98-038




                                                                          No. 98-038

                                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                           1998 MT 144



                                        IN THE MATTER OF THE PATERNITY OF M.J.S.,
                                                    CHARLES BRODZKI,

                                                                   Petitioner and Appellant,

                                                                                      v.

                                                 DEPARTMENT OF PUBLIC HEALTH AND
                                               HUMAN SERVICES, and ANNA M. SMITH,


                                                                 Defendants and Respondents.




              APPEAL FROM:                   District Court of the Eighteenth Judicial District,
                                                      In and for the County of Gallatin,
                                               The Honorable Thomas A. Olson, Judge presiding.


                                                                COUNSEL OF RECORD:

                                                                               For Appellant:

                                                        Charles Brodzki, Pro Se, Bozeman, Montana

                                                                             For Respondents:

                                       Lonnie J. Olson, Special Assistant Attorney General,
                                   Department of Public Health and Human Services, Child Support
                                               Enforcement Division, Helena, Montana




                                                                             Submitted on Briefs: April 30, 1998
                                                                             Decided: June 9, 1998
                                                                             Filed:




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                                                       __________________________________________
                                                                          Clerk

                  Justice W. William Leaphart delivered the Opinion of the Court.

     ¶1    Charles Brodzki (Charles), appearing pro se, appeals from the decision
      of the Eighteenth Judicial District Court, Gallatin County, affirming the
      decision of the Administrative Law Judge (ALJ) holding that Montana Child
      Support Enforcement Division (CSED) had jurisdiction to commence paternity
    proceedings, denying Charles' requests for discovery and ordering Charles to
                          submit to blood testing. Affirmed.
                                                  Background

¶2   Charles and Anna M. Smith (Anna) co-habitated in Florida in 1994 and
1995. CSED alleges that their live-in relationship lasted from August 1994
until sometime at the end of February 1995, at which time Anna moved out.
Both Charles and Anna testified that they engaged in sexual relations during
the time that they lived together. The ALJ found that the probable period of
conception of M.J.S. was between February 13, 1995 and March 26, 1995.
Anna testified that she had sex with Charles during that time. Charles
testified, however, that the parties stopped having sexual relations around
January 28, 1995.

¶3   This case commenced on March 29, 1996, when CSED received an
interstate transmittal, including a paternity affidavit of Anna, from the State of
Rhode Island. The transmittal named Charles as the alleged father of M.J.S.,
a minor child. On May 14, 1996, CSED issued a Notice of Parental
Responsibility to Charles containing the Rhode Island transmittal and a
second, Montana affidavit of paternity. Thereafter, Charles denied paternity
and requested an administrative hearing.

¶4   At a pre-hearing conference, Charles requested discovery of his own
automobile insurance records concerning a claim Anna had filed with his
insurance company in Florida.   Charles also requested Anna's medical records
from Rhode Island. The ALJ explained that she did not have jurisdiction
outside Montana, but that Charles could request subpoenas and serve them on
his insurer and Anna. Charles did not serve subpoenas in accordance with the
rules of procedure. Thereafter, Charles filed a motion to reconsider his
discovery requests. The ALJ denied the motion, determining that the
information sought was not relevant to the limited issue which she has
jurisdiction to determine--whether there is a reasonable probability that
Charles engaged sexual intercourse with Anna during the probable period of
conception.

¶5   The administrative hearing was held on December 10th and 16th. At
the hearing, the ALJ, on her own motion, excluded the Montana paternity
affidavit of Anna. The ALJ, however, allowed CSED to proceed with the
paternity action based on Anna's testimony at the hearing and the interstate
transmittal which contained the Rhode Island affidavit of paternity. On
December 13th, Charles moved to dismiss based on lack of subject matter

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jurisdiction for failure of CSED to have a paternity affidavit in compliance
with § 40-5-232, MCA. The ALJ denied the motion on December 16th. On
March 19, 1997, the ALJ issued a Paternity Blood Test Decision and Order
finding that there was a reasonable probability that Charles engaged in sexual
intercourse with Anna during the probable period of conception and allowing
CSED to issue a subpoena ordering Charles to submit to paternity blood
testing.

¶6   Charles moved to stay enforcement of the Paternity Blood Testing. The
ALJ did not rule on Charles' motion. However, on April 17, 1997 Charles
filed his Petition for Judicial Review of the ALJ's Paternity Blood Testing
Order to the District Court. At the District Court, Charles argued that he was
denied discovery and that CSED lacked subject matter jurisdiction to proceed
with the paternity action. Following briefing and oral argument, the District
Court affirmed the ALJ's decision. It is from the District Court's order that
Charles appeals. Charles presents two issues on appeal:

¶7   1) Did the ALJ abuse her discretion in denying Charles' discovery
requests?

¶8   2) Did CSED have subject matter jurisdiction pursuant to § 40-5-232,
MCA?
                       Discussion
                           I

¶9   1) Did the ALJ abuse her discretion in denying Charles' discovery
requests?

¶10 An administrative hearing to establish paternity is a contested case and
is subject to the provisions of the Montana Administrative Procedure Act of
Title 2, Chapter 4, MCA. The agency's rules of practice provide for discovery,
but require that the parties have approval from the ALJ before conducting
discovery. The parties must inform the ALJ at the prehearing conference of
the proposed type of discovery and information which they seek to discover.
At the prehearing conference, Charles requested his insurance records and
Anna's medical records. The ALJ explained that she did not have jurisdiction
to obtain the out-of-state records, but that Charles could request them via
subpoenas. A long discussion ensued between the ALJ and Charles regarding
the relevancy of Charles' discovery requests. The ALJ explained that she has
limited jurisdiction to decide the issue of whether the parties engaged in sexual
intercourse during the probable period of conception and that any evidence
presented must be relevant to that issue. Although some confusion resulted
from the discussion of subpoenas, the record reveals that Charles did not serve
subpoenas on his insurance company and Anna in compliance with the rules.
Furthermore, when Charles moved the ALJ to reconsider his discovery
requests, the ALJ determined that the records were not relevant and denied his
motion.

¶11       Charles argues that the administrative rules require that discovery be


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made available to the parties and that the rules should be construed liberally
to allow such discovery. Charles further argues that he established the
relevancy of his insurance records in his motion for reconsideration.

¶12 CSED argues that the entire purpose of the administrative hearing is for
the ALJ to determine whether there is a reasonable probability that the alleged
father engaged in sexual intercourse with the mother during the probable time
of conception and that if the ALJ determines there is such a "reasonable
probability" she may allow the agency to issue a subpoena requiring the
alleged father to take a blood test. CSED further argues that the information
sought by Charles is outside the scope of the hearing.

¶13 Section 40-5-233(b), MCA, provides that "[i]f the department
determines after a review of a sworn statement that there are sufficient facts
to establish a reasonable probability of paternity or nonpaternity as claimed by
the requesting party, the department shall issue a subpoena ordering the
alleged father . . . to submit to blood testing." Based on testimony from
several witnesses as to when Anna moved out of Charles' home, Anna's Rhode
Island affidavit of paternity, and her testimony at the hearing, the ALJ
determined that there was a reasonable probability that the parties engaged in
sexual relations during the relevant time period.

¶14 The ALJ explained that Charles was not entitled to Anna's medical
records for two reasons. First, the records are confidential and can only be
obtained through a district court order or Anna's consent. Second, the only
medical information pertinent to the limited issue before the ALJ is the date
of birth of the child. The ALJ determines a probable range of dates of
conception by subtracting the normal period of gestation, 266 to 294 days,
from the birthdate. Based on the date of birth of M.J.S., November, 26, 1995,
the ALJ determined that the probable date of conception was between
February 13, 1995 and March 26, 1995. The relevant medical information, the
birth certificate and the paternity affidavit containing the date of birth, were
provided to Charles. Therefore, we determine that the District Court did not
abuse its discretion in affirming the decision of the ALJ denying Charles'
request for Anna's medical records.

¶15 Moreover, we agree with the decision of the ALJ that the insurance
records sought by Charles were not relevant to the question of whether the
probability of sexual relations was reasonable. Rather, they dealt with
whether Anna disclosed to the insurance company that Charles is the alleged
father of M.J.S. We determine that the District Court did not abuse its
discretion in affirming the decision of the ALJ denying Charles' discovery
requests.
                           II

¶16 2) Did CSED have subject matter jurisdiction pursuant to § 40-5-232,
MCA?

¶17       Section 40-5-232(5), MCA, provides that


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          [t]he department shall commence proceedings to establish
          paternity by serving on an alleged father a notice of parental
          responsibility. The department may not serve the notice unless
          it has:
               (a) a sworn statement claiming that the alleged father is
          the child's natural father;
               (b) evidence of the existence of a presumption of
          paternity under 40-6-105; or
               (c) any other reasonable cause to believe that the alleged
          father is the child's natural father.

Charles asserts that, because Anna's Montana affidavit was excluded by the
ALJ, CSED lacked subject matter jurisdiction pursuant to § 40-5-232, MCA.
CSED, on the other hand, asserts that since other reasonable cause existed, the
lack of Anna's Montana affidavit did not deprive CSED of jurisdiction to bring
the paternity action.

¶18 The ALJ excluded Anna's Montana affidavit because it contained many
defects and questions regarding its authenticity. However, the ALJ further
determined that Anna's Rhode Island affidavit of paternity and Anna's
testimony at the hearing were sufficient to allow the case to proceed. CSED
argues that the ALJ properly relied on the Rhode Island affidavit and Anna's
testimony for two reasons. First, the statute does not require that the affidavit
be a Montana affidavit and, second, CSED satisfied the "other reasonable
cause to believe" alternative of § 40-5-232(5), MCA.

¶19 We agree with CSED that § 40-5-232(5), MCA, does not require that
the statement of paternity be sworn to in Montana. Rather, we conclude that
Anna's Rhode Island affidavit of paternity, which alleges Charles is the father,
satisfied the requirement of § 40-5-232, MCA, thus allowing the department
to commence proceedings. Thus, we do not reach the issue of whether CSED
satisfied the "other reasonable cause to believe" alternative.   We conclude that
the ALJ did not abuse her discretion in holding that CSED had jurisdiction to
commence the paternity proceedings. We affirm.

                                                                 /S/       W. WILLIAM LEAPHART

We concur:

/S/       J. A. TURNAGE
/S/       JAMES C. NELSON
/S/       TERRY N. TRIEWEILER
/S/       WILLIAM E. HUNT, SR.




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