No. 81-90 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

RONALD E. ROSE, 

Petitioner and Appellant, 

VS. 

THE DISTRICT COURT OF THE EIGHTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA, Cascade County, H. William Coder, Judge, 

Respondents. 

ORIGIPJAL PROCEEDING : 

Counsel of Record: 

For Appellant: 

Lawrence A. Anderson argued, Great Falls, Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mark Murphy, argued, Assistant Attorney General, Helena, 

Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Barbara Bell argued, Deputy County Attorney, Great Falls, 

Montana 

Mike Garrity argued, Dept. of Revenue, Helena, Montana 

Robert F. James, Great Falls, Montana 

Submitted: April 24,1981 

Decided: -MAY 2 8 1?a 

Filed: 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an application for a writ of certiorari 

seeking a review of the proceedings by which Ronald Rose was 

adjudged guilty of contempt of court. 

The record discloses that on or about January 15, 

1980, the State of Montana, the Department of Revenue, the 

Department of Social and Rehabilitation Services, Diana L. 

Ruff and Lisa M. Ruff filed a petition in the District Court 

of the Eighth Judicial District, Cascade County, to 

establish paternity and provide support for a minor child 

born on September 21, 1979. The petition alleged that the 

State, the mother and the daughter ". . . are informed and 

believe that Respondent [Rose] is the father of the child 

based upon the following: Diana L. Ruff has named the 

Respondent, Ronald E. Rose, as the father of the minor 

child, Lisa M. Ruff." Attendant to the petition was a 

motion to require Rose to submit to blood tests pursuant to 

section 40-6-112, MCA. An ex parte order was issued by the 

District Court requiring Rose to show cause why he should 

not submit to a blood test. On February 28, 1980, Rose 

filed an answer. 

On March 11, 1980, Rose filed a motion to quash the 

order to show cause. The basis for Rose's motion was that 

submission to a blood test would violate various 

constitutional rights including his right of privacy and 

freedom from unreasonable searches and seizures. In 

opposition the petitioners argued that the reasonableness of 

the intrusion, coupled with the compelling state interest to 

determine parentage, authorizes the minimal invasion of 

privacy involved in obtaining a blood sample. 
On August 21, 1980, the District Court entered its 

order vacating the pretrial hearing originally set for 

August 20, 1980, and reset it for December 15, 1980. The 

District Court additionally ordered that the State's motion 

compelling discovery be heard on September 19, 1980. 

Subsequently, on October 9, 1980, the District Court issued 

an ex parte order for blood tests, whereby Rose was ordered 

to appear at Columbus Hospital, Great Falls, Montana, on 

October 21, 1980, to submit to a blood test. After formally 

asserting his right to refuse the test, Rose failed to 

appear for the court-ordered blood test. 

On November 5, 1980, the District Court ordered Rose 

to show cause why he should not be held in contempt of court 

for failing to take the blood test. On November 28, 1980, 

the District Court found Rose in contempt of court and 

issued the following decree: 

"1. That Respondent, Rose, be confined in 

the Cascade County Jail for a period of five 

days ; 

"2. That the execution of said judgment of 

contempt and order of confinement in the 

Cascade County Jail be, and hereby is, 

stayed ; 

"3. That Respondent, Rose, may purge himself 

of said contempt by complying with the 

Court's Order of October 9, 1980, by 

submitting to the required blood test within 

fourteen days from the date hereof; 

"4. That the Clerk of this Court is directed 

to provide notice of this Order by mailing a 

true copy thereof to the Respondent, Rose." 

On December 11, 1980, Rose filed a complaint in the 

United States District Court alleging civil rights 

violations under 42 U.S.C. 1983, in that section 40-6-112, 

MCA, violated his constitutional rights. Rose prayed that 

the court grant injunctive relief barring the State 
District Court from ordering blood tests under section 

40-6-112, MCA. On January 6, 1981, the State filed a motion 

to dismiss with supporting briefs. The Federal District 

Court has not issued a temporary restraining order or 

granted any injunctive relief at this time, and the motion 

to dismiss is presently under advisement. 

On or about March 3, 1981, Rose filed with this Court 

an application for writ of certiorari or other appropriate 

relief to determine the matters set forth above. 

On June 27, 1980, prior to being held in contempt by 

the District Court, petitioner filed a petition for a writ 

of supervisory control with this Court. The petition was 

denied on the ground that he had an adequate remedy by 

appeal. This ruling contemplated that petitioner would 

submit to the blood test and, in the assertion of 

constitutional rights, either move to suppress the results 

prior to an adjudication of paternity or appeal the final 

judgment on the merits. This procedure would answer 

petitioner's contention that submission to a blood test is 

an irretrievable forfeiture of constitutional rights; 

however, it does not prevent a possible constitutional 

violation in the first instance. 

Herzog v. Reinhardt (1965), 2 Ariz.App. 103, 406 P.2d 

738, holds that citizens are protected from arbitrary 

actions of the trial court. If fundamental constitutional 

rights are violated in the contempt process, the contempt 

order can be attacked collaterally as void, upon certiorari. 

Also, in precluding an appeal from an adjudication of 

contempt, section 3-1-523, MCA, provides that the only 

method of review is a writ of certiorari. A writ of 
certiorari will issue only when a trial court has exceeded 

its jurisdiction. State v. District Court of Second 

Judicial District (1900), 24 Mont. 494, 62 P. 820; Matter of 

Gr aveley Mont . 

The statute in question is section 40-6-112, MCA, 

which is attacked in isolation from the balance of the 

Uniform Act and provides as follows: 

"(1) The court may, and upon request of a 

arty shall, require the child, mother or 

illeqed father to submit to blood tests. The 

tests shall be performed by an expert 

qualified as an examiner of blood types, 

appointed by the court. 

"(2) The court, upon reasonable request by a 

party, shall order that independent tests be 

performed by other experts qualified as 

examiners of blood types. 

"(3) In all cases the court shall determine 

the number and qualifications of the 

experts." (Emphasis added.) 

In Marshall v. Barlows, Inc., OSHA (1978), 436 U.S. 

307, 98 S.Ct. 1816, 56 L.Ed.2d 305, the United States 

Supreme Court held the search and seizure provision of the 

Fourth Amendment applicable to civil as well as criminal 

investigations. The Court also held in Schmerber v. 

California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 

"Cour t-ordered blood tests are undoubtedly 

'searches' within the meaning of the 

constitution. The Fourth Amendment 

proscription, however, is directed only to 

those searches which are unreasonable. An 

unreasonable search is one unjustified by the 

circumstances or carried out in an improper 

manner. " -. -. 384 U.S. at 757. (Emphasis 

supplied . ) 

In State v. Meacham (1980), 93 Wash.2d 738, 612 P.2d 

795, precisely the same points came before the Washington 
court as are presented in the case before us today. In that 

case, which involved two separate cases consolidated for 

appeal, the putative fathers were ordered to submit to the 

withdrawal of a small amount of their blood for testing. 

Each objected on constitutional grounds: (1) invasion of the 

right of privacy; (2) the unlawful search and seizure; and 

(3 ) interference with their freedom of religion. 

With respect to privacy the Washington court said: 

"The right to privacy, to be let alone, while 

fundamental and personal in nature, is not 

absolute. The State may reasonably regulate 

this right to safeguard society or where it 

otherwise has a compelling interest. Whalen 

v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 

L.Ed.2d 64 (1977). 

"Here, the State has a compelling interest in 

fixing the parentage of a minor child. The 

test specified to be used is highly reliable. 

No other evidence that is at all comparable 

in effectiveness is available to the State. 

The pain inflicted when blood is withdrawn by 

an experienced technician is inconsequential. 

And, any hazard to health is virtually 

nonexistent." 612 P.2d 797. 

With respect to the argument that the blood test was 

an unreasonable search and seizure, the Washington court 

said: 

"In addition to the issue of privacy, 

appellants challenge the order to submit to 

blood withdrawal on grounds that it 

constitutes an illegal search and seizure 

under the Fourth Amendment. We reject that 

contention out of hand. 

"'Court-ordered blood tests are undoubtedly 

"searches" within the meaning of the 

constitution. The Fourth Amendment 

proscription, however, is direct* only to 

those searches which are unreasonable. An 

unreasonable search is one unjustified by tG 

circumstances or carried out inan improper 

manner. ' Schmerber v. California, 384 U.S. 

"For example, in Schmerber, a blood sample 

was taken over the objections of a criminal 

defendant. An informed, deliberate decision 
was made to order the test. Because of the 

State's interest in deterring driving while 

under the influence of alcohol and the 

relatively inoffensive nature of a properly 

conducted blood test, the taking of the 

defendant's blood in the hospital setting was 

not deemed to be an unreasonable search." 

Meacham, 612 P.2d at 798. 

However, the blood tests in Meacham were ordered 

after a full adversary hearing before the trial court where 

it was determined that a prima facie showing had been made 

to justify the order for blood tests. Here, attempts at 

discovery from petitioner have been met with constitutional 

objections as to his testimony. A deposition of the mother 

was taken before the second order which indicated sexual 

activity with petitioner. 

The Montana statute on blood tests in paternity 

proceedings is found in a section of the Uniform Parentage 

Act, Title 40, Montana Code Annotated. The Act has been 

adopted now in most of the states. The Act arises because 

of the efforts of the federal government to recover monies 

paid for the support of dependent children where the 

children are born out of wedlock or, as here, an absent 

parent is not supporting his child. 

There is a strong societal reason for upholding such 

acts which rise from decisions of the United States Supreme 

Court in the 1970s that illegitimate children were entitled 

to the same constitutional benefits and protections as 

legitimate children. Out of this concept, only lately 

developed, has come the doctrine that a mother, even though 

not wed, or living apart from the father, nevertheless has a 

right to have the burden of support shared by the father of 

the child. The California court in Salas v. Cortez, (1979), 

154 Cal.Rptr. 529, 593 P.2d 226, defines the State interest 
in these cases as follows: 

"The state's interest in determining 

parentage has traditionally been limited to 

preventing children born out of wedlock from 

becoming public charges (see an Act for 

Setting the Poor on Work (1576), 18 Eliz. 1, 

Ch. 3, S 2, quoted in Krause, supra, at pp. 

105-106). The amendments to federal law 

which gave rise to the present cases were 

brought about by concerns similar to those 

that inspired the Elizabethan Poor Laws--the 

increasing appearance on the welfare rolls of 

children born out of wedlock. (See, Note 

(1976), 52 Wash.L.Rev. 169, 170.) In recent 

years nearly half of the families receiving 

AFDC have had at least one child born out of 

wedlock. (Id. at 177. ) Were the state able 

to recover from absent parents even a portion 

of the funds expended through the AFDC 

program, the savings would be substantial. 

(See, Id. at 172.) 

"It is clearly within the power of the state 

to provide for the enforcement of the 

parental duty to support one's children. The 

state may further legitimately provide for 

the expenditure of public funds to assist 

custodial parents in enforcing the support 

obligations of absent parents, whether or not 

the custodial parent is receiving public 

assistance. Such efforts are a laudable 

attempt to prevent custodial parents, the 

overwhelming majority of which are women, 

from having to bear alone the burden of a 

mutual decision to engage in sexual relations 

. . ." 593 P.2d at 233. 

In Salas, the court held that an indigent putative 

father was entitled to counsel, supplied at the expense of 

the state. 

Although a number of cases are now arising on the 

problem of blood tests under the Uniform Parentage Act, no 

court has set aside the statute requiring blood tests as 

unconstitutional per se. The legal significance of blood 

tests is not that the results may possibly include the 

accused as the father, but that such results may positively 

exclude him as the father. Thus, it has been held in any 

number of cases that a father has an absolute right to 
demand a blood test of the mother and child, even to get a 

continuance if the child has not yet been born for the 

reason that such test may positively exclude him as the 

father. See People v. Stoeckl (Mich. 1956), 78 N.W.2d 640. 

Thus, the rights of the parties are reciprocal, and a 

constitutional elimination of the statute would severely 

limit the rights of the putative father. 

To understand the procedure in the Uniform Parentage 

Act, particularly with relation to blood tests, it is 

necessary to realize the advances that have been made in 

connection with blood tests. For this purpose, a reading of 

Current Status of Paternity Testinq, by Dr. Chang Ling Lee, 

9 Family Law Quarterly 615 (1975), is instructive. The 

article explains the various means of testing for genetic 

markers. 

Under section 40-6-114(4), MCA, it is provided that 

if the scientific evidence resulting from a blood test 

conclusively shows the defendant could not have been the 

father, the action shall be dismissed. If, however, there 

is a statistical chance that he is the father, the blood 

tests, weighed in accordance with the evidence, are 

admissible relative to the paternity. Section 40-6-113(3), 

MCA . 

In the present case it is apparent that the statutory 

procedure has not been followed. What should occur under 

the Uniform Parentage Act is that after the action has been 

brought to declare the paternity of the child, an informal 

hearing by way of pretrial proceedings should occur. 

Section 40-6-111, MCA. At the pretrial hearing, if any 

party to the action refuses to testify under oath, the court 
may order him to testify. If he refuses to testify, the 

court has the power to grant him immunity from all criminal 

liability on account of the testimony he is required to 

produce (except for perjury). Section 40-6-111(2), MCA. 

It is at the pretrial proceeding that the court may 

order the blood tests. Section 40-6-112, MCA. At that 

point, therefore, it is assured from the statutory scheme 

that a prima facie case (the equivalent of probable cause in 

a criminal proceeding) is established for the ordering of 

the blood test. It is at the pretrial proceedings that the 

evidence relating to paternity, including the blood tests, 

are considered. Section 40-6-114, MCA. Thereafter, there 

are pretrial recommendations to be made as set forth in 

section 40-6-114(1), MCA. At that point, the court 

considers whether or not the case should go on. The statute 

says : 

"On the basis of the information produced at 

the pretrial hearing, the judge or referee 

conducting the hearing shall evaluate the 

probability of determining the existence or 

nonexistence of the father and child 

relationship in a trial and whether a 

judicial declaration of the relationship 

would be in the best interest of the child. 

On the basis of the evaluation, an 

appropriate recommendation for settlement 

shall be made to the parties, which may 

include any of the following: [options 

omitted]." Section 40-6-114, MCA. 

As our discussion has revealed, the mere conclusory 

allegations by the movant in the petition are insufficient 

to satisfy the "reasonableness" requirement of the Fourth 

Amendment of the United States Constitution and Art. 11, 

Section 11, 1972 Montana Constitution. Reasonableness can 

only be established by an affirmative showing by the movant 

that there exists a prima facie case against the putative 
father. After this, a blood test may be taken. Therefore, 

the Uniform Parentage Act, as it relates to this subject, 

must be construed as a whole, and we will not consider an 

attack upon an isolated section, i.e., section 40-6-112, 

MCA, to determine its constitutionality. 

However, we do conclude that the failure to follow 

the statutory procedures to establish reasonableness prior 

to the ordering of the "search" renders the ordered search a 

violation of the accused's Fourth Amendment rights to be 

secure from "unreasonable" search and also violates Art. 11, 

Section 11, 1972 Montana Constitution. 

The writ, as prayed for, shall issue: 

1. The contempt order of November 28, 1980, by the 

District Court is hereby vacated and set aside. 

2. The case is returned to the District Court with 

instructions to follow the procedure set forth in the 

Uniform Parentage Act as discussed herein. As provided in 

section 40-6-111, MCA, this will require an informal 

pretrial proceeding before the court. In the event a prima 

facie case is made showing the defendant to be a possible 

father, then an order properly may be made requiring the 

defendant to submit to the blood test. In the event 

defendant refuses to testify, the court may grant him 

immunity from all criminal liability and thereafter require 

that he take the blood test. 

3. A copy of this opinion, when served by the Clerk 

of this Court, shall perform the office of a formal writ. 

d&.d #/ 

Justice 
We concur: 

2A& 

Chief 

J, 

Justice 

p,g 4 

ILrrniblsL 

~ondrable James B. Wheelis. 

ict Judge, sitting in 

of Mr. Justice John C.