Clark v. Superior Court (County of Orange)

• Decision Date: 23 March 1998
• Docket Number: No. G020375,G020375
• Citation: 62 Cal.App.4th 576,73 Cal.Rptr.2d 53
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 2134, 98 Daily Journal D.A.R. 2918 Renee CLARK et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent; The COUNTY OF ORANGE, Real Party In Interest.

Page 53

73 Cal.Rptr.2d 53

62 Cal.App.4th 576, 98 Cal. Daily Op. Serv. 2134,

98 Daily Journal D.A.R. 2918

Renee CLARK et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent The COUNTY OF ORANGE, Real Party In Interest.

No. G020375.

Court of Appeal, Fourth District, Division 3, California.

March 23, 1998.

[62 Cal.App.4th 578] Kayajanian & Brewsaugh and Jack J. Kayajanian, Irvine, for Petitioners.

Carl C. Holmes, Public Defender, Deborah A. Kwast, Chief Public Defender, Denise Gragg and Donald E. Landis, Jr., Deputy Public Defenders, and Nancy A. Space, San Jose, as amici curiae on behalf of Petitioners.

No appearances for Respondent.

Laurence M. Watson, County Counsel, James L. Turner and Karyn J. Driessen, Deputy County Counsels, for Real Party in Interest.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carol Ann White, Statewide Child Support Coordinator, Mary A. Roth, Deputy Attorney General, and Ruth Sorensen, Sacramento, as amici curiae on behalf of Real Party in Interest.

OPINION

SILLS, Presiding Justice.

I

A strong bipartisan consensus has emerged as to one way to hold down welfare costs: Require absent parents, usually fathers, to keep up their child support obligations. (See Wehunt v. Ledbetter (11th Cir.1989) 875 F.2d 1558, 1561 [quoting a 1988 Senate Report regarding certain amendments to the Social Security Act: "The bill reported by the Committee on Finance .... builds upon a strong consensus, joined in by liberals and conservatives alike, that the Nation's welfare system must," among other things "enforce the principle that child support must in the first instance come from parents"]; see also Levesque, Targeting "Deadbeat" Dads: The Problem With the Direction of Welfare Reform (1994) 15 Hamline J. Pub.L. & Pol'y 1, 2 ["The sense of crisis and urgency has fueled a rare consensus among liberals and conservatives on what ought to be done with the growing number of children in poverty.... [p] The consensus urges a simple resolution to the welfare problem: since the largest number of children in poverty live with single mothers, return fathers to their homes, either physically or economically."].)

This consensus was reflected as early as 1974, when Congress enacted what is known as Title IV-D of the Social Security Act, specifically "[f]or the purpose of enforcing the support obligations owed by absent parents to their children and the spouse (or former spouse) with whom such children are living...." (42 U.S.C. section 651.) ¹

The idea behind Title IV-D, quite plainly, was to recoup welfare costs from the absent parents of children being given public assistance. (Wehunt v. Ledbetter, supra, 875 F.2d at p. 1565 ["Title IV-A provides funds from the public treasure to support children in need. Title IV-D seeks to recover those funds and restore the Treasury balance by enforcement of support obligations owed by the absent parents of these children."]; Carelli v. Howser (6th Cir.1991) 923 F.2d 1208, 1210 ["In the case of AFDC recipients, who are required to assign their support rights to the state Title IV-D agency, state enforcement pursuant to Title IV-D is a way in which some of the monies expended for AFDC may be recouped by the state."] ²; Spector, The Nationalization of Family Law: An Introduction to the Manual for the Coming Age (1993) 27 Fam. L.Q. 1, 2 ["In 1975 Congress created Title IV-D of the Social Security Act [fn. omitted] in an attempt to reduce the federal welfare budget by recouping child welfare funds from the parents."]; Levesque, Targeting "Deadbeat" Dads: The Problem With the Direction of Welfare Reform, supra, 15 Hamline J. Pub.L. & Pol'y at p. 11 ["In efforts to stem costs, Congress turned to whoever else could be held responsible: fathers."].)

Indeed, reducing welfare costs by offsetting collections from supporting parents is one of the "least controversial" aspects of welfare reform. (Levesque, Looking to Unwed Dads to Fill the Public Purse: A Disturbing Wave in Welfare Reform (1994) 32 U. Louisville J. Fam. L. 1, 2, 4.)

Title IV-D imposes a series of requirements on states, including the provision of child support collection services for all individuals. (42 U.S.C. section 654(4)(A) ["... the State will--(A) provide services relating to ... the establishment, modification, or enforcement of child support obligations ...."]; see 45 C.F.R. § 302.33 [specific regulations requiring services for individuals not receiving AFDC or foster care assistance]; see also Worth v. Superior Court (1989) 207 Cal.App.3d 1150, 1154, 255 Cal.Rptr. 304.) ³

To comply with Title IV-D requirements, the California Legislature enacted a series of statutes: When separation or desertion results in welfare payments, Welfare and Institutions Code section 11350 requires local district attorneys to undertake "appropriate action" to collect from noncustodial parents amounts they otherwise were obligated to pay as child or family support by court order (or, in the absence of a court order, the amount that "would have been specified"). Welfare and Institutions Code section 11350.1, subdivision (a) allows the district attorney to prosecute such actions in the name of the county that provided the welfare on behalf of the child. And Welfare and Institutions Code section 11475.1, subdivision (a) requires each county to set up support enforcement units within local district attorney's offices to establish and enforce child support orders.

The present case arises out of a petition for a writ of mandate or prohibition brought by four indigent individuals (Renee Clark, Dean Leone, Trai Nguyen and Humberto Gonzales) who were sued by the local district attorney's family support division under sections Welfare and Institutions Code sections 11350., 11350.1 and 11475.1 in the wake of the receipt of public assistance by their children. All four sought taxpayer-funded counsel, and their requests were denied. The office of the alternate defender, which handles family law contempt matters and paternity actions, has taken up their cause in this writ proceeding even though the actions brought by the family support division do not involve either contempt or paternity. All four claim that constitutional due process requires that the government provide them counsel at public expense.

II

In 1981, the United States Supreme Court had occasion in a case involving the termination of parental rights, Lassiter v. Department of Social Services (1981) 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640, to explore when due process requires the taxpayers to pay for an indigent's lawyer. The bottom line is that the only absolute rule requiring free counsel at public expense is when there is a risk of loss of "physical liberty." The court made that point at least twice. (Id. at pp. 25, 101 S.Ct. at p. 2158 ["The pre-eminent generalization that emerges from this Court's precedents on an indigent's right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation."] & 26-27, 101 S.Ct. at p. 2159 ["an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty"].)

Outside the absolute rule, three "elements" determine what "due process requires." (Id. at p. 27, 101 S.Ct. at p. 2159.) They are:

-- the private interests at stake;

-- the risk that the procedures used will lead to erroneous decisions; and

-- the government's interest.

(Ibid.)

Significantly, not only must these three elements be "balance[d] against each other," but their "net weight" must be sufficient to overcome "the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom" if the taxpayers are to foot the bill for an attorney. (Ibid., emphasis added.)

A

We now examine the three Lassiter factors. The first one is the private interest at stake. Here, it is money.

Of course, courts should be wary of the temptation to dismiss property (in general) and money (in particular) as the children of a lesser god in the grand constitutional scheme of things, i.e., to see a litigant's interest in mere money as grubby and materialistic in comparison to such elevated concerns as free speech, religion and liberty. (Cf. In re Dependency of Grove (1995) 127 Wash.2d 221, 897 P.2d 1252, 1261 ["Where, as here, the interest at stake is only a financial one, the right which is threatened is not considered 'fundamental' in a constitutional sense...."].)

It is, however, undeniable that as a matter of legal precedent for purposes of the right to make a claim on the taxpayers for the cost of a free lawyer, monetary interests have traditionally never been accorded the same importance as staying out of jail. The obvious point of reference is the tax law. The ordinary citizen who is forced to do battle with the IRS in a civil tax proceeding- --where only money is involved--cannot call on the public treasury to pay for the services of a tax lawyer or accountant.

Another reference point is the drug forfeiture law, in which (unlike the typical tax case) criminality itself is necessarily implicated. Thus even though a forfeiture of property used in the illegal drug trade would appear, for sake of argument, to more closely resemble a fine levied in a criminal case than an award of damages in a civil case, there is still no right to taxpayer-paid appointed counsel. (See People v. $30,000 United States Currency (1995) 35 Cal.App.4th 936, 942-944, 41 Cal.Rptr.2d 748 and authorities cited therein; see also U.S. v. 7108 West Grand Ave., Chicago, Ill. (7th Cir.1994) 15 F.3d 632, 635.)

It is true that sometimes more than mere money is implicated in Title IV-D child support enforcement, such as various licenses which might be granted by the state. On the other hand, the fact that the basis of any Title IV-D case is by...