The
Idaho Supreme Court has not made
very many decisions interpreting
Article I Section 15 of the
Idaho
Constitution. So the record is sketchy.
In In re Martin, (1955) 76
The primary problem with Martin, Phillips, and
Muthersbaugh, is that neither decision is based on any independent
Such a proposition is arguably
PROPOSTEROUS! The people of
Martin, Phillips,
and
Muthersbaugh rely on the precedence
of other state courts interpreting other state constitutions. The selection of case law therein gives
Martin
cites State v. Francis, (1928) 126 Or. 253, 269 P. 878. In Francis,
the
As found by Justice Story in
Prigg
v. Pennsylvania,
(1842) 41
No Court of Justice can be
authorized so to construe any clause of the Constitution as to defeat its
obvious ends, when another construction, equally accordant with the words and
sense thereof, will enforce and protect them.
It defeats the obvious
ends of any state constitution’s prohibition of imprisonment for debt to allow
any debt or obligation to be reduced to a court order to pay that is enforceable
by imprisonment. The
Oregon court’s
practice destroyed the Rule of Law in that state as much as a
federal agent’s
shooting of Vicky Weaver when she is holding her child destroys the Rule of Law
in Idaho and the United States.
Any debt or obligation can be reduced
to a court order. Such a court order may
result from a suit for breach of contract, an award for attorney’s fees, or an
action to recover tort damages. As long
as the civil action results in a court order to pay, Francis allows the court to ignore and to blatantly violate a
clearly written provision of the state constitution. It is pure sophistry of the sort that gives
the judicial process a bad reputation with the public.
Martin
cites
Robinson v. Robinson, (1950) 37
It is
well settled law of this country that a decree or order of alimony in a divorce
proceeding is not a debt, within the meaning of that term as used in
§17 of
article I of our constitution.
Audubon v. Shufeldt, 181
Audubon,
also at 45 L. Ed. 1009 is a classic decision providing that alimony shall not
be dischargeable in bankruptcy, which is now codified as
11 U.S.C.
§523(a)(5).
At 181
The
liability to pay alimony is not founded upon a contract, but it is a penalty
imposed for a failure to perform a duty.
At the turn of the century, sexual
intercourse outside of marriage was considered to be highly immoral. Per this belief, abortion was illegal, sodomy
laws were brutally enforced against homosexuals, and paternity proceedings were
considered to be quasi-criminal in nature, the child support thus resulting to
serve a punitive purpose.
Also at the turn of the century,
divorce could only be obtained upon the establishment of “grounds”, that is,
the petitioner had to prove that respondent “wronged” her somehow. Grounds included adultery, abandonment, abuse
or cruelty, and conviction of a crime resulting in imprisonment. The requirement that wrongdoing be proved was
an important due process protection against the imposition of an onerous burden
of alimony and child support. Alimony
was then considered to be more than a tort judgment and to be tantamount to
restitution.
That is why parents so unfortunate
as to lose custody of their children have been imprisoned: the child support was considered a
PENALTY and imprisonment for nonpayment
furthers the punitive purpose. Like any
fine imposed upon conviction of a crime, it was not considered a debt within
meaning of
Article I Section 17 of the
Washington Constitution because it was
considered a PENALTY.
In 1915, punitive damages were not
recoverable in
The basic rule for interpreting the
imprisonment for debt provision is that if a monetary obligation is not a
penalty or imposed to serve a punitive purpose, then it cannot be enforced with
contempt proceedings, arrest, and imprisonment.
The
Supreme Court of Washington has
continued this basic rule of interpretation of
Article I Section 17 in its
decision upholding the Court of Appeals reversal of a conviction of second
degree theft. Without a written
estimate, a mechanic did not have a sufficient property interest in an
automobile that was taken back by its owner without payment for the repairs, to
allege the element of theft or intent to defraud. The money due for repairs was thus merely a debt (arising out of implied contract) for which the owner
cannot be imprisoned.
State v. Pike, (1992)
118
Statute that defined failure to pay
for agricultural products as a crime is unconstitutional on its face because it
did not include the element to defraud as an element of the crime. Without that element, the value of the
agricultural products is merely a debt.
State v. Enloe, (1987)
47
Martin
cites In re McCabe, (1931)
53
Ex
parte Phillips also cites Seagar v.
Seagar, (1888) 23 Neb. 306, 36 NW 536 and Coughlin v. Ehlert, (1866) 39 Mo.
285. The
Nevada Court found that these
decisions did not reach the “general rule” because they were merely interpreting
local statutes. This much was true of Seagar, but not the
In Coughlin v. Ehlert, the
The
Martin
cites Cain v. Miller, (1922) 109 Neb. 441, 191 NW 704. Cain
overrules Seagar, supra and Leeder, supra based upon
Audubon v. Shufelt and Barclay v. Barclay. Because neither alimony nor child support can
legitimately be used to pursue any punitive purpose, Cain is defective for the same reasons that the Nevada and
Washington decisions cited above are defective.
Leeder becomes the
Martin
cites Miller v. Superior Court, (1937) 9
Miller
cites Cain v. Miller, supra of
Miller
cites Livingston v. Superior Court, (1897) 117
Husband did not owe a wife any specific sum of money, but he owed a duty to her which might be enforced by an order of the court, compelling him to pay her money.
at 7 P. 637.
The problem with this reasoning is
that when courts construe a Constitutional provision so to defeat its obvious
ends, it destroys the Rule of Law. The
obvious end of
The other problem with Perkins is that it was handed down in
1861 when the right of a state to hold persons to service or labor was
constitutionally protected. The power of
the courts to compel any person’s performance is clearly regulated by the
Thirteenth
Amendment and the Antipeonage Act passed subsequent to Perkins. If state officials
and state courts insist on continuing their willful violation of these federal
provisions, then they risk subpoenas and indictments by any federal grand jury
that decides to enforce the Peonage and Slavery Chapter.
Martin
cites Ex parte Bighorse, (1936) 178
Martin
cites Holloway v. Holloway, (1935) 130
Holloway
characterizes alimony as a court order to pay which can be punished with
contempt while an ordinary money judgment is not an order to pay the money that
can be punished with contempt. Same
problem as with the
Cook
is based on the old saw that alimony is a duty that husband owes the public as
well as his wife and therefore is not a contractual debt. The problem with this bit of sophistry is
that
Article I Section 15 of
Ohio’s Constitution does not by express words
limit its imprisonment for debt prohibition to debts arising out of
contracts. If the framers of the
Ohio
Constitution intended such a restriction, they could have adopted the language
of
Article I Section 16 of the
Wisconsin Constitution, which by express words
limits its protection to debts arising out of contract. But they DID
NOT.
Cook
also specifically defines that alimony arises from a wrongful act of the
husband, at 64 NE 568. It is a PENALTY. It cannot be characterized as a penalty if it
arises from a no fault divorce and this type of reasoning cannot be applied to
child support which under
IC §32-706 arises regardless of fault for failure of marriage.
As it is,
The framers of the Constitutions of
Idaho,
Washington,
Oregon,
California,
Nevada,
Oklahoma,
Nebraska, and
Ohio did
not elect to limit the scope of their imprisonment for debt provisions to
contractual debts by express words nor did they choose to exclude those who
owed alimony and child support from the protection. Not by express words. Lack of such express words shows a lack of
intent by the framers for such a restriction.
Therefore, to imprison any person for failure to pay money in ANY civil
obligation including alimony and child support is to exceed the authority of
law as much as when
federal agents shot Striker the Dog without provocation
near Ruby Ridge.
Many other states rely on old
decisions that were based on the old rule that alimony and child support were
to serve a PUNITIVE purpose. This is no
longer valid with the rise in no-fault divorce law and with the definition of
child support as not serving a punitive purpose, but to be imposed upon
whichever parent loses custody of the child.
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
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!
In
Zablocki v. Redhail,(1978) 434
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
Nothing in the Idaho laws define
child support to be any kind of a penalty for wrongdoing, but simply a monetary
requirement against the noncustodial parent for the support of the child:
IC §32-706 which provides for child support
“without regard to marital misconduct”
IC §32-1002 which defines the reciprocal duty to support.
Therefore, child support is a debt
within Article I Section 15 because it is not
a PENALTY. To further any punitive
purpose in the enforcement of a child support order that is based solely on the
parent and child relationship and the lack of custody of the child by the
parent deprives the parent of his liberty without due process of law in
violation of
Article I Section 13 of the
Idaho Constitution and the
Fourteenth
Amendment.
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)
In Commonwealth v. MacKenzie, (1975) 368
In Commonwealth v. Staub, (1975) 461
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. This practice creates a classification that
is not rationally related to the state’s interest in the support of its
children.
The practical effect of
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.
This contempt prosecution thus violates the Fourteenth Amendment requirement for equal protection of the laws.
RESERVATION OF THE RIGHT TO SEEK
FEDERAL RELIEF
The
respondent reserves the right to seek relief in federal court under
42 U.S.C.
§1983, 28 U.S.C. §2254 and any other applicable federal statute. See
Migra v. Warren City
School Dist. Bd. of Educ., (1984) 465
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