dissenting.
I respectfully dissent.
My experience as a trial judge on the Multnomah County Circuit Court, Department of Domestic Relations, satisfies me that it was “fundamentally unfair” to proceed to an adjudication of paternity in the absence of appointed counsel on the facts of this case. I would, therefore, reverse and remand for the appointment of counsel and a new trial. Lassiter v. Department of Social Services, 452 US 18, 101 S Ct 2153, 68 L Ed 2d 640 (1981); Little v. Streater, 452 US 1, 101 S Ct 2202, 68 L Ed 2d 627 (1981); Mathews v. Eldridge, 424 US 319, 96 S Ct 893, 47 L Ed 2d 18 (1976); State v. Jamison, 251 Or 114, 444 P2d 15, 444 P2d 1005 (1968). 1
The state has chosen an adversarial forum to resolve this contested paternity dispute.2 It has provided a deputy attorney general to prosecute the proceedings. It has fixed serious long term consequences to the outcome for both child and defendant, including the possibility of imprisonment for defendant should he willfully fail to pay child support. See, e.g., ORS 109.103 (duty to support) and ORS 163.555 (criminal non-support). I conclude that due process mandates the appointment of counsel for this indigent defendant. U.S. Const. Amend XIV, § l.3
Accord Reynolds v. Kimmons, 596 P2d 799 (Alaska 1977); Salas v. Cortez, 24 Cal 3d 22, 154 Cal Rptr 529, 593 P2d 226, cert den 444 US 900 (1979); Hepfel v. Bashaw, 279 NW2d 342 (Minn 1979); M. v. S., 169 NJ Super 209, 404 A2d 653 (1979); State ex rel. Graves v. Daugherty, 266 SE2d 142 (W Va 1980).
A filiation proceeding, ORS 109.124 et seq, has complex and immediate social and legal implications for the child, father, mother and the state. Mother and alleged father have conflicting interests and motives in such a proceeding. Both the child and the state have a substantial interest in seeing that paternity is established in the biological father and that a defendant who is in fact not the biological father should not be decreed to be the father.
I have difficulty with footnotes 2 and 9 of the majority opinion about the role of defendant’s counsel. The majority concedes that some of the procedural issues raised in defendant’s brief “arguably could have been grounds for independent assignments of error.” Here, the ACLU attorney entered the case solely to argue the right to counsel issue. He did not appear generally as counsel for defendant, and at no time has he represented him on the merits. Thus, defendant has not had counsel at trial or on appeal on the central issue in the case, i.e., paternity.