Law News

Court: Deadbeat Dad Is No Slave to the System

Jailed father made use of 13th Amendment claim

By Paul Elias
The Recorder
Friday, March 12, 1999
Law News

Getting thrown in jail for being a deadbeat dad does not amount to slavery, nor is the incarceration akin to serving time in debtors' prison, the Ninth Circuit U.S. Court of Appeals ruled Thursday.

The novel appeal that prompted the ruling was brought by an Alaska man sentenced to six months in jail and ordered to pay his children and ex-wife $56,916.17 in support that he had failed to provide over nine years. The jail sentence, argued the dad, was akin to unconstitutionally forcing him to either take a job he didn't want or go to jail.

But Judge Alex Kozinski, writing for a unanimous panel, held that "not all forced employment is constitutionally prohibited."

Kozinski pointed out that sailors who desert ship, soldiers drafted who refused to serve and others have been imprisoned, and had their sentences upheld, for refusing to work.

"We conclude that child-support awards fall within that narrow class of obligation that may be enforced by means of imprisonment without violating the constitutional prohibition against slavery," Kozinski wrote in U.S. v. Ballek, 99 C.D.O.S. 1805, affirming Alaska District Court Judge John Sedwick.

To conclude otherwise, Kozinski wrote, "would, effectively, put children on the same footing as unsecured creditors."

After an acrimonious divorce in 1988, building contractor Jeffrey Ballek was ordered to pay his ex-wife and four children $500 a month in support.

During the next nine years, Ballek made but one voluntary payment. According to the court, he "abandoned" lucrative contracting work and "wandered from one low-paying job to another." In 1997 he was charged in federal court with violating the Child Support Recovery Act, which makes it illegal to willfully skip child support payments.

Kozinski, Ninth Circuit Senior Judge J. Clifford Wallace and Third Circuit Senior Judge Ruggero Aldisert, sitting by designation, concluded that to purposely avoid gainful employment is the same as willfully failing to pay child support.

Ballek raised the claim based on the Thirteenth Amendment prohibition against slavery for the first time on appeal. Nonetheless, Kozinski said in a footnote that the court could take up the issue. "Because this is purely a legal question, we exercise our discretion to overlook Ballek's waiver of the issue," he wrote.

Ballek is the second case in less than three weeks wherein Kozinski has slammed deadbeat dads.

On Feb. 22, Kozinski issued a blistering dissent of the circuit's decision not to reconsider en banc a ruling that overturned a deadbeat dad's conviction. The majority in that case -- Judges John Noonan Jr. and Stephen Reinhardt -- had overturned the conviction, in part, because "in choosing among the thousands of persons delinquent in honoring their child support obligations, the government need not show itself an unfeeling monster, by selecting as its target an ineffectual worker, plagued by accidents and bad luck . . . "

That opinion got Kozinski's dander up. That reasoning, Kozinski replied in his dissent of the en banc refusal, was a "highly inappropriate and factually unfounded sermon" that "has no legitimate place in an opinion of this court."

In that dissent, Kozinski lamented that problems lie not with the overzealous federal prosecutions of deadbeat dads, as the Noonan panel appeared to hold, but rather that not enough CSRA prosecutions appeared to be occurring.

"Federal judges have not been shy in expressing their displeasure at being handed such low-grade work," Kozinski wrote in his dissent of the denial of the en banc in U.S. v. Mussari, 97-10331.

"Those who support the statute deserve our praise and encouragement," Kozinski concluded, "deadbeats like Mussari deserve a kick in the pants, not a verbal bouquet."