the Colorado Supreme Court, in a "direct contempt of court" case, held that 

“that the right to counsel must be extended to all contempt proceedings, whether labeled civil or criminal, which result in the imprisonment of the witness.” Id. at 284, 584 P.2d at 1214 (“Labeling the contempt civil and conditioning the incarceration on a continued refusal to testify does not alter the burden of imprisonment.”). 

This holding was stronger than the protection afforded under the U.S. Constitution as interpreted by the U.S. Supreme Court and some other states. 

The U.S. Supreme Court refused to extend Gideon and Argersinger to establish a per se rule for appointment of counsel in all civil proceedings where the possibility of imprisonment exists in Gagnon v. Scarpelli, 411 U.S. 778, 781, 788 (1973). Similarly, the Ohio Supreme Court, in the case of In re Calhoun, 350 N.E.2d 665, 666 (Ohio 1976) held that the Sixth Amendment right to counsel as set forth in Argersinger is inapplicable to civil contempt because that right is limited to criminal proceedings.

The Colorado Supreme Court most recently affirmed its broader Lucero holding in the case of In re Bauer, 30 P.3d 185, 188 (Colo. 2001) (noting that the Sixth Amendment right to counsel afforded to criminal defendants extends to contempt proceedings, both civil and criminal, which may result in imprisonment of the contemnor).

But, the Court of Appeals in last week's case notes (at ¶ 33) that "a fairly recent United States Supreme Court case, Turner v. Rogers, 564 U.S. 431 (2011), changed the legal landscape." 

There, the U.S. Supreme Court held in a case brought by a pro se ex-wife against her pro se and allegedly indigent ex-husband for child support seeking to enforce that with remedial contempt of court sanctions including incarceration, that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year)” if other procedural safeguards that it suggests are present, at least, in a case like that one where a pro se creditor is bringing the case.

The Colorado Court of Appeals held last week that, at least when the party seeking the contempt sanction is a government entity, that there is right to counsel if you are indigent (at least in the absence of alternative procedural mechanisms designed to mitigate the harm potentially caused by asymmetry of counsel, which Colorado has not chosen to adopt despite the U.S. Supreme Court's suggestion that courts do so in Turner v. Rogers). 

Indirect remedial contempt sanctions are the most common, by far, form of contempt of court proceedings in civil cases, and are used for a variety of purposes

But, one of the most common circumstances, and one of the most likely to involved an indigent defendant, is where a court determines that a child support debtor has willfully refused to pay child support despite having access to assets or self-employment income that makes it possible for the defendant to pay child support, or for otherwise not cooperating as legally required in this debt collection process by disclosing assets to the child support creditor.

The historical remedy of "body execution" (i.e. "debtor's prison") has been abolished and is unconstitutional (even in cases involving unpaid criminal fines, a clearly established legal point that the ACLU and Southern Poverty Law Center have devoted substantial resources to enforcing in low level courts across the country).

But, unlike those cases, the incarceration imposed in indirect remedial contempt of court cases involving unpaid debts (usually child support or alimony) is, in theory, at least, not simply for failing to pay a debt, but for failing to pay a court ordered debt when one has knowledge of the court order and an actual present ability to pay that debt, in the court's determination after an evidentiary hearing.

Lots of indigent debtors, however, don't really understand this distinction and also lack the sophistication to have any idea how they would go about proving their inability to pay the debt in an evidentiary hearing in a court. 

So, empirically, in many of these cases, the defendant has a legitimate defense that could prevent the child support debtor from being incarcerated but fails to prove it, in part, due to lack of legal counsel to help them prove their valid defense to incarceration for remedial contempt of court.

The case decided last week involved a child support debt assigned to the Pueblo County government's child support services offices for collection, presumably because the child received welfare benefits, and was prosecuted by a Pueblo County government attorney.

The Court makes only a narrow holding at ¶ 3, that:

We conclude that when, as here, a contempt proceeding is initiated by a governmental entity and where a jail sentence is an available remedial sanction, an alleged contemnor who is indigent has the right to court-appointed counsel. 

We further conclude that the trial court violated Broyhill’s due process rights when it refused to inquire into his indigency status to determine whether he qualified for court-appointed counsel. 

As a result, we reverse the judgment and sentence and remand the case for the trial court to determine if Broyhill is indigent and, if so, to appoint counsel to represent him at a new contempt hearing.

So, this case doesn't resolve the question of whether there is a right to court appointed counsel in indirect remedial contempt of court cases where a private party's lawyer, or a private party pro se, such as an ex-spouse, brings the proceeding, rather than a government attorney, even though the stakes in the proceeding would be the same for the party who faces remedial contempt of court sanctions. 

Federal law, under Turner v. Rogers, resolves this question only with a case by case balancing test. But Colorado could, as it did in Lucero in 1978, choose to provide greater protections than the U.S. Constitution does pursuant to the Colorado Constitution, or an interpretation of what Colorado Rule of Civil Procedure 107, which governs contempt of court proceedings in Colorado's trial courts of general jurisdiction, requires.

Interestingly, Pueblo County didn't file a brief in the appeal of the court's ruling, so the court sought supplemental briefing from institutions like sections of the Colorado Bar Association and the State of Colorado. The Colorado Bar Association, the ACLU, and a matrimonial lawyer's association all filed briefs on behalf of the appealing party facing the sanctions, and no one filed briefs in support of Pueblo County. The lack of an appeal from Pueblo County also means that this case won't go further to the Colorado Supreme Court.