Choiniere v. Brooks

CHOINIERE_V_BROOKS.94-653; 163 Vt 625; 660 A.2d 289

[Filed 24-Mar-1995]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 94-653

                             MARCH TERM, 1995


Camille Choiniere                    }         APPEALED FROM:
                                     }
                                     }
     v.                              }         Franklin Family Court
                                     }
Scott Brooks                         }
                                     }         DOCKET NO. 380-11-93Frdm


                     In the above entitled cause the Clerk will enter:

         On January 11, this Court granted until further order defendant
Scott Brooks' request for a stay on a mittimus issued by the Franklin Family
Court.  The mittimus was issued because defendant failed to pay arrearages on
outstanding child support contrary to the court's civil contempt order. 
Defendant, who was proceeding in forma pauperis, sought court-appointed
assistance of counsel prior to the issuance of the mittimus, but the court
denied this request.  We review this matter, sua sponte, to determine whether
an individual held in civil contempt may be incarcerated without the benefit
of counsel, and conclude that due process requires the appointment of counsel
in these circumstances.  See Randall v. Randall 129 Vt. 432, 435,282 A.2d 794, 795-96 (1971) (noting our concern in civil actions of a trial court's
power to incarcerate for nonpayment of money). 

         The United States Supreme Court has stated, albeit in dicta, that
the right to appointed counsel is triggered when a defendant's personal
liberty is at stake.  Lassiter v. Department of Social Services, 452 U.S. 18,
25 (1981).  In Lassiter, the Court rejected the argument that the right to
counsel attaches for an indigent parent in a termination-of-parental-rights
proceeding, id. at 33, but its analysis is nonetheless instructive for our
purposes here.   The Court noted that the Due Process Clause of the
Fourteenth Amendment does not distinguish between the "criminal" or "civil"
nature of incarceration proceedings.  Id.  The Court stated that "`actual
imprisonment is a penalty different in kind from fines or the mere threat of
imprisonment,'" and that actual imprisonment is the line that defines the
constitutional right to appointment of counsel.  Id. at 26 (quoting Scott v.
Illinois, 440 U.S. 367, 373 (1979)). 

         Although the Supreme Court has never directly considered whether due
process requires the appointment of counsel for an indigent facing
incarceration for civil contempt, the overwhelming majority of other
jurisdictions have concluded that this right does attach.  See Note, The
Right to Appointment of Counsel for the Indigent Civil Contemnor Facing
Incarceration for Failure to Pay Child Support, 16 Campbell L. Rev. 127, 137
n.74 (citing United States Courts of Appeals that require counsel in these
circumstances), and id. at 137-38 n.75 (citing state jurisdictions that reach
same conclusion).  See also, Note, The Right to Appointed Counsel for
Indigent Civil Litigants: The Demands of Due Process, 30 Wm. & Mary L. Rev.
627, 647-49 (1989).  Moreover, this Court has noted that the underlying
rationale of the right to counsel is to avoid the "end result of
incarcerating uncounseled defendants."  State v. DeRosa, 161 Vt. 78, 82, 633 A.2d 277, 280 (1993).  Accordingly, the civil contempt proceeding that
ultimately led to defendant's incarceration order must be vacated, and on
remand the Franklin Family Court is directed to appoint counsel for defendant
in accordance with the 

 

co-payment and reimbursement provisions of 13 V.S.A.  5238. 

         The Franklin Family Court's contempt order of November 22, 1994 is
vacated, and the matter is remanded for further proceedings consistent with
this order. 




                                   BY THE COURT:


                                   ________________________________________
                                   Frederic W. Allen, Chief Justice


                                   ________________________________________
                                   Ernest W. Gibson III, Associate Justice


                                   ________________________________________
                                   John A. Dooley, Associate Justice


                                   ________________________________________
                                   James L. Morse, Associate Justice


                                   ________________________________________
                                   Denise R. Johnson, Associate Justice
[ ] Publish

[ ] Do Not Publish