US v. Kegel, 95-300-CR-T-21(E).

• Decision Date: 13 February 1996
• Docket Number: No. 95-300-CR-T-21(E).,95-300-CR-T-21(E).
• Parties: UNITED STATES, Plaintiff, v. John William KEGEL, a/k/a John William Taft, Defendant.
• Court: U.S. District Court — Middle District of Florida

916 F. Supp. 1233

UNITED STATES, Plaintiff, v. John William KEGEL, a/k/a John William Taft, Defendant.

No. 95-300-CR-T-21(E).

United States District Court, M.D. Florida, Tampa Division.

February 13, 1996.

Sharon Lever, Federal Public Defender's Office, Middle District of Florida, Tampa, FL, for defendant.

Wanda Heard, U.S. Attorney's Office, Middle District of Florida, Tampa, FL, for U.S.

ORDER

McCOUN, United States Magistrate Judge.

THIS MATTER is before the court on Defendant John William Kegel's Motion to Dismiss Information, (Doc. 13). By this motion, Defendant seeks to dismiss his Criminal Information (Doc. 1), on grounds that the Child Support Recovery Act of 1992, 18 U.S.C. § 228, (hereinafter, "CSRA"),¹ is unconstitutional. Specifically, Defendant argues that the statute violates Tenth Amendment principles of comity and federalism.² As a second ground, the Defendant argues that the statute is an unconstitutional exercise of congressional power under the Commerce Clause. The Government has filed a response in opposition, (Doc. 14).

I.

Defendant John William Kegel is charged by Information that, between May 10, 1984 through September 20, 1995, he intentionally and willfully failed to pay past due child support as required by court order of the Circuit Court of Pasco County, Florida. The Information further alleges that the Defendant resides in a state other than Florida, has owed past due child support in excess of one year and owes an amount in excess of $5,000.

II.

Defendant argues two grounds for striking down the CSRA. First, CSRA is in contravention to the tenets and principles of the Tenth Amendment of the Constitution in that it violates notions of federalism and comity. Second, the statute was unconstitutionally enacted in violation of the Commerce Clause because the activity proscribed has no substantial affect on interstate commerce. For reasons discussed below, the court rejects both arguments.

A.

Pursuant to the principles of the Tenth Amendment, the Defendant argues that CSRA offends notions of federalism and comity, specifically because it regulates criminal activity and matters of domestic relations. While case law cited by counsel has an initial appeal, it is ultimately unpersuasive. The federal courts have traditionally refrained from exercising authority over matters broadly described as "domestic relations." See Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1858) ("We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony. . . ."). See generally Simms v. Simms, 175 U.S. 162, 20 S.Ct. 58, 44 L.Ed. 115 (1898). Likewise, in criminal matters, "`the States possess primary authority for defining and enforcing the criminal law.'" United States v. Lopez, ___ U.S. ___, ___ n. 3, 115 S.Ct. 1624, 1631 n. 3, 131 L.Ed.2d 626 (1995) (citations omitted).

However, in the instance of the so-called domestic relations exception, the exception is neither a blanket exception nor all encompassing. For example, enforcing a decree involving alimony or child support is outside the scope of the exception. See Ankenbrandt v. Richards, 504 U.S. 689, 702, 112 S.Ct. 2206, 2214, 119 L.Ed.2d 468 (1992)³; Barber, 62 U.S. (21 How.) at 602. Enforcement, according to the Court, does not bring into play issues of comity and federalism because the court does not have to "enter the habitations and ... the chambers and nurseries of private families, and inquire into and pronounce upon the morals and habits and affections or antipathies of the members of every household." Barber, 62 U.S. (21 How.) at 602. In fact, Ankenbrandt makes it clear that enforcement is different. "The domestic relations exception encompasses only cases involving the issuance of a divorce, alimony, or child custody decree...." Ankenbrandt, 504 U.S. at 704, 112 S.Ct. at 2215 (emphasis added). In this court's view, the imposition of criminal penalties for failure to pay child support is analogous to enforcement actions over which the federal courts have long accepted jurisdiction.

CSRA, also, does not violate these same Tenth Amendment notions of federalism and comity simply because it is a federally enacted criminal statute. "Congress ... can criminalize conduct outlawed by states without violating the Tenth Amendment." United States v. Sage, 906 F.Supp. 84, 92 (D.Conn.1995). See United States v. Bishop, 66 F.3d 569, 578 (3d Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995)). Although States usually are the primary enactors and enforcers of criminal law, they have not cornered the market. They do not have the sole authority in this matter. See United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973) (acknowledging that Congress has the power to enter upon the criminal jurisdiction of the States where it clearly evidences such intent); Screws v. United States, 325 U.S. 91, 109, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495 (1945) (plurality opinion) ("Under our federal system the administration of criminal justice rests with the States except as Congress, acting within the scope of its delegated powers, has created offenses against the United States."). In fact, Congress has enacted many criminal statutes where there are State statutes punishing similar conduct. The relevant inquiry, therefore, is not whether the States primarily regulate a particular activity, but whether the federal statute was enacted pursuant to Congress' constitutional authority. If it does, the Tenth Amendment is not violated. As discussed below, CSRA meets this test.

B.

The CSRA does not exceed Congress' power to regulate commerce among the States. While recognizing that several courts have found the statute in violation of the Commerce Clause,⁴ upon close analysis there is a rational link between commerce and the harm proscribed by this statute. The nexus is sufficient to support Congress' authority to enact this statute and to support the Government's prosecution of this Defendant under the statute.

In United States v. Lopez, ___ U.S. ___, ___-___, 115 S.Ct. 1624, 1628-30, 131 L.Ed.2d 626 (1995), the court, for the first time since 1937, struck down a federal statute found to be in violation of the Commerce Clause. The case is instructive of this court's analysis.

In Lopez, the defendant was charged with and convicted under the Gun-Free School Zone Act of 1990, which prohibits the knowing possession of a firearm within a school zone. 18 U.S.C. § 922(q). On appeal, the defendant successfully challenged Congress' authority to enact the statute. The Act was struck down by the Court on the grounds that was indeed unconstitutionally enacted because by its terms "it had nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Lopez, ___ U.S. at ___- ___, 115 S.Ct. at 1630-31.

Since Lopez, a flurry of cases have been filed in federal court similarly challenging CSRA.⁵ Although the jurisdictions considering the issue have reached diverse results, this court finds that the CSRA survives the challenge.

The Commerce Clause states that Congress shall have the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Const. art. I, § 8, cl. 3. Since the watershed case of NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), this clause has been interpreted to mean that Congress has powers to regulate three categories of activity. See Lopez, ___ U.S. at ___-___, 115 S.Ct. at 1628-30. Congress may regulate:

The use of the channels of interstate commerce; the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and those activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce.

Lopez, ___ U.S. at ___-___, 115 S.Ct. at 1629-30 (internal citations omitted).

Although Defendant and the Government do not agree on which category the court should base its determination of the issue, this court finds that CSRA survives the Commerce Clause challenge both because the Act represents a legitimate attempt by Congress to regulate the use of the channels of interstate commerce, as that phrase is construed, and because the activity at issue substantially affects interstate commerce.

In the first instance, "the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained and is no longer open to question." Lopez, ___ U.S. at ___, 115 S.Ct. at 1629 (citations omitted). Clearly the use of interstate travel to avoid payment of child support obligations presents Congress with a compelling reason to regulate such conduct. The legislative history of the CSRA supports such a conclusion.

Representatives were presented with numerous stories of "instances where spouses, ... who did not want to pay child support, went to another State, waited just until the legal process was able to catch up with them, and then went to another State and started the procedure all over again." 138 Cong.Rec. H7325 (1992). A report from the General Accounting Office included findings that one-third of child support cases involved parents living in different states, thus necessitating interstate transfers of the funds and significant intercourse between persons of different states. Of that one-third, fifty-seven percent of the custodial parents received their support payments through channels of interstate commerce occasionally, seldom or never. H.R.Rep. No. 771, 102d Cong., 2d Sess. 6 (1992). Evidence also supported that this failure to pay was markedly intentional and that movement over state lines significantly increased the chances of successfully avoiding these payments. Id.

The court...