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Superior Court Navigates ‘Twists and Turns’ in Case Involving Paternity Tests

Pennsylvania Superior Court recently heard a rather complex and tangled case regarding how, when and what significance a paternity test may have in determining the paternity of a child. In the matter of H.Z. v. M.B., 2019 Pa.Super. 33, the Superior Court offered insights that may be instructive for other similar matters, especially in cases where attempted clever tactics and intrigue are elements.

In H.Z., the mother, seeking child support, filed for paternity testing in New York shortly before the child was born in March 2005. The results of the testing excluded M.B., the putative father. Consequently the parties entered into a stipulation providing that the mother would discontinue her paternity and support actions against M.B. with prejudice.

Two years later, the mother hired a private investigator to surreptitiously secure a sample of the father’s DNA. Specifically, the investigator followed M.B. to a Starbucks where he picked M.B.’s discarded coffee cup out of a trash can, and submitted it for genetic testing that resulted in a finding of a probability of over 99 percent percent that M.B. is the father of the child.

About a year later, the results of the investigator’s test motivated the mother to file a new paternity case against M.B., this time in New Jersey, where the mother had relocated. The case was transferred to Pennsylvania as New Jersey had no jurisdiction over M.B., who was a resident of Pennsylvania. A few months later, the parties again entered into a stipulation dismissing the mother’s case.

Undeterred, the mother almost immediately filed a third case, this time in Montgomery County, to which M.B. filed preliminary objections, a motion to dismiss and a motion to stay the testing, primarily on the basis of res judicata. While M.B. successfully had the Starbucks test excluded as evidence, per a motion in limine, the case, for some reason, was not scheduled for a hearing until about five years later. After that hearing the trial court ordered M.B. to submit to genetic testing once again. The father appealed, primarily on the basis of res judicata. In an unpublished opinion, the Superior Court ruled that the stipulation entered in the New York matter was in violation of New York law and, therefore, not controlling.

Finally, after another year’s time, M.B. submitted to a buccal swab genetic test requested by the mother’s petition requesting blood and hair testing, which again excluded M.B. as the father of the child. Upon receiving the result of this test, M.B. requested the dismissal of the case. The mother countered by requesting M.B. to submit to more rigorous testing on the basis that M.B.’s DNA samples had irregularities, and M.B.’s genetic profiles in the various tests all differed from one another which, she averred, means they did not come from the same person. The parties subsequently filed various motions seeking sanctions and striking filings. A trial court hearing on these issues was finally scheduled for December 2017.

At the hearing, the mother called two officials from the Montgomery County Domestic Relations Office who testified that, despite many years of experience and their knowledge of  hundreds of cases, neither have had a case where the DNA sample they collected was insufficient for testing. In opposition to these witnesses, M.B. called a DNA lab director who testified that there was no evidence of tampering, no issues with the chain-of-custody of the DNA sample, and no issues with testing protocols. While the lab director did note that the DNA that was recently tested did degrade, she could not come to a definite conclusion as to why.

After some of the witnesses testified at the hearing (as described above), the trial court scheduled at least two more days of testimony. Without explanation or apparent reason, the trial court suddenly entered an order concluding that M.B. is the father and directed that an appropriate support order be awarded. M.B. immediately appealed to the Pennsylvania Superior Court.

On appeal, M.B. argued that the mother’s case should be dismissed on the basis that the Montgomery County test excluded him as father. M.B. specifically argued that a paternity hearing could only be scheduled if the results of a genetic test did not indicate that the putative father was not excluded from being the father. Consequently, per M.B.’s argument, in the instant matter, as the Montgomery County test excluded him as the father, the aforesaid rule required the mother’s case to be dismissed. The Superior Court rejected this argument and decided that the rule does not limit the scheduling of a hearing only when a test does not indicate an exclusion. The court also pointed out that the rule does not provide that a genetic test—by itself—is sufficient to establish paternity but, instead, indicates that a hearing on the reliability of genetic testing is permissible. The Superior Court also found that Rule 1910.15(d)(4) sets forth “a clear course of conduct addressing every possible result of the genetic testing” and M.B.’s request for dismissal was not relief afforded to him by the rule.

M.B. further argued that the Uniform Act on Blood Tests to Determine Paternity (23 Pa.C.S.A. Section 5104) eliminates any discretion on the part of the trial court to rule in this matter. Superior Court ruled that the aforesaid statute does not apply as no blood test ever took place in this matter, rejecting M.B.’s argument that it applies to all manner of genetic testing, not just blood testing.

M.B. then argued that 23 Pa.C.S.A. Section 4343 also requires the dismissal of an action for paternity when a man is excluded from paternity after genetic testing. The court rejected this argument as well, pointing out that the statute cited by M.B. actually directly opposes his argument. The Superior Court noted that the statute “does not provide that genetic tests are conclusive of the issue of paternity,” but such a determination may only be made by “a court in a civil action.” Additionally, the statute also allows for additional testing if a party contests the initial test.

M.B. proffered a cursory argument that additional testing would violate his Fourth Amendment rights under the U.S. Constitution. However, as he did not raise this argument in a timely manner, the Superior Court did not consider it. Instead, it indicated that additional testing may be permitted if the first test can be demonstrated to be unreliable by the preponderance of the evidence.

M.B. finally argued that the trial court abused its discretion by basing its ruling on excluded evidence (the Starbucks cup) and the Montgomery County test (which he argued had no facts to suggest it was unreliable). The Superior Court was sympathetic to this particular argument, however it directed its focus to the fact that the trial court never completed the record due to inexplicably entering an order before finishing the hearing. As a result, the court could not sufficiently review the facts and evidence in the case as it was left incomplete. Indeed, the Superior Court ruled that 23 Pa.C.S.A. Section 4343 affords the mother the right to an additional genetic test at her own expense as a matter of right.

After all of the twists and turns in this case, the Superior Court ruled that the trial court committed an abuse of discretion when it ruled that M.B. is the father as the hearing was not complete. The Superior Court ultimately ruled that an additional test is to be administered if no stipulation between the parties is reached. If the new test indicates M.B. is the father, then a hearing may be scheduled to determine the reliability of the test. If M.B. is excluded as the father, then the parties may proceed to a hearing on the issue of paternity. If any additional testing is requested, then evidence of any prior tests’ unreliability must be presented, and Fourth Amendment implications can be considered. As a result, the trial court’s order was vacated and the matter was remanded for further proceedings and testing.

May this case be a warning to those who think that genetic testing to determine paternity speaks conclusively as to who a child’s father is or is not. While modern technology has made significant contributions in this area, there still remains sufficient doubt to warrant other forms of evidence and inquiry before a court.

This article was originally published in The Legal Intelligencer on March 19, 2019 and can be found here.

Ministerial Exception Defense Rejected In Suit To Apply Labor Code To Preschool Teachers

This is from religionclause.blogspot.com which you can find here:

In Su v. Stephen S. Wise Temple, (CA App., March 8, 2019), a California state appellate court held that teachers in a Reform Jewish Temple’s preschool are not covered by the ministerial exception rule.  In the case, California’s Labor Commissioner sued on behalf of 40 teachers alleging that the school violated the state’s Labor Code by failing to provide rest breaks, uninterrupted meal breaks, and overtime pay.In rejecting the Temple’s ministerial exception defense, the majority said in part:

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology.  Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception.

Presiding Judge Edmon filed a concurring opinion contending that the court need not reach the question of whether the teachers held “ministerial” positions, saying in part:

I would conclude that the Temple has not demonstrated that the ministerial exception has any application to the present dispute, which does not touch on the Temple’s freedom to choose its ministers or to practice its beliefs….

[T]he constitutional imperative against encroaching on a church’s selection of its ministers does not, as a logical matter, suggest that churches must be exempted from all laws that would regulate the employment relationship between a religious institution and its ministers. Given the number and variety of federal and state employment laws, it stands to reason that some laws will impose a greater burden on religious interests than will others. Accordingly, courts can, without doctrinal inconsistency, exempt churches from the application of some employment laws without exempting churches from all such laws.

You can learn more about this issue here.

City Settles Firefighter’s Religious Discrimination Suit

This is from religionclause.blogspot.com which you can find here:

The city of Utica, New York has settled a religious accommodation lawsuit that was filed against it by a firefighter who refuses to cut his hair after taking a Nazirite vow.  Under the settlement announced Friday, firefighter John Brooks has been granted a religious accommodation from the fire department’s grooming policy. A press release from First Liberty announced the settlement. First Liberty’s website has more on the case.

You can learn more about this issue here.

Christian School May Use Oregon’s Religious Exemption To Reject Jewish Faculty Applicant

This is from religionclause.blogspot.com which you can find here:

In King v. Warner Pacific College, (OR App, Feb. 21, 2019), an Oregon state appellate court held that a Christian college’s refusal to hire a Jewish applicant for a position as adjunct professor of psychology falls within the religious preference exemption to Oregon’s non-discrimination law.  ORS 659A.006(4)provides:

It is not an unlawful employment practice for a bona fide … religious institution, including … a school… to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:  (a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the … institution; … [and]  (c) The employment involved is closely connected with or related to the primary purposes of the … institution….

The court held that the exemption allows the school to reject a non-Christian applicant and await a later hiring cycle to fill the position, or to assign the work to an existing Christian employee.  A majority of the judges also held that this particular faculty position met the requirement of being closely connected to the school’s religious purpose.

You can learn more about this issue here.

Wisconsin Supreme Court Candidate Says Calls For Recusal Promise Are Attacks On His Religious Beliefs

This is from religionclause.blogspot.com which you can find here:

Milwaukee Journal Sentinel reports on the controversy surrounding 2005- 2006 law school blog posts of a state appeals court judge Brian Hagedorn who is a candidate for the state Supreme Court in the upcoming April 2 election in Wisconsin.  As reported in an earlier Journal-Sentinel article, the posts sharply criticized the U.S. Supreme Court’s ruling overturning anti-sodomy laws. saying they could lead to the legalization of bestiality. Hagedorn also attacked Planned Parenthood as an organization that was more devoted “to killing babies than to helping women.” Critics have called for Hagedorn to promise to recuse himself in cases involving same-sex relationships and Planned Parenthood. In a radio interview, Hagedorn, an evangelical Christian, says that the criticism of his posts and calls for recusal are attacks on his religious beliefs.

You can learn more about this issue here.

Suite Challenges School’s Restrictions On Bible Distribution

This is from religionclause.blogspot.com which you can find here:

Suit was filed this week in a Pennsylvania federal district court challenging regulations and policies of the Mechanicsburg Area School District that limit student members of a school’s Bible Club from distributing Bibles to classmates during lunch time hours. School policy allows non-school materials to be distributed only on public sidewalks outside the building and only for 30 minutes before and 30 minutes after school, except as otherwise permitted by the principal.  The complaint (full text) in Christians In Action Club v. Mechanicsburg Area School District, (MD PA, filed 1/30/2019) challenges these as “overbroad and unconstitutional time and place restrictions that impose a complete ban on literature distribution during the school day.” The suit alleges that these restrictions violate students’ free speech and free exercise rights both on their face and as applied. Cumberland Sentinel reports on the lawsuit.

You can learn more about this issue here.

Iowa Supreme Court Says DOT Doesn’t Have The Authority To Regulate Traffic Cameras

I have been writing in opposition to traffic cameras for a few years now (you can find all of my articles and posts on traffic cameras here).  They are consistently controversial and violative of basic rights as described in the article below.

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DES MOINES — The Iowa Supreme Court has ruled in favor of cities and their use of traffic cameras.

Cedar Rapids, Des Moines and Muscatine argued the DOT does not have the right to make rules that forced them to move or take down traffic cameras. The Supreme Court ruling agrees –saying while the Iowa Legislature gives the agency specific authority in other areas — traffic cameras are not included.

The DOT had argued the camera rules fall under their authority to remove “obstructions” from highway right-of-ways. But the Supreme Court says that’s a stretch because the cameras are on poles over the highway and the DOT was okay with cameras just being shut down and not removed.

The ruling says under the DOT argument, if the cities decided to station numerous patrol cars on Interstates 380 and 235 to catch and ticket speeders, the DOT could not issue a rule banning the practice on the grounds that it has “jurisdiction and control” over the highways.

The Supreme Court says when the legislature has given an agency general rulemaking authority but has also granted specific authority in particular areas, the agency cannot then extend the specific grants beyond their scope. It cited an earlier case where the court ruled that the DNR had the authority to quarantine a deer with CWD, but did not have the authority to quarantine the land where the infected deer was discovered, because the DNR was not given that specific authority.

The ruling says the ban on the use of drones for traffic enforcement passed in 2014 shows the legislature has the ability to enact rules for new types of traffic enforcement, but says lawmakers have not taken the step for traffic cameras.

Here’s the full ruling: Traffic-Camera-ruling-PDF

Originally published on April 27, 2018 by KGLO and can be found here.

Capitalists Against the Free Market

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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If you listen to the apologists of capitalism, there is one thing they consistently argue for when they rail against things like socialism or even distributism; the Free Market. They say that they believe that the Market should determine what products and services succeed and fail without artificial support or suppression from the government. Customers should be free to decide what products and services they want to buy and it is up to the producers and service providers to convince consumers to choose theirs instead of others. It is interesting to note those cases where they not only fail to support this idea, but actively work against it.

In order for consumers to be able to make a decision that truly represents the action of a free market, the consumer must have the right to know certain things about the products and service providers between which they are choosing. For example, it has generally been recognized that consumers have the right to know the ingredients of food. This is not just for reasons of health, but for other reasons as well. Vegetarians and vegans have the right as consumers to know whether or not the food they are purchasing contains meat or other animal products. This allows them to make a truly free market choice. Consumers also have the right to know who makes a product because, if they think the producer is unscrupulous, they need to have the ability to choose a competitor’s product. If they are prevented from doing this by allowing the producer to be hidden, then the consumer is prevented from making a free market decision they actively want to make.
An important aspect of this consumer choice is that the consumer’s reason does not have to be deemed “reasonable” by others. If you choose not to buy from a particular provider because they support things which you oppose on moral grounds, it doesn’t matter if those things you oppose have nothing to do with the product in question. In a truly free market, you would have the right to refuse to do business with any provider for whatever reason you want. In a truly free market, the consumer would have the right to know what he needs to know to make a truly free decision, and providers should therefore be required to provide this information and prevented from taking steps to hide it. It is the burden of providers to convince consumers to purchase their products and to do so in an open and honest way. If they fail to convince, then their failure is a result of the “invisible hand” of the free market.
In my state, Washington, there was a movement to require the labeling of products containing GMO ingredients. There are various reasons why people are making their free economic choice to not purchase products with patented genetically modified organisms, and these people were asking that their right to make that free market decision be honored by requiring that products containing these ingredients be labeled so that consumers would know what they are buying. What is truly interesting in regard to this article are the arguments I heard made by avowed capitalists against this. The capitalist pundits almost uniformly opposed the legislation on various grounds. The two main arguments made by these capitalists involved the impact to prices and the irrationality of those who opposed GMO products.

They claimed that the cost of changing the labeling would be prohibitively high and the cost of food would skyrocket as a result. There are two points which easily disprove this claim. First, companies change their labels quite frequently when it serves their purpose. They change pictures and rearrange things, they add special sections about offers. If these label changes don’t cause prices to skyrocket, then requiring the labels for future packages to indicate the presence of GMO ingredients won’t either. Second, the requirement has been made in several other countries and their prices didn’t skyrocket. Those who pointed this out were often treated with disdain by these capitalists.

The argument that those who oppose GMO products were doing so irrationally was typically in the form of saying they didn’t understand the science behind the GMO process. However, that isn’t a valid reason to oppose consumer information because the burden is on the producer to convince them to want to buy their products. If a group of consumers decides they would never purchase those products, that is still a free market decision even if the reasons for their choice are incorrect. We should expect avowed capitalists to support the right of consumers to make that decision even if they disagree with the decision itself.

While supporters of the legislation did voice their reasons for not wanting to choose GMO products, their argument about the legislation itself was essentially that they wanted the right to make their free market decision, and they couldn’t effectively do so if these ingredients were allowed to be hidden from them in the marketplace.
Since we know that the labeling requirement would not actually cause prices to skyrocket, what then is the real reason to refuse to indicate that a product contains GMO ingredients? An obvious answer is the loss of sales. In a free market with informed consumers, some of them will freely choose, for whatever reason, not to purchase products that contain GMO ingredients. In terms of free market capitalist economics, that is not only they way things work, but the way they should work. For a producer to refuse or oppose labeling that would inform the consumer about these ingredients is nothing less than deliberately working against free market values; hiding information you know the consumers want in order to effectively trick them into purchasing a product you know they don’t want. This is duplicitous at best.
Why then did so many capitalist who claim to advocate the free market vociferously oppose consumers being allowed to make informed free market decisions? They didn’t even seem to realize that they were opposing a position that essentially said, “let the free market decide the fate of GMO products in the marketplace.” In essence, they were opposing the free market itself.

Are Traffic Cameras Rigged Against Drivers?

I have been writing in opposition to traffic cameras for a few years now (you can find all of my articles and posts on traffic cameras here).  They are consistently controversial and violative of basic rights as described in the article below.

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There are some studies that have found that traffic cameras slow down traffic, increase wait times, and fuel an increase in rear-end accidents.

And critics say that they are more about trying to make money for the state than they are about trying to keep the roads safer. The intentions behind them might have been good, but in the end the cameras might be causing more harm than any good.

While some studies have found negative results from the traffic cameras, there are others, such as one that was funded by the Insurance Institute for Highway Safety, which found different results; that they allegedly reduced collisions.

However, it appears that a growing number of people are starting to question the efficiency of the cameras; considering the resources that go into maintaining and replacing them etc. As well as the billions of dollars in funding that they are helping to collect for the state.

Are they causing more harm than good?

One recent study that looked at 148 intersections that were located in at least 28 different cities in the US, found that the total number of crashes had increased roughly 10.14 percent compared to the data they had collected prior to installing traffic cameras.

There have been several attempts to ban red-light traffic cameras and to have them removed from various jurisdictions, some public officials have even including it as a campaign promise to voters. But many efforts thus far have failed. However, they did have some success recently in Arizona a few months ago, after House legislators there decided to pass a bill to get rid of traffic cameras; sending it to the Senate for further approval.

The Senate in Texas has also recently voted to ban the use of traffic cameras statewide. One Senator from Texas, Sen. Don Huffines, previously declared that he wants the state to reimburse the victims of these traffic cameras and he wants the entire program turned off; he’s made multiple attempts to try and see that happen.

Regardless of the growing number of critics who are trying to make efforts to have the cameras removed, there are still a great deal of law enforcement personnel and other public officials etc, who maintain that there is a need to continue using them across the country.

One critic of the cameras, an engineer from Sweden, Mats Jarlstrom, who now resides in Oregon, decided to conduct his own investigation on the cameras and he was slapped with a fine from the state for having engaged in unlicensed practice of engineering because he isn’t a licensed professional in the eyes of the state of Oregon.

Jarlstrom launched his mission several years ago and he’s been looking to prove that the cameras are setting drivers up for tickets; they’re rigged against the laws of nature, he says.

He’s even taken his findings to the Oregon State Board of Examiners for Engineering and Land Surveying so that those who have the ability to, might possibly work to make the appropriate changes if there is such a problem with the cameras. That didn’t happen however, instead they decided to accuse him of having practiced engineering without the appropriate permission from the state.

He’s already been fined hundreds of dollars by the state and been under investigation, simply for trying to point out what he believes is a problem that they should be concerned with correcting.

It all started several years ago after Jarlstrom’s wife allegedly received her own ticket and he became interested with the math behind the traffic lights, and he says that because of a flaw with its timing that it’s rigged against drivers.

He fought back, and won.

Jarlstrom filed a federal lawsuit in defense, he argued that their crackdown equated to a violation of his 1st Amendment Constitutionally-protected right to free speech. After all, shouldn’t free speech apply to discussions about math? It took several years but recently the attorney general in Oregon allegedly admitted that they had violated his free speech rights with their actions. Jarlstrom has partnered with the Institute for Justice and he isn’t over yet because he says that he wants the law declared unconstitutional; he doesn’t want to see others fall victim just like he did for what should be considered protected speech.

Sources:
http://time.com/3643077/red-light-cams-rear-end-collisions-chicago/
https://globalnews.ca/news/2853066/turning-off-red-light-cameras-can-be-deadly-study/
http://abcnews.go.com/US/red-light-camera-backlash-cameras-causing-accidents/story?id=13925887
http://www.orlandosentinel.com/news/politics/os-red-light-cameras-crashes-20170106-story.html
https://www.azcentral.com/story/news/politics/legislature/2017/02/21/arizona-lawmaker-travis-grantham-wants-get-rid-photo-radar/98199096/
http://tucson.com/news/local/no-more-tickets-from-tucson-s-red-light-cameras-radar/article_c4b350cf-2e9a-59ef-b644-ce83fca30896.html
https://www.vice.com/en_ca/article/5gkgxn/the-shady-municipal-business-of-traffic-cams
http://www.phoenixnewtimes.com/news/arizona-debates-red-light-cameras-tools-that-save-lives-or-police-state-tactics-9114403
http://kxan.com/2017/09/11/abilene-mayor-we-did-red-light-cameras-the-right-way/
https://www.usnews.com/news/best-states/texas/articles/2017-03-29/texas-senate-votes-to-ban-red-light-cameras-statewide
http://koin.com/2016/08/10/are-red-light-cameras-rigged-against-laws-of-nature/
https://www.washingtonpost.com/news/morning-mix/wp/2017/12/08/criticizing-red-light-cameras-is-not-a-punishable-offense-oregon-concedes/?utm_term=.49814732d3b0
https://www.forbes.com/sites/instituteforjustice/2017/04/28/do-you-need-a-license-in-engineering-to-criticize-red-light-cameras-oregon-says-yes/

This article was published in Steemit and can be found here.

 

An Economics of Justice & Charity

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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The Church has always concerned itself with issues of justice in society, and popes have taught extensively on the topic since the late 1800s. Unfortunately, many Catholics in our day are not aware of this teaching, or only consider it in regard to things like helping the poor. Helping the poor is a very important aspect of it, but the scope of the Church’s teaching on matters of social justice go much further. Any aspect of social life which involves questions of ethics or morality fall within the scope of this teaching. Thomas Storck’snew book, An Economics of Justice & Charity, is a guide that shows how the Church’s teaching is very clear, has never changed, and definitely applies to areas of social life like economics.
In this new book published by Angelico Press, readers of Practical Distributism and The Distributist Review will encounter some ground already covered by Mr. Storck. However, he has expanded this coverage and included more material for consideration. Especially important for the Catholic reader, and others who wish to understand the Church’s teaching on social justice, are the sections covering claims, sometimes made by Catholics, that the Church’s teaching has somehow changed since the Second Vatican Council, particularly with the encyclical of St. John Paul II, Centesimus Annus. Quoting those who claim that the Church’s teaching has changed, or that the Church has now wholeheartedly endorsed capitalism, Mr. Storck handily refutes those claims.
Another topic of interest to our readers is that of usury. On this topic, Mr. Storck clearly shows that, while the Church’s position on certain financial considerations may seem to indicate a change of teaching, the Church still condemns usury today as she always has. Through his examination of these financial considerations, Mr. Storck shows that the Church always sides with justice and maintains her teaching clear and unchanged without presenting an impossible burden for those of us who live in a world with a financial system that stands opposed to her teaching. However, he also points out that there are different financial options available to us. If we sincerely believe our Faith and strive to live by the teachings Christ has passed down to us through His Church, we need to choose options which are most consistent with those teachings whenever possible.
I wholeheartedly recommend An Economics of Justice & Charity. Consider this book for your own library and for those with whom you would like to share this important aspect of the Church’s teaching. Changing society is a slow and gradual process that must begin with getting people to consider alternatives to the status quo. This book can be a valuable tool in that most important work. Consider heading over to the Angelico Press web site to order a copy.

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