### No. 81-90 IN THE SUPREME COURTOF THE STATEOF MONTANA 1981

RONALD E. ROSE, PetitionerandAppellant,

VS. 

### THEDISTRICT COURTOF 

### THEEIGHTH JUDICIALDISTRICTOF THE STATEOF MONTANA,Cascade County,H. WilliamCoder, Judge, Respondents.

ORIGIPJALPROCEEDING: 

### Counsel ofRecord: ForAppellant: LawrenceA. Anderson argued,GreatFalls,Montana ForRespondents: Hon. Mike Greely,Attorney General,Helena,Montana Mark Murphy, argued,Assistant Attorney General, Helena,

Montana J. Fred Bourdeau,CountyAttorney,Great Falls,Montana Barbara Bell argued,Deputy CountyAttorney, GreatFalls,

Montana Mike Garrity argued,Dept. ofRevenue, Helena, Montana Robert F. James,Great Falls,Montana

Submitted: April 24,1981 Decided:

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Filed:

### Mr. JusticeGene B. 

### Dalydelivered theOpinion of theCourt. This is 

### an application for a writ of certiorari seeking a review of theproceedingsby which Ronald Rose was adjudgedguiltyof 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 LisaM. 

### Ruff filedapetition intheDistrictCourt 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 toblood testspursuant 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 filedan 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 

### oppositionthepetitioners argued thatthe reasonablenessof the intrusion, coupledwith the compelling stateinterestto determine parentage, authorizes the minimal invasion of privacy involved inobtainingablood 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 DistrictCourt 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 toablood 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 DistrictCourt ordered Rose to show causewhy he should not be held incontempt 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 thedatehereof; "4. That theClerk of thisCourt 

### isdirected toprovide notice of this Order by mailing a true copy thereof totheRespondent, 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 Statefiledamotion to dismiss with supporting briefs. The Federal District Court has not issued a temporary restraining order or granted any injunctive relief atthis time, and the motion todismiss is

### presentlyunder advisement. On or aboutMarch 3, 

### 1981, Rose filedwith thisCourt

an application for writ of certiorari or other appropriate relief todetermine the matterssetforthabove. On June 27, 1980, prior tobeing 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 inthe firstinstance. Herzog 

### v. Reinhardt (1965),2Ariz.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 collaterallyasvoid, 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 ofcertiorari will issue only when a trial court has exceeded 

### its jurisdiction. State v. District Court of Second JudicialDistrict (1900),24 Mont. 494, 62 P. 820; Matter of Graveley 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 asfollows: "(1) The court may, and upon request of a

artyshall, require the child, mother or illeqed father tosubmit toblood 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." (Emphasisadded.) 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

"Court-ordered blood tests are undoubtedly 'searches' within the meaning of the constitution. The Fourth Amendment proscription, however, 

### is directed only to those searcheswhich areunreasonable. An unreasonable search 

### isone unjustifiedby the circumstances or carried out inan improper manner.

### " -. -. 384 U.S. at 757. (Emphasis supplied

# .) In Statev. Meacham (1980),93Wash.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 constitutionalgrounds: (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 theWashington court said: "The right toprivacy, 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 Statehas a compelling interest in fixing the parentage of a minor child. The test specified to be used ishighly reliable. No other evidence that is at all comparable in effectiveness is available to the State. Thepain inflictedwhen blood iswithdrawn by an experienced technician is inconsequential. And, any hazard to health is virtually nonexistent." 612P.2d 797. With respect to the argument that the blood testwas 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 outof hand. "'Court-ordered blood testsare undoubtedly "searches" within the meaning of the constitution. The FourthAmendment proscription, however, is direct* only to those searcheswhich are unreasonable. An unreasonable search isoneunjustified by tG circumstances or carried out inanimproper 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 decisionwas 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 inthe hospital settingwas not deemed to be an unreasonable search." Meacham, 612 P.2d at798. However, the blood tests in Meacham were ordered aftera fulladversaryhearing before thetrialcourt 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 tohis testimony. A deposition of themother

was taken before the second order which indicated sexual activitywith 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 inmost 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 hischild. There 

### is a strong societal reason for upholding such acts which rise from decisionsof the United StatesSupreme 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 amother, even though notwed, or living apart from the father, nevertheless has a right tohave theburden of support sharedby the father of the child. The Californiacourt inSalasv. Cortez, (1979), 154 Cal.Rptr. 529, 593 P.2d 226, defines the State interestinthese cases asfollows: "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, atpp. 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 thewelfare rollsof 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 atleastone child born out of wedlock. (Id. at177.) Were the stateable torecover from absentparents even aportion of the funds expended through the AFDC program, the savings would be substantial. (See, Id. at172.) "It 

### is clearlywithin 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 obligationsof absentparents, 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 toengage insexual relations



# ..." 593P.2d at233. In Salas, the court held that an indigent putative father was entitled to counsel, supplied atthe 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 resultsmay positively excludehim as the father. Thus, it has been held in any number of cases that a father has an absolute right todemand a blood test of the mother and child, even toget 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 

### limitthe 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 connectionwith blood tests. For thispurpose, a reading of CurrentStatusof PaternityTestinq, 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

# . Inthepresent case it 

### is apparent thatthe statutory procedure has not been followed. What should occur under the Uniform ParentageAct 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 partytothe action refuses to testifyunder 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 (exceptfor 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 aprima facie case (theequivalent ofprobable 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 considerswhether 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 putativefather. After this, a blood testmay 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, todetermine 

### its constitutionality. However, 

### we do conclude that the failure to follow the statutory procedures to establish reasonableness prior tothe ordering of the "search" renders the ordered search a violation of the accused's Fourth Amendment rights to be

secure from "unreasonable" search and alsoviolatesArt. 11, Section 11, 1972Montana Constitution. The writ, asprayed for, shall issue: 1. The contempt order of November 28, 1980, by the DistrictCourt 

### is hereby vacated and setaside. 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 thathe take the blood test. 3. A copy of thisopinion, when served by the Clerk of thisCourt, shallperform the officeof a formal writ.



### d&.d #/ JusticeWeconcur: 

# 2A& J, 

# p,g 4 Chief Justice



# ILrrniblsL ~ondrable James B. Wheelis. ictJudge, sitting in

of 

### Mr. JusticeJohn C.