State ex rel. Department of Justice v. Spring

120 P.3d 1, 201 Or. App. 367, 2005 Ore. App. LEXIS 1150
CourtCourt of Appeals of Oregon
DecidedAugust 31, 2005
Docket0330034C; A122897
StatusPublished
Cited by5 cases

This text of 120 P.3d 1 (State ex rel. Department of Justice v. Spring) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Department of Justice v. Spring, 120 P.3d 1, 201 Or. App. 367, 2005 Ore. App. LEXIS 1150 (Or. Ct. App. 2005).

Opinion

LANDAU, P. J.

This is an action for paternity and to establish child support. The Division of Child Support (DCS) issued an administrative support order and money judgment based on the mother’s affidavit and appellant Michael Spring’s failure to submit to parentage testing. When DCS filed the order and judgment in circuit court, Spring responded with a request for a declaratory judgment that the relevant statutes that require him to submit to parentage testing violate state and federal constitutional prohibitions against unreasonable searches and seizures. The trial court rejected Spring’s contention and entered judgment establishing paternity and ordering Spring to pay child support. Spring appeals, asserting once again that the statutes requiring him to submit to paternity testing are unconstitutional. We affirm.

The relevant facts are not in dispute. Phillips gave birth to M on August 28, 2001, and filed with DCS an affidavit in support of establishing paternity that named Spring as the father. The affidavit stated that Spring was the father of the child, that Phillips told him that he was the father of the child, that he admitted being the father of the child, that Spring had visited the child, and that Spring remarked to Phillips that M had a birth mark that matched one on Spring’s older son.

Pursuant to ORS 416.415,1 DCS served Spring with a notice and finding of financial responsibility and a proposed final order. Spring responded with a denial of paternity. Pursuant to ORS 416.430,2 DCS then served Spring with a notice [370]*370to appear to provide a DNA sample for parentage testing, informing him that, if he failed to “submit to parentage tests, or * * * to respond, [DCS] may decide the question of paternity against [him].” In Oregon, such DNA testing is conducted on a sample taken by a swab from the inside of the mouth of the person being tested. See ORS 109.251 (defining “blood tests” to include “any test for genetic markers to determine paternity of a type generally acknowledged as reliable * * * including, but not limited to * * * any test that extracts genetic material from any human tissue”). Spring refused to provide such asample. He and DCS exchanged a series of letters in which DCS repeatedly informed him that, to proceed to a hearing on the issue of paternity, he must first submit to DNA testing, and in which he responded that DCS did not have authority to “compel [him] to obey [the] notice” and that he was entitled to a hearing to establish paternity before it could require him to provide a DNA sample. Finally, DCS filed with the court a default child support and money judgment and filiation certificate.

In response to the default judgment and filiation certificate, Spring filed a “notice of refusal for fraud,” arguing that DCS’s default judgment was invalid because the agency had deliberately misrepresented that he had not requested a hearing. Spring also filed a motion for relief from judgment and for a declaratory judgment, contending that the default judgment was invalid on a number of grounds and requesting the court to declare his constitutional rights to be free from the DNA testing demanded by DCS. On the motion of DCS, the trial court vacated the default judgment because the parties had not been properly served.

The trial court then held a hearing on the matter of Spring’s motion for declaratory judgment. The trial court denied that motion, addressing Spring’s due process and search and seizure rights in a letter opinion. The trial court [371]*371ruled that a hearing on parentage was not necessary as a predicate to requiring Spring to submit to DOS’s DNA screening and ordered Spring to provide a DNA sample. Rather than submit to the tests, Spring moved for a new trial, insisting that DCS must provide some affirmative evidence of his paternity before it could require him to provide a blood sample. The trial court denied that motion and found Spring in violation of its order to submit to parentage tests. As noted, the court ultimately entered a judgment establishing paternity and a support and money judgment against him.

On appeal, Spring contends that the DNA test that is required under ORS 416.430(5)(a) is an infringement on his rights under Article I, section 9, of the Oregon Constitution and the Fourth and Fourteenth Amendments to the United States Constitution to be free from unreasonable searches and seizures and that he was entitled to a hearing on the matter of his parentage of M before being required to submit to the DNA testing. He does not contend that the trial court’s failure to hold a hearing on the factual basis for the DNA testing violated his due process rights. Rather, he contends that “the search of [his] DNA must first be determined to be reasonable by an independent and impartial tribunal.” Thus, we understand Spring’s argument to be that the state and federal constitutions require DCS to establish probable cause before a neutral magistrate — that is, to obtain a warrant — before it can require him to provide the blood sample.

DCS counters that the trial court did not err in denying Spring’s motion for a declaratory judgment because the DNA screening at issue is a valid administrative search under the Oregon Constitution. According to DCS, the DNA testing also does not violate the federal constitution because, on balance, the state’s interest in estabhshing M’s paternity outweighs Spring’s interest in being free from the intrusion of a DNA test. We agree with DCS on both issues.

We review a trial court’s determination whether a search complies with the constitution for errors of law. State v. Ehly, 317 Or 66, 74-75, 854 P2d 421 (1993). Both state and federal constitutions require that searches and seizures must not be unreasonable. Article I, section 9, provides:

[372]*372“No law shall violate the right to the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

The Fourth Amendment similarly provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Analysis under both clauses requires that we determine whether the state action at issue constitutes a “search” and, if so, whether that search is reasonable.

We begin with the Oregon Constitution, addressing first the question whether the “blood test” that the statute requires constitutes a “search” within the meaning of Article I, section 9. In State v. Milligan, 304 Or 659, 664, 748 P2d 130 (1988), the Supreme Court held that extracting blood is a search that implicates the reasonableness requirement of Article I, section 9.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. H. K. D. S. (A163158)
469 P.3d 770 (Court of Appeals of Oregon, 2020)
Urenda-Bustos (Luis) v. State
Nevada Supreme Court, 2018
State v. Sandoval
New Mexico Court of Appeals, 2015
State v. Snow
268 P.3d 802 (Court of Appeals of Oregon, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
120 P.3d 1, 201 Or. App. 367, 2005 Ore. App. LEXIS 1150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-justice-v-spring-orctapp-2005.