Defendant in “Deadbeat Parents” Prosecution Cannot Collaterally Challenge Legitimacy of Underlying Child-Support Order, even on Jurisdictional Grounds

United States v. Clifford Kerley, Docket No. 04-4537-cr (2d Cir. 2005) (McLaughlin, Straub, Hall) (Op. by McLaughlin): This is a prosecution under the federal Deadbeat Parents Punishment Act, 18 U.S.C. § 228, and based on defendant’s failure to comply with a child-support order issued by a New York state court. The district court granted the defendant’s motion to dismiss the indictment, agreeing with Kerley that a state hearing officer did not have “subject matter jurisdiction” to enter the underlying order of support because he failed to, as apparently required by New York law, first enter a temporary order of support.

The Circuit reversed, on 2 grounds. First and foremost, the Court ruled that “defendants charged with violating the DPPA cannot collaterally challenge the subject matter jurisdiction of the state court that entered the underlying support order.” Op. at 3. This ruling creates somewhat of a Circuit split, as the Seventh and Tenth Circuits have permitted such collateral challenges based on the state court’s lack of personal jurisdiction. Second, the Court also ruled that, in any event, the district court misread state law and that the state hearing officer was not deprived of subject matter jurisdiction when he entered the final order of support underlying the federal prosecution without first entering a temporary one. Op. at 19-20.

Minor query: Does the Court’s 2nd conclusion render its 1st merely dicta? The Court of course thinks it’s the other way around — it gives the 2nd conclusion only after explicitly pointing out that “we need not reach the question whether the Hearing Examiner did in fact lack jurisdiction” and explaining that it is doing so only “because of the importance of this issue to [the two parties]” who filed amicus briefs urging reversal (the City and State of New York). Op. at 16. But does this “ordering” bind subsequent panels — e.g., can a subsequent panel read the opinion the other way around, with the first bit being dicta while the second bit as the holding, since either is sufficient to support the ultimate result? I assume not …