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Suit: Allen County didn’t provide counsel in support contempt cases

May 4, 2018

Allen County violated the right to counsel for indigent parents who faced the prospect of incarceration for failing to pay child support, a suit filed recently in state court argues.

The suit in Allen Superior Court 3 seeks a class action for indigent litigants who were not provided counsel or were not apprised of their right to counsel in child support contempt cases — where a contempt finding could result in jail time — from April 2016 to April 2018. The suit names the state, Allen Superior Court and former Allen juvenile court Magistrate Judge Michael T. Douglass, among other defendants.

Allen Superior Court executive John McGauley said he could not comment on the case, which he said would be defended by the Indiana Attorney General’s office. A spokesman for the AG’s office did not immediately respond to messages seeking comment Friday, nor did Fort Wayne civil rights attorney David Frank, who filed the suit. Douglass resigned in March, the Fort Wayne Journal Gazette reported. He could not be reached for comment Friday.

The suit filed last month names Calvin Wilson as lead plaintiff. It claims Wilson worked odd jobs and paid child support as he could, but because he was indigent, he was unable to resolve an arrearage in his court-ordered child support obligation.

The suit argues Wilson has never been provided or apprised of his right to appointed counsel in his child support contempt cases, a violation of his rights to counsel under the 14th Amendment and under Article 1, Section 12 of the Indiana Constitution. The suit cites, among others, Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. 2005); Branum v. State, 822 N.E.2d 1102, 1104 (Ind. Ct. App. 2005); and In re Marriage of Stariha, 509 N.E.2d 1117, 1121 (Ind. Ct. App. 1987) as case law supporting the proposition that indigent litigants are entitled to appointed counsel in child support civil contempt proceedings.

After Douglass found Wilson in contempt for back support without an attorney representing him, the magistrate judge imposed a 90-day suspended sentence, the suit says. Wilson’s wages also were garnished and his driver’s license suspended, which the suit says further complicated his ability to resolve his support arrearage because he could not afford to pay the full amount of his court-ordered support.

As a result, about a year and a half later in April 2016, Douglass ordered Wilson to serve a 30-day jail sentence for civil contempt in his child support case, again in a proceeding in which Wilson was without counsel.

“On August 11, 2016, Mr. Wilson, requested that the court through Defendant Magistrate Michael T. Douglass appoint him counsel in his case because he was and is indigent,” the suit says. “The court through Defendant Magistrate Michael T. Douglass denied his request. ... Mr. Wilson has since again requested counsel, but continues to be denied.”

The proposed class of litigants seeks a declaratory judgment that they were deprived their right to counsel; an injunction restraining the defendants from further violations of their rights; compensatory damages; legal fees and costs.

The suit does not hazard a guess to the size of the class but notes there are currently about 22,000 child support prosecutions in Allen County.

“More than eighty percent … statistically, are not appointed counsel in such cases that originate as paternity actions, and the number of indigent respondents who are unrepresented at the stage of child support civil contempt proceedings is believed to constitute an overwhelming majority,” the suit says.

“As a result of the aggressive tools used in child support actions, respondents’ wages are garnished, their licenses are suspended, their property is liened, and approximately sixty respondents are incarcerated annually,” the plaintiffs argue. “County prosecutors collect more than $30 million per year from these respondents, the majority of whom are indigent. No Defendants have devoted funding for attorney services for indigent respondents facing civil contempt proceedings from 2016 to present.”

The suit was filed April 20, and no attorneys have yet entered appearances on behalf of the defendants. Allen Superior Judge Stanley Levine on Tuesday recused himself from the case. A special judge had not been appointed to hear the case as of Friday, according to online court records.

The case is Calvin Wilson, et al. v. State of Indiana, et al., 02D03-1804-CT-000216.

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