The issue is whether an indigent defendant in a paternity action has a right to appointed counsel. We hold prospectively that he does have such a right.
On November 2, 1971, a complaint was filed against Kenneth Artibee under The Paternity Act
1
in Cheboygan Circuit Court. Because the complainant has been determined eligible for aid to dependent children benefits, a Cheboygan County prosecutor represents her in the conduct of these proceedings. It is not disputed that a warrant issued upon the complaint and that Artibee was arrested. He sought the assistance of counsel, and Attorney Jerry L. Sumpter entered a special appearance in his behalf at the August 15, 1973 arraignment for the purpose of requesting appointment of counsel оn the grounds of indigency. This motion was denied. A complaint for superintending control was filed in the Court of Appeals requesting that the trial court be ordered to appoint counsel if Artibee were to establish indigency. The opinion of the Court of Appeals denying relief is reported at
Const 1963, art 1, § 17, embodies this state’s guarantee of due process of law. An analysis of what process is due in a particular proceeding must begin with an examination of the nature of *57 the proceeding and the interests which may be affected by it. Paternity proceedings are quasi-criminal. The interests of the individuals affected are substantial, and the nature of the proceedings is sufficiently complex so as to require counsel to insure a fair trial.
The statute requires that the county prosecute the action if the complainant is without the means to employ an attorney. 2 Both Federal and state law provide a monetary incentive to prosecute. 3 A defendant’s interest in being free from bodily restraint is directly affected from the beginning of the proceedings, since a warrant may issue upon the filing of the complaint. Upon arraignment, a defendant’s failure to make the required recognizance or cash deposit may result in his commitment to the county jail. 4 Although the immediate consequence of the paternity judgment is an order of filiation and for support, the order is enforceable by contempt proceedings. Penalties for contempt include up to one year in the county jail or state prison or until the amount due is fully paid. 5
Not only will an indigent defendant be less likely to remain free from bodily restraint, but also an uncounseled defendant will be less able to defend himself at trial against an untrue allegation of paternity. In contrast with support ordered following divorce, there is often a sharply disputed
*58
factual question concerning the relationship of the parties to a paternity action. The object of the proceedings is to determine with finality the obligation of support, and not merely to determine on the basis of present circumstances an apprоpriate level of support. An unrepresented paternity defendant may be unaware of his obligation to file notice of alibi if he intends to rely upon that defense.
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He may be unaware of his statutory right to demand blood tests or unable to analyze the legal implications of the results. In
People v Stoeckl,
"If bastardy proceedings are criminal to that point where the statutory provisions in regard to the right to waive a jury in criminal cases prevail, then the proceedings should be criminal to that point where the prohibition against commenting on defendant’s failure to testify should apply.
"Justice Smith’s opinion on this question could be accepted if this Court would adopt the principle that once the criminal procedural phases of bastardy, such as warrant, bail, et cetera, have served their purposes and the trial commenced, then all criminal aspects disappear and the case should be tried as civil in its nature._
Another consideration is that the determination of paternity will be res judicata for the next 18 *59 years during which the defendant faces a continued threat of arrest and compelled appearances in court to explain any delinquencies, and the threat of imprisonment should the court not be convinced that fаilure to pay is justified.
The fact that many procedural safeguards attendant to criminal trials have been made applicable to paternity proceedings, and the reality that prosecution is often undertaken at public expense, constitute recognition that the outcome is of great importance both to the defendant and to the state. The Legislature has expressed its opinion that the complainant and her child would not receive a fair trial without benefit of counsel. The same consideration of fundamental fairness should apply to the defendant when faced with the power of the state arrayed against him.
Our decision today is to be applied prospectively to trials taking place on or aftеr the date of publication of this opinion.
The Court of Appeals is reversed and this matter is remanded to the trial court for proceedings consistent with this opinion. The writ of superintending control will issue if necessary. No costs, a public question being involved.
(to afRrm). Pursuant to The Paternity Act, 1 Kenneth Artibee was brought before the Cheboygan Circuit Court on August 15, 1973. With counsel appearing specially, plaintiff claimed indigency and requested the appointment of an attorney at county expense. In denying Mr. Artibee’s request (but reserving discretion to appoint coun *60 sel if the interest of justice required), the circuit judge said:
"In this instance we’re not depriving a man of freedom. He’s not going to jail in this particular instance. There is no possibility that he is going to jail. This proceeding is to determine the parentage of a child. He does not have to testify. He can request a blood test to disprove paternity, and which cannot be used to prove paternity. The burden of proof is incumbent upon the petitioner. We’re not placing the man in jeopardy as to any preclusion of his freedom. So I’m not going to appoint counsel at this time. If the trial should develop where it would appear, in the interest of justice, to this Court, thаt legal counsel would be necessary to be appointed for him, in the interest of justice, at that juncture, I would appoint counsel. At this juncture, I will not appoint counsel.” (Emphasis added.)
Through present counsel, plaintiff also filed a complaint for superintending control in the Court of Appeals. 2 On October 5, 1973, the Court of Appeals ordered the circuit judge to show cause why Artibee should not be granted the relief sought. The specific question was: Do defendants in paternity suits have a right to counsel under either the United States Constitution or the Constitution of the State of Michigan, thereby requiring the appointment of counsel for an indigent defendant?
The Court of Appeals held that an indigent defendant had no such right. Affirming the trial court, Judge Gillis said:
"The direct result of a рaternity proceeding is an order of filiation (MCLA 722.717; MSA 25.497), establishing the father-child relationship and specifying the sum the father is required to pay for his child’s support *61 and education. This is the only result of a paternity proceeding and it is wholly consistent with the proceeding’s objectives.”54 Mich App 445 .
The Court determined that procedural due process did not mandate "a right to counsel in paternity рroceedings”.
We granted leave to appeal on December 23, 1974. The case became ready for argument and was heard on April 5, 1976. In the interim, plaintiff’s counsel filed two motions for costs, expenses and attorney fees, the first without an affidavit of indigency because Mr. Artibee’s whereabouts were unknown. That motion was denied. The second is held in abeyance pеnding final disposition of the case (order of March 31, 1976).
Because of the sweeping implications of our decision, which could cut across many fields of civil jurisprudence, this analysis will be limited to the facts now before the Court and the specific proceeding involved.
I.
Much argument centers on whether a paternity act proceeding is civil, quasi-civil or quasi-criminal. Plaintiff’s сounsel colorfully states his opinion that "[pjroper labeling is often nauseating”. My colleagues call the proceedings "quasi-criminal” and would appoint counsel based on a "consideration of fundamental fairness” because Mr. Artibee is "faced with the power of the state arrayed against him”.
These proceedings do not require the application of
Argersinger v Hamlin,
It is suggested in the thoughtful and comprehensive brief of amicus curiae Legal Services of Eastern Michigan that Argersinger does not specifically exclude property rights from its due process requirements for counsel. It speaks only tо imprisonment for an offense. The reasoning employed by amicus opens wide the door to appointment of county-paid counsel in many other types of civil cases. It seems wise at this juncture to stay within the United States Supreme Court mandates in Argersinger rather than add to them in Michigan.
Such an important matter requires more study and planning than afforded in this case if we are to avoid setting off an avalanche by moving one key stone.
The focus of the act is an important ingredient to be considered.
In a separate opinion in
Reist v Bay Circuit Judge,
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We have analyzed the nature of these proceedings. In
Cross v People,
"The complainant is, in all cases, a witness; no costs follow the judgment, and the issue to be tried is the paternity of the child with which the complainant is pregnant, or of which she has been delivered. No judgment known to the common law follows the verdict, but, if found guilty, the defendant is adjudged to be the father of the child, and made chargeable with its maintenance with the assistance of the mother, in such manner as the court shall order * * * .”
Justice Campbell in
Semon v People,
In
Sutfin v People,
Similar is
Waite v Washington,
Justice Campbell wrote the decision of
In the Matter of Frank Cannon,
"Bastardy proceedings, although of a mixed character, involve no indictable offence on which a conviction could be had in their course, and they are not criminal proceedings in the proper sense of the term. It is not pretended that any demand of extradition could be made on such a charge. Our own decisions have settled the character of such proceedings as not criminal. Cross v People,8 Mich 113 ; Semon v People,42 Mich 141 ; Sutfin v People,43 Mich 37 ; Waite v Washington,44 Mich 338 ”.
The case of
People v Harty,
The alleged father in
Cady v St Clair Circuit Judge,
*65 "It is true that such proceedings are special and statutory, and are strictly neither civil nor criminal in nature. But it is contemplated, and is essential, that control be had of the person of the respondent. A recognizance is taken as in criminal cases, and is forfeited, as in criminal cases, for nonappearance. For a failure to recognize he may be committed.”
Although summons may issue to bring a defendant in a paternity action before the court, 6 there is understandable reluctance on the part of some alleged fathers to appear without the issuance of a warrant. In order to carry out the public policy, the court must have control of the person alleged to be the father. It is for this purpose that a warrant may issue. Respondent is not brought before the court for punishment or sentence of confinement but solely to determine the question of paternity and related responsibilities.
The defendant in
People v Gill,
Two cases which arose out of the prior act are cited by my colleagues to emphasize its criminal aspect. One issue in
People v Stoeckl,
Under the revised act, the jury provisions were clarified. In
Romain v Peters,
Although the cases are not uniform, some themes emerge. Most important is that these actions are not punitive. The goal is to have the parents rather than the state support the child. The state has a legitimate interest in insuring that the individuals fulfill parental obligations.
II.
Plaintiffs case rests heavily upon what is perceived to be the criminal aspects of the case. Particular emphasis is placed upon two factors. (1) A warrant was issued and plaintiff was arrested and brought before the court. Although he was not placed in confinement, he could have been had the judge ordered a recognizance and had the then defendant failed to furnish it or had he forfeited it. 7 (2) If an order of filiation had resulted and if support had been ordеred and if Mr. Artibee violated the order, he could in the future have been brought before the court for contempt proceedings.
*67 These arguments are primarily based upon the assumption that the defendant might not comply with a court order. Paternity is not an "offense” for which one "may be imprisoned”.
It is important, moreover, to consider and to place in balancе the characteristics of a civil proceeding present in a paternity action. Among civil aspects are:
1. Confinement or costs are excluded as possible verdicts.
2. Focus is on the support of the child and the public welfare in keeping the child from becoming a public charge.
3. No jury is required unless requested by a party.
4. A vote of five from a jury of six is required for a verdict of paternity.
5. A verdict is based upon the standard of "preponderance of the evidence” rather than "beyond a reasonable doubt”.
6. There is no presumption of innocence.
7. A defendant could not be tried in a court of criminal jurisdiction only.
8. A defendant cannot be extradited.
9. A defendant cannot be fingerprinted or photographed, nor have his name listed in criminal records.
10. Settlement may be effected.
11. The child may be conceived and born in another state and both mother and child reside out of the state but the trial can take place in the Michigan сounty where the alleged father resides.
12. Summons may issue instead of a warrant.
III.
In the final analysis, a paternity action under *68 the current statute is primarily civil in nature. It is a special legislative creation.
In this case, there was no confinement and the judge assured plaintiff that there would be none. If the interest of justice required, he would appoint an attorney.
The purpose of most civil cases is to establish financial, or contractual obligations. Thеse proceedings are to bring Mr. Artibee before the court to determine whether he is the father of the child, and if so, what, if any, financial support should be ordered.
The arguments in this case have gone well beyond the point of law which the facts present.
I would decide the case on the facts before us and affirm the result reached by the Court of Appeals.
Notes
MCLA 722.711 et seq.; MSA 25.491 etseq.
People v McFadden,
MCLA 722.714(c); MSA 25.494(c).
As a cоndition to receipt of Federal aid to families with dependent children (AFDC) moneys, the state must implement a plan to establish the paternity of any child born out of wedlock on behalf of whom aid is claimed. 42 USC 602a(27), 654(4). The costs of such a program are subsidized by Federal funds. 42 USC 655. Once paternity is established, support payments made by fathers on behalf of children receiving public assistаnce are transmitted by the Friend of the Court to the state pursuant to MCLA 722.718; MSA 25.498.
MCLA 722.714(e); MSA 25.494(e).
MCLA 722.719(c); MSA 25.499(c).
MCLA 722.711 et seq.; MSA 25.491 etseq.
In the same manner, counsel is not appointed for many petty offenders in district court.
MCLA 722.712; MSA 25.492.
Although the
Sutñn
and
Waite
cases describe the act as primarily protecting the public interest, the Court in
People, ex rel Pangborn v Smith,
MCLA 722.714(e); MSA 25.494(e).
See Cady, supra.