Piper v. Popp
| Decision Date | 25 November 1991 |
| Docket Number | No. 88-2406,88-2406 |
| Parties | Steven PIPER, Plaintiff-Respondent, v. Timothy POPP, Defendant-Appellant-Petitioner. d . Oral Argument |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by David D. Cook and UW Legal Assistance Program, Madison and oral argument by David D. Cook.
For the plaintiff-respondent there was a brief by Wallace K. McDonell and Allen, Harrison, Williams, McDonell & Swatek, Whitewater and oral argument by Wallace K. McDonell.
This is a review of an unpublished decision of the court of appeals filed May 17, 1990, affirming a judgment of the Jefferson County Circuit Court, Willis J. Zick, Circuit Judge, against the defendant Timothy Popp in the amount of $486,311.67. In our order granting the defendant's petition for review, we limited review to the sole question of "whether an indigent prisoner is entitled to appointment of counsel to represent him in defense of a civil [tort] action."
We conclude that the defendant in this case had no constitutional right to appointment of counsel, and therefore we affirm the decision of the court of appeals. Our conclusion is based on the following reasoning:
According to the United States Supreme Court's interpretation of the due process clause of the Fourteenth Amendment to the federal Constitution, a presumption exists against appointment of counsel for an indigent civil litigant when the litigant, such as the litigant in this case, will not likely be deprived of personal liberty if unsuccessful in the litigation. The United States Supreme Court requires courts to determine whether this presumption against appointment of counsel is overcome by other elements in due process. After weighing the elements in due process set forth by the Supreme Court, we conclude that the defendant in the case at bar, were he not incarcerated, would not be entitled to appointed counsel under the federal constitution.
In this case the defendant is in state prison. The due process clause of the Fourteenth Amendment prohibits a state from depriving indigent litigants of the opportunity to defend themselves in a meaningful manner in civil tort actions. A state court may avert depriving indigent incarcerated defendants in civil actions of the opportunity to defend themselves in a number of ways. These include, but are not limited to, postponing trial until the prisoner is released from incarceration, granting a continuance until the prisoner can retain counsel, allowing the prisoner to appear in circuit court pro se, or appointing counsel.
In this case the circuit court allowed the defendant to appear to defend himself pro se. We conclude that ordinarily the prisoner's appearance to make a pro se defense in a civil tort action satisfies due process, just as the personal appearance and pro se defense of a nonincarcerated defendant does. Incarceration does not necessarily mandate the appointment of counsel. A prisoner who appears in circuit court to defend a civil tort action pro se should not have greater rights to appointed counsel than an indigent defendant who is not incarcerated. If, however, an indigent prisoner who appears personally in circuit court can show that incarceration has prevented the prisoner from having a meaningful opportunity to be heard as a defendant in a civil action, due process may require appointment of counsel.
We agree with the court of appeals' conclusion that no circumstances existed in this case requiring the appointment of counsel to preserve the defendant's due process rights to defend himself in a meaningful manner. We conclude, as did the court of appeals, that the defendant's access to the prison library before trial was sufficient to secure the defendant's constitutional right to defend the case in a meaningful manner, that the circuit court did not abuse its discretion in denying a continuance, and that the circuit court did not improperly restrict the defendant's discovery efforts.
The facts are not in dispute for purposes of this review. In 1983, Timothy Popp, the defendant, shot and wounded Steven Piper, the plaintiff. The defendant also wounded Piper's father and killed Piper's mother. A jury convicted the defendant of second degree murder, attempted first degree murder, and recklessly endangering safety. The defendant is currently serving a 40 year sentence at the Waupun Correctional Institution.
The action before us is a civil action arising out of the defendant's criminal conduct. In 1985, Piper, the plaintiff, commenced a civil action against the defendant seeking to recover damages resulting from the gunshot wounds. 1 The defendant retained counsel when the complaint was filed in 1985; the defendant's attorneys withdrew from the case on May 11, 1988.
On May 25, 1988, the defendant moved to postpone a pretrial conference scheduled for June 2. He claimed he was unable to prepare for the conference because he had not received the case file from his former attorneys. The circuit court judge denied the motion. The state transported the defendant from prison to the circuit court for the conference at which the circuit judge scheduled trial for July 27, 1988.
On June 20, 1988, the defendant moved to postpone the trial for 30 days. In an affidavit supporting the motion, the defendant again claimed that he needed additional time to prepare his defense. The circuit court denied the motion.
On July 13, 1988, the defendant claimed indigence and moved for the appointment of counsel under sec. 814.29, Stats. 1987-88. This statute governs waiver of certain fees when a party is indigent, but it is silent about appointment of counsel. 2 In an affidavit supporting the motion, the defendant claimed that the Waupun Correctional Institution failed to provide him with access to an adequate law library or adequate legal assistance. He also asserted that the legal issues in his case were complex and that his defense required the acquisition of medical and financial records. The circuit court denied the defendant's motion.
On July 27, the state transported the defendant to Jefferson county for trial of the civil action. The defendant represented himself.
During trial, while the jury considered its verdict, the circuit court explained its reasoning for refusing to appoint counsel. The circuit court concluded that no law provides for the appointment of counsel for indigent litigants in civil cases, stating as follows:
814.29 is a section that talks about waiving fees--I mean disbursements and charges for filing fees and things because of indigence. It says absolutely nothing about a lawyer being furnished. And there is absolutely nothing in the law that provides for free lawyers in civil cases. All kinds of provisions for free lawyers in criminal cases, but none in civil cases. Trial Court Transcript at 83.
The circuit court also reviewed the defendant's performance as advocate at trial and characterized it as "extremely effective." The circuit court commented as follows:
Also, just one final comment on the fact of not having a counselor here. I think he did an amazingly good job. He was extremely effective in his cross-examination. Mr. Piper presented a marvelous image of rectitude and maturity, and so on, in his direct examination, and Mr. Popp succeeded on his cross-examination in bringing out a whole other facet, things which the jury never would have seen or thought of if he hadn't cross-examined. And I think his cross-examination was as effective, or more so, than a majority of lawyers would have done. I was quite impressed with it. And I would conclude there is no prejudice from not having one here, even assuming he should have had one.
... I don't think that there was anything that a lawyer could have really done for him that he didn't do himself. He had to admit the shooting, obviously, as he did. There really wasn't any way to challenge the medical bills or the wage losses. So he has challenged--a lawyer might have gotten into the merits of the pain and things than he did. So what? The jury is going to weigh that anyway, is going to decide--they heard all the evidence about the injuries and pain. They are going to make a decision. I don't think it would have been effective if some lawyer had gotten up and argued a little more about the pain wasn't that great, and so on and so on. He was able to make arguments that the lawyer couldn't with his situation and maybe elicited some sympathy he could never have done if he had a lawyer here representing him. The punitives, I gave him broad latitude to talk about all of those things. He was allowed to present that to the jury. He did argue that. He chose not to take the witness stand and testify, for whatever reasons he had. Trial Court Transcript at 86-87.
The transcript does not contain any other discussion about the appointment of counsel or the defendant's effectiveness in representing himself.
The jury awarded the plaintiff $486,311.67, including $200,000.00 in punitive damages. Because the judgment results from an assault, a "willful and malicious injury," the defendant's obligation is not dischargeable in bankruptcy. 11 U.S.C. sec. 523(a)(6).
The defendant, still representing himself, appealed the judgment against him to the court of appeals which upheld the judgment. The court of appeals concluded that no circumstances existed in this case requiring the appointment of counsel to preserve the prisoner's due process rights. It held that the defendant's access to the prison library before trial was sufficient to secure the defendant's constitutional right to defend the case in a meaningful manner, that the circuit court had not abused its discretion in denying a continuance, and that the circuit court had not improperly restricted the defendant's discovery efforts.
Represented before this court by the University of Wisconsin Law School...
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