Cunningham v. Superior Court (Ventura County)

Decision Date03 January 1986
Citation176 Cal.App.3d 349,222 Cal.Rptr. 44
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 176 Cal.App.3d 349 176 Cal.App.3d 349 Judson CUNNINGHAM, Petitioner, v. The SUPERIOR COURT of the State of California, for the County of Ventura, Respondent. COUNTY OF VENTURA, Manuel Jaramillo Martinez, Real Parties in Interest. B004588.

Harrington & Olney Ventura, for petitioner.

James L. McBride and Dorothy L. Schechter, County Counsel, County of Ventura and Dennis L. Slivinski Asst. County Counsel, Ventura, for real party in interest.

No appearance for respondent.


GILBERT, Associate Justice.

Petitioner Judson Cunningham is an attorney. Respondent is the Superior Court which ordered him to represent an indigent defendant in a paternity action instituted by the County of Ventura. Cunningham refused. The court held him in contempt. Cunningham seeks certiorari of the Superior Court's order holding him in contempt, and challenges the court's authority to compel him to perform pro bono representation. 1 We conclude that to require Cunningham to provide legal services without compensation is to deny him equal protection of the law.


Cunningham practices law in Ventura County. On December 20, 1983, the County of Ventura filed a paternity action against Manuel Jaramillo Martinez. This action sought to establish that Martinez is the father of a minor child, to have him reimburse the County of Ventura for public assistance in the support of the child, and to require him to pay child support. 2

Martinez claimed indigency, and moved to have the court appoint counsel to represent him. On February 3, 1984, the court appointed Cunningham, who practices law in Ventura County, to provide pro bono representation for Martinez. Cunningham was appointed pursuant to a plan designed by the Ventura County Bar Association and the superior court, for allocating free representation among lawyers who have their offices in Ventura County.

Cunningham probably did not participate in formulating the plan, because on February 16, 1984, he moved to be relieved from the appointment to represent Martinez. He stated that his practice was limited to personal injury matters, and that he had never handled a paternity case. He argued, among other things, that forcing him to represent Martinez was an unconstitutional denial of his right to equal protection of the law.

On March 28, 1984, the court found Cunningham in contempt of court for failure to comply with its order appointing him counsel of record for Martinez.




In 1974, Congress amended the Social Security Act because the welfare rolls reflected that a significant number of children participating in the AFDC program were not being supported by their absent parents. 3 Congressional studies also established that "the largest single factor accounting for the increase in the AFDC rolls is illegitimacy." 4 Consequently, state and federal legislation was enacted to require absent parents of children receiving AFDC to repay all--or at least a portion--of the public funds spent in the support of their children. (42 U.S.C. § 654; 45 C.F.R. § 302.31; Welf. & Inst. Code, §§ 11350, 11350.1, 11475 et seq.; see also Salas v. Cortez (1979) 24 Cal.3d 22, 29-32, 154 Cal.Rptr. 529, 593 P.2d 226; County of Santa Clara v. Support, Inc. (1979) 89 Cal.App.3d 687, 694-700, 152 Cal.Rptr. 754.)

Federal and California laws require that a parent assign to the county his or her right to child support from the absent parent as a condition of receiving Aid to Families with Dependent Children (AFDC). The parent receiving aid must also agree to assist in proving the paternity of any illegitimate child for whom aid is claimed. (42 U.S.C. § 602(a)(26)(A); 45 C.F.R. § 232.11; Welf. & Inst. Code, § 11477.) California law permits the district attorney to bring actions to prove paternity of children receiving AFDC. (Welf. & Inst. Code, §§ 11475.1, 11476.)


In Salas v. Cortez, supra, 24 Cal.3d at 34, 154 Cal.Rptr. 529, 593 P.2d 226, our Supreme Court held that an indigent defendant in a paternity suit filed by the state is entitled to appointed counsel. In County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 114, 183 Cal.Rptr. 741, the appellate court held that an indigent sued by the district attorney for failure to pay child support is constitutionally entitled to the appointment of free legal counsel. Salas and Tillett left open the hard question of how recruitment of counsel should take place. 5


In paternity and support cases, the court usually attempts to appoint competent private attorneys who are willing to serve without compensation. If the court is unsuccessful in obtaining such counsel, it may feel obliged to appoint unwilling counsel to fill the role of pro bono advocate.

Respondent relies upon Business & Professions Code section 6068 in support of its power to conscript attorneys for pro bono representation on behalf of indigents. Section 6068 provides it is the duty of an attorney "(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed."

Respondent contends that in Payne v. Superior Court (1976) 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565, the California Supreme Court interpreted section 6068 as requiring members of the private bar to serve gratuitously where the legislature has not appropriated funds with which to pay counsel for indigents. Payne held that, in certain instances, an incarcerated indigent defendant whose interests are threatened as a result of a civil lawsuit, has a constitutional right to representation. In footnote 6 at page 20, the court said, "[t]he state also apparently assumes that if this court orders counsel appointed in certain cases, it will mandate that counsel be paid from public funds. We do not assert such power. If and how counsel will be compensated is for the Legislature to decide. Until that body determines that appointed counsel may be compensated from public funds in civil cases, attorneys must serve gratuitously in accordance with their statutory duty not to reject 'the cause of the defenseless or the oppressed.' (Bus. and Prof. Code, § 6068, subd. (h).)"

In Yarbrough v. Superior Court, (1985) 39 Cal.3d 197, 216 Cal.Rptr. 425, 702 P.2d 583, our Supreme Court expressed the hope that the Legislature would solve the problem of compensation for attorneys, but reaffirmed the right of an indigent inmate to have access to the courts in civil cases. Although Yarbrough placed the question of whether a court may appoint an unwilling attorney to represent an indigent on the "judicial back burner," here the issue is boiling over.

Respondent concludes that the Supreme Court in Payne found that attorneys may be required to act as pro bono counsel in certain lawsuits, and that Yarbrough interprets Payne in this way. We disagree with this conclusion because we do not believe the Payne majority intended to make a ruling with such profound constitutional implications, based on dicta in a footnote.

The dissent in County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 199, 146 Cal.Rptr. 880, stated that "[t]he thrust of the controversy in Payne was on the 'right to counsel.' There simply was no written argument on the issue of compensation (and in particular about compensation when legal services were unavailable due to conflicts). The parties in Payne just assumed the compensation issue would be resolved as a matter of course. In short, the matter of payment from public funds was never fully briefed, fully argued, or fully considered by the parties."

"I cannot agree that the Supreme Court has made a definitive ruling on the subject. The matter is still an open question. In such a situation, an intermediate appellate court should try to bring areas of legal uncertainty to light and sharpen the issues for ultimate consideration by the Supreme Court."

At the time Payne was decided, many people may have assumed that the newly created and federally funded Legal Services Corporation would provide access for all civil litigants to the courts. (See 42 U.S.C. §§ 2996-2996j.) During the years 1976-1981, there was a steady growth in the ranks of lawyers employed to assist the poor in civil law matters. In 1981, however, Congress cut funding for the following fiscal year, 1982, by 25 percent. (Legal Services Corporation Act Amendments of 1981, Report No. 97-97 to accompany H.R. 3480.) 6

Respondent's contention that the court has power to impress unwilling counsel finds support in Rowe v. Yuba County (1860) 17 Cal. 62, and in some recent appellate decisions. (County of Tulare v. Ybarra (1983) 143 Cal.App.3d 580, 586, 192 Cal.Rptr. 49; County of Los Angeles v. Superior Court (1980) 102 Cal.App.3d 926, 930-931, 162 Cal.Rptr. 636; and County of Fresno v. Superior Court, supra, 82 Cal.App.3d at p. 194, 146 Cal.Rptr. 880.)

The courts in these three opinions subscribed to the unquestioned notion that the uncompensated impressment of attorneys is justified because the practice of law, as distinguished from other trades, "... is a professional privilege conferred by the state, one of the conditions of which is that the attorney not reject 'the cause of the defenseless or oppressed' (Bus. & Prof. Code, § 6068, subd. (h) )." (County of Fresno v. Superior Court, supra, 82 Cal.App.3d at p. 196, 146 Cal.Rptr. 880.)

The court in County of Fresno noted that "the vast majority" of states are of the view that appointed counsel for indigents do not have a constitutional right to compensation. (County of Fresno v. Superior Court, supra, 82 Cal.App.3d at p. 196, 146 Cal.Rptr. 880.) These states appear to require that unwilling counsel be forced to represent indigents. (E.g.,...

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