Right to counsel

In State v. $1,010.00 in American Currency, 722 N.W.2d 92 (S.D. 2006), the court examined whether the trial court had erred in appointing counsel for a civil forfeiture defendant. Making no mention of the state constitution, the court started by saying, “The United States Supreme Court has not addressed whether the Due Process Clause of the Fourteenth Amendment requires appointed counsel in civil forfeiture proceedings.” The court applied the Mathews factors and began by noting that it had found “no case that holds a property interest, standing alone, requires appointment of counsel in civil forfeiture proceedings.” However, the court also noted that in Lassiter v. Dep’t of Social Services, 101 S.Ct. 2153 (1981) (finding no Fourteenth Amendment categorical right to counsel in termination of parental rights proceedings), there was no risk of a subsequent criminal proceeding, whereas in the civil forfeiture case before it, “Apple faces a subsequent criminal prosecution based upon [his] conduct. Thus, the paramount concern… notably absent in Ward and Lassiter, is present here: there is a real and significant danger that Apple could prejudice himself in respect to the subsequent criminal proceeding.” The court also pointed out that by pursuing the civil forfeiture prior to even seeking an indictment against the defendant, the state’s interest in minimizing financial resources was less significant, although it did not exactly explain how. It then found that the risk of erroneous deprivation was high, given that there had not yet been any criminal proceedings against the defendant to establish the basic underlying facts. The court concluded:

After examining these factors, we hold that the significant risk of prejudice in the future criminal proceeding coupled with the State’s minimal interest in pursuing these matters prior to a criminal prosecution and the risk of erroneous deprivation outweighs the presumption against appointed counsel. To hold otherwise, would allow the State an end run around the Sixth Amendment by filing civil forfeiture proceedings in order to gain admissions to bolster its criminal case against the defendant.

While the state argued that many previous cases had not found a right to counsel in civil forfeiture cases, the court pointed out that “the State cites no case that involved a civil forfeiture proceeding initiated prior to criminal charges.”