User:JKJ Moscow/Dewald v. Clinton

Dewald v Clinton , is a 2009 case challenging passport denial for child support arrearage under 42 USC 652(k), enacted as part of the Personal Responsibility and Work Opportunity Act in 1996.

Facts of the Case

Jerome Dewald was living in Moscow, Russia, and applied for additional pages to his passport when it was seized by the US Embassy for child support arrearage in excess of $5,000. He claimed he had never heard of the original proceedings or of the certification of arrearage and filed an action in the Family Division of the Oakland County Circuit Court in Michigan for relief from judgment. The circuit court records reflected that the complaint listed his last known address in Ingham County, Michigan, that he had been served the summons by posting and publication in Oakland County, Michigan. Notices of his arrearage had been posted to an address in Ingham County, Michigan. According to Dewald, the Plaintiff had served him successfully in Moscow, Russia, at the same time in a different matter. Consequently, he argued, a fraud had been perpetrated on the Court and the default judgment should be set aside because it was void and null for lack of personal service.

When the circuit court delayed its decision beyond the expiration of his Russian visa which was affixed to his passport and in the custody of the US Embassy, Dewald filed in action in the US District Court for Eastern Michigan for injunctive and declaratory relief and for damages for violation of his civil rights and for having been made an undocumented alien without passport or visa. The circuit court ultimately granted Dewald relief from judgment and his passport was returned, albeit after his Russian visa had expired.

But the circuit court refused to acknowledge the nullity of its default judgment and set aside only the arrearage, custody, and parenting time parts of its default judgment. Dewald appealed to the state appeals court that the judgment was void for lack of personal jurisdiction and should be acknowledged as such. Meanwhile, although Dewald claimed to be paying regular child support directly to his ex-wife, the arrearage shown in the state disbursement unit accumulated at the rate ordered under the default judgment until his passport was again in danger of being seized and/or revoked. Dewald then amended and broadened his complaint.

Dewald contended that his fundamental right to freedom of movement had been unconstitutionally abridged by the passport denial/revocation provisions of 42 USC 652(k), citing Kent v Dulles, citing the Magna Carta and "The Three Human Rights in the Constitution of 1787." He contended that 42 USC 652(k) was unconstitutional on its face and as applied to him because collecting child support from noncustodial parents of children who are not on welfare and not in danger of falling into welfare is neither a compelling state interest nor sufficiently related to the intent of the legislation and that the law could be more narrowly tailored to meet the intent of the legislation. He distinguished the fundamental right of movement in his case from the right to international travel in Califano v Anzovarian, Weinstein v Albright and Eunique v Powell because he did not seek to exit or to enter the United States but rather to live peacefully, lawfully and permanently in his home in Russia.

Dewald argued that his procedural due process rights had been violated under state law because the Oakland County Circuit Court had in its records evidence of his residency in Moscow, Russia, but granted personal jurisdiction based on publication and posting in Oakland County without first holding a hearing and that the court rule permitting this was unconstitutional, citing Armstong v Manzo and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). He argued that 42 USC 652(k) violated his equal protection rights because it delegated procedural protection to the states but enforcement to the federal government and that this led to an inconsistent standard state to state, citing Eunique v Powell and Dept of Revenue v Nesbitt. He argued that denying him a passport while he was overseas denied 1) his undeniable right to an identity and 2) his First Amendment political right to represent himself as an American citizen in the eyes of a foreign government and 3) his right to diplomatic protection of the US government and with it 4) the attendant obligation of the President of the United States to protect US citizens abroad.

Dewald further contended that inclusion of noncustodial parents of children not on welfare or in danger of falling into welfare into the enforcement provisions of the Personal Responsibility and Work Opportunity Act of 1996 exceeded Congress' authority under the 21st Amendment because it was not sufficiently related to the intent of the spending legislation, citing Kansas v United States. He contended that 42 USC 652(k) operated as a Bill of Attainder because it operated as banishment and was unconstitutional because it inflicted cruel and unusual punishment, tantamount to terrorism, on individuals like him who resided in restrictive regimes abroad. Finally, he contended that the state and federal players had acted in concert to deny him his civil rights and to inflict negligent and intentional emotion distress in an attempt to force him to pay child support arrearage which, in reality, he did not owe by making him an undocumented alien in a foreign country.

Ruling

During the pendency of the instant suit, Michigan's Sixth Circuit Family Court considered Dewald's petition for relief from judgment based on the allegation that his ex-wife falsely certified to the court that she was unaware of his current address and as a result fraudulently obtained a default judgment without his knowledge. On August 12, 2009, Judge Elizabeth Pezzetti granted his motion and set aside the child support arrearage and the custody and parenting time orders. On or about August 14, 2009, the State Department returned his passport to him. Subsequently the Sixth Circuit Court awarded him $9,965 in sanctions against his ex-wife. On August 22, 2010, Dewald and his ex-wife negotiated a new settlement agreement with respect to child support which requires him to pay support to his ex-wife directly and not through the Friend of the Court.

In response to the August 12, 2009 ruling, the US District Court for the Eastern District of Michigan found Dewald's remaining claims moot and dismissed the case.

References

Aptheker v Secy State http://openjurist.org/378/us/500

Califano v Aznavorian http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=439&invol=170

Freedom to Travel Campaign v Newcomb http://openjurist.org/82/f3d/1431/freedom-to-travel-campaign-v-newcomb-united-states

Haig v Agee http://supreme.justia.com/us/453/280/case.html

Kent v Dulles http://www.law.cornell.edu/supct/html/historics/USSC_CR_0357_0116_ZO.html

Zemel v Rusk http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=1