Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940).
A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999).
A void judgment is one which, from its inception, was a complete nullity and without legal effect, Lubben v. Selevtive Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972).
A void judgment is one which from the beginning was complete nullity and without any legal effect, Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456 (M.D. Fla. 1980).
Void judgment is one that, from its inception, is complete nullity and without legal effect, Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill 1992).
Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell 110 F.R.D. 382 (S.D.N.Y. 1986). Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985).
A void judgment is one which, from its inception, was, was a complete nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985).
A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree – Loyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985).
A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan, 234 P.2d 319 (Cal.App. 2 Dist. 1951).
Void judgment which is subject to collateral attack, is simulated judgment devoid of any potency because of jurisdictional defects, Ward v. Terriere, 386 P.2d 352 (Colo. 1963).
A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it and defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or relief to be granted, Davidson Chevrolet, Inc. v. City and County of Denver, 330 P.2d 1116, certiorari denied 79 S.Ct. 609, 359 U.S. 926, 3 L.Ed. 2d 629 (Colo. 1958).
Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to made or enter particular order involved and such a judgment may be attacked at any time, either directly or collaterally, People v. Wade, 506 N.W.2d 954 (Ill. 1987).
Void judgment may be defined as one in which rendering court lacked subject matter jurisdiction, lacked personal jurisdiction or acted in manner inconsistent with due process of law Eckel v. MacNeal, 628 N.E. 2d 741 (Ill. App. Dist. 1993).
Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved; such judgment may be attacked at any time, either directly or collaterally People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist. 1990).
Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982).
Void judgment is one which, from its inception is complete nullity and without legal effect In re Marriage of Parks, 630 N.E. 2d 509 (Ill.App. 5 Dist. 1994).
Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity People v. Rolland 581 N.E.2d 907, (Ill.App. 4 Dist. 1991).
Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 n.e.2D 1383 (Ill. App. 5 Dist. 1983).
A void judgment has no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate of Stavos, 609 N. E. 2d 1114, rehearing denied, and transfer denied (Ind. App. 1 dist. 1993). Void judgment is one that from its inception is a complete nullity and without legal effect Stidham V. Whelchel, 698 N.E.2d 1152 (Ind. 1998).
Relief form void judgment is available when trial court lacked either personal or subject matter jurisdiction, Dusenberry v. Dusenberry, 625 N.E. 2d 458 (Ind.App. 1 Dist. 1993).
Void judgment is one rendered by court which lacked personal or subject matter jurisdiction or acted in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14 Matter of Marriage of Hampshire, 869 P.2d 58 ( Kan. 1997).
Judgment is void if court that rendered it lacked personal or subject matter jurisdiction; void judgment is nullity and may be vacated at any time, Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994).
A void judgment is one rendered by a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process In re Estate of Wells, 983 P.2d 279, (Kan. App. 1999).
Void judgment is one rendered in absence of jurisdiction over subject matter or parties 310 N.W. 2d 502, (Minn. 1981).
A void judgment is one rendered in absence of jurisdiction over subject matter or parties, Lange v. Johnson, 204 N.W.2d 205 (Minn. 1973).
A void judgment is one which has merely semblance, without some essential element, as when court purporting to render is has no jurisdiction, Mills v. Richardson, 81 S.E. 2d 409, (N.C. 1954).
A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment, Henderson v. Henderson, 59 S.E. 2d 227, (N.C. 1950).
Void judgment is one entered by court without jurisdiction to enter such judgment, State v. Blankenship 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996).
Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991).
A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990).
Where condition of bail bond was that defendant would appear at present term of court, judgment forfeiting bond for defendant’s bail to appear at subsequent term was a void judgment within rule that laches does not run against a void judgment Com. V. Miller, 150 A.2d 585 (Pa. Super. 1959). A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment, State v. Richie, 20 S.W.3d 624 (Tenn. 2000).
Void judgment is one which shows upon face of record want of jurisdiction in court assuming to render judgment, and want of jurisdiction may be either of person, subject matter generally, particular question to be decided or relief assumed to be given, State ex rel. Dawson v. Bomar, 354 S.W. 2d 763, certiorari denied, (Tenn. 1962).
A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render the judgment, Underwood v. Brown, 244 S.W. 2d 168 (Tenn. 1951).
A void judgment is one which shows on face of record the want of jurisdiction in court assuming to render judgment, which want of jurisdiction may be either of the person, or of the subject matter generally, or of the particular question attempted to decided or relief assumed to be given, Richardson v. Mitchell, 237 S.W. 2d 577, (Tenn.Ct. App. 1950).
Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed, City of Lufkin v. McVicker, 510 S.W. 2d 141 (Tex. Civ. App. – Beaumont 1973).
A void judgment, insofar as it purports to be pronouncement of court, is an absolute nullity, Thompson v. Thompson, 238 S.W.2d 218 (Tex.Civ.App. – Waco 1951).
A void judgment is one that has been procured by extrinsic or collateral fraud, or entered by court that did to have jurisdiction over subject matter or the parties, Rook v. Rook, 353 S.E. 2d 756, (Va. 1987).
A void judgment is a judgment, decree, or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, State ex rel. Turner v. Briggs, 971 P.2d 581 (Wash. App. Div. 1999).
A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L., 733 N.E.2d 846, (Ill.App. 1 Dist. 2000).
Void judgments are those rendered by court which lacked jurisdiction, either of subject matter or parties, Cockerham v. Zikratch, 619 P.2d 739 (Ariz. 1980).
Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of person or subject matter, and judgments procured through fraud, and such judgments may be attacked directly or collaterally, Irving v. Rodriquez, 169 N.E.2d 145, (Ill.app. 2 Dist. 1960).
Invalidity need to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record, Crockett Oil Co. v. Effie, 374 S.W.2d 154 ( Mo.App. 1964).
Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment hat was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995).
Void order may be attacked, either directly or collaterally, at any time, In re Estate of Steinfield, 630 N.E.2d 801, certiorari denied, See also Steinfeld v. Hoddick, 513 U.S. 809, (Ill. 1994).
Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court, People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994).
While voidable orders are readily appealable and must be attacked directly, void order may be circumvented by collateral attack or remedied by mandamus, Sanchez v. Hester, 911 S.W.2d 173, (Tex.App. – Corpus Christi 1995).
Arizona courts give great weight to federal courts’ interpretations of Federal Rule of Civil Procedure governing motion for relief from judgment in interpreting identical text of Arizona Rule of Civil Procedure, Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App. Div. 1, 1998). When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d 1307, (Colo. 1994).
Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278.
F.R.Civ.P. Rule 60(b)(4) Brief Exerts
The United States asserts that the standard of review of the District
Court’s denial of a motion under Rule 60(b) is for abuse of discretion.
(Gov’tBrf. at 10). The Government’s assertion is incorrect in the case
First, the Grants are seeking review under the provisions of Rule
60(b)(4), Fed.R.Civ.P., and not what they contend is the District
Court’s incorrect application of Rule 60(b)(1). This Court reviews a
district court’s interpretation of the Federal Rules of Civil Procedure
de novo. Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989); Jenkins
v. Whittaker Corp., 785 F.2d 720, 736 (9th Cir.), cert. denied, 479 U.S.
Second, the standard of review pursuant to Rule 60(b)(4) is de novo.
The District Court was compelled to vacate the judgment against the
Grants, because “[a] void judgment is a legal nullity and a court
considering a motion to vacate has no discretion in determining whether
it should be set aside.” 7 J.Moore, Moore’s Federal Practice, para.
60.25 at 301 (2d ed. 1973). The issue of whether the Grants were
denied due process involves a constitutional question of law that this
Court reviews de novo. In re Center Wholesale, Inc., 759 F.2d 1440,
1445 (9th Cir. 1985).
(B) The Grants’ Rule 60(b)(4) motion was proper and timely.
The United States argues that the District Court properly treated the
Grants’ motions as untimely pursuant to Rule 60(b)(1). (Gov’tBrf. at
12-17). At the same time, the Government acknowledges the
constitutional grounds for the Grants’ motions under Rule 60(b)(4).
(Id. at 17-20). Concerning the Grants’ Rule 60(b)(4) motion, the United
States simply asserts that: ”Taxpayers argue, in an attempt to
circumvent (sic) the one-year rule that applies to Rule 60(b)(1)
motions, that their motions to alter or vacate the judgment were made
pursuant to Rule 60(b)(4)…. As this Court has often stated, and
contrary to taxpayers’ apparent (sic) argument, ‘[a] judgment is not
void merely because it is erroneous.’” (Gov’tBrf. at 15-16).
The United States apparently assumes this Court does not understand the
different standards available under the various subdivisions of Rule
60(b). An unconstitutionally rendered judgment is void within the
meaning of Rule 60(b)(4). Matter of Park Nursing Center, Inc., 766 F.2d
261, 264 (6th Cir. 1985) (citing Textile Banking Co. Inc. v. Rentschler,
657 F.2d 844 (7th Cir. 1981). It is clear that the Grants’ brought
their motion under Fed.R.Civ.P. 60(b)(4), which provides that “[o]n
motion and upon such terms as are just, the court may relieve a party or
his legal representative from a final judgment, order, or proceeding for
the following reasons: … (4) the judgment is void.” The rule requires
that a 60(b)(4) motion “be made within a reasonable time,” but if a
judgment is void, a motion to set it aside may be brought at any time.
Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987);
Bookout v. Beck, 354 F.2d 823, 825 (9th Cir. 1965); 11 C.Wright &
A.Miller, Federal Practice and Procedure sec. 2862 at 197 (1973), and
cases cited therein. Moreover, a void judgment cannot acquire validity
because of laches on the part of the movant. Therefore, the delay in
bringing the Rule 60(b)(4) motion is irrelevant and the Grants’ motion
was timely. In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir.
The Fifth Amendment provides that no person shall “be deprived of life,
liberty, or property, without due process of law.” The Grants’ Rule
60(b)(4) motion challenged the judgment of contempt against them on the
constitutional issues of due process, since they were denied their Fifth
and Sixth Amendment rights. ”It is the defendant’s interest in personal
freedom, and not simply the special ixth … [A]mendment right to
counsel in criminal cases, which triggers the right to appointed
counsel.” Lassiter v. Department of Social Services of Durham County,
452 U.S. 18 (1981). It should be undisputed that the Grants were denied
their right to counsel, as mandated by the Sixth Amendment, which denied
them due process. It should also be undisputed that the Grants were
denied their right not to incriminate themselves, as mandated by the
Fifth Amendment, which denied them due process. The Grants’ interest in
this case is one of the most important protected by our
constitution–the interest in personal liberty. Walker v. McLain, 768
F.2d 1181, 1183 (10th Cir. 1985).
The Grants’ Rule 60(b)(4) motion was precisely on point, timely filed,
and challenged the judgment of contempt on due process grounds as void.
(C) The doctrine of res judicata does not apply to the instant matter,
since the Grants have made a direct attack in the District Court which
issued the judgment challenged as void.
The United States asserts that “[e]ven if the Court were to reverse the
District Court’s orders now on appeal, taxpayers would not be entitled
to relitigate the propriety of the summons enforcement orders which are
now final.” (Gov’tBrf. at 17). This is an inaccurate assertion of the
law by the Government, which is an apparent argument that the doctrines
of res judicata and/or collateral estoppel apply to the instant matter.
The doctrine of res judicata does not apply to direct attacks on
judgments. A direct attack is defined as follows:
A direct attack on a judicial proceeding is an attempt to correct
it, or to void it, in some manner provided by law to accomplish
that object. It is an attack … by appropriate proceedings
between the parties to it seeking, for sufficient cause alleged, to
have it annulled, reversed, vacated or declared void. Watts v. Pinckney,
752 F.2d 406, 410 (9th Cir. 1985) (citing 1B J.Moore, Moore’s
Federal Practice para. 0.407 at 282 n. 1, quoting Intermill v.
Nash, 94 Utah 271, 75 P.2d 157.
As noted above, it is well settled that a judgment is void “if the court
that considered it … or if the parties or if [the court] acted in a
manner inconsistent with due process of law.” Vol. 11, Wright and
Miller, Federal Practice and Procedure at 198, 200. Res judicata does
not preclude a litigant from making a direct attack under Rule 60(b)
upon the judgment before the court which rendered it. Watts, 752 F.2d
at 410 (quoting Jordan v. Gilligan, 500 F.2d 701, 710 (6th Cir. 1974).
See also Kremer v. Chemical Const. Corp., 102 S.Ct. 1883, 1897 (1982)
(We have previously recognized that the judicially created doctrine of
collateral estoppel does not apply when the party against whom the
earlier decision is asserted did not have a “full and fair opportunity
to litigate the claim or issue”, Allen v. McCurry, 449 U.S. 90, 95
(1980); Montana v. United States, 440 U.S. 147, 153 (1979)).
“Redetermination of issues is warranted if there is reason to doubt the
quality, extensiveness, or fairness of procedures followed in prior
litigation.” Montana, 440 U.S. at 164; Gibson v. Berryhill, 411 U.S.
On page 2 of the panel’s decision, it stated that the standard of review
of a Rule 60(b) motion is for abuse of discretion, and it brings up only
the denial of the motion for review, not the merits of the underlying
judgment. The panel acknowledged that the Grants brought their motion
pursuant to Rule 60(b)(4), but determined that they failed to show that
the District Court’s orders finding them in contempt were void. Slip
Op. *2-3. The panel reached this conclusion by finding that “the Grants
were partly to blame for the delay in bringing their motions,” and “the
district court correctly construed the Grants’ motions as being brought
under Rule 60(b)(1).” Slip Op. *3. Only by sanctioning
unconstitutional conduct can the panel deny the Grants protection under
the Bill of Rights.
First, the Grants are somewhat bewildered that a denial of their Sixth
Amendment right to counsel could be construed by the panel as a failure
to show that the District Court’s orders finding them in contempt were
void. ”Despite the uncertain meaning of void, it is accepted that if
the miscarriage is sufficiently egregious, Rule 60(b)(4) applies.” In
re Bestway Products, Inc., 151 B.R. at 538; Tsafaroff v. Taylor, 884
F.2d 478, 481-82 (9th Cir. 1989); Center Wholesale, 759 F.2d at
1448-51. ”Either the judgment is void or it is valid.” Meadows, 628
F.Supp. 599, 603; Jones v. Giles, 741 F.2d 245, 247 (9th Cir. 1984) (A
district judge has no discretion in determining whether a judgment is
void; it either is or it is not). The federal courts have repeatedly
ruled that the denial of counsel is a violation of due process, which
renders a judgment void. It is also generally acknowledged that the
touchstones of due process are notice and adequacy of represenation.
Silber v. Mabon, 957 F.2d 697, 700 n. 3 (9th Cir. 1992). The denial of
counsel in a contempt proceeding is a due process violation rendering
the contempt orders void.
Some courts have ruled that the diligent litigant, represented by an
incompetent or sloppy counsel, is entitled to relief under Rule 60(b).
In re Ireco Industries, Inc., 2 B.R. 76 (Bkrtcy Oregon 1969); King v.
Mordowanec, 46 F.R.D. 474 (D.C.R.I. 1969) (treating “gross” negligence
by counsel as constituting special circumstances taking the case out of
clause (1) and affording relief under clause (6)).
In Klapprott v. United States, 335 U.S. 601 (1943), the Supreme Court
held that it is well established that the power vested in the courts
under Rule 60(b)(6) is sufficient to enable them to vacate judgments
whenever such action is appropriate to accomplish justice. A litigant
is entitled to a fair hearing which presupposes an opportunity to
present all the facts available in support of his position. It is true
that most decisions interpreting Rule 60 have been concerned with cases
involving default judgments. However, there is little difference
between a judgment rendered without a hearing and one rendered after a
hearing in which counsel for one of the litigants is in such condition
as to not have the ability to properly represent his client’s
interests. In re Credimas’ Estate, 14 F.R.D. 15 (1953).
In the instant matter, the Grants were wholly unrepresented by counsel,
and the District Court, affirmed by the panel’s decision, blamed the
Grants for such failure. In Daigle v. Warner, 348 F.Supp. 1074
(D.Hawaii 1972), the Government advanced the argument that because
petitioner could have objected to the summary court-martial, and thereby
received the protections provided by a general or summary court, his
constitutional rights were not violated. The court disagreed and
applied the Argersinger protections. The court found that the
Argersinger protections demand that an accused is (1) advised of his
right to counsel, (2) afforded an opportunity for assistance of counsel
both prior to and during the summary court-martial proceeding, (3)
advised that if indigent, counsel must be provided without cost, and (4)
after the above three requirements are satisfied, the accused may make a
knowing and intelligent waiver of his right to counsel. Id. at 1078.
The right to counsel does not depend upon whether the proceeding is
characterized as “criminal” or “civil.” The Supreme Court has said,
“This right extends to every case in which the litigant may be deprived
of his personal liberty if he loses.” Lassiter v. Department of Social
Services, 452 U.S. 18, 25 (1981). ”But were the [civil v. criminal]
label important, the [federal] courts have long considered contempt
proceedings growing out of civil actions criminal or quasi-criminal in
nature.” (Cites omitted). Ridgway v. Baker, 720 F.2d 1409, 1413 (5th
The Second Circuit eloquently discussed one’s right to counsel in a
civil contempt proceeding where one invokes the Fifth Amendment right
against self-incrimination in United States v. Bobart Travel Agency,
Inc., 699 F.2d 618 (2d Cir. 1983). Referring to it as presenting
“thorny and unsettled issues,” the Second Circuit held:
[T]he hazards of those issues underscore that Bennett [respondent]
should not have been denied the assistance of counsel: To guide a
client between the Scylla of contempt and the Charybdis of waiving
his Fifth Amendment privilege requires not only a lawyer but an
astute one. This court flatly held in In re Di Bella, 518 F.2d 955
(2d Cir. 1975), that an individual is entitled to counsel in a
civil contempt proceeding under 28 U.S.C. section 1826.” Bobart,
699 F.2d at 619-620.
The District Court’s ruling, sanitized by the panel, that “the Grants
are responsible for failing to raise their Fifth and Sixth Amendment
arguments during the summons enforcement and contempt proceedings,” is
contrary to well established precedents. In other words, the blame,
even in part, cannot be shifted to the Grants to breath life into the
void contempt orders.
An accused contemnor’s failure to request the assistance of counsel is
not a waiver of his constitutional right to the assistance of counsel,
McNeal v. Culver, 365 U.S. 109 (1961), and it may not be presumed from a
silent record, even if it shows that the accused pleaded guilty, that he
intelligently and understandingly waived his constitutional right to the
assistance of counsel. Carnley, supra. ”The record must show, or there
must be an allegation and evidence which show, that an accused was
offered counsel but intelligently and understandingly rejected the
offer. Anything less is not waiver.” Id.; Carnley v. Cochran, 369 U.S.
506 (1962); Walton v. Arkansas, 371 U.S. 28 (1962).
The courts have “uniformly recognized the right to appointed counsel in
various contempt proceedings, and a contempt proceeding without the
Argersinger protections is contrary to due process. The Supreme Court
has held that the due process clause requires the benefit of counsel for
the accused contemnor in constructive contempt cases.” In re Oliver,
333 U.S. 257, 275 (1948); Cooke v. United States, 267 U.S. 517, 537
(1925)). See also Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir. 1973)
(holding that due process requires counsel for the indigent in contempt
cases); Ridgway, 720 F.2d at 1415.
There is no question that a person may waive the right to counsel and
defend against contempt charges pro se. To be valid, however, the
waiver of this fundamental constitutional guarantee must be voluntary,
knowing and intelligent. See e.g., Sanchez v. Mondragon, 858 F.2d 1462,
1465 (10th Cir. 1988). Indeed, before allowing a defendant to proceed
pro se, the District Judge must ensure and establish on the record that
defendant “knows what he is doing and [that] his choice is made with
eyes open.” Faretta v. California, 422 U.S. 806, 835 (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
Faretta requires a showing on the record that the defendant who elects
to conduct his own defense had some sense of the magnitude of the
undertaking and the hazards inherent in self-representation when he made
the election. The task of ensuring that defendant possesses the
requisite understanding intially falls on the trial judge, who must bear
in mind the strong presumption against waiver. Von Moltke v. Gillies,
332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948).
To be valid such waiver must be made with an apprehension of the
nature of the charges, the statutory offenses included within them,
the range of allowable punishments thereunder, possible defenses to
the charges and circumstances in mitigation thereof, and all other
facts essential to a broad understanding of the whole matter.
A judge can make certain that an accused’s professed waiver of
counsel is understandingly and wisely made only from a penetrating
and comprehensive examination of all the circumstances under which
such a plea is tendered. Von Moltke, 332 U.S. at 723-24, 68 S.Ct. at
The federal courts have reiterated that the factors articulated must be
conveyed to the defendant by the trial judge and must appear on the
record so that appellate review may be conducted without speculation.
Stated another way, the blame cannot be shifted to pro se litigants.
The inquiry mandated by the Constitution, as interpreted by the federal
courts, must occur at a pretrial hearing, so that if the defendant
decides not to waive his right to counsel, he will have a meaningful
opportunity to exercise it. See e.g., United States v. Padilla, 819
F.2d 952 (10th Cir. 1987); United States v. Mitchell, 788 F.2d 1232,
1235 (7th Cir. 1986); United States v. Martin, 790 F.2d 1215, 1218 (5th
The record in the instant matter shows that the Grants at no time were
(1) advised of their constitutional right to counsel, (2) afforded an
opportunity for assistance of counsel both prior to and during the
summary contempt proceedings, (3) advised if indigent, counsel must be
provided without cost, and (4) after the above three requirements are
satisfied, the Grants may make a knowing and intelligent waiver of their
right to counsel.waived their right to counsel. At no time did the
Judge caution the Grants as to the pitfalls of representing themselves
nor did the Judge even address their right to counsel. The District
Judge should have appointed counsel to represent the Grants, with the
possible understanding they were to pay back the costs of
representation, if they did not qualify as indigents. The Grants were
denied their Sixth Amendment right to counsel during the contempt
proceedings, which denied them due process of law, and the contempt
orders are therefore void.
All that the Grants are requesting is an opportunity, assisted by
competent legal counsel, to present testimony to the court supporting
their positions. They have not been afforded this constitutional
guarantee. The trial court’s and panel’s favored interpretation, and
unconstitutional blame directed at the Grants, will (1) permanently bar
them from any defense, (2) impose a $300,000 monetary sanction, and (3)
put them behind bars.
The posture of this case is that the Grants can be summarily
incarcerated for contempt. Even a belated appointment of counsel at
this time, prior to their incarceration, is a “mere formality.” Maine
v. Moulton, 474 U.S. 159, 170 (1985). ”The belated appointment of
counsel now … could not retroactively validate the proceedings. Due
process cannot be accorded nunc pro tunc to validate a period of
imprisonment imposed without proper proceedings.” Ridgway at 1412.
Thus, the appointment of counsel at this late date has little if any
meaning unless this Court is willing to allow for the IRS’ summons
enforcement hearing to be relitigated.
This Court has repeatedly ruled that Rule 60(b)(4) is the correct avenue
to challenge a void judgment, the one year statute does not apply, and
the motion need only be brought within a reasonable time. ”f a
judgment is void, a motion to set it aside may be brought at any time.”
Center Wholesale, 759 F.2d at 1448; U.S. v. 87 Skyline Terrace, 26 F.3d
923 (9th Cir. 1994); In re Golob, 146 B.R. 566, 569 (9th Cir.BAP 1992);
Wages v. IRS, 915 F.2d 1230, 1234 (9th Cir. 1990); Billingsley v.
C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989); In re Zumbrum, 88 B.R. 250,
252 (9th Cir.BAP 1988); Meadows, 817 F.2d at 521; In re Lovitt, 757 F.2d
1035, 1040 (9th Cir. 1985); Watts v. Pinckney, 752 F.2d 406, 409 (9th
Cir. 1985); Bookout v. Beck, 354 F.2d 823, 825 (9th Cir. 1965). A
judgment is void “if the court acted in a manner inconsistent with due
process.” Tomlin v. McDaniel, 865 F.2d 209, 210 (9th Cir. 1989); In re
Downtown Inv. Club III, 89 B.R. 59, 62-63 (9th Cir.BAP 1988); Center
Wholesale, 759 F.2d at 1448; United States v. 1982 Sanger 24′ Spectra
Boat, 738 F.2d 1043, 1046 (9th Cir. 1984); Dredge Corp. v. Penny, 338
F.2d 456, 462 & n. 14 (9th Cir. 1964) (failure to provide notice is a
serious procedural irregularity which justifies relief from the judgment
under Rule 60(b)(4); Winhoven, 201 F.2d at 175. Due process requires
that individualized notice be given before rights can be affected. In
re Blumer, 66 B.R. 109 (9th Cir.BAP 1986), aff’d, 826 F.2d 1069 (9th
It is beyond discussion that the Grants’ Rule 60(b)(4) motion challenged
the District Court’s contempt orders as void, which required the panel
to apply the de novo standard of review. Retail Clerks Union, 938 F.2d
at 137; Holtzman, 762 F.2d at 724; McConney, 728 F.2d at 1201 (en banc);
Jones, 741 F.2d at 247; Miller, 688 F.2d at 1223; Thos. P. Gonzalez
Corp., 614 F.2d at 1256; Meadows, 628 F.Supp. 599 (N.D.Cal. 1986).