In Interest of JM

590 So. 2d 565, 1991 WL 255941
CourtSupreme Court of Louisiana
DecidedDecember 2, 1991
Docket91-CA-1772
StatusPublished
Cited by30 cases

This text of 590 So. 2d 565 (In Interest of JM) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Interest of JM, 590 So. 2d 565, 1991 WL 255941 (La. 1991).

Opinion

590 So.2d 565 (1991)

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

No. 91-CA-1772.

Supreme Court of Louisiana.

December 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.

*566 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 *567 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.

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590 So. 2d 565, 1991 WL 255941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-jm-la-1991.