Discretionary appointment of counsel

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Litigation, Forfeiture (incomplete)

The Alaska Supreme Court held that a trial court has discretion to appoint counsel for an indigent claimant in civil forfeiture proceedings, at least for the purpose of protecting the claimant's privilege against self-incrimination. 


In Resek v. State, the Court considered whether an indigent claimant has a constitutional right to appointed counsel at public expense in an in rem forfeiture proceeding. 706 P.2d 288 (Alaska 1985).  The majority opinion in Resek held that forfeiture actions are not within the intended meaning of “criminal prosecution” under Article 1, Section 11 of the Alaska Constitution, such that appointment of counsel is required. Id. at 291-92.  It also rejected the argument that due process requires appointment: “This court has found such a right under the state constitution only when basic liberty interests are at stake, such as the parent-child relationship … The federal due process clause has been even more strictly construed.” Id. at 293 n.18.

However, analogizing to McCracken v. Corey, 612 P.2d 990 (Alaska 1980), in which "a parolee faced a parole revocation hearing prior to the criminal hearing based on the same conduct," the majority concluded that holding the forfeiture matter before the criminal proceeding raised serious implications for the Fifth Amendment protection against self-incrimination. Id. at 293-94 ("In a forfeiture proceeding the danger of self-incrimination is even greater than in a parole revocation hearing, since the burden of proof is placed on the claimant to establish by a preponderance of the evidence that the seized property is not forfeitable.").  


Thus, the Court concluded that the self-incrimination issue could be resolved by staying the forfeiture matter.  Alternatively, if there are no criminal charges pending or if the forfeiture proceeding has not been stayed, the trial court has discretion to appoint counsel in order to protect the indigent claimant's privilege against self-incrimination. Id. at 289.  

Justice Compton wrote a vehement dissent, alleging "two significant errors in [the] decision." Resek, 706 P.2d at 294-96 (Compton, J., dissenting).  First, he noted that the Alaska Supreme Court has frequently gone "beyond what the federal law mandates." Id. at 295.  He also disagreed with the majority's characterizaiton of forfeiture as a purely civil proceeding and pointed to previous decisions of the Court, in which it reached the opposite conclusion. Id. (quoting e.g.Graybill v. State, 545 P.2d 629, 631 [Alaska 1976] [“'It is commonly understood that forfeitures, even when civil in form, are basically criminal in nature.'"]).

Appointment of Counsel: discretionary Qualified: yes