United States v. 30.64 Acres of Land, More or Less, Situated in Klickitat County, State of Washington, and James Starr

795 F.2d 796 55 USLW 2150 , 5 Fed.R.Serv.3d 415 UNITED STATES of America, Plaintiff-Appellee, v. 30.64 ACRES OF LAND, MORE OR LESS, SITUATED IN KLICKITAT COUNTY, STATE OF WASHINGTON, Defendant, and James Starr, Defendant-Appellant. No. 84-3928. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 8, 1986. Decided July 28, 1986. Arthur E. Gowran, Jacques B. Gelin, Washington, D.C., for plaintiff-appellee. Susan L. Hahn, Schwab, Jurtz & Hurley, Yakima, Wash., for defendant-appellant. Appeal from the United States District Court for the Eastern District of Washington. Before WRIGHT, CANBY and WIGGINS, Circuit Judges. WIGGINS, Circuit Judge: 1 Appellant James Starr appeals from a jury verdict awarding him $3676.80 in compensation for the condemnation of some 30.64 acres of his 215-acre tract at the mouth of the Klickitat river above the Bonneville Dam. Because we conclude that the district court committed errors of law in denying his motion for counsel and in failing to consider the propriety of appointing a guardian ad litem, we reverse and remand. FACTS 2 The United States filed a complaint against Starr on November 26, 1974, to establish just compensation…

concurring in the judgment:

I agree with the majority that this case should be reversed and remanded so that the district court can consider whether to secure counsel for Starr pursuant to 28 U.S.C. § 1915 (d), and whether to appoint a guardian ad litem pursuant to Fed.R.Civ.P. 17(c).

I would, however, refrain from ruling, as the majority does, that district courts lack the power to appoint (rather than request) counsel under § 1915(d). In the past, our court has regularly referred to the power to “appoint” counsel pursuant to § 1915(d). E.q., Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1980); United States v. McQuade, 579 F.2d 1180, 1180-81 (1978), on appeal after remand, 647 F.2d 938 (9th Cir.1981); Alexander v. Ramsey, 539 F.2d 25, 26 (9th Cir.1976); Gardner v. Madden, 352 F.2d 792, 794 (9th Cir.1965). The majority acknowledges as much, but states that the use of the term “appoint” was careless and that we had never focused on the distinction between “appoint” and “request.”

All that is true, but I am not sure that I see the harm in the flexibility that we have lived with for so long, or the need to eliminate it when we have not been asked to do so. Surely the common…

Appellant James Starr appeals from a jury verdict awarding him $8676.80 in compensation for the condemnation of some 30.64 acres of his 215-acre tract at the mouth of the Klickitat river above the Bonneville Dam. Because we conclude that the district court committed errors of law in denying his motion for counsel and in failing to consider the propriety of appointing a guardian ad litem, we reverse and remand.

FACTS

The United States filed a complaint against Starr on November 26, 1974, to establish just compensation for 30.64 acres of Starr’s land taken by the government as added flowage easement for the Bonneville Dam. Although represented by counsel at times during the pendency of the action, Starr appeared pro se at the first trial in 1981. The jury awarded him $22,240.00, the government appealed, and this court overturned the award as unsupported by the evidence and remanded for a new trial. United States v. 30.64 Acres of Land, 707 F.2d 520 (9th Cir.1983) (Mem.).

Before the new trial, Starr, again pro se, moved for appointment of counsel on the ground that he was “incapable of protecting himself in the forthcoming Trial [sic].” Attached to Starr’s motion was a detailed…