*1 consid- appropriate These are all gation.” Austin, see,
erations, e.g., supra, analysis based and the Board’s Furthermore,
firmly the record.
impose more sanction would be serious involving compara- with cases
inconsistent agree therefore
ble conduct. We is an that an informal admonition
Board Nwadike and sanction Ms.
appropriate im- request that
reject Bar Counsel’s we suspension. thirty-day For
pose a reasons, hereby adopt
foregoing Bar recommendation and direct
Board’s informal admonition to
Counsel to issue an
the respondent.
So Ordered. WARNER, Appellant.
In David re
No. 04-FM-175. Appeals.
District of Columbia Court of
Argued Oct. 2005. Aug.
Decided
Kyle McGonigal, A. appointed by the court, for appellant. Sheppard, Attorney
Janice Y. Assistant General, Spagnoletti, with whom Robert J. Attorney General for District of Co- lumbia, Schwab, Edward Deputy Attorney General, Groce, Rosalyn Calbert Chief, Section, Juvenile and Criminal were on appellee. the brief for REID, Before RUIZ Associate Judges, SCHWELB, Judge.* Senior REID, Judge: Associate trial, Following a bench appellant David guilty single Warner was found count criminal for failure to a court (2001).1 § violation of D.C.Code 46-225.02 He that the presumption contends of will- § fulness created D.C.Code 46-225.02 violates the Due Process Clause Fifth Amendment the Constitution of the United He States. also maintains that there beyond was insufficient evidence reasonable guilty doubt find him contempt. hold We § 46-225.02 does not unconstitu- tionally shift proving the burden of willful- * Judge Judge Schwelb was an Associate 1. days jail, He was to 180 sentenced argument. court at the time of His status pay $50.00 ordered to into the Victims of changed Judge Senior June Compensation Crime fund. graduate and worked high he is a school to the defen- ness from 1980 to 1989 at the District Colum- dant; nor did the trial shift of Recreation. Department bia While in this case. We further hold regularly taken 46-225.02, money was employed, bears was *3 under defendant payments from his for child production, presenta- checks the burden however, 1990, he In was inability to at that time. showing an tion evidence of Recre- that, Department usual, government terminated from pay, is, work. began and to look for other ation persuasion, burden of that bears the that he “did back explained willfulness as an ele- Mr. Warner proving jobs.” He has been denied and forth contempt. [] ment of criminal Because the check,” jobs background to prov- some “due [his] sustained its burden of government of a crime.3 statute, since his conviction willfulness under the and which revealed ing (a showing pei'mit to introduced exhibits “book” the evidence was sufficient He beyond jobs, denying to em- applications trial court find reasonable for letter forms; voluntarily im- con- doubt that Mr. Warner tax and a letter ployment and ability to with the court week paired cerning job his he commenced the thus was testimony) child his to demonstrate his before 46-225.02, guilty contempt under He stated that he efforts find work. court. judgment apartment affirm the trial currently employed was for earning approx- horn’ complex, $7.50 SUMMARY FACTUAL In of work a week. imately sixteen hours addition, Warner indicated that he government presented Mr. mother. showing and cares for his blind that Mr. Warner was ordered lives with but, bi-weekly in child $118.60 cross-examination, the govern- In its by prior as established seven civil con- Mr. sought to ment establish Warner tеmpt findings, he the re- failed make voluntarily pay by his impaired quired payments between 1990 and 2002.2 underemploy- voluntary unemployment or addition, objection, In the trial without response government’s to the ment. into child court admitted evidence court questions, acknowledged Mr. (1) evidencing: support payment records his he from incarceration was released $38,010.22 pay- arrearage child January finding on a civil (2) Warner; two by payments ments Mr. support. for He could failure to 12, which he made on December 2003 to- exactly or how he was not recall when $200; taling payment made the incarceration. He employed prior to 15, April him on 2002 for $64.06. 2002, asked, prior you did work “[i]n incarcerat- you [were] when To evidence and November government’s rebut initially contempt,” responded, court-or- ed for his make the show confronted remember.” When support payments, “[h]ard Mr. Warner dered showing an unidentified document his He that with testifiеd in own behalf. stated cross-examination, he he denied that 3. On government asked trial court take 2. The conviction, but admitted permanent support had a criminal judicial or- notice of 1985, der, up marijuana” in findings "was civil he locked also the seven con- 13, 29, 1992, up.” 1990, stating get that he "didn't locked before tempt October dated June 7, 1996, 1, 13, 1994, a 1985 conviction February July Apparently there is October 19, record, eventually ac- which Mr. Warner and November October objection. knowledged. counsel voiced no 2002. Defense So, that he employment. “worked June 2002 Febru- tion for I going how am Care, Inc.,” ary Day 2008 at Mr. Warner him today believe here when will do he stated that “[did he remember.” not] whatever it takes to do whatever he wants Nevertheless, filed an income tax re- to do?” Based on findings these and the (he turn for determination, maintained his “aunt credibility the court con- [him]”), [his] filed taxes for and his tax cluded that: “The has estab- intercepted rеfund “was support.” for child beyond lished and willfulness Although Mr. Warner had indicated on an reasonable doubt and therefore I find him employment application that he guilty was em- contempt.” respect of criminal With ployed August from March 2003 to 2003 to finding of “willfulness” *4 Montgomery Government, County stated: at trial he only claimed that he worked Willfulness, statute, simply under the days “two Planning.” Park[s] and He that of the child or- Montgomery asserted that he listed Coun- pay. dered and failure to inBut this ty government application “just on his you have more. You [case] have seven job” get “everybody and that ... [does] prior in contempts enforcing ... child things application.” false on the support but pay. he still continued not to A long history paying of sup- not child Finally, Mr. Warner was about asked his $38,000. port tune of And he cross-examination, physical on ailments in- view, clearly, the Court’s from the cluding surgically his asthma and a re- records, is able to work. cap. explained moved knee Mr. Warner that his “prevent[ed][him] knee ANALYSIS
standing a of long period time” and “some- him precluded times” from working. He Mr. that Warner contends his “convic- not did have medical documentation show- tion contempt] pursuant criminal [of ing prevented that his asthma him from § D.C.Code 46-225.02 is improper and working, but he declared that he uses “Al- pro- should be reversed itas violates due buterol” to manage asthma. statutory argues pre- cess.” He that the 46-225.02(d) § trial sumption court observed that Mr. forth in War- set un- ner civil prior contempt constitutionally carry “[has] seven find- “requires [him] ings failing ... support.” persuasion child on an burden element judge The trial found Mr. effectively gov- that charge reduces “$38,000 support,” proof’ owed worth ernment’s ultimate burden below Moreover, that is “able work.” gov- the reasonable doubt standard. The argues § court that determined Mr. Warner ernment 46- D.C.Code (sic) 225.02(d) period “worked for a process times “does not violate due be- сonsistently 80’s and throughout impermissibly the 90’s cause the statute does year and the shift decade inconsis- the burden of to [Mr. Warner].” Rather, tently.” The court added [Mr. that “while once the establishes offense, prior long ago may Warner’s] conviction so the elements of the the statute employer from prevented hiring obligor presump- one allows the to rebut the [him], by there’s no record to indicate that tion of presenting willfulness thing that is the that holds him back. He failure to was the result Furthermore, incarceration, hospitalization disability, has work.” the court dis- Therefore, testimony, saying: credited Mr. Warner’s or other circumstance. problem lying applica- “merely places “he has no statute on [his] may re- presumption be This present an affirmative defense violation. obligor to incarcerated, willfulness,” obligor if the was presumption butted “constitutionally permissible.” during peri- disabled hospitalized, or These circumstances nonsupport. od 46-225.02(a)4 states, per- list an exhaustive do not constitute Mayor any party part, tinent that: “The rebut may be used to circumstances legal has a claim to who of willfulness. presumption criminal action for may initiate a by filing a mo- failure to in the of review Our standard in the civil action in which the child tion us has been articulated of case before type Sec- support order established....” appeal finding of a previously. “On 225.02(b)(1) specifies range tion 46— view must contempt, [this Court] ordering re- actions —from incarceration to light most favorable the evidence programs a trial habilitation —that Rogers judgment.” sustaining “[u]pon finding the court take (cit (D.C.2004) Johnson, obey obligor willfully has failed to (D.C.1997) Vance, In re ing support.” of child Mr. any lawful order *5 omitted)). (other review citations We constitutionality of challenges the constitutionality of a stat 46-225.02(d) challenge to the provides: § v. District ute de novo. See Beeton section, рurposes of this failure to For of (D.C.2001) Columbia, 918, 921 779 A.2d ordered, con- pay support, child shall Baptist Con- v. National (quoting of a willful Jemison stitute sentence, suspension and com- provides § revoke the 46-225.02 in full: obligor mit the for the remainder (a) Mayor any party legal The or who has original period sentence. A of commitment support may any initiate a claim child committing prevent the court from shall not pay action for failure criminal subsequent com- obligor failure to for support by filing a the civil motion in support. ply of child action in which the child order was (1)(B) (3) paragraph purposes of For the established. subsection, this the term "rehabilitative (b) finding by (l)Upon a court that an preparation program” work shall include willfully obey any obligor failed to law- has programs, alcohol and skill non-residential support, may: ful order of child court programs, edu- abuse and and substance (A) obligor jail for term Commit programs. cational days; not to exceed 180 (c) obligor court shall order the The (B) obligor participate Order the petitioner’s attorney as well as the fees program, deter- rehabilitative if the court costs, good can dem- cause be court unless participation would assist the mines against this result. on the record onstrated complying obligor in with the order of child section, (d) purposes of failure to For program support and access such ordered, consti- shall child available; a willful viola- prima facie evidence of tute (C) obligor accept appropriate Order the presumption may be rebutted if This tion. participate job incarcerated, employment or hospitalized, available obligor activities; placement nonsup- and during period search or disabled (D) obligor probation under consti- Place the do not port. These circumstances may the court determine circumstances that such conditions as list of tute an exhaustive provisions may presumption in accordance used to rebut and be procedure law. willfulness. obligor’s (e) deny any request for may that an court shall not court direct The The unless the may upon pursuant to this section served certain relief commitment be constituting the days. and circumstances specified days parts facts forth are set for its determination suspend part a sentence and reasons all or decision. in a written memorandum the term of the may, at time within vention, USA, Inc., (D.C. 46-225.02, A.2d a statute which took effect on 1998) (internal 6, 2002, March Council of quotations other cita which the omitted)). District tions of Columbia enacted in an collecting rate improve its “effortn statutes, When interpret we support payments.” Id. at 936. Ac- look plain ordinary first mean cording legislative history to the ing, and read light them the statute statute, designed punish it “is and deter aas whole. See James Son Parreco & the willful par- non-[ ]custodial failure Comm’n, Rental Hous. A.2d ents to an order to (D.C.1989). “The primary general support.” OF THE COUNCIL DIS- rule of statutory construction is that COLUMBIA, TRICT OF COMMITTEE intent of the lawmaker is be found JUDICIARY, ON THE REPORT ON language he [or she] has used.” 14-26, BILL THE “CHILD SUPPORT Stores, Peoples Drug Inc. v. District of ENFORCEMENT AMENDMENT ACT Columbia, (D.C.1983) 2001,” 27, 2001, July OF at 1. (citations omitted). must ] “We be mind [ regard, “complements existing the statute our interpretation ful that at vari by adding civil remedies a criminal con- policy legislation ance with the as a tempt sanction those who choose not to States, Jeffrey whole....” v. United parental meet their legal obligations.” Id. 1189, 1193(D.C.2005). truly The statute is “the aimed at recalci-
In construing
language
of the stat-
obligor.”
trant
Id. at 3.
us,
ute before
we note that the Council
Rogers
We determined in
that the gov-
*6
rely
existing contempt
chose not
to
on
presented
prima
“a
facie
ernment
case
authority,
§
such as
11-944
that
conduct was
[appellant’s]
‘willful’un-
(2001),5 but rather
a
con-
inserted
new
46-225.02(b)(l)
§§
der
and 46-
[D.C.Code]
tempt provision directly in the child sup- 225.02(d)”
it
because
“demonstrated that
port
government
enforcement
statute.
obligated
pay
was
appellant]
[the
to
child
has the
a
proving
burden of
willful failure
support to
[the mother
his three chil-
on the part
obligor
pay
to
child dren],
obligations
that he
aware of
was
his
support in
a
accordance with
lawful court
order,
the support
under
and that he had
46-225.02(b)(l).
§
order. D.C.Code
But
repeatedly
required
to make
failed
the
legislature
pre-
the District’s
created a
Thus,
payments.”
at
in
Id.
937.
accor-
sumption specifying
government’s
that the
with
plain meaning principle
dance
the
pay
“failure
child
as
statutory
construction,
and consistent
ordered, shall constitute
evi-
prima facie
policy
legislation
“with the
the
dence of a willful
of the court
violation”
whole,” Jeffrey, supra, 878
at
A.2d
46-225.02(d).
§
order. D.C.Code
Howev-
following
identified the
elements of
er,
obligor
presumption
the
may rebut that
§
46-225.02 criminal
action for
by introducing
special circum-
evidence of
(1)
child
the
support:
failure
exis-
“incarceration], hospital-
stances such as
obligating
tence of court order
the defen-
iz[ation],
disability].”
or
Id.
(2)
support;
dant to
the defen-
In Rogers, supra,
presented
obligation
we were
dant’s
our first opportunity
interpret
in accordance with the court
States,
(D.C. 1982);
Gorfkle,
See
Fields v. United
[T]he inability to his or her presumed ex- fense to demonstrate disprove defendant to prove ability an government It must pay, of crime. istence of element a fact, voluntary impairment of the a or a creates, pay of merely for the trier due, ability with the court of willfulness permissible inference voluntary unemployment a showing example, on a of notice and based reading This underemployment. or appear failure to inference which —an Eighth Cir may, accept.... statute consistent trier but need not meaning interpretation of production cuit’s It is true that the burden with, Sup- federal Child of, “willful” as used rebuttal evi- going or forward 1992, 225.02(d) port Recovery Act of U.S.C. does shift burden 228, § discussed United States Harr proof on willfulness to the defendant. ison, (8 Cir.1999). 188 F.3d th 46-225.02(b)(l) There Rather, places § the bur- the court said: govern- den to show willfulness on the imposes ment,
[The statute] criminal penal- permits defendant assert persons ties on who willfully pay fail to Thus, an affirmative defense. consistent support. child To establish a violation approach in Rogers Ray- with our statute], government [the must mond, swpra, interpretation our under pay past-due show a willful failure to a 46-225.02, the government support obligation.... child Willfulness benefits and is entitled to a presump- “requires proof of an intentional viola- tion of under the willfulness statute. The tion legal duty....” of known government’s case consist willfully [the For to have defendant] proof of a to pay court order child pay failed to support obligation, payments and failure to make ability must have had the to pay. accordance with the order. The defendant (citations omitted).6 at Id. 986-87 But see or, then has the burden of production as Mattice, 219, United States v. 186 F.3d in Raymond, “going we said forward (2d Cir.1999) (concerning the same federal evidence,” with[ ] rebuttal Support 1992; “in Recovery Child Act of or an inability affirmative defense of prove order to that a defendant violated pay due to such circumstances as incarcer- legal duty” “known ation, disability. or If hospitalization, only need show presents countervailing defendant “a ex- violating defendant knew he state planation,” Rogers, supra, A.2d at court or imposing administrative order usual, government, as bears the bur- support obligation”). persuasion den of and must show
Contrary to
argu
ability
Mr. Warner’s
has
defendant
volun-
ment,
presumption
§in
tary
46-
unemployment
underemployment.7
contained
implicit recognition
6. The
proof
legislative
Council's
history
an intent to
manifests
shift
pay,
in addition to
proof concerning
the burden of
the affirma-
illegality,
government’s
part
bur
tive defense to the defendant. Under that
distinguishes
den to show willfulness
our stat
interpretation, the statute would be construed
ute from the federal firearms statute con
creating
a defense of
inde-
States, — U.S. —,
strued in Dixon v. United
pendent
government’s
prov-
(cita
willfulness,
S.Ct.
ments, prior that “while his conviction France, ch. 7 Le Anatole (1894). prevented long ago [in so 1985] [him], hiring there’s no employer one I. thing
record indicate that that is and, for the judgment in I concur has As him back. He work.” holds I of the court. opinion in part, most ascertained, the evidence the trial court however, cases because separately, write incarcerat- revealed that Mr. liberty implicate this one like only contempt finding ed on civil for one that a significant risk present citizen and January 2002 to period of November imprison- face parent non-custodial will Moreover, the evidence did not 2008. poverty. The statute ment on account jail clearly spent any time in show that he affirmance of court bases its on which the And, marijuana for his 1985 offense. knowing non- provides that judgment found, his asthma trial court neither nor support is payment prevented working. his knee him from willfulness, it does Significantly, the trial court discredited mandatory it is presumption; create testimony. Consequently, Mr. Warner’s far, If carried too therefore constitutional. contrary Mr. Warner’s claim however, can on such a statute reliance insufficient to his evidence was impover- in the incarceration of result beyond a rea- contempt conviction parent on account non-custodial ished doubt, trial sonable we conclude that the proof of poverty, his or her without correctly found that the support order. a child intent violate proof. As the trial sustained its burden of legally and constitu- consequence Such a government has es- court declared: “The unaсceptable. tionally be- tablished and willfulness contempt proceedings, “[s]eri- As civil I yond a and therefore reasonable doubt stake, liberty [are] ous interests criminal con- guilty Warner] find [Mr. ... in child outcome totality of the circum- tempt.” Under practical ef- proceedings should not be case, presented in this stances Mr. Warner Langley for debt.” imprisonment fect truly obligor” “the recalcitrant (D.C.1993).8 Kornegay, 620 designed 46-225.02 was man, or even Warner were a rich If David infirmity process reach. There is no due class, it I think a member of the middle in the under which he was either statute up wound he would have unlikely that convicted, proof supporting or in the support. of child non-payment for prison conviction. light judge’s trial credi- Although, in cannot fault the court’s bility findings, I reasons, foregoing Accordingly, conviction, I think of Warner’s affirmance trial court. judgment we affirm incarcera- emphasize appropriate can- non-payment of child tion for ordered. So for crimi- implicated prosecutions conditionally Langley, im- interests the father was just compelling. liberty contempt are contempt, nal prisoned for civil but the *11 automatic, (D.C.1999). not mean, however, be that it a should be last This does not resort, may lawfully not be parent may non-custodial intention- imposed in the absence of ally ability there his reduce his child has been an intentional part refusal plead self-imposed poverty then his as parent non-custodial comply pay excuse. The not “is order the court. merely a earnings function of actual is but derived, broadly, to be earning more from
II.
market,
capacity in the
job
given
current
appeals
his conviction of
background
one’s educational
and work ex-
contempt.
Smith,
perience.”
928,
As the District of Co-
Smith
v.
A.2d
(citation
brief,
(D.C.1981)
lumbia acknowledges in its
omitted);
Lopez,
Because the contemnor’s disobedience by change lifestyles vated “willful,” must objectives. be he pursuit because must be of new career For “wrongful shown to have acted people, bringing state most children into the mind,” adjudicate may the con- world does limit life choices imposing temnor in contempt, long-term obligations. whether civil or crimi certain financial (and if) nal, if only parent contemnor has the A with minor children at home ability to support. quit order of cannot work and become a hobo or (D.C. Fore, Desai 825-26 back go fancy to school as the moves 1998); Ysla, Lopez v. parent 334-35 him. Nor a non-custodial my days 9. 1 recall a monthly case from on the trial financial statement revealed that his payment court in which a to be father claimed able to car was more twice what than he per a certain amount month in child said could afford to each month to and no more. Examination of his his own son.
245
out the
carrying
energetic
gent and
payments be-
stop making
support
Blum,
court,
v.
502
orders
post-
a
pursue
has decided to
cause he
Swift
(S.D.N.Y.1980),
1140, 1143
and
F.Supp.
A par-
degree macrobiotics.
doctoral
will not do.
comply
to
token effort
subject to an order for child
ent who is
Keefe,
v.
Enterprises, Inc.
Storm
Sound
modification of the
must seek a
(Iowa 1973).
560, 568
209 N.W.2d
lifestyle
making such
order before
at 44.
Id.
judge can
change.
family court
The
change
then determine whether such
particu
is
obligation
This affirmative
case,
prior obli-
parent’s
where,
is consistent with
as in this
importance
lar
protect
is to
gation
to
the children. Where
of the court’s order
purpose
of the most
“[0]ne
a child.
a modifica-
the interests of
parent
not seek such
does
(for
reason)
sensitive exercises
important and
tion,
whatever
but chooses
persons
police power
to]
[is
ensur[e]
avail-
work that is otherwise
to eschew
can
to take care of themselves
young
too
able,
for
subject
imprisonment
is
for material
parents
on both their
count
law and
pay,
failure to
both under state
Ballek,
at 875. Courts
support.”
170 F.3d
under the CSRA.
tender
unduly
to be
obligation
have no
Ballek,
871,
v.
170 F.3d
875
United States
par
vis-a-vis those non-custodial
hearted
(9th Cir.1999)
J.).
(Kozinski,
they
pay
refuse
what
ents who either
obligation
parent
of non-custodial
inability
pay when that
plead
can or
who
reasonably
all
can to
do
that he or she
v.
Glus
inability
self-imposed.
Cf.
sup
earn
with a child
enough to
Terminal,
231,
E.
359 U.S.
Brooklyn Dist.
materially
port order does not differ
760,
232,
770
79
3 L.Ed.2d
S.Ct.
any
responsibilities
citizen who
(“no
advantage of
own
may
man
take
injunction
judicial
subject to an
similar
Ackerman,
wrong”);
v.
Marboah
the applicable
command. We summarized
Glus).
(D.C.2005)
1052, 1053
(quoting
M.T.,
in D.D. v.
her County, judge Dist. No. Chelan relied The District and trial 46-225.02(d) (2001), (1953) (en 261 P.2d upon Wash.2d banc). Indeed, provides: he or she must be dili- Langley, adjudicated. he was so when previously been held civil 10. Warner has Cf. occasions, but the record on several ability to reveal his circumstances or does not section, purposes jury For failure to draw the conclusion.” That a man- ordered, datory presumption shall con- is rebuttable does not analysis, stitute evidence of a willful alter the mandatory pre- *13 presumption not, violation. This re- may sumption, “requires be rebuttable the incarcerated, if obligor jury butted the presumed was to find the element unless hospitalized, or during peri- persuades jury disabled the the defendant the that such of nonsupport. finding 2, od These circumstances is unwarranted.” at n. Id. 314 added). do not constitute an (emphasis exhaustive list 105 1965 S.Ct. While that “[mjandatory presumptions circumstances be used to rebut ... violate the presumption of willfulness. Due they Process Clause if relieve the State of the burden of on persuasion provision contends that this de- offense,” element of the a “permissive in- prives liberty process him of without due ference does not relieve State law, by shifting to the defendant persuasion burden because it still re- prosecution crimi- quires jury the State to convince the that nal contempt. The opinion suggested in- conclusion should be rejects contention, I agree predicate ferred based facts.” Id. disposition. liberty our A concern for the 314, Francis, at In S.Ct. stake, however, at interests me to leads Court concluded the challenged jury add a few observations. a mandatory instruсtion created presump- First, in avoid serious constitu- tion, and it that was therefore unconstitu- questions, tional we should construe the tional. statute, terms, according creating to its permissive presumption inference Parrilla, Virgin Islands v. 7 F.3d mandatory presumption. rather than a (3d 1097, Cir.1993), the court consid- 46-225.02(d) Section states that failure to ered a statute that that “infliction provided “prima is evidence facie injury presumptive is evidence of the of a willful violation.” In the next sen- mayhem].” intent “plain commit On [to however, tence, it refers to a presumption review, error” the court held the statute prima rather than to a case—the facie unconstitutional because there was no sub- change terminology unexplained is —and certainty significant stantial of a connec- specify does not presump- whether (the predicate injury) tion between the fact mandatory tion or permissive. is For the (intent presumed and the fаct to commit below, reasons described this issue is of mayhem). determined, The court first significance, constitutional and thus crit- based language on the definitive importance. ical injury presumptive statute —infliction of Franklin, 307,
In Francis v.
U.S.
evidence
intent —that the presumption
314,
1965,
(1985),
mandatory.
105 S.Ct.
applies
equal
force here.
as we
sumption.
Raymond
United
Quoting
noted,
provides
fail
statute
States,
(D.C.1979),
ure
shall constitute
“failure to
stated
a defendant’s
rebut
“primo
evidence”
willfulness.
facie
could result
an ad-
case
facie
hardly
language
mandatory
This
Id. (empha-
decision to him or her.”
verse
though
“pre
presumption, even
the word
omitted).
added;
If
pri-
sis
brackets
sumption” is used
sentence
in the
language
ma
statute
Moreover, if
follows.
we were to construe
mandatory presumption,
had created a
*14
46-225.02(d),
itali
notwithstanding the
then the
word would have
appropriate
creating
language,
mandatory
cized
as
By
“would,”
“could.”
holding
been
not
have
vice
presumption, would
the same
permis-
is
that
in the statute
inference
as
statute held invalid in
Parrilla.
sive,
constitutionality.
assure
many
are doubtless
There
instances
(failure
predicate
pay
which the
fact
to
Because
not
the court does
construe the
support)
closely
child
court-ordered
is
con
mandatory
as creating
presump
statute
(willfulness).
presumed
to
fact
nected
tion, I
no
difficulty
discern
constitutional
But there are circumstances other than
inability
holding
pay
our
that
to
is an
with
may
willfulness that
often
contribute to
juris
affirmative
Courts in other
defense.
pay,
failure to
and we cannot be substan
ability
that
pay
dictions have also held
to
certain,
alone,
tially
on non-payment
based
support
is not an element
that
very
the failure was willful. At the
contempt,
contemnor
and that
must
least, if we were to construe the statute as
an
inability
pay
assert
to
as
affirmative
mandatory
creating
presumption,
there
See, e.g.,
defense.
ex rel Mikkelsen
State
question
would be a serious
as to its con
(1993)
Hill,
452,
P.2d 402
v.
315 Or.
847
stitutionality.
statute
inter
“[A]
should be
(concluding
аn
that
statute
creates
preted,
fairly
if
possible,
way
such a
as
inability
pay
affirmative
to
defense
does
to
it from not
free
insubstantial constitu
unconstitutionally
not
shift the burden of
Overholser,
Lynch
tional
v.
doubts.”
369
Wallace,
1063,
705, 711,
persuasion);11 State v.
136 N.H.
U.S.
82 S.Ct.
IV. creditor, paid wrong she especially (but not if only) that creditor is armed light In potential of the of prosecutions a court order. such implicate important as this one to liberty interests, I apрropriate think it I opinion At least as understand concurring opinion by conclude stating this court, nothing we have decided in this my understanding of what has not been regarding priority obligations. case We decided this case. likewise not ruled a non- whether
Many if parents not most parent non-custodial custodial con- guilty comply who have tempt failed with their child if or comply she fails to awith support obligations likely are solely be non- hunger avoid affluent, they may often have other homelessness. I return to the words of debts well. Some these debts began Anatole France with which I however, Mayo, contumaciously disobeys, the court also stated: refuses to Contempt very inapplicable by, nature is abide order. powerless one who is Hunt, (quoting Spabile Id. Vt. against court order. It be would utilized (1976)). who, only person being comply, able to I that issues express hope opinion, open, such as those discussed
that remain
above, mil in reasonable be resolved way which accommodates both
humane liberty and the
child’s need progressive In this parent.
interest nation, cannot
capital a democratic system a citizen
tolerate condemns poverty on account of imprisonment de than fault. There can be no
rather for citizens prisons debtors’
facto
District of Columbia. Petitioner, COLUMBIA,
DISTRICT OF *16 OF COLUMBIA PUBLIC
DISTRICT COMMISSION,
SERVICE
Respondent, Washington,
Verizon DC
Inc., Intervenor. 04-AA-1177.
No. Appeals.
District of Columbia Court
Argued April 2005. Aug.
Decided