Larrabee v. Sachs , 201 Mich. App. 107 ( 1993 )

201 Mich. App. 107 (1993) 506 N.W.2d 2

LARRABEE
v.
SACHS

Docket No. 146775.

Michigan Court of Appeals.

Submitted June 4, 1993, at Lansing. Decided August 2, 1993, at 9:45 A.M.

Norman E. Conn, for the plaintiff.

Stanley T. Dobry, for the defendant.

Before: REILLY, P.J., and SAWYER and P.J. CLULO,^[*] JJ.

REILLY, P.J.

Defendant appeals by leave granted an order compelling him to appear for the taking of his deposition in this paternity proceeding. Defendant contends that the proceeding is quasi-criminal in nature and, therefore, the order forcing him to be a witness against himself before trial is invalid because it is a violation of due process and his constitutional right against self-incrimination. We disagree and affirm.

Parties in civil proceedings may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action. MCR 2.302. After commencement of the action, upon reasonable notice, a party may take the sworn testimony of an opposing party by deposition. MCR 2.306; MCR 2.307. Procedure in actions under the Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., is governed by the rules applicable to other civil actions, except as modified by MCR 3.212 and the Paternity Act. MCR 3.212; Bowerman v MacDonald, 431 Mich. 1, 16; 427 NW2d 477 (1988).

We reject defendant's contention that paternity proceedings are quasi-criminal, not civil, and therefore that he is entitled to the constitutional protections afforded criminal defendants. Although historically the Paternity Act, and its predecessor, the Bastardy Act, contained numerous aspects of criminal procedure, those provisions have been gradually eliminated. The one remaining criminal procedural right afforded by the act, that of appointed counsel for an indigent defendant, is a recognition of the fundamental unfairness of providing counsel for an indigent plaintiff while denying the same to an indigent defendant. MCL 722.714(9); MSA 25.494(9); Artibee v Cheboygan Circuit Judge, 397 Mich. 54; 243 NW2d 248 (1976). However, as stated in Bowerman, supra at 13, "[i]t 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." With the virtual elimination of all remaining vestiges of criminal procedure, paternity actions are now considered to be fundamentally civil in nature. Accordingly, procedure in paternity cases is controlled by MCR 3.212. Id.

Defendant's reliance upon Pridemore v Williams, 90 Mich. App. 483; 282 NW2d 363 (1979), no longer has merit. In Pridemore, this Court held that the putative father's statutory right under MCL 722.715(1); MSA 25.495(1) not to be compelled to testify superseded the right to conduct discovery under the general court rules. However, as a result of 1989 PA 258, the Legislature deleted the language regarding the right not to be compelled to testify. Consequently, the conflict between the statute and the court rules no longer exists, and the rules of civil procedure apply. MCR 3.212; Bowerman, supra.

The protection against compulsory self-incrimination provided by the Fifth and Fourteenth Amendments of the United States Constitution and Const 1963, art 1, § 17 does not entitle defendant to refuse to give any testimony in a civil action. The privilege against self-incrimination may be invoked only when the testimony sought to be elicited will in fact tend to incriminate the witness. People v Ferency, 133 Mich. App. 526; 351 NW2d 225 (1984). Because the defendant did not show that he would incriminate himself by responding to questions in a deposition, the trial court properly ordered defendant to submit to discovery. MCL 600.2154; MSA 27A.2154.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.