In cases where the government is seeking to hold an indigent person in contempt for unpaid child support and a jail sentence is a possibility, they are entitled to an attorney, the state’s Court of Appeals has decided.

The key ruling from the state’s second-highest court expands on a decade-old U.S. Supreme Court case that declared no automatic right existed under the Constitution to appointed counsel in contempt hearings, but nevertheless gave a roadmap for judges to decide when it is necessary.

Accordingly, a three-member panel for the Court of Appeals found a Pueblo County judge failed to determine whether Joshua Broyhill was indigent and qualified for representation, even as he repeatedly stressed he could not pay for his own attorney and believed prior court decisions entitled him to one. An attorney, in the panel’s mind, would likely have made a difference in Broyhill’s case.

“A trained advocate would undoubtedly have assisted Broyhill by advising him on the applicable law, raising appropriate objections to [Pueblo County Child Support Services’] evidence, cross-examining CSS’s witnesses, introducing documentary and testimonial proof,” wrote Judge Craig R. Welling for the panel, “or uncovering, perhaps, another viable defense to the charge.”

Tracy L. Ashmore, the attorney for Broyhill on appeal, cautioned that while the decision only directly applies to cases where the government is the entity seeking to have a person held in contempt, the effects may be farther-reaching.

“I think to be safe, courts are going to look at if they have an indigent person facing contempt, do they have a due process right – is it only going to be fair – to have appointed counsel,” she said.

In September 2018, Child Support Services asked a court to hold Broyhill in civil contempt for an unpaid child support balance of $11,929. The payment was intended to reimburse the state of Iowa, which had provided public benefits to the mother of Broyhill’s child. The mother was not a part of the Pueblo District Court proceeding.

Pueblo County asked for a “remedial” jail sentence of no more than six months for Broyhill. A remedial sanction for contempt is intended to bring a person into compliance with a court order, with the assumption that they have the power to end their incarceration by fulfilling their original obligation. In contrast, punitive sanctions are for criminal conduct and are intended solely as punishment.

During his appearance before then-District Court Judge Jill S. Mattoon, she advised Broyhill that he had the right to an attorney – but at his own expense. Broyhill countered that he could not afford one.

At one point, Broyhill argued that he was entitled to an appointed attorney. He cited a 1982 decision of the Court of Appeals, Padilla v. Padilla, which found a judge violated the defendant’s constitutional rights by not advising him of his right to an appointed lawyer. As in Broyhill’s case, Padilla involved unpaid child support and incarceration for contempt.

“Sir, that’s not my understanding of the law. This is a remedial contempt not a punitive contempt,” Mattoon replied. She appeared to believe a court-appointed attorney was not required because Broyhill’s case was a civil matter, even though the penalty for contempt – jail – would be the same as for criminal contempt. 

Broyhill proceeded without a lawyer, while Child Support Services had the benefit of counsel. Broyhill explained that because of a disability, he had trouble getting and holding down employment. 

Mattoon found Broyhill in contempt and ordered him to jail for 30 days unless he could make his child support payments. Broyhill appealed Mattoon’s decision, which Ashmore said kept him out of jail pending the Court of Appeals’ ruling.

“A citizen like Mr. Broyhill cannot lawfully be jailed simply because he is unable to pay his debts in spite of his best efforts,” she argued to the court on behalf of her client, likening the situation to debtors’ prison.

In an unusual move, Pueblo County did not file a response to Broyhill’s appeal. Instead, the ACLU of Colorado and the Family Law Section of the Colorado Bar Association both wrote in support of Broyhill. The ACLU pointed out that if the purpose of jailing Broyhill was to bring him into compliance with his child support order, the fact that his income had totaled $11.19 over approximately two years meant jail would have “no coercive effect.”

Broyhill’s case implicated prior U.S. Supreme Court decisions on the right to an attorney for indigent parties. The landmark Gideon v. Wainwright ruling established a right to court-appointed counsel for state criminal defendants who could not afford one, and led to the creation of Colorado’s public defender office. Five decades later, in 2011, the Court faced the question of whether the same right also applied to indigent people facing incarceration for civil contempt.

By a 5-4 decision, the justices found there was no automatic right to representation under the Constitution. In cases where one parent was seeking child support from the other, the Court reasoned, it would make the proceedings less fair to give one party a lawyer but not the other.

However, there were two key caveats. First, the Court declined to address cases, like Broyhill’s, where the government was the party seeking to collect on a debt. Second, the Court laid out a set of criteria for determining the risk of unfairness if an indigent defendant were required to proceed on his own.

Based on those principles, the Court of Appeals panel noted that Broyhill had the burden of proving he could not comply with the child support order. Representing himself, he had not marshaled sufficient evidence, whereas a lawyer could have assisted him. Further, the court could have provided safeguards to ensure it did not wrongly jail Broyhill, such as forms for him to document his financial information.

Those circumstances indicated a high risk of a wrongful infringement on Broyhill’s liberty, the appeals court said.

“If I would’ve been involved, I would have been able to reach out to the attorney from Pueblo and say, ‘Look, this gentleman had earnings of $11 over three years. He can’t work because of his disability,’ and I think they would have dropped it,” Ashmore explained.

The panel agreed that potential for wrongfully incarcerating him in the absence of representation outweighed the government’s interest in resolving the case expeditiously.

“Under the circumstances of this case, Broyhill’s due process rights were violated, as the trial court should’ve evaluated his claim of indigency and entitlement to court-appointed counsel,” Welling wrote in the Jan. 6 opinion. He added, “from the preparation of his defense to the last fall of the gavel, Broyhill was clearly disadvantaged.”

The Marshall Project reported that in 2014, child support debt nationally amounted to $112.5 billion, a quarter of which was owed to the government for reimbursement of public benefits. But in nine states, people who earned under $10,000 per year owed 70% of the debt. While some in that group may be able to pay, The Urban Institute noted, a sizable portion stems from people who are incarcerated or disabled.

“The idea of ability to pay and having a lawyer are very connected in this context,” said Annie Kurtz of the ACLU of Colorado. “Without a lawyer, someone might not have the ability to be heard on that central question. Without recognizing someone’s right to a lawyer, we risk sending people to jail for being poor.”

The panel sent the case back to the district court to verify whether Broyhill was indigent. If so, a court-appointed attorney at a new contempt hearing will be required.

The case is In re the Parental Responsibilities Concerning A.C.B.