State v. Oakley

DIANE S. SYKES, J.

¶ 65. (dissenting). Can the State criminalize the birth of a child to a convicted felon who is likely to be unwilling or unable to adequately support the child financially? That is essentially the crux of the circuit court order in this case, or at least its apparent practical effect.

¶ 66. As a condition of probation for felony nonsupport, the circuit court in this case barred David Oakley from having any more children unless he demonstrates to the court that he is supporting the nine children (by four different women) that he already has, and that he has the financial ability to support another. That is, Oakley must seek the court's permission and obtain the court's approval before bringing another child into the world. He is subject to probation revocation and imprisonment if he fathers a child without prior court approval.

¶ 67. 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.

¶ 68. I agree with the majority opinion that because Oakley is a convicted felon, infringements on his constitutional rights are evaluated differently than infringements on the rights of those who have not been convicted of crimes. The majority opinion has identified *493the applicable test: "conditions of probation may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to [the probationer's] rehabilitation." Majority op. at ¶ 19 (quoting Edwards v. State, 74 Wis. 2d 79, 84-85, 246 N.W.2d 109 (1976)).

¶ 69. Oakley has fathered nine children by four different women and has consistently failed to support them. He is more than $25,000 in arrears on his support orders, and his pattern of nonsupport is intentional. He is criminally irresponsible, and his children suffer for it. The State's interest in collecting child support for his children is substantial, as is the State's interest in preventing further arrearages.

¶ 70. Under these circumstances, the "no more children" probation condition certainly appears to be reasonably related to Oakley's rehabilitation. No one seems to believe that Oakley will ever be able to bring his arrearages up to date, much less keep current. Adding another child would only make matters worse.

¶ 71. 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.

¶ 72. In Zablocki v. Redhail, 434 U.S. 374, 376 (1978), the United States Supreme Court struck down a Wisconsin statute that prohibited the issuance of a marriage license without court approval to anyone with a court-ordered child support obligation. Under the statute, court approval to marry could not be granted unless the marriage applicant proved compliance with the support obligation, and further, that the children covered by the support order were not, and were not likely to become, public charges. Id. at 375. *494The Supreme Court found the statute to be an unconstitutional infringement on the right to marry, because less restrictive means could achieve the state's objective of protecting the interests of children entitled to financial support from non-custodial parents. Id. at 390. The Court applied an equal protection analysis, invalidating the statute because it was not "closely tailored" to effectuate the State's interests. Id. at 388.

¶ 73. While I recognize that the constitutional tests are somewhat different, Zablocki is otherwise closely analogous to this case. Here, as in Zablocki, there are less restrictive means available to achieve the State's objectives short of encumbering what everyone agrees is a fundamental human right. As noted by Justice Bradley in her dissent, the circuit court can order Oakley to maintain full-time employment — or even two jobs — as a condition of probation, and to execute a wage assignment to pay off his child support arrearages and satisfy his ongoing support obligations. Wis. Stat. § 767.265. His tax refunds can be intercepted annually. Wis. Stat. § 49.855(4). Liens can be placed on his personal property, and he can be found in civil contempt. Wis. Stat. §§ 767.30, 785.03. He can be criminally prosecuted for any additional intentional failures to support his children, present or future. His probation can be revoked if he fails to maintain employment and make support payments. Granted, Oakley's arrearages are so great, and his history so troublesome, that these means may not ultimately be completely successful in achieving the State's objective of collecting child support. But the same was true in Zablocki, and the Supreme Court nevertheless found the statute *495in that case unconstitutional. I reach the same conclusion here.1

¶ 74. This condition of probation subjects Oakley to imprisonment if he fathers another child without advance permission from the State. Illegitimacy and child poverty, abuse, and neglect are among our society's most serious and intractable problems. Conditioning the right to procreate upon proof of financial or other fitness may appear on the surface to be an appropriate solution in extreme cases such as this, but it is unprecedented in this country, and for good reason. The State can order non-custodial parents to financially support their children, and can criminally prosecute those who intentionally do not. The State can remove a child from a parent's custody when the child is in need of protection from parental abuse, neglect, or abandonment, and can criminally prosecute parents who mistreat their children. But I know of no authority for the proposition that the State can order that a child not be conceived or born, even to an abysmally irresponsible parent, unless the State first grants its consent.

¶ 75. Although Oakley is a convicted felon and therefore may constitutionally be subjected to limitations on the fundamental human liberties the rest of us freely enjoy, he cannot constitutionally be banned from having further children without court permission. In light of available alternatives to achieve the State's significant and laudable objective of collecting past and future child support for these children, who are enti-*496tied to and need it, this condition of probation is an overly broad encumbrance on Oakley's right to procreate, and therefore cannot stand. Accordingly, I respectfully dissent.

¶ 76. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissenting opinion.

I am not, by this conclusion, applying a "strict scrutiny" equal protection test, as suggested by the majority opinion. Majority op. at ¶ 16 n.23. As I have noted, I am applying the test from Edwards v. State, 74 Wis. 2d 79, 84-85, 246 Wis. 2d 109 (1976).