Helms v. Jones, 79-2596

Citation621 F.2d 211
Decision Date11 July 1980
Docket NumberNo. 79-2596,79-2596
PartiesBobby H. HELMS, Petitioner-Appellant, v. Elie JONES, Warden, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

James C. Bonner, Jr., Athens, Ga., for petitioner-appellant.

Nicholas G. Dumich, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before INGRAHAM, RONEY and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

The appellant, unable to meet his child support obligations, left the State of Georgia in search of vocational training opportunities. 1 He was subsequently convicted of child abandonment under Ga.Code Ann. § 74-9902 (1979 Supp.) and sentenced to three years' imprisonment. After exhausting state remedies he filed a petition for habeas corpus under 28 U.S.C. § 2254, 2 which was denied. On appeal he attacks the constitutionality of the statute. We think the petition should have been granted and reverse.

In essence, the statute 3 makes the crime of child abandonment a misdemeanor if the offense occurs in Georgia, while making the same crime a felony if the abandoning parent leaves the State of Georgia or abandons the child after leaving the State. The statute thus creates two classes of crimes, the first a misdemeanor for child abandonment within the State, the second a felony for leaving the State after abandonment or abandonment after leaving the State. Those outside Georgia, merely by their presence outside the State, are exposed to risk of a felony conviction while Georgia residents are exposed only to risk of a misdemeanor conviction for the same actions. We find the fundamental right to travel 4 is infringed by this classification system.

Employing "traditional" equal protection analysis, we are required to scrutinize strictly statutes which impermissibly interfere with the exercise of fundamental rights. Strict scrutiny requires a state to have a compelling interest which outweighs the infringement. 5

Georgia argues that the compelling state interests here are (1) the greater ease in extraditing persons accused of felonies than those accused of misdemeanors and (2) the protection of the State's fiscal integrity by the resulting enforcement of required parental child support. These arguments are unpersuasive since Georgia has in place, through its adoption of the Uniform Reciprocal Enforcement of Support Act (URESA), Ga.Code Ann. § 99-9A, et seq., 6 an alternative means of enforcing child support obligations. Fiscal integrity of the State, support of minor children, and extradition of the nonpaying parent are all protected by this Act. 7

We therefore find no sufficiently compelling state interest here which permits distinguishing between nonsupporting parents within or without the State of Georgia. There is no question that the statute violates equal protection. Further, even where a governmental purpose is legitimate, as here, the "purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." 8 Again, URESA provides a less drastic means of achieving the ends sought by this overly broad statute.

The failure of the statute to require criminal intent as an element necessary for conviction is further indication of its overbreadth. Under the provision a person leaving the State fully intending to support his or her children, but unable to do so, commits a felony. A series of noncriminal acts can thus become a crime under the statute, subjecting the nonresident to extradition and felony conviction. 9 The advisability of a specific intent in statutes prohibiting the fundamental right to travel is illustrated by comparison to the federal "flight to avoid prosecution or giving testimony" statute, 18 U.S.C. § 1073. In examining the requisite elements for a conviction of that offense, where the statute itself requires intent, we have observed that "the gravamen of the offense charged . . . is that the defendant fled a state with intent to avoid prosecution therein, and mere absence from the state of prosecution, though it renders one a fugitive from justice for interstate rendition (citation omitted) is not sufficient proof of a federal crime." 10 (Emphasis supplied)

Accordingly, we REVERSE and REMAND for the issuance of the writ. 11

2 The appellant's discharge from custody during the pendency of this appeal does not moot his claim. Carafas v. LaValle, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

3 Ga.Code Ann. § 74-9902 (1979 Supp.) provides:

If any father or mother shall wilfully and voluntarily abandon his or her child . . . leaving it in a dependent condition, he or she shall be guilty of a misdemeanor. Provided, however, if any father or mother shall wilfully and voluntarily abandon his or her child . . . leaving it in a dependent condition and shall leave this State, or if any father or mother shall wilfully and voluntarily abandon his or her child . . . leaving it in a dependent condition, after leaving this State, he or she . . . shall be guilty of a felony . . .

6 See specifically § 99-906a providing for interstate extradition.

7 The State's compelling interest argument further loses force by the failure of the State actively to enforce this statute. At oral argument appellee's counsel stated that he knew of no other prosecutions, while appellant's counsel knew of only three. Thus, the State has made only broadly conclusory statements about the necessity for this statute as part of a concerted attempt to solve a major state problem.

9 While we recognize that certain regulatory offenses do not require...

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6 cases
  • Adair v. Koppers Co., Inc.
    • United States
    • U.S. District Court — Northern District of Ohio
    • May 28, 1982
    ...630 F.2d 1328 (9th Cir. 1980); Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672, 676 (8th Cir. 1980); Helms v. Jones, 621 F.2d 211 (5th Cir. 1980); Gabree v. King, 614 F.2d 1, 2 (1st Cir. 1980). Further, a "suspect class" is one saddled with such disabilities, or subjected to su......
  • In re Rollins
    • United States
    • U.S. Bankruptcy Court — Northern District of Georgia
    • August 20, 1996
    ...See O.C.G.A. § 19-10-1(c). 29 Another aspect of O.C.G.A. § 19-10-1 and the problematic nature of intent is illustrated in Helms v. Jones, 621 F.2d 211 (5th Cir.1980), rev'd sub nom. Jones v. Helms, 452 U.S. 412, 416-17, 422-23, 101 S.Ct. 2434, 2438-39, 2442, 69 L.Ed.2d 118 30 Further, among......
  • Jones v. Helms, 80-850
    • United States
    • U.S. Supreme Court
    • June 15, 1981
    ...of the legislation, and it raises no question with respect to the uniform and impartial character of the State's law. Pp. 2442-2443. 5 Cir., 621 F.2d 211, Carol Atha Cosgrove, Atlanta, Ga., for appellant. James C. Bonner, Jr., Decatur, Ga., for appellee. Justice STEVENS delivered the opinio......
  • Winans v. W.A.S., Inc.
    • United States
    • Washington Supreme Court
    • May 11, 1989
  • Request a trial to view additional results

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