COMMONWEALTH OF KENTUCKY
CALLOWAY CIRCUIT COURT
04-CR-00153
COMMONWEALTH PLAINTIFF
VS
STEVE XXXXXXXXX DEFENDANT
MOTION TO DISMISS FOR LACK OF JURISDICTION
Defendant, Steve Xxxxxxxxx, and moves the court to enter an order dismissing the case for lack of jurisdiction and shows the court as follows:
This Motion is made pursuant to KRS 500.060, KRS 530.050, Sections 2 and 11 of the Constitution of Kentucky, and the Due Process Clause of the 14th Amendment to the United States.
The Defendant submits that there is no statutory basis for jurisdiction in this matter and that the prosecution of the Defendant violates the due process protections of the state and federal constitutions.
In support of this Motion, the Defendant states as follows:
I. Facts
Steve Xxxxxxxxx has been indicted for flagrant non-support. The Commonwealth alleges that from April 30, 2001 through May, 2004, in Calloway County, Kentucky, Mr. Xxxxxxxxx failed to pay support for his minor children. This indictment was issued despite the following:
· Mr. Xxxxxxxxx is not a Kentucky resident, and was not a Kentucky resident during the times specified in the indictment, or at any other time while the two dependent children have been living. He briefly lived in Kentucky as a young man, but he moved out of Kentucky years before the children were born. He is a Tennessee resident and has been domiciled there for years. The Commonwealth is aware of this because his indictment lists Tennessee as his address. A photocopy of his license is attached to this motion. A man can have but one domicile at a time, and for all times relevant to the state’s charge, his domicile was Tennessee.
· The children are not Kentucky residents and never have been.
· The mother of the children is not a Kentucky resident and never has been.
· The child support order was issued in California, not Kentucky (see order, attached to this motion).
II. There is no statutory authority for the Commonwealth’s exercise of criminal jurisdiction over the Defendant.
KRS 500.060 limits the scope of Kentucky’s territorial jurisdiction over offenses with an interstate character. Subsection (1)(e) deals with offenses established by an omission to perform a legal duty. Specifically, subsection (1)(e) provides that a person may be convicted under the Kentucky Penal Code where “[t]he offense consists of the omission to perform a legal duty imposed by the law of the state regardless of where that person is when the omission occurs.
The Commentary elaborates:
Subsection (e) provides for the prosecution in this state of an offense that is based upon the performance of a legal duty. Without regard to the location of the defendant at the time of nonperformance, the offense is committed in Kentucky if the legal duty is imposed by Kentucky law. The most frequent application of this subsection may involve the failure of a parent to support his children. The offense (nonsupport) is punishable by this state, even though committed by an omission outside the state, since the conduct involved affects an interest of this state. (Emphasis added.)
KRS 530.050 defines the offenses of Nonsupport and Flagrant Nonsupport. Flagrant Nonsupport is defined in subsection (2). Specifically, the statute states in pertinent part:
A person is guilty of flagrant nonsupport when he persistently fails to provide support, which he can reasonably provide and which he knows he has a duty to provide by virtue of a court or administrative order to a minor… (emphasis added).
The existence of a valid court or administrative order establishing a duty to pay child support is a necessary element of the offense of Flagrant Nonsupport. The existence of the order creates the legal duty, and the omission to perform that duty creates the offense.
The Court order that creates the Defendant’s duty to pay child support was entered by the County of San Diego, California. Under the Uniform Interstate Family Support Act (UIFSA), KRS 407.5101 et seq., continuing exclusive jurisdiction over that order is vested in the courts in the state of California. A California court issued the order consistent with its laws, and the Defendant resided in California at the time and thereafter.
Thus, the duty to pay support pursuant to a court order, for purposes of Flagrant Nonsupport, was imposed by the order of a California court over which it has continuing exclusive jurisdiction pursuant to UIFSA and federal law. Se 28 U.S.C. Sect. 1738B. Under KRS 500.060, an omission to perform a duty imposed by California law cannot create criminal jurisdiction in the Kentucky courts. The question of criminal jurisdiction turns solely on the issue of whether the duty of support was established under Kentucky law. See Robert G. Lawson & William H. Fortune, Kentucky Criminal Law Sect. 1-4(c)(4), at 27 (1998)(“In [non-support] cases, it matters not that the offender remained outside the state during the entire period of non-support or that the unsupported minor resided in another state during the period. Jurisdiction over such cases is dependent, of course, upon the existence of a support duty under Kentucky law.”)(Emphasis added.) The location or residence of the obligor and obligee are not part of the inquiry under the statute governing territorial applicability.
No statute, ordinance, or regulatory provision under the law of Kentucky required the Defendant to pay child support in accordance with the terms of Sand Diego County order.
Moreover, there is absolutely no Kentucky connection to this case. The children, the mother of the children, and the defendant are all domiciles of another state, and were never domiciles of this state during the period the child support was in effect.
Therefore, there is no statutory basis for the Commonwealth’s exercise of criminal jurisdiction over the Defendant. The prosecution of the Defendant for Flagrant Nonsupport in Kentucky is an arbitrary exercise of government power prohibited by Section 2 of the Constitution of Kentucky.
III. The Commonwealth’s exercise of jurisdiction over the Defendant violates the Due Process Clause of the 14th Amendment.
The Due Process Clause of the 14th Amendment protects the interest of citizens in their life, liberty and property. The Due Process Clause is a source of constitutional limitations governing whether an individual who is a resident and domiciliary of one state can be hailed into the courts of another state to answer for his conduct. In civil matters, this is the concept of “personal jurisdiction.”
With respect to criminal law, the concept of personal jurisdiction is not well developed. However, it is axiomatic that there are due process limitations on a state’s exercise of criminal jurisdiction over a nonresident defendant. If the property interests of a nonresident defendant in a civil case trigger due process protections with respect to a forum state’s exercise of personal jurisdiction over him, then clearly the liberty interest of a criminal defendant must trigger the same or similar due process protections when the government of another state endeavors to subject him to imprisonment pursuant to its criminal laws.
In Kulko v. Superior Court, 436 U.S. 84 (1978), the United States Supreme Court addressed the issue of the due process limits on the exercise of personal jurisdiction over a nonresident in the context of child support enforcement. In Kulko, at 94, the Court held that a nonresident defendant must engage in some volitional act by which he purposefully conducts activities in the forum state before the forum state can exercise personal jurisdiction over him. Further, the court held that the unilateral activity of other persons could not be used to meet this requirement:
The unilateral activity of those who claim some relationship with the nonresident defendant cannot satisfy the requirement of contact with the forum state…[I]t is essential in each case that there be some act by which the defendant purposefully avails [him]self of the privilege of conducting activities with the forum state…(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958).
Furthermore, the Court refused to be swayed by the argument that California courts had an interest in seeing that children residing in the state were being properly supported. Rather, the Court found that this interest was already adequately served by the
Revised Uniform Reciprocal Support Act (the predecessor of UIFSA), which had been adopted by both California and New York. As the Court stated: “Thus, not only may plaintiff-appellee here vindicate her claimed right to additional child support from her former husband in a New York court, but also the Uniform Act will facilitate both her prosecution of a claim for additional support and collection of any support payments found to be owed by appellant.” Id. at 100.
The proper course of action for the Commonwealth in this matter is to petition the state of Alabama for enforcement of a support order. This in fact has been done. In discovery produced by the Commonwealth in this matter, the “order” giving rise to the alleged duty to support under Kentucky law is an Alabama order. If the Defendant is failing to live up to its terms, proper remedy for the alleged victim is to seek enforcement in the court that is already enforcing the order.
WHEREFORE, Defendant respectfully requests that this Honorable Court enter an an Order dismissing the Indictment in the above captioned matter
Respectfully submitted,
______
B. Scott West
Asst. Public Advocate
503 N. 16th St..
Murray, KY 42071
(270) 753-4633
NOTICE OF HEARING
This case will be set to get a hearing date on August 23, 2004.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing motion was served via hand delivery on this ______day of August, 2004, to Hon. C. Gale Cook.
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