(dissenting).
[¶ 12.] Mother, through the Department of Social Services (DSS), is seeking to establish paternity and obtain child support from a putative father. Although the statute of limitations bars the action, the Court permits “DSS ... to proceed with the blood test of the putative father so that if it does not succeed in its ease against the presumed father, it can proceed against the putative father....” Supra ¶ 7. In other words, even though the statute of limitations bars this action against the putative father, see SDCL 25-8-59 and SDCL 25-8-57,1 the Court has granted DSS’s request to remand this matter and “proceed against both the presumed father and the putative father.” Supra ¶ 7. Because the Court’s disposition is expressly prohibited by In re Support Obligation of Do Rego, 2001 SD 1, 620 N.W.2d 770, I respectfully dissent.
[¶ 13.] In Do Rego, this Court unequivocally held that even though paternity testing effectively rebuts a presumption of legitimacy with respect to a presumed father, an action against a putative father may not proceed if the statute of limitations in SDCL 25-8-59 has expired. Id. ¶ 8. Just as in Do Rego, the statute of limitations expired in this case before DSS commenced this action on Mother’s behalf.2 Therefore, because Mother “did not rebut the presumption of legitimacy within the allowed period of time, she is precluded from challenging it now.” Id. ¶ 9.
[¶ 14.] Furthermore, under our unequivocal precedent, blood testing may not be considered in a statutorily barred action. Do Rego clearly held that “evidence [i.e. blood testing] effectively rebutting] the presumption of legitimacy will not be reached [if] the statute of limitation to contest the presumption has expired.” Id. ¶8. Nevertheless, in the current case the Court also permits further blood testing.
[¶ 15.] The Court accedes to this rather remarkable request by DSS to proceed against a putative father on a barred action so that “vital fact questions” concerning the constitutional issue can be addressed by the circuit court.3 Supra ¶ 7. This reasoning is flawed because the questions now before us are only questions of law; i.e. whether a statute of limitations bars this action, and if so, whether that statute of limitations is constitutional. Thus, there is no need to develop further “vital fact questions.” More fundamental*709ly, we simply have no judicial authority to order that a statutorily barred action proceed because we hope that further proceedings may develop facts that could shed light on a constitutional issue.
[¶ 16.] In the final analysis, unless this Court holds that the statute of limitations is inapplicable, or unless this Court overrules Do Rego, we have no authority to decline to follow the statute of limitations in SDCL 25-8-59. Because the Court has neither invalidated SDCL 25-8-59 nor overruled Do Rego, I dissent.
[¶ 17.] GILBERTSON, Chief Justice, joins this dissent.
. See supra ¶ 5.
. The presumption of legitimacy arose on May 2, 1999, the date that K.S. was born. Because there was no allegation of fraud, duress, or material mistake of fact, the presumption of legitimacy could only be contested within sixty days of May 2, 1999. See SDCL 25-8-59. Although Mother and the presumed father (Stein) were aware of the pregnancy and putative father (Byer) at the time of the divorce, and although Mother had agreed to perform genetic testing after the child was born, Mother took no action to determine paternity until March 9, 2002, almost three years after the birth of the child and after the statute of limitations had expired.
.The claimed "vital questions" of fact are whether DSS can obtain a judgment against the presumed father, and whether the putative father can be proven to be the biological father through blood testing. However, the first question is a matter of law and the second is irrelevant to the constitutional question.