Opinion
No. 4-756 / 03-1799
Filed April 13, 2005
Appeal from the Iowa District Court for Harrison County, Gordon C. Abel (permanent injunction and civil penalty for consumer fraud) and Charles L. Smith, III (contempt order), Judges.
Defendant Rose Grady appeals from the district court's ruling denying her requests to dismiss or vacate a contempt ruling and rulings granting the State injunctive relief for consumer fraud violations under Iowa Code section 714.16 (2003). AFFIRMED IN PART; REVERSED IN PART.
Joseph J. Hrvol of Joseph J. Hrvol, P.C., Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, and Stephen E. Reno, Assistant Attorney General, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, and Hecht, JJ., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Rose Grady appeals the grant of a permanent injunction prohibiting her and business entities through which she did business from marketing their products, and the assessment of a civil penalty in the amount of $1,240,000 for consumer fraud. Grady also appeals from an order that found her in contempt and sentenced her to thirty days in jail. We now affirm in part and reverse in part.
The State's petition alleged Grady owned, managed, and did business at relevant times through business entities known as Ratite Medicine Chest, Avian Medicine Chest, Canine Medicine Chest, Feline Medicine Chest, and Pet Medicine Chest. These entities will jointly be referred to in this opinion as "Medicine Chests."
I. Background Facts and Proceedings.
The Medicine Chests are a group of businesses operated at relevant times by Rose Grady. They offered for sale both animal feed and medicines at their store locations in Woodbine and Logan, Iowa and through a variety of websites. In November of 2001, investigators working for the Iowa Department of Agriculture and Land Stewardship (IDALS) inspected the inventory of the Medicine Chests and discovered the contents of feed offered for sale contained unapproved ingredients, and were inconsistent with the product labeling. On March 14, 2002, the Attorney General's office informed the Medicine Chests of the IDALS findings and ordered them to cease any further product sales until these regulatory violations were corrected.
Subsequent investigation by IDALS disclosed that the Medicine Chests continued to both solicit and sell unapproved animal feed and medicines in contravention of the Attorney General's directive. Consequently, the Attorney General sought and obtained on May 1, 2002 an ex parte temporary restraining order prohibiting further sales of the offending products by Grady and Medicine Chests. The district court's order granting temporary injunctive relief found that certain of the claims made by the Medicine Chests were misleading as to the efficacy of certain medicines and feed additives offered for sale. The court also found that the Medicine Chests failed to inform its customers that the offending products had not been approved for sale or use by either IDALS or the federal Food and Drug Administration (FDA).
An evidentiary hearing on the issuance of a preliminary injunction was held on June 6, 2002. Although the hearing was properly noticed, the defendants did not appear personally or through counsel. Representatives of the IDALS, the FDA, and the Iowa Attorney General testified as to the efficacy of the Medicine Chests' feed additives, product labeling inconsistencies, and other marketing irregularities. After hearing the evidence presented by the State, the district granted a preliminary injunction prohibiting Grady and the Medicine Chests from "any further activity of any kind or nature associated with the marketing of any pet medicines or foods."
A hearing on the State's request for a permanent injunction was held on February 13, 2003. Kathy Alvis, who was then associated with Grady in the operation of the Medicine Chests, appeared at the hearing along with Grady, however neither was represented by counsel. The district court took judicial notice of the evidentiary findings from the June 6, 2002 hearing and heard other evidence tending to prove the defendants had continued to market the products in violation of the preliminary injunction and temporary restraining order. The district court specifically found defendants had engaged in thirty-one violations of Iowa Code section 714.16(7) (2003) stemming from the continued marketing of the Medicine Chests products in direct and intentional disregard of the preliminary injunction. The district court filed an order on March 6, 2003 permanently enjoining the defendants from further activity of any kind or nature associated with the promotion, marketing or sales of any pet medicines or foods until compliance with FDA rules and Iowa laws pertaining to pet medicines and pet food additives is demonstrated to the court. The district court assessed against the Medicine Chests and Rose Grady individually the maximum penalty authorized by statute totaling $1,240,000 for the thirty-one violations.
Although Kathy Alvis was affiliated with the Medicine Chests for a significant time during which the violations of the injunction occurred, she was not made individually responsible for the civil penalty assessed against the Medicine Chests and Rose Grady. Alvis, who disassociated herself from the enterprise in October 2002, was assessed a penalty of $5000.
In advance of the final hearing on the injunction, Rose Grady caused to be filed with the Harrison County Clerk of District Court thirteen frivolous "Surety Bonds." The documents purported to bind thirteen people including district court judges, Iowa's Attorney General, and other attorneys and agency representatives to pay all costs that might accrue in the pending litigation. In reaction to these spurious surety bonds and evidence of Grady's continued disregard of the injunctions, the State filed on April 24, 2003 an application for order to show cause why Grady should not be held in contempt.
Grady appeared without counsel once again at the May 8, 2003 contempt hearing. The district court found Rose Grady in willful contempt and sentenced her to thirty days in the Harrison County jail.
Grady subsequently retained counsel and filed motions requesting the district court vacate or modify the judgment as to the injunction and civil penalties, and to set aside the order of contempt. Following a July 21, 2003 hearing the district court denied the motions.
Grady now appeals contending (1) the State failed to serve and file written notice of intent to seek a default judgment in advance of the hearing on the preliminary injunction in violation of Iowa Rule of Civil Procedure 1.972(2), (2) the State failed to certify that irreparable harm would result if the injunction was not made permanent, (3) she did not knowingly and intelligently waive her right to counsel at the hearings on the permanent injunction and contempt, and (4) the State failed to accompany its application for contempt with an affidavit evidencing the nature of the acts serving as the basis for the contempt as required by Iowa Code section 665.6 (2003).
II. Scope and Standard of Review.
A petition for injunctive relief traditionally invokes the court's equitable jurisdiction, and our review of equitable proceedings is generally de novo. East Oaks Dev., Inc. v. Iowa Dep't of Transp., 603 N.W.2d 566, 567 (Iowa 1999). However, Grady raises an issue of law in this appeal: Whether legal requirements for the issuance of an injunction were satisfied. Moreover, this specific issue is presented to us through a ruling on the motion to vacate the judgment, and our standard of review is thus for errors at law. Iowa R. App. P. 6.4.; Worthington v. Kenkel, 684 N.W.2d 228, 230 (Iowa 2004).
Normally, our review of contempt findings is also for errors at law, because we are asked to rule on the legality of the action taken in the district court. Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). However, because Grady contends her right to counsel was violated in connection with the contempt proceeding, and the State contends Grady waived that right; our review in this instance is de novo. State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997).
III. Discussion.
A. Written Notice of Default.
Notice of the time and place for the preliminary injunction was given in this case, but Grady failed to attend the hearing. She nonetheless contends the district court erred in granting the preliminary injunction because the State failed to serve and file a written notice of default in advance of the injunction's issuance.
Requests for entry of default under rule 1.972(1) shall be by written application . . . [n]o default shall be entered unless the application contains a certification that written notice of intention to file the written application for default was given after the default occurred and at least ten days prior to the filing of the written application for default.
Iowa R. Civ. P. 1.972(2) (emphasis supplied). Rule 1.972(1) only requires the clerk to enter a default where the party claimed to be in default either (1) withdraws a pleading without permission, or (2) fails to serve and file a responsive pleading. It is only in these two specific instances of default that rule 1.972(2) explicitly requires the party seeking a default judgment to provide notice of intent to seek a default. "All other defaults [including failure to be present] shall be entered by the court." Iowa R. Civ. P. 1.972(1). No written application for a default judgment is contemplated or required by the rules as a prerequisite to entry of judgment after trial against a party who failed, despite notice, to appear. Accordingly, we reject Grady's claim that the injunction must be vacated because the State failed to comply with default judgment procedures, and we affirm on this issue.
B. Proof of Irreparable Injury.
Rose Grady next contends the district court erred in issuing a permanent injunction pursuant to section 714.16 because the State failed to allege and prove irreparable injury would result if the injunctive relief was denied. Grady's argument centers on the fact that the State's petition failed to allege continued marketing of Medicine Chests' would "gravely or irreparably [injure] the Plaintiff, or any other person or entity." Iowa R. Civ. P. 1.1502(1). Generally, prior to obtaining the "extraordinary" remedy of a permanent injunction, the party requesting the remedy must show: (1) the injunction is clearly required to avoid irreparable damage, and (2) there is no adequate remedy at law to protect the interests threatened by the actions sought to be enjoined. Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 639-40 (Iowa 1991).
The State contends, however, that when the legislature authorized the Attorney General in Iowa Code section 714.16(7) to seek injunctive relief in the arena of consumer fraud, it balanced the relative harm caused to consumers by consumer fraud against the harm suffered by those persons or entities enjoined. The statute provides:
If it appears to the attorney general that a person has engaged in, is engaging in, or is about to engage in a practice declared to be unlawful by this section, the attorney general may seek and obtain in an action in a district court a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the person from continuing the practice or engaging in the practice or doing an act in furtherance of the practice.
Iowa Code § 714.16(7) (2003) (emphasis supplied). The State contends this legislation expressly eliminated the State's burden to plead and prove irreparable injury to justify grants of injunctive relief in consumer fraud cases. We agree.
In Worthington v. Kenkel, 684 N.W.2d 228, 229-30 (Iowa 2004), Worthington, who claimed whistleblower status, sought injunctive relief to enjoin the termination of her employment with the State of Iowa. Worthington relied on an Iowa statute that forbids retaliation or reprisal against a state employee who discloses information the employee reasonably believes "evidences a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety." Iowa Code § 70A.28(2). That statute authorizes the Attorney General to seek injunctive relief to preemptively prevent the forbidden retaliation. Iowa Code § 70A.28(5)(b). The State claimed, however, and the district court ruled that injunctive relief was unavailable to Worthington because she had an adequate remedy at law and therefore could not prove irreparable injury.
Our supreme court rejected the State's argument and held the usual prerequisites of irreparable harm and inadequacy of the remedy at law are inapposite where the legislature had already balanced the relative harms and remedies at law and authorized an aggrieved person or the Attorney General to seek injunctive relief upon a finding that the statute was violated. Worthington, 684 N.W.2d at 232; see also Ackerman v. Tri-City Geriatric Health Care, Inc., 378 N.E.2d 145, 149 (1978) (when an injunction is sought under a statute, the petitioner is not required to show irreparable injury and inadequacy of remedy at law because the legislature has already balanced the equities and proscribed behavior which it "has determined not to be in the public interest" and rightfully enjoined). We conclude the widespread nature of consumer harm contemplated in section 714.16, and the broad enforcement measures authorized by the statute suggest the legislature, through the enactment of the statute, balanced the relative harms and intended to authorize district courts to grant injunctive relief even in the absence of proof of irreparable injury. We therefore hold the State had no burden to plead or prove irreparable injury to invoke the court's equitable remedies in this case. Finding no error in the district court's grant of injunctive relief, we affirm on this issue.
C. Knowing and Intelligent Waiver of Counsel.
We next address Grady's contention that the district court erred when it allowed her to represent herself at both the hearing on the permanent injunction and the contempt proceedings without the benefit of a knowing and voluntary waiver of her right to counsel. The following excerpt from the contempt hearing transcript discloses the district court's treatment of the waiver issue:
COURT: This is State of Iowa versus Rose Grady and you are Rose Grady?
MS. GRADY: I'm the authorized representative for Rose Grady. My name is Rosemary Grady.
COURT: And you are here today on a contempt application filed by the State of Iowa. We are here to show cause why you should not be held in contempt of court. And I understand that you, by saying you are the authorized representative, you represent yourself; is that correct?
MS. GRADY: That is correct.
COURT: And you do not intend to have an attorney represent you?
GRADY: No sir, not at this time.
COURT: All right. And you understand you have the right to have an attorney represent you?
GRADY: Yes.
COURT: Mr. Reno, you may proceed.
Generally, there is no constitutionally protected right to counsel in civil proceedings. State ex rel. Hamilton v. Snodgrass, 325 N.W.2d 740, 745 (Iowa 1982). Grady therefore had no right to counsel in connection with her defense against the State's claim for injunctive relief and civil penalties; hence the decision to forego counsel at that proceeding need not have been secured by a knowing and intelligent waiver. However, it is well established that the Sixth Amendment secures to defendants who face incarceration the right to counsel at all "critical stages" of criminal proceedings. See, e.g., Maine v. Moulton, 474 U.S. 159, 170, 106 S. Ct. 477, 484, 88 L. Ed. 2d 481, 489 (1985). The right to counsel has been extended to indigent contemnors where imprisonment for the contempt is contemplated and subsequently imposed. McNabb v. Osmundson, 315 N.W.2d 9, 12-13 (Iowa 1982) (noting civil contemnors' constitutional protections are to be found in the Due Process clause of the Fourteenth Amendment, although Sixth Amendment decisions are instructive). "[T]he nebulous distinctions between civil and criminal contempts are of no consequence in this jurisdiction". Id. at 11.
The State contends, however, that even if Grady had a right to counsel in the contempt proceedings, she waived that right on the record. Although one who faces actual imprisonment in criminal proceedings is constitutionally entitled to be represented at trial by counsel, her concomitant right to refuse counsel's aid is also recognized by the Sixth Amendment. See Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562, 570 (1975) ("the right to self-representation — to make one's own defense personally — is thus necessarily implied by the structure of the Amendment."). Because one who manages her own criminal defense relinquishes benefits associated with the right to counsel, she "must `knowingly and intelligently' forgo those relinquished benefits." Id. at 835, 95 S. Ct. at 2541, 45 L.Ed. 2d at 578. It of course follows that if the assistance of counsel may be knowingly and intelligently waived in criminal cases, Grady had the right to do so in her civil contempt proceedings.
Our supreme court has held that the Sixth Amendment requires the district court to
advise the defendant generally that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked.
State v. Tovar, 656 N.W.2d 112, 121 (Iowa 2003) (reversed on other grounds). "Warnings of the pitfalls of proceeding to trial without counsel . . . must be `rigorous[ly]' conveyed" to defendants in criminal cases. Iowa v. Tovar, 541 U.S. 77, ___, 124 S. Ct. 1379, 1388, 158 L. Ed. 2d 209, 218 (2004) (quoting Patterson v. Illinois, 487 U.S. 285, 298, 108 S. Ct. 2389, 2398, 101 L. Ed. 2d 261, 270 (1988)).
The United States Supreme Court subsequently held the determination of whether an intelligent waiver of counsel has occurred at the plea-taking stage will not turn on compliance with "scripted admonitions" as to the usefulness of an attorney or discussion of defenses that might be overlooked if counsel is not consulted. Iowa v. Tovar, 541 U.S. at ___, 124 S. Ct. at 1390, 158 L. Ed. 2d at 220. Instead a valid waiver of counsel at the plea-taking stage "will depend, in each case, upon the particular facts and circumstances surrounding that case." Id. at ___, 124 S. Ct. at 1390, 158 L. Ed. 2d at 220. The Court referenced prior holdings indicating "that at earlier stages of the criminal process, a less searching or formal colloquy may suffice." Id. at ___, 124 S. Ct. at 1388, 158 L. Ed. 2d at 218. A recent Seventh Circuit case interpreted Iowa v. Tovar to suggest only that " Tovar strongly implies that the Supreme Court is not likely to extend, beyond the trial itself, any requirement that a defendant be informed about the benefits of counsel and risks of waiver. Speights v. Frank, 361 F.3d 962, 965 (7th Cir. 2004) (emphasis supplied). Grady's claim relates to her right to counsel at her trial of the contempt proceeding. We therefore conclude a formal on-the-record colloquy apprising Grady of her right to counsel and the risks she would accept if she represented herself at trial was required.
The key inquiry into whether the accused validly waived the right to counsel is "whether the accused was made sufficiently aware of his right to have counsel and of the possible consequences of a decision to forego the aid of counsel so that his choice is made with his eyes open." Meyer v. Sargent, 854 F.2d 1110, 1114 (8th Cir. 1988) (citations omitted). We review the adequacy of the court's colloquy with Grady for purposes of waiver "upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1465 (1938).
The record is replete with evidence that Grady was a confused person who did not understand the law. During the course of the proceedings prior to the contempt hearing, she had attempted to settle the State's consumer fraud claim with a check drawn on a closed bank account. She repeatedly referred to herself during hearings as "the authorized representative of Rose Grady." During a February 13, 2003 hearing on the State's request for a permanent injunction, Grady testified that the insufficient funds settlement check was a "set-off"; and that if her check was not good, "then [the State's settlement] offer was not good." She described the State's settlement offer as "fraudulent" and observed "[t]his needs to be reported to homeland security. There are terrorists in this organization, and you're financing terrorist activities." She sent nonsensical correspondence to the State's counsel and tended to return documents served on her by State's counsel bearing a handwritten notation stating "conditionally accepted for value." During an April 24, 2003 hearing, Grady again disclosed her utter confusion as she described her efforts to settle the State's claim:
I sent a letter to — a notice of agreement to District Court, Harrison County, Iowa, attention James Richardson, Judge. I offered, I've accepted and returned all charges, offers, dishonors and offered and tendered consideration my personal exemption in exchange for settlement and closure of this case. I requested immediate closure.
We find the contempt hearing colloquy clearly inadequate to establish a knowing and intelligent waiver of Grady's right to counsel. Given the extensive evidence of her obvious confusion and inability to competently represent herself, the district court had an obligation at a minimum to apprise Grady of the dangers of proceeding without counsel. This is clearly not a case in which the record shows Grady had sufficient knowledge from other sources such that a more thorough colloquy may be dispensed with. Meyer, 854 F.2d at 1114.
Under these circumstances we cannot find Grady knowingly and intelligently waived her right to counsel in connection with the contempt hearing. Absent a knowing and intelligent waiver of a right to counsel, no person shall be imprisoned unless represented by counsel at trial. Argersinger v. Hamlin, 407 U.S. 25, 38, 92 S. Ct. 2006, 2012, 32 L. Ed. 2d 530, 538 (1972). We therefore reverse the order of contempt against Rose Grady and vacate her sentence of imprisonment.
D. Affidavit in Support of Contempt Charge.
We need not address Grady's contention that the district court erred when it found her in contempt notwithstanding the State's failure to support its application for contempt with an affidavit revealing the transactions justifying the contempt request. However, because the issue might again arise in further proceedings in the district court, we will address it. Iowa Code section 665.6 (2003) does not require an affidavit in support of the contempt application where the basis for the charge later comes "officially within [the court's] knowledge." The "Surety Bonds" were filed with the court and were sufficiently within the court's knowledge. The violations of the preliminary injunction which served as the basis for the previous assessment of the civil penalty were adequately proven at the subsequent contempt hearing. Thus all bases for the contempt were officially within the district court's knowledge in conformity with section 665.6.
IV. Conclusion.
We affirm the district court's issuance of the permanent injunction. We also affirm the award of civil penalties imposed in this case. We reverse the district court's order holding Grady in willful contempt, and vacate her sentence of imprisonment.
AFFIRMED IN PART; REVERSED IN PART.
Sackett, C.J. and Brown, S.J., concur; Vogel, J., and Zimmer, J. dissent in part.
I concur with the majority's determination that Grady did have the right to counsel at the civil contempt proceedings because imprisonment was a contemplated sanction. See McNabb v. Osmundson, 315 N.W.2d 9, 14 (Iowa 1982) (holding that a civil contemnor was "entitled to counsel at the hearing that resulted in his incarceration and will be entitled to counsel in any subsequent hearing if it will result in the loss of his physical liberty.") (emphasis added). I, however, respectfully dissent from the majority's conclusion that Grady did not knowingly and intelligently waive her right to counsel at the contempt hearing.
Courts have routinely held the due process right to counsel at civil contempt proceedings requires only two actions on the part of contempt courts before an alleged contemnor may be tried without the benefit of counsel. First, the contemnor must be informed of his right to counsel. See e.g., Walker v. McLain, 768 F.2d 1181, 1185 (10th Cir. 1985) (stating that an indigent's right to counsel in civil contempt proceedings imposes on the court the obligation to inform of that right); Johnson v. Zurz, 596 F. Supp. 39, 46 (N.D. Ohio 1984) (determining that an indigent in contempt proceedings for failure to pay child support must be informed of right to appointed counsel); Lake v. Speziale, 580 F. Supp. 1318, 1342 (D. Conn. 1984) (deciding procedural due process requires contemnor be notified of the right to court appointed counsel); Dube v. Lopes, 481 A.2d 1293, 1294 (Conn. 1984) (holding incarceration of indigent father for civil contempt without being advised of right to counsel, violated due process); In re Marriage of Stariha, 509 N.E.2d 1117, 1121 (Ind.App. 1987) (determining indigent defendant facing incarceration for contempt for failure to pay child support must be informed of right to counsel). Second, there must be a knowing and intelligent waiver of counsel. See Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890, 8 L. Ed. 2d 70, 77 (1962) (stating the record must show that the accused was offered counsel and knowingly and understandingly rejected the offer); Iowa v. Tovar, 541 U.S. 77, ___, 124 S. Ct. 1379, 1383, 158 L. Ed. 209, ___ (2004) (noting that the "Constitution . . . does require that any waiver of the right to counsel be knowing, voluntary, and intelligent.").
At Grady's contempt hearing the district court engaged Grady in the following colloquy:
THE COURT: We are here to show cause why you should not be held in contempt of court. And I understand that you, by saying you are the authorized representative, you represent yourself; is that correct?
MS. GRADY: That is correct.
THE COURT: And you do not intend to have an attorney represent you?
MS. GRADY: No sir. Not at this time.
THE COURT: All right. And you understand you have the right to have an attorney represent you?
MS. GRADY: Yes.
Thus, the first due process requirement, that Grady be informed of her right to counsel, was satisfied. Consequently, the critical inquiry is whether the record demonstrates that Grady knowingly and voluntarily waived her right to counsel.
The majority concludes that Grady did not validly waive her right to counsel because the district court did not engage in a "formal on-the-record colloquy apprising Grady of her right to counsel and the risks she would accept if she represents herself at trial." While this admonishment is required for a defendant to knowingly and intelligently waive counsel at a criminal trial, I believe that a less rigorous standard applies in civil contempt proceedings.
In Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 582 (1975) the United States Supreme Court held that a criminal defendant resisting the aid of counsel "should be made aware of the dangers and disadvantages of self representation, so that the record will establish that he knows what he is doing. . . ." In Patterson v. Illinois, 487 U.S. 285, 289, 108 S. Ct. 2389, 2398, 101 L. Ed. 2d 261, 276 (1988), the Court recognized "the enormous importance and role that an attorney plays at a criminal trial" and noted that the Court had "imposed the most rigorous restrictions on the information that must be conveyed to a defendant and the procedures that must be observed, before permitting [a defendant] to waive [the] right to counsel at trial." However, Tovar 541 U.S. at ___, 124 S. Ct. at 1388, 158 L. Ed. 2d at ___, the United States Supreme Court reiterated that at other stages of the criminal process, "a less searching or formal colloquy may suffice." The Court in Tovar then held that a formal admonishment of the risks attendant in self-representation was not, under the particular facts and circumstances, constitutionally required in order for the waiver of counsel to be valid. Tovar 541 U.S. at ___, 124 S. Ct. at 1390, 158 L. Ed. 2d at ___; see also Speights v. Frank, 361 F.3d. 962, 965 (7th Cir. 2004) (determining that the Court held in Tovar that "it is enough . . . if the accused knows of his right to counsel and the plea itself is voluntary.").
The majority analogizes Grady's civil contempt proceedings to a criminal trial and thereby concludes the district court was constitutionally required to engage Grady in the heightened colloquy compelled by Faretta. I do not believe civil contempt proceedings should be equated with criminal trial proceedings when establishing the requirements for a knowing and intelligent waiver of the right to counsel. This is because an attorney does not play the same critical role in civil contempt proceedings as in a criminal trial.
The majority relied on Speights, 361 F.3d. at 965, for the proposition that a district court is required to apprise a defendant at a criminal trial of the risks inherent in self-representation. However, this case is not strong support for this proposition as the United States Court of Appeals for the Seventh Circuit could not conclusively state that such admonishment is required, but instead stated only that:
What one can say is that waiver of the right to the assistance of counsel at trial, the stage of a criminal prosecution most difficult for a layperson to navigate, may require an oral inquiry to ensure that the defendant chooses with knowledge of his entitlements and his eyes open to the dangers of self-representation.
Speights, 361 F.3d. at 964 (Latter emphasis added).
Significant support for this view is the fact that our United States Supreme Court has not expressly recognized the right to counsel in civil contempt proceedings, and the Court of Appeals for the Fourth Circuit as well as several state courts have expressly held the right to counsel does not apply to all civil contempt proceedings. See e.g., Cromer v. Kraft Foods North America, Inc., 390 F.3d 812, 821 (4th Cir. 2004) (stating that because civil contempt proceedings are civil, not criminal proceedings, the right to counsel is not guaranteed); State v. King, 707 So. 2d 1374, 1377 (La.Ct.App. 1998) (noting that because the State's action against parent to recover child support was civil, not criminal, the parent had no constitutional right to court-appointed counsel, even if incarceration for contempt is possible); Meyer v. Meyer 414 A.2d 236, 238 (Me 1980) (determining an indigent father held in civil contempt for failure to pay child support was not denied due process of law when he was not given assistance of court-appointed counsel); Rodriguez v. Eighth Judicial Dist. Court ex rel. County of Clark, 102 P.3d 41, 51 (Nev. 2004) ("Due process does not require the appointment of counsel in every civil contempt hearing involving an indigent party facing the threat of imprisonment."); cf. Speights, 361 F.3d. at 965 (noting that Tovar strongly suggests the Supreme Court is not likely to extend, beyond a criminal trial, any requirement that a defendant be informed of the benefits of counsel and risks of waiver); Krieger v. Commwealth., 567 S.E.2d 557, 564 (Va. 2002) (finding "neither an interest of a fundamental nature, nor a proceeding so complex as to implicate equal protection or due process concerns which would entitle the contemnor to court-appointed counsel to pursue his appeal of the civil contempt order."). Because several courts have concluded the role of council in civil contempt proceedings is not so critical as to warrant even some constitutional protection, I do not believe the role of council in civil contempt proceedings in this state warrants the heightened protection afforded it at criminal trials. Thus, I believe the district court was not constitutionally compelled to provide Grady with a rigorous colloquy admonishing her of the dangers of self-representation in order for her waiver of counsel to be knowing, voluntary, and intelligent. In my view, only the less demanding admonishment of Tovar should be required of district courts when contemnors wish to represent themselves in civil contempt proceedings.
In Tovar the United States Supreme Court stated that the constitutional requirement for a knowing and intelligent waiver of the right to counsel is satisfied "when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." Tovar, 541 U.S. at ___, 124 S. Ct. at 1383, 158 L. Ed. 2d at ___. Grady was informed of her right to counsel at the outset of her contempt hearing. Furthermore, after Grady presented her exhibits the district court attempted to get her to better address the contempt charges against her by engaging in the following discussion with Grady:
The State claims that you are in violation of that restraining order in these ways and asks that you be punished for contempt of court. You could go to jail for 30 days today, you could be fined the court, a civil penalty, or — and that what could happen. And your specific duty today is to let the court know, if you want to, why you should not be held in contempt of court. And I'm giving you that opportunity. You don't have to, I'm just giving you that opportunity. This is your opportunity to speak.
Therefore, not only was Grady informed of her right to counsel, she was also informed of "the nature of the charges against [her]" and "the range of allowable punishments. . . ." Consequently, I would conclude the district court met the constitutional requirements for establishing a knowing and intelligent waiver of the right to counsel. But see, Peters-Riemers v. Riemers, 663 N.W.2d 657, 665 (N.D. 2003) (determining that because their contempt statute was similar to Wisconsin's they should adopt the elaborate procedural requirements developed by the Wisconsin Supreme Court in State v. Pultz, 556 N.W.2d 708, 716-17 (Wis. 1996) for establishment of a knowing and voluntary waiver in civil contempt proceedings).
While it is true that the information provided Grady about the nature of the charges against her and the allowable punishment was not presented before she indicated her desire to represent herself, she was free to invoke her right to counsel at her civil contempt hearing upon being apprised of the fact she had failed to adequately address the contempt charges against her and that she could possibly go to jail.
Moreover, even if the stricter and more formal admonishment mandated by Faretta were constitutionally required in this case, I believe the intended result of that warning was satisfied. In Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242, 87 L. Ed. 268, 275 (1942), the United States Supreme Court indicated that a waiver of counsel is intelligent when the defendant "knows what he is doing and his choice is made with eyes open." In Faretta, the Court stated that a defendant should be warned of the "dangers and disadvantages of self-representation, so that the record will establish he knows what his is doing and his choice is made with eyes open." See Faretta, 422 U.S at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582 (emphasis added). Thus, the warning propounded in Faretta was intended, at least in part, to ensure that the record reflects that the person waiving the right to counsel knows what she is doing, so that the choice is made "with eyes open."
Grady, after being found in contempt, curiously never actually argued to the district court that she had not knowingly, intelligently, and voluntarily waived her right to counsel at the contempt proceedings. She instead conceded that she wanted to represent herself at the contempt proceedings, but argued she should not have been allowed to do so because, in retrospect, she was not competent to represent herself. The record indicates that Grady represented herself as "the authorized representative of Rose Grady" throughout the proceedings. At the contempt proceedings, Grady presented exhibits and ultimately asserted the defense that she did not have control over the entity she had previously asserted she represented. Thus, I would conclude Grady wanted to represent herself, or the "Rose Grady" entity, during the contempt proceedings and understood what this self-representation entailed. Grady was in command of her strategy, clearly knew what she was doing, and made her choice to represent herself "with eyes open."
Grady also concedes in her appellate brief that she did not want the assistance of counsel at her contempt proceeding as she asserts, "the fact she did not want counsel is not controlling" with regard to whether she was competent to serve as her own attorney.
This conclusion is in agreement with the following statement by the district court in addressing Grady's competency assertion:
The Court rejects Grady's newest contention that she was incompetent to represent herself at the contempt hearings. She was and is competent. Her rejection of counsel was clearly her idea. She was repeatedly advised of her right to counsel. She was argumentative and stubborn in her intention to represent herself and in her view that she did not need counsel. She not only was able to represent herself, she spent considerable time in filing a great number of documents in the nature of liens against officers of the Court and was able to get such liens registered or filed in the office of the Secretary of State. Her actions were successful in bringing into question the credit of those officers. She not only was competent, she was successful.
The majority characterizes Grady as a "confused person who did not understand the law." I disagree and would conclude that she did knowingly and intelligently waive counsel. See Faretta, 422 U.S at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581-82 (stating that a "defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently to choose self-representation. . . ."). The district court was not required to warn Grady of the dangers of self-representation, and even if it were, Grady, without this expanded warning, knew what she was doing and made the choice to represent herself "with eyes open." Consequently, I would affirm the district court's finding of contempt and the sentence imposed.
Zimmer, J., joins this partial dissent.