dissenting.
I think that the State’s motion “for a finding that [Mark Bridge] is not the father of [Johnny Bridge]” must be analyzed as a motion for summary judgment. Merely casting the subject motion as one seeking a particular finding should not enable the State to circumvent established procedures applicable to summary judgment motions.
One should not lose sight of the fact that if Mark had not opposed in any fashion the State’s disguised summary judgment motion, the State would still have no right to an automatic grant of summary judgment, but rather would have the obligation of establishing its entitlement to a judgment as a matter of law.1
The following considerations lead me to the conclusion that the superior court erred in granting summary judgment to the State and in determining that Mark Bridge, the presumptive father of Johnny Bridge, is not the biological father of the child.
In Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993), we said:
The longstanding common law rule is that a child born to a married woman is presumed to be the offspring of her husband. See, e.g., Lanford v. Lanford, 151 Colo. 211, 377 P.2d 115, 116 (1962) (en banc) (presumption dates back to Roman Law); Alber v. Alber, 93 Idaho 755, 472 P.2d 321, 324 (1970). This presumption of a husband’s paternity can be rebutted only by “clear and convincing evidence.” Lanford, 377 P.2d at 117; Alber, 472 P.2d at 327; Uniform Parentage Act § 4(b), 9B U.L.A. 299 (1987). We adopt both the presumption and the concomitant standard of proof for rebutting it.[ 2]
Since Johnny was born during Mark Bridge’s marriage to Melody Bridge, Mark is presumed to be the father of Johnny Bridge.
Of further significance is our decision in Mattox v. State, 875 P.2d 763, 764-65 (Alaska 1994). There the superior court granted summary judgment in favor of the State, establishing that Bruce Mattox is the biological father of three children. In Mattox we said:
Although evidence conflicted significantly as to whether Bruce or his brother Richard was the father of the children, the court granted summary judgment based on paternity evaluation reports which tested the DNA of the mother, the children, and Bruce and Richard. The reports of these *883tests concluded that, as to Bruce, the probability of paternity was 99.99% as compared to an untested random male of the North American Caucasian population, while Richard was excluded as the biological father of the children.
We reverse. The proffered DNA reports were not accompanied by authenticating affidavits. No sworn testimony was offered that the tests reflected by the reports were scientifically accepted, or that procedures necessary to make the tests valid were followed. Authentication is a requirement generally applicable to documentary evidence, Alaska R. Evid. 901, with exceptions not here relevant. Alaska R. Evid. 902. General scientific acceptance is a statutory requirement for the admissibility of technical tests in paternity cases. AS 25.20.050(d), (e), as well as a common law requirement for scientific evidence where no statute governs. Contreras v. State, 718 P.2d 129, 135-36 (Alaska 1986); Pulakis v. State, 476 P.2d 474 (Alaska 1970) (adopting test of Frye v. United States, 293 F. 1013 (D.C.Cir.1923)). In DNA tests, as in other scientific tests, assuming general scientific acceptance, set procedures must be followed to ensure the validity of the tests. Compliance with these procedures must be shown. See, e.g., United States v. Two Bulls, 918 F.2d 56 (8th Cir.1990) (reversible error for the trial court to determine the admissibility of DNA evidence without determining whether the testing procedures were properly performed); State v. Schwartz, 447 N.W.2d 422 (Minn.1989) (DNA evidence is generally admissible under the Frye test, but results here excluded because lab did not comply with established protocol); People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (1989) (although DNA evidence met Frye, evidence excluded because the lab failed to follow accepted scientific techniques); Barbara A. v. Gerard J., 146 Misc.2d 1001, 553 N.Y.S.2d 638 (Fam.Ct.1990) (DNA test results excluded because the particular test was tainted). See also Keel v. State, 609 P.2d 555 (Alaska 1980) (breath test improperly admitted because state did not establish that calibration was performed by an “instructor” as required by protocol adopted by regulation).
(Footnotes omitted.) We concluded in Mat-tox that the State did not meet its burden of establishing that there were no genuine issues of material fact.
In the case at bar, the State’s motion for summary judgment (motion for a finding that Mark Bridge is not the father of Johnny Bridge) was supported by an affidavit of Phillip Kaufman, the state social worker in the case, to which was attached the letter from the Director of the Memorial Blood Center of Minneapolis and blood test results excluding Mark as a biological parent of Johnny.3 This showing by the State falls far short of demonstrating that accepted protocols were followed. This omission standing alone is, in my view, dispositive.
In short, review of the record convinces me that the State has failed to show that there is no genuine issue as to any material fact relating to Mark’s parentage of Johnny and that the State is entitled to a judgment as a matter of law that Mark is not the father of Johnny.4
. Civil Rule 56(c) provides in relevant part:
Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.
. In Smith, we also noted that our Legislature has created a similar presumption regarding paternity blood tests. Alaska Statute 25.20.050(d) provides in part:
The results of a blood test ... shall be admitted and weighed in conjunction with other evidence in determining the statistical probability that the putative parent is a legal parent of the child in question. However, a scientifically accepted procedure that establishes a probability of parentage at 95 percent or higher creates a presumption of parentage that may be rebutted only by clear and convincing evidence.
. Is the letterhead, in itself, definitely clear and convincing evidence that a doctor is properly qualified and that the test results are accurate?
. It bears reiteration that the law presumes that Mark is the father of Johnny. It is the State’s obligation to overcome this presumption and demonstrate that it is entitled to judgment as a matter of law. Here the State's showing did not meet the explicit standards regarding authentication and proper protocols we articulated in Mat-tox. (Compare Civil Rule 56(e): "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”)