SALAS v. CORTEZ

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Court of Appeal, Second District, Division 5, California.

Julia Ann SALAS, Plaintiff and Respondent, v. Miguel Martinez CORTEZ, Defendant and Appellant.

David Joseph MORALES, a minor by Frank J. Adamich, his guardian ad litem, and County of Ventura, Plaintiffs and Respondents, v. David Duran CASTELLANOS, Defendant and Appellant.

Civ. 49976 and 49977.

Decided: April 26, 1978

Richard A. Weinstock and John A. Lefcourte, Ventura (Legal Aid Association of Ventura County), for defendants and appellants. James O. Barney and George Chaffey, Pittsburg (Contra Costa Legal Services Foundation), Rosalyn M. Chapman, Los Angeles (California Rural Legal Assistance Cooperative Legal Services Center), Erica Hahn and Joseph Charney, Los Angeles (Legal Aid Foundation of Los Angeles), as amici curiae on behalf of defendants and appellants. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Lawrence P. Scherb, II, Andrew D. Amerson and Pamela Nelson, Deputy Attys. Gen., for plaintiffs and respondents.

In these paternity and enforcement of child support proceedings, appellants, Miguel Martinez Cortez and David Duran Castellanos, were each found to be fathers of minor children and were ordered to pay child support. In consolidated appeals they argue that they were constitutionally entitled to have a court appointed attorney represent them at public expense.

In No. 49976, Julia Salas, the mother of a child, Miguel Martinez, born out of wedlock on January 28, 1972, brought an action to establish that appellant Miguel Martinez Cortez is the father of the child and to enforce his obligation to support the child. Salas was represented in the action by the District Attorney of Ventura County; she had received welfare benefits from the county (Aid to Families with Dependent Children, AFDC).

In No. 49977, the plaintiff is the minor child, David Joseph Morales, through his guardian ad litem, a family support officer in the office of the Ventura District Attorney. The minor was born out of wedlock to Cathy Morales on February 6, 1973. The action sought to have appellant David Duran Castellanos declared the father of the child. In the first cause of action, the minor sought child support. In the second cause of action, the County of Ventura sought reimbursement for support which it had provided to the minor. The minor and the county were represented by the district attorney.

California law authorizes the district attorney on behalf of the county to bring actions to enforce the child support obligations of an absent parent of a child receiving welfare benefits and for reimbursement of benefits provided. (Civ.Code, s 248; former Welf. & Inst.Code, ss 11350, 11475, 11488.)

Such actions received added impetus in 1975 when Congress enacted Public Law No. 93-647 and appropriated money “(f)or the purpose of enforcing the support obligations owed by absent parents to their children, locating absent parents, establishing paternity, and obtaining child support . . ..” (42 U.S.C. s 651 et seq.) The federal law requires the states to adopt a plan for enforcing such obligations, and reimburses the states for 75 percent of certain expenses involved in such enforcement activity. (42 U.S.C. ss 654, 655.) The regulations authorize such 75 percent reimbursement for the expenses of cooperative agreements with courts and law enforcement officials such as district attorneys for the enforcement of the act. (45 C.F.R. ss 304.20, 304.21.)

California has enacted new legislation to conform to the federal program. As a condition of eligibility for AFDC benefits, the parent receiving aid must assign to the county any rights to support from any other person and cooperate in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed. (Welf. & Inst.Code, s 11477.) It is the duty of the district attorney to investigate nonsupport or paternity and take all steps necessary to obtain support for the needy child and determine paternity in a case of a child born out of wedlock. (Welf. & Inst.Code, s 11476.) The district attorney may bring an action to establish paternity, to enforce the absent parent's child support obligation, and to seek reimbursement to the county of support which the county has provided to the family. (Welf. & Inst.Code, ss 11350, 11350.1, 11475 et seq.) The district attorney's child support enforcement services are, however, available to all individuals whether or not they are recipients of public social services. (Welf. & Inst.Code, s 11475.1.)

According to a declaration submitted to the trial court below, federal financial support for the district attorney's paternity and child support enforcement services has apparently led to a significant increase in such activity by the Ventura County District Attorney. This increase has, in turn, apparently led to increases in work loads of agencies who represent indigent defendants. The Legal Aid Association of the County of Ventura represents appellants on this appeal and seeks to establish a constitutional right of indigent defendants in paternity actions to have counsel appointed for them at public expense.1 While we recognize the potential difficulties faced by these individual appellants and the Legal Aid Association, there is no authority which requires or authorizes the court to appoint counsel for indigent defendants in such proceedings, nor is there a constitutional right to such appointment.

NO. 49976, SALAS v. CORTEZ

The complaint to establish paternity and provide child support in Salas v. Cortez was personally served on appellant Miguel Martinez Cortez on September 29, 1975. He answered the complaint in propria persona on October 27, 1975, denying all allegations of the complaint.

On February 17, 1976, appellant Cortez submitted a declaration requesting that the court appoint counsel for him. The Legal Aid Association of Ventura County assisted him in preparation of the declaration. It stated: That he is not the father of the child; that he does not speak, read, or write English and does not understand numerous documents filed by the district attorney's office; that he needs the assistance of an attorney but is unemployed and cannot afford one; that the offices of California Rural Legal Assistance in Santa Maria and the Legal Aid Association of Ventura County in Oxnard informed him that they could not advise or represent him because, although he qualified for their services, they do not have enough attorneys to advise or represent defendants in this type of matter; and that private attorneys had requested fees of $500 to represent him, which he could not afford. The court impliedly denied the appointment of counsel.

On March 15, 1976, Cortez appeared before the court. An interpreter was appointed, and Cortez was ordered to answer the district attorney's interrogatories. Cortez never answered the interrogatories nor did he answer the district attorney's request for admissions pursuant to Code of Civil Procedure section 2033 (see now, s 2030, subd. (e)): “1. That defendant is the father of Miguel Martinez, born January 28, 1972. (P) 2. That defendant is able to pay child support in the amount of seventy-five dollars ($75.00) for support of Miguel Martinez . . ..” The district attorney sent a letter to Cortez warning him that “(u)nless you take proper legal steps prior to trial, it is our intention to obtain a court order in accordance with matters contained in the request for admissions.”

Cortez did not appear for trial May 12, 1976, nor did counsel appear for him. Julia Salas testified, the court took judicial notice of the request for admissions, and the district attorney's letter was admitted into evidence. The court found Cortez to be the father of the child and ordered him to pay child support of $75 per month and $300 in past temporary support ordered, all payable through the district attorney's office.

The notice of appeal and designation of record on appeal were filed on Cortez' behalf by the Legal Aid Association.

NO. 49977, MORALES v. CASTELLANOS

The complaint to establish paternity, to provide support, and for reimbursement of welfare funds was personally served on appellant David Duran Castellanos on September 25, 1975. He answered the complaint in propria persona on November 7, 1975, denying all the allegations of the complaint and requesting that the court appoint an attorney for him. On November 18, 1975, the Legal Aid Association filed on his behalf a motion for appointment of counsel and declarations and points and authorities in support thereof. Castellanos declared that he is unemployed and cannot afford an attorney; that the public defender had declined to represent him because it was a civil matter; that he has “sought assistance from the Legal Aid Association of Ventura County but they say they do not represent defendants in cases of this nature although they will prepare papers so that I can try to defend myself”; and that he had sought the assistance of private attorneys, but they required fees of $500 to $1,000 which he could not afford to pay.

Richard Weinstock, executive director of the Legal Aid Association of Ventura County, declared: That the Legal Aid Association of Ventura County employs 7 attorneys and represents approximately 3,000 persons per year “in all areas of Civil Law, including (paternity actions such as this one), consumer complaints, garnishments, wage claims, welfare, social security, veterans benefits, unemployment insurance, landlord/tenant, public housing, dissolutions, guardianships, adoptions, immigration, driver's license revocations, employment discrimination, housing discrimination, education, housing code violations, real property transactions, income taxes, probate and occupational health and safety”; that the association currently represents 10 defendants in paternity actions such as this; that the number of district attorney filings in such matters is expected to increase in 1975-1976 to 1,900 paternity actions and 5,000 civil complaints as a result of the federal subsidy; that “(t)hese increased filings by the District Attorneys Office have resulted in our office being involved in a disproportionate number of such cases to the detriment of our representation in other areas of Civil Law. Accordingly, I have directed the attorneys in our offices to refrain from representing new applicants for our services in such paternity or reimbursement cases. (P) The current policy, therefore, is to advise such indigent applicants, attempt to secure private representation and if unsuccessful help the applicant file an Answer in propria persona if it appears that he has meritorious defense”; and that for these reasons the association would not represent Castellanos or serve as appointed counsel without compensation.

After receiving the county's points and authorities in opposition to the motion, the court denied the motion for appointment of counsel. Interrogatories and request for admissions were served on Castellanos, which he never answered.

Castellanos did not appear at trial June 9, 1976, nor did counsel appear for him. The matter was submitted on the transcript of the testimony of the mother, Cathy Morales, at the hearing on the previous motion for temporary child support, and documentary evidence. The court found Castellanos to be the father of the child, and ordered him to pay $50 per month child support and to reimburse the County of Ventura $1,214.50 for past support provided by the county, all payable through the district attorney's office.

A notice of appeal and designation of the record on appeal was prepared on Castellanos' behalf by the Legal Aid Association.

DISCUSSION

Appellants contend that an indigent defendant in a paternity and enforcement of child support action brought by the district attorney has a constitutional right to have an attorney appointed for him at public expense. This argument was recently rejected in Ford v. Herndon, 62 Cal.App.3d 492, 498-499, 133 Cal.Rptr. 111, 115, where the court stated:

“The absolute due process requirement is that no person be imprisoned for an offense unless he is represented by counsel at trial. (Argersinger v. Hamlin (1972) 407 U.S. 25, 37 (92 S.Ct. 2006, 32 L.Ed.2d 530); Cal.Const., art. 1, s 15.) 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. (In re Love (1974) 11 Cal.3d 179, 189 (113 Cal.Rptr. 89, 520 P.2d 713).)

“We are not confronted by a criminal or quasi-criminal proceeding, nor are any personal freedoms involved requiring us to undertake a balancing test of the circumstances to determine if, in fairness, counsel must be afforded.

“The instant proceeding is a civil action instituted by Sarah Ford in an effort to have defendant legally declared to be the natural father of her child born out of wedlock. The happenstance that her counsel is public rather than private does not change the nature of the proceeding or bring it within the area of a case by case determination of need in civil proceedings such as described in Cleaver v. Wilcox (9th Cir. 1974), 499 F.2d 940. California has by statute required appointment of counsel or authorized it (Civ.Code, s 237.5; Welf. & Inst.Code, s 634) in proceedings involving potential loss of parental custody to public authority. (Civ.Code, s 232; Welf. & Inst.Code, s 600.) That requirement or authority has not by legislative fiat or judicial decree been extended to paternity determinations. The due process claim to counsel is without merit.” (Emphasis in original.)

Appellants attempt to distinguish Ford on the ground that the quoted discussion was dictum, since the record on appeal in that case did not actually establish the defendant's indigency. (Id., at p. 498, 133 Cal.Rptr. 111.) This distinction is unpersuasive. The court squarely faced the issue, and in our opinion correctly resolved it.2

There is no constitutional right to appointed counsel for indigent defendants in cases which do not involve criminal or quasi-criminal proceedings. (Hunt v. Hackett, 36 Cal.App.3d 134, 137-138, 111 Cal.Rptr. 456.) This proceeding to establish paternity is not criminal or quasi-criminal. Only if appellants wilfully fail to support their children would they be subject to a subsequent criminal prosecution under Penal Code section 270. While the judgment in the instant case would be admissible in such a proceeding, pursuant to Penal Code section 270e, it would not be conclusive on the issue of paternity nor would it relieve the prosecution of proving guilt beyond a reasonable doubt. (Patterson v. Municipal Court, 232 Cal.App.2d 289, 299, 42 Cal.Rptr. 769.) Although conceivably the defendant in the paternity action might make statements which could be used against him in a prosecution under Penal Code section 270, the criminal proceeding is collateral to the paternity action, and such collateral consequences do not require appointment of counsel in the paternity proceeding. (Borror v. Department of Investment, 15 Cal.App.3d 531, 539-541, 92 Cal.Rptr. 525 (possibility of subsequent criminal action does not require appointment of counsel in administrative proceeding).)

If appellants fail to obey the order of the court to pay child support, they could be found in contempt of court pursuant to Code of Civil Procedure section 1209.5. However, this is true of violations of court orders generally. (Id.)

Appellants correctly point out that the consequences of a finding of paternity are extremely significant, but these consequences are primarily financial; they are not quasi-criminal. The duty to support one's child may conceivably be enforced beyond the child's majority (Civ.Code, s 206); the child will inherit if the parent dies intestate (Prob.Code, ss 221-222, 255, subd. (d)) or if the parent leaves a will which does not affirmatively exclude the child (Prob.Code, s 90); court-ordered child support is not dischargeable in bankruptcy (11 U.S.C. s 35(a)(7)); and is more freely enforceable by garnishment than ordinary debts (15 U.S.C. s 1673(b)(1)). These are differences in degree, but not in kind, from ordinary civil judgments. A judgment of paternity may adversely affect the parent's reputation, but this is also true of many types of civil judgments.

Appellants' analogy to cases where custody of the child is taken from a parent (Cleaver v. Wilcox, supra, 499 F.2d 940) obviously is not valid. Different types of interests are at stake in such proceedings, whereas primarily economic interests are involved here. Furthermore, the authority for appointment of counsel in such removal of custody cases was provided by the Legislature (Civ.Code, s 237.5; Welf. & Inst.Code, s 634), not by judicial fiat. (Ford v. Herndon, supra, 62 Cal.App.3d at p. 499, 133 Cal.Rptr. 111.)3

There is simply no statute or case which authorizes the court to appoint counsel for appellants in this type of proceeding. Whether to provide counsel at public expense in such proceedings is not up to this court but to the Legislature, which must weigh the different interests involved. The Legislature has made no provision for such appointment in the Uniform Parentage Act (Civ.Code, s 7000 et seq.). Indeed, when originally introduced as Senate Bill No. 347 in the 1975-1976 Legislature, the act contained a proposed section 7019 which would have expressly required that the court appoint counsel for a party financially unable to employ counsel. This provision was deleted.

In addition to their main argument based upon constitutional due process and equal protection for indigents, appellants raise several other contentions which clearly lack merit. First, it is contended that Congress intended to fund the costs of counsel for both the plaintiff and the defendant, and that a state program which fails to finance defense counsel is inconsistent with federal law. On the contrary, there is nothing in the federal act, federal regulations, or legislative history which indicates an intent to authorize or require the funding of appointed counsel for indigent defendants. (See 42 U.S.C. ss 654(7), 655; 45 C.F.R. ss 304.20, 304.21 (1975); 1974 U.S.Code Cong. & Admin.News, at pp. 8152-8153.)

It is argued that in authorizing the district attorney to bring a “ paternity” action, Welfare and Institutions Code section 11475 et seq. unlawfully discriminate against males. This contention is without merit. As a practical matter it would be extremely rare to have to bring a court action to establish a mother's “maternity.” If such case arose, the statutes would be construed to authorize an action against the mother and thus males and females would be treated equally. (Crookham v. Smith, 68 Cal.App.3d 773, 779, 137 Cal.Rptr. 428 (Welf. & Inst.Code, s 11350.1); Civ.Code, s 7015; see Commissioners' comment to s 21 of the Uniform Parentage Act (Civ.Code, s 7015) at 9 Uniform Laws Annotated, p. 464 (1974-1977 Supp.Pamphlet).)

Appellants' contention that unless counsel is appointed for the defendant the paternity proceeding merely “rubber stamps” the district attorney's investigation and therefore unlawfully “delegate(s) the judicial power of the state to the district attorney,” is obviously without merit. Likewise without merit is the argument that the plan violates the rights of the mother and child to control their own litigation. Clearly the child cannot choose for itself when to litigate the matter. In the case of a parent who has received welfare benefits, such parent is not even a necessary party and the action is brought in the state's own interest as assignee of the parent's rights. (42 U.S.C. s 602(a)(26); Welf. & Inst.Code, ss 11350.1, 11477.) In the case of a parent who has not received welfare benefits, the district attorney would not likely proceed except at the parent's request. (Welf. & Inst.Code, s 11457.1.)

CONCLUSION

Appellants were personally served and thus properly notified of these proceedings. It is regrettable that they were unable to find counsel to represent them on a pro bono basis or that the Legal Aid Association chooses to give higher priority to other types of legal matters. Since appellants were neither represented by counsel nor did they appear at trial, we are left with a sense of incompleteness of the record. Whatever one's misgivings about the consequences of these judgments to these appellants, however, the solution does not lie in creating by court decision a constitutional right to appointed counsel for indigent defendants in civil cases. The financial implications of such a decision are huge and beyond the capability of this court to determine. It is primarily the Legislature which must determine whether and by what means and to what extent the taxpayers should support the defense of such cases.

Appellants of course argue that these proceedings are unique, and that the declaration of a constitutional right to appointed counsel in such proceedings would not necessarily lead to finding that right in other cases. We are not persuaded by that argument. Appellants' liberty is not at stake. These actions are clearly civil in nature. To judicially declare a right to court-appointed counsel in these cases would inevitably lead to demands on other courts to extend the right to other government-initiated proceedings which involve significant financial or collateral consequences.4 We decline to declare such a right, which is not supported by existing authority.

The judgments are affirmed.

These appeals present a well-encapsulated question of constitutional import: whether the state can impose the direct and indirect, civil and criminal consequences of a paternity judgment on an unrepresented indigent. The unique statutory framework, substantive and procedural, that surrounds paternity actions and judgments refutes the suggestion that a negative answer to that narrow question compels a quantum leap to the proposition that all indigent civil defendants are entitled to appointed counsel. It is the genius of the common law method that it permits us to proceed incrementally, with convenient resting places where we may look, listen, and, if so advised, stop or even retreat. If the courts had permitted themselves to be paralyzed by the “where will it all end” syndrome, Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 would still be good Sixth Amendment law, while Winterbottom v. Wright, —- U.S. ——, 98 S.Ct. ——, 54 L.Ed.2d —— would be the last word on products liability.

It is my belief that the interests involved in a paternity action compel the conclusion that fundamental fairness requires the appointment of counsel for an indigent defendant. Even if this result is not compelled by any single factor considered in isolation, cumulatively the stakes are too fundamental to permit us to require an indigent to go it alone.

First, and most obviously, a defendant in a paternity action is just that: A person involuntarily before the court. (See Payne v. Superior Court (1976) 17 Cal.3d 908, 926-927, 132 Cal.Rptr. 405, 553 P.2d 565.)

Second, the interest involved that of the parent-child relationship is a significant one, deserving of somewhat different treatment than ordinary disputes. (See In re Lisa R. (1975) 13 Cal.3d 636, 640, 119 Cal.Rptr. 475, 532 P.2d 123.)

Third, the consequences of a judgment that a defendant is the father of a child are momentous. The relationship of parent and child does not terminate when the child reaches majority. Thus, because the judgment determining the existence of that relationship “is determinative for all purposes” except for actions brought under Penal Code section 270, discussed below the result of these proceedings may follow the defendant to the grave (Civ.Code, s 206)1 and beyond. (Prob.Code, s 255, subd. (d).)2

Fourth, the payments ordered in the judgment or in any later judgment of support are more freely enforceable by garnishment than are ordinary debts (15 U.S.C. s 1673(b)(1); Code Civ.Proc., s 690.6), and are not dischargeable in bankruptcy. (11 U.S.C., s 35(a)(7).)

Fifth, the duty of support which follows from a finding of paternity, may affect a defendant's freedom, since a failure to support is subject to criminal prosecution (Pen.Code, s 270), and in a prosecution under that section “the final establishment of paternity or nonpaternity in another proceeding shall be admissible as evidence of paternity or nonpaternity.” (Pen.Code, s 270e.)3 It is hardly a sufficient answer that, as the majority suggests, such evidence is not conclusive. Realistically the paternity trial is a critical stage in the criminal prosecution.

Sixth, the determination that a man has fathered a so-called illegitimate child may affect his reputation. Particularly where the father ignores his children and their mother, his conduct is not approved by society. (See Jimenez v. Weinberger (1974) 417 U.S. 628, 632, 94 S.Ct. 2496, 41 L.Ed.2d 363.)

Finally, the disadvantage that is doubtless suffered by any unrepresented defendant in a civil action is further compounded in paternity actions such as these in which the power of the state is brought to bear against the defendant. The action is prosecuted by the district attorney (see Civ.Code, ss 248, 7006, subd. (f); Welf. & Inst.Code, s 11350), and, once the judgment is obtained, the state may enforce that obligation, either, as discussed, through the criminal process or under the Uniform Civil Liability Act (Civ.Code, ss 241 et seq.) and interstate assistance statutes. (See 42 U.S.C. ss 651-655.)

Given these factors, the state's characterization of defendants' position as those of “ordinary civil litigants” is inapposite. Whether we use the label “fundamental” or “significant,” or no label at all, too much is at stake in a proceeding to determine the existence of the parental relationship for the indigent defendant to be required to do without counsel. Fairness requires that, notwithstanding the increased costs, the state, must, directly or indirectly, provide such a defendant with an attorney.4

I am aware that in Ford v. Herndon (1976) 62 Cal.App.3d 492, 133 Cal.Rptr. 111, the Third District ruled, possibly in dictum, that an allegedly indigent defendant in a paternity action is not entitled to free counsel. (62 Cal.App.3d pp. 498-499, 133 Cal.Rptr. 111.) The issue appears to have been raised off-handedly: The chief issue was whether the trial court had abused its discretion in denying the defendant's motion to set aside a default judgment, and the court, in responding to the defendant's contention that he was entitled to appointment of counsel, stated that “nothing in the record indicates that defendant is an indigent, and we must presume that the trial court found he was not.” (Id., p. 498, 133 Cal.Rptr. p. 114.) In this consolidated appeal, defendants' right to counsel is the only issue raised, and we have been aided by a vigorous brief filed by amicus on behalf of defendants.

Nevertheless, if I could find a colleague to agree with me that Ford is wrong, we would have to consider whether we should follow it, albeit reluctantly. Since that is not the case, I might as well highlight my disagreement by dissenting.

FOOTNOTES

1.  The court has also received and considered an amici curiae brief submitted jointly by attorneys of the Contra Costa Legal Services Foundation, California Rural Legal Assistance Cooperative Legal Services Center, and Legal Aid Foundation of Los Angeles.

2.  Petition for hearing in the California Supreme Court was denied December 2, 1976.

3.  In Cleaver the court was concerned with setting forth guidelines for the discretionary appointment of counsel as authorized by then section 634.5 of the Welfare and Institutions Code. (Id., at pp. 942, 945.)

4.  If, as contended by the Legal Aid Association, these types of proceedings involve “basic,” “fundamental” rights, the association may well have to consider reordering its priorities away from other types of cases involving less important rights.

1.  Civil Code section 206: “It is the duty of the father, the mother, and the children of any person in need who is unable to maintain himself by work, to maintain such person to the extent of their ability . . . .” (See Paxton v. Paxton (1907) 150 Cal. 667, 669, 89 P. 1083.)

2.  Probate Code, section 255: “(a) The rights of succession by a child, . . . are dependent upon the existence, . . . of a parent and child relationship between such child and the decedent. . . . (d) (A) parent and child relationship exists where such relationship is . . . established pursuant to, . . . Section 7000 (et seq.) . . . of . . . the Civil Code.” In California, absent a will, a surviving child is entitled to share in the decedent's estate with other surviving children, and/or a surviving spouse. (Prob.Code, ss 221, 222.) If the decedent dies testate, his children will share in his estate, unless affirmatively excluded. (Prob.Code, ss 90, 91.)

3.  This proviso in section 270e is apparently the only provision in California law allowing admission of a civil judgment in a criminal action. (See Jefferson, Calif.Evid.Bench Book, s 9.1, pp. 125-128.)

4.  Amicus on behalf of defendants assert that the state's costs in furnishing indigent defendants in paternity actions with an attorney would be reimbursed by the federal government at the rate of 75 percent. (See 42 U.S.C., ss 654, 655; Welf. & Inst.Code, ss 11475, et seq.; 45 C.F.R., s 304.20(b)(2), s 304.21(b)(2). Based on my somewhat casual reading of the rules (see 45 C.F.R. s 304.21(b)(3), the position of amicus may be a trifle sanguine.

ASHBY, Associate Justice.

HASTINGS, J., concurs.