912 F.Supp. 1248 (D.Ariz. 1995), CR 95-009, United States v. Mussari

Docket Nº:CR 95-009 PHX PGR.
Citation:912 F.Supp. 1248
Party Name:UNITED STATES of America, Plaintiff, v. Allan A. MUSSARI, Defendant.
Case Date:October 25, 1995
Court:United States District Courts, 9th Circuit, District of Arizona
 
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Page 1248

912 F.Supp. 1248 (D.Ariz. 1995)

UNITED STATES of America, Plaintiff,

v.

Allan A. MUSSARI, Defendant.

No. CR 95-009 PHX PGR.

United States District Court, D. Arizona.

Oct. 25, 1995

Page 1249

Michael Joseph Bidwill, Asst. U.S. Attorney, Phoenix, AZ, for plaintiff.

David Lee Titterington, Asst. Fed. Public Defender, Phoenix, AZ, for defendant.

ORDER

ROSENBLATT, District Judge.

Pending before the court is Plaintiff's Motion for Reconsideration ("Motion") of this court's Order dated July 27, 1995 ("Order"), in which the court granted Defendant's Motion to Dismiss indictment based upon a finding that the Child Support Recovery Act of 1992 ("CSRA"), 18 U.S.C. § 228, the basis for the indictment, was unconstitutional. See Order, Doc. # 40. On August 30, 1995, this court ordered Defendant to file a response to the Plaintiff's Motion. The court having been fully briefed on the pending motion, it will issue its decision.

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A. Standard

A party seeking a motion for reconsideration must (1) demonstrate some valid reason why the court should reconsider its prior ruling and (2) set forth substantial facts or law to persuade the court to reverse its prior decision. Bahrs v. Hughes Aircraft Co., 795 F.Supp. 965, 967 (D.Ariz.1992). Plaintiff has failed to provide a valid reason why this court should reconsider its prior ruling, nor has it provided substantial law or facts to persuade this court to reverse its decision.

....

B. Discussion

1. Contrary law

Before undertaking an analysis of Plaintiff's arguments contained in its Motion, the court will discuss cases Plaintiff cites, as well as cases this court has discovered, from other jurisdictions which have held the CSRA constitutional. Although the decisions of these other jurisdictions have no binding authority upon this court, these decisions will be addressed in order to show that this court's finding that the CSRA is unconstitutional is correct.

First, Plaintiff has filed a Notice of Supplemental Authority wherein it cites to a decision out of the Southern District of Indiana which holds the CSRA constitutional. This decision, United States v. Hopper, 899 F.Supp. 389 (S.D.Ind.1995), specifically distinguishes this court's Order in its determination that Congress had the authority under the Commerce Clause to enact the CSRA.

In Hopper, Magistrate Judge Hussmann found that because the CSRA contains the requirement that the defendant and his/her child live in different states, there is a sufficient showing of "interstate commerce" under the Commerce Clause. Magistrate Judge Hussmann further found that the "act of collecting an obligation, though dealing with an intangible, does amount to commerce." See Hopper, 899 F.Supp. at 392 (S.D.Ind.1995). This court will address why it believes these two findings to be erroneous in relation to Plaintiff's arguments, infra. However, further analysis of the Hopper decision provides the most compelling basis for finding the CSRA unconstitutional.

Even after concluding that the CSRA is constitutional, Magistrate Judge Hussmann makes the following conclusion:

The Court does note that several interesting issues remain to be resolved in this case. It appears that the CSRA was aimed at providing a tool for enforcement authorities to prosecute "runaway" parents who flee a jurisdiction to avoid state enforcement of child support obligations. It appears that Mr. Hopper has never left Indiana, and has never been outside the jurisdiction of the Indiana courts which presumptively have ample power to both bring him into compliance, and to punish him criminally for willful failure to support his child.

See Hopper, 899 F.Supp. at 394 (S.D.Ind.1995) (emphasis added). Apparently in the Hopper case, the custodial parent moved out of the state with the child, and defendant Hopper never left the jurisdiction of the state court which issued the child support order.

This set of facts is more than just an "interesting issue"; it goes to the heart of the constitutionality of the CSRA. The only movement in "interstate commerce" undertaken in the Hopper case was by a third party, i.e. the custodial parent. Thus, the Hopper court has found federal jurisdiction over a party who has not moved or engaged in interstate commerce; the basis for jurisdiction is the action of a third party. Clearly under the circumstances of the Hopper case, there has been no use of the channels of interstate commerce, nor has there been any activity which substantially affects interstate commerce. Without either of these bases, there is no authority for Congress to enact a federal criminal statute under the Commerce Clause.

This is the major stumbling block to the CSRA. The courts which have found the CSRA constitutional do so with limited, if any, discussion of the above scenario, which obviously is a reality, specifically in the Hopper case. These courts are caught up in the analysis of the policy behind the CSRA; the

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obvious lack of specific language requiring an interstate element, in relation to the defendants being prosecuted under the CSRA, which would allow Congress to enact such legislation is overlooked. Allowing Congress to enact any legislation it desires in the name of the Commerce Clause is exactly what the United States Supreme Court intended to remedy in the United States v. Lopez 1 decision. No longer will the Wickard v. Filburn 2 rationale be good enough to allow Congress to regulate any area of an individual's life. Without the specific limitations of requiring the defendant to be the party to move interstate, the CSRA fails to pass muster under the Commerce Clause and is unconstitutional.

Further, the Hopper court acknowledges that the state has ample power to punish Mr. Hopper for his failure to pay child support. Indeed, no one argues in any of the decisions which have addressed the constitutionality of the CSRA that the state is not fit to punish those individuals who remain wholly within the jurisdiction of the state, i.e. those parents who live in the same state as their children. However, in the scenario presented by the facts of the Hopper case, the federal government would be stepping into a purely intrastate matter, i.e. the prosecution of an individual who has not availed himself of the channels of interstate commerce, in order to enforce a state court order of child support. Clearly the Commerce Clause did not anticipate such far-reaching actions on the part of the federal government when enacting federal criminal legislation.

Therefore, the Hopper case does not aid Plaintiff in persuading this court that the CSRA is constitutional; in fact, it only further supports this court's finding that the CSRA is un constitutional.

The next case Plaintiff cites as supporting its claims that the CSRA is constitutional is the case of United States v. Hampshire, 892 F.Supp. 1327 (D.Kan.1995). In Hampshire, the United States District Court for the District of Kansas found that the CSRA was constitutional because it had the explicit requirement that the parent and child live in different states, creating the necessary interstate nexus for application under the Commerce Clause. 3 See 892 F.Supp. at 1329-30.

This court respectfully disagrees with the analysis undertaken by the District Court in the Hampshire case. As this court has stated in its original Order, as well as in this order, the interstate "nexus" contained in the CSRA does not meet the requirements necessary to establish constitutionality under the Commerce Clause. Therefore, this court finds that the Hampshire decision is unpersuasive as to the constitutionality of the CSRA.

The court has found another decision by the United States District Court for the Western District of Virginia, United States v. Murphy, 893 F.Supp. 614 (D.Va.1995), which holds the CSRA constitutional. Although neither party has brought this case to the attention...

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