Bowerman v. Ballinger, 431 Mich. 1 (Mich. 1988)

Brickley, J.

We granted leave in these two cases limited to three issues. First, whether a search warrant or an evidentiary hearing is necessary prior to a trial court’s order of a blood test in a paternity case. Second, whether a defendant father in a paternity case may be held in contempt where he refuses to submit to a blood test. Third, whether a default judgment may be entered in favor of a plaintiff mother in a paternity case where the defendant refuses to submit to a blood test.

We hold that where the mother of a child files a verified complaint in accordance with § 4 of the Paternity Act,1 neither a search warrant nor an evidentiary hearing is required prior to ordering blood tests. We further hold that a contempt citation is a permissible sanction where the alleged

father refuses to submit to the testing, but, that the use of a default judgment conflicts with the Paternity Act.

i

In Bowerman v MacDonald, the plaintiff filed a verified paternity complaint and subsequently filed a motion for blood or tissue tests which the court granted. At a pretrial conference, the defendant’s attorney notified the court that MacDonald would not submit to the testing. The trial court tentatively ruled that defendant would be held in contempt and would be jailed for thirty days or until he agreed to submit to the tests, whichever occurred first. After a challenge from the defendant and briefing on the issue, the trial judge concluded that contempt was an appropriate sanction, and issued an order to that effect after giving defendant another forty-eight hours to submit to the testing. On appeal, the Court of Appeals2 did not reach the question of the propriety of the contempt order, since it reversed the trial court’s original order that defendant submit to the blood tests. Plaintiff appeals from that decision.3

In Moon v Ballinger, defendant also refused to submit to blood testing, and the trial court conditionally entered a default judgment in plaintiff’s favor pursuant to Michigan Court Rules 2.311 and 2.313. The Court of Appeals4 affirmed the judgment, and defendant appealed in this Court._

n

The nature of paternity actions has undergone considerable evolution since the passage of the original Bastardy Act of 1846.5 With minor exceptions, the civil aspects of the action, as defined by statute and case law have steadily increased while those aspects reflecting principles of criminal procedure have been reduced or eliminated altogether. Indeed, the Legislature’s explicit purpose in passing the 1986 amendment of the Paternity Act was to "make[ ] it finally clear that paternity is a civil issue.”6 In addition, the relevant technology has, over time, developed so as to allow blood and tissue testing to play an increasingly important and probative role in such cases.7

At common law, a father had no duty to care for his child born out of wedlock. State v Lindskog, 175 Minn 533; 221 NW 911 (1928). In 1846, the Legislature enacted the Bastardy Act to define such a duty and provide a statutory mechanism by which he could be required to fulfill it. The act was said to have two purposes: to require the child’s father to provide support, and to protect society from having to provide that support in his stead. Cross v People, 8 Mich 113 (1860). Even under this early statute, however, punishment of the father was never among its purposes, and the act did not provide for criminal penalties. Moreover, as is described below, the cases decided pursuant to the Bastardy Act tended to apply civil

rules, absent specific statutory instruction to the contrary.

Nevertheless, the proceeding was considered "quasi-criminal,” in light of the many aspects of criminal procedure present in the statute. The 1846 statute provided that the mother was to bring her complaint to a justice of the peace in order to "institute a prosecution,” following which the justice of the peace was to "take her accusation and examination, in writing, under oath, respecting the person accused, the time when and place where the complainant was begotten with child, and such other circumstances as the said justice shall deem necessary, for the discovery of the truth of such accusation.” A warrant was then to be issued for the defendant’s arrest. No provision was made for any means of service other than arrest. Upon the delivery of the defendant, the justice of the peace was to "hear[] him in his defence” and could then require him to supply a bond or be jailed until trial if he did not supply the bond. The trial was to be by jury, and the verdict was to be in the form of "guilty or not guilty.” In addition, the mother of the child was not referred to as "plaintiff” in the statute (she was instead termed "the complainant”), while the alleged father was termed, "the defendant.” The action was accordingly instituted in the name of "the people” and representation was by the local prosecutor.

This Court evaluated the Bastardy Act on many occasions. In spite of the numerous aspects of criminal procedure provided for in the act itself, we applied rules of civil procedure in the great majority of cases where the act was silent. We held that the burden of proof was "preponderance of [the] evidence” rather than "beyond a reason

able doubt,”8 that extradition could not be had in a bastardy case,9 that jurisdiction did not lie in a court having a purely criminal jurisdiction,10 that the paternity defendant need not enter a plea,*11 that any detention of the defendant had to take place in a jail rather than in a prison,12 that the mother may employ her own attorney,13 that reversal was not required where there was instructional error which would have required reversal in a criminal case,14 and that offers to compromise would be treated as they would in a civil matter.15

At the same time, a small number of cases did apply rules more associated with criminal procedure. The result in most of these cases, however, was mandated by statute. For example, in Cady v St Clair Circuit Judge, 139 Mich 618; 102 NW 1025 (1905), we held that a bastardy defendant could be arrested even though he was immune from civil process. That holding rested upon the fact that the act required that the defendant be arrested and did not permit the use of civil process. Similarly, in People v Kaminsky, 73 Mich 637; 41 NW 833 (1889), we found that the police courts had jurisdiction to bind over bastardy defendants. However, that decision was mandated by the court’s jurisdictional statute.

The only two cases in which we applied criminal rules to Bastardy Act cases, absent a statutory imperative, were People v Stoeckl, 347 Mich 1; 78 NW2d 640 (1956), and People v McFadden, 347

Mich 357; 79 NW2d 869 (1956). In the former, we held that it constituted error requiring reversal for the prosecutor to comment on a defendant’s refusal to testify. In the latter, we held that a bastardy defendant must give notice of an alibi defense.16

In 1956, the Legislature passed the Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., which in a number of respects decriminalized the procedure governing bastardy cases. Most important, it eliminated the requirement of the issuance of an arrest warrant unless the purported father failed to respond to notice by summons. While warrants were still permitted, the court, in its discretion, could use a summons instead of a warrant. MCL 722.714(c); MSA 25.494(c). Even where a warrant was issued, the statute barred the fingerprinting or the photographing of the alleged father, or the listing of his name on any criminal record. MCL 722.714(e); MSA 25.494(e).

The statute also adopted the civil approach to jury trials. Rather than providing for the right to a jury, it instead required that the defendant demand a trial by jury, should he want one. MCL 722.715(a); MSA 25.495(a). In 1966, the statute was amended so as to fully accord with general civil procedure by stating that "[ejither party may demand a trial by jury.” In addition, the Paternity Act eliminated the requirement of a preliminary hearing and required instead that the complaint be verified by oath or affirmation of the complainant. MCL 722.714(c); MSA 25.494(c). Consistent with these provisions for civil procedure, the Paternity Act also included a provision allowing for default in paternity actions. MCL 722.717(a); MSA 25.497(a)._

The Paternity Act also made it possible to sue a defendant residing in Michigan even though the mother and child resided out of state. This change indicates a stronger emphasis on the protection of the mother and child, i.e., private parties to the suit, rather than the state, since no state funds could, in such a setting, have been sought for the support of the child.

In the same vein, while the Bastardy Act had referred to "the defendant,” the Paternity Act refers to "the alleged father,” and all actions after the passage of the act were taken in the name of the mother rather than the people.

Perhaps in recognition of the fact that a purported father could still face arrest and incarceration under the Paternity Act, the Legislature also provided that he had a right to refuse to testify.

Lastly, the act reflected the technological developments of the times. Blood typing more and more had become a common component of paternity cases, and the act included a provision which gave the purported father the right to request blood typing of the mother and child. This provision reflected our holding in People v Nichols, 341 Mich 311; 67 NW2d 230 (1954). In that case, we held that the results of blood testing could be introduced in paternity cases only to prove nonpaternity. The use of blood testing to check for the possibility of paternity was only a few years old at that time, and the plaintiff had introduced evidence of nonexclusion. This Court, focusing essentially on the state of the technology, held that evidence of exclusion was admissible, but that evidence of nonexclusion was not, since it "had not the slightest probative value or tendency to prove defendant’s paternity.” Id. at 331. The technology of the day was such that if the defendant was not excluded, he remained in a very large population

of possible fathers. Comment, Proving paternity by means of serological testing: Should it be admitted as evidence by the courts?, 1981 Det CLR 47. Pursuant to the Paternity Act, if the mother refused testing, the fact of her refusal would be made known to the jury. MCL 722.716(a); MSA 25.496(a).

The Paternity Act was, in numerous respects, a significant break from its predecessor statute. It introduced the use of a new and often dispositive type of evidence, and, in nearly all respects, it directed the judiciary to apply rules of civil procedure.17

Prior to any decisions of record under the new act, the General Court Rules of 1963 were adopted. They contained a special rule, GCR 1963, 730, for paternity cases. GCR 1963, 730.1 stated the general rule of procedure for such cases:

The adoption of this rule went a long way to resolve arguments as to the nature of the pater

nity action. Since its adoption, every Court of Appeals decision has applied the general rules of civil procedure to paternity cases, providing they did not contradict the Paternity Act or Rule 730. The first three decisions of the Court of Appeals clearly reflected this approach. In Houfek v Shafer, 7 Mich App 161; 151 NW2d 385 (1967), the Court of Appeals applied the general court rule as to pretrial conferences. In Romain v Peters, 9 Mich App 60; 155 NW2d 700 (1967), the Court held that, unlike criminal trials, paternity cases do not require that the jury’s verdict be unanimous. In Butler v Cann, 62 Mich App 663; 233 NW2d 827 (1975) , the Court of Appeals held that a default judgment may be entered against a paternity defendant when he fails to appear for trial.

After these three Court of Appeals decisions, this Court decided the only case in which we have addressed the Paternity Act. In Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976) , we held that Paternity Act defendants have a right to appointed counsel pursuant to the due process provision of the Michigan Constitution, art 1, § 17. The Court observed that

Of primary importance to the Court was the fact that, if the mother was unable to afford an attorney, the county would pursue the action for her. We stated that

ation of fundamental fairness should apply to the defendant .... [Id. at 59.]

We also noted that unlike divorce proceedings, paternity cases involve sharply contested questions of fact and their purpose is to "determine with finality the obligation of support, and not merely ... an appropriate level of support.” Id. at 58. In other words, the Court was concerned with an indigent purported father’s ability to defend himself in a complex matter which would create financial obligations lasting until the child attained majority. For example, "[a]n unrepresented paternity defendant . . . may be unaware of his statutory right to demand blood tests or unable to analyze the legal implications of the results.” Id. The Court also noted the remaining element of criminal procedure in paternity cases, i.e., the fact that the purported father could be arrested rather than served by civil process.19

The Court of Appeals has consistently interpreted Artibee in a narrow manner and correctly so. The asymmetry of providing an indigent plaintiff with an attorney, while denying the same to an indigent defendant, presents obvious problems of fundamental fairness. In addition, the importance of representation by counsel is heightened where

the question is one regarding parental and custodial responsibilities. See Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976). It would be erroneous to conclude that the application of this particular and clearly demarcated right was intended to suggest that the full panoply of criminal procedural rights were to be afforded.

This has been recognized by the Court of Appeals which continues to approach paternity cases as essentially civil, and, in accordance with GCR 1963, 730.1, has applied the rules of civil procedure. Indeed, the Court has refused numerous opportunities to extend Artibee beyond its facts. In People v Marshall, 82 Mich App 92; 266 NW2d 678 (1978), it held that a showing of indigency for purposes of obtaining appointed counsel did not, in and of itself, entitle a defendant to blood testing and a jury trial at county expense. The Court stated that "[w]e cannot say that a paternity action is a 'criminal prosecution’ for purposes of the constitutional jury trial guarantee.” Id. at 96. In Covington v Cox, 82 Mich App 644; 267 NW2d 469 (1978), lv den 405 Mich 826 (1979), the Court of Appeals confirmed that view, holding that a defendant must demand a jury. Moreover, the Covington panel held that a paternity defendant who receives ineffective assistance of counsel may not seek reversal on that basis. His only remedy in such a case is a malpractice suit. The Court stated:

tary, an action for malpractice provides an adequate remedy for incompetent representation; whereas, such an action obviously would be ineffectual to compensate a wrongfully convicted criminal defendant. [Id. at 651.]

Shortly thereafter, another panel of the Court of Appeals held that Artibee did not overrule Semon v People, 42 Mich 141; 3 NW 304 (1879), which had held that the standard of proof in a paternity case is "preponderance of the evidence.” Huggins v Rahfeldt, 83 Mich App 740; 269 NW2d 286 (1972).

In the most recent set of cases, the Court of Appeals has carefully adhered to the requirements of the court rules. In Elmore v Ellis, 115 Mich App 609; 321 NW2d 744 (1982), the Court of Appeals, finding no contradiction in GCR 1963, 710 or the act itself, applied the civil rule governing witness lists. In Hoffman v Campbell, 129 Mich App 114; 341 NW2d 246 (1983), the Court held that a voluntary dismissal of a paternity case did not bar a subsequent action, since GCR 1963, 504.1(2) so provided for civil cases and there was no contradictory provision in GCR 1963, 730 or in the Paternity Act. Pridemore v Williams, 90 Mich App 483; 282 NW2d 363 (1979), was the only case in which the Court of Appeals did not apply the relevant rule of civil procedure. However, in that case the panel held that GCR 1963, 309 and 313, which would have required the defendant to answer interrogatories, were contradicted by the Paternity Act provision which permits a paternity defendant to refuse to testify. Indeed, the Court based its conclusion that the act must control on the language of GCR 1963, 730 itself. In that sense, the court rules controlled in even this case.

While the judiciary has continued to stress the primarily civil nature of paternity actions, the

Legislature recently acted to eliminate virtually all remaining vestiges of criminal procedure. In 1986, an amendment was enacted which eliminated all provisions permitting arrest of a paternity defendant or requiring that he post bond prior to trial. Instead, the amendment requires that service be accomplished only by summons "served in the same manner as is provided by court rules for the service of process in civil actions.” MCL 722.714(5); MSA 25.494(5). In the Senate Legislative Analysis of the amendments, it is stated:

These amendments are consistent as well with the amendment adopted in 1982, which recognized the evolution of blood testing technology. The 1982 amendment provides that blood test results may be introduced, not only to exclude an alleged father from paternity, but also, if he is not excluded, to determine the likelihood that he is, in fact, the father. MCL 722.716(4); MSA 25.496(4). This amendment reflects the development of a technological ability to determine the probability

of paternity with great precision through blood and tissue typing tests.21

In sum, while we recognize that paternity actions are a "special legislative creation,” Artibee at 68 (Coleman, J., dissenting), we conclude that they are fundamentally civil in nature. The aspects of the action which led courts to define it as "quasi-criminal” have consistently been limited since the enactment of the Bastardy Act. Accordingly, procedure in paternity cases is controlled by MCR 3.212, which corresponds to GCR 1963, 730.

With this understanding of the nature of the paternity action, we can move to the cases at bar.

iii

The first question presented in Bowerman v MacDonald is what, if any, level of proof, beyond the information contained in a verified complaint, is required prior to an issuance of an order for blood tests.

In reversing the order that defendant submit to a blood test, the Court of Appeals noted that in Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966), a drunk driving case, the United States Supreme Court held that a blood test constitutes a search. It then stated:

blood test is justified because of the great importance to society that parents care for their children.

In essence, the Court of Appeals said that since the action is quasi-criminal, it requires a showing of "quasi-probable cause” or "quasi-reasonableness.” It did not, beyond requiring sworn testimony from the plaintiff, attempt to define such a standard. In our view, the Court of Appeals opinion is flawed both in its view of the nature of paternity cases and in its conclusion that more than a sworn complaint is required to provide a sufficient basis for the testing. The paternity case is essentially a civil case controlled by MCR 3.212, and therefore there is no reason to define a "quasi-criminal” requirement of a "quasi-probable cause” hearing. Moreover, to the degree that a paternity action is, in fact, a "special legislative creation” with some vestiges of a criminal action, the requirement that the mother file a sworn complaint

indicating when and where she was impregnated, as well as naming the defendant as the father, is sufficient to provide reasonable grounds to order the tests, and it is therefore unnecessary to hold a hearing.22

Consistent with the Court of Appeals approach, defendant argues that the procedure defined by the statute barring driving while intoxicated, MCL 257.625 et seq.; MSA 9.2325 et seq., should serve as a model for blood testing procedures in paternity cases. MCL 257.625a(5); MSA 9.2325(1X5) requires that a police officer have "reasonable grounds” before administering a chemical test and that if the person charged refuses to take the test, it may not be given without court order.

We do not agree that this statute sets forth procedures appropriate to paternity cases. Initially we note that driving under the influence of intoxicating liquor, unlike fathering a child out of wedlock, is a punishable offense. Further, where a police officer stops a driver and seeks to administer a test, it may be that no reasonable grounds for the test exist. The person may have been driving normally. Therefore, once there has been a refusal, the statute requires a court order in order to administer the test. In the paternity setting, the order is initially given by a neutral judge, and he already has before him the sworn complaint of plaintiff. Nothing more is necessary to determine the "reasonableness” of the test. The mother has, as required by § 4 of the act, stated under oath or affirmation when and where she became pregnant and that she believes that the defendant is the

father. This, in and of itself, constitutes "probable cause” insofar as such a standard is relevant here.

In a similarly flawed argument, defendant posits that the Fourth Amendment limits the use of blood tests in paternity cases, even if they are considered civil cases, and that the amendment is violated unless a search warrant is obtained or an evidentiary hearing is held prior to issuance of an order. He argues that the blood test in a paternity case implicates the Fourth Amendment since it involves state action, which he finds in the fact that the blood test is ordered by a court pursuant to statute. In his words,

The defendant has not cited, nor has our research revealed, any cases in which otherwise properly constituted discovery in a civil action has been held to constitute a violation of the Fourth Amendment.23 Assuming, nevertheless, that the Fourth Amendment is implicated, the search involved in the blood testing is, as we just described, a reasonable one. The plaintiff has filed a sworn complaint indicating when and where she became impregnated and her belief that the defendant is the father of her child. The statute accordingly requires that the court, on a motion of either party or on its own motion, order the testing. Such

a complaint clearly places the relationship of the child’s and parties’ blood and tissue types squarely in controversy and provides good cause for the motion. In addition, the decision to order the testing, i.e., engage in a search, was not made by a law enforcement officer or other nonjudicial officer of the state. It was made by a neutral judge, pursuant to a closely circumscribed statute which focuses upon a particular kind of evidence critical to all parties and perhaps, more importantly, to the child. The Legislature’s decision to require the provision of this evidence was based on an obvious rationale, and the requirement was, in this case, triggered by a verified complaint reviewed by a judge. To require a separate probable cause or quasi-probable cause determination would be repetitious, and to require sworn testimony as to information not required to be provided for in the verified complaint would place a burden greater than a showing of probable cause on the plaintiff. In addition, requiring such a hearing would burden the courts without reason and make determinations of paternity, particularly in the case of out-of-state mothers, all the more difficult.

Lastly, the defendant argues that there is a statutory and case law prohibition against using civil discovery in paternity cases. He observes that Pridemore v Williams, supra, held that a paternity defendant cannot be required to answer written interrogatories, since he has a statutory right to refuse to testify. Defendant thus argues that Pride-more demonstrated that the Paternity Act bars all discovery from a paternity defendant. However, the Paternity Act itself states:

blood or tissue typing tests .... [MCL 722.716(1); MSA 25.496(1).][24]

In light of this explicit requirement of the Paternity Act, any reliance upon it to limit blood testing is mistaken.

Finding no basis to require more than a sworn complaint upon which to base a blood test order in paternity cases, we reverse the judgment of the Court of Appeals in Bowerman and reinstate the trial court order requiring defendant to submit to blood and tissue typing tests.

iv

The remaining question in Bowérman is whether defendant may be held in contempt for refusing to submit to a blood test. This question bears a close resemblance to the one raised in Moon v Ballinger, in which defendant argues that a court may not enter a default judgment in plaintiffs favor where a paternity defendant refuses blood testing. However, the language of the applicable statutory provisions mandates differing answers to these two questions.

The trial court in Moon entered the default judgment in plaintiffs favor pursuant to MCR 2.311 and 2.313. MCR 2.311 is captioned, "Physical and Mental Examination of Persons,” and it reads in pertinent part:

This provision is then referred to in MCR 2.313, which is captioned, "Failure to Provide or to Permit Discovery; Sanctions,” and provides in subsection (B)(2):

The trial court in Bowerman held defendant in contempt for refusal to submit to the test pursuant to MCR 2.313(B)(2)(d) which provides that a refusal to submit to discovery provided for in MCR 2.311 may be sanctioned by

Ballinger argues that the default sanction may not be used in a paternity case because § 6(a) of the Paternity Act states:_

If the court orders any blood or tissue typing test to be taken and any party refuses to submit to the test, in addition to any other remedies available, the fact of the refusal shall be disclosed at the trial unless good cause is shown for not disclosing the fact of refusal. [MCL 722.716(a); MSA 25.496(a).][26]

Plaintiff Moon refers to the same statute, but instead emphasizes the phrase "in addition to any other remedies available,” suggesting that while disclosure is mandatory where there is a trial, it does not require that the case actually reach the trial. In other words, plaintiff suggests that where the "other remedy” of default is appropriate, no trial is required.

In our view, the proper interpretation of this statute is made apparent in the contrast between the use of the contempt sanction and the use of the default sanction. Contempt can be applied in addition to the disclosure of the refusal at trial. Default, if applied, obviates the need for a trial and cannot therefore be said to be used in addition to the disclosure at trial. Unlike the use of the contempt sanction, if a default judgment is entered, the very remedy which the statute mandates cannot be applied. We therefore conclude that while a contempt order may be used to sanction a refusal to submit to a blood test, a default sanction may not.

This conclusion is further supported by reference to another section of the statute.27 MCL 722.717(a); MSA 25.497(a) states:_

If the finding of the court or verdict be against the defendant, or if the defendant acknowledges paternity orally to the court or by the filing in the case of his written acknowledgment of paternity, or if he is served with summons or a warrant and a default is duly taken against him, the court shall make an order of filiation declaring paternity and for the support and education of the child. [Emphasis added.]

In this section the Legislature listed those events after which an order of filiation may be issued, i.e., a finding or verdict against the defendant, acknowledgment of paternity by the defendant, and a default due to a failure to appear. See Butler v Cann, supra. In doing so, the Legislature’s events expressed its intention28 to limit the grounds for a judgment of filiation to only those events listed. Therefore, the Paternity Act conflicts with the Michigan Court Rules insofar as they provide for a default judgment and thus an order of filiation, for failure to submit to a blood test. Indeed, to allow a default judgment to enter would contradict the clear and specific language of the statute.

We therefore vacate the default judgment in Moon v Ballinger and remand to the circuit court for proceedings consistent with this opinion.

v

We conclude that a plaintiff mother’s verified complaint is sufficient ground upon which to order

blood and tissue tests. Paternity actions are in essence civil actions and procedure in such actions is controlled by the Michigan Court Rules, absent contradiction in the Paternity Act. We therefore also conclude that a defendant father’s refusal to submit to such tests may be sanctioned by the use of the contempt power. However, while MCR 2.313(B)(2) provides that a trial court may enter a judgment by default against a party who disobeys a discovery order, in light of a conflicting provision in the Paternity Act, we hold that entry of a default judgment may not be used to sanction a defendant father for refusing to submit to testing.

Riley, C.J., and Levin, Cavanagh, Boyle, Archer, and Griffin, JJ., concurred with Brickley, J.