County of El Dorado v. Schneider

court to order a person to submit to blood tests in a civil action in which paternity is at issue, and, upon refusal, to resolve the question of paternity adversely to the person who refused.^[1] In this case involving an action to establish paternity for purposes of child support, we hold that the constitutional rights of a father who refused to submit to an order for blood tests were not violated when the trial court invoked section 892 and resolved the question of paternity against him.

Facts and Procedural Background

On January 5, 1984, plaintiffs County of El Dorado and Angelina M., a minor, by her guardian ad litem, Alberta P. B. (hereafter collectively County), filed a complaint against defendant Robert Henry Schneider to establish paternity of Angelina M., to obtain child support payments, and to obtain reimbursement for public assistance paid by County. (See Civ. Code, § 248; Welf. & Inst. Code, § 11350; County of Yolo v. Francis (1986) 179 Cal.App.3d 647 [ 224 Cal.Rptr. 585 ].) Defendant, represented by counsel, thereafter filed an answer in which he denied paternity.

County then noticed a motion for an order requiring defendant, the mother and the child to submit to a variety of blood tests, including extended red cell, human leukocyte antigen (HLA) white cell, and electrophoresis analysis. The motion was supported by an affidavit of a county investigator who reported that the child’s mother had stated in county records that defendant was the child’s father.

Unhappy with the representation of his retained counsel, defendant then substituted himself in propria persona as attorney of record.^[2]

Defendant failed to appear at the hearing on the motion for blood tests, and the trial court entered an order requiring defendant to take the tests.

Defendant does not dispute he received the order; however, he failed to appear for the test at the specified time and place.

County then noticed a motion to establish paternity pursuant to section 892. On the date of the hearing on the motion, May 31, 1984, defendant filed a document entitled “Judicial Notice Re: Want of Jurisdiction.” In the document defendant argued at length that the court had no jurisdiction over him. Defendant asserted the state had no interest in regulating his person outside of the substantive criminal law. Defendant argued that, in the absence of a contract between the state and him, the police power of the state could be exercised over him with respect to noncriminal conduct only with his consent.^[3] He also alleged that application of section 892 would deny him rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments.

Defendant also appeared at the hearing on County’s motion to establish paternity. He again asserted to the court that County had no jurisdiction to proceed with the action in the absence of a contract with him. The trial court asked defendant why he did not appear for the blood tests. Defendant’s only reply was that “... I didn’t comply to the warrant for a blood test under the First Amendment of the Constitution, under freedom of religion, so I didn’t appear on the warrant for a blood test.” Defendant has never indicated orally or in writing what religion he practices nor how the blood tests would have conflicted with his religious beliefs.

The trial court ruled defendant was subject to its in personam jurisdiction because he had been served with the summons and complaint and had filed an answer. The court concluded County was authorized to bring the action by Welfare and Institutions Code section 11350. Having determined that section 892 authorized it to resolve the paternity issue adversely to defendant due to his failure to take the blood tests, the court ruled that paternity was established as a matter of law and entered an order declaring defendant to be the father of the child.

Thereafter, a court trial was held on the amount of child support and arrearages. Although defendant was notified of the trial, he did not appear. A judgment awarding child support and arrearages was filed, and defendant timely filed notice of appeal.

In this court, defendant has abandoned many of his arguments made to the trial court, including his principal assertion that County could not rely upon the police power in the absence of a contract with him.^[4] Defendant now contends the trial court erred in declaring him the child’s father because: (1) the district attorney was not empowered to bring this action; (2) defendant appeared specially for the purpose of challenging the trial court’s jurisdiction and never made a general appearance; (3) section 892 did not authorize the trial court to resolve the question of paternity against him; (4) his religious beliefs precluded his submitting to a paternity blood test; (5) he was denied his constitutional rights to a jury trial on the paternity issue; (6) the order establishing paternity denied defendant his constitutional rights to due process of law, including his right to confront and cross-examine his accusers; and (7) the trial court erroneously relied on its order establishing paternity in issuing its order for child support and arrearages because (a) plaintiff’s at-issue memorandum and certificate of readiness was filed when the trial court had no jurisdiction because plaintiff had appealed from a nonappealable order; (b) the order of paternity was void for reasons previously asserted and because affidavits used to obtain the order were not in proper form and contained hearsay; and (c) defendant was wrongfully denied a hearing on his motion to set aside the order establishing paternity.

In this published portion of our opinion, we reject defendant’s constitutional claims. In an unpublished portion of the opinion, we conclude defendant’s remaining contentions of error are unfounded. We shall therefore affirm the judgment.

Discussion

I-VIII^[5]

Application of section 892 to determine paternity did not violate defendant’s rights under the federal Constitution.

Defendant contends application of section 892 to determine paternity denied him various rights granted by the federal Constitution. We disagree.

A. Defendant made no showing that his First Amendment rights were violated.

Defendant contends application of section 892 violated his First Amendment right to practice his religion. However, “One who attacks a statute upon [a constitutional] ground has the burden of showing that his rights have been invaded by the actual or threatened application of the challenged law to him.” (Brock v. Superior Court (1939) 12 Cal.2d 605 , 613-614 [ 86 P.2d 805 ].) Defendant has never shown how the order for blood tests would interfere with his religion. (Cf. Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707 , 710-711 [ 67 L.Ed.2d 624 , 629, 101 S.Ct. 1425 ]; see also Bowen v. Roy (1986) 476 U.S. 693 [ 90 L.Ed.2d 735 , 106 S.Ct. 2147 ].) Consequently, in the absence of such a showing, we must presume the statute was constitutionally applied to defendant.

B. The federal Constitution does not require a jury trial.

Defendant contends he was wrongfully denied a jury trial. However we conclude the federal Constitution provided no right to a trial by jury.

1. Sixth Amendment

The Sixth Amendment to the federal Constitution^[6] guarantees a jury trial in “criminal prosecutions” of serious offenses and is made applicable to the states by the Fourteenth Amendment. (Duncan v. Louisiana (1968) 391 U.S. 145 [ 20 L.Ed.2d 491 , 88 S.Ct. 1444 ].) The United States Supreme Court has construed the Sixth Amendment to require a jury only where a defendant is subject to a penal sanction in the action. (See Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144 , 166 [ 9 L.Ed.2d 644 , 659-660, 83 S.Ct. 554 ].) Moreover, with the possible exception of Mendoza-Martinez, where loss of citizenship was at issue, the Supreme Court has interpreted the Sixth Amendment to require a jury trial only where the defendant faces a possible term of imprisonment of more than six months. (Baldwin v. New York (1970) 399 U.S. 66 , 68-69 [ 26 L.Ed.2d 437 , 440, 90 S.Ct. 1886 ] [plur. opn. of White, J., Brennan, J., and Marshall, J.]; see Muniz v. Hoffman (1975) 422 U.S. 454 , 477 [ 45 L.Ed.2d 319 , 335-336, 95 S.Ct. 2158 ]; Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216 , 219 [ 20 L.Ed.2d 538 , 542, 88 S.Ct. 1472 ]; Cheff v. Schnackenberg( 1966) 384 U.S. 373 , 378-379 [ 16 L.Ed.2d 629 , 633, 86 S.Ct. 1523 ].)

In County of Los Angeles v. Soto (1984) 35 Cal. 3d 483 [ 198 Cal.Rptr. 779 , 674 P.2d 750 ], our Supreme Court held that a defendant stipulating to a judgment of paternity must understand the consequences of the stipulation and ensuing judgment and be aware of his right to a hearing at which the county is required to prove paternity and at which the defendant may present a defense with the assistance of counsel. (P. 490.) The court found, “The grave consequences attendant upon an adjudication of paternity are analogous to those flowing from a judgment of conviction of a criminal offense.” (P. 489.) These consequences include possible disruption of existing families and damage to reputations; the deprivation of property and, potentially, liberty; the obligation to educate and support a child; and enforcement of the obligation through garnishment, contempt, and interstate assistance statutes. (P. 488; see also Salas v. Cortez (1979) 24 Cal.3d 22 [ 154 Cal.Rptr. 529 , 593 P.2d 226 ] [right to appointed counsel in a paternity action].)

Nonetheless, although the Soto court found paternity procedures “analogous” to criminal proceedings it did not find them in all respects equivalent nor did Soto suggest a trial by jury was constitutionally required. In fact, there are significant differences between criminal proceedings and those for paternal support of children.

Unlike a criminal action, the purpose of a paternity action is not to punish the defendant. (See INS v. Lopez-Mendoza (1984) 468 U.S. 1032 [ 82 L.Ed.2d 778 , 104 S.Ct. 3479 ] [deportation proceedings not criminal because not in tended to punish past conduct]; cf. Kennedy v. Mendoza-Martinez, supra, 372 U.S. 144 [forfeiture of citizenship held penal sanction].) Rather, the purpose is to secure support for the child and to relieve the public of the burden of support. (In re Marriage of Shore (1977) 71 Cal.App.3d 290 , 298 [ 139 Cal.Rptr. 349 ]; McLain v. Meadows (1919) 44 Cal.App. 402 , 403 [ 186 P. 411 ].) Defendant is not subject to any penal sanction in the present action; the only direct consequence of an adjudication of paternity is an obligation to pay money.

It is true that if a defendant fails to comply with a support order, and if that defendant is criminally prosecuted for willful nonsupport (Pen. Code, § 270), the civil adjudication of paternity would be admissible as evidence in the criminal action. (Pen. Code, § 270e.) But that downstream consequence is not sufficient to convert this action into a criminal action. The defendant would be entitled to a jury trial in the criminal action. A prior adjudication of paternity would not allow a trial court to withhold the question of paternity from the jury. (Patterson v. Municipal Court (1965) 232 Cal.App.2d 289 [ 42 Cal.Rptr. 769 ].) The adjudication of paternity would not be given res judicata or collateral estoppel effect, because a higher burden of proof applies in the criminal action.^[7] (Salas v. Cortez, supra, 24 Cal. 3d

quently, in this state court action, defendant has no right to a jury trial under the Seventh Amendment.

3. Fourteenth Amendment

The due process clause of the Fourteenth Amendment to the federal Constitution provides, "... nor shall any State deprive any person of life, liberty, or property, without due process of law; ...”

To our knowledge, the United States Supreme Court has never relied on the Fourteenth Amendment’s due process clause, in and of itself, to impose a jury trial requirement on the states; rather, the high court has held the states must supply juries only to the extent they are required under the Sixth Amendment. (See Mathews v. Eldridge (1976) 424 U.S. 319 [ 47 L.Ed.2d 18 , 96 S.Ct. 893 ]; Palko v. Connecticut, supra, 302 U.S. at pp. 324-325 [82 L.Ed.2d at pp. 291-292]; Letendre v. Fugate (4th Cir. 1983) 701 F.2d 1093 , 1094, cert. den. 464 U.S. 837 [ 78 L.Ed.2d 122 , 104 S.Ct. 125 ]; United States ex rel. Griffin v. Martin (2d Cir. 1969) 409 F.2d 1300 , 1302; see also Lavine v. Hospital of the Good Samaritan, supra, 169 Cal.App.3d at p. 1028; Tribe, American Constititional Law (1978) § 10-15, pp. 550-554.) Since, as we have seen, a jury trial was not required by the Sixth Amendment, it was not required by the Fourteenth.

C. The determination of paternity did not violate federal due process.

The federal due process clause ordinarily guarantees an evidentiary hearing to a defendant in a paternity action. (Little v. Streater (1981) 452 U.S. 1 , 5 [ 68 L.Ed.2d 627 , 632, 101 S.Ct. 2202 ]; County of Ventura v. Castro (1979) 93 Cal.App.3d 462 , 468-469 [ 156 Cal.Rptr. 66 ], approved in County of Los Angeles v. Soto, supra, 35 Cal.3d at pp. 485-486; see Isbell v. County of Sonoma (1978) 21 Cal.3d 61 , 66 [ 145 Cal.Rptr. 368 , 577 P.2d 188 ], cert, den. 439 U.S. 996 [ 58 L.Ed.2d 669 , 99 S.Ct. 597 ].) Defendant contends the application of section 892 to establish paternity wrongfully denied him his right to a hearing where he could confront and cross-examine witnesses against him.

We think defendant’s contention is properly analyzed by viewing section 892 as a discovery statute: it establishes procedures by which information can be obtained in a civil action and it provides sanctions for refusal to supply the information. (See fn. 1, ante.)^[8] For this purpose, as with the ques

tion of entitlement to a jury trial, we believe the present paternity action is civil, not criminal in character. Indeed, various provisions of California’s Civil Discovery Act (i.e., Code Civ. Proc., §§ 2019, 2020, 2034) have been held applicable (and we think properly so) to an action brought to establish paternity and support pursuant to Welfare and Institutions Code section 11350. (Gonzales v. Superior Court (1980) 117 Cal.App.3d 57 [ 178 Cal.Rptr. 358 ] [defendants would be made to answer interrogatories provided use immunity was granted by protective order]; see also Reynolds v. Reynolds (1978) 86 Cal.App.3d 732 , 735 [ 150 Cal.Rptr. 423 ] [revised Uniform Reciprocal Enforcement of Support Act held civil in character]; Smith v. Smith (1954) 125 Cal.App.2d 154 , 167 [ 270 P.2d 613 ] [same].) The sanction at issue here—the order establishing paternity—is similar to sanctions provided by section 2034, subdivision (b)(2)(A) of our Code of Civil Procedure^[9] and by rule 37(b)(2)(A) of the Federal Rules of Civil Procedure (28 U.S.C.).^[10] (All further nondescript references to rules are to the Federal Rules of Civil Procedure.)

It is well established that the federal due process clause imposes limitations on the power of courts, even in aid of their own valid processes, to order discovery sanctions that deprive a party of his opportunity for a hearing on the merits of his claim. (Societe Internationale v. Rogers (1958) 357 U.S. 197 , 209 [ 2 L.Ed.2d 1255 , 1265, 78 S.Ct. 108 ]; see also National Hockey League v. Met. Hockey Club, Inc. (1976) 427 U.S. 639 , 640 [ 49 L.Ed.2d 747 , 749-750, 98 S.Ct. 2778 ] (per curiam).)

In Insurance Corp. v. Compagnie Des Bauxites (1982) 456 U.S. 694 [ 72 L.Ed.2d 492 , 102 S.Ct. 2099 ], the Supreme Court recently addressed the question whether the trial court had constitutionally applied rule 37(b)(2)(A) when the trial court used the rule to establish that certain defendants, who had failed to comply with orders for production of documents, were subject to the court’s in personam jurisdiction. (Id., at p. 699 [72 L.Ed.2d at p. 199].) Because of the close similarity of the rule 37(b)(2)(A) sanction to that involved here, we think Bauxites controls our federal due process analysis. There, the court discussed the historical due process underpinnings of the rule as follows: “Rule 37(b)(2)(A) itself embodies the standard established

Here, the blood tests ordered by the court were equally critical to the County’s case. It goes without saying that the act necessarily preceding parentage is procreation. That act, in turn, is invariably private. Witnesses are, to put it mildly, scarce. Blood tests therefore play a crucial role in the accurate determination of paternity. (See generally Little v. Streater, supra, 452 U.S. at p. 14 [68 L.Ed.2d at p. 637].)

Defendant asserts blood tests may be used only to exclude potential fathers and may not be used inclusively, i.e., as affirmative evidence to prove the likelihood of his paternity. Defendant essentially argues that since the permissible probative use of blood test evidence is minimal, his refusal to take the blood tests will not support a presumption his denial of paternity is nonmeritorious. However, we cannot agree with the premise of the argument.

Section 895, a part of the Uniform Act on Blood Tests to Determine Paternity, provides: “If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings or conclusions, or if the tests show the probability of the allegedfather’s paternity, the question, subject to the provisions of Section 352, shall be submitted upon all the evidence, including evidence based upon the tests.” (Italics added.)

Since section 895 authorizes submission of the question of paternity “upon all the evidence, including evidence based upon the tests,” and since the tests are expressly characterized as those that demonstrate “the probability of the alleged father’s paternity,” section 895 plainly gives the trial court discretion (subject to § 352) to admit blood test analysis in evidence to prove the probability of the alleged father’s paternity.1^[11]

The Bauxites court also relied on repeated warnings by the trial court to the effect that sanctions would be in order and upon the failure of defendants to keep promises of production of the documents in question. (Id., at pp. 707-708 [72 L.Ed.2d at pp. 504-505].) Here, although repeated warnings were not given defendant, the sanction order is supported by other “just” considerations. One purpose of warnings is to make sure a recalcitrant party is aware of the consequences of failing to make discovery. Defendant was clearly put on notice by County in its moving papers and at the hearing of May 31 of the sanction at issue and the reason it was sought. (Cf. Jones v. Otero (1984) 156 Cal.App.3d 754 [ 203 Cal.Rptr. 90 ]; In re Rubin (9th Cir. 1985) 769 F.2d 611 , 616.) Indeed, defendant’s written memorandum in opposition to the motion to establish paternity makes clear he well knew in advance that the establishment of paternity was at issue at the hearing on sanctions. Defendant does not contend he was ignorant of the purpose of the hearing.^[12] Although in some cases fairness would demand repeated warnings to a recalcitrant party, particularly where requested information is difficult to obtain, here the trial court could reasonably conclude repeated warnings would have been futile. Defendant made it clear to the trial court that his ideosyncratic theory of natural law precluded the assertion over him of any authority by County. Defendant has never indicated a willingness to take the blood tests. The trial court could reasonably conclude that further sparring with defendant over his specious claim of lack of jurisdiction would have accomplished nothing more than the unwarranted consumption of judicial resources.

In the circumstances shown here, the trial court properly exercised its discretion to establish paternity under section 892 and did not violate the federal due process clause in doing so. (Insurance Corp. v. Compagnie Des Bauxites, supra, 456 U.S. at p. 708 [72 L.Ed.2d at pp. 504-505].)

X

Application of section 892 did not violate defendant’s rights under the state Constitution.

Defendant contends the determination of paternity violated his rights under the state Constitution. However, for reasons that follow, we must disagree.

A. A jury trial is not guaranteed by article I, section 16, the California Constitution.

Article I, section 16, of the state Constitution provides in pertinent part that “Trial by jury is an inviolate right and shall be secured to all____”

Despite the broad language of the constitutional provision, “ ‘The right to trial by jury guaranteed by the Constitution is the right as it existed at common law at the time the Constitution was adopted. [Citation.]... The common law respecting trial by jury as it existed in 1850 is the rule of decision in this state. [Citation.] ... It is the right to trial by jury as it existed at common law which is preserved; and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.’ ” (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283 , 286-287 [ 231 P.2d 832 ]; see C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1 , 8-9 [ 151 Cal.Rptr. 323 , 587 P.2d 1136 ].)

Many other states have constitutional provisions that also condition the right to jury trial upon its existence at common law. (See Annot., Right to Jury Trial in Bastardy Proceedings (1964) 94 A.L.R.2d 1128 .) The courts of these states have uniformly resolved that since there was no duty to support a nonmarital child at common law, the issue of paternity was not tried to a jury, so that no right to a jury trial may be located in their state constitutions. (See, e.g., State ex rel. Goodner v. Speed (1982) 96 Wn.2d 838 [ 640 P.2d 13 , 16] cert. den. 459 U.S. 863 [ 74 L.Ed.2d 119 , 103 S.Ct. 140 ]; Cornish v. Smith (1975) 97 Idaho 89 [ 540 P.2d 274 ,277]; People ex rel. Cizek v. Azzarello (1980) 81 Ill.App.3d 1102 [ 401 N.E.2d 1177 , 1181]; Miller v. Russell (Mo. App. 1979) 593 S.W.2d 598 , 605; Annot., op. cit. supra, 94 A.L.R.2d at pp. 1130-1134, and authorities cited therein.)^[13] We reach the same conclusion by a different route.

Under California law, “The common law at the time the Constitution was adopted includes not only the lex non scripta but also the written statutes enacted by Parliament. [Citation.]” (People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d at p. 287; Moore v. Purse Seine Net. (1941) 18 Cal.2d 835 , 838 [ 118 P.2d 1 ], affd. sub nom. C. J. Hendry Co. v. Moore (1943) 318 U.S. 133 [ 87 L.Ed. 663 , 63 S.Ct. 499 ].)

In 1576, Parliament enacted “An Act for Setting the Poor on Work” (hereafter Poor Law). (18 Eliz. I, ch. 3, § 2; see Krause, Illegitimacy: Law & Social Policy (1971) p. 105.)^[14] The Poor Law allowed two Justices of the Peace, in their discretion, “upon the examination of the cause and circumstance,” to charge the reputed father of a nonmarital child “with the payment of money weekly or other sustentation for the relief of such child____” (Id., at pp. 105-106.)

As relevant here, the Poor Law was amended by the Poor Law Amendment Act of 1844 (7 & 8 Viet. ch. 101, §§ 2-3) and by the Bastardy Act of 1845 (8 & 9 Viet. ch. 10, § 6). (See 2 Halsbury’s Statutes of England (2d ed. 1948) pp. 466-478.) These amendments set forth procedures by which fathers were made to support nonmarital children in 1850. (See Reg. v. Glynne (1871) L.R. 7 Q.B. 16.) These affiliation proceedings were held to be civil, not criminal. (Reg. v. Berry (1859) 8 Cox. C.C. 121, 126.) The 1844 and 1845 enactments expressly provided that evidence as to paternity would be heard by Justices of the Peace sitting at Petty Session,^[15] or, if an appeal were taken, by Justices of the Peace sitting in Quarter Session.^[16] Although we have found

no case squarely facing the issue whether an alleged father was entitled to a jury under the 1844 and 1845 enactments (perhaps because the language of the statutes is so plain), the pertinent reported cases frequently refer to determinations of fact by the Justices of the Peace without juries under the Poor Law. (See, e.g., Reg. v. Glynne, supra, 7 Q.B. at pp. 23, 25; Rex v. Tedford, T.T. 8 & 9 G.2. Burr. S.C. 57, cited in 2 Bott’s Poor Laws (1827) pp. 547, 757;^[17] see also Cole v. Manning (1877) 2 Q.B.D. 611 [decided under Bastardy Laws Amendment Act of 1872 (35 & 36 Viet. ch. 65) which provided for same hearing of evidence by the Justices as under prior amendments]; 4 Blackstone Commentaries (Jones ed. 1916) ch. 20, pp. 280-286.) The Poor Law amendments of 1844 and 1845 leave no doubt that paternity was to be adjudicated by the Justices of the Peace, not by a jury, in 1850.

We conclude that since the common law in its statutory aspect in 1850 provided an action to establish paternity, and since there was then no right to a jury trial on the question, defendant had no right to a jury under article I, section 16, of our Constitution. (People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d at p. 300; see Cyrus v. Haveson (1976) 65 Cal.App.3d 306 , 318 [ 135 Cal.Rptr. 246 ].)