Parental representation, child support case on way to Georgia Supreme Court

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“In Georgia, aggressive efforts to incarcerate parents for child support debt are often focused on the poor, rather than on wealthier parents who willfully dodge their child support obligations. Georgia is also one of the few states that forces indigent parents who owe child support debt to plead for their liberty, without counsel, against an experienced, state-funded lawyer who is trying to send them to jail,” the Southern Center for Human Rights explains.

“Each year, Georgia jails thousands of unrepresented parents for child support debt in proceedings initiated by the State. Many of these parents are held for months – some for over a year – even though they have no money to pay and no way to earn money while in jail.”

In March 2011, the Southern Center for Human Rights filed Miller, et al. v. Deal, et al., in the Fulton County Superior Court, “on behalf of indigent parents jailed for child support debt in proceedings in which the State was represented by counsel, but the parent did not have counsel.”

According to the civil complaint, filed March 22, 2011, the case seeks “to remedy the State of Georgia’s persistent failure to guarantee legal representation to indigent parents who face incarceration in child support contempt proceedings, as required by the Georgia Constitution and the United States Constitution.”

The complaint continues on to say that:

Plaintiffs are indigent parents who have been jailed without counsel for being too poor to fulfill their court-ordered child support obligations. Some of the Plaintiffs have serious physical disabilities. Others have spent months looking for work, only to find none. All are destitute, but all have been or will likely he incarcerated pursuant to civil contempt orders that condition their release on payment of enormous “purge fees.” Languishing in jail for weeks, months, and sometimes over a year, these parents share one trait in common besides their poverty: they went to jail without ever talking to an attorney. Not one Plaintiff had an appointed attorney to explain to a court that, through no fault of his own, he had no ability to pay. Not one had an appointed attorney to bring to a court’s attention that he had been sitting in a jail for weeks or months without the means to pay his purge fee. And every Plaintiff who sought the assistance of appointed counsel has been met with no reply. The families of the Plaintiffs have been left with gaping holes – jailed parents and a source of financial support rendered unable to provide a helping hand.

There is one crucial aspect of the case that is being directly challenged. That is the rather subtle difference between a criminal contempt charge and a civil contempt charge.

ANALYSIS

As the United States Supreme Court has made clear: “The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U. S. 358, 364 (1970). In so holding, the Supreme Court “emphasized that proof beyond a reasonable doubt has traditionally been regarded as the decisive difference between criminal culpability and civil liability.” Jackson v. Virginia, 443 US 307, 315 (1979). Hence, “it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911).

The Supreme Court’s guidance notwithstanding, courts in various jurisdictions have struggled to clarify the differences between the offences of criminal and civil contempt.1

We are concerned here with a civil contempt charge, which offers a defendant lesser protections than does its criminal counterpart. As the state of Georgia resides within the purview of the 11th Circuit, it is thus bound by that Court’s rulings.

“Every civil contempt proceeding is brought to enforce a court order that requires the defendant to act in some defined manner.” Mercer v. Mitchell, 908 F.2d 763 (11th Cir. 1990). Due process requires adequate notice and a fair opportunity to be heard before a civil contempt citation issues. Riccard v. Prudential Ins. Co., 307 F.3d 1277 (11th Cir. 2002). “Civil contempt is only appropriate where the proof of noncompliance with a court order is clear and convincing.” United States v. Hayes, 722 F.2d 723 (11th Cir.1984).

“In determining whether a party is in contempt of a court order, the order is subject to reasonable interpretation, though it may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.” Id; Georgia Power Co. v. NLRB, 484 F. 3d 1288 (2007)(citing with approval Riccard v. Prudential).

In FTC v. Leshin, 618 F.3d 1221 (11th Cir. 2010) the Court held that a civil contempt finding must be supported by clear and convincing evidence that the allegedly violated order was valid and lawful, the order was clear and unambiguous, and the alleged violator had the ability to comply with the order. Only after these showings are made may a contemptor be called forth to “show cause” why he should not be held in contempt.

The civil contempt package was well-summarized by the 11th Circuit Court of Appeals in United States v. Hayes, supra:

A party petitioning for a civil contempt finding must prove by clear and convincing evidence that the respondent violated a court order. Once a prima facie showing of violation has been made, the respondent can defend his failure on the grounds that he was unable to comply. To succeed on this defense, however, the respondent must go beyond a mere assertion of inability and satisfy his burden of production on the point by introducing evidence in support of his claim. In this circuit, a party under court order to produce documents has a duty to make in good faith all reasonable efforts to comply.2

Somewhat more specifically, under Georgia law, a court may jail a parent only if it finds that the parent wilfully failed to comply with a child support order. Dep’t of Human Res. v. Tabb, 472 S.E.2d 540 (1996) (“A finding of willfulness is necessary to hold a parent in contempt of a support order”).

Under Georgia law, a Court must release a person held in contempt for failure to pay child support when it is clear that the person does not have the money to pay the purge fee. Hughes v. Dep’t of Human Res., 502 S.E.2d 233 (1998) (“A trial court, however, may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to pay”).

HEART OF THE MATTER

The heart of the matter is that as states redoubled their efforts to reimburse themselves for TANF, juvenile justice, and foster care costs, they waged aggressive campaigns against non-custodial parents for the lion’s share of the reimbursements. By cloaking debts to the state as “child support,” a veritable Pandora’s Box is opened allowing the state to use means that may not otherwise be available to it if the debt were treated as a conventional debt owed to the state. Precious little of the money collected directly benefits children.3

Many courts are either unaware of – or choose to flagrantly disregard – the applicable caselaw. Moreover, many courts have themselves become part and parcel of the revenue maximization apparatus.4

The Southern Center for Human Rights addressed many of these particular issues in their civil complaint:

Because child support contempt proceedings are labeled civil, Plaintiffs and other similarly situated parents are denied legal assistance. Whereas persons charged with criminal contempt are afforded the right to counsel and may be incarcerated for no more than twenty days, see O.C.G.A. § 15-6-8, parents charged with civil contempt for falling behind in their child support obligations are routinely jailed indefinitely – for months, a year, or longer – without any help or guidance from an attorney. People facing criminal charges are accorded process: they appear in front of judges; their hearings are recorded; they have the right to a jury trial. By contrast, indigent parents such as Plaintiffs go to jail after civil contempt proceedings that are often perfunctory, un-recorded proceedings, lasting just minutes, at which there is no significant inquiry into their ability to pay. In some instances, Plaintiffs have been jailed for months without a hearing and without any judicial review of their incarceration.

On Cotober 28, 2011, the Center filed a legal brief with the Fulton County Court, explaining in detail why the case should proceed as a class action suit. Fulton County Superior Court Judge Jerry Baxter granted the motion to certify the case as a class action in December of 2011. The class consisted of all indigent parents who, without appointed counsel, face incarceration for nonpayment or underpayment of child support in contempt proceedings at which the state Department of Human Services is represented by state-funded counsel.

The state appealed, and the Georgia Court of Appeals reversed the case in Deal v. Miller, 739 SE 2d 487 (March 20, 2013). The court held that the case failed to satisfy the requirement that there be questions of fact or law common to all class members, and that the claims of the named plaintiffs be typical of those of the class. As none of the named plaintiffs had requested counsel at or prior to the contempt proceedings leading to their incarceration, the Court held that they were not denied due process. The purported class members had provided no proof that were either qualified for – or were denied access to appointed counsel.

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Southern Center for Human Rights attorney Sarah Geraghty making her case in the Georgia Supreme Court.

The Center thereafter appealed the ruling to the Georgia Supreme Court. On April 24, 2013, a Petition for Writ of Certiorari was filed in the Georgia Supreme Court, and the Georgia Supreme Court accepted the case for its review on September 23, 2013.

On Tuesday, January 21, 2014, oral arguments were made before the Court.

According to the case docket record in the Georgia Supreme Court Computerized Docketing System, Miller et al. v. Deal et al is currently in the stage of the parties to the action filing legal briefs. As of the March 19 docket, the last action in the case was on February 21, 2014, with the Appellant having filed a Supplemental Brief.


1. For example, in the Fourth Circuit, “The element of criminal intent is necessary to a contempt conviction” United States v. Warlick, 742 F.2d 113, 117 (4th Cir.1984); U.S. v. Marx, 553 F.2d 874, 876 (4th Cir. 1977). Thus, the Fourth Circuit adopted the language of U.S. v. Seale, 461 F.2d 345, 368-69 (7th Cir. 1972) which defined criminal intent as “a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful.” The Fourth Circuit explaines in Richmond Black Police Officers Ass’n v. City of Richmond, 548 F.2d 123, 129 (4th Cir.1977): “To support a conviction of criminal contempt for violation of a court order, it must be proved beyond a reasonable doubt that a person willfully, contumaciously, intentionally, with a wrongful state of mind, violated a decree which was definite, clear, specific, and left no doubt or uncertainty in the minds of those to whom it was addressed.”

In expressing its disdain for the distinction between the civil and criminal variety of contempt, the Virginia Court of Appeals explained: “The jail doors clang with the same finality behind an indigent who is held in contempt and incarcerated as they do behind an indigent who is incarcerated for a violation of a criminal statute. We eschew the rubric of ‘criminal’ versus ‘civil’ in determining what process is fair.” Krieger v. Commonwealth, 38 Va. App. 569, 566 (2002) (en banc). In seeking further to claify the subtle distinction, the same Court explained some two years later that: “Proceedings for contempt of court are of two classes — those prosecuted to preserve the power and to vindicate the dignity of the court, and those instituted to preserve and enforce the rights of private parties. The former are criminal and punitive in their nature; the latter are civil and remedial.” Estate of Hackler v. Hackler, 602 S.E.2d 426, 435 (Va. Ct. App. 2004).

2. United States v. Hayes, 722 F.2d 723, 725 (11th Cir.1984). Internal citations and quotation marks have been removed for sake of clarity.

3. See for example Department of Health and Human Services, Office of Inspector General, Review of Rising Costs in the Emergency Assistance Program, (A-01-95-02503) October 6, 1995 (discussing how states shifted child welfare, foster care and juvenile justice costs to the EA program); Department of Health and Human Services, Office of Inspector General, Reconciliation of Expenditures, Title IV-A Emergency Assistance Program, Nebraska Health and Human Services System, (A-07-98-01035) April 13, 1999 (states use of funds in calculating TANF awards); U.S. General Accounting Office, Medicaid: States Use Illusory Approaches to Shift Program Costs to Federal Government, Pub. no. GAO/HEHS-94-133, 1994 (noting some states employ a variety of methods to transfer Medicaid funds to the state treasury or for purposes other than for which they are intended); Department of Health and Human Services, Office of Inspector General, Review of Medicaid Enhanced Payments to Local Public Providers and the Use of Intergovernmental Transfers, (A-03-00-00216) September 11, 2001 (“many of the enhanced payments were not retained by the facilities to provide services to Medicaid beneficiaries. Instead, some or most of the funds were transferred back to the States for other uses”); Department of Health and Human Services, Office of Inspector General, Connecticut Title IV-E Training Costs Did Not Always Comply With Federal Requirements (A-01-12-02500) December 17, 2012 (state agency should refund the Federal share of $1.3 million); Department of Health and Human Services, Office of Inspector General, Nebraska Improperly Claimed Some Child Care and Development Targeted Funds (A-07-12-03175) April 30, 2013 (State agency improperly obligated $2 million of targeted funds after the obligation period had ended; improperly claimed $974,000 of expenditures that were not for targeted funds activities; did not refund to the Federal Government $37,000 of targeted funds); see also Daniel L. Hatcher, Foster Children Paying for Foster Care, 27 Cardozo L. Rev. 1797 (2006); Child Support Harming Children: Subordinating the Best Interests of Children to the Fiscal Interests of the State, 42 Wake Forest L. Rev. 1029 (2007); Collateral Children: Consequence and Illegality at the Intersection of Foster Care and Child Support, 74 Brooklyn L. Rev. 1333 (2009).

4. That the maximization of revenue has become the raison d’être of many a court system is beyond reasonable doubt. Georgia’s 2007 Program Improvement Plan for Title IV-E Eligibility Review – a corrective plan submitted to the federal Department of Health and Human Services – clearly spells out that the state’s Revenue Maximization unit will provide a critical oversight function over the juvenile and dependency courts. (“RevMax will be the gatekeeper for court orders. Social Services staff will be required to forward a copy of all court orders and referenced attachments on active children in foster care as of June 30, 2007, to RevMax”).

See also Carl Reynolds and Jeff Hall, Conference of State Court Administrators, Courts Are Not Revenue Centers, Policy Paper, 2011 (“For revenue sources attached to civil cases, court leaders must advocate for the principles of access to justice, the balance of public good and private benefit in establishing court fees, and restricting revenue generation to court purposes only”); Alicia Bannon, Mitali Nagrecha and Rebekah Diller, Criminal Justice Debt: A Barrier to Reentry, Brennan Center for Justice, (October 2010) (“Overdependence on fee revenue compromises the traditional functions of courts and correctional agencies”); Alabama Judicial Inquiry Commission, Advisory Opinion 14-926, (March 4, 2014) (“orders of the court [must be] duly signed by the judge in a timely manner; that blank orders are never signed by the judge to be filled in by staff; that execution of orders not be delegated to staff by use of signature stamps; that all plea agreements, waivers of counsel, and other forms be properly executed and maintained; that counsel be appointed for indigent defendants where appropriate; that all orders and records of the court be retained by the court clerk as required by law; that the amount of fines imposed and court costs and fees assessed be limited to those allowed by law; that proper corrective action be taken upon discovery that the amount of such fines, costs, or fees was excessive and that traffic tickets be timely forwarded to the Department of Public Safety as required by law”); Human Rights Watch, Profiting from Probation, February 5, 2014; Hills McGee v. Sentinel Offender Services, LLC, No. 11-14077, D.C. Docket No. 1:10-cv-00054-JRH-WLB, (11th Cir. June 6, 2013) (“Sentinel has collected $5,675,639.20 in supervision fees from individuals who have been convicted of misdemeanor or ordinance violations in the State of Georgia and are presently under probation supervised by Sentinel, as well as $2,086,811.08 in electronic-monitoring fees and $183,049.00 in drug-screening fees from the same population, for a total of $7,945,499.28”); McGee v. Sentinel Offender Services, LLC, No. CV 110-054, 2010 WL 4929951 (S.D. Ga. Nov. 30, 2010) (noting that “35,753 individuals who have been convicted of misdemeanor or ordinance violations in the State of Georgia are under probation supervised by Sentinel”); Southern Center for Human Rights, Roadblocks to Reform: Privatization Perils for Georgia’s Criminal Justice System, (November 2012); American Civil Liberties Union, In For a Penny: The Rise of America’s New Debtors’ Prisons, (October 4, 2010) (“indigent defendants are imprisoned for failing to pay legal debts they can never hope to manage. In many cases, poor men and women end up jailed or threatened with jail though they have no lawyer representing them”); Timothy B. Lee, “Private Probation as a Monstrous Hybrid,” Forbes, (July 3, 2012) (“the judicial system isn’t, and shouldn’t be, a for-profit system”); Lauren Gambino, The Guardian, “
Thrown in jail for being poor: the booming for-profit probation industry
“, as reported in Delaware County Daily Times (March 3, 2014); John Schwartz, “As State Courts Face Cuts, a New Push to Squeeze Defendants,” New York Times, (April 6, 2009).

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