County of Sutter v. Davis

• Decision Date: 23 September 1991
• Court: California Court of Appeals Court of Appeals
• Parties: The COUNTY OF SUTTER, Plaintiff and Respondent, v. Davey Darrell DAVIS, Defendant and Appellant. Civ. C007363.

Page 736

285 Cal.Rptr. 736

234 Cal.App.3d 319

The COUNTY OF SUTTER, Plaintiff and Respondent, v. Davey Darrell DAVIS, Defendant and Appellant.

Civ. C007363.

Court of Appeal, Third District, California.

Sept. 23, 1991.

[234 Cal.App.3d 321] Justin B. Scott, Sacramento, for defendant and appellant.

John K. Van de Kamp and Daniel Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., J. Robert Jibson, Supervising Deputy Atty. Gen., William G. Prahl, Deputy Atty. Gen., for plaintiff and respondent.

DAVIS, Associate Justice.

On behalf of Andrea E. and Joshua E., minors, the County of Sutter (County) filed this action against defendant Davey Davis to establishpaternity and obtain child support and reimbursement for public assistance. (Civ.Code, § 248; Welf. & Inst.Code, §§ 11350, 11350.1, 11475.1; all further references to undesignated statutory sections are to the Welfare and Institutions Code.) Defendant denied paternity and requested a jury trial on the issue. He also stipulated to a blood test and the appointment of a blood test expert. County challenged defendant's request for jury trial. The trial court concluded there is no right to a jury trial in a paternity action in California, whether by state or federal constitutional mandate or by statute. In a bench trial, Defendant's paternity was established. He thereafter stipulated to amounts for reimbursement and support, and judgment was entered on the stipulation.

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 Parliament. (Citation.)" (Id. at p. 287, 231 P.2d 832; see County of El Dorado v. Schneider, supra, 191 Cal.App.3d at p. 1278, 237 Cal.Rptr. 51.)

In Schneider, we concluded "that since the common law in its statutory aspect in 1850 provided an action to establish paternity, and since there was then no right to a jury trial on the question, defendant had no right to a jury under article I, section 16, of our Constitution. (Citations.)" (191 Cal.App.3d at p. 1280, 237 Cal.Rptr. 51; see also, County of Butte v. Superior Court (1989) 210 Cal.App.3d 555, 557-558, 258 Cal.Rptr. 516.)

On three grounds, Defendant contends Schneider was wrongly decided. First, Defendant notes that California decisional law in 1974--when article I, section 16 was adopted--provided for a right to jury trial in paternity actions. Secondly, Defendant asserts that American common law at the time the California Constitution was adopted specified that a defendant in a paternity action was entitled to a jury trial. Finally, Defendant argues that an action for reimbursement of public assistance did not exist at common law and since such an action is one at law, article I, section 16 applies to provide a right to jury trial.

Defendant's first two points are riddled with problems. Initially, defendant ignores the constitutional provisions that preceded article I, section 16, all of which have the same substantive language. (Art. I., § 3 adopted in 1850; art. I, § 7 adopted in 1879.) He also mischaracterizes American common law: The vast majority of American state courts that have considered the issue using the time period around 1850 have held that a general state constitutional guaranty of the right to a jury trial does not extend to paternity actions. (Annot., Paternity Proceedings: Right to Jury Trial (1987) 51 A.L.R.4th 565, 569-570, 573-576.) ¹ Finally, he relies on three California decisions--Van Buskirk v. Todd (1969) 269 Cal.App.2d 680, 685-686, 75 Cal.Rptr. 280; Kyne v. Kyne (1940) 38 Cal.App.2d 122, 133, 100 P.2d 806; and Myers v. Harrington (1925) 70 Cal.App. 680, 689, 234 P. 412--that do not articulate the legal basis of the jury trial right in a paternity action other than to note the action's legal nature. (See County of El Dorado v. Schneider, supra, 191 Cal.App.3d at p. 1281, 237 Cal.Rptr. 51.) These decisions are incomplete in light of People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d at pp. 286-287, 231 P.2d 832. People v. One 1941 Chevrolet Coupe formed the basis of the Schneider decision on this issue but was not even mentioned in Van Buskirk (Kyne and Myers were decided before People v. One 1941 Chevrolet Coupe ). As explained in Crouchman v. Superior Court (1988) 45 Cal.3d 1167, 1174, 248 Cal.Rptr. 626, 755 P.2d 1075: " 'As a general proposition, "[T]he jury trial is a matter of right in a civil action at law, but not in equity." ...' [Citation.] But if a proceeding otherwise identifiable in some sense as a 'civil action at law' did not entail a right to jury trial under the [English] common law of 1850, then the modern California counterpart of that proceeding will not entail a constitutional right to trial by jury." (Emphasis in original.)

Defendant's last point about public reimbursement actions not existing at common law is also off the mark. The essential issues in paternity actions have remained the same since the common law in 1850: To decide paternity and set child support. Public reimbursement suits under the Welfare and Institutions Code comprise these same two essential issues, and therefore have not changed the nature of the paternity action.

That brings us to the real problem with Defendant's contention that Schneider was wrongly decided. Defendant refuses to recognize that "[t]he right to a jury trial under article I, section 16 of the California Constitution is measured by the common law of England as it existed at the time of the adoption of the California Constitution in 1850." (County of Butte v. Superior Court, supra, 210 Cal.App.3d at p. 557, 258 Cal.Rptr. 516, emphasis added [discussing Schneider and citing People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d at pp. 286-287, 231 P.2d 832 and Crouchman v. Superior Court, supra, 45 Cal.3d at p. 1173, 248 Cal.Rptr. 626, 755 P.2d 1075.].) Consequently, defendant's reliance on certain court decisions from California and other American states is misplaced because these decisions do not set forth the common law of England as it existed in 1850.

Article I, section 16 does not provide Defendant with a right to a jury trial.

2. Article I, Section 7, subdivision (a)

Article I, section 7, subdivision (a) of the California Constitution (hereafter, article I, section 7(a)) provides in pertinent part: "A person may not be deprived of life, liberty, or property without due process of law...." ²

It is true, as noted by this court, that "rules governing invocation of procedural due process rights under the state Constitution are not always the same as rules adopted by the United States Supreme Court for invocation of federal due process rights." (Schultz v. Regents of University of California (1984) 160 Cal.App.3d 768, 780, 206 Cal.Rptr. 910.)

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. 425, 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 4-3 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...