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Fergus Kenny v. D.H.S.
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:1999 ME 158
Docket:Pen-98-693
Argued:	September 8, 1999
Decided:	November 10, 1999


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.






FERGUS KENNY v. DEPARTMENT OF HUMAN SERVICES et al.


WATHEN, C.J.


	[¶1]  Plaintiff Fergus Kenny appeals from a summary judgment entered
in the Superior Court (Penobscot County, Mills, J.) in favor of defendant
Department of Human Services on plaintiff's complaint for determination of
paternity.  Kenny argues that the court erred as a matter of law in failing to
permit him to rescind his acknowledgement of paternity pursuant to 19-A
M.R.S.A. § 1616 (1998).  Kenny also asserts that the paternity statutes are
unconstitutional because they make an extra-judicial acknowledgment a
conclusive "adjudication" of paternity and thus deprive the court of its
exercise of judicial power in violation of Article III, section 2 of the Maine
Constitution.  Finding no error, we affirm.
	[¶2]  The relevant facts may be summarized as follows:  On August 5,
1997, the Department of Human Services served Fergus Kenny with notice
of a paternity proceeding.  Kenny initially denied paternity but submitted to
a blood test.  The test results revealed that "Fergus J. Kenny cannot be
excluded as the biological father of the child . . . . [and that] the probability of
paternity was 99.99% as compared to an untested, unrelated man of the
Caucasian population."  On November 1, 1997, Kenny signed an
acknowledgment of paternity notarized by his attorney. As a result, the
Department terminated its paternity proceeding and commenced a child
support proceeding. On January 5, 1998, Kenny, through his new attorney,
filed a "disavowal of acknowledgment of paternity." Thereafter, Kenny filed a
complaint for determination of paternity and the Department filed a motion
to dismiss.  The court considered affidavits and exhibits filed by the parties
and treated the motion to dismiss as a motion for summary judgment.  After
hearing, the court entered summary judgment in favor of the Department. 
Kenny appeals.
	[¶3] "We review the entry of a summary judgment for errors of law,
viewing the evidence in the light most favorable to the party against whom
the judgment was entered."  Rodrigue v. Rodrigue, 1997 ME 99, ¶ 8, 694
A.2d 924, 926 (citation omitted).  Summary judgment will be upheld if the
evidence produced demonstrates that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. See id. (citation omitted). "To survive a defendant's motion for summary
judgment, a plaintiff must produce evidence that, if produced at trial, would
be sufficient to resist a motion for a judgment as a matter of law." Id.  "'A fact
is material when it has the potential to affect the outcome of the suit.'"
Prescott v. State Tax Assessor, 1998 ME 250, ¶ 5, 721 A.2d 169, 172
(citation omitted).  An issue is genuine if sufficient evidence supporting the
claimed factual dispute exists to require a choice between the parties'
differing versions of the truth at trial. See id., 721 A.2d at 171-72 (citation
omitted). "Neither party may rely on conclusory allegations or
unsubstantiated denials, but must identify specific facts derived from the
pleadings, depositions, answers to interrogatories, admissions and affidavits
to demonstrate either the existence or absence of an issue of fact."  Vinick v.
Commissioner of Internal Revenue, 110 F.3d 168, 171 (1st Cir. 1997).
	[¶4]  Kenny argues that the court erred as a matter of law in not
applying 19-A M.R.S.A. § 1616{1} and instead applying 19 M.R.S.A. § 530.{2} 
The Department served Kenny with a notice of paternity proceeding on
August 5, 1997; section 1616 became effective on October 1, 1997; and
Kenny signed the acknowledgment of paternity on November 1, 1997.  The
paternity proceeding was commenced as an administrative proceeding in
accordance with the expedited process for the commencement of paternity
action provisions set forth in 19 M.R.S.A. §§ 517-530, repealed  by  P.L.
1995, ch. 694, § B-1 (effective October 1, 1997).{3}  When the expedited
process subchapter was recodified effective October 1, 1997, section 530
became section 1614.  Also effective October 1, 1997, was the addition of
section 1616. See P.L. 1997, ch. 537, § 21 (effective October 1, 1997). 
Section 1616 contains the following provisions that section 530 does not: a
60-day right to rescind the acknowledgment of paternity and a provision for
notice that must precede the signing of the acknowledgment.  Pursuant to
section 530, however, once Kenny signed the acknowledgment of paternity,
the Department was required to terminate the paternity proceeding. See 19
M.R.S.A. § 530, repealed by  P.L. 1995, ch. 694, § B-1.
	[¶5]  Section 1616 did not apply to the paternity action in question
because the paternity proceeding was pending at the time section 1616
became effective. The savings clause provides in relevant part as follows:
"Actions and proceedings pending at the time of the passage, amendment or
repeal of an Act or ordinance are not affected thereby."  1 M.R.S.A. § 302
(1989).  We have held that "[a]bsent the requisite clear and unequivocal
language to the contrary, the general rule that actions and proceedings
pending at the time of the passage, amendment or repeal of an act or
ordinance are not affected thereby, applies."  Riley v. Bath Iron Works Corp.,
639 A.2d 626, 628 (Me. 1994); see also DeMello v. Department of Envtl.
Protection, 611 A.2d 985, 986 (Me. 1992). The paternity proceeding was
commenced when the Department served Kenny with a notice of
proceeding to commence an action pursuant to 19 M.R.S.A. § 521, repealed
by  P.L. 1995, ch. 694, § B-1.{4}  Further, there is no legislative statement that
the Legislature intended to apply section 1616 to pending actions. 
Moreover, contrary to Kenny's contention, section 1616 is an integral part
of the expedited process for determining paternity and cannot be
characterized as standing alone.  Accordingly, section 1616 did not apply to
the pending paternity proceeding. 
	[¶6]  Because section 1616 did not apply, Kenny was not entitled to
the 60-day right to rescind and the specific notice provisions. Further, we
assume, without deciding, that, because section 1616 did not apply, the
acknowledgment of paternity pursuant to 19 M.R.S.A. § 530 was not
conclusive of paternity, as it would now be pursuant to section 1616. 
Therefore, the issue is whether Kenny demonstrated a genuine issue of
material fact to survive summary judgment. We find that the
acknowledgment of paternity, together with the presumption of paternity
established by the paternity test results, demonstrate that no genuine issue
of material fact exists as to Kenny's paternity and that the Department is
entitled to judgment as a matter of law. The statements alleged by Kenny in
his affidavit concerning the reasons for challenging paternity are conclusory
and unsubstantiated and thus do not demonstrate that a genuine issue of
material fact exists concerning paternity.  See Vinick v. Commissioner of
Internal Revenue, 110 F.3d 168, 171 (1st Cir. 1997).
	[¶7]  Further, contrary to Kenny's argument that 19 M.R.S.A. § 530
severely restricts the court in its exercise of the judicial power over the
adjudication of paternity in violation of Article III, section 2 of the Maine
Constitution,{5} we find the statute constitutional. A statute is presumed to be
constitutional and the person challenging the constitutionality has the
burden of establishing its infirmity. See Union Mutual Life Ins. Co. v.
Emerson, 345 A.2d 504, 507 (Me. 1975).  Kenny's argument does not meet
that burden and is unsupported by any authority.  
	[¶8]  The court committed no error in denying Kenny's motion to
rescind his acknowledgement of paternity, nor did it err in determining
that he was the father of the child.
	The entry is:
					Judgment affirmed.
Attorney for plaintiff: Sandra Hylander Collier, Esq., (orally) P O Box 1391 Ellsworth, ME 04605 Attorneys for defendant: Andrew Ketterer, Attorney General James McKenna, Asst. Attorney General (orally) Jennifer Duddy, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . . Section 1616 provides in pertinent part as follows: § 1616. Voluntary acknowledgment of paternity 1. Legal finding of paternity. A signed voluntary acknowledgment of paternity is a legal finding of paternity, subject to the right of a signatory to rescind the acknowledgment within the earlier of 60 days or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party. After the right to rescind ends, the acknowledgment may be challenged in court only on the basis of fraud, duress or material mistake of fact with the burden of proof on the challenger and under which the legal responsibilities of a signatory arising from the acknowledgment, including child support obligations, may not be suspended during the challenge except for good cause shown. 2. Notice. Before a mother and putative father may sign an acknowledgment of paternity, the mother and the putative father must be given oral and written notice of the alternatives to, the legal consequences of and the rights and responsibilities that arise from signing the acknowledgment. 19-A M.R.S.A. § 1616(1) & (2) (1998). {2} . . The statute in effect at the time the proceeding was commenced was 19 M.R.S.A. § 530. Section 530 provides as follows: If, prior to the filing in a court the alleged father executes and delivers to the department an acknowledgment of paternity of the child in accordance with the laws of the state in which the child was born, the proceeding must be terminated and the department may proceed against the father under subchapter V with respect to any remedy provided under that section. P.L. 1991, ch. 256 (codified at 19 M.R.S.A. § 530), repealed by P.L. 1995, ch. 694, § B-1 (effective October 1, 1997). Section 530 was recodified at 19-A M.R.S.A. § 1614 (1998). {3} . . P.L. 1995, ch. 694, § B-2 (effective October 1, 1997) recodified 19 M.R.S.A. §§ 517-530 at 19-A M.R.S.A. §§ 1601-1614 (1998). {4} . . Section 521 provides in pertinent part as follows: "The department may commence a paternity proceeding by serving a notice on an alleged father." P.L. 1991, ch. 256 (codified at 19 M.R.S.A. § 521), repealed by P.L. 1995, ch. 694, § B-1 (effective October 1, 1997). Section 521 was recodified at 19-A M.R.S.A. § 1605 (1998). {5} . . The relevant sections provide as follows: Section 1. The powers of this government shall be divided into three distinct departments, the legislative, executive and judicial. Section 2. No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted. Me. Const. art. III, §§ 1, 2.