What’s on Their Minds: Child Support Contempt “Purge” Hearing to Impose a Suspended Sentence: Civil or Criminal? Michael Liming v. Denday Damos

On October 24, 2012 the Supreme Court issued a merit decision in this case.  Read the analysis here

On May 23, 2012, the Supreme Court of Ohio heard oral argument in the case of Michael Liming v. Denday Damos, (f.k.a. Liming), 2011-1170/2011-1985.  The Court accepted this case on conflict certification and discretionary review, and consolidated the two cases.  The certified question is whether a purge hearing to impose a suspended sentence for failing to pay child support is a civil or a criminal proceeding.  Liming’s two propositions of law are 1) due process entitles an indigent contemnor to counsel at a purge hearing if the court imposes jail time, (In questioning, Chief Justice O’Connor wondered if this would need to be tweaked to “potentially could impose jail time”) and 2) when it is impossible for an indigent contemnor to comply with a purge order, the purge hearing is criminal in nature and therefore the contemnor is entitled to court-appointed counsel.

Warning! Long post.

In a contempt hearing in October of 2008, upon motion by the Athens County Child Support Enforcement Agency (ACCSEA) a Magistrate recommended that Liming be found in contempt and sentenced to thirty days in jail, all of which would be suspended if Liming met certain purge conditions requiring a monthly amount toward his arrearage and an additional monthly amount for his current child support obligations.  Liming had an attorney at this hearing.  In November of 2008 the Court adopted the Magistrate’s recommendation, to which no objections had been filed. Liming made payments as ordered for awhile, but then began missing them.   

In 2010, the court reduced Liming’s support payment at the  request of ACCSEA, but Liming did not make payments towards the arrearage, so  ACCSEA moved to impose the suspended 30 day contempt sentence.  At the June 2010 motion to impose hearing, Liming, who at the time was self-employed and indigent, requested counsel, but the court refused, so he was unrepresented.  The court ordered Liming unconditionally to serve ten days in jail, and left the remaining twenty days suspended.  Read the oral argument preview of this case here.

The Oral Argument

Liming’s counsel argued that courts have struggled to categorize contempt as either civil or criminal. (Professor’s note—a person can be jailed in both civil and criminal contempt proceedings. But in a civil contempt proceeding, a person cannot be held in contempt if that person is unable to comply with the court’s order. So a parent truly unable to pay child support cannot be jailed.) To make this determination, courts should look at the nature and character of the remedy imposed.  If the sanction is imposed to coerce the defendant to comply with the court’s order, then the matter is civil. Key characteristics of a civil contempt sanction are that they may be lifted or purged; they are conditional. The October 2008 purge hearing was civil in nature, because its purpose was coercive, and the sentence contained a purge condition, which is crucial.  As Liming’s attorney put it, the defendant holds the key to his cell, as it were. Criminal contempt, by contrast, is used to punish the contemnor.  It is unconditional, cannot be lifted, and there is nothing the defendant can do to get out of it. The June 2010 motion to impose hearing was criminal because it imposed an unconditional ten days of jail time on Liming, with no purge conditions. He was thus entitled to counsel at that hearing, because of the due process requirements that attach in a criminal proceeding.

Counsel for the ACCSEA argued that the motion to impose hearing was civil in nature, and no Sixth Amendment right to counsel attached. So Liming was not entitled to counsel at the June 2010 hearing. He relied heavily on the U.S. Supreme Court decision in Turner v. Rogers,In that case the U.S. Supreme Court held that a non-paying indigent parent is not constitutionally entitled to appointed counsel in a contempt hearing, so long as the state has alternative procedural safeguards in place to ensure fairness in the hearing. Such safeguards are clear notice that ability to pay is the crucial issue at the contempt hearing, a form or an equivalent way to establish information about the non-payor’s financial condition, the opportunity for the non-payor to respond to the information presented, and a judicial determination that the non-payor has the ability to pay. Since Ohio has a statutory right to counsel at a motion for contempt hearing, it arguably needs none of the other safeguards, (some of the alternatives addressed in Turner are probably already in place), but the ACCSEA lawyer asked the Court, on behalf of all the other child support enforcement agencies, for guidance on the question of exactly what safeguards required by Turner  that Ohio must meet.

The Justices asked a lot of very detailed questions about exactly what happened at the various hearings.  Justice O’Donnell in particular used a lot of the appellant’s opening time, asking whether at the time Liming was ordered to pay support, there was a determination that he was able to pay or comply with the court’s support order, whether there was any evidence of his employment or income, or how much he paid after the contempt hearing.   When did he become indigent? Justice Lanzinger asked if there was ever a finding of indigency in the case. (answer: no).

Justice McGee Brown was the most overtly hostile to Liming’s position, commenting that the taxpayers had supported his children (his lawyer politely, but firmly, disagreed. The children were supported by their mother, not by taxpayer money.) and he had had a very long time to purge himself of contempt before the motion to impose. There was evidence that he could work, and he knew exactly what to do to stay out of jail. Had he used the same persistence in seeking employment that he used coming to court? Isn’t the real question whether he was capable of working, not whether he was indigent?  Didn’t he have the chance to present evidence on the question of whether he was capable of working before the support order was entered?  Chief Justice O’Connor also chimed in along these lines—wasn’t this problem of his own making? Didn’t Liming choose not to be gainfully employed?

Here’s more:

Could the Ten Days be Purged If He Paid Up? What’s the Significance of No Purge Condition?

Justices O’Donnell and Cupp both homed in on this. What was the purpose of those ten days, asked Justice O’Donnell.  Did the court make a determination that Liming could comply but refused?

Exactly When Does the Right to Counsel Attach?

Justice Lanzinger noted that Liming had had his own lawyer at the divorce proceeding, retained counsel when the support order was entered, and at the contempt proceeding.  Was it at the June 2010 hearing counsel had to be appointed (answer from Liming’s counsel—yes). She later noted that there is a right to counsel in a is a criminal proceeding for nonsupport.

Is it when his right to liberty is taken away, asked Justice O’Donnell.

At all purge hearings, mused Chief Justice O’Connor?

Is this Civil or Criminal Contempt?

Asked Justice Lanzinger.  It can be both, replied Liming’s lawyer, who said a lot about the dual purpose of contempt hearings. The 20 days suspended was civil, but the 10 days of unconditional jail time was criminal.  In a key exchange of the day, Justice Lanzinger asked “Are you saying the sanction alone determines whether this is civil or criminal contempt?” (answer:yes) Justice McGee Brown commented that the U.S. Supreme Court  has never ruled that when there is no purge opportunity the matter  gets converted to criminal contempt.

Does the fact that Liming was ordered to be incarcerated make it criminal, asked Justice O’Donnell (answer from ACCSEA’s lawyer—no)

 And Justice Cupp asked whether the characterization of the hearing turned on whether there was or wasn’t a purge condition when jail time was imposed. Doesn’t it look like punishment once the entry says you have to serve 10 days in jail—isn’t the logical assumption that you are being punished because you didn’t comply? Not that I am giving you one last chance to stay out of jail?

In another key exchange of the day, Justice Cupp asked, doesn’t’ the fact that you can’t get out of it make it criminal, and counsel for the ACCSEA answered, no, not according to Turner.  Following up on that, the Chief asked if the ACCSEA view is that the 10 days in jail are not criminal in nature but are used to emphasize that the remaining 20 days hanging over his head could be imposed, so it is an incentive to pay as opposed to a punishment for not paying (answer—yes—and I think this is the tip off to how the case is going to turn out).  Why not look at the ten days not as punishment but as an incentive to pay the balance, she asked.

What is the Moment of Transformation?

Asked Chief Justice O’Connor.  If jail is on the table must counsel be appointed?

We Can’t Ask Judges to Pre-Judge cases without hearing the evidence!!

Chief Justice O’Connor really got into it with Liming’s counsel about how this would work, procedurally.  A judge can’t tell in advance if he or she is going to impose unconditional jail time—that would be prejudging the case.  So how could the judge appoint counsel ahead of time?  How would this work?  Did Liming’s counsel want the Court to write a rule that if the court was considering jail time it must appoint a lawyer? Was Liming asking the judge to telegraph that that the judge “may charge you with a nonpurgeable incarceration, so you’d better come with an attorney and pack a toothbrush?”

Liming’s lawyer stuck to her guns, answering every iteration of this question (and there were many) with “if the court thinks there is a reasonable probability it is going to impose actual jail time, counsel must be appointed.”

Is the case really like Turner?

 Justice Cupp noted that Turner’s 12 month jail term had a purge condition in it, which makes it seem very different from Liming’s case.

How it Looks from the Bleachers

It looks like a majority, led by the Chief, is going to find the hearing  to impose  is a civil contempt matter in which the right to counsel does not attach, because even though the ten days jail time was unconditional, that should not be seen as punishment, but as coercive, as an incentive to pay to get out of the other twenty days.  Justices Cupp and to a lesser extent Justice O’Donnell,  seemed the least persuaded by that, seeing an unconditional sentence with no purge condition as much more like punishment. I  have to admit, I’ve always had a hard time seeing being sent to jail with no way of getting out of it as anything other than punishment.

 Despite the fact that counsel for the ACCSEA asked the  Court to provide guidance as to what is required for support agencies after Turner,  that may be beyond the reach of this case.  Still, there is a crucial difference between  this case and the Turner case that no one mentioned —in Turner the U.S. Supreme Court made it clear in not requiring counsel for the contemnor in that case that a key part of that determination was that it was the mother, not the government, trying to collect support, and the mother had no lawyer.  The Liming  case is quite different, and more process may be due. But it is also true that Ohio has more protections already in place than South Carolina had in Turner, including a statutory right to counsel at the hearing to impose contempt.

 Student contributor Katlin Rust also thought the Court will likely decide this case on the ground that the 2010 hearing that imposed the unconditional jail time was not a criminal proceeding and therefore Liming was not entitled to counsel. She thought only Justice Cupp seemed to be leaning toward Liming’s side.






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