Petition — County of Ventura v. Tillett

82-1008 QEC 15 1982

ALEXANDER L. STEVAB

CLERK

IN THE SUPREME COURT OF THE!

UNITED STATES

October Term, 1982

No.

COUNTY OF VENTURA,

Petitioner,

or

JOYCE TILLETT,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

PETITION FOR WRIT OF CERTIORARI

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief

Assistant Attorney General

-- Criminal Division

S. CLARK MOORE,

Assistant Attorney General

NORMAN H. SOKOLOW,

Deputy Attorney General

ANDREW D. AMERSON,

Deputy Attorney General

and Attorney of Record

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2156

Attorneys for Petitioner

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1982

No.

COUNTY OF VENTURA,

Petitioner,

Vv.

JOYCE TILLETT,

Respondent,

PETITION FOR WRIT OF CERTIORARI

QUESTIONS PRESENTED

1. Before an unrepresented indigent

defendant who has already been served with

a summons and complaint in a suit filed by

a county for child support alone, when

paternity is not at issue, can enter into

a stipulated judgment to pay child

support, does the Fourteenth Amendment

first require the holding of a prejudgment

judicial hearing at which such defendant

l.

must waive the right to notice and the

right to a hearing on the merits?

2. Does the Fourteenth Amendment

require the appointment of counsel for

indigent defendants in civil suits for

child support alone when paternity is not

at issue and when a county either appears

as the plaintiff or represents the

interests of the child?

TABLE OF CONTENTS

PAGES

QUESTIONS PRESENTED 1

TABLE OF CONTENTS 3

TABLE OF AUTHORITIES 5

INTRODUCTION 12

OPINIONS BELOW 12

JURISDICTION 13

CONSTITUTIONAL PROVISIONS

INVOLVED 14

STATUTORY PROVISIONS

INVOLVED 15

STATEMENT OF THE CASE 18

REASONS WHY THE PETITION FOR

WRIT OF CERTIORARI SHOULD BE

GRANTED 21

SUMMARY OF ARGUMENT 21

ARGUMENT 24

IN CIVIL SUITS FILED BY A COUNTY

FOR CHILD SUPPORT ALONE AND NOT

TO DETERMINE PATERNITY, THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT REQUIRES NEITHER THE

APPOINTMENT OF COUNSEL FOR

INDIGENT DEFENDANT PARENTS NOR

TABLE OF CONTENTS

(Continued)

PAGES

ARGUMENT

A PREJUDGMENT HEARING ON THE

ISSUE OF THE WAIVER OF THE RIGHT

TO NOTICE AND HEARING BEFORE A

STIPULATED JUDGMENT RESOLVING

THE CASE CAN BE ENTERED 24

A. Stipulated Judgments for

Child Support Meet Consti-

tutional Requirements for

Due Process 29

B. The Due Process Clause of

the Fourteenth Amendment

Does Not Require Appoint-

ment of Counsel for

Indigents in Civil Suits

for Child Support Alone 44

CONCLUSION 59

APPENDIX A 62

APPENDIX B 64

APPENDIX C 85

APPENDIX D 87

TABLE OF AUTHORITIES

CASES

Argersinger v. Hamlin,

407 U.S. 25, 32 L.Ed.2d 530,

92 S.Ct. 2006

Artibee v. Cheboygan Circuit

Judge, 397 Mich. 54,

243 N.W.2d 248

Billingsley v. Lincoln National

Bank, 271 Md. 683,

320 A.2d 34

Boddie v. Connecticut,

401 U.S. 371, 28 L.Ed.2d 113,

91 S.Ct. 780 25,27,

Buckner v. Carmack,

272 So.2d 326

Chittester v. LC-DC-F Employees

of G.E. Federal Credit Union,

384 F.Supp. 475

Colonial Bank and Trust Co. v.

Cahill, 424 F.Supp. 1200

Copeland Planned Futures Inc. v.

Obenchain, 9 Wash.App.32,

510 P.2d 654

County of Los Angeles (Holley) v.

Superior Court,

102 Cal.App.3d 926,

‘162 Cal.Rptr. 636

PAGES

46-47

45

36,37

28,40

37

37

37

37

25-26

TABLE OF AUTHORITIES

(Continued)

CASES PAGES

County of Ventura v. Castro,

93 Cal.App.3d 462,

156 Cal.Rptr. 66 25,26,29,31,41

Delaware v. Prouse,

440 U.S. 648, 59 L.Ed.2d 660,

99 S.Ct. 1391 27

Department of Health and

Rehabilitative Services v.

Heffler (Fla. Sup. Ct.)

382 So.2d 301 45

Douglas v. California,

372 U.S. 353, 9 L.E4.24 8ll,

83 S.Ct. 814 47

Gagnon v. Scarpelli,

411 U.S. 778, 36 L.Ed.2d 656,

93 S.Ct. 1756 28,47

Hamilton v. Snodgrass

(Ia. Sup. Ct.) N.W.2d

9 Fam L.Rptr. 2065 45

In re Gault, 387 U.S. l,

18 L.Ed.2d 527,

87 S.Ct. 1428 27

In re Liu,

273 Cal.App.2d 135,

78 Cal.Rtpr. 85 58

In re Love,

11 Cal.3d 179, 113 Cal.Rptr. 89,

520 P.2d 713 28

6.

TABLE OF AUTHORITIES

(Continued)

CASES PAGES

In re Marriage of Carter,

19 Cal.App.3d 479, 489,

97 Cal.Rptr. 274 3a

In re Marriage of Utigard,

126 Cal.App.3d 133,

178 Cal.Rptr. 546 53

In re Shelley,

197 Cal.App.2d 199,

16 Cal.Rptr. 916 58

Irmco Hotel Corp. v. Solomon,

27 I11.App.3d 225,

326 N.E.2d 542 37,38

Isbell v. County of Sonoma,

21 Cal.3d 61, 145 Cal.Rptr. 368,

577 P.2d 188 25,26,29,

30,39,41

Johnson v. Zerbst,

304 U.S. 458, 82 L.Ed. 1461,

58 S.Ct. 1019 26

Kyne v. Kyne,

38 Cal.App.2d 122,

100 P.2d 806 54

Lassiter v. Department of Social

Services, 452 U.S. 18,

68 L.Ed.24 640,

101 8.Ct. 2153 46,50,59

Little v. Streater, 452 U.S. l,

68 L.Ed.2d 627, 101 S.Ct. 2202 46,49,59

7.

TABLE OF AUTHORITIES

(Continued)

CASES PAGES

Lyons v. Municipal Court,

75 Cal.App.3d 829,

142 Cal.Rptr. 449 55

Mullane v. Central Hanover

Bank & Trust Co,

339 U.S. 306, 94 L.Ed. 865,

70. 8.Ct. 652 39,40

Oliver v. Superior Court,

197 Cal.App.2d 237,

17 Cal.Rptr. 474 58

Ortwein v. Schwab,

410 U.S. 656, 35 L.Ed.2d 572,

93. $.Ct. 1172 49

Osmond v. Spence,

327 F.Supp. 1349 35,38

D.H. Overmyer Co. v. Frick Co.,

405 U.S. 174, 31 L.Ed.2d 124,

92 §.Ct. 775 22,25,26,29,

30-31,32,33,

35,36,37,38,59

Payne v. Superior Court,

17 Cal.3d 908,

132 Cal.Rtpr. 405,

553 P.2d 565 25,27

Reynolds v. Kimmons,

559 P.2d 799, 569 P.2d 799 45

Reynolds v. Reynolds,

86 Cal.App.3d 732,

150 Cal.Rptr. 423 54

TABLE OF AUTHORITIES

(Continued)

CASES PAGES

Ross v. Moffitt,

417 U.S. 600, 41 L.Ed.2d 341,

94 S.Ct. 2437 54-55

Salas v. Cortez,

24 Cal.3d 22, 154 Cal.Rptr. 529,

593 P.2d 226 26,27,45,49,

50,51,52,56,58

Scott v. Danaher,

343 F.Supp. 1272 37

Scott v. Illinois,

440 U.S. 367, 59 L.Ed.2d 383,

99 S.Ct. 1158 46,58

Smith v. Superior Court,

110 Cal.App.3d 422,

168 Cal.Rptr. 24 57

Specht v. Patterson,

386 U.S. 605, 18 L.Ed.2d 326,

87 S.Ct. 1209 27

State Finance Corp. v. Mcgee,

27 I11.App.3d 421,

326 N.E.2d 518 37

Swarb v. Lennox,

405 U.S. 191, 31 L.Ed.2d 138,

92 S.Ct. 767 33-34,35

Tetro v. Tetro,

86 Wash.2d 252, 544 P.2d 17 59

Tunheim v. Bowman,

366 F.Supp. 1392 34-35,36,37

TABLE OF AUTHORITIES

(Continued)

CASES PAGES

United States v. Kras,

409 U.S. 434, 34 L.Ed.2d 626,

93 .83.€t.. 631 49

Utah v. United States,

394 U.S. 89, 22 L.Ed.2d 99,

89 S.Ct. 761 43

Van Buskirk v. Todd,

269 Cal.App.2d 680,

75 Cal.Rptr. 280 53

Virgin Islands National Bank

v. Tropical Ventures, Inc.

358 F. Supp. 1203 37,38

CONSTITUTIONS

United States Constitution,

Article III, § 2 14

Fourteenth Amendment 3,4,14-15,21,23,24,

27,30,31,35,48

California State Constitution,

Article I, § 7 27

REGULATIONS

United States Code,

Title 42, § 654 15-16

STATUTES

Cal. Civ. Code, § 196 45,50

§ 196a 45,50,53,55

§ 4382 50

§ 4700 50,53

10.

TABLE OF AUTHORITIES

(Continued)

STATUTES PAGES

Cal. Code Civ. Proc.,

§ 473 33

§ 1209 . 56

§ 1209.5 56

§ 1218 56

§ 1650 54

§ 1694 50

Cal. Pen. Code, § 270 55,56,58

Cal.Welf. & Inst. Code,

§ 11350 16-17,44,53,55

§ 11350.1 17,44,53

§ 11475.1 17-18

Revised Uniform Reciprocal

Enforcement of Support Act 54

28 U.S.C., § 1257 (c) 14

§ 2201 (d) 13

MISCELLANEOUS

Annot., 52 ALR.3d 58

Note, "Cognovit Revisted:

Due Process and Confession

of Judgment,”

24 Hast. L.J. 1045 (1973) 41-43

4 Markey, Cal.Fam.Law. (1982)

§ 6241[1] 54

ll.

INTRODUCTION

Petitioner, County of Ventura,

respectfully requests that this Honorable

Court grant this Petition for Writ of

Certiorari, by which Petitioner seeks

review of the judgment of the Court of

Appeal of the State of California, filed

June 28, 1982, reversing the judgment of

the trial court, and on which hearing was

denied by the Supreme Court of the State

of California on September 22, 1982.

OPINIONS BELOW

On May 17, 1982, Division Four of the

Court of Appeal of the State of

California, Second Appellate District

rendered an opinion reversing the judgment

for child support entered by the Superior

Court of the State of California for

Ventura County, the trial court. The

initial opinion was reported in the

Official California Advance Sheets at

132 Cal.App.3d 767.

Petitioner County of Ventura sought a

ehearing which was granted. The opinion

of May 17 was vacated. A copy of the

order granting rehearing is attached at

Appendix A.

12.

Thereafter on June 28, 1982, the Court

of Appeal rendered a new opinion again

reversing the judgment of the Superior

Court. A copy of this opinion appears at

Appendix B and is reported at 133 Cal.App.

3d 105, 183 Cal.Rptr. 741 (1982).

Thereafter petitioner County of

Ventura filed a petition for hearing in

the Supreme Court of the State of

California. The petition for hearing was

denied on September 22, 1982. A copy of

the order denying hearing appears at

Appendix C of this Petition for Writ of

certiorari.

JURISDICTION

The final decision of the Court of

Appeal of the State of California was

filed on June 28, 1982. Thereafter

petitioner County of Ventura filed a

timely petition for hearing in the Supreme

Court of the State of California, within

the meaning of 28 U.S. Code section

2201(d), which petition was denied on

September 22, 1982. A copy of the order

denying hearing is attached as Appendix C.

Petitioner invokes the jurisdiction of

this Court to review this decision under

13.

28 U.S. Code section 1257(3) since the

right to appointed counsel in a civil suit

for child support where paternity is not

at issue and the right to a prejudgment

judicial hearing to determine waiver of

notice and of the opportunity to be heard

before a stipulated judgment can be

entered against an indigent defendant in a

suit for child support brought by a county

as a plaintiff or on behalf of a minor

child, have been claimed under the United

States Constitution by respondent Joyce

Tillett.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Article

III, section 2, in relevant part:

"Section 2. The judicial Power

shall extend to all Cases, in Law and

Equity, arising under this Constitu-

tion, the Laws of the United States,

and Treaties made, or which shall be

made, under this Authority. .. ."

United States Constitution, Amendment

XIV, in relevant part:

"Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof,

14,

654

are citizens of the United States and

of the State wherein they reside. No

state shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or

property, without due process of law;

nor deny to any person within its

jurisdiction the equal protection of

the laws.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42, section

in relevant part:

"A State plan for child...

support must -

"(4) provide that such state will

undertake -

"(B) in the case of any child with

respect to whom such assignment is

effective, to secure support for such

child from his parent... .

"(6) provide that (A) the child

support collection or paternity

determination services established

15.

under the plan shall be made available

to any individual not otherwise

eligible for such services upon

application filed by such individual

with the State. ..."

California Welfare and Institutions

Code section 11350 in relevant part:

"In any case of separation or

desertion of a parent or parents from

a child or children which results in

aid under this chapter being granted

to such family, the noncustodial

parent or parents shall be obligated

to the county for an amount equal to:

"“(a) The amount specified in an

order for the support and maintenance

of such family issued by a court of

competent jurisdiction; or in the

absence of such court order;

"(b) The amount of aid paid to

the family during such period of

separation or desertion limited by

such parent's reasonable ability to

pay during that period in which aid

was granted; and

"(c) Such obligation shall be

reduced by any amount actually paid by

16.

such parent during such period of

separation or desertion for the

support and maintenance of such

family.

“The district attorney shall take

appropriate action pursuant to this

section in the superior court of the

county which provided aid under this

Ghaptel. « « 0”

California Welfare and Institutions

Code section 11350.1 in relevant part:

"Notwithstanding the provisions

of any other statute, in any action

brought by the district attorney for

the support of a minor child or

children, the action may be prosecuted

in the name of the county on behalf of

such minor child or children. The

mother shall not be a necessary party

in such action but may be subpoenaed

as a witness. ..."

California Welfare and Institutions

Code section 11475.1 in relevant part:

"Each county shall maintain a

single organizational unit located in

the office of the district attorney

which shall have responsibility for

17.

promptly and effectively enforcing the

obligation of parents to support their

children and determining paternity in

the case of a child born out of

wedlock. The district attorney shall

take appropriate action, both civil

and criminal, to enforce this

obligation when the child is receiving

public assistance and when requested

“o do so by the individual on whose

behalf the enforcement efforts will be

made when the child is not receiving

public assistance... ."

STATEMENT OF THE CASE

The plaintiff in the underlying

California Superior Court suit was the

County of Ventura, acting on behalf of two

minor children of respondent Joyce

Tillett. These two children were not in

respondent Tillett's custody, and the

County had provided them welfare benefits.

Paternity, or in this case "maternity,"

was never and is not now an issue in this

case.

On December 4, 1978, a civil suit was

commenced against defendant-respondent

Tillett in Ventura County Superior Court

18.

under California Welfare and Institutions

Code sections 11350 and 11350.1. The

complaint sought ongoing monthly child

support for the children in the amount of

$120.00 per child per month for a total of

$240.00 per month, plus reimbursement for

welfare funds previously provided the

children.

Respondent was served with a copy of

the complaint and the summons. The summons

was on a form approved by the California

Judicial Conference which contained in bold

faced type the statement:

"NOTICE! You have been sued. The

court may decide against you without

being heard unless you respond within

30 days. Read the information below."

The summons then gave directions for

filing an answer, repeated the time limit

for answering, advised her that a default

judgment could be entered if she did not

answer and stated, again in bold faced

type, that if she wished to seek the advice

of an attorney she should do so promptly so

that any written response would be filed on

time (A copy of the summons is attached to

this Petition for Writ of Certiorari as

Appendix D).

19.

The record does not show that appellant

contacted an attorney. Instead, after

having been served with a copy of the

summons and complaint, respondent contacted

the District Attorney's office in Ventura

County where she worked out a stipulated

judgment. The judgment, filed on January

26, 1979, required that respondent pay

monthly child support in the amount of

$50.00 per child per month and that she

reimburse the county for welfare previously

provided the children in the amount of

$1,148.00 at the rate of $5.00 per month.

At this time appellant had just received

her license to sell insurance.

Approximately seven months later, on

August 27, 1979, respondent was cited with

civil contempt for wilfully failing to

make her child support payments. After

waiving her right to counsel, on October

12, 1979, she pleaded guilty to four

counts of contempt and was placed on

probation,

On August 6, 1980, approximately one

year after the filing of the order to show

cause in the contempt proceeding,

petitioner sought to revoke respondent's

20.

probation, the hearing on the revocation

was continued to October 30, 1980. On

October 30 and 31, 1980, respondent,

through counsel, filed motions to vacate

the judgment of January 26, 1979, based

upon the theory that she had not been

represented by an attorney when she

stipulated to the judgment and had not

waived her right to such representation,

and further, based upon a claim of

extrinsic fraud. When her motions were

denied, respondent appealed to the

California Court of Appeal.

REASONS WHY THE PETITION FOR

WRIT OF CERTIORARI SHOULD BE

GRANTED

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari in

this case should be granted. The

Fourteenth Amendment does not mandate a

prejudgment hearing before a stipulated

judgment can be entered in child support

cases, and the California Court of Appeal

erred in finding such a requirement.

21.

This stipulated judgment in this case met

all the requirements for due process and

was the result of an arm's length

transaction.

However, if in fact a stipulation for a

judgment entered into after service of a

summons and complaint could be considered

some form of confession of judgment, then,

under D.H. Overmyer Co. v. Frick Co. (1972)

405 U.S. 174, such a stipulation is not

per. se unconstitutional. Furthermore,

under Overmyer, despite some lower court

authority to the contrary, no prejudgment

hearing as to the validity of the waiver of

the right to notice and hearing is

constitutionally required before judgment

can be entered.

On the other hand, if it is assumed

that confessions of judgment do require

prejudgment hearings, stipulations for

judgment entered into by defendant

non-custodial parents after service of a

summons and complaint, are distinguishable

from confessions of judgment of the sort

entered into by consumers in an installment

sales contract before any legal controversy

has arisen, In the case of the stipulated

22.

judgment, the defendant has already

received notice of the pending legal

action and of the opportunity to appear to

contest the issue on the merits. Indeed

the stipulated judgment is closer to a

settlement and release than to a cognovit.

For all these reasons the California

Court of Appeal erred in holding that a

prejudgment hearing was required with

respect to the stipulation involved in this

case.

Nor does the Fourteenth Amendment

require appointment of counsel when only

child support is at issue in a purely civil

proceeding. The only interests involved

pertain to money, there is little risk of

erroneous results since the issues involved

are simple, and finally, deprivation of

liberty does not result from a judgment for

the plaintiff.

It is extremely important that this

Court grant the petition for writ of

certiorari in this case. If allowed to

stand, the holding of the California Court

of Appeal will benefit neither society in

general nor children in particular. If

certiorari is not granted, thousands

23.

of child support judgments will be treated

as constitutionally void and thousands of

children will then be left without support

from their parents,

ARGUMENT

IN CIVIL SUITS FILED BY A COUNTY

FOR CHILD SUPPORT ALONE AND NOT

TO DETERMINE PATERNITY, THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT REQUIRES NEITHER THE

APPOINTMENT OF COUNSEL, NOR

A PREJUDGMENT HEARING ON THE

ISSUE OF THE WAIVER OF THE RIGHT

TO NOTICE AND HEARING, BEFORE A

STIPULATED JUDGMENT RESOLVING

THE CASE CAN BE ENTERED

In its opinion reversing the order of

the California Superior Court, the

California Court of Appeal held that child

support judgments carry with them a threat

of incarceration.” Therefore the court

concluded if a defendant in a suit for

1. The question whether imprisonment

can be considered the result of a child

support proceeding is considered in

part B(2) of the Argument, infra, p. 55.

24.

child support alone has not had the

assistance of counsel™ in agreeing to a

stipulated judgment with the state, there

must be a judicial determination of the

issue of the waiver of the due process

right™ to notice and a hearing before

2. The question whether appointed

counsel is constitutionally mandated is

dealt with in Part B of the Argument

infra, page 44.

3. The California Court of Appeal's

decision in this case was based solely on

federal grounds. The court relied upon

the cases of Isbell v. County of Sonoma

(1978) 21 Cal.3d 61, 577 P.2d 188, 145

Cal.Rptr. 368, cert. denied as petition

was untimely filed (1978) 439 U.S. 996;

County of Ventura v. Castro (1979) 93

Cal.App.3d 462, 156 Cal.Rptr. 66, cert.

denied (1980) 494 U.S. 1098; D.H. Overmyer

Co. v. Frick Co., supra (1972) 405 U.S.

174; Boddie v. Connecticut (1971) 401 U.S.

371, 28 L.Ed 2d 113, 91 S.Ct. 780; Payne

v. Superior Court (1976) 17 Cal.3d 908,

914, 132 Cal.Rptr. 405, 553 P.2d 565;

County of Los Angeles (Holley) v. Superior

25.

judgment can be entered. In the absence of

such a prejudgment hearing, the child

Court (1980) 102 Cal.App.3d 926, 162 Cal.

Rptr. 636; and Salas v. Cortez (1979) 24

Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d

226, cert. denied (1979) 444 U.S. 900.

(Opn. of Ct. of App., App. B, pp. 76, 77,

78, 80-83.)

In Castro at pp. 468-470, the

California Court of Appeal referred to

D.H. Overmyer Co. v. Frick Co., supra,

(1972) 405 U.S. 174, and Johnson v. Zerbst

(1938) 304 U.S. 458, 82 L.Ed. 1461, 58

S.Ct. 1019, but based its decision upon

Isbell v. County of Sonoma, supra (1978)

21 Cal.3d 61. Isbell held a California

statute governing certain confessions of

judgment to be unconstitutional as a

denial of due process. (p. 39.) Isbell

was decided solely upon federal

constitutional grounds. (See Isbell v.

County of Sonoma, supra, 21 Cal.3d 61, 65,

75, 577 P.2d 188, 190, 196, 145 Cal.Rptr.

368, 370, 376.)

County of Los Angeles (Holley) was

based upon Salas v. Cortez, supra. In

26.

support judgment is void as unconstitu-

tional. (Cal. Ct. of App. Opn., App. B,

pp. 82-83.)

Salas at pages 26-27, the California

Supreme Court noted that the Fourteenth

Amendment to the United States

Constitution as well article I, section 7,

subdivision (a) of the California

Constitution require that individuals

receive due process of law. However, if

at issue at all, the “state constitutional

holding depended upon the state court's

view of the reach of the . . . Fourteenth

Amendment." (Delaware v. Prouse (1979)

440 U.S. 648, 653, 59 L.Ed.2d 660, 99

S.Ct. 1391.) In its opinion in Salas the

court relied on either United States

Supreme Court cases (e.g., Boddie v.

Connecticut, supra (1971) 401 U.S. 371;

In re Gault (1967) 387 U.S.1, 18 L.Ed.2d

527, 87 S.Ct. 1428; Specht v. Patterson

(1967) 386 U.S.605, 18 L.Ed.2d 326, 87

S.Ct. 1209) or California cases which

themselves relied on United States Supreme

Court cases, (e.g., Payne v. Superior

Court, supra (1976) 17 Cal.3d 890, relying

27.

It is respectfully submitted that the

California Court of Appeal erred in

reaching this holding, for respondent was

deprived of no constitutional right and

the judgment of the California Superior

Court, the trial court, was correct.

Moreover, if this Court does not hear

this case on the merits, substantial harm

will result. Thousands of existing child

support judgments will be found to be

constitutionally void (not voidable), and

thousands of children will suddenly be

left without support from their parents.

inter alia on Boddie v. Connecticut,

supra; In re Love (1974) 11 Cal.3d 179,

113 Cal.Rptr. 89, 520 P.2d 713, relying on

Gagnon v. Scarpelli (1973) 411 U.S. 778,

36 L.Ed.2d 656, 93 S.Ct. 1756.)

28.

A. Stipulated Judgments for

Child Support Meet Consti-

tutional Requirements for

Due Process

1. If District Attorney --

Noncustodial Parent Stipulated

Judgments are Indeed a Form of

Confession of Judgment, The Decision

Below Conflicts with the Decision of

This Court Which Holds that

Confessions of Judgment are Not per se

Unconstitutional.

In concluding that stipulated

judgments were a form of confession of

judgment and in finding the stipulated

judgment in this case unconstitutional as

a denial of due process, the California

Court of Appeal based its decision upon

Isbell v. County of Sonoma, supra, (1978)

21 Cal.3d 61, cert. denied as petition

was untimely filed (1978) 439 U.S. 996;

County of Ventura v. Castro, supra (1979)

93 Cal.App.3d 462, 469, cert. denied

(1980) 444 U.S. 1098; and D.H. Overmyer

Co. v. Frick Co., supra (1972) 405 U.S.

184, 188. (Opn. of Ct. of App., Exh. B,

pp. 76-79, 82-83.)

29.

Isbell held that the California

confession of judgment statute denied

debtors due process under the Fourteenth

Amendment because the statute did not

permit prejudgment judicial determinations

as to the validity of debtors' waivers.

The Isbell court noted that the

availability of post judgment relief did

not cure the unconstitutionality of the

statute. In reaching its decision, the

Isbell court concluded that D.H. Overmyer

Co. v. Frick Co., supra (1972) 405 U.S.

174, was not in point. It reasoned that

Overmyer did not hold that a confession of

judgment procedure, which required the

entry of judgment without a prior showing

of waiver, complied with due process

requirements. (Isbell v. County of

Sonoma, supra, 21 Cal.3d 61 71-72.)

The California Supreme Court clearly

erred in Isbell in not recognizing that

this Court's holding in D.H. Overmyer Co.

v. Frick Co., supra, 405 U.S. 174, was

controlling. In Overmyer, this Court

upheld the validity of a judgment entered

on a cognovit containing a warrant of

attorney stating: "Our holding necessarily

30.

means that a cognovit clause is not, per

se, violative of Fourteenth Amendment due

process." (405 U.S. at p. 188.)

In Castro, the California Court of

Appeal relied on Isbell in striking down

as unconstitutional per se a state statute

allowing district attorneys and individu-

als to agree to the entry of a Judgment of

Paternity and/or child support without the

district attorney's first filing and

serving a civil complaint. In his

dissenting opinion from the denial of

certiorari in County of Ventura v. Castro,

supra, 444 U.S. 1098, 1101, joined by

Justice Rehnquist, Justice Blackmun stated

that he believed that Castro presented a

substantial question as to whether the

California Court of Appeal's decision in

Castro was consistent with Overmyer. He

stated that he would grant the petition

and set the case for argument because the

issue was bound to recur.

As Justice Blackmun predicted, the

issue has recurred, in fact, from the same

California Court of Appeal which wrongly

decided Castro. The decision in the

instant case was also reached in clear

31.

violation of this Court's conclusion in

Overmyer that confessions of judgment are

not unconstitutional per se but must be

analyzed on a case by case basis.

Like the California Supreme Court in

Isbell and the California Court of Appeal

in Castro, the California Court of Appeal

also failed to follow Overmyer in this

case,

Petitioner does not dispute that it is

possible for individual agreements to be

invalid on their own facts, but possible

deficiencies in individual cases should

not serve to invalidate thousands of

stipulated judgments entered into over a

period of years. Certiorari should be

granted here; otherwise thousands of

children will be left without support.

2. There Is a Conflict Among the

Lower Courts on the Proper Application

of Overmyer v. Frick as to the

Necessity of a Prejudgment Hearing for

Confessions of Judgment

The California Court of Appeal held

that respondent's right to due process was

violated because there was no hearing

32.

prior to entry of judgment” (Opn. of Ct.

of App., App. B, pp. 82-83.) In Overmyer

v. Frick, supra, 405 U.S. 174, this Court

held that confessions of judgment are not

unconstitutional per se and that a debtor

may validly waive the right to notice and

hearing and to present a defense on a

note. In both Overmyer and its companion

case, Swarb v. Lennox (1972) 405 U.S. 191,

4. Under California Code of Civil

Procedure section 473, the court which has

rendered a judgment may, upon such terms

as may be just, set aside the judgment

taken against a party by mistake,

inadvertence, surprise, or excusable

neglect, provided that the application is

accompanied by a copy of the proposed

answer and that the application is made

within a reasonable time, but not more

than six months after the judgment was

taken. Since January 1, 1982, the moving

party has not been required to file an

affidavit or declaration as to the

existence of a meritorious defense. (See

In re Marriage of Carter, 19 Cal.App.3d

479, 489. 79 Cal.Rptr. 274, 279.)

33.

the Court considered and upheld confession

of judgment statutes which did not provide

for a prejudgment hearing on the validity

of the waiver. Despite the fact that

these cases did not require a prejudgment

hearing, lower courts are nevertheless

divided as to whether such a hearing is

required.

The clash between the lower courts is

evident in the decision of the three judge

federal district court in Tunheim v.

Bowman (D. Nev. 1973) 366 F. Supp. 1392.

Tunheim involved a challenge to the

constitutionality of Nevada's confession

of judgment statutes. There plaintiffs

alleged that the failure of the statute to

provide for notice and hearing prior to

judgment rendered them unconstitutional.

The court dissolved the three judge panel,

holding that prior controlling decisions

rendered insubstantial any claim that the

Nevada statutes were unconstitutional.

The court stated:

"The allegation that the Nevada

confession of judgment statutes are on

their face unconstitutional because

they do not incorporate a requirement

34,

of prior notice and hearing before

judgment is entered falls before the

decision of the Supreme Court in D.H.

Overmyer Co. v. Frick Co., 405 U.S.

174, 92 S.Ct. 775, 31 L.Ed.2d

124. .. . The Overmeyer case

specifically holds that statutes

legalizing cognovit clauses

without a requirement of prior

notice and hearing are not per se

unconstitutional under the due process

Clause of the Fourteenth Amendment."

(366 F.Supp. at 1393-1394.)

The Tunheim court went on to reject

the interpretation of Overmyer made by a

federal district court in Delaware in a

series of opinions beginning with Osmond

v. Spence (D.Del. 1971) 327 F.Supp. 1349.

In Osmond, a three-judge federal court had

held that Delaware's confession of

judgment statutes were unconstitutional

because they did not provide prejudgment

notice and hearing. On appeal, this Court

ordered the case remanded in light of

Swarb and Overmyer. (405 U.S. 971

(1972).) On remand, the trial court

maintained its original opinion that

35.

notice and hearing were required prior to

entry of Judggent. ((D.Del. 1972) 350

F.Supp. 124.)

The Tunheim court disagreed with this

interpretation of Overmyer:

"The Overmyer case did not leave

the question open. It specifically

held that a statutory scheme which

does not provide for notice and

hearing prior to entry of a confessed

judgment did not run afoul of due

process requirements." (366 F.Supp.

at 1394.)

The Maryland Court of Appeals holds a

view similar to that expressed in Tunheim:

"In any event, Overmyer cannot

be read to mandate a ‘waiver hearing’

prior to entry of a confessed judgment

and, insofar as one may be required

thereafter, it was ciearly available

to appellants at the hearing on their

motion to vacate. No more is

required." (Billingsley v. Lincoln

National Bank (1974) 271 Md. 683, 693,

320 A.2d 34, 39.)

5. No further appeal was taken.

36.

In accord with Tunheim and Billingsley

are the decisions in Irmco Hotels Corp. v.

Solomon (1975) 27 I1l.App.3d 225, 326

N.E.2d 542, 544; State Finance Corp. v.

McGee (1975) 27 I11.App.3d 421, 326 N.E.2d

518, 521; Copeland Planned Futures, Inc.

v. Obenchain (1973) 9 Wash.App.32, 510

P.2d 654, 657; and Buckner v. Carmack

(La.Sup.Ct. 1973) 272 So.2d 326, 331, app.

dismissed (1974) 417 U.S. 901. (See also

Colonial Bank & Trust Co. v. Cahill (N.D.

Ill. 1976) 424 F. Supp. 1200; Chittester

v. LC-DC-F Employees of G.E. Federal

Credit Union (W.D. Pa. 1974) 384 F. Supp.

475, 479.)

In contrast, Virgin Islands National

Bank v. Tropical Ventures, Inc. (D.V.I.

1973) 358 F. Supp.1203, 1206-1208

(District Court ordered evidentiary

hearing before it would approve confession

of judgment) and Scott v. Danaher (N.D.

Ill. 1972) 343 F. Supp. 1272, 1277-1278

(decided prior to Overmyer) are in accord

37.

6/

with Osmond v. Spence, supra.

The conflicting interpretations of

Overmyer made by the lower courts as to

the necessity of a prejudgment hearing

points out the importance in resolving the

constitutional requirements of due process

within the context of this case.

Accordingly a writ of certiorari should

issue to resolve this conflict.

6. In addition to the conflict with

respect to the necessity of a prejudgment

hearing, lower courts also disagree as to

the proper allocation of the burden of

proof in a proceeding challenging the

debtor's waiver. (Cf. Osmond v. Spence,

Supra, at p. 127 with Virgin Islands

National Bank v. Tropical Ventures, Inc.,

Supra, at p. 1207 and Irmco Hotels Corp.

v. Solomon, supra.) In the instant case

the California Court of Appeal did not

consider the question of burden of proof.

38.

3. Even Assuming that Confessions

of Judgment Require a Prejudgment

Hearing to Insure that Defendants are

Given Notice of the Proceedings and of

Their Right to be Heard, Stipulations

for Entry of Judgment Made after

Service of Process are Distinguishable

from Traditional Confessions of

Judgment Because the Defendant Who has

been Served has Received Notice of the

Proceeding and of the Right to a

Hearing

In Mullane v. Central Hanover Bank &

Trust Co. (1950) 339U.S. 306, 313, 94

L.Ed. 865, 872-873, 70 S.Ct. 652, 656-657,

cited in Isbell at page 68, the court

stated that due process requires "notice

and opportunity for hearing appropriate to

the nature of the case."~ (See also

7. At one point in Isbell the court

appears to indicate that a hearing is

always required (Isbell v. County of

Sonoma, supra, at p. 68), as opposed to an

opportunity for a hearing. However, if an

actual hearing were required for due

process, all default judgments would be

39.

Boddie v. Connecticut, supra (1971) 401

U.S. 371, 377, 378.) “Personal service of

written notice within the jurisdiction is

the classic form of notice always adequate

in any type of proceeding." (Mullane v.

Central Hanover Tr. Co., supra, 339 U.S.

306, 313.) "This right to be heard has

little reality or worth unless one is

informed that the matter is pending and

can choose for himself whether to appear

or default, acquiesce or contest." (Id.,

at p. 314.) Here the record clearly

establishes that respondent was served

with a summons and complaint. At the time

of service in this case, the prescribed

form of summons as revised January l,

1977, advised the defendant that if he or

she desired to seek the advice of an

attorney he or she should do so promptly

so that the written response, if any,

might be filed on time. (See App. D, a

copy of the summons served on respondent

and proof of service.) Since respondent

unconstitutional. (See Boddie v.

Connecticut, supra (1971) 401 U.S. 381,

378.)

40.

has had proper notice and the opportunity

to appear as required by the Fourteenth

Amendment, the issue of waiver of notice

and opportunity to appear is not relevant.

Accordingly this case is distinguishable

from Isbell and Castro, and from those

cases cited above which mandate a hearing,

all of dich dealt with the question of

waiver.

A second means of distinguishing this

case from the cases requiring a

prejudgment hearing is that this case

involved a stipulated judgment and not a

cognovit. As one commentator has noted:

"Today, two types of confessed

judgments are recognized; the

cognovit actionem and the cognovit

note. The first is the debtor's

8. It is an anomaly that respondent

Claims her due process rights were

violated when she voluntarily stipulated

to the judgment in this case, for if she

had never contacted the District Attorney

and if a default judgment had been

entered instead, no one could assert that

her rights had been violated.

4l.

written confession of liability,

usually prepared after service of

process. The written acknowledgment

is then admissible in a judicial

proceeding, where judgment is entered.

Since notice of the action and the

opportunity to litigate are the

fundamentals of procedural due

process, such a procedure raises no

Significant due process problems.

This method of confessing judgment

without action avoids needless

litigation.

"The harshness of confessed

judgments arises under the second

form, the cognovit note, which is the

subject of recent litigation. This

type of note, incorporated in a

contract or other document, attempts

in advance of any legal controversy to

authorize (1) the assumption of in

personam jurisdiction over the debtor

in case of default and (2) the

entering of judgment without notice

and hearing for the amount confessed.

The cognovit note usually consists of

three provisions: a consent to

42.

jurisdiction, a waiver of notice and

hearing, and a warrant of attorney

authorizing judgment. Upon the

slightest default, the creditor,

without notifying the debtor that

legal action has been initiated, can

have an attorney confess judgment for

the debtor in the amount due. [Fns.

omitted; emphasis in original.]"

(Note, "“Cognovit Revisited; Due

Process and Confession of Judgment,"

(24 Hast. L.J. (1973) at pp. 1045-

1046).

However the case at bar involves a

stipulated or consent judgment which is

akin to a settlement or release. It is

certainly not a cognovit note. Here after

service of process, both parties came

together and worked out an agreement

Satisfactory to both. The judgment was by

stipulation or consent and was clearly

valid. (Cf. Utah v. United States (1969)

394 U.S. 89, 93 (Parties may limit the

issues tendered to a court for decision by

stipulation) .)

Petitioner respectfully submits that

the holding of the California Court of

43.

Appeal distinguishing due process

requirements in contested and uncontested

cases (Opn. of Ct. of App., App. B,

p. 76) and equating cognovit notes with

by stipulations entered into after service

of process (Opn. of Ct. of App., App. B,

pp. 78-79) is without authority and is

Clearly erroneous, Here respondent

received constitutionally proper notice,

had the opportunity to be heard in the

same manner as any other civil litigant,

and thereafter agreed to a compromise.

There was no constitutional error.

Accordingly, the petition for writ of

certiorari should be granted.

B. The Due Process Clause of the

Fourteenth Amendment Does not

Require Appointment of Counsel

for Indigents in Civil Suits

for Child Support Alone

When a county sues to obtain child

support alone under California Welfare and

Institutions Code sections 11350 and

11350.1 as in the instant case, the county

is not seeking to establish a child

support obligation or a parent-child

relationship. Parenthood is not at issue,

44,

and the obligation to support already

exists as a matter of law under California

Civil Code sections 196 and 196a because

of the preexisting parent-child

relationship.

Although cases in other jurisdictions

have held that counsel is required in

paternity suits,~ the rationale for such

holdings does not support a requirement

under the Fourteenth Amendment for court-

appointed counsel in civil suits where the

only question at issue is child support

and paternity is not being litigated.

(See Artibee v. Cheboygan Circuit Judge

(1976) 397 Mich. 54, 243 NW2d 248;

Reynolds v. Kimmons (Sup.Ct. Alaska) 599

P.2d 799; Salas v. Cortez, supra, 24

Cal.3d 22.)

9. Respondent does not concede that

the Fourteenth Amendment requires

appointed counsel in paternity actions;

however that issue is not before the Court

in this case. (See, e.g., Dept. of Health

and Rehab. Serv. v. Heffler (Fla. Sup.Ct.

1980) 382 So.2d 301; Hamilton v. Snodgrass

(Iowa Sup.Ct. 1982) __ N.W.2d ss, 9 Fam

L.Rptr. 2065.)

45.

Indeed, based upon an analysis of the

private interests involved in a suit for

child support alone, the governmental

interests involved, the risk that the

procedures will lead to erroneous results,

the probable value of the procedure

requested by the private party, and the

presumption against appointing counsel

except where deprivation of liberty is

really at issue (see Lassiter v.

Department of Social Services (1981) 452

U.S. 18, 27, 68 L.Ed.2d 640, 649, 101

S.Ct. 2153, 2159; Little v. Streater

(1981) 452 U.S. 1, 13, 68 L.Ed.2d 627,

636, 101 S.Ct. 2202, 2209), it is clear

that appointed counsel in the

circumstances of this the case is not

constitutionally compelled.” It is

10. The absolute due process require-

ment in criminal cases is that no person

be imprisoned for an offense unless he is

represented by counsel at trial. (Scott

v. Illinois (1979) 440 U.S. 367, 373, 59

L.Ed.2d 383, 389, 99 S.Ct. 1158, 1162;

Argersinger v. Hamlin (1972) 407 U.S. 25,

37, 32 L.Ed.2d 530, 538, 92 S.Ct. 2006,

46.

further urged that this Court consider

this issue on the merits in order to

finally resolve the question,

2012.) It also requires the appointment

of appellate counsel for indigents in

criminal proceedings where an appeal is a

matter of right. (Douglas v. California

(1963) 372 U.S. 353, 356-358, 9 L.Ed 2d

811, 814-815, 83 S.Ct. 814, 816-817.)

Unlike the absolute right to counsel

mandated by specific provisions of both

federal and state constitutions for

individuals accused of criminal offenses,

the right to counsel in other than

criminal proceedings is conditioned and

determined on a case by case basis. (Cf.

Gagnon v. Scarpelli, supra, (1973) 411

U.S. 778, 790.) Clearly however, the

nature of civil suits for child support is

distinguishable from the limited

situations in which appointment of counsel

has been required in other than criminal

proceedings.

47.

Failure to grant certiorari in this

case will mean that thousands of existing

child support judgments will be ruled

unconstitutional as void. Thousands of

children will then be left without

support.

ll. Petitioner stresses that the

issue is not whether the presence of

counsel might be helpful or even whether a

state legislature could by statute provide

for appointing counsel. The question is

whether the appointment of counsel is

mandated be the Fourteenth Amendment. An

additional consequence of holding that

counsel is mandated in a whole new class

of cases is that counsel will in fairness

press for a statute allowing them to be

compensated. Given this time of limits on

governmental resources, this means that

the Legislature will be forced to

appropriate money for counsel fees

rather than for education or health

services or other vital social programs,

48.

1. No Fundamental Interests

Are at Stake

In Little v. Streater, supra (1981)

452 U.S. 1, 16, footnote 2, this Court

held that the interests of the child and

the indigent defendant in paternity

actions are constitutionally significant

as opposed to those of an indigent seeking

discharge in bankruptcy or seeking

appellate review of an agency

determination resulting in reduced welfare

benefits. (Cf. Salas v. Cortez, supra,

24 Cal.3d 22, 28 (freedom from an

incorrect imposition of the parent-child

relationship is a compelling interest) ;

see United States v. Kras (1973) 409 U.S.

434, 34 L.Ed.2d 626, 93 S.Ct. 631; Ortwein

v. Schwab (1973) 410 U.S. 656, 35 L.Ed.2d

572, 93 S.Ct. 1172.)

However unlike the situation in Little

v. Streater, supra, or in Salas v. Cortez,

supra, no fundamental personal or family

relationships are involved here.

The establishing of a certain dollar

amount as due for child support neither

profoundly affects the defendant's life,

nor affects reputations, nor disrupts any

49.

established family relationship (cf. Salas

v. Cortez, supra, 24 Cal.3d 22, 28-29;

dissenting opinion of Justice Blackmun in

Lassiter v. Department of Social Services,

supra, 452 U.S. at p. 35; and dissenting

opinion of Justice Stevens, at p. 59; Cal.

Civ. Code, § 4382; Cal. Code Civ. Proc.,

§ 1694). Such a judgment does not

establish a new support obligation but

instead simply tells the parent how much

he or she must pay and serves to enforce

the duty to support the law already

imposed by virtue of parenthood alone

under California Civil Code sections 196

and 196a. (See Lyons v. Mun. Ct.,

75 Cal.App.3d 829, 840-841, 142 Cal.Rptr.

449, 453-454.) Moreover, unlike a civil

judgment in a breach of contract case, a

judgment for future child support in

California can be modified downward a

year, a month, or even a day after the

original judgment was entered if the

defendant's financial circumstances have

become worse during the interim. (Cal.

Civ. Code, § 4700.)

Indeed, respondent's interests are not

qualitatively different from those of any

50.

other civil litigant against whom a money

judgment is sought. The due process

rights of criminal defendants should not

be extended to ordinary civil litigants

who, like respondent, have but a monetary

interest in the outcome of the litigation.

2. There Is No Likelihood

of Erroneous Results if

Judgment is for the

Plaintiff

Another concern of the Court of Appeal

was the asserted disparity of bargaining

power between indigent defendants and the

state and thus the likelihood of erroneous

results. (Opn. of Ct. of App., App. B.,

pp. 80-82; see also Salas v. Cortez,

supra, 24 Cal.3d 22, 31.) Even assuming

that there is in fact “disparity” in

paternity cases, the crux of the disparity

in the paternity context arises from the

complexity of litigating the question of

paternity, for paternity actions can

involve such arcane matters as discovery

and scientific blood grouping tests, and

counsel for the plaintiff can be a

specialist in handling paternity

51.

12

actions =’ (See Salas v. Cortez, supra,

at pp. 31-32.) However, such a situation

12. The “disparity” cannot arise from

the mere fact that a governmental entity

is a party to the proceeding or is

representing the interests of a person

involved in the proceeding (here the minor

child or children) and a private party is

on the other side. If such were the case,

attorneys would be constitutionally

required in each and every case where a

private citizen is on one side of a case

and a government attorney is on the other

side, such as all traffic infractions, all

licensing actions, all condemnation

proceedings, all actions to abate a

nuisance filed by a governmental entity,

all consumer actions filed by a

governmental entity, all environmental

actions filed by a governmental entity and

all tort and contract actions in which a

governmental entity is either a plaintiff

or a defendant. Apointed counsel could

also be required when a large corporation

such as General Motors or State Farm

52.

does not exist in suits to obtain child

support, for even where, as here, there is

no preexisting child support order, the

issues presented in a suit under

California Welfare and Institutions Code

sections 11350 and 11350.1 are very

simple. These are: (1) Is the person who

is actually served the non-custodial

parent defendant named in the complaint?

(2) If so, what are the non-custodial

parent's assets and income and expenses,

what is the non-custodial parent's current

ability to earn, and what is the amount

necessary for the support, maintenance,

and education of the child? (See Cal.

Civ. Code, §§ 196a, 4700; In re Marriage

of Utigard, 126 Cal.App.3d 133, 143, 178

Cal.Rptr. 546, 551.)

Moreover, any actual trial proceeding

is not complex since the matter is: heard

as a suit in equity and there is no right

to a trial by jury. (Van Buskirk v. Todd,

269 Cal.App.2d 680, 685-686, 75 Cal.Rptr.

Insurance is suing an individual citizen

if mere size or economic power of a party

were the determining factor.

53.

280, 283; Kyne v. Kyne, 38 Cal.App.2d 122,

133, 100 P.2d 806, 812; 4 Markey,

Cal.fam.Law (1982), § 62.41[1]; see also

Reynolds v. Reynolds, 86 Cal.App.3d 732,

734-735, 150 Cal.Rptr. 423, 425 (No right

to jury trial in suit for child support

under the Revised Uniform Reciprocal

Enforcement of Support Act, Code Civ.

Proc., § 1650 et seq., since the fixing of

support is equitable in nature.) Thus,

because the issues and the proceedings are

Simple, disparity is not an issue, and an

appointed attorney is es to

avoid erroneous results.”

13. In few lawsuits are the sides

ever truly equally matched. "[T)Jhe fact

that a particular service might be of

benefit to [a] defendant does not mean

that the service is constitutionally

required." (Ross v. Moffitt (1974) 417

U.S. 600, 616, 41 L.Ed.2d 341, 354, 94

8.Ct. 2437, 2446-2447.) California has no

duty to "duplicate the legal arsenal that

may be privately retained" by a defendant.

It must only “assure the indigent

defendant an adequate opportunity to

54.

3. The Defendant's Liberty

Is Not at Stake

The California Court of Appeal was

concerned with the question of the

possibility of incarceration. (Opn. Ct.

of App., App. B, pp. 80-82.) However,

under California Civil Code sections 196

and 196a, a parent who has never been sued

under California Welfare and Institutions

Code section 11350 is still obligated to

provide support by virtue of parenthood

alone. Without reference to the

California Welfare and Institutions Code,

any parent who wilfully fails to support

his or her child violates California Penal

Code section 270 and can be punished by

imprisonment in the county jail for up to

one year. (See Lyons v. Municipal Court,

supra, 75 Cal.App.3d 829, 838-841, 142

Cal.Rptr. 449, 452-454.) Respondent in

present his claim fairly ... ." (Ross

v. Moffitt, supra, at p. 616 (discussing

rights of criminal defendants to counsel

in seeking discretionary appeals). Here

respondent was in the same position as

every other civil litigant.

55.

this case could have been charged with a

violation of California Penal Code section

270 whether or not the civil suit for

child support had ever been filed. The

filing of a suit for child support does

not have a significant bearing on any

subsequent criminal proceeding which might

follow. (Cf. Salas v. Cortez, supra, 24

Cal.3d 22, 28-29.)

It is true that finding a person in

civil contempt (Cal.Code Civ. Proc.,

§§ 1209, 1209.5, 1218) does require the

preexistence of a valid court order;

nevertheless the concerns expressed in the

California Court of Appeal's opinion (Opn.

of Cal. Ct. of App., App. B, pp. 80-82.)

are answered by the fact that contempt

under California Code of Civil Procedure

section 1209.5, like California Penal Code

section 270, requires a subsequent

intervening act, the wilful violation of

14. Obviously the hazard of possible

incarceration is too attenuated to require

appointment of counsel in this case as in

suits in which an injunction might issue

even though the defendant might wilfully

56.

the order by the wilful refusal to pay,

and someone who does not have the

financial ability to pay in accordance

with the order cannot be guilty of

flaunt the court's judgment at some time

in the future. (Cf. Smith v. Superior

Court, 110 Cal.App.3d 422, 426 (Right

against self-incrimination does not apply

in case where an injunction is sought

although violation of injunction could

lead to imprisonment through contempt) .)

If the California Court of Appeal is

correct in requiring counsel in this case,

would it not necessarily follow that

appointed counsel are constitutionally

required in all divorce or marriage

dissolution proceedings since in most

jurisdictions, if alimony or child support

or child custody is determined and

ordered, a contempt proceeding could be

filed at some future time if one of the

parties wilfully violates the trial

court's order?

57.

contempt in California.2~ (Oliver v.

Superior Court, 197 Cal.App.2d 237,

241-242, 17 Cal.Rptr. 474, 476 477. It is

improper to assume that defendants will

wilfully flaunt support orders of the

trial court or will fail to provide such

Support as they can.

It is clear that neither a civil

contempt proceeding nor a criminal

prosecution and a sentence to prison is a

consequence of the civil judgment taken

against respondent. Therefore appointed

counsel is not constitutionally required.

(Cf. Scott v. Illinois, supra (1979) 440

U.S. 367, 373, 59 L.Ed.2d 383, 388-389,

99 S.Ct. 1158, 1161-1162; See Tetro v.

15. In California, appointed counsel

is available in both civil contempt and

Penal Code section 270 proceedings. (See

Salas v. Cortez, supra, 24 Cal.3d 22, 27,

fn. 2; see In re Liu, 273 Cal.App.2d 135,

141, 78 Cal.Rptr. 85, 90-91; In re

Shelley, 197 Cal.App.2d 199, 201, 16

Cal.Rptr. 916, 918; Annot. (1973) 52

A.L.R.3d 1002.)

58.

Tetro (1975) 86 Wash.2d 252, 255, fn. l,

544 P.2d 17, 20, fn. 1.) The Constitution

does not mandate appointment of counsel

under the facts of the case at bar, for

respondent is an ordinary civil litigant

and only money is at issue.

Accordingly, the Petition for Writ of

Certiorari should be granted in this case,

and on hearing the case, this Honorable

Court should reverse the judgment of the

California Court of Appeal.

CONCLUSION

This case presents an excellent

opportunity to define more clearly the

meaning of Lassiter and Little and the

constitutional requirements for appointed

counsel in civil cases.

Assuming that a stipulation can be

considered a confession of judgment, this

case can resolve the question which

certain courts perceive to have been left

open in D.H. Overmyer, whether a

prejudgment judicial hearing is

constitutionally required.

Petitioner submits that the California

Court of Appeal went too far in this case

59.

and that this Court should resolve these

issues. If allowed to stand, the holding

of this case that stipulated judgments are

void will immediately leave thousands of

children without any support. Clearly the

Fourteenth Amendment does not require

appointment of counsel where, as in this

case, only money is at issue; and,

further, the Fourteenth Amendment does not

require a prejudgment hearing before a

stipulated judgment can be entered.

60.

For the foregoing reasons, then, it is

respectfully requested that a writ of

certiorari issue in this to resolve these

important issues and that thereafter this

Honorable Court reverse the Judgment of

the California Court of Appeal.

Respectfully submitted,

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief

Assistant Attorney General

-- Criminal Division

S. CLARK MOORE,

Assistant Attorney General

NORMAN H. SOKOLOW,

Deputy Attorney General

ANDREW D. AMERSON,

Deputy Attorney General

and Attorney of Record

Attorneys for Petitioner

61.