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Condoning Slavery Under Color Of Law — Bills Of Attainder — Part VII

March 27, 2006

Men who pay for other men's kids

Twelve other states have legislation that provides relief from child support obligations when genetic testing proves a man is not the biological father of the child(ren). For one perspective see the article by Betty DeRamus in today's Detroit Free Press. The most successful advocate for reform has been Carnell Smith's campaign that changed paternity law in Georgia.

Yet, at the insistence and instigation of Colorado's Dept. of Human Services Child Support Enforcement bureaucrats, the legislature continues to bring forth ever more draconian measures against putative fathers, of whom one-third may be enslaved to pay support for children they did not sire and often to women they have never known, or simply in support of massive bureaucracies.

This is the third year the Equal Justice Foundation has battled for the Constitutional rights of men and women in Colorado on this issue and this newsletter is the seventh in the series.

HB06-1267 sponsor responds

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As did Colorado Senator Steve Johnson after the North Carolina group Drop the GOP named him the Single Biggest IDIOT On Earth for 2005, Senator Shawn Mitchell has chosen to respond via a third party to prior criticism of the bill HB06-1267 that he is sponsoring. The people in North Carolina tell me the IDIOT competition is stiffer this year but that Shawn Mitchell is definitely in contention for the award. His reply below might help his standing in that contest but I'm not the judge.

On Friday 24 March 2006 Colorado state senator Shawn Mitchell wrote:

"Steve [an MD in the Denver area],

I've watched the parade of misinformed commentary with mixed amusement and annoyance. Mr. Corry's salvos have virtually nothing to do with the minor tweaks in 1267, and most everything to do with the system of child support enforcement as it exists.He may have some valid gripes.Ken Gordon and I are discussing the possibility of a bill next session that would recognize genetic proof of non-paternity at any point, even years after a paternity finding, support order, and history of payments. If a man is not the father, he should not be financially liable. But that has nothing to do with the modest refinements in 1267.

I wasn't moved to respond to the spoutings [sic] until seeing your message. As you recall, we had a brief visit. You raised one limited point. I didn't find it persuasive, but asked you to discuss it with the Human Services department and see if they could resolve your concerns.

We haven't talked about the bill since then, and I don't know if you were able to talk with the Department. But you are too smart and thoughtful to think that Mr. Corry's concerns, justified or not, have anything to do with the provisions of 1267.

If you have a problem with this bill, point it out. Don't glibly piggyback on a misdirected diatribe.

Shawn"

Everyone enjoys being patronized and Mr. Mitchell is to be thanked for a shining example. However, I am not at all sure I want someone as uninformed as Senator Mitchell is about paternity fraud, child support, or the Constitution, writing anymore bills concerning these issues. Someone who regards robbing widows as "minor tweaks" is hardly deserving of public trust.

I am particularly concerned about him introducing a bill "that would recognize genetic proof of non-paternity at any point, even years after a paternity finding, support order, and history of payments." For centuries English common law has recognized the great value of fixing and maintaining a paternity determination. The objective should be not to unnecessarily disturb a father-child relationship but to make an immutable paternity determination at the earliest time it is called into question, i.e., in a divorce where child support is requested, or in a paternity hearing if the couple are not married.

Since the exclusion rate in genetic tests averages around 30%, no child support order should be entered in any case unless genetic testing of all parties establishes the man is the biological father of the child(ren) in question unless the man has legally adopted the child(ren).¹

If no child support is requested I would suggest that, if a father-child relationship exists, that it remain untouched. Private family affairs are no business of the courts, legislature, or child support enforcement agencies unless invited in by one of the parties. And when invited in for child support, inheritance, medical, or any other reasons, due process and presumption of innocence must be preserved and the burden of proof on the plaintiff or the state, the antithesis of HB06-1267. Paternity and the rights of children are not issues where the bureaucratic convenience of child support enforcement (CSE) is a concern. The past few decades have made it plain that persecution by CSE has made the human problems worse, while doing little more than building massive and massively-expensive bureaucracies.

Obviously a grandfather clause would be required to allow men currently enslaved by paternity fraud to be freed. Had Senator Mitchell fulfilled his moral and ethical duty to read the March 2, 2006, letter he would have found reasonable suggestions to accomplish that and a "diatribe" would have been unnecessary.

Any just legislation with regard to paternity must also include provisions for relief when the inevitable mistakes, errors, and fraud occur. I would also remind Senator Mitchell that the first in this series on Condoning Slavery Under Color Of Law, of which this is Part VII, began with rejection of HB04-1083, sponsored by Rep. Bill Sinclair and Senator Ed Jones, by the Colorado Senate Judiciary Committee in 2004. That well-crafted bill contained provisions for relief of paternity fraud but was not a complete solution.

Bills of Attainder

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Several attorneys, more learned in the law than Senator Mitchell, pointed out that HB06-1267 is a Bill of Attainder. The Framers were spare of words but were so disgusted with such practices that they repeated themselves on this issue. Article 1, Section 9 of the Constitution states: "No Bill of Attainder or ex post facto Law shall be passed," and Section 10 explicitly says: "No State shall...pass any Bill of Attainder."

For most of us the first question is: What is a bill of attainder, and why are they so repulsive?

A Bill of Attainder is briefly defined as a legislative act that singles out an individual or group for punishment without a trial. HB06-1267 clearly singles out men accused of siring a child and widows of men accused of siring a child and denies them judicial remedies. "Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 166.

Or listen to James Madison in 1788 when he published Federalist Papers, no. 44:

"Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation...The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community."

With regard to "fluctuating policy" and "sudden changes and legislative interferences" I note that SB05-181 only became fully effective on January 1, 2006, and the current Bill of Attainder, HB06-1267 was quickly introduced on February 1^st , just one month later, to correct flaws in SB05-181. This is not settled law that citizens might reasonably abide by but arbitrary and capricious actions of an uncontrolled and unsettled government. HB06-1267 was written to patch holes and mistakes in SB05-181, which was written to fix problems with previous bills, and so on. And the whole child support system is dysfunctional and bureaucratic enforcement has made family issues worse. This a not a problem that will be solved by bills of attainder.

And what better description of the bureaucratic nightmare of the multi-billion dollar child support enforcement industry than:

"...sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community."

Such profound insight makes me ever more proud to be a heir of the great genius that helped establish this nation, and ever more disgusted with the pandering politicians sitting in the Colorado legislature doing the bidding of self-serving bureaucrats whose task in life is to destroy men, families, and children.

Further, there can be no specious claim that child support is entirely a civil matter. Criminal penalties and incarceration are inherent in these bills if a targeted party fails to comply, and forced labor, indeed slavery, is certainly punishment for those many unfortunates caught up by paternity fraud and denied judicial remedy by SB05-181 and HB06-1267.

The problems with HB06-1267 and its progenitors seem to be obvious to everyone but Senator Mitchell and his compatriots.

Charles E. Corry, Ph.D., F.G.S.A.

1. Note that with current medical techniques embryo implantation is common and the female who carries the baby to term may not be the genetic mother. With further advances in medicine other complications in determining genetic heritage and contractual obligations of putative parents and rights of inheritance of such children will no doubt arise. No doubt there are other possibilities that I have not considered. Wise legislation will make allowances for such occurrences.

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Issues The Equal Justice Foundation Deals With

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