Choiniere v. Brooks
| Decision Date | 24 March 1995 |
| Docket Number | No. 94-653,94-653 |
| Citation | 163 Vt. 625,660 A.2d 289 |
| Parties | Camille CHOINIERE v. Scott BROOKS. |
| Court | Vermont Supreme Court |
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
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) ().
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, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640 (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, 101 S.Ct. at 2162-63, 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, 101 S.Ct. at 2159 (quoting Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (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 (...
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Russell v. Armitage
...followed. I. Defendant was entitled to appointment of counsel prior to being incarcerated under our decision in Choiniere v. Brooks, 163 Vt. 625, 625, 660 A.2d 289, 289 (1995) (mem.), where we held that the Due Process Clause of the Fourteenth Amendment requires the appointment of counsel i......
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Money matters: judicial market interventions creating subsidies and awarding fees and costs in individual and aggregate litigation.
...due process clause that requires counsel for all indigents when termination of parental rights is sought); Choiniere v. Brooks, 660 A. 2d 289, 289-90 (Vt. 1995) (33) 452 U.S. 18 (1981). (34) The crabbed and cumbersome ruling provided little possibility for other litigants--also facing the s......