dissenting.
I respectfully dissent. I cannot agree with today’s majority when they declare that, even if indigent, James R. Colson had no right to counsel at the 17-A M.R.S.A. § 1304 proceeding where, after he had failed to pay the fine imposed upon him, the District Court decided that his default was inexcusable and committed Colson to jail. Neither can I accept the majority’s views that the § 1304 hearing was “not an adversary proceeding” and that it was not a complex one. Most emphatically of all, I reject the inference that with his liberty at stake Colson’s right to procedural due process under both state and federal constitutions should somehow be weighed against the expense to the State of providing him with counsel.
At the threshold it must be observed that the § 1304 hearing is not some administrative process. It is a court hearing on a motion — either that of the official to whom the fine was payable or the court’s motion — and is no less adversarial than any other show cause proceeding in that court. At this critical juncture a defendant needs the skill of counsel, first to present relevant facts as effectively as the adverse facts are being presented by the party moving against him, next to marshall any viable defense, and finally, where appropriate, to urge on the court a defendant’s eligibility for probation or unconditional discharge pursuant to 17-A M.R.S.A. § 1201 et seq. Rare indeed is the impecunious defendant who, perhaps with incarceration imminent, knows the relevant law and can effectively act as his own advocate in such a setting.1
Under section 1304, the District Court must conclude whether a defendant has shown that his “default was not attributable to a wilful refusal to obey the order of the court or to a failure on his part to make a good faith effort to obtain the funds required for the payment.” The mere recitation of what one has, or does not have, for cash in his pocket is not the entire answer. An indigent defendant is not likely to understand the legal decision the court must make, and he may not
present information about efforts to find employment, general employability, total available resources, and the way these resources were spent in the past. An attorney, understanding the significance of this information, can help the client ferret out the information. An attorney also can document employment difficulties, consult experts if necessary, and explain how [the defendant] has used his available resources in the past.
Hermann and Donahue, Fathers Behind Bars: The Right to Counsel In Civil Contempt Proceedings, 14 New Mex.L.Rev. 275, 307 (1984).
*590Likewise, I differ with those who would argue that because no direct appeal from the section 1304 hearing is authorized by statute there is no need for an attorney’s skills in preserving a record of error. I submit that the lack of a direct appeal leads to the opposite conclusion; it emphasizes the importance of careful preparation and full presentation of both facts and law to the court at this hearing.2
Indeed section 1304 may sometimes operate in a manner closely resembling that of a civil contempt statute. If at the time of the show cause hearing a defendant has the funds to pay his past-due fine, the coercive nature is evident in that he may be imprisoned if he presents no acceptable excuse for his default. However, he would have the essential right to purge because he could only be imprisoned “until the fine or a specified part thereof is paid.” 17-A M.R.S.A. § 1304 (emphasis added); see Wells v. State, 474 A.2d 846, 850 (Me.1984). By contrast, a person who at the time of this hearing is indigent does not, by definition, “hold the keys to his own cell.” Thus, for the indigent in such situations, only the criminal aspect of punishment is implicated when he is imprisoned. Another criminal aspect of a section 1304 hearing is that it is a consequence of an earlier criminal prosecution.
In Meyer v. Meyer, 414 A.2d 236 (Me. 1980), we found no right to counsel at state expense in a civil contempt proceeding, but, citing Danforth v. State Dep’t. of Health and Welfare, 303 A.2d 794 (Me.1973), we noted that the Meyer proceeding had not been initiated by the State. Id. 414 A.2d at 238. Under section 1304 either the court or the official to whom the fine is payable is the moving party. Notwithstanding that distinction, the courts of the majority of jurisdictions hold that the right to counsel attaches in civil contempt proceedings involving actual incarceration.3
In sum, on this novel issue I reject today’s opinion as denying Colson the procedural due process which is guaranteed him both by the Maine Constitution, art. I, section 6-A, and by the counterpart provision of the federal constitution. We have had occasion to observe that due process is a “flexible concept ... with the ultimate objective of guaranteeing fairness in all judicial actions.” Danforth, 303 A.2d at 797.
The “balancing” analysis of Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), invoked by today’s majority, was set forth in light of the possible termination of parental rights and did not involve the deprivation of one’s physical liberty. Accordingly, the Lassiter court adopted the Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1975), test for determining the requirements of due process, but the Mathews decision also did not involve the deprivation of physical liberty. The United States Supreme Court in the latter ease had before it the narrow issue of due process rights in an initial termination of Social Security disability benefits. Therefore, both Lassiter and Mathews are clearly inapposite. For a like analysis of these two cases, see McNabb v. Osmundson, 315 N.W.2d 9, 12 (Iowa 1982) (indigent charged with contempt for non-payment of child support).
To Colson’s argument that at the time of his section 1304 hearing he had an “undiminished” interest in his personal freedom the Court’s response is equally weak in its statement that Colson had already been convicted of a crime and therefore was not entitled to the process accorded one merely accused of a crime. When Colson was convicted of operating a motor vehicle after suspension of his license in District Court he was ordered to pay $350.00 in four installments. At that point Colson’s inter*591est in his personal freedom was undiminished — he had not been sentenced to prison nor had he been placed on probation. The fact of conviction does not, standing alone, bear on his liberty.4
Far more persuasive, I suggest, are the United States Supreme Court’s opinions in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) than those relied on by today’s majority, which opines that Arger-singer is not applicable to the show cause hearing under section 1304. When we observe that the features of that hearing are very similar to a contempt proceeding, it is difficult to see how the rule of Argersinger could be dismissed so blithely. A number of federal courts have relied on Argersinger in declaring that an indigent who might be imprisoned for civil contempt must be afforded counsel. See, e.g., United States v. Anderson, 553 F.2d 1154, 1156 n. 2 (8th Cir.1977); In re DiBella, 518 F.2d 955, 959 (2d Cir.1975); In re Kilgo, 484 F.2d 1215, 1221 (4th Cir.1973).
In Scott, moreover, the United States Supreme Court explicitly attempted to “resolve a conflict among state and lower federal courts regarding the proper application of [the] decision in Argersinger.” 440 U.S. at 368, 99 S.Ct. at 1159. The Scott court made clear that in determining whether there is a constitutional right to appointment of counsel the line is to be drawn at actual imprisonment. Id. at 373-74, 99 S.Ct. at 1161-62.
The actual imprisonment of Colson at this hearing is a penalty different in kind from the fine which was imposed on him in the earlier District Court disposition of his case. Given the context of Colson’s case, our Court does not need to extend its holding beyond the actual imprisonment standard, and I do not propose to go further.5
The majority, on its part, has failed to offer any rationale for rejecting the actual imprisonment standard announced in Scott. On my part, I would adopt that standard. Procedural due process required, I submit, that if Colson had been found indigent he would have been entitled to counsel at the § 1304 hearing where he was sent off to jail.
. It may be observed in passim that the Maine Standards for Criminal Justice 5.18(3) declare it to be the duty of defense counsel to familiarize himself with sentencing alternatives and to "recommend that sentence which most accurately meets the needs of his client and enhances his liberty." The comparative study of these standards and the A.B.A. Standards for Criminal Justice was "accepted” by the Maine Judicial Council February 14, 1975, but apparently was not acted upon by the Supreme Judicial Court.
. It should not be overlooked that resort to a show cause proceeding does not relieve the movant of his ultimate burden of proof. Brennan v. Johnson, 391 A.2d 337, 338, 339, fn. 1 (Me.1978).
. See Rutherford v. Rutherford, 296 Md. 347, 464 A.2d 228, 235 (1983) (citations to federal and state cases).
. The reasoning of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), leading ultimately to the conclusion that under the federal constitution there is no absolute right to counsel in probation revocation proceedings, was based on the critical fact that the probationer, on a conditional sentence suspension, held a diminished interest in his personal liberty.
. Notwithstanding that this is a procedural due process case, we should not overlook the protection afforded indigent defendants by the Sixth Amendment decisions of the United States Supreme Court because in actual imprisonment cases that Court appears to make no distinction between a Sixth Amendment right to counsel and a Fourteenth Amendment right to counsel. Illustratively, see Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (counsel must be afforded at a deferred sentencing).