99-3328 State v. Oakley

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“The effects of the nonpayment of child support on our children are particularly troubling. In addition to engendering long-term consequences such as poor health, behavioral problems, delinquency and low educational attainment, inadequate child support is a direct contributor to childhood poverty. …

“In the present case, the record indicates that Judge Hazlewood was familiar with Oakley’s abysmal history prior to sentencing. The record reveals that Judge Hazlewood knew that Oakley had a number of support orders entered for his nine children, but he nevertheless continually refused to support them. He was aware that Oakley’s probation for intimidating two witnesses in a child abuse case – where one of the witnesses was his own child and the victim – was in the process of being revoked. Judge Hazlewood was also apprised that Oakley had promised in the past to support his children, but those promises had failed to translate into the needed support. Moreover, he knew that Oakley had been employed and had no impediment preventing him from working. … Given his knowledge of Oakley’s past conduct, Judge Hazlewood was prepared to fashion a sentence that would address Oakley’s ongoing refusal to face his obligations to his nine children as required by law. …

“Here, the judge fashioned a condition that was tailored to that particular crime, but avoided the more severe punitive alternative of the full statutory prison term through the rehabilitative tool of probation. At the same time, Judge Hazlewood sought to protect the victims of Oakley’s crimes – Oakley’s nine children.”

And, even though this condition of probation limits defendant’s fundamental right to procreate, convicted individuals do not enjoy the same degree of liberty as citizens who have not violated the law.

“Applying the relevant standard here, we find that the condition is not overly broad because it does not eliminate Oakley’s ability to exercise his constitutional right to procreate. He can satisfy the condition of probation by making efforts to support his children as required by law. Judge Hazlewood placed no limit on the number of children Oakley could have. Instead, the requirement is that Oakley acknowledge the requirements of the law and support his present and any future children. If Oakley decides to continue his present course of conduct – intentionally refusing to pay child support – he will face eight years in prison regardless of how many children he has. Furthermore, this condition will expire at the end of his term of probation. …

“Under the exceptional factors presented by this case, the probation condition is not overbroad and it is reasonably related to the probationary goal of rehabilitation. Indeed, this condition is narrowly tailored to serve the compelling state interest of requiring parents to support their children as well as rehabilitating those convicted of crimes. Moreover, this condition will assist Oakley in conforming his conduct to the law and is therefore reasonably related to his rehabilitation.”

Affirmed.

CONCURRING OPINION: Bablitch, J., with whom Wilcox and Crooks, JJ., join. “This is a very difficult case, one in which courts are understandably reluctant to get involved.”

“It is important to note at the outset what this case is all about: It is about a father of nine children who intentionally refuses to support them and was convicted of such.

“The two dissents frame the issue in such a way that Oakley’s intentional refusal to pay support evolves into an inability to pay support. This case is not at all about an inability to pay support; it is about the intentional refusal to pay support. The difference between an intentional refusal to pay support and an inability to pay support is highly significant and, for me, decisive.”

CONCURRING OPINION: Crooks, J., with whom Bablitch and Wilcox, JJ., join. “I join both the majority opinion and the concurrence by Justice Bablitch. I write separately, however, to prevent any misunderstanding regarding the appropriate test for the constitutionality of restrictions on the rights of a probationer. The appropriate test is not the strict scrutiny test, as the majority correctly notes. … The proper test is ‘conditions of probation may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the person’s rehabilitation.'”

DISSENTING OPINION: Bradley, J., with whom Abrahamson, Ch.J. and Sykes, J., join. “I begin by emphasizing the right that is at issue: the right to have children. The majority acknowledges this right, but certainly does not convey its significance and preeminence. The right to have children is a basic human right and an aspect of the fundamental liberty which the Constitution jealously guards for all Americans. …

“The circuit court’s order forbidding Oakley from having another child until he first establishes his ability to support all his children is unconstitutional. Even the circuit court judge who imposed the condition acknowledged that Oakley will be unable to meet this condition. The probation condition is not narrowly drawn to serve the governmental interest at stake. Additionally, aside from the constitutional infirmities, such a condition of probation entails practical problems and carries unacceptable collateral consequences.”

DISSENTING OPINION: Sykes, J., with whom Abrahamson Ch. J., and Bradley, J., join. “While I sympathize with the circuit court’s understandable exasperation with this chronic “deadbeat dad,” I cannot agree that this probation condition survives constitutional scrutiny. It is basically a compulsory, state-sponsored, court-enforced financial test for future parenthood. …

“Even under these extreme circumstances, however, and even in light of the State’s strong interest in protecting against further victimization of these children, a court-ordered prohibition of procreation without State permission is overly broad.”

Court of Appeals, Wilcox, J.

Attorneys:

For Appellant: Timothy T. Kay, Brookfield

For Respondent: Thomas J. Balistreri, James E. Doyle, Madison