Paternity Without Process

 by David R. Usher  

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David Salazar's wife gave birth to a child 14 months after the couple separated.  The mother contacted the Division of Child Support Enforcement and informed them Salazar was not the father. Naturally, the State of Missouri declared Salazar the father, ordered him to pay child support, and convicted him of criminal nonsupport.

Most folks associate the Limbaugh name with a ruthlessly-honest framework of conservative thinking. Unfortunately, Missouri Supreme Court Judge Stephen Limbaugh, who is cousin to Rush Limbaugh and well-known conservative writer David Limbaugh, apparently ate too many paint chips as a child.

While I have not studied more than a handful of Judge Limbaugh’s opinions, I have seen enough of them to conclude that he is unable to interpret cases while observing fundamental constructionist principles of law.

The case of David Salazar is the most recent example of Limbaugh’s one-eyed activist judicial liberalism.   On October 30, the Missouri Supreme Court handed down a historic reversal of a criminal child non-support conviction in State of Missouri vs. David Salazar.  The case involved a husband involved in a divorce, whose wife gave birth to a child that was not his, after 14 months of separation.  The state secured the customary default administrative paternity judgment – for which no notice of court hearing was given to Mr. Salazar, and no decision rendered by a court.  As is customary in the many cases of state-endorsed paternity fraud, it tried to use criminal procedures against Mr. Salazar to force his submission to highway robbery.  The Supreme Court reversed the decisions of both the trial court and appeals court in this case.

My greatest respect goes to Mr. Salazar for sticking to his guns.  Without a DNA test, proper notice, and full hearing, the state has no authority to declare anyone the father — and it clearly exceeds its authority incarcerating anyone who refuses to honor an illegitimate child support order.

The en-banc decision, written by Justice Richard B. Teitelman, strongly refutes the actions of the Missouri Division of Child Support Enforcement.  Judge Teitelman is to be greatly commended for interpreting both civil and criminal procedure properly.  

I have known Judge Teitelman for years.  In the early 1990’s, I had a major disagreement with him over whether Legal Services of Eastern Missouri (which is operated by the Missouri Bar) should provide services to indigent men who have been falsely accused of child or spousal abuse and are unable to defend themselves against the state.  At the time, Richard was President of that organization. L.S.E.M. actively helped women, but refused to help men.  Apparently our discussions were fruitful over time, and today Justice Teitelman sees men in a different light with respect to reasonable rights under the law than he did a decade ago.  I encourage everyone to view Teitelman’s opinion in the above case.

Judge Limbaugh wrote the sole dissenting opinion.  In Limbaugh’s mind, under civil procedure, any process constitutes “due process.”  The ends justify the means – expediency substituting for due process – so long as it inures to the convenience of the state.

Limbaugh’s dissenting opinion is a outright rejection of the very foundations of law and due process.  In fact, Limbaugh suggests that courts and state actors fulfill their responsibilities at law by merely simulating due process in a complete absence of objective standards – that renegade administrative orders can be created and enforced on their own merits absent any external standard for procedural review:

The author would hold the child was "legitimated by legal process" under section 568.040 by entry of the administrative order establishing paternity under section 454.490. He notes that neither the statute nor Sauer require entry of a formal judgment to establish that "legal process" has been used and would find the administrative order, which has all the force, effect and attributes of a court decree, is no less a legal process than a formal judgment. He further notes the default judgment entered against Salazar establishing paternity in essence was no different than the default judgment entered against the putative father in Sauer.

Mr. Limbaugh, have you ever heard of “best evidence?”  Should the state entitle the most egregious possible form of marital adultery by knowingly attacking the wrong man? Should the state not be required to prove a man is the father before taking away several hundred thousand dollars from him?

On what moral or legal principles do you find it permissible for the State to consider estoppel final without hearing – preventing voidance of an illegitimate paternity order or alternately vacating the illegitimate child support order – when in fact the Missouri Supreme Court consistently holds that child support orders are “always modifiable” when the state or petitioner wants to increase a support order, and where the state has at least a ten-year statutory window to establish paternity in a case?  Where such large sums of money are involved, does the state not have a duty to set right what it got wrong?

This Christmas, when the Limbaugh family convenes in Cape Girardeau for the holidays, I sincerely hope it puts the heat on Stephen to live up to the Limbaugh name.  Perhaps the family will buy him a copy of Judge Robert Dierkers book, The Tyranny of Tolerance, and put a bookmark on chapter one – aptly titled “The Cloud Cuckooland of Radical Feminism.”

Family Issues, Homosexuality

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