Right to counsel

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Litigation, Civil Forfeiture

In Commonwealth. v. $9,847.00 U.S. Currency,  704 A.2d 612, 613 (Pa. 1997), the Pennsylvania Supreme Court found that there was no due process right to counsel in civil forfeiture proceedings, at least where the property at issue was cash. However, in Com. v. Real Property and Improvements at 2338 N. Beechwood Street, 65 A.3d 1055, 1067 n.24 (Pa. Cmwlth. 2013), a lower level court suggested that a forfeiture case involving a personal residence might "skirt the boundaries of due process implicating the right to counsel."  The court went on to say:

 

When a person's home and homelessness are at stake, which also implicates liberty interests, the three factors to be balanced pursuant to Mathews would likely balance differently. For, unlike in $9,847.00 U.S. Currency, Claimant's interest in her home is different than an interest in cash, and the risk of an erroneous decision or deprivation is not minimal here, but great, because the homeowner has never been charged or alleged to be involved in the underlying criminal activity. It does not appear that Claimant understood or appreciated that she could assert the innocent owner defense or that she could raise the Eighth Amendment argument that the forfeiture of her home would constitute an excessive fine in this case. Claimant also did not have any notice from any source that she had the right to a jury trial. Moreover, the allocation of burdens and standards of proof requires that Claimant prove a negative, thereby creating a great risk of erroneous deprivation. Indigent claimants who have been charged with criminal violations may have access to counsel as a result of those charges; however, claimants who face the loss of a home without having been charged for any underlying violations for which forfeiture is authorized by statute presently have no right to counsel under the Forfeiture Act or case law in Pennsylvania.

 

The court also noted that "Concern about the potential for due process violations in the federal forfeiture procedures motivated Congress to enact the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 18 U.S.C. § 983, which provides a right to counsel for indigent homeowners."

 

See also Com. v. Real Property and Improvements at 2338 N. Beechwood Street, 2016 Pa. Commw. LEXIS 130 (Pa. Cmwlth. 2016) (“We acknowledge that the facts in this case are different in many ways from those on which the Supreme Court based its analysis in $9,847.00 U.S. Currency. The property at issue here is real property (Claimant's home), not personal property (cash). Moreover, Claimant here was not charged with and thus not convicted of engaging in any illegal drug activity. We, therefore, do not foreclose the possibility that the Pennsylvania Supreme Court may conclude that under this different set of facts, court-appointed counsel to indigent claimants is an appropriate and necessary due process protection … Until such time, however, we are bound by the clear pronouncement of law in $9,847.00 U.S. Currency”); Com. v. $519.00 US Currency/Coin, 2012 WL 8685271 (Pa. Cmwlth. 2012) (unpublished) (noting that Pa.R.Crim.P. No. 122 specifies that trial court may appoint counsel to represent defendant “when the interests of justice require it”; court holds that trial court’s order requiring public defender to continue representing defendant in forfeiture proceeding after underlying criminal complaint dismissed was appropriate under the rule).

Appointment of Counsel: categorical Qualified: yes