On
page 30 the July 2006 edition of
Bar News, published by the
Washington State
Bar Association, is the article
Children
of the Poor: Ensuring a Future for Washington’s Young, authored by
Jacqueline Jeske, who also served in this appeal and in the superior court
below as counsel for the State. Please
see attached Exhibit. On pages 31-32
Ms. Jeske writes:
More parents pay support,
over the long term after families separate, when their child-support orders are
realistic and accurate. Being realistic
about an opposing party’s income is important in the context of establishing
both current and back support orders.
That does not mean one has to sacrifice advocacy on behalf of a client,
but one does have to think long term about the client’s concerns and not just
about the order one can secure the client today. Good advocacy includes balancing a client’s
interests for the long term. What does
it gain a client to obtain the highest income calculation against the other
parent if it is not realistically based?
You may end up with a higher monthly support payment and a poor payment
record from the other parent, which continuously requires enforcement. Obtaining orders of child support that may
not be based on realistic income figures may result in a recipient parent being
forced to repeatedly bring private contempt motions to obtain compliance. The cost of this process to a client may well
outweigh the benefit the additional monthly support amount would contribute to
their household.
And without irony,
Ms. Jeske sets forth this fact on
Id. pages 32-33:
Of those cases at warrant
status, some 140 individuals owe more than $40,000 in unpaid child support
arrearages.
It is
possible that “orders of child support that may not be based on realistic
income figures may result” in individuals owing “more than $40,000 in unpaid
child support arrearages”. It is
possible that application of the child support schedule set forth at
RCW
26.19.020 with deviations upward for such things as babysitting services can
also result in individuals owing “more than $40,000 in unpaid child support
arrearages”. This latter situation is
the case with the support order at issue here.
Mr.
Knight and numerous other non-custodial parents have been making these and
other points since the 1980’s.
Ms. Jeske
hereby sets forth an excellent argument in support of a mechanism to limit
support orders to reasonable levels and to provide relief to those non-custodial
parents upon whom are imposed support orders and arrearages that are
unrealistic.
RCW 26.09.170(1) prohibits
any relief from existing child support arrearages, including circumstances
where relief is otherwise warranted under
Civil Rule 60 or where the support
order is unconstitutional or declared null and void by
42. U.S.C. §1994. While
RCW 26.09.170(1) is unconstitutional
for prohibiting non-custodial parents from obtaining relief on any set of
grounds in denial of due process of law, an excessive support order is
prohibited by the
Fourteenth Amendment and by
Article I Section 3 of the
Washington Constitution on the grounds that such orders exceed the limit of
state’s interest set forth in
Troxel v.
Granville, (2000) 530 U.S. 57, 65-66, 147 L. Ed. 2d. 49, 120 S. Ct.
2054. Please see
Reply Brief of
Appellant pages 13-18.
Ms.
Jeske in her
Bar News
article sets forth an excellent argument in support of
applying the
Troxel minimum to child
support orders and providing non-custodial parents a mechanism of relief where
such orders exceed the state’s interest.
Her statements quoted hereinabove supports all arguments presented to
this Court and ever presented to the courts by Mr. Knight.
When
Frederick Douglas said that “It is easier to build strong children than to
repair broken men.” he certainly was not advocating the breaking of men through
no-fault unilateral divorce resulting in peonage and slavery by state sponsored
extortion to force them to pay money to the mothers of their children. Indeed, it is seriously doubtful that a
former slave who opposed slavery in part because families were arbitrarily
broken up by their masters, would favor a no-fault divorce regime that leads to
the almost automatic deprivation of one parent of the custody of his children
with enslavement to force him to pay money for the privilege of being forced
out of his household.
III.
HAMDAN V. RUMSFELD AND THE RULES OF
STATUTORY
CONSTRUCTION
Hamdan v. Rumsfeld, (June 29, 2006) 126
S. Ct. _____ involved the interpretation and application of the
Detainee Treatment Act of 2005 (DTA), Pub. L. 109–148, 119
Stat. 2739.
Justice Stevens
found:
We
find it unnecessary to reach either of these arguments. Ordinary principles of
statutory construction suffice to rebut the Government’s theory—at least
insofar as this case, which was pending at the time the
DTA was enacted, is
concerned.
The
Government acknowledges that only paragraphs (2) and (3) of subsection (e) are
expressly made applicable to pending cases, see §1005(h)(2), 119 Stat.
2743–2744, but argues that the omission of paragraph (1) from the scope of that
express statement is of no moment. This is so, we are told, because Congress’
failure to expressly reserve federal courts’ jurisdiction over pending cases
erects a presumption against jurisdiction, and that presumption is rebutted by
neither the text nor the legislative history of the
DTA.
The
first part of this argument is not entirely without support in our precedents.
We have in the past “applied intervening statutes conferring or ousting
jurisdiction, whether or not jurisdiction lay when the underlying conduct
occurred or when the suit was filed.”
Landgraf
v. USI Film Products, 511 U.S. 244,
274 (1994) (citing
Bruner v. United States, 343 U.S. 112 (1952) ;
Hallowell v. Commons, 239 U.S. 506 (1916) ); see
Republic of Austria v. Altmann,
541 U.S. 677, 693 (2004) . But the “presumption” that these cases have applied
is more accurately viewed as the nonapplication of another presumption—viz.,
the presumption against retroactivity—in certain limited circumstances. If a
statutory provision “would operate retroactively” as applied to cases pending
at the time the provision was enacted, then “our traditional presumption
teaches that it does not govern absent clear congressional intent favoring such
a result.”
Landgraf, 511 U.S., at
280. We have explained, however, that, unlike other intervening changes in the
law, a jurisdiction-conferring or jurisdiction-stripping statute usually “takes
away no substantive right but simply changes the tribunal that is to hear the
case.”
Hallowell, 239 U.S., at 508.
If that is truly all the statute does, no retroactivity problem arises because
the change in the law does not “impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new duties with respect
to transactions already completed.”
Landgraf,
511 U.S., at 280. And if a new rule has no retroactive effect, the presumption
against retroactivity will not prevent its application to a case that was
already pending when the new rule was enacted.
That
does not mean, however, that all jurisdiction-stripping provisions—or even all
such provisions that truly lack retroactive effect—must apply to cases pending
at the time of their enactment. “[N]ormal rules of construction,” including a
contextual reading of the statutory language, may dictate otherwise.
Lindh v. Murphy, 521 U.S. 320, 326 (1997) . A familiar principle of
statutory construction, relevant both in
Lindh
and here, is that a negative inference may be drawn from the exclusion of
language from one statutory provision that is included in other provisions of
the same statute. See
id., at 330;
see also, e.g.,
Russello v. United States,
464 U.S. 16, 23 (1983) (“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion’”). The
Court in
Lindh relied on this reasoning to conclude that certain limitations
on the availability of habeas relief imposed by
AEDPA applied only to cases
filed after that statute’s effective date. Congress’ failure to identify the
temporal reach of those limitations, which governed noncapital cases, stood in
contrast to its express command in the same legislation that new rules
governing habeas petitions in capital cases “apply to cases pending on or after
the date of enactment.” §107(c), 110 Stat. 1226; see
Lindh, 521 U.S., at 329–330. That contrast, combined with the fact
that the amendments at issue “affect[ed] substantive entitlement to relief,”
id., at 327, warranted drawing a
negative inference.
A
like inference follows a fortiori from
Lindh in this case. “If … Congress
was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to
pending cases, it should have been just as concerned about [§1005(e)(1)],
unless it had the different intent that the latter [section] not be applied to
the general run of pending cases.”
Id.,
at 329. If anything, the evidence of deliberate omission is stronger here than
it was in
Lindh. In
Lindh, the provisions to be contrasted
had been drafted separately but were later “joined together and … considered
simultaneously when the language raising the implication was inserted.”
Id., at 330. We observed that Congress’
tandem review and approval of the two sets of provisions strengthened the
presumption that the relevant omission was deliberate.
Id., at 331; see also
Field
v. Mans, 516 U.S. 59, 75 (1995) (“The
more apparently deliberate the contrast, the stronger the inference, as
applied, for example, to contrasting statutory sections originally enacted
simultaneously in relevant respects”). Here, Congress not only considered the
respective temporal reaches of paragraphs (1), (2), and (3) of subsection (e)
together at every stage, but omitted paragraph (1) from its directive that
paragraphs (2) and (3) apply to pending cases only after having rejected earlier proposed versions of
the statute that would have included what is now paragraph (1) within the scope
of that directive. Compare
DTA §1005(h)(2), 119 Stat. 2743–2744, with 151 Cong.
Rec. S12655 (Nov. 10, 2005) (S. Amdt. 2515); see id., at S14257–S14258 (Dec. 21, 2005) (discussing similar language
proposed in both the House and the Senate). Congress’ rejection of the very
language that would have achieved the result the Government urges here weighs
heavily against the Government’s interpretation. See
Doe v. Chao, 540 U.S.
614, 621–623 (2004) .
The
Government nonetheless offers two reasons why, in its view, no negative
inference may be drawn in favor of jurisdiction. First, it asserts that
Lindh is inapposite because “Section
1005(e)(1) and (h)(1) remove jurisdiction, while Section 1005(e)(2), (3) and
(h)(2) create an exclusive review mechanism and define the nature of that
review.” Reply Brief in Support of Respondents’ Motion to Dismiss 4. Because
the provisions being contrasted “address wholly distinct subject matters,”
Martin v. Hadix, 527 U.S. 343, 356 (1999) , the Government argues, Congress’
different treatment of them is of no significance.
This
argument must fail because it rests on a false distinction between the
“jurisdictional” nature of subsection (e)(1) and the “procedural” character of
subsections (e)(2) and (e)(3). In truth, all three provisions govern
jurisdiction over detainees’ claims; subsection (e)(1) addresses jurisdiction
in habeas cases and other actions “relating to any aspect of the detention,”
while subsections (e)(2) and (3) vest exclusive, but limited, jurisdiction in the Court of Appeals for
the District of Columbia Circuit to review “final decision[s]” of CSRTs and
military commissions.
That
subsection (e)(1) strips jurisdiction while subsections (e)(2) and (e)(3)
restore it in limited form is hardly a distinction upon which a negative
inference must founder. Justice Scalia, in arguing to the
contrary, maintains that Congress had “ample reason” to provide explicitly for
application of subsections (e)(2) and (e)(3) to pending cases because
“jurisdiction-stripping” provisions like subsection (e)(1) have been treated
differently under our retroactivity jurisprudence than
“jurisdiction-conferring” ones like subsections (e)(2) and (e)(3). Post, at 8 (dissenting opinion); see
also Reply Brief in Support of Respondents’ Motion to Dismiss 5–6. That theory
is insupportable. Assuming arguendo
that subsections (e)(2) and (e)(3) “confer new
jurisdiction (in the D.C. Circuit) where there was none before,” post, at 8 (emphasis in original); but
see
Rasul v. Bush, 542 U.S. 466 (2004) , and that our precedents can be read to
“strongly indicat[e]” that jurisdiction-creating statutes raise special
retroactivity concerns not also raised by jurisdiction-stripping statutes, post, at 8, subsections (e)(2) and
(e)(3) “confer” jurisdiction in a manner that cannot conceivably give rise to
retroactivity questions under our precedents. The provisions impose no
additional liability or obligation on any private party or even on the United
States, unless one counts the burden of litigating an appeal—a burden not a
single one of our cases suggests triggers retroactivity concerns. Moreover, it strains credulity to suggest that
the desire to reinforce the application of subsections (e)(2) and (e)(3) to
pending cases drove Congress to exclude
subsection (e)(1) from §1005(h)(2).
The
Government’s second objection is that applying subsections (e)(2) and (e)(3)
but not (e)(1) to pending cases “produces an absurd result” because it grants
(albeit only temporarily) dual jurisdiction over detainees’ cases in
circumstances where the statute plainly envisions that the District of Columbia
Circuit will have “exclusive” and
immediate jurisdiction over such cases. Reply Brief in Support of Respondents’
Motion to Dismiss 7. But the premise here is faulty; subsections (e)(2) and
(e)(3) grant jurisdiction only over actions to “determine the validity of any
final decision” of a CSRT or commission. Because Hamdan, at least, is not
contesting any “final decision” of a CSRT or military commission, his action
does not fall within the scope of subsection (e)(2) or (e)(3). There is, then,
no absurdity.
The
Government’s more general suggestion that Congress can have had no good reason
for preserving habeas jurisdiction over cases that had been brought by
detainees prior to enactment of the
DTA not only is belied by the legislative
history, see n. 10, supra, but is
otherwise without merit. There is nothing absurd about a scheme under which
pending habeas actions—particularly those, like this one, that challenge the
very legitimacy of the tribunals whose judgments Congress would like to have
reviewed—are preserved, and more routine challenges to final decisions rendered
by those tribunals are carefully channeled to a particular court and through a
particular lens of review.
Finally,
we cannot leave unaddressed Justice Scalia’s
contentions that the “meaning of §1005(e)(1) is entirely clear,” post, at 6, and that “the plain import of a statute repealing
jurisdiction is to eliminate the power to consider and render judgment—in an
already pending case no less than in a case yet to be filed,” post, at 3 (emphasis in original). Only
by treating the Bruner rule as an
inflexible trump (a thing it has never been, see n. 7, supra) and ignoring both the rest of §1005’s text and its drafting
history can one conclude as much. Congress here expressly provided that
subsections (e)(2) and (e)(3) applied to pending cases. It chose not to so
provide—after having been presented with the option—for subsection (e)(1). The
omission is an integral part of the statutory scheme that muddies whatever
“plain meaning” may be discerned from blinkered study of subsection (e)(1)
alone. The dissent’s speculation about what Congress might have intended by the
omission not only is counterfactual, cf. n. 10, supra (recounting legislative history), but rests on both a
misconstruction of the
DTA and an erroneous view our precedents, see supra, at 17, and n. 12.
For
these reasons, we deny the Government’s motion to dismiss.
Justices
Scalia, Thomas, and Alito strongly disagreed with the majority opinion’s
interpretation of the language of the
DTA.
The
Brief of Appellant pages 24-29 argues that application of the rules of federal
statutory construction applies to the Antipeonage Act, and under such rules,
the phrase “debt or obligation, or otherwise” includes the duty to support a
child and any court order based in whole or in part on such duty, and that the
nature of the peonage system in New Mexico Territory argues against denying a
claim of peonage based on any opportunity a peon may have in finding
alternative employers. On page 9 of the
Reply Brief of Appellant, Mr. Knight concedes that
in
rare cases the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters
quoting
Griffin
v. Oceanic Contractors, Inc., (1982) 458 U.S. 564, 571, 73 L. Ed. 2d. 973,
102 S. Ct. 3245 and argues that the State simply does not present and cannot
present any evidence that the 1867 Congress intended any exception for child
support in its prohibition of peonage.
The literal application of
42 U.S.C. §1994 to child support produces the
result that employment or the seeking of employment may not be coerced or
ordered in liquidation of such obligation.
It cannot be demonstrated that this is at odds with the intent of the
1867 Congress.
Justice
Stevens’ opinion in
Hamdan, to which
four other Justices agree, strips away the
Griffin
rule at issue here. Congress clearly
intended, according to the dissent by Justice Scalia, to strip the federal
courts of jurisdiction to hear habeas corpus claims brought by those Guantanamo
detainees who are not citizens of the United States and found on the
battlefields of Afghanistan and elsewhere since September 11, 2001, and that it
intended the
DTA to apply to those habeas corpus petitions pending at the time
of the it’s enactment. But because
Congress failed to write such intent specifically into every provision of the
DTA, the literal application of some parts of this Act negates this intent. Thus, even if the State could argue that the
1867 Congress did not intend the Antipeonage Act to apply to child support
enforcement,
Hamdan mandates that the
literal language of the Antipeonage Act be applied.
It is
up to Congress to change the language of the Antipeonage Act if it wants a
different result. Congress is free to
choose not to.
For
the reasons stated herein, the decision by the
superior court should be
reversed: the
Order on Contempt, Sub No. 199, CP 1-5 imposing employment and
employment seeking requirements be declared null and void by
42 U.S.C. §1994,
the Antipeonage Act, and the sanctions imposed by the
Order on Civil Motion, CP
126-128 be vacated or reversed.
Respectfully submitted this 5th day of July, 2006,
____________________________________
Roger W. Knight, pro se
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