Turner v. Rogers and the Essential Role of the Courts in Delivering Access to Justice
New England Law | Boston
February 5, 2013
Harvard Law & Policy Review, Forthcoming
New England Law | Boston Research Paper No. 13-02
The United States Supreme Court’s decision in Turner v. Roger created a stir in the civil-right-to-counsel and access-to-justice communities. A unanimous Court ruled that there was no categorical right to counsel under the Due Process Clause in a civil contempt case based on failure to pay child support, even where the contemnor faced incarceration. The majority nonetheless found that South Carolina’s procedures violated due process.
Some commentators decried the Court’s refusal to recognize a categorical right to counsel, while others praised that decision. Some focused on the promising implications, from an access-to-justice perspective, of the majority’s decision to recognize that the question of appointment of counsel is tied to the fairness of the underlying procedures. Others feared that the decision might foreshadow a rollback in the number of civil proceedings in which states currently recognize a right to counsel. The responses suggest that, while the decision represents a civil-right-to-counsel “loss,” it might well represent an access-to-justice “win.”
Despite the presumptive importance of a Supreme Court decision, the trends that form Turner’s backdrop are likely to have far greater impact on a civil right to counsel and access to justice than the decision itself. The Supreme Court infrequently addresses these issues, while state courts, state legislatures, and state access to justice commissions regularly grapple with the flood of unrepresented litigants in the courts. Whether Turner proves to be a watershed or a footnote, the success of access-to-justice initiatives, including an expanded civil right to counsel, will likely be determined in other arenas.
This article begins by describing Turner, the access-to-justice backdrop against which Turner was decided, and scholarly responses to the decision. The article next revisits a comprehensive access-to-justice strategy I have articulated elsewhere that is consistent with the logic of Turner. The three-pronged strategy involves (1) expanding the roles of the key players in the court system to promote meaningful access, (2) utilizing an array of assistance programs short of full representation by counsel, paired with rigorous evaluation of the programs to identify the scenarios in which they can sufficiently protect the interests at stake, and (3) an expansion of a civil right to counsel where the lesser steps cannot afford meaningful access. Because the true meaning of Turner will emerge only over time, the success of the access-to-justice initiatives that formed Turner’s backdrop will be more likely than the Turner decision itself to achieve the goal of meaningful access. The article illustrates the way in which progress on an array of initiatives, consistent with all three prongs of the comprehensive strategy, is underway. The article concludes with observations and questions that are implicit in Turner but which must be articulated and answered to help assess whether those without counsel can receive meaningful access to justice in the courts in the post-Turner world. While the solutions depend on the coordinated efforts of many actors in the public and private sectors, the courts themselves, as Turner suggests, must play a crucial role.
Number of Pages in PDF File: 31
Keywords: Access to Justice, Civil Gideon, Civil Right to Counsel, Self-Represented, Unrepresented, Pro Se, Courts, Judges, TurnerAccepted Paper Series
Date posted: February 13, 2013 ; Last revised: February 18, 2013
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