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Defendants charged under a federal law criminalizing the failure to pay child support cannot collaterally attack the jurisdiction of the state court that issued the underlying support order, an appeals court has ruled. The 2nd U.S. Circuit Court of Appeals reinstated a prosecution under the Deadbeat Parents Punishment Act after finding that a federal judge could not hear a challenge to the subject matter jurisdiction of a New York Family Court hearing examiner in United States v. Kerley, 04-4537-cr. Clifford Kerley was charged with one count of violating the Deadbeat Parents Punishment Act, 18 U.S.C. �228, for owing more than $100,000 in child support payments running back to the early 1990s. He moved in 2003 to dismiss the case for a number of reasons, including that the hearing examiner lacked subject matter jurisdiction to enter the order of support. Southern District of New York Judge Barbara Jones agreed and dismissed the charge in 2004. The government’s appeal argued that the act does not permit collateral challenges to state court orders of support in federal court. And even if Kerley could make a collateral challenge, the government argued, the hearing officer in this case still had subject matter jurisdiction. 2nd Circuit Judge Joseph McLaughlin said that every circuit to consider the matter has recognized that federal courts are not to allow collateral challenges into the substantive merits of the underlying support order, and the 2nd Circuit has stated that the Deadbeat Parents Punishment Act assumes the validity of state court judgments and the “family policies” that those judgments embody. But “while the case law is clear with respect to merits-based collateral challenges in DPPA prosecutions,” he said, there are no reported cases involving collateral challenges based on subject matter jurisdiction. The act makes it a felony for any person who “willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000.” The phrase “support obligation,” means “any amount determined under a court order or an order of an administrative process pursuant to the law of a State or of an Indian tribe to be due from a person for the support and maintenance of a child and the parent with whom the child is living.” Jones had reasoned that the phrase “pursuant to the law of a State” requires “that the underlying order must be lawful in order to form the basis of a DPPA prosecution; otherwise the statutory language would be superfluous.” Judge McLaughlin said the circuit was reading “‘pursuant to the law of a State’ to modify only ‘administrative process,’ the phrase it immediately follows in the statute.” “As so interpreted, the DPPA distinguishes between administrative processes established by state law (such as the use of hearing examiners) and informal administrative processes (such as mediation or voluntary arbitration),” he said. “Accordingly, if Kerley’s child support obligations had arisen solely from a private mediation, perhaps he could mount a challenge under the definition of ‘support obligation.’ But the administrative process that created his support obligation was conducted ‘pursuant to the law of a State.’” This interpretation, McLaughlin said, “accords with other federal statutes regarding child support,” such as the Full Faith and Credit for Child Support Orders Act and the Uniform Interstate Family Support Act. “These closely related statutes make clear that when Congress intended to allow collateral challenges to support orders based on jurisdictional issues, it knew how to do so,” he said. McLaughlin said the lower court viewed the Deadbeat Parents Punishment Act “through the prism” of the “traditional rule” that courts have invalidated or refused to recognize judgments that are not entered without subject matter jurisdiction. “If confined to civil cases, we certainly agree with the district court’s formulation of the ‘traditional rule,’” he said. In criminal cases, he said, the rule often differs. For example, a defendant charged with criminal contempt cannot challenge the subject matter of the court that entered the violated order. “Likewise, a defendant charged with being a felon in possession of a firearm may not challenge collaterally a previous conviction on any grounds,” the judge wrote. Judges Chester Straub and Peter Hall joined in the opinion. Assistant U.S. Attorneys Harry Chernoff and Peter Neiman represented the government. Henry Mazurek of the Law Offices of Gerald Shargel represented Kerley.

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