Marcum v. Duchak et al

Filing 19

ORDER DENYING APPOINTMENT OF COUNSEL AND FINDING MOTION FOR CLASS CERTIFICATION TO BE MOOT. Signed by Magistrate Judge Michael R. Merz on 1/11/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
STATE OF OHIO,
EX REL TED MARCUM,
Petitioner,

:

- vs -

Case No. 3:17-cv-437
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

SHERIFF DAVE DUCHAK, et al.,
:
Respondents.

ORDER DENYING APPOINTMENT OF COUNSEL AND FINDING
MOTION FOR CLASS CERTIFICATION TO BE MOOT

This case is before the Court Petitioner’s Motion for Appointment of Counsel (part of ECF
No. 3). In support thereof, Mr. Marcum represents (without providing any detail) that he is
indigent.
Appointment of counsel in criminal cases is mandated by the Sixth Amendment to the
United States Constitution. Powell v. Alabama, 287 U.S. 45 (1932)(capital cases); Gideon v.
Wainwright, 372 U.S. 335 (1963)(felony cases); Argersinger v. Hamlin, 407 U.S. 25
(1972)(misdemeanor cases where imprisonment is a possibility); Alabama v. Shelton, 535 U.S.
654 (2002)(even if sentence is suspended).
However, appointment of counsel in a civil case is not a constitutional right. Mekdeci v.
Merrell National Laboratories, 711 F.2d 1510, 1522, n. 19 (11th Cir. 1983). It is a privilege that
is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982);
Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985), cited approvingly in Lavado, Jr. v. Keohane,
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992 F.2d 601 (6th Cir. 1993). A district court has no authority to compel an attorney to accept
appointment. Mallard v. U.S. Dist. Court, S.D. Iowa, 490 U.S. 296 (1989). Congress has never
appropriated any funds for compensation of appointed counsel in civil cases generally. Therefore
the request for appointment of counsel is DENIED.
Perhaps recognizing that the Court cannot certify a class in a case where the class
representative is not represented by counsel, Mr. Marcum requests class certification only “after
counsel has been appointed. . .” (ECF No. 3, PageID 262 1.) Because appointment of counsel has
been denied, the request for class certification is MOOT.

January 11, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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When any document is filed with this Court, the Court’s electronic filing system affixes a unique Page Identification
Number in the upper right hand corner of every page. The attention of the parties is directed to this Magistrate Judge’s
Standing Order of May 8, 2014, which provides in pertinent part “All references to the record in this Court must be to
the filed document by title, docket number, and PageID reference. (E.g., Defendant’s Motion to Dismiss, Doc. No.
27, PageID ___.) The large majority of cases before this Magistrate Judge are habeas corpus cases with large state
court records and correct citation to the record is critical to judicial economy. Therefore, nonconforming filings will
be stricken.

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