Right to counsel

In Peters-Riemers v. Riemers, the court held that defendants subjected to contempt motions are entitled to counsel if they are indigent:

[T]he argument that incarceration is conditional and the defendant holds the keys to the jailhouse door does not apply to diminish the defendant’s liberty interest … A defendant found in contempt and incarcerated does not hold the keys to the jailhouse door if the defendant cannot pay … Although a defendant should not be jailed if truly indigent, this fact only highlights the need for assistance of counsel in establishing indigency to ensure the defendant is not improperly incarcerated.

663 N.W.2d 657 (N.D. 2003).  The court cited a slew of federal cases, and then noted that, “These cases reflect the right to counsel when a defendant faces potential incarceration in a contempt proceeding is premised on the federal constitution.” The court also held that the trial court is obligated to notify the contemnor of this right, and held that “The requirement applies whether the contempt motion is brought by the state or by a private party, because the potential deprivation of physical liberty is the same in either case.”

The court did not say whether it was finding the right to counsel under the state or federal constitution in the instant case, but the implication is that the decision was a ruling on the federal constitution (given that the court relied mostly on federal court decisions and did not mention the state constitution).  In reversing, the court applied the structural error standard, stating, “When a trial court has failed to inform a pro se defendant of his constitutional right to appointed counsel in a contempt proceeding in which the defendant faces potential incarceration, we will not attempt to discern whether the error was harmless.”

Though the Riemers case was decided prior to the U.S. Supreme Court’s decision in Turner v. Rogers, 564 U.S. 431 (2011) (finding no right to counsel in civil contempt for nonsupport of child, at least where the state is not prosecuting the action, the opposing side not represented by counsel, and the matter is not especially complex), the North Dakota Supreme Court has since implicitly affirmed Riemers‘s holding. See Burleigh Cty. Soc. Serv. Bd. v. Rath, 10 N.W.3d 787 (N.D. 2014) (in rejecting appellant’s claim that his right to counsel was violated, distinguishing the facts in the case from those at issue in Riemers).