County of Sutter v. Davis

Opinion

On behalf of Andrea E. and Joshua E., minors, the County of Sutter (County) filed this action against defendant Davey Darrell Davis to

This appeal presents two questions of law regarding the California Constitution: First, does a defendant in a paternity action have a right to a jury trial under article I, section 16 (the general provision regarding right to jury trial); and secondly, does a defendant in such an action have a right to a jury trial under article I, section 7, subdivision (a), (the due process clause). We answer no to both questions. Consequently, we affirm the judgment.

Discussion

1. Article I, section 16

Article I, section 16 of the California Constitution (hereafter article 1, section 16) provides in pertinent part that “Trial by jury is an inviolate right and shall be secured to all . . . .” Article I, section 16 was adopted in 1974 but its predecessors—article I, section 3 of our original Constitution, adopted in 1850, and article I, section 7 adopted in 1879—contain the same substantive language.

Unfortunately for defendant, this court has already determined that article I, section 16 does not provide him with a right to a jury trial in a paternity action brought under section 11350. (County of El Dorado v. Schneider (1987) 191 Cal.App.3d 1263 , 1266, 1278-1281 [ 237 Cal.Rptr. 51 ].) This is because “[t]he right to trial by jury guaranteed by the [California] 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 ].) “The common law at the time the Constitution was adopted includes not only the lex non scripta but also the written statutes enacted by

It is also true that the California Supreme Court, on occasion, has concluded that article I, section 7(a) requires a trial by jury in certain civil proceedings. (See, e.g., Conservatorship of Roulet (1979) 23 Cal.3d 219 , 235 [ 152 Cal.Rptr. 424 , 590 P.2d 1 ]; People v. Smith (1971) 5 Cal.3d 313 , 317 [ 96 Cal.Rptr. 13 , 486 P.2d 1213 ]; In re Gary W. (1971) 5 Cal.3d 296 , 307 [ 96 Cal.Rptr. 1 , 486 P.2d 1201 ]; see also People v. Thomas (1977) 19 Cal.3d 630 , 632-633 [ 139 Cal.Rptr. 594 , 566 P.2d 228 ]; People v. Feagley (1975) 14 Cal.3d 338 , 349-358 [ 121 Cal.Rptr. 509 , 535 P.2d 373 ]; People v. Burnick (1975) 14 Cal.3d 306 , 310 [ 121 Cal.Rptr. 488 , 535 P.2d 352 ].)

Relying on language from Salas v. Cortez (1979) 24 Cal.3d 22 [ 154 Cal.Rptr. 529 , 593 P.2d 226 ] and County of Los Angeles v. Soto (1984) 35 Cal.3d 483 [ 198 Cal.Rptr. 779 , 674 P.2d 750 ], Defendant contends that a paternity action falls within the rubric of these exceptional cases where the state due process clause mandates a right to a jury trial. We disagree.

In Salas, our high court in a four-to-three decision held that indigent defendants in paternity proceedings prosecuted by the state are entitled to appointed counsel under article I, section 7(a). Salas explained: “The touchstone of due process is fundamental fairness. Whether due process requires the appointment of counsel in a particular case depends on the interests involved and the nature of the proceedings. [Citations.] To determine the weight of appellants’ claims to appointed counsel in the present cases, this court must examine the nature and magnitude of the interests involved, the possible consequences appellants face and the features which distinguish paternity proceedings from other civil proceedings. These factors must then be balanced against the state’s interests.” (24 Cal.3d at p. 27.)

In applying this balancing test, the Salas court first noted that paternity actions involve more than monetary judgments. (24 Cal.3d at p. 27.) At stake is the establishment of the most basic biological relationship, that of parent and child. (Id. at pp. 27-28.) A determination of paternity has “grave implications” for the alleged father, the child, the mother and the state. (Id. at p. 28.)

Salas continued: “An adjudication of paternity may profoundly affect a person’s life. It may disrupt an established family and damage reputations. Further, a court’s determination of paternity exposes a defendant to deprivation of property and, potentially, liberty. It entails the obligation to support and educate a child (Civ. Code, §§ 196a, 7012), an obligation that does not

Important interests of the child are implicated in paternity actions, said Salas. “Any determination that a particular individual is a child’s biological father may have profound sociological and psychological ramifications. Further, the child’s rights of support and inheritance against the father are at issue, as well as his or her future obligation to support the father. (Civ. Code, § 206.)” (24 Cal.3d at p. 33.)

Finally, the court in Salas noted the increased state intervention in paternity proceedings through public assistance reimbursement statutes like section 11350 et seq., and the fact that the mother and child are afforded counsel in prosecuting such an action. (24 Cal.3d at p. 31.) Unlike other civil actions, said the Salas court, in paternity actions against indigent defendants “the full power of the state is pitted against an indigent person in an adjudication of the existence of a fiindamental biological relationship entailing serious financial, legal and moral obligations.” (Id. at p. 32.) Under these circumstances, the fact-finding process must be accurate and appointment of defense counsel will enhance accuracy. (Id. at pp. 32-33.)

Against these interests, consequences and features, said Salas, stands the state’s interest in denying counsel to indigent paternity defendants, an interest that is largely financial and offset by the state’s interest in accurate fact-finding. (24 Cal.3d at p. 33.) For these reasons, Salas concluded, appointed counsel for indigent defendants is required under article I, section 7(a) for paternity actions in which the state appears either as a party or on behalf of a mother or child. (Id. at p. 34.)

The dissent in Salas asked rhetorically “what familial interest is being served by furnishing free counsel to a defendant who is fighting against the

In Soto, the California Supreme Court held that a defendant who stipulates to a paternity judgment must understand the consequences of that judgment and be aware of his right to a hearing at which the county is required to prove paternity and at which he may present a defense with the assistance of counsel. (35 Cal.3d at p. 490.) Referring to the interests and consequences set forth in Salas, the court in Soto stated: “We cannot, consistent with this recognition of the consequences of a paternity judgment," uphold judgments entered pursuant to agreements ... if the defendant was not aware of those consequences and did not knowingly and intelligently waive his right to a judicial hearing. ['][] The grave consequences attendant upon an adjudication of paternity are analogous to those flowing from a judgment of conviction of a criminal offense. The entry of a judgment of paternity demands equivalent protections against involuntary or unintelligent waiver by a defendant of his right to trial.” (Id. at p. 489.)

Defendant argues that the “grave consequences” recognized in Salas and Soto compel the conclusion that paternity actions are akin to those actions in which a right to a jury trial is mandated by the state due process clause. We are unpersuaded.

Our analysis is guided by the principle set forth in Salas that we “must examine the nature and magnitude of the interests involved, the possible consequences [defendant] face[s] and the features which distinguish paternity proceedings from other civil proceedings. These factors must then be balanced against the state’s interests” keeping in mind that the “touchstone of due process is fundamental fairness.” (24 Cal.3d at p. 27; see also People v. Ramirez (1979) 25 Cal.3d 260 , 268-269 [ 158 Cal.Rptr. 316 , 599 P.2d 622 ].)

All of the cases in which a right to a jury trial has been found by the California Supreme Court to be mandated by the state due process clause have involved the fundamental interests of a person’s dignity and liberty. (See e.g., People v. Smith, supra, 5 Cal.3d at p. 317 [due process requires jury trial in proceedings to extend commitment to California Youth Author-

The interests and consequences implicated in a paternity action are not as great as the interests and consequences implicated in these civil proceedings. Undoubtedly, there is a strong social stigma attached to a father who is able to but who refuses to support his children. And no doubt a paternity determination may disrupt an established family. But this stigma interferes significantly less with a person’s life than does a governmental determination that a person is “gravely disabled” or a particular “narcotics addict” or a “mentally disordered sex offender” who must be involuntarily confined for his or her own good.

The interest of personal liberty highlights the real distinction between a paternity action and those civil actions mandating a due process right to jury trial. A direct consequence of being adjudicated “gravely disabled” or a qualifying “narcotics addict” or a “mentally disordered sex offender” is an involuntary commitment, in some cases theoretically for life. As noted in Schneider, “the only direct consequence of an adjudication of paternity is an obligation to pay money.” (191 Cal.App.3d at p. 1270.)

It is true that if a defendant fails to comply with a support order arising from a paternity determination, he may be criminally prosecuted for willful nonsupport. (Pen. Code, § 270.) In such an action, moreover, the civil adjudication of paternity would be admissible as evidence. (Pen. Code, § 270e.) But in that criminal action the defendant would be entitled to a jury trial. And the adjudication of paternity would not be given res judicata or collateral estoppel effect, because a higher burden of proof applies in criminal actions (proof beyond a reasonable doubt) than in paternity actions (proof by a preponderance of the evidence). (See County of El Dorado v. Schneider, supra, 191 Cal.App.3d at p. 1270.)

In Castro, the court held that section 11476.1, authorizing stipulated paternity judgments, was unconstitutional because it failed to provide for the notice and hearing required by due process, and made no provision for waiver of those rights by the defendant. (93 Cal.App.3d at pp. 467-470; see County of Los Angeles v. Soto, supra, 35 Cal.3d at pp. 485-486.) (Soto concerned the status of a stipulated paternity judgment executed in conformity with section 11476.1 prior to Castro. (35 Cal.3d at p. 486.).) In Castro, the defendant claimed he did not realize he was waiving his “right to trial by jury on the issue of paternity” when he stipulated to the judgment. (93 Cal.App.3d at p. 467, italics added.) Pointedly, the Castro court noted that “[g]laringly absent” from (former) section 11476.1 was any requirement that the defendant be informed that he has a “right to trial” on the issue of paternity. (93 Cal.App.3d at pp. 469-470, italics added.)

Furthermore, as noted in Schneider, the analogy between a paternity action and a criminal action cannot be carried too far because there are significant differences between the two proceedings. (191 Cal.App.3d at p. 1270.) As explained earlier, the standards of proof in the two actions are different. More significantly, the nature of the two proceedings is different. In contrast to a criminal action, the purpose of a paternity action is not to punish the defendant. (Id. at p. 1270.) The purpose of a paternity action is to secure child support and relieve the public of that burden. (Ibid.) In a paternity action, the defendant is not subjected to any penal sanction. (Ibid.) As Schneider noted, “[mjodern cases from other jurisdictions have uniformly concluded paternity actions are essentially civil in character, where no direct penal consequences attach to a finding of paternity. [Citations.]” (Id. at p. 1271.)

California’s provision of certain procedural rights, such as the right to counsel provided by Salas, does not transform the paternity action into an action criminal in nature. (County of El Dorado v. Schneider, supra, 191

Another important concern in the due process equation is the accuracy of the factfinding mechanism. (Salas v. Cortez, supra, 24 Cal.3d at pp. 31-34; see also People v. Ramirez, supra, 25 Cal.3d at p. 269.) In Salas the court noted that a judgment rendered in a paternity proceeding where only the plaintiff has the assistance of counsel “is not only unfair, it is unreliable.” (24 Cal.3d at p. 31.) This conclusion is sound in the context of fundamental fairness. Where a defendant contests paternity, the paternity proceeding is an adversarial one. An adversarial proceeding is unfair and may be unreliable if only one side has the right to an attorney.

The situation is different, however, concerning the right to a jury trial. If the defendant in a paternity action does not have such a right, neither does the plaintiff. (See Annot., Paternity Proceedings: Right to Jury Trial, supra, 51 A.L.R.4th at pp. 574-575.) Both sides present their case to a judge, who is sworn to impartiality just like a jury. Unlike the situation in Salas, this situation does not give one side an advantage. Both sides may be represented by counsel and both may present their cases to the same fact finder. In this respect, there is no affront to fundamental fairness.

Support for this view is found in Robertson v. Apuzzo (1976) 170 Conn. 367 [ 365 A.2d 824 ], one of the few state cases nationwide to deal specifically with the argument that due process requires a right to a jury trial in a civil paternity action. (See Annot., Paternity Proceedings: Right to Jury Trial, supra, 51 A.L.R.4th at pp. 580-581, § 6.) The Robertson court held that neither federal nor state due process was violated where an indigent defendant in a paternity action could not obtain a jury trial because he could not afford the statutory jury fee. (365 A.2d at pp. 831-832.) The Robertson court concluded that the “right to a jury trial in a civil paternity action cannot be characterized as fundamental.” (Id. at p. 832; accord, State ex rel. Rake v. Ohden (Iowa 1984) 346 N.W.2d 826 , 829.)

The court in Robertson distinguished Boddie v. Connecticut (1971) 401 U.S. 371 [ 28 L.Ed.2d 113 , 91 S.Ct. 780 ], In Boddie, the Supreme Court held that a state could not, consistent with the due process clause of the Fourteenth Amendment to the federal Constitution, deny indigents access to its divorce courts by requiring the payment of certain fees. In distinguishing Boddie, the Robertson court stated: “Of primary significance is the fact that the defendant [in a paternity action] has not been denied access to the courts

The typical kind of evidence presented in a paternity action is not inherently better suited for a jury’s evaluation than a judge’s. Schneider put it best: “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. [Citation.]” (191 Cal.App.3d at p. 1275; see also Evid. Code, §§ 890-897 [setting forth an evidentiary scheme for “Blood Tests to Determine Paternity”].)

In the case before us, blood tests played a crucial role. By defendant’s own admission, four of the five or six potential fathers besides himself were excluded by blood testing. Of course, defendant’s blood test was consistent with paternity here. Based on that test, the probability that he is the father of Andrea is 99.665 and the probability that he is the father of Joshua is 99.66. Defendant discounts these facts by noting that not all of the potential fathers were tested, and that there is a 1 percent chance that a man falsely accused of being a father would not be excluded by the blood test. We think it would degrade the concept of fundamental fairness to invoke its mandate based on this argument.

Realizing the uphill battle he faces in the context of fundamental fairness, defendant resorts to two disingenuous characterizations. He claims that Schneider “assumed that a defendant has a right to a jury trial under the [state] due process clause. . . .” Schneider, however, did not need to resolve the issue whether the state due process clause requires a jury trial in paternity actions but merely assumed for purposes of argument that it does. (191 Cal.App.3d at p. 1282.) The court in Schneider concluded that even assuming the defendant there was entitled to a jury trial under the state due process clause, he was not denied due process of law by the invocation of Evidence Code section 892 (which allows a trial court to order an alleged father to submit to blood tests and, upon refusal, to resolve the question of paternity against him). Therefore, Schneider offers no support for defendant’s due process position. Defendant also notes the court in Southern Pac. Transportation Co. v. Superior Court (1976) 58 Cal.App.3d 433 , 436 [ 129 Cal. Rptr 912 ] stated that the “right to a jury trial is guaranteed by the California Constitution, article I, section 7.” In Southern Pac., however, the court was referring to the article I, section 7 delineating the general consti

Under the Salas test, we are to balance the action’s features and the private interests and consequences against the state’s interest in not providing a right to a jury trial in the action. (24 Cal.3d at pp. 27-28.) Although the state’s interest is largely financial and administrative, as it was in Salas, the private side of the scale does not pack much punch either. As noted by the state below, “[gjiven the lack of a right to a jury trial under the more specific provisions of Article I, Section 16, it is difficult to conclude that there is such a right in a paternity case under the more general provisions of Article I, Section 7.” In the end, the denial of a right to a jury trial in a paternity action simply does not impinge upon fundamental fairness. Accordingly, the state due process clause (art. I, § 7(a)) does not require such a right.

Disposition

The judgment is affirmed.

Carr, Acting P. J., and Nicholson, J., concurred.