It has been the practice in this state that imprisonment for failure to comply with a support order is not imprisonment for a debt, but imprisonment for failure to comply with a court order.  State v. Francis,(1928) 126 Or. 253, 269 P. 878, 880 and Hubble v. Hubble,(1929) 128 Or. 46, 273 P. 395, 396.  In Hubble, the ruling added that an alleged contemnor was entitled to a hearing and opportunity to present a defense.

            In Hewson v. Hewson,(1929) 129 Or. 612, 277 P. 1012, 1014 there is a terse citation of Francis and Hubble and no further explanation.

            In Dean v. Dean,(1931) 136 Or. 694, 300 P. 1027, 1029 there is a terse citation of Hewson and no further explanation than that.

            There several significant problems with the Francis interpretation of Article I Section 19 adopted by the Oregon courts in the twenties and the thirties.  They are as follows:

            Any debt or obligation can be reduced to a court order to pay up.  While it is true that alimony and child support are ordinarily established by administrative or court order, they can also be agreed to by the parties in the form of a contract.  But Francis does not make a distinction between alimony and other types of debt and obligation.  Nor does it explain the failure of ORS 33 and ORCP 78 to make any distinction between support ordered by a court and support agreed to in a contract.  Francis clearly states that alimony or support that is agreed to in a contract cannot be enforced by imprisonment!  But ORCP 78 clearly forbids the use of contempt proceedings for the enforcement of any other type of debt or obligation, allowing contempt proceedings only to enforce debts and obligations arising out the duty to support a spouse or children.  ORCP 78 is not based on any published opinion of any Oregon court interpreting Article I Section 19.

            The clear danger in Francis is that because any debt or obligation can be reduced to a court order, it renders Article I Section 19 totally meaningless.  The only protection any Oregon debtor has against imprisonment for debt is ORCP 78, which can be changed at any time without the procedures required to change the Oregon Constitution.  The Legislature is free to amend to or to add to ORS 33 to provide for contempt proceedings and criminal sanctions for failure to pay all kinds of debts or obligations, provided that such debts or obligations are first reduced to a court judgment and order to pay.

            Such a judgment and order can result from a suit for breach of contract.  For any action for the recovery of a tort.  For any other suit to enforce or to collect any debt.  From a request for an award of attorney’s fees.  As long as the civil action results in a court order to pay, Francis allows the court to evade the constitutional prohibition of imprisonment for debt by simply ordering the losing party to pay the money.  Then if the losing party fails to pay the money ordered, the court can imprison him or her not for the debt, but for failure to comply with a court order.

            Because it is the clear intent of Article I Section 19 and similar provisions in many other state constitutions to prevent debtor’s prisons, to prevent such state sponsored economic terrorism against the poor and unemployed, then the Francis rule cannot stand.  It is pure sophistry of the sort that gives the judicial process a bad reputation with the public to so totally undermine the plain language and clear intent of a constitutional provision.  A clear exception to stere decisis exists here for a judicial destruction, not construction, of a constitutional provision that is obviously wrong.

            Many people find themselves in over their heads in debt when they are laid off from their jobs.  They contracted home mortgages and consumer debt based on the income earned with their jobs.  Then they are laid off.  Fifteen years with a company.  Fifteen years with medical insurance.  Guess when the kidney blows up?  Four months after lay off.  $50,000 in medical bills that are no longer covered.  Since hospitals and physicians are just as vital to society as are parents supporting their children, then why not enforce with contempt proceedings?  Because in both instances, it is as contrary to the obvious ends of Article I Section 19 as any state effort to interfere with the right of slaveowners to recover runaway slaves is contrary to the obvious ends of the Fugitive Slave Clause.  As found by Justice Story 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 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.

 

Article I Section 19 of the Oregon Constitution is entitled to at least as much consideration as Article IV Section 2 clause 3 of the United States Constitution of the Constitution, subsequently rendered surplusage by the Thirteenth Amendment.

            Many, if not all, support debtors prosecuted for contempt have quit or were laid off from their jobs.  In the case of lay off, it is just as onerous to enforce with contempt proceedings a support order based on income earned on the job as any other obligation incurred during the employment.  In either case of lay off or quitting, it is a clear violation of the Thirteenth Amendment and the Antipeonage Act as well as the state imprisonment for debt provision to use contempt proceedings to coerce a person to seek employment or to punish him for failure to seek employment, whether for child support, or a hospital debt, or any other debt or obligation incurred through noncriminal activities.

            The one finding of Francis that is not obviously wrong and therefore must stand is the finding that alimony is a money debt that cannot be enforced by imprisonment any more than any other type of debt or obligation.  This is a perfectly reasonable interpretation of an imprisonment for debt provision that is not unique.

            In Coughlin v. Ehlert, (1866) 39 Mo. 285, the Missouri Supreme Court ruled that alimony is a debt like any other, and may not be enforced by imprisonment.  At that time, the Thirteenth Amendment was brand new.  Congress was keen to eliminate all forms of slavery and peonage still existing.  The Civil Rights Act of 1866, 14 Stat 27, was passed to enforce the Thirteenth Amendment.  The new Missouri Constitution of 1865 prohibited slavery and involuntary servitude and contained a much stronger imprisonment for debt provision than the previous Missouri constitution.

            So who can blame the 1866 Missouri Supreme Court for not wanting to potentially enslave a divorced man by imprisoning him for the debt?  And therefore run afoul of the federal government?  The use of such proceedings today can run afoul of a federal grand jury who figures out that it is a crime to hold anyone in a condition of involuntary servitude!

            The Missouri Supreme Court affirmed Coughlin with Francis v. Francis, (1915) 179 SW 975 and Harrington v. Harrington, (1938) 121 SW 2d. 291.  Since then, the Missouri Supreme Court has reversed itself several times on this issue.  Too many judges have a bias against noncustodial parents to be happy with just enforcing the law as written.  If they just went by the law and not allowed their personal agenda to affect their rulings, it would not be an issue in Missouri or in any state with a constitution that prohibits imprisonment for debt.  There would be no contempt proceedings for nonpayment of support in any such state!

            This bias is ADMITTED by judges dissenting in favor of a noncustodial parent in a recent Oregon Court of Appeals decision.  In Robertson v. Robertson, (1993) 123 Or. App. 157, 160-165, 859 P. 2d. 550, 552-555 the dissenting judges of the Court of Appeals ruled that incarceration in a civil contempt proceeding to enforce a court order that party pay $15,600 toward a support arrearage violated Article I Section 19.  The contemnor could be released anytime he paid $15,600.  Because the contemnor’s ability to pay could not be proven, and his privilege from self incrimination negated any requirement that he prove inability to pay, he was being imprisoned for a debt.  He lacked the key to his freedom.  The startling admission on the part of Judge Edmonds is his opinion that it is “hard to resurrect any empathy for the father” at 123 Or. App. 164.  This is an admission of bias, every bit as ugly as anything written in the Protocols of the Elders of Zion or in any literature published by the Ku Klux Klan or the Aryan Nations, that if it affects how the judge interprets the law, is a clear denial of the right to due process of law and a violation of the judge’s oath to apply the law fairly to rich and to poor.

            The reason most states, including Oregon, have constitutions that prohibit imprisonment for debt is that there was a time in our history when people had little difficulty in having empathy for people imprisoned for crushing levels of debt.  Indeed, Senator Lane expressed sympathy for “the peon with a family to support”, and the report submitted by special agent J.K. Graves to the Commissioner of Indian Affairs cited by Senator Sumner during debate on the Peonage Bill characterized peonage as imprisonment for debt.  See Congressional Globe 39th Cong. 2d. Sess. pp. 240, and 1571.

            Oklahoma recently found that civil contempt cannot be used to enforce a district court order requiring payments on a judgment debt.  They “Will not adopt a strict or technical construction of the constitution so as to defeat its very purposes.” Lepak v. McClain, (Okla. 1992) 844 P. 2d. 852.

            Neither should Oregon.

            For Article I Section 19 to have any meaning, the finding that dates from State v. Francis must be reversed, and the use of contempt proceedings under ORCP 78 to enforce any money obligation, including alimony and child support, must come to an end.  It is time to enforce the law.  ORCP 78 must be struck down as repugnant to the Constitution of the State of Oregon.  Such a result will release district attorneys from being in a position of violating 18 U.S.C. §1581 and risking possible indictment by the United States Grand Jury for the District of Oregon.

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 U.S. 75, 85 n. 7, 79 L. Ed. 2d. 56, 104 S. Ct. 892 and Allen v. McCurry, (1980) 449 U.S. 90, 101 n. 17, 66 L. Ed. 2d. 308, 101 S. Ct. 411 citing England v. Louisiana State Board of Medical Examiners, (1964) 375 U.S. 411, 11 L. Ed. 2d. 440, 84 S. Ct. 461.

 

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