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December 24, 1997


Appeal from the Order of the Commonwealth Court, dated February 1, 1994, at No. 1147 C.D. 1993, Reversing the order of the Court of Common Pleas of Franklin County entered, April 8, 1993, at Misc. Vol. 1, pg. 571 A 1992 Justice Castille. Former Chief Justice Nix did not participate in the decision of this case.

The opinion of the court was delivered by: Castille



The sole issue in this case is whether the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a constitutional right to the appointment of counsel in civil forfeiture proceedings brought under the Controlled Substances Forfeitures Act. *fn1 Because civil forfeiture does not implicate a person's liberty interest and only implicates a person's property interest, we hold that there is no right to appointment of counsel in civil forfeiture proceedings.

The record indicates that in November of 1989, Pennsylvania State Police troopers executed a search warrant at the residence of appellee, Arthur Dougherty, and seized $9,847.00 in United States Currency, approximately two ounces of marijuana, records of purported drug transactions and various drug paraphernalia, including a small scale containing cocaine residue. *fn2 As a result of the search, appellee was arrested and charged with various drug offenses. Pursuant to a plea agreement, appellee pleaded guilty and was sentenced to a term of imprisonment.

In 1992, the Commonwealth filed a petition for civil forfeiture pursuant to the Controlled Substances Forfeiture Act seeking forfeiture of the confiscated $9,847.00 in United States currency, alleging that the money was subject to forfeiture under 42 Pa.C.S. § 6801(a)(6)(1)(A) & (B) as the proceeds from illegal drug transactions. Appellee filed a statement of indigency with the court and requested the appointment of counsel to represent him in the forfeiture action. The trial court initially appointed an attorney to represent appellee, but that appointment was later rescinded due to a conflict of interest. The subsequent appointment of a second attorney was also rescinded due to a conflict of interest, and a third attorney was appointed. The third attorney filed a petition to vacate the appointment on the grounds that appellee was not entitled to court-appointed counsel in a civil forfeiture proceeding. Although the record does not indicate the Disposition of the petition to vacate the appointment of the third attorney, the trial court denied appellee's subsequent motion for appointment of counsel on April 8, 1993. However, on appeal to the Commonwealth Court, the Commonwealth Court concluded that appellee was constitutionally entitled to court-appointed counsel under the Fourteenth Amendment to the United States Constitution based upon its reasoning that civil forfeiture "is a proceeding at which the government is attempting to exact punishment," and, therefore, reversed the trial court's decision. Commonwealth v. $9,847.00 U.S. Currency, 161 Pa. Commw. 548, 564, 637 A.2d 736, 744 (1994).

As a threshold matter, the Commonwealth initially contends that this matter constituted an interlocutory appeal to the Commonwealth Court, which should not have been permitted. Generally, an order which does not put a party to a civil suit out of court is not immediately appealable, even where it raises a question as to that party's right to counsel. Middleberg v. Middleberg, 427 Pa. 114, 115, 233 A.2d 889, 890 (1967) (quashing as interlocutory an appeal from an order disqualifying counsel of choice due to conflict of interest). Because the trial court did not certify this issue for appeal as an interlocutory appeal by permission under 42 Pa.C.S. § 702(b), *fn3 the Commonwealth asserts that the Commonwealth Court should have quashed the appeal as interlocutory. Even though the Commonwealth is correct, because we believe that this case raises an issue of immediate public importance and that an immediate appeal may well advance the ultimate determination of this case, we assume plenary jurisdiction pursuant to 42 Pa.C.S. § 726. *fn4 See Silver v. Downs, 493 Pa. 50, 55-56, 425 A.2d 359, 362 (1981) (assuming plenary jurisdiction over an interlocutory appeal from order disqualifying township solicitor from representing township officers).

Turning to the issue now before this Court, in certain limited situations, the Due Process Clause of the Fourteenth Amendment to the United States Constitution may require court appointed counsel in civil matters. In Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), the United States Supreme Court set forth three factors which must be weighed to determine whether there is a right to court-appointed counsel in a civil matter: (1) the private interest at stake; (2) the government interest at stake; and (3) the likelihood of an erroneous decision. Id. at 335. There is a presumption, however, that "an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty." Lassiter v. Dept. of Social Services, 452 U.S. 18, 26, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981) (no per se right to court-appointed counsel in proceeding to terminate parental rights). Taken together, these cases require that the outcome of the examination of the three factors enunciated in Mathews be weighed against the Lassiter presumption that an indigent is only entitled to appointed counsel when his physical liberty is at stake. Lassiter, (supra) at 27.

To determine whether appellant has a right to court-appointed counsel in this civil forfeiture proceeding, we will examine the factors set forth in Mathews and Lassiter.

Addressing the first factor of Mathews, in a civil forfeiture proceeding, the private interest at stake is always a property interest. See Commonwealth v. Wingait Farms, 547 Pa. 332, 340, 690 A.2d 222, 226 (1997) (the forfeiture statute, 42 Pa. C.S. § 6802, provides that forfeiture proceedings are in rem). The United States Supreme Court has recognized that property interests do not require the same level of due process protection as when interests in life or liberty are at stake. See, e.g., Walters v. National Assoc. of Radiation Survivors, 473 U.S. 305, 87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985) (upholding fee limitation which effectively prevents claimants from retaining counsel in administrative proceedings for Veterans' Administration benefits because the only interest at stake was a property interest in money); Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (holding that the burden of proof in proceedings to terminate parental rights is "clear and convincing evidence," while a "preponderance of the evidence" standard is sufficient in property matters); May v. Anderson, 345 U.S. 528, 97 L. Ed. 1221, 73 S. Ct. 840 (1953) (child custody rights are "far more precious to appellant than property rights.").

These decisions have as a common denominator the theory that property interests are generally accorded less protection than are liberty interests. Appellee's only interest in this matter is a property interest thus invoking a lesser level of due process protection.

Addressing the second factor of Mathews, the government interest at stake in a civil forfeiture proceeding is also largely financial, both in terms of the financial proceeds arising from the forfeiture, and in terms of the financial cost of providing counsel to indigent claimants in all civil forfeiture proceedings. Contrary to the Commonwealth Court's reasoning that the cost of providing counsel to indigents cannot justify a denial of court-appointed counsel in civil forfeiture proceedings, the United States Supreme Court acknowledged that the substantial cost involved in appointing counsel to an entire class of cases is a relevant consideration in Gagnon v. Scarpelli, 411 U.S. 778, 787-88, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973):

We think that the Court of Appeals erred in accepting respondent's contention that the State is under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases. While such a rule has the appeal of simplicity, it would impose direct costs and serious collateral disadvantages without regard to the need or the likelihood in a particular case for a constructive contribution by counsel.

Certainly, the decisionmaking process will be prolonged and the financial cost to the State -for appointed counsel, counsel for the State, a longer record, and the possibility of ...

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