US v. Hopper, EV95-0014M-01 R/H.

• Decision Date: 28 September 1995
• Docket Number: No. EV95-0014M-01 R/H.,EV95-0014M-01 R/H.
• Citation: 899 F. Supp. 389
• Parties: UNITED STATES of America, Plaintiff, v. Mark J. HOPPER, Defendant.
• Court: U.S. District Court — Southern District of Indiana

899 F. Supp. 389

UNITED STATES of America, Plaintiff, v. Mark J. HOPPER, Defendant.

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

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

September 28, 1995.

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

Timothy Dodd, Evansville, IN, for defendant.

MEMORANDUM DECISION

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 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 Order² 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.)

Discussion

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, ___ U.S. ___, 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 activities that substantially affect interstate commerce.

Lopez itself was concerned only with the third category, for the GFA is neither a regulation of the use of the channels of interstate commerce (Category 1) nor a regulation of an instrumentality of interstate commerce or a thing in interstate commerce (Category 2). Lopez, ___ U.S. at ___, 115 S.Ct. at 1630, 131 L.Ed.2d at 638.

Although the GFA specifically included congressional findings and declarations concerning how the activity of gun possession in a school zone substantially affected interstate commerce (see 18 U.S.C. § 922(q)(1)), the language in the statute which proscribed conduct did not explicitly require as an element of the crime any nexus with interstate commerce. The Supreme Court in Lopez held that absent this jurisdictional element, the relationship between interstate commerce and the possession of a firearm within a school zone was too tenuous to justify Congress' intrusion into a matter of criminal law primarily of local concern. Lopez, ___ U.S. at ___, 115 S.Ct. at 1631, 131 L.Ed.2d at 642-43.

Unlike the GFA, the CSRA does explicitly require as an element of the crime that there be a willful failure to provide support to a child "who resides in another state." As such, the power of federal law enforcement authorities cannot be invoked upon matters of family law when the parties thereto remain within the bounds of any particular state. The CSRA requirement of having a willful failure to support a child who resides in another state recognizes the sovereignty of each state in matters of domestic relations law, and the limited jurisdictional power of state authorities to go beyond their geographical boundaries to enforce their orders.

This Court therefore concludes that Congress has more explicitly limited its enforcement powers in the CSRA than it did in the GFA. However, the mere limitations by Congress of the circumstances under which its enforcement powers may be involved, does not necessarily establish that the activity proscribed substantially affects "interstate commerce."

Judge Rosenblatt takes the position in Mussari that the collection of a debt is not commerce. The Court believes that the act of collecting an obligation, though dealing with an intangible, does amount to commerce. In United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955), the United States Supreme Court discussed the terms "Trade or Commerce" as those were applied in the Sherman Act. "Trade or Commerce" included the conduct of "real estate brokerage (United States v. National Association of Real Estate Boards, 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007); the gathering and distribution of news (Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013); medical services to members of a health cooperative (American Medical Assn. v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434); and insurance underwriting (United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440)." Shubert found that commerce exists where there is a "continuous and indivisible stream of intercourse among the states involving the transmission of large sums of money and communications by mail, telephone and telegraph." Shubert, 348 U.S. at 226, 75 S.Ct. at 280.

In United States v. South-Eastern Underwriters Assn., supra, the Supreme Court addressed whether fire insurance transactions which stretch across state lines constitute "Commerce among the several states" so as to make them subject to regulation by Congress under the Commerce Clause. South-Eastern Underwriters, 322 U.S. at 538-39, 64 S.Ct. at 1165-66. In response to the argument that an insurance contract was not a commodity, and was merely a personal contract subject to the laws of the state where it was executed, the Supreme Court states:

But both before and since Paul v. Virginia 75 U.S. (8 Wall.) 168, 19 L.Ed. 357 (1868) this Court has held that Congress can regulate traffic though it consist of intangibles. Another reason much stressed has been that insurance policies are mere personal contracts subject to the laws of the state where executed. But this reason rests upon a distinction between what has been called "local" and what "interstate," a type of mechanical criterion which this Court has not deemed controlling in the measurement of federal power. Cf. Wickard v. Filburn, 317 U.S. 111, 119-120, 63 S.Ct. 82, 86, 87 L.Ed. 122; Parker v. Brown, 317 U.S. 341, 360, 63 S.Ct. 307, 318, 87 L.Ed. 315. We may grant that a contract of insurance, considered as a thing apart from negotiation and execution, does not itself constitute interstate commerce. Cf. Hall v. Geiger-Jones Co., 242 U.S. 539, 557-558, 37 S.Ct. 217, 223, 224, 61 L.Ed. 480. But it does not follow from this

...