Miller v. Deal

295 Ga. 504

761 S.E.2d 274

MILLER et al.

v.DEAL et al.

No. S13G1197.

Supreme Court of Georgia.

July 11, 2014.

Gerald Richard Weber Jr., Sarah E. Geraghty, Atlanta, for Appellant.

Jason Samuel Naunas, A.A.G., Samuel S. Olens, A.G. Mark James Cicero, A.A.G., Shalen S. Nelson, A.A.G., Department of Law, for Appellee.

BLACKWELL, Justice.

In this lawsuit against the Department of Human Services, ¹ THE TRIAL COURT certified a class of plaintiffs. the department appealed, and in Deal v. Miller, 321 Ga.App. 220, 739 S.E.2d 487 (2013), the Court of Appeals reversed, concluding that the named plaintiffs failed in several respects to show that class certification was warranted. We issued a writ of certiorari to review that decision, and we now affirm the judgment of the Court of Appeals.

1. The named plaintiffs in this lawsuit are indigent parents, all of whom say that they have been incarcerated for failures to pay child support following civil contempt proceedings initiated by the Department and in which the Department was represented by lawyers. The plaintiffs could not afford to hire their own lawyers for these proceedings. Without a lawyer to defend them, the plaintiffs contend, the proceedings in which they were incarcerated failed to comport with the constitutional guarantee of due process. Alleging that the Department routinely initiates such proceedings against indigent parents, but fails to provide lawyers for such parents at the expense of the Department, the plaintiffs sued, seeking declaratory and injunctive relief not only for themselves, but also for a class of all unrepresented and indigent parents who are threatened with incarceration in such proceedings. On the motion of the plaintiffs to certify this class, the trial court found that the plaintiffs had shown each of the four essential prerequisites for class certification under OCGA § 9–11–23(a), as well as the prerequisite for certification under OCGA § 9–11–23(b)(2). Based on these findings, the trial court determined that a class action was warranted, and it certified the class.

The Court of Appeals reversed. To begin, the Court of Appeals correctly explained that the plaintiffs—if they were to be permitted to seek relief for the class that the trial court certified—had to prove that the class was sufficiently numerous,² that the claims that they asserted on behalf of the class presented common questions,³ that their own claims are typical of those that they asserted on behalf of the class,⁴ that they are adequate representatives of the class,⁵ and that the declaratory and injunctive relief that they sought might be appropriately awarded to the class as a whole.⁶ See Deal, 321 Ga.App. at 221, 739 S.E.2d 487. In the end, the Court of Appeals concluded that the plaintiffs had failed to prove commonality and typicality, see id. at 222–226(1)(a), 739 S.E.2d 487, and that they had failed as well to prove the propriety of relief for the class as a whole. See id. at 226–227(1)(b), 739 S.E.2d 487. Though these conclusions may be right—we will get to that shortly—the reasoning by which the Court of Appeals reached them is not.

As we understand its opinion, the Court of Appeals premised all of its conclusions on a fundamental misunderstanding of the constitutional right to counsel. The Court of Appeals seems to have assumed that the named plaintiffs—and presumably, the other members of the class too—all have a constitutional right to appointed counsel in civil contempt proceedings of the sort about which the plaintiffs complain. See id. at 224(1)(a)(i), 739 S.E.2d 487 (acknowledging that “the named plaintiffs may have had the right to counsel” (emphasis omitted)). Even so, the Court of Appeals reasoned, if an indigent parent fails to assert his right to counsel in his own contempt proceeding—by timely requesting a lawyer, by securing a ruling on that request from the contempt court, and by appealing any finding of contempt entered without the benefit of counsel—the parent cannot be said to have been unconstitutionally denied counsel.⁷ See id. at 223–224(1)(a)(i), 739 S.E.2d 487. Whether an indigent parent is advised of his right to request counsel is of no consequence, the Court of Appeals added, because no court has an obligation in civil contempt proceedings to inquire about counsel. See id. at 224(1)(a)(i), 739 S.E.2d 487. Accordingly, the Court of Appeals explained, whether any class member had been denied a right to counsel would require an individualized inquiry about the extent to which they insisted upon counsel, and as a result, the plaintiffs could not show commonality among the class. See id. (“Here, whether the named plaintiffs actually were denied counsel is the essential question, because the answer determines whether they have shown the injury on which their theory of commonality depends.” (Emphasis in original)). Because the named plaintiffs themselves had not insisted upon counsel in their own contempt proceedings, the Court of Appeals said, they could not show that their claims were typical of those asserted on behalf of the class. See id. at 226(1)(a)(ii), 739 S.E.2d 487 (“Here, the named plaintiffs have not shown typicality in that they have not shown injury.”). And likewise, the Court of Appeals concluded, the plaintiffs could not show the propriety of relief for the class as a whole, insofar as the record did not reflect “whether other putative class members have requested and been denied counsel.” Id. at 227(1)(b), 739 S.E.2d 487.

Generally speaking, to the extent that the Constitution affords a right to counsel at government expense, it affords a right that is not waived merely by a party unknowingly failing to insist upon a lawyer in a proceeding in which he is not even advised that he might request counsel. That certainly is true of the categorical right to counsel that is guaranteed to the accused in criminal prosecutions by the Sixth Amendment. See, e.g., Brewer v. Williams, 430 U.S. 387, 404(III), 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (“[T]he right to counsel does not depend upon a request by the defendant....” (Citations omitted)); Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962) (“[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” (Footnote omitted.)). It appears to be no less true of the more limited and conditional right to counsel that the courts have recognized in certain other proceedings as an incident of due process. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 790(III), 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (in probation or parole revocation proceedings, presupposing that the probationer or parolee will be “informed of his right to request counsel”); Vaughn v. Rutledge, 265 Ga. 773, 774(2), 462 S.E.2d 132 (1995) ( “A probationer is entitled ... to be informed of his right to request counsel.” (Emphasis omitted)). The Court of Appeals seems to have misconstrued our decision in Adkins v. Adkins, 242 Ga. 248, 248(2), 248 S.E.2d 646 (1978), as suggesting that a trial court never is required to advise or to inquire about an entitlement to counsel in a civil contempt case. But in Adkins, we dealt with an assertion that the Sixth Amendment—which, of course, applies only in criminal proceedings and has no application whatsoever in a civil case—required a civil contempt court to inquire about counsel. We did not address in Adkins any right to counsel that arose from the guarantee of due process, as the plaintiffs in this case claim. Accordingly, to the extent that named plaintiffs or other class members have a constitutional right to appointed counsel, they do not waive that right simply by failing to insist upon counsel in proceedings in which no one advised them that they could ask for counsel.

2. We nevertheless conclude that the Court of Appeals was right when it determined that the plaintiffs failed to show the requisite commonality, typicality, and propriety of classwide relief. To show these things, the plaintiffs relied entirely on their assertion of a categorical constitutional right to appointed counsel. But in Turner v. Rogers, ––– U.S. ––––, ––––(III)(B), 131 S.Ct. 2507, 2520, 180 L.Ed.2d 452 (2011), the United States Supreme Court made perfectly clear that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration.” (Emphasis in original). To be sure, Turner involved an assertion that indigent parents have a categorical right to appointed counsel in all civil contempt proceedings in which they are threatened with incarceration for a failure to pay child support. The plaintiffs in this case, on the other hand, assert only that indigent parents have a right to appointed counsel in civil contempt proceedings in which they are threatened with incarceration for a failure to pay child support and in which the Department is represented by a lawyer, a circumstance that the Supreme Court explicitly declined to address in Turner. See id. at ––––(III)(B), 131 S.Ct. at 2520 (“We do not address civil contempt proceedings where the underlying child support payment is owed to the State.... [In such proceedings,] [t]he government is likely to have counsel or some other competent representative.” (Citations omitted)). Still, the plaintiffs urge a categoricalright, even if it is one more narrow than the categorical right rejected in Turner.

Although the plaintiffs cite a number of court decisions around the country to support their claim of a categorical constitutional right,⁸ most of these decisions were based on Lassiter v. Dept. of Social Svcs. of Durham County, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and all were decided before Lassiter was clarified by Turner. In Lassiter, the Supreme Court recognized a “presumption...