Opinion
No. 98 C 8304
March 13, 2000
MEMORANDUM OPINION AND ORDER
Before this court is Respondent Kane County Sheriff, Kenneth R. Ramsey's ("Respondent") motion to quash and motion to dismiss Petitioner Jon Behr's ("Petitioner" or "Behr") petition for writ of habeas corpus. For the following reasons, Respondent's motions are GRANTED and the Petition is DISMISSED.
Background
This is the story of a man who has fallen behind on his child support payments in one state and has been arrested for non-support in accordance with the law of another state. Jon Behr lives in the state of Illinois and was arrested in Illinois for his failure to pay child support for his minor child who lives in Kentucky. Behr argues that his arrest and detention in Illinois for a crime charged in Kentucky is unconstitutional since he has no connections to the State of Kentucky. The chronology of events leading up to the arrest is as follows.
Jon Behr and his ex-wife Valerie Behr were divorced in 1984 in Kankakee County, Illinois, In the Judgment for Dissolution of Marriage, it was determined that Valerie Behr would have full custody of their minor child, Nicole, and Behr would pay child support of $25 per week. Behr's child support payments would not be made directly to Valerie Behr, but to the Clerk of the Circuit Court of Kankakee County. (Pet.'s Ex, E). In 1991, the child support order was modified and entered by the Illinois Circuit Court of Kankakee County to increase Behr's child support payment to $234 per month to be paid to the Clerk of the Circuit Court of Kankakee County. (Petition ¶ 10; Pet.'s Ex. B).
Sometime prior to Behr's arrest, Valerie Behr moved herself and Nicole to Kentucky without the knowledge or consent of either Behr or any Illinois state court. (Petition ¶ 9). On February 4, 1998, in Calloway County, Kentucky, Behr was charged with the criminal offense of flagrant nonsupport of his minor daughter. (Petition ¶¶ 5, 6). On July 27, 1998, a warrant was issued in Illinois for Behr's arrest by Illinois Governor Jim Edgar, pursuant to the Illinois Uniform Criminal Extradition Act (UCEA), 725 ILCS 225/6. (Petition ¶¶ 2, 16). Behr was arrested and is now in the custody of the Sheriff of Kane County, Illinois. (Petition ¶ 2).
Behr filed a petition for writ of habeas corpus in the Circuit Court of Kane County, Illinois on November 13, 1998. (Petition ¶ 11). A hearing was held where the only issue addressed was whether Behr was the individual wanted in Kentucky. (Petition ¶ 12). The Illinois Circuit Court denied Behr's petition. Behr states that he has not exhausted his state remedies because the procedures will be "ineffective." (Petition ¶ 14).
Behr filed his petition for writ of habeas corpus in federal court pursuant 28 U.S.C. § 2241(c)(5), stating he is being held in custody in violation of the Constitution of the United States. (Petition ¶ 1). Behr states that he is not arguing that the UCEA is unconstitutional, but instead that the application of the UCEA is unconstitutional in this case. (Petitioner's Resp., p. 5). The thrust of Behr's petition is that he has no contacts with Kentucky, he argues that he has committed no crime in Kentucky, he has never been to Kentucky, he has never visited his daughter in Kentucky, and thus he has absolutely no connections to Kentucky. (Petition ¶ 7). Besides this present charge of flagrant non-support, Behr states he has never been ordered to pay child support in Kentucky. (Petition ¶ 8).
In response to Behr's petition, the Sheriff of Kane County has filed a motion to quash and a motion to dismiss the petition, where the Sheriff argues the constitutionality of the UCEA.
Analysis
Section 6 of the Illinois Uniform Criminal Extradition Act (UCEA), entitled "Extradition of Persons Not Present in Demanding State at Time of Commission of Crime," states:
The Governor of this State may also surrender, on demand of the Executive Authority of any other state, any person in this State charged in such other state in the manner provided in Section 3 with committing an act in this State, or in a third state, intentionally resulting in a crime in the state whose Executive Authority is making the demand. 725 ILCS 225/6.
The Constitutionality of the UCEA is supported by the United States Supreme Court's decision in People v. O'Neill, 359 U.S. 1, 79 S.Ct. 564 (1959). In O'Neill, the Supreme Court recognized that statutory cooperative arrangements between states on the issue of extradition were constitutional. In particular, the Court stated:
The absence of a provision in the United States Constitution specifically granting power to the States to legislate respecting interstate rendition of witnesses presents no bar. To argue from the declaratory incorporation in the Constitution, Art. IV, s 2, of the ancient political policy among the Colonies of delivering up fugitives from justice an implied denial of the right to fashion other cooperative arrangements for the effective administration of justice, is to reduce the Constitution to a rigid, detailed and niggardly code. O'Neill, 359 U.S. at 5-6, 79 S.Ct. at 568.
The courts since O'Neill have applied the Supreme Court's holding to recognize the constitutionality of Section 6 of the UCEA in particular Section 6 has been enacted in 44 states and has been challenged on constitutional grounds in 11 states. In each instance, Section 6 was held constitutional. Coungeris v. Sheahan, 11 F.3d 726, 728 (7th Cir. 1993);Miller v. Decker, 411 F.2d 302, 305 (5th Cir. 1969); Whelan v. Noelle, 966 F. Supp. 992, 996-97 (D.Or. 1997); Huddleston v. Costa, 314 F. Supp. 278, 281 (W.D.Penn. 1970) (citations omitted). "Neither Article IV, Section 2, Clause 2, nor the federal statute expressly negate the power of the states to provide for the extradition of persons who are not fugitives in the technical sense." Miller, 411 F.2d at 305 (5th Cir. 1969).
In Illinois in particular, the Illinois Supreme Court upheld the application of Section 6 of the UCEA to a non-fugitive. People v. Sain, 29 Ill.2d 239, 242-43, 193 N.E.2d 767, 768-69 (1963). In a series of events extremely similar to the present case, the Petitioner in Sain was arrested under a warrant in Illinois for the crime of abandonment and non-support in Wisconsin. The Petitioner was not in Wisconsin when the crime occurred, and the charges were based on Petitioner's non-payment of support in Illinois which resulted in a crime in Wisconsin. Relying onO'Neill, the Illinois Supreme Court upheld the constitutionality of the application of Section 6 of the UCEA to the Petitioner, stating thatO'Neill and the Constitution make clear that the power to deal with extradition is vested in the states. While the Illinois Supreme Court holding is not binding on this court, it is persuasive. Under Section 6, Behr does not technically have to be a "fugitive." Section 6 expressly states that the person does not have to be present in the demanding state at the time of the crime. There is nothing in the Constitution negating the power of the states to extradite an individual who is not technically a fugitive. Since Section 6 has been found constitutional under the reasoning of O'Neill and its progeny to the application of non-present defendants, the application of the statute in this case is valid.
Behr argues that he cannot be extradited to Kentucky because he does not have the requisite minimum contacts with the state. Relying on the traditional analysis for personal jurisdiction in a civil case, see Pennoyer v. Neff, 95 U.S. 714; International Shoe Co. v. State of Washington, 326 U.S. 310 (1945); Kulko v. California Superior Court, 436 U.S. 84 (1978); Hanson v. Denekla, 357 U.S. 235 (1958), Behr argues that this same analysis should apply to criminal cases. Behr fails to recognize that jurisdiction for civil and criminal cases is different. The acts Behr committed (or failed to commit) in Illinois resulted in a crime in Kentucky. It does not matter that Behr was not in Kentucky, for it is Behr's lack of action that is the basis of the criminal charge. As a general rule, a state has jurisdiction over a crime if the conduct takes place or the result happens within its territorial limits. Where a crime is based upon an omission to act, the crime is committed at the place where the act should have been performed. Therefore, for the crime of non-support of a child, the crime is committed where the child lives, even if the defendant has at all times lived elsewhere. Wayne R. LaFave Jerold H. Israel, Criminal Procedure § 16.2(c)(1984); see, for example, People v. Caruso, 152 Ill. App.3d 1074, 504 N.E.2d 1339, 1343 (1987) (concluding that Illinois' statute on "criminal jurisdiction is broad enough to reach conduct of an accused occurring outside Illinois' territorial limits in violation of the child-abduction statute"); State v. Taylor, 625 N.E.2d 1334, 1336 (Ind.Ct.App. 1993) (concluding that nonresident parent may be prosecuted in Indiana for the criminal offense of his non-support of his children who live in Indiana); State v. Shaw, 96 Idaho 897, 539 P.2d 250, 252 (1975) (concluding Idaho court had jurisdiction to try Nevada resident for nonsupport of his minor children who resided in Idaho); Poole v. State, 60 Wis.2d 152, 208 N.W.2d 328 (1973) (concluding that father's residence outside of Wisconsin at time of alleged act of abandonment and non-support did not preclude prosecution of father in Wisconsin). Therefore, Behr's jurisdictional argument fails and his petition is dismissed.
Conclusion
For the foregoing reasons, Respondent Kane County Sheriff, Kenneth R. Ramsey's motion to quash and motion to dismiss Petitioner Jon Behr's petition for writ of habeas corpus are GRANTED. The Petition is DISMISSED.