Colbert v. Rickmon

Decision Date06 August 1990
Docket NumberCiv. No. 89-2192.
Citation747 F. Supp. 518
PartiesDonald Lee COLBERT, Plaintiff, v. Greg RICKMON, et al., Defendants.
CourtU.S. District Court — Western District of Arkansas

Donald Lee Colbert, El Reno, Okl., pro se.

Michael R. Rainwater, Skokos, Coleman & Rainwater, Little Rock, Ark., Wyman R. Wade, Jr., Dailey, West, Core, Coffman and Canfield, Ft. Smith, Ark., David H. McCormick, Russellville, Ark., for defendants.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

The factual background of this case is set forth in the previous memorandum opinion filed on June 21, 1990. For the present it is sufficient to state that plaintiff initiated an action under 42 U.S.C. § 1983, alleging that he was incarcerated in the Sebastian County Jail for several months awaiting trial on charges stemming from a "hot check cashing" scam. Plaintiff alleged, inter alia, that he was illegally arrested at a motel in Fort Smith, that his motel room was illegally searched, and that he was unlawfully detained without a judicial determination of probable cause.

By order dated June 21, 1990, this court denied the motions for summary judgment filed by Fort Smith police officers Rickman and Harvey, and allowed plaintiff to proceed against these defendants with regard to plaintiff's assertion that he was subjected to an unlawful arrest and search. The court further denied the motion to dismiss filed by prosecuting attorney, Ron Fields, with regard to plaintiff's contention that Fields caused the plaintiff to be unlawfully detained without a judicial determination of probable cause. The remainder of plaintiff's claims were dismissed.

Plaintiff now moves for the appointment of counsel to assist him in the discovery stage of this litigation and at trial. Plaintiff's motion implicates the holding of the United States Supreme Court in Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989) and raises questions concerning the authority of this court to "appoint" an attorney to assist the plaintiff in the prosecution of this action.

In Mallard, the Supreme Court held that 28 U.S.C. § 1915(d) does not authorize a federal court to require an unwilling attorney to represent an indigent litigant in a civil case. § 1915(d) provides: "the court may request an attorney to represent any (person claiming in forma pauperis status) unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious."

In Mallard the Supreme Court decided that Congress' choice of the word, "request" in the statute was intended not to authorize the uncompensated mandatory appointment of unwilling counsel in civil litigation. The court expressly left open the question "whether the federal courts have inherent authority to order attorneys to represent litigants without pay." See Mallard, 109 S.Ct. at 1821, n. 8. As to this, the court wrote:

We emphasize that our decision today is limited to interpreting § 1915(d). We do not mean to question, let alone denigrate, lawyers' ethical obligation to assist those who are too poor to afford counsel, or to suggest that requests made pursuant to § 1915(d) may be lightly declined because they give rise to no ethical claim. On the contrary, in a time when the need for legal services among the poor is growing and public funding for such services has not kept pace, lawyers' ethical obligation to volunteer their time and skills pro bono publico is manifest. Nor do we express an opinion on the question whether the federal courts possess inherent authority to require lawyers to serve.

Mallard, 109 S.Ct. at 1822-23.

Thus, there is no statutory authorization for this court to require an unwilling attorney to assist the plaintiff in the prosecution of his civil rights claim. It follows that if this court possesses the power to do so, the authority must derive from those inherent in the judicial function.

One argument to which the Supreme Court alluded in Mallard, is that if federal courts possess the inherent power to direct unwilling lawyers to serve in civil litigation without compensation, then § 1915(d) which merely empowers federal courts to "request" such service, would have been otiose.1 In response to this proposition, the Supreme Court said:

Respondent's major premise, however, is too strong. Statutory provisions may simply codify existing rights or powers. § 1915(d), for example, authorizes courts to dismiss a `frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.

Mallard, 109 S.Ct. at 1821.

Nonetheless, this reasoning is tangentially suggestive of the proposition that federal courts do not possess the inherent authority to require an unwilling attorney to undertake the civil representation of indigents without compensation. If Congress believed that federal courts inherently possess, by their very nature, the power to require such representation, it does not seem logical that Congress would enact a statute conferring the power to request such representation on the federal courts except, perhaps, to expressly "legitimize" such requests. However, it goes without saying that the judiciary does not require approval from the Article 1 branch of government to wield its inherent Article 3 power. This, of course, deductively proves nothing, although it is arguably supportive of the thesis that Congress did not, at the time of enactment, think such judicial power existent. However, what Congress may or may not have believed about the inherent authority of the judiciary is certainly not controlling or dispositive.

A case which could have shed some light on this issue, but did not, is Federal Trade Commission v. Superior Court Trial Lawyers Assn., ___ U.S. ___, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990). In that case, most of the attorney-members of the Washington, D.C. Superior Court Trial Lawyers Association, in an effort to persuade the "powers that be" to increase the compensation under the Criminal Justice Act (CJA) for attorneys who had agreed to accept CJA appointments in criminal cases, collectively refused to accept further appointments. To make a long story short, the FTC "got in on the act" and asserted that the "boycott" was unlawful under the Sherman Act. On review, the Supreme Court held that the Trial Lawyers' conduct was not clearly outside the scope of the Sherman Act nor immunized by the First Amendment. The dissent in the Trial Lawyers case urged that because the "governmental bodies ... had the power to terminate the boycott at any time by requiring any or all members of the District Bar ... to represent indigent defendants pro bono," the Trial Lawyers lacked any "market power" which would place such conduct beyond the reach of the Sherman Act. However, the majority opinion held that proof of market power was not required under the circumstances, thereby failing to provide any guidance as to the issue before this court.

The power to appoint an unwilling attorney without compensation has been challenged in principle on three grounds: (1) that to require such service constitutes involuntary servitude under the Thirteenth Amendment; (2) that it constitutes an unlawful taking of property or a taking for a public use which requires just compensation under the Fifth Amendment; and (3) that to subject attorneys as a class to such an obligation constitutes discrimination which would deprive them of the equal protection of the laws under the Fourteenth Amendment. See, Fisch, Coercive Appointments of Counsel in Civil Cases in Forma Pauperis: An Easy Case Makes Hard Law, 50 Mo.L.Rev. 527 (1985). It has been written that these arguments have been largely rejected. See, for example United States v. Dillon, 346 F.2d 633 (9th Cir.1965), cert. den. 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966). See also, Rosenfeld, Mandatory Pro Bono: Historical and Constitutional Perspectives, 2 Cardozo L.Rev. 255 (1981); Note, Court Appointment of Attorneys in Civil Cases: The Constitutionality of Uncompensated Legal Assistance, 81 Colum.L.Rev. 366 (1981).

However, the belief that such power is inherent in the judicial branch of government is far from universal. See Delisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987) ("requiring an attorney to represent an indigent criminal defendant for only nominal compensation unfairly burdens the attorney" and violates the takings clause of the Alaska constitution); Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987) ("The state has an obligation to compensate attorneys appointed to represent indigent defendants accused of crime"). In fact, some commentators question the proposition that a "vast majority" of courts have upheld the constitutionality of mandatory pro bono. See Shapiro, The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U.L.Rev. 735 (1980).

Historically, Colonial and American statutes authorized courts to provide counsel at the request of indigents in capital cases, an extensive practice inasmuch as almost all felonies were capital crimes. See 4 W. Blackstone, Commentaries 94 (1st Ed.1769). This power was later occasionally extended so as to include civil cases for absentee parties and minors. See Louisiana v. Simpson, 38 La.Ann. 23 (1886); House v. Whitis, 64 Tenn. 690 (1875). The colonial distrust of lawyers, however, led litigants to frequently plead their own causes in the majority of cases. See discussion in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

It is true that the belief in the existence of judicial discretion to appoint pro bono attorneys for indigent civil rights plaintiff has been widespread, but questioned, in the last three decades. See Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977). The problem has been approached from the "back door" in several cases wherein some courts have exercised what they term...

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    • 15 Diciembre 1995
    ...officer-of-the-court doctrine extolled by the Ninth Circuit in Dillon has been questioned recently by courts and commentators. See e.g. Colbert, supra; State ex rel. Scott v. Roper, 688 S.W.2d 757 (Mo.1985) (en banc); Shapiro, supra; Matalon, supra. These critics of the Dillon analysis cont......
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    ...counsel to serve an indigent in a civil matter and decided that a district court has no such inherent power. Colbert v. Rickmon, 747 F.Supp. 518, 527 (W.D.Ark.1990) (mem.). Neither Mallard nor Colbert considered the power of a district court to appoint free standby counsel for non-indigent ......
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