In 1986, in a comprehensive act, the Legislature made substantial changes in the law concerning child support in the Commonwealth. St. 1986, c. 310. That act, among other things, inserted an entirely new chapter in the General Laws concerning the rights of children born out of wedlock. G.L.c. 209C (1986 ed.), inserted by St. 1986, c. 310, § 16.
In this proceeding, brought to establish the defendant's obligation to support an illegitimate child (the minor plaintiff), the defendant challenges the constitutionality of two provisions of the 1986 act. He contended in the trial court that this proceeding is barred because in 1984, on a paternity complaint under G.L.c. 273, a jury determined that he was not the father of the minor plaintiff. He argued successfully that the provision in G.L.c. 209C, § 22 (d), stating that such an earlier adjudication is not a bar to a G.L.c. 209C proceeding, cannot lawfully be applied to him. Second, if this proceeding may properly go forward, the defendant, who has filed a claim of a jury trial, argues that, under the Constitution of the Commonwealth he is entitled to a trial by jury and that the provision in G.L.c. 209C, § 12, stating that trials in actions under G.L.c. 209C "shall be by the court without a jury," is unconstitutional.
A judge of the District Court Department allowed the defendant's motion for summary judgment and dismissed the action.
The summary judgment motion was heard on a "stipulation of fact" presented on "the issue of the effect of a previous verdict of not guilty on a criminal complaint for paternity" under G.L.c. 273, § 12 (as appearing in St. 1981, c. 325, and repealed by St. 1986, c. 310, § 25). The minor plaintiff was born February 10, 1982. His mother and the defendant have never been married to one another. She claims that the defendant is the father of the child.
On December 30, 1983, the defendant was arraigned on a criminal complaint charging him with paternity of the minor plaintiff. The complaint was issued at the request of a representative of the Department of Public Welfare, subrogee to the mother's rights. Blood samples were taken for human leukocyte antigen (HLA) tests and for blood grouping tests. The test results showed that the defendant was not excluded as the father and that there was "a 99.47% probability that Wayne I. Jarvenpaa is the father of [the minor plaintiff]." After a pretrial hearing on the Commonwealth's motion seeking a determination that the test results would be admitted at the defendant's trial, a District Court judge ruled that because of G.L.c. 273, § 12A, the evidence was not admissible.
On May 15, 1984, the defendant was tried on the criminal complaint before a six-person jury. He, the mother, and other witnesses testified. The jury returned a verdict of not guilty and specifically found that the defendant was not the father of the minor plaintiff.
On October 9, 1986, a representative of the Department of Public Welfare, on behalf of the mother, filed the civil complaint that commenced this proceeding. The complaint seeks a determination that the defendant is the minor's father, an order for suitable future support and health insurance for the child, and restitution of confinement expenses and of expenses since the child's birth. On November 4, 1987, the District Court judge allowed the defendant's motion for summary judgment dismissing the action.
1. We discuss first the question whether the plaintiffs' appeal is properly here. No party claims that it is not. The department's brief notes the problem, and, because it is a jurisdictional question, we should deal with it first.
If the appeal was properly entered in the Appeals Court, we may properly consider it after transferring it here on our own motion. The question is whether the correct avenue for the department's appeal, later joined in by the minor plaintiff, was to the Appeals Court.
The Appellate Division has considered the question of where a G.L.c. 209C appeal lies and has concluded that it lacks jurisdiction of such an appeal because G.L.c. 209C actions are equitable in nature. See Brown v. McCow, Mass. App. Div. N. Dist. No. 8942, slip op. at 3 & n. 2 (May 19, 1988); Aiello v. Spinale, Mass. App. Div. N. Dist. No. 8958 (May 19, 1988). In deciding as it did, the Appellate Division relied on our opinion in Walker v. Board of Appeals of Harwich, 388 Mass. 42 (1983), which held that appeals in zoning cases tried in the District Courts should be presented to the Appeals Court and not to the Appellate Division. Although the statute in the Walker case ("the parties shall have all rights of appeal and exception as in other equity cases," G.L.c. 40A, § 17 [1986 ed.]), is somewhat clearer on the matter of legislative intent concerning appeals than is G.L.c. 209C, the principle that appeals in cases involving equitable considerations should go to the Appeals Court, in the absence of some other statutory direction, fairly applies here. Id. at 49-50. The remedies available in G.L.c. 209C proceedings are equitable in nature. See G.L.c. 209C, §§ 1, 9, 15, 19, and 20.
Practical considerations also support our conclusion that all appeals in G.L.c. 209C cases should go to the same court. Uniformity of treatment of litigants and the development of a consistent body of law will be encouraged by placing all G.L.c. 209C appeals in one court. In the absence of any express legislative direction, we conclude that the principles expressed in our Walker opinion and the practical desirability of having all G.L.c. 209C appeals heard in one court call for a determination that G.L.c. 209C appeals go to the Appeals Court.
2. We come then to consider the question whether the present action is barred because the jury in the earlier paternity proceeding under a statute since repealed (G.L.c. 273, § 12), found the defendant not guilty on a complaint charging him with being the father of the minor plaintiff.
We conclude that the Legislature intended to permit readjudication of the question of paternity under G.L.c. 209C where, under G.L.c. 273, § 12, proof of the alleged paternity of the defendant had not succeeded. Section 22 (d) makes irrelevant all questions concerning the application to this kind of case of common law principles of claim and issue preclusion based on findings and rulings in earlier litigation. Claim and issue preclusion are not founded on constitutional principles, but are matters of public policy. See Commissioner v. Sunnen, 333 U.S. 591, 597 (1948); Hooper v. United States, 326 F.2d 982, 985 (Ct. Cl.), cert denied, 377 U.S. 977 (1964); 18 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 4403, at 11 (1981 & Supp. 1988). The Legislature has mandated that there shall be no claim or issue preclusion arising from any adjudication under G.L.c. 273, § 12. See Restatement (Second) of Judgments § 20 (1) (c) (1982); Premier Elec. Constr. Co. v. National Elec. Contractors Ass'n, 814 F.2d 358, 363-364 (7th Cir.1987). The remaining question, then, is whether there is any constitutional prohibition against carrying out the Legislature's intent.
The defendant argues that, as we have construed it, § 22 (d) violates art. 30 of the Massachusetts Declaration of Rights, concerning the separation of powers.
We take a different view of the right of the minor plaintiff to proceed in this case. He is not bound by the determination made in the defendant's favor in the Commonwealth's G.L.c. 273 proceeding. Courts elsewhere have generally considered a child born out of wedlock not to be in privity with the State, and thus such a child has not been bound by an earlier determination that a particular man was not his father, made in a proceeding brought by the State seeking to establish support obligations and thereby to reduce its public assistance obligations. See Settle by and through Sullivan v. Beasley, 309 N.C. 616, 620-621 (1983) (child's interest in paternity determination is not solely economic); Burley v. Johnson, 33 Wn.App. 629, 640 (1983) (State, parent, and child "each have separate and independent interests in establishing paternity"); State ex rel. Adult & Family Servs. Div. v. Tuttle, 304 Or. 270, 274 (1987) (Linde, J., concurring). See also Spada v. Pauley, 149 Mich.App. 196, 199 n. 1, 205 n. 6 (1986) (mother's paternity action does not bar child's); Arsenault v. Carrier, 390 A.2d 1048, 1051 (Me. 1978) (same). But see T.R. v. A.W. by Pearson, 470 N.E.2d 95, 96-97 (Ind. Ct. App. 1984) (two to one decision) (issue preclusion bars retrial because mother fully represented child's interests; dicta suggest same result if original plaintiff were the State).
The minor plaintiff should not be foreclosed by the prior judgment from presenting his own case for support [and perhaps to establish other rights) against the defendant.
We conclude that this action may properly be maintained on behalf of the minor plaintiff, but that it must be dismissed as to the department.
3. Because we conclude that the minor plaintiff may maintain this action, we reach the question whether the defendant may properly be denied a jury trial. The defendant argues that he is entitled to a jury trial even though G.L.c. 209C, § 12, provides otherwise ("[i]n actions under this chapter, the trial shall be by the court without a jury"). He claims that his jury trial right is mandated by art. 15 of the Massachusetts Declaration of Rights and that it cannot be denied by statute. Article 15, quoted in full in the margin,
Among the laws of England brought to this colony was at least that portion of 18 Eliz., c. 3, the Poor Law Act of 1576, that stated that an order to contribute to the support of a bastard could be made by two justices of the peace against the mother or the reputed father. 1 W. Blackstone, Commentaries 458 (1765). It is thus unimportant, for our present purposes, that under the common law of England a father had no legally enforceable duty to support his illegitimate child. See Commonwealth v. Lobo, 385 Mass. 436, 444 (1982). The obligation of support existed by English statute before 1620, and it was further expressed by laws enacted in Massachusetts. See the statute appearing in the 1672 edition of the General Laws of Massachusetts Colony, at 55, reprinted in Colonial Laws of Massachusetts 1672-1686 (1887);
The plaintiffs further argue that G.L.c. 209C paternity and attendant support claims pertain "to equity jurisprudence as generally understood in England and Massachusetts at the time of the adoption of the Constitution," Commissioner of Banks v. Harrigan, 291 Mass. 353 (1935), and, therefore, no jury right exists. The Legislature may not, however, take away a right to a jury trial simply by a change in procedure that makes an action an equitable one.
The plaintiffs' argument that a paternity claim was not within the class of cases tried to a jury prior to 1780, either because nonsupport claims were not tried to juries or because such proceedings had an equitable aspect (or both), carries some force. In the absence of any demonstration that bastardy actions
4. The summary judgment dismissing the action as to the Department of Revenue is affirmed. The summary judgment dismissing the action as to the minor plaintiff is vacated, and the case is remanded to the District Court for further proceedings.
In his study of the Massachusetts legal system between 1760 and 1830, William E. Nelson states that jury trials were first used in paternity cases after the Revolution. As authority for this conclusion he cites only the 1785 statute and a 1789 case that does not appear to provide any direct support for the proposition that juries were not used before the Revolution in paternity cases. William E. Nelson, Americanization of the Common Law; The Impact of Legal Change on Massachusetts Society, 1760-1830, at 97 & 108 (1975).
The record books of the Court of General Sessions in Bristol, Suffolk, and Middlesex counties prior to 1780 indicated that a jury sat on a case by listing that fact in the left margin next to the docket entry. Paternity or bastardy cases in the docket books reviewed do not show that a jury was used in such cases. There was a right of appeal to the Superior Court of Judicature from the Court of General Sessions. Investigation shows few appeals in bastardy cases, and no indication that juries were used in such cases in the Superior Court of Judicature.
We believe that it is appropriate for us to look at the records of pre-1780 cases, where the documents are under the jurisdiction of the judiciary, to ascertain what those official records disclose concerning the procedures that were followed. These records demonstrate that "it [had] heretofore been otherways used and practiced" (art. 15) and, therefore, there was in 1780, and is today, no right to a jury trial in a paternity action.