Article I Section 19 of the Hawaii Constitution prohibits imprisonment for debt.  There is no exception listed by express words within this provision mentioning alimony, maintenance, and support as being excepted from this protection.  Nor is there any limitation to contractual debts by express words as can be found in Article VI Section 15 of the South Dakota Constitution and in Article I Section 16 of the Wisconsin Constitution.  Nor is there any limitation to civil cases as found in Article I Section 10 of the California Constitution.

     In 1959, the Hawaii Constitutional Convention was certainly aware of the dispute in other states as to whether contempt proceedings and prosecutions for nonsupport constituted imprisonment for debt.  The Framers of this state’s constitution could have simply decided the issue by writing in an exception for alimony and child support.  Then the voters of this state in 1959 would have had a clear cut provision on which to base their decision.

     One possible reason for not writing in such an exception by express words was to allow judges to judicially destruct the provision in the case of family law just as had been done in many other states.  That way, if the voters do not SEE the exception, then they are not WARNED, and will vote to pass the Constitution in the wave of euphoria that accompanies the achievement of statehood.

     This is called dishonesty.  It is a common practice in democracy.  Examples of this includes Lyndon Johnson’s promise not to involve American soldiers in the war then taking place in Vietnam and Bill Clinton’s promise to integrate homosexuals into the military.

     Unless this Court is willing to assume and then to countenance a bad faith purpose in the 1959 Convention’s wording of the Constitution that they then submitted to the voters, this court then has no choice but to honor the plain language of this state’s charter and to stop the practice of imprisoning divorced persons and unwed fathers for simple failure to pay mere MONEY.  Where a state constitution specifically limits its imprisonment for debt provision to "debts arising from contract", State v. Lenz, (Ct. App. 1999) 230 Wis. 529, 602 N.W. 2d. 172, found that as a court order to pay support is not a debt founded on a contract, it was not protected by Article I Section 16 of the Wisconsin Constitution.

     As Justice Story wrote in Prigg v. Pennsylvania, (1842) 41 U.S. (16 Pet.) 539, 612, 10 L. Ed. 1060, no court of justice can be authorized so to construe a constitutional provision as to defeat its obvious ends.  The obvious end of the Hawaii Constitution is to prohibit the imprisonment of any person for failure to pay MONEY.

     We have seen numerous United States Supreme Court decisions finding that marriage, procreation, use of contraceptives, and abortion are fundamental rights.  Such decisions include Griswold v. Connecticut,(1965) 381 U.S. 497, 14 L. Ed. 2d. 510, 85 S. Ct. 1687 and  Planned Parenthood v. Casey, (1992) 505 U.S. 833, 870, 120 L. Ed. 2d. 674, 112 S. Ct. 2791.

            Abortion cannot be “unduly burdened”, it cannot be defined as a crime.  As the potential father has no say in whether to abort or to carry the child to term, it would unduly burden’s the woman’s choice to even require that he be informed of the pregnancy; he cannot be said to have done wrong for becoming a father, inside or outside of marriage.  It is not his choice!

            Stanley v. Illinois,(1972) 405 U.S. 645, 31 L. Ed. 2d. 551, 92 S. Ct. 1208 firmly rejected the irrebuttable presumption that an unwed father is an unfit parent, and it established that he is entitled to equal protection as to the fundamental right to due process of law.  So is the respondent.

            In Zablocki v. Redhail,(1978) 434 U.S. 374, 384-386, 54 L. Ed. 2d. 618, 98 S. Ct. 673 Justice Marshall wrote:

For example, last Term in Carey v. Population Services International, 431 U.S. 678, 52 L. Ed. 2d. 675, 97 S. Ct. 2010 (1977), we declared:

“While the outer limits of (the right to personal privacy) have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified governmental interference are personal decisions relating to marriage.  Loving v. Virginia, 388 U.S. 1, 2, (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, contraception, Eisenstadt v. Baird, 405 U.S. at 453-454, 31 L. Ed. 2d. 349, 92 S. Ct. 1029, id. at 460, 463-465, (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 69 L. Ed. 1070, 45 S. Ct. 571, (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1925).’”  Id., at 684-685, 52 L. Ed. 2d. 675 quoting Roe v. Wade, 410 U.S. 113, 152-153, 35 L. Ed. 2d. 147, 93 S. Ct. 705 (1973).

See also Cleveland Board of Education v. LaFluer, 414 U.S. 632, 639-640, 39 L. Ed. 2d. 52, 94 S. Ct. 791 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Smith v. Organization of Foster Families, 431 U.S. 816, 842-844, 53 L. Ed. 2d. 14, 97 S. Ct. 2094 (1977); Moore v. East Cleveland, 431 U.S. 494, 499, 52 L. Ed. 2d. 531, 97 S. Ct. 1932 (1977); Paul v. Davis, 424 U.S. 693, 713, 47 L. Ed. 2d. 405, 96 S. Ct. 1155 (1976).

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.  As the facts of this case illustrate, it would make little sense to recognize a right to privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.  The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings, see Trimble v. Gordan, 430 U.S. 762, 768-770, and note 13, (1977), Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175-176 (1972). Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection.  And, if appellee’s right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.

 

            No punitive purpose can be given effect to any alimony or child support order arising from a no-fault divorce or paternity proceeding if based solely on the parent and child relationship, and not based on any wrongdoing beyond the exercise of these fundamental rights, without violating the due process provisions of the Hawaii and United States Constitutions.

       Because what is involved here is the imprisonment of the respondent, the strict scrutiny standard must apply for his equal protection claim.  In P.O.P.S. v. Gardner, (9th Cir. 1993) 998 F. 2d. 764, 769, the Ninth Circuit upheld Washington’s child support schedule law because it rationally promoted legitimate goal of reducing the adversarial nature of the proceedings and increasing predictability.  Imprisoning a man to coerce payment of money when such imprisonment serves a punitive purpose that is no longer valid certainly does not rationally promote any goal of reducing litigation and adversarial nature of the proceedings.

            In Commonwealth v. MacKenzie, (1975) 368 Mass. 613, 334 N.E. 2d. 613, the Massachusetts court determined that defining criminal liability for fathering a child out of wedlock without concurrent criminal liability for the mother of that same child denied equal protection of the laws.

            In Commonwealth v. Staub, (1975) 461 Pa. 486, 337 A. 2d. 258 the Pennsylvania court found that fornication and bastardy statute that placed primary responsibility for support of illegitimate child on the father created a classification not related to the state interest.  Since the unwed mother was not liable to the same extent of the unwed father, the statute violated equal protection by providing different punishment for identical conduct solely on the basis of the gender of the party.

            The custodial parent of the child has as much moral responsibility to provide for the needs of the child as the noncustodial parent.  Even if she is voluntarily unemployed or underemployed, she is not under the constant threat of contempt proceedings, arrest, and imprisonment for failing to support her children.  Indeed, if she were unemployed, even voluntarily, and without income from a husband or ex-husband, the state’s welfare agency will give her a monthly stipend under the Temporary Assistance for Needy Families program.

      Same is true for parents who remain married and retain custody of their children.

     It is only those parents without custody of their children who are subject to contempt proceedings under HRS §576-36 or §576E-18 or other state laws.  This statute creates a classification that is not rationally related to the state’s interest in the support of its children.

     The practical effect of Hawaii’s child support statutes in general and the contempt process in particular, is that ONLY the NONcustodial parents are legally required to support their children.  Custodial parents have NO such legal requirement!

     It is against ONLY the NONcustodial parent that the punitive purpose of child support that originally justified imprisonment for such debts is imposed.  Such punitive purpose is no longer valid.  In Zablocki, supra, noncustodial parents ordered to pay child support could not be denied equal protection where such distinction is not rationally related to a legitimate interest of government.

     Contempt proceedings for nonpayment of support therefore violate the requirement for equal protection of the laws in Article I Section 5 and in the Fourteenth Amendment.

V.   RESERVATION OF THE RIGHT TO SEEK FEDERAL RELIEF