                                 State of Vermont
                      Superior Court - Environmental Division

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                 ENTRY REGARDING MOTION
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Town of Northfield                                     Docket No. 218-10-08 Vtec
       vs.
Larry Drown, Jason Law,
Jacob Dorman, & Kenneth Strong
(Municipal enforcement proceeding)
Title: Defendant Drown’s request for assigned counsel and continuance (Filing No. 38)
Filed: November 6, 2009
Filed By: Plaintiff Town of Northfield
Response: None.
_X_ Granted            ___ Denied          ___ Other

       This municipal zoning enforcement action was the subject of a two-day trial on
March 17–18, 2010. The Court issued a Judgment Order on April 6, 2010, finding
that Defendant Larry Drown and others had violated the Town of Northfield Zoning
Regulations. As a consequence of such violations, the Court ordered Defendants to
take certain remedial measures and to pay certain penalties to the Town of Northfield
(“the Town”). When Defendants failed to comply with the Judgment Order, the Court
conducted an evidentiary hearing on the Town’s motion to find the non-complying
Defendants in contempt and issued its Contempt Order on July 12, 2011.
       Now pending before the Court is the Town’s motion that Defendants Drown,
Dorman, and Strong be held in further contempt and that, as a consequence of such
contempt, the Court issue an arrest warrant and mittimus against each Defendant
until Defendants purge themselves of the previously-determined contempt. The Town
specifically requests that each defendant be placed in the custody of the
Commissioner of Corrections for a period of up to two years, unless and until they
purge themselves of the predetermined contempt.
       In response to the Town’s motion, Defendant Drown requested that he be
assigned legal counsel, at public expense, to assist him; he submitted a financial
disclosure in support of this request. The Court Manager determined that Defendant
Drown is a “financially needy person” under the Public Defender Payment Table
guidelines. However, when the Court Manager contacted the offices of the Vermont
Defender General, she was advised that counsel from that office could not be assigned
to assist in representing any parties charged with civil contempt, even when
incarceration was threatened.
      This is a case of first impression for this Court. However, it appears that
precedent requires the appointment of legal counsel, at state expense, to assist a
person responding to civil contempt allegations when there is a risk of incarceration
and substantial fines. See Russell v. Armitage, 166 Vt. 392, 397 (1997) (concluding
that the Due Process Clause of the Fourteen Amendment of the United States
Tn of Northfield v. Drown, et al, No. 218-10-08 Vtec (Entry Order on Request for Counsel and Continuance)
(Jan. 23, 2012)                                                                               Page 2 of 2.

Constitution requires “assignment of counsel for indigent defendants in civil contempt
proceedings that result in incarceration”) (citing Choiniere v. Brooks, 163 Vt. 625, 625
(1995) (mem.)). The Vermont Supreme Court offered support for its legal conclusions
in Choiniere by noting that “the overwhelming majority of other jurisdictions [federal
and state] have concluded that this right does attach.” 163 Vt. at 626 (citations
omitted).
       Defendants here face a serious charge of civil contempt and the loss of a
substantial right: the right of liberty. Defendant Drown has already suffered a
judgment of nearly $50,000.00 in penalties. He now faces further fines and a request
by the Town that he be committed to the custody of the Commissioner of Corrections
for a period of up to two years. We therefore intend to proceed with an adjudication of
the Town’s civil contempt claims only after Defendant Drown has been afforded his
right to counsel.
      The Court directs that the Vermont Defender General assign public defender
counsel to assist Defendant Drown no later than Friday, February 3, 2012.
      So as to provide sufficient time for Defendant Drown and his to-be-assigned
counsel to prepare, Defendant Drown’s request for a continuance is hereby
GRANTED. The evidentiary hearing originally scheduled for Wednesday, February 1,
2012 is continued until Wednesday, February 29, 2012, per the attached Notice of
Hearing.




___________________________________________                          ___January 23, 2012___
       Thomas S. Durkin, Judge                                                Date
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Date copies sent to: ____________                           Clerk's Initials _______
Copies sent to:
  Dina L. Atwood, Attorney for Plaintiff Town of Northfield
  Defendant Larry Drown, pro se
  Defendant Jacob Dorman, pro se
  Defendant Kenneth Strong, pro se
  Matthew F. Valerio, Vermont Defender General
