US v. Hampshire

• Decision Date: 14 June 1995
• Docket Number: No. 95-10026-01.,95-10026-01.
• Citation: 892 F. Supp. 1327
• Parties: UNITED STATES of America, Plaintiff, v. Ricky L. HAMPSHIRE, Defendant.
• Court: U.S. District Court — District of Kansas

892 F. Supp. 1327

UNITED STATES of America, Plaintiff, v. Ricky L. HAMPSHIRE, Defendant.

No. 95-10026-01.

United States District Court, D. Kansas.

June 14, 1995.

Randall K. Rathbun, U.S. Atty., and Brian R. Johnson, Asst. U.S. Atty., Wichita, KS, for plaintiff.

David J. Phillips, Federal Public Defender, and Timothy J. Henry, Asst. Federal Public Defender, Wichita, KS, for defense.

MEMORANDUM AND ORDER

PATRICK F. KELLY, Senior District Judge.

On December 21, 1994, defendant Ricky Hampshire was charged with willful failure to pay a past due child support obligation in violation of 18 U.S.C. § 228. The support obligation arose from a divorce proceeding commenced by Hampshire's ex-wife in Kansas on October 4, 1985. The District Court of Riley County granted an order for temporary custody and support on October 30, 1985, pursuant to K.S.A. 60-1607(b), requiring Hampshire to pay support at a rate of $450.00 per month. Hampshire was personally served with process at the Riley County Jail in Manhattan, Kansas. On January 28, 1986, the court filed a journal entry finding that Hampshire had been properly served and was in default. The court's final order required Hampshire to pay support at a rate of $350.00 per month.

In the present criminal action, Hampshire has been charged with violating the Child Support Recovery Act of 1992 (CSRA), 18 U.S.C. § 228. Subsection (a) of CSRA provides that it is a punishable offense to "willfully fail to pay a past due support obligation with respect to a child who resides in another State."

Hampshire has moved to dismiss the government's information on several grounds. On June 8, 1995, the court held a hearing in which the United States and the defendant presented oral arguments relating to these motions. Additionally, defendant presented the testimony of Kristy Swenson, an attorney with extensive experience in matters of domestic relations. After examination of the witness by both the defendant and the government, the court has no difficulty in finding Ms. Swenson to be an extremely competent, knowledgeable, and skilled attorney in family law matters. This matter, however, turns upon wholly independent considerations, and the court finds that recourse to the testimony of the witness is unnecessary.

Constitutionality of 18 U.S.C. § 228

Hampshire's first motion seeks a determination either that 18 U.S.C. § 228 is unconstitutional or that this court should abstain from exercising jurisdiction in the present action. He first contends that CSRA is invalid because Congress did not explicitly set forth the constitutionally enumerated power supporting the statute, citing United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). He further argues that the CSRA violates the Tenth Amendment by interfering with the state's traditional police powers, and that the CSRA cannot be predicated upon Congress' commerce power.

This appears to be the first case directly challenging the validity of the CSRA. The court finds that Hampshire's constitutional arguments must be rejected. Unlike Bass, and unlike the Supreme Court's recent decision in United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Congress has explicitly required that the defendant's actions have an interstate nexus. As noted earlier, the CSRA applies only to persons who willfully violate support obligations as to children residing "in another State." The law has no application to domestic relations matters occurring entirely within a given state.

In Bass, the Supreme Court upheld the reversal of the defendant's conviction for possession of a firearm in violation of the former 18 U.S.C.App. § 1202(a). The law did not expressly require any connection between the possession of the firearm and interstate commerce. Holding that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance," 404 U.S. at 349, 92 S.Ct. at 523, the Court upheld the reversal of the defendant's conviction because the statute contained no requirement of "proof of some interstate commerce nexus in each case." 404 U.S. at 350, 92 S.Ct. at 524. The Court, however, noted that constitutional requirements would be satisfied by proof that "the firearm received has previously traveled in interstate commerce." Id.

Similarly, in the recent Lopez decision, the Court, in striking down the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(a)(1)(A), stressed that the statute had "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." ___ U.S. at ___, 115 S.Ct. at 1631.

The statute in the present case only affects willful violations of interstate child support obligations. The interstate nexus is explicitly identified in the statute. Further, it would appear that the failure to pay child support has an effect on interstate commerce sufficient to comply with constitutional requirements. See Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). In enacting the CSRA, the House of Representatives noted that 3.2 million families lived below the poverty level in 1989. The avoidance of child support obligations exacerbates the problem of child poverty, requiring the government to expend its own resources to help alleviate the problem. Of the $16.3 billion due in child support payments in 1989, only $11.2 billion in payments were actually made. H.R.Rep. No. 771, 102d Cong.2d Sess. at 5 (1992).

Thus, even with the recent decision in Lopez, the CSRA remains constitutional. In Lopez, the Court held unconstitutional a federal law banning possession of a gun within 1,000 feet of a school. The law contained no requirement that the gun had traveled in interstate commerce. The CSRA would be subject to a similar constitutional infirmity only if it was also directed at a purely local activity—if it attempted, for example, to criminalize avoidance of child support where the parties affected all resided in a single state. But because the requirement of an interstate relationship is one of the explicit elements of the crime created by 18 U.S.C. § 228, the law is constitutional.

Hampshire correctly observes that the majority decision in Lopez criticizes as over-broad the position taken in the dissenting opinion of Justice Breyer, creating the potential for congressional regulation of matters traditionally reserved for the states, such as "child rearing." In this context, however, the Court is simply expressing the concern that an unlimited construction of the Commerce Clause would enable Congress to "regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example." ___ U.S. at ___, 115 S.Ct. at 1632 (emphasis added). It was this concern that Congress might regulate any aspect of matters traditionally reserved to the states which gave force to the majority's argument. The Court's opinion cannot be read to suggest that all federal legislation touching upon domestic relations is necessarily invalid. Where, as here, Congress has determined in a nonarbitrary manner that the willful actions of private individuals have a substantial effect on interstate commerce, it may constitutionally proscribe such actions by legislation which includes an interstate nexus as an explicit element of the offense.

Hampshire's argument that the CSRA violates the Tenth Amendment's reservation and infringes the states's police powers is in error. The CSRA creates criminal sanctions for individuals who fail to comply with child support obligations; it makes no attempt to regulate the conduct of the states, as states. It is regulation of purely private conduct, and does not represent a violation of the Tenth Amendment. See New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992); Hodel v. Virginia Surface Min. & Recl. Ass'n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981).

Central to Hampshire's argument is his reliance on the "domestic relations exception," in which federal courts have traditionally refused to exercise jurisdiction over civil cases addressing matters of marriage, divorce, and child custody. See Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992); Kirschbaum v. Walling, 316 U.S. 517, 520, 62 S.Ct. 1116, 1118-19, 86 L.Ed. 1638 (1942); Ohio v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (1930); Barber v. Barber, 62 U.S. (21 How.) 582, 16 L.Ed. 226 (1858). The domestic relations exception does not exist by any constitutional requirement; rather, it is a rule of statutory construction, in which the Court has adopted a narrow interpretation of the federal courts' civil diversity jurisdiction to exclude domestic relations cases. Ankenbrandt, 504 U.S. at 699-700, 112 S.Ct. at 2213, 119 L.Ed.2d at 480. The rule relates only to the ability of federal courts to grant or alter a decree of divorce or child custody or to award spousal support. Thus, in Ankenbrandt, it was held that the doctrine did not bar a diversity action involving a mother's tort claim against her divorced spouse, alleging sexual and physical abuse of her daughters. Id. at 704, 112 S.Ct. at 2215, 119 L.Ed.2d at 483.

Moreover, because the domestic relations exception is rooted in a narrow construction of the diversity jurisdiction statute, 28 U.S.C. § 1332, the rule has no application where there exists an independent basis for federal jurisdiction beyond diversity of citizenship. The present case does not involve a diversity action directed at obtaining a divorce or child custody decree or for an award of alimony. It is a criminal action undertaken pursuant to an express grant of jurisdictional authority. 28 U.S.C. § 228. Accordingly, the domestic relations exception has no application.

As an alternative basis...