State ex rel. Adult & Family Services Division v. Tuttle

PER CURIAM

We accepted review of this case to consider whether a ten-year statute of limitation on filiation proceedings violates Article I, section 20 of the Oregon constitution.¹ For the reasons set out below, we conclude that the statute is unconstitutional. We affirm the decision of the Court of Appeals.

The child seeking parental support in this case turned ten years old on February 1,1980. At that time former ORS 109.135 (3)² required that filiation proceedings be commenced within 10 years of the child’s birth. No such action had been brought on the child’s behalf.

In July 1985, the State filed this petition to establish paternity. Defendant moved to dismiss on grounds that former ORS 109.135(3) barred the action. The trial court granted the motion. The Court of Appeals, in a per curiam opinion, reversed and remanded the case, citing State ex rel Adult & Fam. Ser. v. Bradley, 295 Or 216, 666 P2d 249 (1983) and State ex rel AFSD v. Keusink, 69 Or App 324, 684 P2d 1239 (1984). State ex rel AFSD v. Tuttle, 85 Or App 221, 735 P2d 1304 (1987). Defendant petitioned for review. We affirm the decision of the Court of Appeals.

In State ex rel Adult & Fam. Ser. v. Bradley, supra, this court struck down a six-year statute of limitations on filiation proceedings, concluding that it violated an illegitimate child’s rights under Article I, section 20. We held “that restraints on the ability of illegitimate children to ascertain paternity must be imposed only for reasons relating specifically to the proof problems encountered in paternity determinations.” 295 Or at 224. After considering the various Oregon statutes that directly address these problems,³ id., we stated:

“Although proof of paternity in some cases may become more difficult with the passage of time, that possibility does not condone the total preclusion of illegitimate children beyond a certain age from attempting to ascertain their father’s identity.”

Id.

We concluded:

“We find that the statute of limitation is a heavy-handed substitute for particularized requirements of proof. It denies to illegitimate children the privilege of seeking support from their fathers by placing an undue burden on ascertainment of paternity which neither advances the accuracy of the outcome of the case nor diminishes the likelihood of fraudulent claims. Such an impediment to the exercise of the right to paternal support, a right which belongs equally to all children, cannot be sustained under article I, section 20 of the Oregon Constitution.”

Id. at 225-26.

A ten-year statute of limitation is little better tailored to the task of curing the evidentiary problems inherent in filiation proceedings than was the six-year limitation period struck down in Bradley, nor is it a significantly lesser violation of the child’s Article I, section 20 rights. Petitioner has not persuaded us that we should depart from our reasoning in Bradley. Following Bradley, we conclude that former ORS 109.135(3) is unconstitutional.

The decision of the trial court is reversed; the decision of the Court of Appeals is affirmed. The case is remanded to the trial court for further proceedings.

1 Article I, section 20 of the Oregon Constitution reads:

“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which upon the same terms, shall not equally belong to all citizens.”

2 Former ORS 109.135(3) provided:

“A proceeding under ORS 7.215, 23.775, 23.795, 46.800, 109.070, 109.125 to 109.165 and 109.252 shall be commenced within 10 years after the birth of the child.”

The Oregon Legislature in 1983 repealed former ORS 109.135(3). Oregon Laws 1983, ch 762 § 3. The state did not contest defendant’s assertion that this action was brought pursuant to the ten-year limitation period in effect until 1983. Given this concession, we need not consider which limitation period, if any, would properly apply.

3 Specifically, this court noted that:

“ORS 109.252 requires the use of blood tests if requested by a party, and under ORS 109.258 a defendant must prevail when all experts conclude that the test results eliminate the possibility of his paternity. ORS 109.145 requires corroborating evidence of paternity in addition to the mother’s testimony.”

295 Or at 224.