899 F.Supp. 389 (S.D.Ind. 1995), EV95-0014M-01, United States v. Hopper

Docket Nº:EV95-0014M-01
Citation:899 F.Supp. 389
Party Name:United States v. Hopper
Case Date:September 28, 1995
Court:United States District Courts, 7th Circuit, Southern District of Indiana

Page 389

899 F.Supp. 389 (S.D.Ind. 1995)

UNITED STATES of America, Plaintiff,


Mark J. HOPPER, Defendant.

No. EV95-0014M-01 R/H.

United States District Court, S.D. Indiana, Evansville Division.

Sept. 28, 1995

Page 390

Timothy M. Morrison, U.S. Atty., Indianapolis, IN, for plaintiff.

Timothy Dodd, Evansville, IN, for defendant.


HUSSMANN, United States Magistrate Judge.

This matter is before the Court on the defendant's Motion to Dismiss Criminal Complaint filed August 30, 1995. Plaintiff filed its Response on September 15, 1995. No reply brief was filed.

Factual Background

Defendant Mark J. Hopper is charged in a Criminal Complaint with violation of 18 U.S.C. § 228, referred to as the Child Support Recovery Act of 1992 (CSRA). That Act, effective October 22, 1992, 1 provides:

§ 228. Failure to pay legal child support obligations

(a) Offense.-- whoever willfully fails to pay a past due support obligation with respect to a child who resides in another State shall be punished as provided in subsection (b).

* * * * * *

(d) Definitions.--As used in this section--

(1) the term "past due support obligations" means any amount--

(A) determined under a court order or an order of an administrative process pursuant to the law of a State to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living; and

(B) that has remained unpaid for a period longer than one year, or is greater than $5,000; and

(2) the term "State" includes the District of Columbia, and any other possession or territory of the United States.

The Probable Cause Affidavit in support of the Criminal Complaint alleges that Hopper

Page 391

and Roberta Schaefer, the custodial parent, were married in 1976 and divorced in Vanderburgh County, Indiana, in 1978. Roberta Schaefer and one child born of the marriage, Travis (now 17 years old), reside in California. Hopper continues to reside in Indiana.

According to Vanderburgh Superior Court records, Hopper was ordered to pay $30 per week child support when the divorce was granted August 24, 1978. On June 3, 1993, the Vanderburgh Superior Court issued an "Order on Information for Contempt and Petition to Modify." That Order increased Hopper's child support obligation to $75 per week and issued an Income Withheld Order 2 beginning June 4, 1993. The Order found Hopper to be $18,670 in arrears on child support payments (plus other medical, insurance and attorney fee obligations), and sentenced Hopper to one year in jail for contempt.

The Probable Cause Affidavit does not reflect whether Hopper did in fact serve time in jail, or whether he purged himself of contempt in some manner.

The Probable Cause Affidavit alleges that since the effective date of the CSRA, Hopper has made only sporadic payments on his child support obligation. Between the effective date of the CSRA (October 22, 1992) and May 23, 1995, Hopper has accrued $5,335 in arrearages. The Probable Cause Affidavit alleges willful violation of the CSRA because Hopper claimed income of approximately $24,750 during 1992 (a part of the period after the enactment date.)


The Defendant's Motion to Dismiss does not specifically argue why the CSRA is unconstitutional. It urges this Court to adopt the reasoning of District Judge Rosenblatt in two cases decided July 26, 1995. United States v. Mussari, 894 F.Supp. 1360 (D.Ariz.), and United States v. Schroeder, 894 F.Supp. 360 (D.Ariz.)

In those two cases, Judge Rosenblatt found that using the analysis in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the CSRA is not substantially related to interstate commerce, and is therefore beyond the scope of congressional power under the Commerce Clause. Judge Rosenblatt also concluded that the CSRA violates the Tenth Amendment because the subject matter of the Act intrudes upon powers reserved to the states. The opinion does not specifically list what state powers the Act imposes on, but it appears that the powers to regulate marital and family relationships are those which Judge Rosenblatt felt are impeded. Judge Rosenblatt also felt that "principles of federalism and comity" required the District Court to conclude that the CSRA violated the Constitution.

Two other courts have addressed this issue to date. United States v. Hampshire, 892 F.Supp. 1327 (D.Kan.), and United States v. Murphy, 893 F.Supp. 614 (W.D.Va.). These two cases have concluded that the CSRA is constitutional. With due respect to Judge Rosenblatt, this Court concludes that Murphy and Hampshire are properly decided.

Judge Rosenblatt initiated his decision by reference to United States v. Lopez, supra. In Lopez, which struck down the Gun-Free School Zones Act (GFA), 3 the United States Supreme Court identified three broad categories of activity that Congress may regulate under the commerce power:

(1) Congress may regulate the use of the channels of interstate commerce.

(2) Congress may regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat comes only from intrastate activity.

(3) Congress may regulate those...

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