Turner v. Rogers is a 5-to-4 U.S. Supreme Court ruling that a delinquent, indigent child support payor has no automatic right to legal counsel under the Due Process Clause of the Fourteenth Amendment. 387 S. C. 142, 691 S. E. 2d 470 (June 20, 2010). I would have written a separate concurrence.

The majority opinion of Justice Breyer correctly, I believe, vacates the South Carolina Supreme Court and remands for further proceedings. But in my view, the majority does not go far enough in establishing the right to counsel in a support collections proceeding where incarceration may be the outcome.

Ability to pay is the critical factor in a child support contempt proceeding. The payor in this case, Turner, was never told that was the issue. The judge who put him away never mentioned it, and failed to mark on the commitment form whether Turner did or did not have the ability to pay the arrears.

The majority opinion tacitly concedes that if an alleged contemnor lacked the ability to pay support, jail would be a violation of the Due Process Clause, since they would be deprived of “liberty” without “due process of law”. The majority explains that if the trial court had announced the legal standard and marked its form, it could have locked Turner up without the assistance of a lawyer. Deciding otherwise, the Court continues, would be unfair to the support recipient who is often without counsel, and would generate asymmetry, delay and unfairness.

Oddly, the majority considers that the foregoing factors outweigh the principal that an indigent’s loss of physical liberty is a fundamental Constitutional right.

The dissent presents the buzz-words “original understanding of the Constitution” and “blessing of history” in support of an all-to-familiar rationale. If a right is not express in the Constitution and did not exist when our country was founded, it does not exist today. The dissent goes on to discuss the Sixth Amendment (which only applies to criminal proceedings) before addressing the suffering of women and children and the misbehavior of “deadbeat dads;” as if those subjects have anything to do with the right to a lawyer in this case.

A peculiar aspect of the dissent is Footnote 3, which says that “the judge could not hold Turner in contempt without concluding that he could not pay”. Actually, I believe it could. According to Footnote 6, Turner had eight jobs in three years, and dealt drugs in 2008 and 2009. The trial judge might plausibly have locked up Turner for being a deadbeat parent, which has nothing to do with his ability to pay support arrears on the date of the hearing.   Since the South Carolina judge did not mark “had” or “did not have … the ability to make support payments”, the Supreme Court could not possibly know which of those mutually exclusive conditions applied.

This presumptive viewpoint of four Justices – declaring that it makes no factual difference whether Taylor had the ability to purge himself of contempt or not, or whether a form designed to elucidate the answer to that question was properly completed or even utilized at all – is the most troubling part of the whole opinion.