Reynolds v. Kimmons

• Decision Date: 07 October 1977
• Docket Number: No. 3305,3305
• Citation: 569 P.2d 799
• Parties: Alfred T. REYNOLDS, Petitioner, v. Debra J. KIMMONS, Respondent.
• Court: Alaska Supreme Court

Page 799

569 P.2d 799

Alfred T. REYNOLDS, Petitioner, v. Debra J. KIMMONS, Respondent.

No. 3305.

Supreme Court of Alaska.

Oct. 7, 1977.

William B. Schendel and Paul J. Canarsky, Fairbanks, for petitioner.

David Mannheimer, Asst. Atty. Gen., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for respondents.

OPINION

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR and BURKE, JJ.

BOOCHEVER, Chief Justice.

This case involves the right of an indigent defendant to appointment of counsel in a paternity suit in which the plaintiff is represented by the state. We hold that there is such a right.

The Alaska Child Support Enforcement Agency, represented by the Attorney General of the State of Alaska, filed suit against Alfred T. Reynolds. Ms. Debra J. Kimmons, in whose name the suit was brought, was the real party in interest. The complaint alleged that Mr. Reynolds is the father of Ms. Kimmons' minor child, born on June 8, 1976, and requested the court to order child support payments of $150.00 per month. ¹ Reynolds wished to contest the complaint, but, due to inability to pay, was unable to secure the services of a private Fairbanks attorney. He applied to Alaska Legal Services Corporation for counsel, but because of his earnings of $9,000.00 during the past twelve months ² and the belief that he had a constitutional right to counsel, the agency refused to represent him. Reynolds was offered limited representation if he made a bona fide but unsuccessful effort to secure services from two more members of the Fairbanks private bar. After Reynolds had made additional unsuccessful attempts to secure counsel, Alaska Legal Services agreed to represent Reynolds for the sole purpose of securing appointed counsel.

The State of Alaska opposed petitioner's motion for appointed counsel, and it was denied by Judge Blair. Judge Hodges denied a subsequent application to petition for review of Judge Blair's order at public expense. Judge Hodges found that while Reynolds was indigent for the purposes of appointment of counsel to contest the paternity suit on its merits, he had sufficient funds, or access to them, to cover the $200.00 required to petition for review. On February 23, 1977, Judge Blair issued a written order denying petitioner's motion for appointment of counsel.

This petition for review of Judge Blair's written order alleges that the due process and equal protection clauses of the United States and Alaska Constitutions require appointment of counsel for an indigent who is defending a paternity suit prosecuted by the State of Alaska. Additionally, it is contended that Reynolds is entitled to counsel because he is a licensed barber who may lose his license as an outcome of the suit.

We have previously entered an order granting the petition for review. We note that in this case, the trial court's order involves a controlling question of law as to which there is substantial ground for difference of opinion, and immediate review may materially advance the ultimate termination of the litigation. ³ Postponement of review until normal appeal could result in injustice. We also find that the order sought to be reviewed is of such importance as to justify deviation from the normal appellate procedure by way of appeal and to require the immediate attention of the court. ⁴

We base our decision on the merits on the due process clause of the Alaska Constitution which provides in part that "No person shall be deprived of life, liberty, or property, without due process of law. . . ." ⁵ We therefore do not find it necessary to discuss the other legal arguments Mr. Reynolds has advanced in support of his petition.

In Otton v. Zaborac, 525 P.2d 537, 539 (Alaska 1974), we referred to due process rights, stating:

Due process is flexible, and the concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 163, 71 S.Ct. 624, 644, 95 L.Ed. 817, 848 (1951). (Justice Frankfurter concurring). "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363, 1369 (1914) (citations omitted). See Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973); Frontier Saloon, Inc. v. Alcoholic Beverage Control Board, 524 P.2d 657 (Alaska 1974). And, "(t)he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170 (1932).

The right to counsel in defense of criminal charges which may result in deprivation of liberty is well-established, ⁶ and we have held that the principles justifying appointment of counsel in criminal cases also apply to certain civil or quasi-civil proceedings. Thus, in Otton, we held that because of the possibility of a loss of liberty, due process of law required the appointment of counsel in a civil contempt proceeding for nonsupport.

The particular proceeding brought against Mr. Reynolds would not be likely to result in immediate incarceration, and no such relief has been requested by the state. Nevertheless, a parent of a child under sixteen years of age who willfully fails to furnish support, without lawful excuse, may be held criminally liable and subject to a fine of not more than $500.00 or imprisonment for not more than twelve months or both. ⁷ Thus, an indirect outcome of this suit could be a criminal charge. At a trial on such a charge, evidence introduced and admissions made without assistance of counsel in the paternity suit could play a significant role. Also, the support decree is enforceable by contempt proceedings which likewise could result in incarceration. In such contempt proceedings, the establishment of paternity and the amount of support payments would be res judicata.

The analogy to other cases in which we have held that a right to counsel exists is further strengthened by the fact that this proceeding is being prosecuted by the Attorney General rather than private counsel. The lawsuit was initiated by the Child Support Enforcement Agency, although the suit was brought in the name of the child's mother. ⁸

Moreover, a determination of one of society's most important relationships, that of parent-child, is at stake. In Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974), the court considered the right to counsel in a proceeding to remove custody of a child from its parents. The court stated:

The requisites of due process vary according to specific factual contexts. Here, for example, it is obvious that important rights turn on the manner in which findings of fact are determined, thus focusing attention on the safeguards surrounding the fact-finding process. When an agency of the state seeks to remove a child from the custody of parents who say they are qualified to rear the child, both the parents and the state have interest in accurate findings of fact and informed juvenile-court supervision. The state's interest in saving public money does not outweigh society's interest in preserving viable family units and the parent's interest in not being unfairly deprived of control and custody of a child. . . . The "civil litigation" generalization overlooks the nature of the rights in question and the relative powers of the antagonists. (citations omitted) ⁹

The court concluded that due process required the state to appoint counsel whenever an indigent parent, unable to present his or her case properly, faces a substantial possibility of the loss of custody or a prolonged separation from a child. ¹⁰

Approximately the same considerations are present in this suit, although it attempts to establish the parent-child relationship rather than sever it. That relationship is one of major importance, and its establishment carries with it numerous rights and obligations.

Indeed, in a paternity case, the issues may take on an even greater complexity than those involved in a custody termination proceeding. This consideration underscores the need for counsel. The court may be required to assess testimony pertaining to sexual conduct which is labeled as a crime by an Alaska statute. ¹¹ Decisions pertaining to blood tests and the proper examination of witnesses on complex scientific issues may also be necessary.

The significant effects of this litigation are ably summarized by petitioner:

The enforcement of the judgment, perhaps even through a criminal prosecution, is mandatory upon the State. 45 CFR 303.6. The judgment is nondischargeable in bankruptcy (11 USC § 35(a)(7)), even if the support is assigned to the State (42 USC § 656(b)). The judgment is enforceable without regard to State and federal execution exemptions laws (AS 09.35.080(b)(2)(A); 15 USC § 1673(b)(1)), is enforceable against moneys held by the federal government (42 USC § 659); and is enforceable without regard to the alienation restriction of stock issued under the Alaska Native Claims Settlement Act (43 USC § 1606(h)(1)). The adjudication makes the father's estate unavoidably subject to a family allowance to a maximum of $6,000 (AS 13.11.140), a homestead allowance to a maximum of $12,000 (AS 13.11.125), and a personal properly allowance to a maximum of $3,500 (AS 13.11.130). The adjudication also imposes liability for support (AS 25.20.030), including hospital care (AS 47.30.270), and General Relief (AS 47.25.240) for his child under the age of majority.

In addition to the obligation of support, rights of inheritance may be affected. ¹²

We also note that, as in Cleaver, this case is prosecuted by the state with all its resources and power. The same considerations as to the nature of the right in question and the relative power of the antagonists apply.

In light of the fact that paternity suits, in effect, are brought by the state, the significance of the parent-child relationship involved and the peculiar problems presented, we hold...