Right to counsel

Key_development Question_mark

Litigation, Paternity - Defendant/Respondent

In State ex rel. Graves v. Daugherty, 266 S.E.2d 142 (W.Va. 1980), the Supreme Court of West Virginia found a right to counsel in paternity cases under the state constitution where the state is the plaintiff. It led off by holding, "[o]ur state constitutional due process right to counsel requires court-appointed attorneys in criminal and civil actions which may constrain one's liberty or important personal rights."  It pointed out its prior holdings finding a right to counsel in matters such as termination of parental rights and civil commitment, and again declined to draw a line between criminal and civil cases. The court relied on the fact that the state is the plaintiff in paternity cases:


Criminal prosecutions are characterized by the sovereign's use of resources and expertise to deprive citizens of liberty, property, and reputation interests. They carry the right to trial by jury. All these factors are present in paternity prosecutions. The putative father is arrested by authority of a warrant and brought before a magistrate. He is required to post a bond to guarantee his appearance at trial and may be imprisoned if he does not make that bond ... The action is prosecuted by a county prosecutor and can be brought in the name of the  county. A defendant has an absolute right to trial by jury. If determined to be the father, a defendant is required to support and maintain his child until its majority, and if he does not, he can be jailed.


The court then looked to its prior decision in Eastern Associated Coal Corp. v. Doe, 220 S.E.2d 672 (W. Va. 1975), which had held that for criminal contempt proceedings, "if the penalty to be imposed is more than 'trivial,' certain basic procedural due process requirements applicable in ordinary criminal cases are equally applicable in contempt proceedings."  It then took this holding out of the contempt context, restating the holding in Doe to be broadly (i.e., not just confined to contempt) that "where the penalty is not trivial as determined from the facts of the case, due process requires appointed counsel for indigents."  The court then held:


It is not trivial to force a man to pay a fixed sum of money each month for up to eighteen years. And it is not trivial for a man to be subjected to sanctions, including indeterminate incarceration, if he fails to pay ... The results of a finding of paternity are often more severe than ones that attend violations of criminal laws, municipal ordinances or civil contempts, for the defense of which counsel must be provided to indigents…The significant liberty and property consequences of a paternity determination require utmost due process protection. The state comes well represented by attorneys when it hauls a putative father into court; fairness and justice demand that he be provided court-appointed counsel if he is indigent.


The court concluded by agreeing with Salas v. Cortez, 593 P.2d 226, 232 (Cal. 1979), which had said, "Unless the rights of indigent paternity defendants are protected, courts risk finding not the right man, but simply the poorest man to be the father of a child. If paternity is to be determined in an adversary proceeding at the behest of the state, surely the interests of all concerned demand that the defendant be able to defend fully and fairly. He cannot do so when his indigency prevents him from obtaining counsel."


Although the Graves decision itself is somewhat unclear on this, a later case held that Graves "found that [the paternity defendant] had a right to counsel under the Due Process Clause of Article III, Section 10 of the West Virginia Constitution …"  Moore v. Hall, 341 S.E.2d 703, 705 (W. Va. 1986).

Appointment of Counsel: categorical Qualified: yes