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S.S. v. E.S.

Decided: July 17, 1990.

S.S., PLAINTIFF-RESPONDENT,
v.
E.S., DEFENDANT-APPELLANT



On Appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County.

King, Shebell and Baime. The opinion of the court was delivered by Baime, J.A.D. Shebell, J.A.D., concurring in part and dissenting in part.

Baime

Pursuant to section 14 (N.J.S.A. 9:17-51) of the New Jersey Parentage Act (Act) (N.J.S.A. 9:17-38 to -59), the Family Part ordered defendant to undergo Human Leucocyte Antigen (HLA) blood testing to determine whether he was the father of plaintiff's eight-year old child. Under the Act, a refusal to submit to a court ordered blood test gives rise to a presumption that the results would have been unfavorable to the interests of the recalcitrant party. N.J.S.A. 9:17-51d. In addition, "sanctions within the jurisdiction of the court" may be imposed. N.J.S.A. 9:17-51d. Following defendant's refusal to undergo testing, the Family Part entered an order directing that he be incarcerated. Defendant moved for leave to appeal, contending that the Act is unconstitutionally vague. More specifically, defendant argues that the Act is internally inconsistent because it seemingly permits a party to refuse to submit to a blood test, as long as he implicitly agrees to be burdened with a negative presumption, while empowering the court to impose sanctions upon his assertion of his right to decline testing. Defendant also claims that court ordered blood testing intrudes upon his right to privacy under the Fourth Amendment.

We granted leave to appeal in order to consider defendant's challenges to the constitutionality of the Act. Based upon our review of the statute, we are thoroughly convinced that the language employed does not suffer from constitutional vagueness. We are persuaded, however, that a court ordered blood test constitutes a significant invasion into a party's privacy interests and, therefore, qualifies as a search subject to the Fourth Amendment's reasonableness requirement.

I.

The salient facts can be summarized briefly. Plaintiff S.S. filed a complaint alleging that defendant E.S. is the father of her child, born July 3, 1981. It is undisputed that before the present action plaintiff had instituted paternity proceedings against two other individuals. Plaintiff conceded on the record that these prior actions were frivolous and that she knew neither of these men was the father.

Pursuant to plaintiff's request, the Family Part ordered defendant to undergo an HLA blood test under N.J.S.A. 9:17-51. That section provides as follows:

a. The court may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood tests or genetic tests. The tests shall be performed by a qualified expert appointed by the court.

b. The court, upon reasonable request by a party, shall order that independent tests be performed by other qualified experts.

c. The court shall determine the number and qualifications of the experts.

d. The refusal to submit to blood tests or genetic tests, or both, may be admitted into evidence and shall give rise to the presumption that the results of the tests would have been unfavorable to the interest of the party refusing. Refusal to submit to blood tests or genetic tests, or both, is also subject to the sanctions within the jurisdiction of the court.

e. Whenever blood tests or genetic tests are ordered and made, the results thereof shall be filed with the court and shall be receivable in evidence, but only in cases where definite exclusion is indicated, or where a human leucocyte antigen, electrophoresis or isoelectric test is made to also establish the positive probability of parentage. Expert testimony pertaining to these tests may be requested by the parties. The order for such blood tests or genetic tests also may direct that the testimony of such experts and the persons so to be examined be taken by deposition. The court, upon application and for good cause shown, may limit the admissibility of the blood tests or genetic tests.

The results of HLA blood tests are admissible, but not conclusive evidence of paternity. See R.K. v. Dept. of Human Services, 215 N.J. Super. 342, 346, 521 A.2d 1319 (App.Div.1987); see also Assembly Judiciary, Law, Public Safety and Defense Committee Statement, Senate No. 885 -- L. 1983, c. 17, ยง 14.

Defendant refused to comply with the court ordered blood test. Following a brief hearing, the Family Part judge held

that defendant's refusal would be admitted into evidence at the subsequent trial and would support a presumption that the results of the test would have been unfavorable to his interests. The judge also ordered that defendant be imprisoned until he complied with the statute's requirement and submitted to the blood test. We granted leave to appeal and stayed the Family Part's order.

II.

Initially, we reject defendant's argument that N.J.S.A. 9:17-51 is void for vagueness. Vagueness "is essentially a procedural due process concept grounded in notions of fair play." State v. Lashinsky, 81 N.J. 1, 17, 404 A.2d 1121 (1979); see also Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957, 32 L. Ed. 2d 584, 590 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 455, 59 S. Ct. 618, 620, 83 L. Ed. 888, 890 (1939). A statute is unconstitutional if it is couched in terms "so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application." Coates v. Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 29 L. Ed. 2d 214, 217 (1971); see also State v. Cameron, 100 N.J. 586, 591, 498 A.2d 1217 (1985); State v. Lee, 96 N.J. 156, 165, 475 A.2d 31 (1984). The vagueness test "demands that a law be sufficiently clear and precise so that people are given notice and adequate warning of the [statute's] reach." Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n. 21, 462 A.2d 573 (1983). The question must be resolved against the contextual background of the particular law and with a firm understanding of its purpose. State v. Cameron, 100 N.J. at 591, 498 A.2d 1217.

Measured against these standards, we find no ambiguity in a constitutional sense. Once a party is ordered to undergo a blood test, he has no "right" or "privilege" to refuse. That the statute describes in detail the consequences that may flow from a wrongful refusal, i.e., a negative presumption and ...


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