Opinion
5-2-1984
Previously published at 155 Cal.App.3d 262, 156 Cal.App.3d 462 155 Cal.App.3d 262, 156 Cal.App.3d 462 Glen MOWRER, Jr., Public Defender of Santa Barbara County, Petitioner, v. The SUPERIOR COURT of the State of California, For the County of Santa Barbara, Respondent, David P. LEDESMA, the County of Santa Barbara, Real Parties in Interest. Civ. 68838.
Glen Mowrer, Public Defender and Michael C. McMahon, Asst. Public Defender, for petitioner. Herbert M. Rosenthal and Russell B. Longaway, California State Bar Ass'n, as amicus curiae, San Francisco, for petitioner. Craig Smith, Santa Barbara, for respondent. Kenneth Nelson, County Counsel, Santa Barbara, for County of Santa Barbara, real party in interest.
Glen MOWRER, Jr., Public Defender of Santa Barbara County, Petitioner,
v.
The SUPERIOR COURT of the State of California, For the County of Santa Barbara, Respondent,
David P. LEDESMA, the County of Santa Barbara, Real Parties in Interest.
May 2, 1984.
As Modified on Denial of Rehearing May 31, 1984.
Hearing Granted July 12, 1984.
Glen Mowrer, Public Defender and Michael C. McMahon, Asst. Public Defender, for petitioner.
Herbert M. Rosenthal and Russell B. Longaway, California State Bar Ass'n, as amicus curiae, San Francisco, for petitioner.
Craig Smith, Santa Barbara, for respondent.
Kenneth Nelson, County Counsel, Santa Barbara, for County of Santa Barbara, real party in interest.
No appearance for David P. Ledesma, real party in interest.
OPINION AND ORDER
GILBERT, Associate Justice.
Petitioner is the Public Defender for the County of Santa Barbara. He seeks a writ of mandate to compel the superior court to vacate its order appointing an Assistant Public Defender to represent an indigent in a paternity action.
We grant the writ because a public defender is not required to provide representation to indigent defendants in paternity and child-support lawsuits initiated by the state. We also conclude that requiring attorneys in the private sector to provide such representation without compensation is a denial of equal protection of the law.
FACTS
The County of Santa Barbara filed a civil action against David P. Ledesma seeking to establish his paternity of a minor child and to require him to pay child support under Welfare and Institutions Code section 11350. On September 22, 1981, Ledesma claimed indigency, and moved to have the court appoint counsel to represent him. After a delay of nearly one year, the court appointed attorney Edward Pinhey to represent Ledesma. Pinhey resisted the appointment, and moved that the public defender be appointed.
On August 20, 1982, the court on its own motion vacated the appointment of Pinhey and appointed Barbara Beck, who was then an Assistant Public Defender, to represent Ledesma. The order of appointment specifically noted that Ms. Beck was not being appointed in her capacity as an Assistant Public Defender, but rather "in her capacity as a member of the bar." With the power of this incantation, the trial judge attempted to transform Ms. Beck from a Public Defender into a private attorney.
Petitioner asserted that the court was prohibited from appointing Ms. Beck, as public defender, to represent Ledesma. Additionally, petitioner argued that Ms. Beck, a criminal law practitioner, was not sufficiently experienced in civil law to provide competent assistance of counsel in a paternity suit, and that her appointment in the Ledesma case would significantly interfere with her obligation to provide representation to criminal defendants. On January 7, 1983, the court denied petitioner's motion to vacate the appointment of Ms. Beck.
DISCUSSION
California requires that, as a condition of receiving Aid to Families with Dependent Children (AFDC) benefits, a parent assign to the county his or her rights to child support from the absent parent and agree to assist, if necessary, in proving the paternity of any illegitimate children for whom aid is claimed. (Welf. & Inst.Code, § 11477.)
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 supported by their absent parents. Congressional studies also established that "the largest single factor accounting for the increase in the AFDC rolls is illegitimacy." 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 expended to support their children. (See Salas v. Cortez (1979) 24 Cal.3d 22, 29-32, 154 Cal.Rptr. 529, 593 P.2d 226.)
In Salas, the Supreme Court held that an indigent defendant in a paternity suit filed by the state is entitled to appointed counsel. Salas v. Cortez, supra, 24 Cal.3d at 34, 154 Cal.Rptr. 529, 593 P.2d 226. Salas left open the intriguing question of how to recruit such counsel. APPOINTMENT OF THE PUBLIC DEFENDER
Government Code section 27706 outlines the duties of a public defender. These duties include providing representation for indigents charged with contempt or criminal offenses, and providing representation in certain specified civil actions. The section does not authorize the appointment of public defenders in civil support and paternity actions. In the absence of statutory authorization the court has no jurisdiction to compel public defenders to serve in any capacity other than those enumerated in Government Code section 27706. (Erwin v. Appellate Department (1983) 146 Cal.App.3d 715, 718, 194 Cal.Rptr. 328.) The court may not appoint the county public defender to represent indigent defendants in civil actions to establish paternity and enforce support. (Littlefield v. Superior Court (1979) 98 Cal.App.3d 652, 160 Cal.Rptr. 175.)
The trial court may not circumvent section 27706 and the Littlefield holding by attempting to clothe Ms. Beck in a different suit for purposes of representing Ledesma. Our Supreme Court has stated that courts "... should not encourage imaginative ways to avoid the clear intent of the legislature ..." Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 779, 200 Cal.Rptr. 916, 677 P.2d 1206. APPOINTMENT OF ATTORNEYS FROM THE PRIVATE SECTOR
The trial judge must still face the task of appointing counsel other than the public defender to represent Ledesma. To avoid possible further writs and delay, and to give the trial judge guidance in appointing counsel for Ledesma while the inquiry is still focused on whether or not he is a parent--rather than a grandparent--we offer the following guidelines:
(1) The trial judge should first attempt to appoint competent counsel from those attorneys in the private sector who are willing to serve without compensation;
(2) If the trial judge is unsuccessful in obtaining such counsel, he may not appoint counsel who is unwilling to serve without compensation, because to do so would violate the equal protection clause.
Article 1, section 7 of the California Constitution provides in part that "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws." This provision serves to ensure that the rights of all "persons similarly situated with respect to the legitimate purpose of the law receive like treatment." (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645.)
Under the traditional test we determine whether the classification enacted by the legislature bears a "rational relationship" to a legitimate state purpose. (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784, 87 Cal.Rptr. 839, 471 P.2d 487, vacated on other grounds (1971) 403 U.S. 915, 91 S.Ct. 2224, 29 L.Ed.2d 692.) While it is a legitimate state purpose to provide representation for indigent defendants, that goal cannot be accomplished at the expense of a particular group of people. It is a denial of equal protection when the government seeks to charge the cost of operation of a state function conducted for the benefit of the public to a particular class. (Dept. of Mental Hygiene v. Kirchner (1964) 60 Cal.2d 716, 723, 36 Cal.Rptr. 488, 388 P.2d 720 (remanded 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753); subsequent op. 62 Cal.2d 586, 43 Cal.Rptr. 329, 400 P.2d 321.)
To permit the appointment of unwilling counsel to represent indigent defendants such as Ledesma, would be to single out the legal profession as a class to provide free representation to indigents in state-instituted paternity and child support actions. The attorney is in effect forced to give away a portion of his livelihood. As one commentator notes: "It is unfair to put on any working group the burden of providing for the needy out of its stock in trade. No one would suggest that the individual grocer or builder should take the responsibility of providing the food and shelter needed by the poor. The same conclusion applies to the lawyer. The lawyer's stock in trade is intangible--his time fortified by his intellectual and personal qualities, and burdened by his office expenses. To take his stock in trade is like stripping the shelves of the grocer or taking over a subdivision of the builder." (Cheatham, Availability of Legal Services: The Responsibility of the Individual and of the Organized Bar (1965) 12 U.C.L.A.L.L.Rev. 438, 444; see also, The Uncompensated Appointed Counsel System: A Constitutional and Social Transgression (1972) 49 Ky.L.Rev. 710, 715.
The privilege to practice law is a valuable property right. The right to engage in this vocation, or others, must not be predicated upon the relinquishment of constitutional rights. (Willner v. Committee on Character and Fitness (1963) 373 U.S. 96, 102, 83 S.Ct. 1175, 10 L.Ed.2d 224; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d 179.)
The courts that have rejected the attorney's claim of wrongful impressment look wistfully back upon a halcyon era when the legal profession, without any hesitation, stepped forward to provide free representation for indigents. Thus, it is concluded that "[r]epresentation of indigents is a traditional professional obligation of the bar, which the lawyer undertakes when he becomes a member of the bar." (United States v. Dillon (9th Cir.1965) 346 F.2d 633, 636, cert. den., 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469; see also Rowe v. Yuba County (1860) 17 Cal. 62.)
Some commentators have suggested that this traditional view of the past is inaccurate. In 1980, Harvard law professor David Shapiro examined a number of British and American eighteenth and nineteenth century cases involving appointment of counsel, and addressed the question of a court's authority to compel an unwilling private attorney to represent an indigent. He concluded: "To justify coerced, uncompensated legal services on the basis of a firm tradition in England and the United States is to read into that tradition a story that is not there. The occasions on which lawyers have given their time and abilities at little or no cost--either on their own initiative or at a court's request--are surely beyond counting. And the sense that doing so is a fulfillment of a high professional aspiration has often been expressed. [Fn. omitted.] But the notion that an unwilling lawyer could be forced to serve without fee, though not without its advocates over the centuries, seems never to have found universal acceptance. At least before the latter part of the nineteenth century, that notion is even harder to document in particular instances than it is to support with general pronouncements ...." (Shapiro, The Enigma of the Lawyer's Duty to Serve (1980) 55 N.Y.U.L.Rev. 735, 753.)
Luther M. Swygert, Senior Judge, United States Court of Appeals for the Seventh District, in his discussion of the history of the right to counsel in civil cases in England from 1216 to the present states, "Even if an indigent civil plaintiff gained access to the courts, judges rarely exercised their power to appoint counsel. Aside from the sergeants-at-law, who were officers of the court in the truest sense, there was substantial doubt about a judge's power to compel an unwilling private lawyer to donate his services. While the basis of objections by lawyers to representation of the poor was clearly pecuniary, the failure of the English judiciary to enforce the letter and spirit of the 1495 statute was problematic. Class antagonism may have played some part, but the English trial judges were also concerned about abuses by bad faith claimants and had an understandable opposition to a greatly increased work load. [Fns. omitted.]" (Swygert, Should Indigent Civil Litigants in Federal Courts Have a Right to Appointed Counsel? (1982) 39 Wash. & Lee L.Rev. 1267, pp. 1270-1273.) In 1949 the British government enacted legislation providing funds for legal counsel appointed to represent the poor in civil matters. (Id. at 1273.)
The uncompensated impressment of attorneys is occasionally justified on the notion that 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 (1978) 82 Cal.App.3d 191, 196, 146 Cal.Rptr. 880.)
In Payne v. Superior Court (1976) 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565 our Supreme Court held that an indigent, incarcerated defendant who is sued civilly has a constitutional right to representation. In footnote number 6 at page 920 the court said "The 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).)"
The dicta in Payne did not address the constitutional question of attorney conscription without compensation. As the late Justice Hopper remarked in his dissent in County of Fresno v. Superior Court, supra, 82 Cal.App.3d at p. 199, 146 Cal.Rptr. 880. "The 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." That is what we attempt to do in the instant case.
The myth that the court has the power to compel an attorney to provide free legal services was laid to rest in the state of Indiana some 130 years ago in the frequently cited case of Webb v. Baird (1854) 6 Ind. 13. The Indiana Supreme Court rejected the contention that the bar, being granted special privileges, was under a noblesse oblige to provide uncompensated services.
"The idea of one calling enjoying peculiar privileges, and therefore being more honorable than any other, is not congenial to our institutions. And that any class should be paid for their particular services in empty honors, is an obsolete idea, belonging to another age and to a state of society hostile to liberty and equal rights." (Webb v. Baird, supra, 6 Ind., at p. 16.)
Today's attorney occupies an even less privileged position than in the past. Recent years have witnessed the removal of a number of obstacles designed by the legal profession to prevent competition (e.g., see Bates v. State Bar (1977) 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810; Goldfarb v. Virginia State Bar (1975) 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572; Jacoby v. State Bar (1977) 19 Cal.3d 359, 138 Cal.Rptr. 77, 562 P.2d 1326); there exists movement toward demystification of legal pleadings and forms (e.g., see Civ.Code, § 4550; Code Civ.Proc., §§ 527.6, 541 et seq.; Cal.Rules of Court, rule 982.1); an express state policy has been enacted to increase access to small claims court (Code Civ.Proc., §§ 116.1 and 116.2); and state policy has encouraged arbitration as an alternative to judicial resolution of disputes. (Madden v. Kaiser Foundation Hospital (1976) 17 Cal.3d 699, 706, 131 Cal.Rptr. 882, 552 P.2d 1178; see also Sander, Varieties of Dispute Processing (1976) 70 F.R.D. 111; Kline, Law Reform and the Courts: More Power to the People or to the Profession? (1978) 53 State Bar J. 14, 20-21.)
Though the special preserves of the legal profession have been reduced in recent years, the cost of running a law office has increased. In discussing the venerable case of Rowe v. Yuba County, supra, 17 Cal. 62, which held that in the absence of a statute, an attorney appointed by the court to represent an indigent person is not entitled to compensation, the dissent in County of Fresno v. Superior Court, supra, 82 Cal.App.3d at p. 202, 146 Cal.Rptr. 880, contains the following observation: "The attorney at the time of Rowe had virtually no overhead. 'He did not have to purchase any complicated office equipment. His library expenses were almost nil. He had no staff to pay. Rent was low. There was no such thing as telephone, jet transportation, and all the other enormous expenses that every busy practitioner encounters today.' (Hunter, Slave Labor in the Courts--A Suggested Solution (July-Aug. 1969) 74 Case & Com. 3, 8.) To make a decent living today, the attorney has to handle a tremendous number of cases--much more than was required at the inception of the rule of Rowe. Furthermore, expanding concepts in law have increased the volume of assignments, the complexity of the issues involved, and a mushrooming of the duties involved in an appointed case...."
In addition to constitutional and historical reasons, there are strong policy considerations that dictate against a program of compelled altruism. It is commendable that many lawyers in this state participate in a variety of voluntary pro bono programs. We admire and encourage these noble efforts and hope they increase, but we fear there is a danger that impressment of attorneys to handle the defense of paternity and child support matters may dampen their enthusiasm to participate in existing pro bono programs. This, of course, would injure these worthwhile programs, many of which are in their infancy and barely surviving on meager resources.
Just as compelled representation without compensation denies the attorney equal protection of the law, it may also deprive the indigent of effective assistance of counsel. In the instant case, for example, petitioner argued that the attorney appointed by the court to represent Ledesma lacked civil experience. Even when an attorney has the requisite experience, we have serious concerns whether such an attorney drafted into providing free services to an indigent may be able to provide the same attention normally provided to a paying client. We would hope that every attorney would derive satisfaction from a job done well, but it may be unrealistic for us to expect satisfaction to constitute the sole motivation for an attorney to expend the maximum effort. The more conscientiously the attorney fights for the indigent's cause, the greater the financial loss suffered by the attorney. The attorney may also be distracted by concerns over unfinished business at the office on the one hand, and the possible contempt citation hovering in the background on the other.
Some attorneys may find shortcuts particularly seductive. In a close case, an attorney may encourage an indigent defendant to stipulate to judgment, the effect of which would be to avoid the cost and time involved in a full trial. This may occur not because the attorney has any evil motive, but only because he may feel it too onerous to proceed with discovery and a full-scale trial in a case that has a limited chance of success. On the other hand, in a marginal case, an attorney might feel compelled to go through a full-scale trial for fear of being accused of giving less than 100 percent effort to the indigent defendant. In either event, the indigent suffers. We are not suggesting that these problems will occur in all cases, but we are concerned that by requiring attorneys to work for nothing, we may unwittingly be creating a form of second-class representation. Surely, this is not what the Supreme Court had in mind when it ruled that paternity and support matters involve issues of constitutional magnitude, thereby mandating the appointment of counsel. (Salas v. Cortez, supra, 24 Cal.3d at pp. 27-29, 154 Cal.Rptr. 529, 593 P.2d 226.) It is obvious the Supreme Court intended indigent defendants to have the benefit of effective assistance of counsel.
The Court of Appeal in Luke v. County of Los Angeles (1969) 269 Cal.App.2d 495, 499, 74 Cal.Rptr. 771 stated: "Effective representation today requires counsel experienced in the particular field of law involved. [Citations.] Yet to acquire this experience and maintain an acceptable level of competency in a given field of the law demands continuous study, application and practice. We think the days are past when a lawyer could be expected to do this solely as public service. If society is to demand representation by counsel in an expanding variety of proceedings and to insist on a high level of competency in the performance of such representation, then counsel should be paid. Is it reasonable today to attach to a statute which provides for court-appointed counsel in a custodial proceeding an interpretation that appointed counsel will render his services for nothing? We think not."
The county and state public defender programs were created in response to the concern over the poor quality of legal services donated to indigent criminal defendants. (Erwin v. Appellate Department, supra, (1983) 146 Cal.App.3d at p. 719, 194 Cal.Rptr. 328; Cuff, Public Defender System: The Los Angeles Story (1961) 45 Minn.L.Rev. 715; see also Ervin, Uncompensated Counsel: They Do Not Meet the Constitutional Mandate (1963) 49 A.B.A.J. 435.) To compel attorneys to provide representation without compensation in civil cases is to subvert the goal of providing qualified legal representation to the poor in paternity cases. It also creates a nightmare.
By what method shall the court exercise its discretion in appointing counsel so that the burden will be fairly distributed among members of the bar? We assume the court will appoint only competent counsel. Shall this then be a reward for incompetence, and a punishment for competence? Are litigation lawyers the only ones to be selected? Shall the struggling sole practitioner bear the same responsibility as the senior partner in a 200-person law firm supported by a lucrative corporate practice?
We cannot envision a method of alleviating the trial courts' impossible burden in selecting counsel. If attorneys are to be chosen from a lottery, for example, who should be included? Some of the potential nominees that come to mind when we conjure up a list include the following:
(1) attorneys who live, but do not work in the particular jurisdiction involved;
(2) attorneys who work in the particular jurisdiction involved, but do not belong to the local bar association;
(3) attorneys whose offices are located in other judicial districts, but who belong to the local bar association of the particular jurisdiction involved; (We hesitate to discuss the multitudinous bar associations in existence whose members share such common interests as speciality, ethnicity, geographic location);
(4) attorneys employed by public agencies other than the public defender; (Here the court must bear in mind statutory prohibitions as well as possible conflicts of interest.);
(5) attorneys licensed to practice law, but who are engaged in other pursuits such as business, teaching or politics;
(6) attorneys who serve as pro tem judges, or participate in volunteer pro bono programs; (Should they be excluded from the lottery? How does one determine the extent of their participation in these programs?).
We leave it to others to contemplate even greater betes noires by adding new combinations and categories to our list.
At the root of the problem is the lack of state-appropriated funds with which to compensate defense counsel in these matters. Constitutional rights are not measured or limited by monetary considerations. "... [V]indication of conceded constitutional rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them." (Watson v. Memphis (1963) 373 U.S. 526, 537, 83 S.Ct. 1314, 1321, 10 L.Ed.2d 529; see also, Arreola v. Municipal Court (1983) 139 Cal.App.3d 108, 113-114, 188 Cal.Rptr. 529.)
When the state undertakes to prosecute a paternity or child support action against an indigent, it must bear the expenses necessary to comply with the provisions of the state and federal Constitutions. These include, if need be, the compensation of counsel.
Welfare and Institutions Code section 11475 was designed to recoup public funds expended on behalf of AFDC recipients. It is a creature of the Legislature. It is therefore incumbent upon the Legislature to provide the financial support necessary to meet the requirements that the statute sets. If the state does not wish to appropriate funds sufficient to pay for appointed counsel, it cannot expect the legal profession to fill this void by subsidizing a cost that should be borne by the tax-paying public.
Two constitutional rights are in conflict here. Indigent defendants are constitutionally entitled to legal counsel in state-initiated paternity actions, but it is a denial of equal protection of the law to require a particular class of persons to pay for the cost of this representation. We would create the ultimate irony if, in our effort to provide justice to the indigent litigant, we were to so patently deny justice to the indigent's attorney.
We are mindful that County of Fresno v. Superior Court, supra; County of Los Angeles v. Superior Court (1980) 102 Cal.App.3d 926, 162 Cal.Rptr. 636; and County of Tulare v. Ybarra (1983) 143 Cal.App.3d 580, 192 Cal.Rptr. 49, reached the conclusion that appointed counsel in civil matters must serve without compensation. These cases are not persuasive because they failed to consider the constitutional policy issues discussed in this opinion.
Let a writ of mandate issue compelling respondent superior court to vacate its order of August 20, 1982, appointing the Assistant Public Defender for the County of Santa Barbara as counsel for David Ledesma. Let said writ further provide that the respondent court is ordered to appoint qualified counsel who is willing to represent Ledesma without compensation within 30 days after the finality of this opinion. If the court is unsuccessful in so appointing counsel, the court may not proceed with the action unless the county or state provides reasonable compensation for appointed counsel for David Ledesma.
We assume plaintiff, as it deems appropriate, will move the court to either dismiss the action without prejudice or to stay the action until the appointment of counsel in a manner consistent with the views expressed in this opinion. Should plaintiff fail to so move, we leave to the discretion of the trial court whether to dismiss the action without prejudice on its own motion. The court in County of Tulare v. Ybarra, supra, 143 Cal.App.3d at 585, 192 Cal.Rptr. 49, concluded that there is no authority for the trial court to dismiss a state-instituted paternity action where the alleged father claims indigency and no public funds are available to pay for appointed counsel. Here, where conflicting constitutional issues clash, dismissal may be compelled.
The inherent powers granted to the trial court by section 128 of the Code of Civil Procedure includes the authority to "control its process and orders so as to make them conformable to law and justice." This provision gives the trial court the power to dismiss state-instituted paternity actions when required by application of the principles enunciated in this opinion.
We recognize that important rights of children as well as the state are involved in the prosecution of paternity actions. (Salas v. Cortez, supra, 24 Cal.3d at pages 33-34, 154 Cal.Rptr. 529, 593 P.2d 226.) We do not wish to place insuperable barriers in the way of the state so as to prevent the prosecution of these actions, even though it is unlikely that indigent defendants would be able to pay child support, but lawsuits, whether criminal or civil, are subject to the constitution. For example, in County of Los Angeles v. Soto (1984) 35 Cal.3d 483, 492, footnote 4, 198 Cal.Rptr. 779, 674 P.2d 750, our Supreme Court pointed out that "[e]ven the stability of family relationships, however, cannot outweigh the defendant's right to set aside a judgment entered on the basis of an involuntary waiver of the right to any hearing on the question of paternity."
We recognize that under the Social Security Act, federal funding is not available to compensate counsel appointed to represent indigent defendants in paternity cases brought by the state. (45 C.F.R. § 304.20(b)(2) (1982).) Our holding does not render the state's enforcement of child support ineffective so as to deprive it of federal funds for aid to families with dependent children. Nor does it place state initiated paternity actions against indigent defendants in a condition of permanent suspension.
We assume state agencies will continue to diligently enforce these actions against non-indigent defendants. Moreover, the Legislature has the power to enact appropriate legislation to allow paternity actions against indigents to go forward. It can simply appropriate state funds to pay private counsel. Such a funding scheme would not run afoul of federal regulations, and thus would not jeopardize the state receiving federal funding.
STONE, P.J., and ABBE, J., concur. --------------- 1 Section 11350 obligates noncustodial parents to reimburse the county for public assistance given to their minor children. 2 The governor's powers were more potent. He appointed Ms. Beck to the Santa Maria Municipal Court bench. She now has the unique opportunity to view this problem from a different and safer perspective. 3 Note (1976) 52 Wash.L.Rev. 169, 170-172. 4 Id., at 170, n. 19. 5 The State Bar of California, Office of Legal Services Voluntary Legal Services Program offers a booklet entitled "Coming to the Aid of Legal Services." This booklet offers profiles of some local bar pro bono programs to exemplify the variety and scope of ongoing programs throughout the state. The focus in some cases is medium urban, large urban, small to medium rural. The programs profiled are Amicus Publico, Orange County; Fresno County Voluntary Legal Services Program; Napa County Legal Assistance Agency; Pro Bono Publico Program, Riverside County; Public Counsel, Los Angeles County; Public Service Law Corporation, Riverside County; Seniors' Law Project, Kern County; Ventura Free Legal Clinic, Ventura County; Voluntary Legal Services Program, Alameda County; Volunteer Legal Services Program, Santa Barbara County. We also recognize that lawyers as well as others provide financial assistance to public interest law firms such as the Pacific Legal Foundation in Sacramento, and Public Advocates in San Francisco. 6 In 1981 the Reagan Administration requested that Congress eliminate funding for Legal Services Corporation. Congress responded by cutting funding the next fiscal year 1982 by 25 percent. Although there has been some restoration of funding, these programs even when fully funded were only able to provide legal assistance to 20 percent of the estimated 30 million poor persons in this country. (See Swygert, supra, at p. 1267.) In the wake of inadequate funding in legal assistance programs, it becomes particularly urgent that members of the bar intensify their efforts to carry a greater portion of the responsibility to provide representation to the poor. 7 We feel much like The Lord High Executioner describing his list of potential victims, whose "Loss will be a distinct gain to society at large," who concludes that "The task of filling up the blanks I'd rather leave to you. But it really doesn't matter whom you put upon the list. For they'd none of 'em be missed--they'd none of 'em be missed!" The Mikado, Act I, Sir William S. Gilbert. 8 This is hardly a novel suggestion. On the local level, for example, funds are available for private counsel to represent indigent criminal defendants in cases where the public defender has a conflict. (See Penal Code section 987.2.)