County of Santa Clara v. Superior Court

• Decision Date: 29 January 1992
• Docket Number: No. H008792,H008792
• Citation: 2 Cal.App.4th 1686,5 Cal.Rptr.2d 7
• Parties: , 60 USLW 2559 COUNTY OF SANTA CLARA, Petitioner, v. COUNTY SUPERIOR COURT of Santa Clara County, Respondent; Dian L. RODRIGUEZ, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 7

5 Cal.Rptr.2d 7

2 Cal.App.4th 1686, 60 USLW 2559

COUNTY OF SANTA CLARA, Petitioner, v. COUNTY SUPERIOR COURT of Santa Clara County, Respondent Dian L. RODRIGUEZ, Real Party in Interest.

No. H008792.

Court of Appeal, Sixth District, California.

Jan. 29, 1992.

As Modified on Denial of Rehearing Feb. 19, 1992.

Review Denied April 16, 1992.

Office of County Counsel, Steven M. Woodside, Robert J. Menifee, for petitioner.

Hugh T. Thomson, San Jose, for respondent.

Dian L. Rodriguez, San Jose, for real party in interest.

BAMATTRE-MANOUKIAN, Associate Justice.

When an indigent person has been ordered to show cause why he or she should not be found in contempt and punished for alleged disobedience of an order to pay child support, and the potential punishment includes a possible jail sentence, must the county provide an attorney, at public expense, to represent the indigent citee? We hold that it must.

The Santa Clara County Superior Court ordered Robert Legaspi to make specified payments for the support of his two minor children. Thereafter the children's mother applied for an order to show cause why Legaspi should not be held in contempt, alleging that (among other things) Legaspi had not made the child support payments despite knowledge of the order and ability to comply with it.

The superior court ordered Legaspi to show cause "WHY THIS COURT SHOULD NOT FIND YOU GUILTY OF CONTEMPT AND PUNISH YOU FOR WILLFULLY DISOBEYING ITS ORDERS AS SET FORTH IN THE DECLARATION BELOW...." The mother's appended declaration alleged 16 instances of disobedience of court orders. (Code Civ.Proc., § 1209, subd. (a)(5).) The order to show cause was issued on a Judicial Council form, specified by rule 1285.60 of the California Rules of Court, which included on its face a notice, partly printed and partly rubber-stamped, that "[a] contempt proceeding is criminal in nature. If the court finds you in contempt, the possible penalties include jail sentence and fine. [p] FAILURE TO COMPLY MAY RESULT IN SANCTIONS. [p] You are entitled to the services of an attorney who should be consulted promptly in order to assist you. If you cannot afford an attorney, the court may appoint an attorney to represent you."

Appearing in response to the order to show cause, Legaspi represented to the superior court that he was indigent and on that ground asked that the court appoint an attorney for him. Reportedly the court asked the Santa Clara County public defender to represent Legaspi and the public defender declined to do so; at oral argument in this court counsel for the county acknowledged that both the public defender and the nonprofit organization that contracts with the county to provide attorneys for litigants when the public defender declares a conflict of interest had previously taken the position they would not represent citees in contempt proceedings to enforce Family Law Act orders. The superior court then appointed attorney Dian L. Rodriguez, the real party in interest herein, "to assist and represent ... LEGASPI...." The order further provided that "[t]he Court will direct the County to pay the fees and costs for this representation if the citee is unable to employ counsel." ¹ Rodriguez thereafter represented Legaspi in the contempt proceedings.

Legaspi was ultimately found guilty of six counts of failure to pay court-ordered child support and was sentenced to jail. ²

Rodriguez then applied for an order that the county pay her attorney fees. The county opposed the application. The superior court ordered the county to pay specified attorney fees and costs but stayed its order to permit the county to seek appellate review.

The county then petitioned this court for a writ of mandate or prohibition to vacate the order for payment of attorney fees.

The order was directly appealable as a final determination of a collateral matter. (Cf., e.g., Cont.Ed.Bar, Cal.Civil Appellate Practice (2d ed. 1985) § 2.20, pp. 37-38.) In general an extraordinary writ should not issue if there is an adequate remedy by appeal (cf., e.g., Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1015, 166 Cal.Rptr. 246); where there is an apparently adequate remedy by appeal the court in which review is sought need not reach the merits but may simply deny the petition summarily. The determination whether an available appeal would provide an adequate remedy is entrusted to the discretion of the reviewing court. (Cf., e.g., Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328, 262 Cal.Rptr. 405; Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 129, 142 Cal.Rptr. 325.) Here the county represents, without contradiction, that this is but one of at least 14 pending contempt matters in which the superior court has appointed counsel and may be expected to order the county to pay attorney fees, and that the superior court has adopted a form order for payment of attorney fees by the county in such cases. We agree with the county that in the circumstances direct appeal would not be an adequate alternative remedy: Consideration of the merits of the writ petition is appropriate to avoid a multiplicity of appeals raising the same issue. (Cf., e.g., Anderson v. Superior Court, supra, 213 Cal.App.3d at p. 1328, 262 Cal.Rptr. 405; People v. Superior Court (Schomer) (1970) 13 Cal.App.3d 672, 676, 91 Cal.Rptr. 651.) We have considered the petition on its merits, have requested and received supplemental briefing, and have heard oral argument. We shall conclude that the superior court's order was proper and shall deny the county's petition.

The county argues that the superior court was neither required nor empowered to appoint counsel to represent Legaspi, and that even had the superior court been empowered to appoint counsel it had no authority to order the county to pay attorney fees. ³

Courts in many other states, and several federal courts, have held that indigent citees in Legaspi's position are entitled to have counsel appointed to represent them, ⁴ but it appears that no California court has directly addressed the question in a reported case. ⁵ We find ample reason to conclude, consistent with decisions from other jurisdictions, that if Legaspi was unable to afford counsel and if he did not waive his right to be represented, the court was required to appoint counsel to represent him.

California has recognized a number of situations in which an indigent litigant will be entitled to have counsel appointed. The most obvious example is that of an indigent criminal defendant. (U.S. Const., 6th and 14th Amend.; Cal. Const. art. I, § 15; Powell v. Alabama (1932) 287 U.S. 45, 71-72, 53 S.Ct. 55, 65, 77 L.Ed. 158; Gideon v. Wainwright (1963) 372 U.S. 335, 343-345, 83 S.Ct. 792, 796-797, 9 L.Ed.2d 799; Argersinger v. Hamlin (1972) 407 U.S. 25, 37, 40, 92 S.Ct. 2006, 2012, 2014, 32 L.Ed.2d 530; People v. Marsden (1970) 2 Cal.3d 118, 123, 84 Cal.Rptr. 156, 465 P.2d 44; In re Kathy P. (1979) 25 Cal.3d 91, 103, 157 Cal.Rptr. 874, 599 P.2d 65; Pen.Code, §§ 686, 987, 987.2; but cf. Scott v. Illinois (1979) 440 U.S. 367, 369, 373-374, 99 S.Ct. 1158, 1159-1160, 1162, 59 L.Ed.2d 383.) In other cases the entitlement has been declared as a matter of procedural due process (cf., e.g., Salas v. Cortez (1979) 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226), or established by statute, or both. ⁶ No statute provided for appointment of counsel in Legaspi's case; the question is whether his due process rights included a right to such an appointment.

The clearest predicate for a conclusion that an indigent litigant will be entitled to appointed counsel as a matter of due process will be a determination that the litigant may lose his or her physical liberty if he or she loses the litigation. (Lassiter v. Department of Social Services, supra, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158; cf. Argersinger v. Hamlin, supra, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012; In re Gault, supra, 387 U.S. 1, 41, 87 S.Ct. 1428, 1450; see Walker v. State Bar (1989) 49 Cal.3d 1107, 1116, 264 Cal.Rptr. 825, 783 P.2d 184; Guardianship of Ethan S. (1990) 221 Cal.App.3d 1403, 1412, 271 Cal.Rptr. 121.) ⁷ Certainly, at the time he asked the court to appoint counsel, Legaspi confronted possible loss of physical liberty: Code of Civil Procedure section 1218 provides that a person found guilty of a contempt may be imprisoned up to five days, the order to show cause expressly informed Legaspi that "the possible penalties include jail sentence," and in fact Legaspi was ultimately sentenced to jail. ⁸

The county argues that if counsel is to be appointed at all, a due process right to such an appointment should be found only in cases so complex as to place in doubt the citee's ability to represent himself or herself. We find the argument unpersuasive: In Lassiter v. Department of Social Services, supra, 452 U.S. 18, 25-31, 101 S.Ct. 2153, 2158-2162, the U.S. Supreme Court made clear that complexity, as a determinant of what due process requires, will come into play only in a situation in which there is no risk the citee will lose his or her personal freedom. Where personal freedom is at stake, a due process basis for appointment of counsel is established without consideration of other possible determinants.

In the circumstances of record Legaspi, as an indigent litigant, was entitled to have counsel appointed to represent him, and the superior court had a corresponding duty to make the appointment.

But this conclusion does not resolve the question, more immediately presented by the county's petition, whether the superior court could also order the county to pay the appointed attorney. Courts in other jurisdictions have usually seemed to assume that a court's duty to appoint counsel connotes a power to order an appropriate public entity to pay appointed counsel's fees. But many California cases have made clear that, in this state, even where a court must or may appoint counsel, it cannot order a public entity to...