J.M., In Interest of

• Decision Date: 02 December 1991
• Docket Number: No. 91-CA-1772,91-CA-1772
• Citation: 590 So.2d 565
• Parties: In the Interest of the Minor Child, J.M. 590 So.2d 565
• Court: Louisiana Supreme Court

Page 565

590 So.2d 565

In the Interest of the Minor Child, J.M.

No. 91-CA-1772.

590 So.2d 565

Supreme Court of Louisiana.

Dec. 2, 1991.

Pamela A. Moses-Laramore, Tracy S. Pickerell, Baton Rouge, for appellant.

Alan Fishbein, Fishbein & Downs, Author Joiner, Baton Rouge, for appellee.

William J. Guste, Jr., Atty. Gen., Thomas S. Halligan, Asst. Atty. Gen., Jesse Marks, Asst. Atty. Gen., for State of La.

CALOGERO, Chief Justice.

The defendant, Mr. Z., filed a Petition for Declaratory Judgment in the Family Court of East Baton Rouge Parish alleging that La.R.S. 9:396, which provides for court-ordered blood testing in cases in which paternity is relevant, is not constitutional. The family court agreed and held the statute unconstitutional, whereupon the plaintiff, Ms. B., suspensively appealed that decision to this Court. For the reasons expressed herein, we reverse the decision of the lower court and find that La.R.S. 9:396 is not unconstitutional as that statute is construed by this Court.

On February 19, 1988, the plaintiff filed a paternity action against her former husband, Mr. M., to whom she was married but separated at the time of the child's conception, and against the defendant, Mr. Z., with whom she purportedly had an exclusive sexual relationship near the time of probable conception. Defendant denies that he had a sexual relationship with the plaintiff during the time when the child could have been conceived. ¹ To facilitate a determination of the paternity of her minor child, Ms. B. requested that the court order both defendants to undergo blood testing.

On April 11, 1988, Mr. Z. filed a Rule for Protective Order, alleging that the compulsory blood test would violate his constitutional rights. The district court granted the protective order which prevented Mr. Z.'s being required to submit to the blood test. The court of appeal reversed because La.R.S. 9:396 had previously been found constitutional in Jones v. Thibodeaux, 445 So.2d 44 (La.App. 4th Cir.), writ denied, 448 So.2d 112, reconsideration denied, 450 So.2d 356 (La.1984). Mr. Z. thereupon filed his first writ applications with this Court. This Court denied those writs which complained of the court of appeal's reversal and pro-constitutionality ruling. ²

Then, on May 17, 1989, Mr. Z. filed a Motion for Declaratory Judgment seeking to have La.R.S. 9:396 declared unconstitutional. That statute provides:

A. Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child, and alleged father to submit to the drawing of blood samples....

The family court found for the defendant and declared the statute unconstitutional. On appeal, the plaintiff, Ms. B., now asks this Court to reverse the decision of the lower court.

The defendant contends that the statute violates his right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and Article I, Section 5 of the 1974 Louisiana Constitution. He further contends that the statute violates his rights of due process and equal protection of the law under the Fourteenth Amendment of the United States Constitution and Article I, Sections 2 and 3 of the 1974 Louisiana Constitution. In contrast, the plaintiff, Ms. B., contends that the statute does not violate any provision of the United States or Louisiana Constitutions. ³

Regarding the Fourth Amendment claim, defendant alleges that the statute unconstitutionally commands the court to issue a peremptory order for blood testing upon request of any of the parties to the paternity action, without a hearing and without any particularized factual justification. The defendant contends that a particularized showing is constitutionally required for a search and seizure under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Church, 538 So.2d 993 (La.1989). Plaintiff counters with the argument that the State has an important interest in establishing paternity and that blood testing to determine paternity is highly effective, low risk, minimally intrusive, and commonly performed. She therefore contends that the intrusion into the defendant's privacy is warranted and constitutionally permissible.

In Schmerber v. State of California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966), the United States Supreme Court determined that court-ordered blood testing involves a search and seizure under the Fourth Amendment of the United States Constitution. The Court stated, however, that the Fourth Amendment acts "to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Id. Schmerber involved a defendant who was arrested for driving under the influence of alcohol. Because of the state's interest in securing evidence of drunk driving, the routine nature, minimal intrusion and virtual absence of risk or pain involved in a blood test, the effectiveness of blood testing in determining whether a person is drunk, and the proper administration of the test by medical personnel within a hospital setting, the Court determined that a warrantless blood test to measure blood-alcohol level was reasonable under the circumstances. Id. at 771, 86 S.Ct. at 1836; Schmerber was a criminal case. The U.S. Supreme Court, however, has held that the Fourth Amendment prohibition applies to civil cases as well. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1986); Marshall v. Barlows, 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).

A court order for blood testing to determine paternity is therefore a search and seizure within the meaning of the Fourth Amendment. In the present case, the question at issue in the defendant's Fourth Amendment claim is whether a court-ordered blood test is reasonable and justified under the circumstances. In a number of other jurisdictions with similar blood testing statutes, courts have consistently held that blood testing to facilitate a determination of paternity is reasonable and constitutionally permissible. S.S. v. E.S., 243 N.J.Super. 1, 578 A.2d 381 (A.D.1990), aff'd, 124 N.J. 391, 590 A.2d 1188 (N.J.1991); McCarty v. Kimmel, 62 Ohio App.3d 775, 577 N.E.2d 665 (1989); Bowerman v. MacDonald, 431 Mich. 1, 427 N.W.2d 477 (1988); Albany County Dept. of Social Serv. v. Seeberger, 112 A.D.2d 674, 492 N.Y.S.2d 182 (1985); Rose v. Dist. Court of Eighth Judicial District, 192 Mont. 341, 628 P.2d 662 (1981); State v. Meacham, 93 Wash.2d 735, 612 P.2d 795 (1980).

A blood test is minimally intrusive, relatively painless, and medically safe. In facilitating a determination of paternity, blood tests are highly reliable and unequaled in evidentiary value. See e.g., Perry v. Commonwealth, ex rel., Kessinger, 652 S.W.2d 655, 660-61 (Ky.1983); State v. Meacham, 612 P.2d at 797. In Commonwealth v. Beausoleil, 397 Mass. 206, 490 N.E.2d 788 (1986), the court stated that "... [HLA testing] is now accepted as the single, most powerful blood testing system for excluding putative fathers." Id. 490 N.E.2d at 798, n. 20. The Massachusetts court went on to state that "... HLA testing is a reliable means of excluding paternity. On this point there is no dispute." Id.

Blood testing to determine paternity has also been endorsed by the American Medical Association and the Section on Family Law of the American Bar Association. See Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Family L.Q. 247 (1976). In addition, such testing has been endorsed by the U.S. Supreme Court:

... the modern status of [blood grouping tests in paternity cases] has been described by one commentator as follows:

"As far as accuracy, reliability, dependability--even infallibility--of the test are concerned, there is no longer any controversy. The result of the test is universally accepted by distinguished scientific and medical authority. There is, in fact, no living authority of repute, medical or legal, who may be cited adversely.... [T]here is now ... practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a blood test exclusion of paternity."

S. Schatkin, Disputed Paternity Proceedings Sec. 9.13 (1975).

Little v. Streater, 452 U.S. 1, 7, 101 S.Ct. 2202, 2206, 68 L.Ed.2d 627 (1980).

Although the alleged father has a right to privacy and to be free from unreasonable searches and seizures, those rights are not absolute and may be reasonably regulated when the State has a sufficiently weighty interest. Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985); Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1972); Plaquemines Parish Commission Council v. Delta Development Co., Inc., 472 So.2d 560, 567-68 (La.1985). In this case, the State has a compelling interest because of its pervasive concern for the welfare of its children. La.R.S. 46:236.1; See Little v. Streater, 452 U.S. at 14, 101 S.Ct. at 2209; Ginsberg v. New York, 390 U.S. 629, 639-41, 88 S.Ct. 1274, 1280-82, 20 L.Ed.2d 195 (1968); Prince v. Massachusetts, 321 U.S. 158, 165, 64 S.Ct. 438, 441, 88 L.Ed. 645; (1944); Kay v. White, 286 F.Supp. 684, 687 (E.D.La.1968); Jane L. v. Rodney B., 108 Misc.2d 709, 438 N.Y.S.2d 726, 728 (Fam.Ct.1981). In addition, in a paternity case involving a minor child on public assistance, the State has an important interest in conservation of the State's public assistance funds. Jane L., 438 N.Y.S.2d at 729; Salas v. Cortez, 24 Cal.3d 22, 154 Cal.Rptr. 529, 536, 593 P.2d 226, 233, cert. denied, 444...