Artibee v. Cheboygan Circuit Judge

• Decision Date: 24 July 1974
• Docket Number: No. 3,Docket No. 18077,3
• Citation: 54 Mich.App. 433,221 N.W.2d 225
• Parties: Kenneth ARTIBEE, Plaintiff, v. CHEBOYGAN CIRCUIT JUDGE, Defendant
• Court: Court of Appeal of Michigan — District of US

Page 225

221 N.W.2d 225

54 Mich.App. 433

Kenneth ARTIBEE, Plaintiff, v. CHEBOYGAN CIRCUIT JUDGE, Defendant.

Docket No. 18077.

Court of Appeals of Michigan, Division No. 3.

July 24, 1974.

Released for Publication Aug. 28, 1974.

Jerry L. Sumpter, Cheboygan, for plaintiff.

James R. Gilbert, Pros. Atty., Cheboygan, Douglas K. Wenzel, Alpena, for defendant.

Before ALLEN, P.J., and J. H. GILLIS and QUINN, JJ.

J. H. GILLIS, Judge.

On December 22, 1971 a child was born to Brenda Joyce Valley. Miss Valley subsequently applied to Cheboygan County Department of Social Services for aid to dependent children benefits. Thereafter, based on information furnished by Miss Valley, the Cheboygan County Prosecutor commenced an action in circuit court against Kenneth Artibee pursuant to the Paternity Act, M.C.L.A. § 722.711 et seq.; M.S.A. § 25.491 et seq., alleging that Artibee was the child's father. At his August 15, 1973 arraignment Artibee moved that the court appoint counsel at public expense to represent him. His motion was denied. Artibee then filed a complaint for superintending control in this Court requesting an order requiring the Cheboygan Circuit Judge to acknowledge his right to appointed counsel if he were to establish his indigency. On October 15, 1973, this Court ordered the circuit judge to show cause why Artibee should not be granted the relief requested. The precise question presented here for our determination is: 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?

I

The basic argument of the circuit judge is that a paternity suit is not a criminal prosecution, and that there is a right to counsel only if an action is criminal. He argues first that the Sixth Amendment to the United States Constitution ¹ and art. 1, § 20 of the Michigan Constitution ² both provide specifically that an accused shall have a right to counsel in all Criminal prosecutions. He also relies heavily on the recent interpretation of the Sixth Amendment by the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), ³ where the Court held that:

'(A)bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.

'That is the view of the Supreme Court of Oregon, with which we agree. It said in Stevenson v. Holzman, 254 Or. 94, 102, 458 P.2d 414, 418:

"We hold that no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment. This holding is applicable to all criminal prosecutions, including prosecutions for violations of municipal ordinances. The denial of assistance of counsel will preclude the imposition of a jail sentence." 407 U.S. 25, 37--38, 92 S.Ct. 2006, 2012--2013, 32 L.Ed.2d 530, 538--539.

The circuit judge says that Argersinger stands for the proposition that there is a constitutional right to counsel Only where 1) punitive imprisonment results 2) from a criminal prosecution. He contends that paternity proceedings fail to meet both of these conditions. In addition to arguing that paternity suits are civil in nature, the circuit judge, relying on In re Kaminsky, 70 Mich. 653, 38 N.W. 659 (1888), says that any confinement under the Paternity Act is not punitive imprisonment. ⁴

We find three serious fallacies in the circuit judge's position. First, while Argersinger does stand for the proposition that counsel is required whenever a person is to be imprisoned for any criminal offense, it does not say that this is the Only situation requiring counsel. Second, the circuit judge ignores other constitutional provisions which could arguably support a claim of right to counsel in paternity suits. Specifically we refer to the Due Process Clause of the Fourteenth Amendment to the United States Constitution and art. 1, § 17 of the Michigan Constitution, both of which provide that no person shall be deprived of 'life, liberty, or property, without due process of law'. Third, by arguing that counsel is required only in criminal actions, and that paternity proceedings are essentially 'noncriminal or civil in nature', the circuit judge is saying that labels should determine the disposition of this issue. We disagree.

Courts have felt compelled to attempt to classify paternity suits. In Michigan paternity actions have been denominated 'noncriminal' ⁵ or 'quasi-criminal'. ⁶ Of course, as this Court pointed out in Romain v. Peters, 9 Mich.App. 60, 155 N.W.2d 700 (1967), any action which is 'quasicriminal' must also be 'quasi-civil'. Almost every state has ruled that these actions are basically civil in nature. ⁷ However, whether a proceeding is labeled civil or criminal should not be the focus of an important constitutional inquiry. The Supreme Court refused to base its decision in Argersinger on any 'petty offense--serious offense' distinction. Likewise, we will not let semantics control our decision here.

The fallaciousness of the circuit judge's argument can best be seen by a brief examination of the juvenile court system. Juvenile court proceedings are generally considered noncriminal. Such is the case in Michigan. M.C.L.A. § 712A.1; M.S.A. § 27.3178(598.1). While juvenile delinquents may be confined in state institutions, they are not imprisoned with criminals. See M.C.L.A. § 712A.16; M.S.A. § 27.3178(598.16). Thus, neither of the Argersinger conditions which mandate the appointment of counsel are present in juvenile proceedings. Nonetheless the United States Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), held that the Due Process Clause of the Fourteenth Amendment requires that in proceedings:

'(T)o determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.' 387 U.S. 1, 41, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527, 554.

On the question of semantics Mr. Justice Harlan, concurring in part and dissenting in part, said:

'It must at the outset be emphasized that the protections necessary here cannot be determined by resort to any classification of juvenile proceedings either as criminal or as civil, whether made by the State or by this Court. Both formulae are simply too imprecise to permit reasoned analysis of these difficult constitutional issues. The Court should instead measure the requirements of due process by reference both to the problems which confront the State and to the actual character of the procedural system which the State has created.' 387 U.S. 1, 68, 87 S.Ct. 1428, 1465, 18 L.Ed.2d 527, 569.

II

Our rejection of the premises of the circuit judge's argument does not mean that we have rejected his conclusion, I.e., that appointment of counsel is not constitutionally required in paternity suits. Our rejection simply means that we think the important question raised in this case demands a different approach.

Presently, there is a constitutional right to counsel for defendants in 1) criminal prosecutions and 2) juvenile proceedings. We are urged here to extend this right to a third type of action--paternity. To determine whether this extension is constitutionally mandated we must examine and compare the purposes, objectives, and results of criminal and juvenile actions, with the purposes, objectives, and results of paternity proceedings.

A. Criminal Proceedings

Perkins says '(c)rime is any social harm defined and made punishable by law'. ⁸ And, according to Wharton:

'A crime is the commission or omission by a person having capacity, of any act which is either prohibited or compelled by law, and the commission or omission of which is punishable by a proceeding brought in the name of the government whose law has been violated.' ⁹

The common element of these definitions is that a crime is something 'punishable'. However, both Perkins and Miller think it erroneous to speak of punishment as the objective of criminal law. ¹⁰ Perkins contends that '(t) he purpose of criminal law is to define socially intolerable conduct, and to hold conduct within limits which are reasonably acceptable from the social point of view'--that punishment is simply the means of carrying out this underlying purpose. ¹¹

When we examine punishment, we see that it has various objectives: retribution deterrence, prevention, and rehabilitation. ¹² All of these goals of punishment would tend to achieve the purpose of criminal law as espoused by Perkins, I.e., to hold conduct within socially tolerable limits. However, there are differing views on which of these goals is of primary importance. Sauer v. United States, 241 F.2d 640, 648 (CA 9, 1957), opined that the 'ultimate goal' of criminal law is deterrence, and '(i)n attempting to achieve this end we employ means which secondarily satisfy the retributive feelings of society'. See State v. Rinehart, 255 Iowa 1132, 125 N.W.2d 242 (1963). And Mr. Justice Black, writing for the United States Supreme Court in Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337, 1343 (1949), said:

'Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.'

Some courts have gone a step further and intimated that rehabilitation is the primary goal of punishment. ¹³

Punishment may take the form of 1) imprisonment, 2) probation, or 3) a fine. The first two affect the convicted person's liberty; imprisonment deprives him of it, while probation simply restricts it. Therefore, the direct result of...