Right to counsel

Litigation, Paternity - Defendant/Respondent

In Hepfel v. Bashaw, 279 N.W.2d 342 (Minn. 1979), the court flexed its supervisory power to rule there is a right to counsel for indigent defendants in paternity suits.


Bashaw, an eighteen-year-old indigent high school student without legal representation, signed an agreement with the county attorney that admitted his paternity, waived his rights as the father, and consented to future adoption. According to Bashaw, the county attorney told him that unless he signed this agreement, he would be charged with forcible rape.  T


Upon rehearing in the Minnesota Supreme Court, the court held that counsel must be provided to indigent defendants in all paternity adjudications when the complainant is represented by the county attorney. Although the Hepfel defendant argued that the Due Process or Equal Protection clauses required the appointment of counsel in these paternity cases, the court declined to decide the constitutional issues, finding that its conclusion in the case "renders resolution of such a dubious contention unnecessary."  The court instead relied on its supervisory power, the purpose of which is "to ensure the fair administration of justice."

The court found that justice could only be served in these types of paternity cases if it exercised its supervisory power to require appointed counsel, stating that "absent . . . a legislative approach and solution, it appears . . . that the accurate determination of paternity, given the present adversary nature of the proceeding, is best promoted by a system that ensures the competent representation of both sides to the controversy." Although the court did not apply Lassiter or Mathews, it essentially relied on the Mathews factors in finding a right to counsel: the significant risk of erroneous deprivation, the strength of the interest of the child and putative father (including a risk of incarceration for the latter), and the pressure on the state to find paternity in order to avoid losing federal funding.


The court rejected the argument that the right to counsel could not exist in paternity actions due to their classification as civil proceedings. Recognizing that paternity actions are civil in nature, the court nevertheless stated, "We are not persuaded, however, that the 'civil' label attached to paternity adjudications dictates that the appointment of defense counsel be denied."  The court turned to its own jurisprudence, stating that in recent years it had given "increased attention to the right to counsel in noncriminal proceedings," especially those like driver's license revocations in which important constitutional rights could be lost through an adversarial proceeding.  Applying that reasoning to paternity actions, the court found that the defendant's substantial interests in a paternity action weigh in favor of finding that a right to counsel should apply.  The court pointed to the multitude of different interests at stake:


The paternity defendant, of course, has a substantial interest in the accuracy of the adjudication. He has a direct financial interest, for as an adjudicated father he will be ordered to contribute to the support of the child throughout its minority. Similarly, in light of recent case law, the adjudicated father's estate can also be burdened by the child's claims to inheritance, workers' compensation benefits, and insurance proceeds ... In addition to his financial interests, the defendant, if found to be the father, is also indirectly threatened with loss of liberty, since incarceration may be imposed for criminal nonsupport under § 609.375 ... Finally, the social stigma resulting from an adjudication of paternity cannot be ignored.

Appointment of Counsel: categorical Qualified: yes