The treatment of self-represented litigants is an ongoing dilemma for Indiana courts. Judges grapple with questions of how to effectively ensure access to justice for these litigants, who may be at a disadvantage in proceedings where important rights are at stake. This question was addressed by the United States Supreme Court in 2011 in Turner v. Rogers, 131 S.Ct 2507 (2011). Although the ruling in this case was concerned specifically with nonpayment of child support cases, it has larger implications for the treatment of pro se litigants in many types of civil cases.
In Turner v. Rogers, a noncustodial parent had been ordered to pay weekly child support and repeatedly failed to do so. He had previously been incarcerated for nonpayment of support. A civil contempt hearing was held at which neither he nor the custodial parent was represented by counsel. The State was not a party. At the contempt hearing, the judge asked Mr. Turner if there was “anything you want to say.” Mr. Turner responded that he had not paid because he had been on drugs but was now clean. He asked for another chance. The judge found Mr. Turner in contempt of court and sentenced him to twelve months in jail. He neither questioned nor made any finding as to Mr. Turner’s ability to pay. Mr. Turner appealed, arguing that he had a right to counsel. The South Carolina Supreme Court rejected this argument.
The United States Supreme Court reversed, finding that while there is no categorical right to counsel in civil incarceration cases, the trial court violated due process rights by failing to provide alternative procedural safeguards. The Court declined to find a right to counsel for three reasons: 1) the issue in child support nonpayment cases is sufficiently straightforward—the defendant’s ability to pay; 2) since there was no counsel on the other side by providing counsel it might create an asymmetry that would “alter significantly the nature of the proceeding;” and 3) there are alternative procedural safeguards available that guarantee a defendant’s due process rights.
Citing Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the court used several factors to determine what specific safeguards are required by the Due Process Clause. These include:
- the nature of the private interest that will be affected;
- the comparative risk of an erroneous deprivation of that interest with and without additional or substitute procedural safeguards; and,
- the nature and magnitude of any countervailing interest in not providing additional or substituted procedural requirements. Id at 2517-2518.
The Court then enumerated the “alternative procedural safeguards” that should be used in order to preserve a litigant’s due process rights if he or she does not have an attorney in a nonsupport payment case as follows:
- notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding;
- use of a form (or the equivalent) to elicit relevant financial information;
- an opportunity at the hearing for the defendant to respond to statements and questions about his financial status; and
- an express finding by the court that the defendant has the ability to pay.
While some advocates have seen this ruling as a setback to the right to counsel in civil cases, the case is significant because it protects other procedural due process rights in many civil cases. Further, it explicitly sanctions judges’ taking measures to help pro se litigants. The ruling lays out requirements for procedural safeguards in situations in which parties are unrepresented and in which there are serious rights at stake. As such, it provides important guidelines for courts when faced with pro se litigants facing deprivation of rights such as incarceration.
The ruling in Turner seems to require that the procedures of the case as a whole ensure appropriate accuracy and fairness. So what does this mean for judges? What can judges do in these cases to ensure due process?
Types of cases requiring Turner safeguards
In declining to find a right to counsel, the court in Turner specifically limited its ruling to nonpayment of support cases in which the other side is not represented by counsel. In Indiana, defendants have a right to counsel when facing incarceration for nonpayment of child support or for other types of indirect civil contempt. (See In re Paternity of C.N.S., 901 N.E.2d 1102, 1106 (Ind.App.2009) (citing Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind.Ct.App.2005)).
However, Turner’s requirements for due process protection have broader implications for other cases involving pro se litigants. Turner refers not just to cases where incarceration is at issue, but also to any case in which there is a risk of an erroneous deprivation of a significant right (2518). This might include parental rights, CHINS cases, child custody, housing, or a number of other matters. This might also include collections cases in which there is a writ of body attachment. The protections that Turner enumerates can be applied to a broad range of cases in which self-represented litigants frequently appear.
What do judges need to do?
In addition to its ruling on right to counsel, Turner stands for the proposition that when there is the potential for a significant deprivation of rights, courts may, and in fact may be obligated to, provide certain protections for self-represented litigants. These include:
1. Notice to Defendants—State the Issue at Hand
Judges should inform defendants of the issues that are to be litigated prior to the start of the hearing. In Turner, the court failed to inform the defendant that his ability to pay was the issue, and this was one of the reasons the Supreme Court reversed. Judges can avoid breaches of due process by stating clearly at the outset what is to be litigated.
2. Use Forms
Some judges have been hesitant about the adoption and use of forms for pro se litigants. Turner explicitly endorses the use of forms to elicit pertinent information (2519-20). The Indiana Supreme Court Division of State Court Administration puts a number of forms online that self-represented litigants can access in family law and some other civil cases at: courts.in.gov/selfservice.
3. Question litigants
Judges should not feel constrained from questioning pro se litigants when necessary to ensure a fair hearing. Often judges are concerned that questioning litigants jeopardizes impartiality; however, in many cases not questioning them is more damaging to that impartiality. Turner makes clear that it is appropriate for judges to question pro se litigants in order to preserve their due process rights (2519). While a judge should not present a litigant’s case, it may be appropriate to elicit pertinent evidence that goes to the issue at hand.
4. Appoint counsel when necessary
The Turner opinion limits itself to cases where the issue to be litigated is straightforward, but in more complicated cases the court may find it necessary to appoint counsel (2520). Judges should do so whenever it is apparent that due process rights cannot be adequately preserved without an attorney. Indiana statutes allow for the discretionary appointment of attorneys for indigent litigants in civil cases (IC 34-10-1-1 and 2). Judges should consider this option in cases where a defendant “can fairly be represented only by a trained advocate” (Turner at 2520, quoting Gagnon v. Scarpelli, 411 U.S. 778, 788, 93 S.Ct. 1756, 36 L.Ed.2d 656).
5. Enlist the help of court staff
The Court in Turner endorses the concept of court staff providing neutral support to pro se litigants (2519). Court staff can be useful in ensuring that litigants understand the nature of the proceedings, in providing clear instructions to litigants, and by helping to fill out forms. Judges can and should see that they are allowed to do this.
6. Make court findings clear and in writing
If the court uses a form, all findings should be clearly stated and in layman’s language.
In the face of a still-recovering economy and the limited supply of free and pro bono legal services, the number of self-represented litigants in court is likely to increase. Turner provides useful guidance on the extent to which judges can, and in fact are obligated to, help these litigants.