Artibee v. Cheboygan Circuit Judge

• Citation: 397 Mich. 54,243 N.W.2d 248
• Decision Date: 08 July 1976
• Docket Number: No. 1,1
• Parties: Kenneth ARTIBEE, Plaintiff-Appellant, v. CHEBOYGAN CIRCUIT JUDGE, Defendant-Appellee. 397 Mich. 54, 243 N.W.2d 248
• Court: Supreme Court of Michigan

Page 248

243 N.W.2d 248

Kenneth ARTIBEE, Plaintiff-Appellant, v. CHEBOYGAN CIRCUIT JUDGE, Defendant-Appellee.

No. 1.

397 Mich. 54, 243 N.W.2d 248

Supreme Court of Michigan July 8, 1976.

Jerry L. Sumpter, J.D., Cheboygan, for plaintiff-appellant.

Douglas K. Wenzel, Alpena, for defendant and appellee.

Dolores M. Coulter, Flint, for amicus curiae Legal Services of Eastern Michigan.

FITZGERALD, Justice.

The issue is whether an indigent defendant in a paternity action has a right to appointed counsel. We hold prospectively that he does have such a right.

On November 2, 1971, a complaint was filed against Kenneth Artibee under the paternity act ¹ in Cheboygan Circuit Court. Because the complainant has been determined eligible for aid to dependent children benefits, a Cheboygan County prosecutor represents her in the conduct of these proceedings. It is not disputed that a warrant issued upon the complaint and that Artibee was arrested. He sought the assistance of counsel, and Attorney Jerry L. Sumpter entered a special appearance in his behalf at the August 15, 1973 arraignment for the purpose of requesting appointment of counsel on the grounds of indigency. This motion was denied. A complaint for superintending control was filed in the Court of Appeals requesting that the trial court be ordered to appoint counsel if Artibee were to establish indigency. The opinion of the Court of Appeals denying relief is reported at 54 Mich.App. 433, 221 N.W.2d 225 (1974). We reverse the Court of Appeals and remand this matter to the circuit court for a determination as to indigency and appointment of counsel if indigency is established.

Const.1963, art. 1, § 17, embodies this state's guarantee of due process of law. An analysis of what process is due in a particular proceeding must begin with an examination of the nature of the proceeding and the interests which may be affected by it. Paternity proceedings are quasi-criminal. The interests of the individuals affected are substantial, and the nature of the proceedings is sufficiently complex so as to require counsel to insure a fair trial.

The statute requires that the county prosecute the action if the complainant is without the means to employ an attorney. ² Both Federal and state law provide a monetary incentive to prosecute. ³ A defendant's interests in being free from bodily restraint is directly affected from the beginning of the proceedings, since a warrant may issue upon the filing of the complaint. Upon arraignment, a defendant's failure to make the required recognizance or cash deposit may result in his commitment to the county jail. ⁴ Although the immediate consequence of the paternity judgment is an order of filiation and for support, the order is enforceable by contempt proceedings. Penalties for contempt include up to one year in the county jail or state prison or until the amount due is fully paid. ⁵

5. M.C.L.A. § 722.719(c); M.S.A. § 25.499(c).

Not only will an indigent defendant be less likely to remain free from bodily restraint, but also an uncounseled defendant will be less able to defend himself at trial against an untrue allegation of paternity. In contrast with support ordered following divorce, there is often a sharply disputed factual question concerning the relationship of the parties to a paternity action. The object of the proceedings is to determine with finality the obligation of support, and not merely to determine on the basis of present circumstances an appropriate level of support. An unrepresented paternity defendant may be unaware of his obligation to file notice of alibi if he intends to rely upon that defense. ⁶ He may be unaware of his statutory right to demand blood tests or unable to analyze the legal implications of the results. In People v. Stoeckl, 347 Mich. 1, 78 N.W.2d 640 (1956), it was counsel appointed on the morning of trial for the indigent defendant who made the demand for blood tests and who objected when the prosecutor made impermissible comments to the jury on the defendant's failure to take the stand. In regard to the impermissible comments, Justice Kelly at 347 Mich. at 17--18, 78 N.W.2d at 643, said as follows:

'If bastardy proceedings are criminal to that point where the statutory provisions in regard to the right to waive a jury in criminal cases prevail, then the proceedings should be criminal to that point where the prohibition against commenting on defendant's failure to testify should apply. ³

'Justice Smith's opinion on this question could be accepted if this Court would adopt the principle that once the criminal procedural phases of bastardy, such as warrant, bail, Et cetera, have served their purposes and the trial commenced, then all criminal aspects disappear and the case should be tried as civil in its nature.'

Another consideration is that the determination of paternity will be Res judicata for the next 18 years during which the defendant faces a continued threat of arrest and compelled appearances in court to explain any delinquencies, and the threat of imprisonment should the court not be convinced that failure to pay is justified.

The fact that many procedural safeguards attendant to criminal trials have been made applicable to paternity proceedings, and the reality that prosecution is often undertaken at public expense, constitute recognition that the outcome is of great importance both to the defendant and to the state. The Legislature has expressed its opinion that the complainant and her child would not receive a fair trial without benefit of counsel. The same consideration of fundamental fairness should apply to the defendant when faced with the power of the state arrayed against him.

Our decision today is to be applied prospectively to trials taking place on or after the date of publication of this opinion.

The Court of Appeals is reversed and this matter is remanded to the trial court for proceedings consistent with this opinion. The writ of superintending control will issue if necessary. No costs, a public question being involved.

T. G. KAVANAGH, C.J., and LEVIN and WILLIAMS, JJ., concur.

COLEMAN, Justice (To Affirm).

Pursuant to the Paternity Act, ¹ Kenneth Artibee was brought before the Cheboygan circuit court on August 15, 1973. With counsel appearing specially, plaintiff claimed indigency and requested the appointment of an attorney at county expense. In denying Mr. Artibee's request (but reserving discretion to appoint counsel if the interest of justice required), the circuit judge said:

'In this instance we're not depriving a man of freedom. He's not going to jail in this particular instance. There is no possibility that he is going to jail. This proceeding is to determine the parentage of a child. He does not have to testify. He can request a blood test to disprove paternity, and which cannot be used to prove paternity. The burden of proof is incumbent upon the petitioner. We're not placing the man in jeopardy as to any preclusion of his freedom. So I'm not going to appoint counsel at this time. If the trial should develop where it would appear, in the interest of justice, to this Court, that legal counsel would be necessary to be appointed for him, in the interest of justice, at that juncture, I would appoint counsel. At this juncture, I will not appoint counsel.' (Emphasis added.)

Through present counsel, plaintiff also filed a complaint for superintending control in the Court of Appeals. ² On October 5, 1973, the Court of Appeals ordered the circuit judge to show cause why Artibee should not be granted the relief sought. The specific question was: Do defendants in paternity suits have a right to counsel under either the United States Constitution or the Constitution of the State of Michigan, thereby requiring the appointment of counsel for an indigent defendant?

The Court of Appeals held that an indigent defendant had no such right. Affirming the trial court, Judge Gillis said:

'The direct result of a paternity proceeding is an order of filiation (MCLA 722.717; MSA 25.497), establishing the father-child relationship and specifying the sum the father is required to pay for his child's support and education. This is the only result of a paternity proceeding and it is wholly consistent with the proceeding's objectives.'

The Court determined that procedural due process did not mandate 'a right to counsel in paternity proceedings.'

We granted leave to appeal on December 23, 1974. The case became ready for argument and was heard on April 5, 1976. In the interim, plaintiff's counsel filed two motions for costs, expenses and attorney fees, the first without an affidavit of indigency because Mr. Artibee's whereabouts were unknown. That motion was denied. The second is held in abeyance pending final disposition of the case (order of March 31, 1976).

Because of the sweeping implications of our decision, which could cut across many fields of civil jurisprudence, this analysis will be limited to the facts now before the Court and the specific proceeding involved.

I.

Much argument centers on whether a paternity act proceeding is civil, quasi-civil or quasi-criminal. Defense counsel colorfully states his opinion that '(p)roper labeling is often nauseating'. My colleagues call the proceedings 'quasi-criminal' and would appoint counse based on a 'consideration of fundamental fairness' because Mr. Artibee is 'faced with the power of the state arrayed against him'.

These proceedings do not require the application of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), a criminal case which held that 'absent a knowing and intelligent waiver no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial'. Also see People v. Studaker, 387 Mich. 698, 199 N.W.2d 177 (1972). The trial judge specifically excluded confinement as a possible action. ³

It is suggested in the thoughtful and comprehensive brief of amicus...