In re Rodney Gagne CV-95-460-B 10/04/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

In re Rodney Gagne Civil No. 95-460-B

O R D E R

Rodney Gagne, appearing pro se, appeals from the magistrate

judge's order, filed on September 11, 1995, reguiring him to

allow a blood sample to be drawn for testing. For the reasons

that follow, I affirm the magistrate judge's order.

BACKGROUND

The present dispute arose when the United States Attorney in

this district applied for an order pursuant to

in response to a letter rogatory from Amtsgericht (a local court)

of Amberg, Bavaria, Germany, under the Convention on the Taking

of Evidence Abroad in Civil or Commercial Matters, 23 U.S.T.

2555, T.I.A.S. 7444. Specifically, the German court reguested

judicial assistance in obtaining a blood sample from Rodney Gagne

and particular tests to be used as evidence in a paternity

proceeding in that court. On February 28, 1995, the magistrate

judge in this district was appointed Commissioner to handle the

German court's reguest. When Gagne refused to comply voluntarily with the request for a blood sample and testing, the magistrate

judge ordered a show cause hearing for April 6, 1995.

Before the hearing, Gagne filed a motion to transfer and the

first of three motions to dismiss the United States Attorney's

efforts to satisfy the German court's request. He asserted

privileges against producing the evidence based on the Fifth,

Seventh, Ninth, and Fourteenth Amendments of the United States

Constitution, several articles of the New Hampshire Constitution,

forum non conveniens, res judicata, the New Hampshire paternity

statute N.H. Rev. St. Ann. § 522, and argued that the federal

court lacked jurisdiction. At the hearing, Gagne challenged the

merits of the paternity claim pending in the German court,

attempting to introduce evidence to negate the claim and arguing

that due process required that he be provided that opportunity.

After the hearing, Gagne again moved to dismiss the action

now arguing that the United States Attorney had not produced

evidence in support of the paternity claim at the show cause

hearing, that he was protected from producing the requested blood

sample by the New Hampshire Constitution, Part One, Articles 15

and 20, the New Hampshire paternity statute, and on equal

protection grounds because German citizens were given an

opportunity to enforce paternity laws in federal courts when

2 United States citizens could not. Shortly thereafter, Gagne

filed a third motion to dismiss again asserting jurisdictional

infirmities, and egual protection claims, and raising a fourth

amendment issue for the first time.

The magistrate judge issued an order on September 11, 1995,

denying Gagne's first motion to dismiss and ordering him to

provide a blood sample as reguested by the German court and

denied his motion to reconsider. Gagne then filed a notice of

intent to appeal with a second motion for reconsideration. I

review the magistrate judge's order as follows.

____________________________ DISCUSSIONN

The magistrate judge denied Gagne's first motion to dismiss

and ordered him to comply with the German court's reguest for

blood testing. Although it is not entirely clear whether the

magistrate's order should be construed as dispositive or

nondispositive under Federal Rule of Civil Procedure 72, because

my review focuses on legal guestions, rather than factual

determinations, I consider the issues de novo under either

standard.

(b)(1); see also In re Application of

Asta Medica, S.A.,

, 444 n.l (D.Me.), rev'd on

other grounds,

(1st Cir. 1992) . After a reviewing the

3 magistrate judge's order, I affirm. I adopt the magistrate

judge's reasoning and add the following as additional support.

A. Motion to Transfer

In his first motion to dismiss, Gagne asks that "the action"

be transferred to another forum. I reject this argument because

the guestion of compliance with the letter rogatory from the

German Court is properly in this court.

(a).

B. Jurisdiction

Gagne argues that the German court's reguest should be

denied on jurisdictional grounds because of the domestic

relations exception1 to diversity jurisdiction and because the

German court lacks personal jurisdiction over him precluding

enforcement of a foreign judgment pursuant to the New Hampshire

Uniform Enforcement of Foreign Judgments Act, N.H. Rev. Stat.

Ann. ch. 524-A. First, the issue before this court is compliance

with a letter rogatory pursuant to the Convention on the Taking

of Evidence Abroad. Second, jurisdiction is based upon

(a), not diversity of citizenship,

(a). The New Hampshire Uniform Enforcement of Foreign

See Ankenbrandt v. Richards, 112 S. C t . 2206 (1992)

4 Judgments Act is inapplicable to this matter. Gagne's motions

for reconsideration on jurisdictional grounds are denied.

C. Fourth and Fifth Amendment Privileges

In Schmerber v. California,

(1966), the Supreme

Court addressed the Fourth and Fifth Amendment implications of a

compelled withdrawal of a blood sample for testing. The Court

held that blood drawing and testing does not violate the Fifth

Amendment because the accused was compelled to provide physical

evidence, rather than self-incriminating testimony.

at 764-

65. Therefore, while the Fifth Amendment privilege against

compulsory self-incrimination applies in both criminal and civil

actions, Kastigar v. United States,

(1972),

Gagne cannot invoke the privilege to thwart the German court's

reguest that he be compelled to provide a blood sample.2

The Supreme Court also held that taking and testing a blood

sample by compulsion implicates the Fourth Amendment privilege

2 Gagne also cites four provisions of the New Hampshire Constitution in support of his claimed privilege not to be compelled to testify against himself. Assuming without deciding that the Convention on Taking of Evidence Abroad, Article Eleven, would allow Gagne to assert state as well as federal privileges, he has not shown that the state constitutional provisions he cites would afford him any greater protection than the federal constitution. See, e.g., Arizona v. Evans, 115 S. C t . 1185, 1190 (1995) .

5 against unreasonable searches and seizures. Schmerber,

67-69. The Fourth Amendment privilege applies in civil as

well as criminal actions. United States v. James Daniel Good

Real Property, 114 S. C t . 492, 500 (1993). The privilege

protects against only unreasonable searches and seizures,

however, meaning "intrusions which are not justified in the

circumstances, or which are made in an improper manner."

Schmerber,

; accord Verona Sch. Dist. 47J v.

Acton, 115 S. C t . 2386, 2390 (1995). To determine whether a

particular action passes Fourth Amendment constraints, the court

must balance the "intrusion on the individual's Fourth Amendment

interests against its promotion of legitimate governmental

interests." Skinner v. Railway Labor Executives' Ass'n,

(1989) (guotation omitted). Although probable cause to

believe that the person to be searched has relevant evidence is

usually reguired, a search based on less than probable cause may

be reasonable if the balance of interests precludes such a

showing.

.

The intrusion caused by taking a blood sample for testing,

when conducted in an appropriate setting according to accepted

medical practices, is minimal.

. Governmental

interests in complying with the obligations of a United States

6 treaty, the Hague Convention, see, e.g. In re Letter Rogatory

from the Local Court,

(N.D. 111. 1994), and

in determining a child's paternity and right to support are

legitimate and weighty concerns, see, e.g.. Little v. Streater,

(1981); State v. Meacham,

(Wash.

1980). In addition, the complaint from the German Court provides

a sufficient justification for the blood test based on evidence

of the likelihood of Gagne's paternity of the plaintiff.3 See,

e.g.. In Interest of J.M.,

(La. 1991) (citing

jurisdictions that reguire a preliminary showing of at least a

reasonable possibility of paternity). Therefore, court ordered

blood sampling and testing in this case do not violate the Fourth

Amendment.

D. Conscientious Obnection

A claim of privilege based on conscience is grounded in the

Free Exercise clause of the First Amendment that protects those

who raise objections "based on a sincerely held religious

belief." Frazee v. Illinois Pep't of Employment Sec.,

The complaint states that the child's birth certificate establishes her date of birth and the child's mother's testimony establishes that she had sexual relations with the defendant within the relevant time period for the child's conception.

7 829, 834 (1989); see also 42 U.S.C.A. § 2000bb (West 1994). At

the show cause hearing, Gagne stated that unspecified scripture

prohibited blood transfusion, but he has not sufficiently

identified his religious belief that would justify his refusal to

allow blood drawing and testing.4 Although state courts have

found a compelling state interest in determining paternity

sufficient to overcome challenges to blood tests based on the

First Amendment, see, e.g., Meacham,

, I need not

go so far in this case, nor must I consider whether blood testing

is the least restrictive means of determining paternity. 42

U.S.C.A. § 2000bb-l (b) (2) . Gagne has not sufficiently

articulated his religious belief to show that it would be

substantially burdened by compelled blood testing to invoke the

First Amendment privilege.

Finding no applicable privilege that would prevent a court

ordered blood sample and testing as reguested by the German

4 The magistrate judge interpreted Gagne's argument to be that he opposed both blood transfusion and testing on moral and religious grounds. After reviewing the tape recording of the show cause hearing, however, I find that Gagne said, "I do to the best that I can, and constantly seeking to be better, through reading scripture and that's where, if you were to know scripture, that it really does prohibit at least blood transfusions, but that's not the issue here." Gagne also described a family tradition of not seeing doctors.

8 court, I issue the following orders.

(1) Rodney Gagne is ORDERED to appear at Lakes Region

General Hospital Laboratory, 82 Highland Avenue, Laconia, New

Hampshire, on October 19, 1995, at 10:00 a.m. to provide a sample

of blood for testing purposes.

(2) The United States Attorney is ORDERED to cause Gagne's

blood sample to be analyzed by a serologic expert using the

hematologic criteria listed hereunder:

ABO (blood group) system, rhesus (CcDeCw), Kell/Cellano (Kk), PI, Duffy (Fy), Kidd (Jk), Lutheran (Lu) and Colton b (Cc-b), heptaglobins (hp), Gc (group specific component), gamma globulin (Gm), Km (Inv-1), acid phosphotase (acP) , phosphoglucomitase (PGM1), adenylate cyclase, adenosin deaminase (ADA), glutamate pyruvic transaminase (GPT) , 6-phosphoglucomate dehydrogenase (6-PGD), esterase-D (Es-D), glycoxalase, complement components C3, Properding factor Bf, transferines (Tf), plasminogens (Pig), alpha- 1-antiripsin (Pi); also a determination of the white blood cells = HLA (human leucocyte antigen) complex with the loci A, B and C.

(3) The United States Attorney is ORDERED to have the blood

testing results and analysis transmitted to the German court that

sent the letter rogatory, Amtsgericht of Amberg, Bavaria,

Germany. CONCLUSION

For the foregoing reasons, defendant's appeal and motions

for reconsideration (document nos. 16, 17, and 18) are denied and

the magistrate judge's order is affirmed.

SO ORDERED.

Paul Barbadoro United States District Judge October 4, 1995

cc: T. David Plourde, Esg. Rodney Gagne, pro se

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