State v. Unterseher

• Citation: 255 N.W.2d 882
• Decision Date: 26 May 1977
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff/Appellee, v. Duane UNTERSEHER, Defendant/Appellant. o. 582.
• Court: United States State Supreme Court of North Dakota

Page 882

255 N.W.2d 882

STATE of North Dakota, Plaintiff/Appellee, v. Duane UNTERSEHER, Defendant/Appellant.

Cr. No. 582.

Supreme Court of North Dakota.

May 26, 1977.

As Amended July 12, 1977.

Syllabus by the Court.

1. A person to whom a statute may constitutionally be applied cannot challenge that statute on the grounds that it may conceivably be applied unconstitutionally to others.

2. The Fourteenth Amendment to the United States Constitution permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than they affect others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.

3. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

4. Only invidious discrimination is prohibited by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

5. When a statute changing a rule of evidence has gone into effect, cases thereafter tried must be governed thereby, unless there be a limitation in the statute, although the pleadings were filed before the law went into effect.

6. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence.

7. Instructions must be considered as a whole and if, when so considered, they correctly advise the jury as to the law, they are sufficient although parts of them standing alone may be erroneous or insufficient.

8. No adverse inference is raised by the failure to produce or use an available witness where the witness is equally available to either party where the witness or a party to the action can be expected to exert a valid privilege which would exclude the anticipated testimony from the record.

9. No part of the North Dakota Century Code is retroactive unless it is expressly declared to be so. § 1-02-10, N.D.C.C.

10. The trial court's determination of the amount to be paid by a parent for the support of an illegitimate child during the period for which a duty of support is owed is discretionary, based upon the trial court's consideration of all the relevant facts, including, but not limited to, those factors set out in § 14-17-14(5), N.D.C.C., and is subject to reversal only when its discretion is abused.

Richardson & Blaisdell, Hazen, for defendant and appellant; argued by Josiah C. Blaisdell, Hazen.

John M. Olson, State's Atty., and Rolf P. Sletten, Asst. States Atty., Bismarck, for plaintiff and appellee; argued by Mr. Sletten.

PAULSON, Judge.

Duane Unterseher was adjudged by a jury to be the father of the minor child born to Sharon K. Olson on December 24, 1974. Unterseher appeals from the judgment of the district court of Burleigh County dated September 28, 1976, finding Unterseher to be the father of, and ordering Unterseher to make support payments for, said minor child in the sum of $150.00 per month until the child shall have reached the age of majority.

Five issues are raised on this appeal:

(1) Do the former provisions of Chapter 32-36, N.D.C.C., violate the provisions of the United States Constitution and the North Dakota Constitution because such provisions deny due process and equal protection of the laws to a putative father;

(2) Did the trial court err in admitting into evidence the results of blood tests conducted on Unterseher, Sharon Olson, and Sharon Olson's infant child;

(3) Did the trial court err in allowing a challenged jury instruction to be given to the jury concerning the probative value to be given blood test results;

(4) Did the the trial court err by refusing to give a requested jury instruction concerning the jurors' assessment of the failure of the State to produce certain witnesses; and

(5) Are the support payments ordered by the trial court in the instant case excessive?

This is a paternity action, initiated by the State by summons and complaint dated June 5, 1974, in the Burleigh County Court of Increased Jurisdiction. At such time Sharon Olson's child was as yet unborn. Following a preliminary hearing, Unterseher was bound over to the Burleigh County District Court. The trial of the action in district court was deferred until after the birth of the child. At the time this action was commenced, the former provisions of Chapter 32-36, N.D.C.C., were controlling. Chapter 32-36, N.D.C.C., has since been repealed by our Legislature, effective July 1, 1975, and is superseded by the provisions of Chapter 14-17, N.D.C.C.

On December 24, 1974, Sharon Olson gave birth to a son. On January 31, 1975, a stipulation for blood tests was entered into between counsel for the respective parties. Such stipulation was drafted by counsel for Unterseher.

On September 19, 1975, Unterseher made a motion for summary judgment alleging the unconstitutionality of North Dakota's illegitimacy law, Chapter 32-36, N.D.C.C. Such motion was denied by the trial court on December 23, 1975.

On March 9, 1976, Unterseher made a motion for the pretrial exclusion of blood test results. Such motion was denied on March 25, 1976, by the district court.

The trial of the case commenced on March 25, 1976. The results of the blood tests, which did not exclude Unterseher as the father, were admitted into evidence. A challenged jury instruction with reference to the jury's use of the blood test results was given, and a requested instruction concerning the failure of the State to produce certain witnesses was not given. The jury returned a verdict finding Unterseher to be the father of Sharon Olson's infant child.

Subsequent to the jury's verdict, affidavits were submitted on behalf of Unterseher and Sharon Olson regarding their respective financial conditions. Based on such information, the district court ordered and adjudged that Unterseher should make support payments in the amount of $150.00 per month, commencing April 1, 1976, and continuing until the child attains the age of majority.

I.

Unterseher contends that the application of the former provisions of Chapter 32-36, N.D.C.C., in paternity actions, is unconstitutional in that: (a) it violates Article V of the United States Constitution in that due process of law is not afforded a putative father, who may be deprived of life, liberty, and property without such due process; (b) it violates Article XIV of the Federal Constitution as it further denies to a person within the jurisdiction of the State of North Dakota equal protection of the laws of the State of North Dakota; (c) it contravenes § 11 of the North Dakota State Constitution in that it provides a law of a general nature which does not have uniform operation; (d) it contravenes § 13 of the North Dakota State Constitution in that it deprives the putative father of life, liberty, or property without due process of law; and (e) it violates § 20 of the North Dakota State Constitution in that it provides a special privilege to a class of citizens which upon the same terms is not granted to all citizens.

Unterseher bases his constitutional arguments upon the unequal rights and privileges afforded mothers of illegitimate children not shared by fathers, including: (1) a cause of action to determine the paternity of a child; (2) a cause of action to enforce the support obligations of the father of a child born out of wedlock; and (3) criminal sanctions to enforce the support obligations of a putative father. Unterseher asserts that reasonable grounds do not exist for such distinction or classification between two persons of the same class, i. e., parents.

The general rule is that a person to whom a statute may constitutionally be applied cannot challenge that statute on the grounds that it may conceivably be applied unconstitutionally to others. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1959); State v. Woodworth, 234 N.W.2d 243 (N.D.1975); State v. Gamble Skogmo, Inc. 144 N.W.2d 749 (N.D.1966).

A litigant may assert only his own constitutional rights, unless he can present "weighty countervailing policies". Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); State v. Woodworth, supra. Unterseher has not asserted countervailing policies which would allow him to challenge the constitutionality of Chapter 32-36, N.D.C.C., on grounds that it may conceivably be applied unconstitutionally to others. We, therefore, restrict our review to the constitutionality of Chapter 32-36, N.D.C.C., as applied to the instant case.

Unterseher's argument fails in each instance. Except where the classification is inherently suspect, the Fourteenth Amendment to the United States Constitution permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than they affect others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. Only invidious discrimination is prohibited by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. McGowan v. State of Maryland, 366 U.S. 420, 425-428, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1960); State v. Gamble Skogmo, Inc., supra.

In the instant case, Unterseher has not personally attempted to affirmatively establish his paternity, but, rather, he has actually attempted to deny paternity. Thus, Unterseher has no standing to challenge the constitutionality of Chapter 32-36, N.D.C.C., on the ground that it denies to a father an equal cause of action to establish his own paternity as that given to a mother, because Unterseher has not suffered any such discrimination.

Unterseher's contention that the father and mother of an illegitimate...