Discretionary appointment of counsel

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Litigation, Child Support Enforcement (Civil Contempt)

The Nevada Supreme Court has found a right to counsel in some contempt proceedings in family court "when the hearing may result in the imposition of a jail sentence for the nonpayment of child support." Rodriguez v. Eighth Judicial District Court, 102 P.3d 41, 43 (Nev. 2004).

 

The Rodriguez court reviewed the due process positions taken by other states in civil contempt proceedings with the possibility of a prison sentence, which either supported an absolute right to counsel for indigent parties, rejected any right to appointed counsel, or allowed for the discretionary appointment of counsel on a case-by-case basis. In the end, the Rodriguez court supported the discretionary model. Because a defendant does not risk imprisonment for civil contempt unless a trial court has determined that a defendant both has the ability to pay and is willfully refusing to pay, the Rodriguez court determined that the defendant's interest in personal freedom was not comparable to what was at stake in a criminal prosecution: "The real issue before the trial court is not the contemnor's ability to comply, but his unwillingness to do so."  The government's interest was significant, and there was little risk for error because "the legal and factual issues in a nonsupport hearing are rarely complex." Notably, the litigant raised both the federal and state constitutions, and the court appeared to hold under both, commenting that "The language in Article 1, Section 8(5) of the Nevada Constitution mirrors the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution ..."

Appointment of Counsel: discretionary Qualified: no