Weitsman v. Levesque
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
Plaintiffs moved for an order to show cause regarding contempt and sanctions, including a request for a bench warrant for the arrest of the unrepresented Defendant. The Court vacated the scheduled hearing on the motion and directed the Defendant to make an election regarding legal representation within 30 days.
| What the court decided | The model |
|---|---|
Motion for Order to Show Cause Regarding Contempt and for Order Imposing Sanctions (hearing vacated)“In light of the foregoing, the Court VACATES the April 21, 2022 hearing on Plaintiffs’ Motion.” | agree with court The court correctly identified that the potential sanction of imprisonment (via bench warrant) triggers the Sixth Amendment right to counsel. By vacating the hearing to allow the defendant to secure counsel or knowingly waive that right, the court ensured due process was protected before proceeding with a potentially penal sanction. |
Defendant directed to file election regarding counsel“On or before May 13, 2022, Defendant SHALL FILE either: i. a Notice of Appearance... ii. an application to proceed in forma pauperis... and a motion requesting appointment of counsel... or iii. a statement indicating that Defendant understands that the contempt proceedings could result in a loss of his liberty, but that Defendant affirmatively chooses to proceed with the contempt proceedings without the assistance of counsel.” | agree with court The court provided the defendant with the necessary procedural options to satisfy the constitutional requirement of counsel or a valid waiver. This is a standard and appropriate procedural step in a civil contempt proceeding where imprisonment is sought. |
The order itself: sound — The order is procedurally sound. It correctly identifies the constitutional issue (right to counsel in a proceeding where imprisonment is sought) and takes the appropriate step of pausing the proceedings to ensure the defendant's rights are protected. The citations support the conclusion that counsel is required or a valid waiver must be made.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADAM WEITSMAN; UPSTATE Case No.: 19-CV-461 JLS (AHG) SHREDDING, LLC, a New York limited 12 liability company; WEITSMAN ORDER (1) VACATING HEARING 13 SHREDDING, LLC, a New York limited ON PLAINTIFFS’ CONTEMPT liability company; and WEITSMAN MOTION PENDING DEFENDANT’S 14 RECYCLING, LLC, a New York limited ELECTION REGARDING 15 liability company, COUNSEL AND (2) DIRECTING DEFENDANT TO MAKE 16 Plaintiffs, ELECTION REGARDING 17 v. COUNSEL 18 ROBERT ARTHUR LEVESQUE, III, (ECF No. 113) 19 Defendant.
21 Presently before the Court is Plaintiffs Adam Weitsman; Upstate Shredding, LLC; 22 Weitsman Shredding, LLC; and Weitsman Recycling, LLC’s (collectively, “Plaintiffs”) 23 Motion for Order to Show Cause Regarding Contempt Against Defendant, and for Order 24 Imposing Sanctions (“Mot.,” ECF No. 113). The Motion presently is set for a hearing at 25 3:00 p.m. on April 21, 2022. 26 In light of the fact that Plaintiffs seek, among other sanctions, the issuance of a bench 27 warrant for Defendant Robert Arthur Levesque, III’s (“Defendant”) arrest, see Mot. at 9– 28 11, the Court has concerns about the fact that Defendant presently is unrepresented by 1 counsel. See, e.g., In re Di Bella, 518 F.2d 955, 959 (2d Cir. 1975) (“[A]bsent a knowing 2 and intelligent waiver, no person may be imprisoned for any offense, whether classified as 3 petty, misdemeanor, or felony, unless he is represented by counsel at his trial. The Circuits 4 with an opportunity to do so have concluded that this right must be extended to a contempt 5 proceeding, be it civil or criminal, where the defendant is faced with the prospect of 6 imprisonment.”) (citations omitted); In re Grand Jury Proc., 468 F.2d 1368, 1369 (9th Cir. 7 1972) (“[A]n indigent witness is entitled to appointed counsel in [a contempt proceeding]. 8 Threat of imprisonment is the coercion that makes a civil contempt proceeding effective. 9 The civil label does not obscure its penal nature.”), abrogated on other grounds by Turner 10 v. Rogers, 564 U.S. 431 (2011). 11 Given the gravity of the sanctions sought in the contempt proceeding, the Court takes 12 this opportunity to inform Defendant of his right to be represented by counsel at the 13 contempt proceeding and, if he is indigent, his right to appointed counsel. On or before 14 May 13, 2022, Defendant SHALL FILE either: 15 i. a Notice of Appearance indicating that counsel of Defendant’s choice is 16 appearing on his behalf at Defendant’s own expense; 17 ii. an application to proceed in forma pauperis (in substantially the form available 18 at https://www.casd.uscourts.gov/_assets/pdf/forms/AO239_Application%20to 19 %20Proceed%20Without%20Prepayment.pdf) and a motion requesting 20 appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1); or 21 iii. a statement indicating that Defendant understands that the contempt proceedings 22 could result in a loss of his liberty, but that Defendant affirmatively chooses to 23 proceed with the contempt proceedings without the assistance of counsel. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 In light of the foregoing, the Court VACATES the April 21, 2022 hearing on 2 || Plaintiffs’ Motion. Once the Court has resolved the issue of Defendant’s representation, 3 Court will reset Plaintiffs’ Motion for a hearing. 4 IT IS SO ORDERED. 5 ||Dated: April 12, 2022 Mee tt \ f tie 6 on. Janis L. Sammartino 7 United States District Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28