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discussing appointment of counsel for indigent litigants in civil contempt and other proceedings
Summary of this case from Moreno v. RyanOpinion
No. CV-08-1016-PHX-DGC.
November 3, 2008
ORDER
On June 2, 2008, the Court issued an order enforcing an Internal Revenue Service ("IRS") summons issued to Respondent David Griggs. Dkt. #10. On September 25, 2008, the Government filed a motion for a contempt finding. Dkt. #13. The Court held a contempt hearing with counsel for the IRS and Mr. Griggs on October 29, 2008. Dkt. #21. During the hearing, Mr. Griggs requested the appointment of counsel. The Court denied the request. A hearing was set for November 5, 2008 to determine whether Mr. Griggs will comply with the summons and this Court's orders. Dkt. #22.
Mr. Griggs has filed a motion for leave to file a supplemental response to the Government's motion for contempt. Dkt. #19. The Court will grant the motion. Mr. Griggs states in his supplemental response that while he is a pro se litigant not versed in the law or familiar with court procedures, he believes he has properly invoked his Fifth Amendment right and should not be held in contempt or incarcerated. Dkt. ##20, 20-2.
Although the Sixth Amendment right to counsel has not been implicated because this summons enforcement proceeding is civil, not criminal, the Government has instituted contempt proceedings against Mr. Griggs. The Ninth Circuit has held that an indigent litigant is entitled to appointed counsel in a civil contempt proceeding that presents the threat of imprisonment. See United States v. Sun Kung Kang, 468 F.2d 1368, 1369 (9th Cir. 1972) ("We have concluded that an indigent witness is entitled to appointed counsel in [a civil contempt] proceeding. Threat of imprisonment is the coercion that makes a civil contempt proceeding effective. The civil label does not obscure its penal nature."); Henkel v. Bradshaw, 483 F.2d 1386, 1389 (9th Cir. 1973) (imprisonment prohibited if the defendant "is not represented by counsel in the contempt hearing") (citing Sun Kung Kang and Argersinger v. Hamlin, 407 U.S. 25 (1972)); see also Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 26 (1981) ("[T]he Court's precedents speak with one voice about what `fundamental fairness' has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty."); United States v. Bobert Travel Agency, Inc., 699 F.2d 618, 620 (2d Cir. 1983) (indigent defendant entitled to appointed counsel in civil contempt proceeding); but see United States v. Standifird, No. CIV 06-2055 PHX RCB, 2006 WL 3201027, at *3-4 (D. Ariz. Nov. 3, 2006); United States v. Rylander, 714 F.2d 996, 1004 (9th Cir. 1983) (distinguishing between criminal and civil contempt proceedings and stating that the right to counsel does not apply in a civil contempt proceeding).
Given this case law and the Fifth Amendment issues present in this case, the Court finds that the case is "exceptional" for purposes of 28 U.S.C. § 1915 and the appointment of counsel is appropriate if Mr. Griggs does not already have counsel and he shows that he is financially indigent. See Bobert, 699 F.2d at 619-20 ("Bennett's claim that his Fifth Amendment rights have been abridged in this contempt context presents thorny and unsettled issues, but the hazards of those issues underscore that Bennett should not have been denied the assistance of counsel: To guide a client between the Scylla of contempt and the Charybdis of waiving his Fifth Amendment privilege requires not only a lawyer but an astute one."). Mr. Griggs' supplemental response, however, appears to have been drafted by a lawyer. If Mr. Griggs is being assisted by a lawyer in this case, he shall appear at the November 5, 2008 hearing with his lawyer. If Mr. Griggs does not have counsel, and if he still seeks the appointment of counsel, he shall complete the financial affidavit attached to this order and provide it to the Court at the November 5 hearing. The Court will determine at the hearing whether Mr. Griggs will be appointed counsel.
IT IS ORDERED:
1. Respondent's motion for leave to file supplemental response (Dkt. #19) is granted.
2. The Clerk shall file the proposed supplemental response (Dkt. #20).
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