IV. Decision Below
The memorandum below, 2001 WL 66261, is not yet noted on a Table in the Federal Reporter.
V. Statement of Grounds For Jurisdiction of this Court
The memorandum below was filed by the court of appeals on January 25, 2001. The Petition for Rehearing was denied on May 1, 2001. This Petition for Writ of Certiorari is presented within 90 days of the denial of the Petition for Rehearing.
This Court has jurisdiction to review this decision provided by 28 U.S.C. §1254(1).
VI. Laws Involved in this Case
Provisions of the United States Constitution
Article III Section 1
The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Article III Section 2 clause 1
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; - to all Cases affecting Ambassadors, other public Ministers and Consuls; - to all Cases of admiralty and maritime Jurisdiction; - to Controversies to which the United States shall be a party; - to Controversies between two or more States; - between a State and Citizens of another State; - between Citizens of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Thirteenth Article of Amendment
Section 1. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or anyplace subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
(a) Whoever holds or returns any person to a condition of peonage, or arrests any person with the intent of placing him in or returning him to a condition of peonage, shall be fined under this title or imprisoned not more than 10 years, or both.
(b) Whoever obstructs, or attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be liable to the penalties prescribed in subsection (a).
A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in any Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.
Ninth Circuit Rule 36-3
Any disposition that is not an opinion or an order designated for publication under Circuit Rule 36-5 shall not be regarded as precedent and shall not be cited to or by this Court or any district court of the Ninth Circuit, either in briefs, oral argument, opinions, memoranda, or orders, except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Revised Code of Washington
(1) If an obligor fails to comply with a support or spousal maintenance order, a petition or motion may be filed without notice under RCW 26.18.040 to initiate a contempt action as provided in chapter 7.21 RCW. If the court finds there is reasonable cause to believe the obligor has failed to comply with a support or spousal maintenance order, the court may issue an order to show cause requiring the obligor to appear at a certain time and place for a hearing, at which time the obligor may appear to show cause why the relief requested should not be granted. A copy of the petition or motion shall be served on the obligor along with the order to show cause.
(2) Service of the order to show cause shall be by personal service, or in the manner provided in the civil rules of superior court or applicable statute.
(3) If the order to show cause served upon the obligor included a warning that an arrest warrant could be issued for failure to appear, the court may issue a bench warrant for the arrest of the obligor if the obligor fails to appear on the return date provided in the order.
(4) If the obligor contends at the hearing that he or she lacked the means to comply with the support or spousal maintenance order, the obligor shall establish that he or she exercised due diligence in seeking employment, in conserving assets, or otherwise in rendering himself or herself able to comply with the court's order.
(5) As provided in RCW 26.18.040, the court retains continuing jurisdiction under this chapter and may use a contempt action to enforce a support or maintenance order until the obligor satisfies all duties of support, including arrearages, that accrued pursuant to the support or maintenance order.
VII. Statement of the Case
On January 30, 2000 papers related to the respondents’ prosecution of Roger W. Knight for contempt for nonpayment of child support were served upon Mr. Knight. It is the first time that Mr. Knight has ever been prosecuted for contempt.
On February 1, 2000, Roger W. Knight filed the Complaint in the District Court for the Western District of Washington, No. C00-151Z.
On April 6, 2000 Mr. Knight filed his Motion for Summary Judgment.
On April 21, 2000 Norm Maleng and Calvin G. Rapada filed their King County Defendants’ Response to Motion for Summary Judgment. On page 1 of this Response, is a request “that plaintiff’s motion for summary judgment be denied and that this entire action be dismissed with prejudice.” This was accepted by Mr. Knight and by the district court as a cross motion for summary judgment.
On May 24, 2000 Magistrate Judge Martinez filed his Report and Recommendation with respect to the summary judgment motions. App. pp. 6-10
On July 7, 2000 Judge Zilly entered his Order adopting the Report and Recommendation, denying Mr. Knight’s Motion for Summary Judgment and granting the respondents’ cross motion for summary judgment dismissing the case. App. pp. 4-5. On that same day, the district court entered the Judgment.
On July 17, 2000, Mr. Knight appealed to the Ninth Circuit Court of Appeals, No. 00-35625. The court of appeals had jurisdiction under 28 U.S.C. §1291.
On January 25, 2001, the court of appeals filed the memorandum affirming the district court’s decision. App. pp. 2-3, 2001 WL 66261.
On May 1, 2001, Mr. Knight’s Petition for Rehearing was denied. App. p. 1.
VIII. Argument for Allowance of the Writ
A. Younger Abstention Does Not Apply
When prosecutors act in criminal bad faith, Dombrowski v. Pfister, (1965) 380 U.S. 479, 482, 14 L. Ed. 2d. 22, 85 S. Ct. 1116 found that federal courts do not abstain from hearing a 42 U.S.C. §1983 action arising from such action. Younger v. Harris, (1971) 401 U.S. 37, 46-54, 27 L. Ed. 2d. 669, 91 S. Ct. 746 established the doctrine that federal courts ordinarily abstain where there are on going state court proceedings with some exceptions, including where a plaintiff can show that he lacks adequate remedy in the state’s courts.
Where an exception to Younger abstention doctrine applies, Mitchum v. Foster, (1972) 407 U.S. 225, 32 L. Ed. 2d. 705, 92 S. Ct. 2151 found that 42 U.S.C. §1983 creates a statutory exception to 28 U.S.C. §2283.
Justice White wrote in Gibson v. Berryhill, (1973) 411 U.S. 564, 577, 36 L. Ed. 2d. 488, 93 S. Ct. 1689:
Younger v. Harris contemplates the outright dismissal of the federal suit, and the presentation of all claims, both state and federal, to the state courts. Such a course naturally presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved. Here the predicate for a Younger v. Harris dismissal was lacking, for the appellees alleged, and the District Court concluded, that the State Board of Optometry was incompetent by reason of bias to adjudicate the issues pending before it. If the District Court's conclusion was correct in this regard, it was also correct that it need not defer to the Board.
The Optometry Board was biased because its members each had a substantial personal interest in the outcome of the case.
This finding is based upon a doctrine that was ancient when Justice Chase listed in Calder v. Bull, (1798) 3 U.S. (3 Dall.) 386, 388, 1 L. Ed. 648 “law that makes a man a Judge in his own cause;” as among the laws that is against all reason and justice for a people to empower a Legislature to enact.
The Gibson doctrine has not been limited in subsequent cases, including Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., (1986) 477 U.S. 619, 629, 91 L. Ed. 2d. 512, 106 S. Ct. 2718, to the exent that would affect Mr. Knight’s claim to exception to Younger abstention.
Mr. Knight charges that contempt proceedings to coerce employment to pay child support violate the Antipeonage Act. The problem in presenting this argument in state court is that any violation of the civil right defined by 42 U.S.C. §1994 is the crime defined by 18 U.S.C. §1581.
Clyatt v. United States, (1905) 197 U.S. 207, 218, 49 L. Ed. 726, 15 S. Ct. 429 found that:
In the exercise of that power Congress has enacted these sections denouncing peonage, and punishing one who holds another in that condition of involuntary servitude. . . . We entertain no doubt of the validity of this legislation, or its applicability to the case of any person holding another in a state of peonage, and this whether there be a municipal ordinance or state law sanctioning such holding.
“In the exercise of that power” refers to Section 2 of the Thirteenth Amendment, “these sections denouncing peonage” refers to the Antipeonage Act.
Due to the use of contempt proceedings in the Washington courts to coerce employment of support obligors, the judges of these courts have a substantial personal interest in exposure to criminal liability should Mr. Knight prevail. Mr. Knight set forth specific facts in declarations under penalty of perjury that the family court commissioners before whom he may present his argument regularly hear numerous contempt cases involving child support. This fact was not controverted or denied by the respondents. The judges and commissioners in the Washington courts are thus not competent to adjudicate the claim and Mr. Knight lacks adequate remedy in the state courts.
This case is clearly within the Gibson exception to Younger abstention.
B. Antipeonage Act Covers Child Support
This is an issue of statutory construction: Is child support included in the phrase “debt or obligation, or otherwise” in 42 U.S.C. §1994? In the briefing before the district court and the court of appeals, Mr. Knight cited Negronsott v. Samuels, (1993) 507 U.S. 99, 104, 122 L. Ed. 2d. 457, 113 S. Ct. 1119; Griffin v. Oceanic Contractors, Inc., (1982) 458 U.S. 564, 570, 73 L. Ed. 2d. 973, 102 S. Ct. 3245; and Consumer Product Safety Commission v. GTE Sylvania, (1980) 447 U.S. 102, 108, 64 L. Ed. 2d. 766, 100 S. Ct. 2051.
These rules of statutory construction were applied in United States v. Romo-Romo, (9th Cir. 2001) 246 F. 3d. 1272, 1274-5 citing Hartford Underwriters Ins. Co. v. Union Planters Bank, NA, (2000) 530 U.S. 1, 147 L. Ed. 2d. 1, 120 S. Ct. 1942, 1947; United States v. Sun-Diamond Growers, (1999) 526 U.S. 398, 407, 143 L. Ed. 2d. 576, 119 S. Ct. 1402; and Harris Trust & Savings Bank v. Salomon Smith Barney, Inc., (2000) 530 U.S. 238, 147 L. Ed. 2d. 187, 120 S. Ct. 2180, 2191.
In Sun-Diamond Growers at 526 U.S. 406-8, Justice Scalia found that statutory definition of “illegal gratuity” requires that a gift made to a public official must be linked to a specific “official act” within the meaning of the statute. This is an affirmation of Kozminski, supra with respect to criminal statutes. It follows that these same rules of statutory construction apply to 18 U.S.C. §1581.
In Hartford Underwriters at 120 S. Ct. 1947, Justice Scalia wrote:
. . . we begin with the understanding that Congress “says in a statute what it means and means in a statute what it says there,” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254, 112 S. Ct. 1146, 117 L. Ed. 2d. 391 (1992). As we have previously noted . . . when “the statute’s language is plain, ‘the sole function of the courts’” - at least where the disposition required by the text is not absurd - “is to enforce it according to its terms.’” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 103 L. Ed. 2d. 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 61 L. Ed. 442 (1917)).
In Harris Trust at 120 S. Ct. 2191, Justice Scalia quoted Hughes Aircraft Co. v. Jacobson, (1999) 525 U.S. 432, 438, 142 L. Ed. 2d. 881, 119 S. Ct. 755, which in turn quoted Estate of Cowart v. Nicklos Drilling, (1992) 505 U.S. 469, 475, 120 L. Ed. 2d. 379, 112 S. Ct. 2589 that in statutory construction, analysis begins with language of statute and quoted Connecticut Nat. Bank at 503 U.S. 254 “where the statutory language provides clear answer, it ends there as well”.
By that rule, “debt or obligation, or otherwise” includes child support. If that is not a clear answer, Senator Lane in remarks on the Peonage Bill discussed the effect of New Mexican peonage on the “peon with a family to support”. Congressional Globe, 39th Cong. 2d. Sess. p. 1571. The 1867 Congress intended to prohibit coercion of labor in liquidation of family support obligations. Congress was aware of such obligations and their enforcement in cases similar to Stanton v. Willson, (Conn. 1808) 3 Day 37, cited in United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, 874 n. 2, cert. den., 120 S. Ct. 318.
Therefore, the California Supreme Court’s findings in Moss v. Superior Court, (1998) 71 Cal. Rptr. 2d. 215, 223, 950 P. 2d. 59, 67 that legally requiring employment to enforce child support is not peonage is contrary to these above cited decisions regarding statutory construction.
At www.geocities.com/rogerwknight/ is an explanation of the history behind the Antipeonage Act and an argument that if the Thirteenth Amendment does not protect noncustodial parents, it does not protect any parent.
C. Practice of Not Treating Unpublished Opinions as Precedent Exceeds Judicial Power Granted by Article III
The court of appeals deviated from Gibson, supra without concern for creating precedent.
Anastasoff v. United States, (8th Cir. 2000) 223 F. 3d. 898 was released on August 22, 2000. Unaware of this decision, Mr. Knight filed his Brief of Appellant. On September 14, 2000, two weeks before the Brief of Appellee was due, Mr. Knight wrote a letter to Jeffrey Richard informing him that he intended to plead Anastasoff in his Reply Brief. The respondents elected not to address Anastasoff and Mr. Knight plead it in his Reply Brief. Anastasoff was vacated as moot on rehearing en banc, (8th Cir. 2000) 235 F. 3d. 1054, the federal government refunded the disputed tax. However, United States v. Goldman, (8th Cir. 2000) 228 F. 3d. 942, 944, cert. den. 121 S. Ct. 1149 found that Anastasoff required unpublished decisions to be followed as precedent. This is a clear split with the practice of the other circuits.
Mr. Knight plead Anastasoff in the court of appeals because several previous cases alleging child support enforcement to violate the Antipeonage Act resulted in unpublished decisions that did not establish precedent. Some of these unpublished decisions were absurd: Ternes v. Berchard, 9th Cir. No. 93-35913, cert. den., 511 U.S. 1127, was dismissed on summary affirmance because “the questions on which the cause depends are so insubstantial as not need further argument.” The California courts did not agree with this finding in Moss, supra. As to the Thirteenth Amendment, also raised by Mr. Ternes, Ballek, supra overruled that. Skelly v. Heidemann, (9th Cir. 1994), Table, 26 F. 3d. 132, cert. den., 513 U.S. 1024, found that “There was no requirement to work.” This again is overruled by Ballek.
Mr. Knight himself challenged the threat of contempt proceedings before the court of appeals, Knight v. Knight, (9th Cir. 1993) Table 996 F. 2d. 1125, cert. den., 510 U.S. 979. This previous case started about 9 years before the present case and at that time there was no contempt prosecution against Mr. Knight. Therefore, neither res judicata nor collateral estoppel apply to this present litigation because the facts are different.
The consequence of 9th Circuit Rule 36-3 and similar rules in the other circuits is that it frees them from the discipline of precedent. This is what Anastasoff found objectionable. These rules allow an appellate court to make a rule of law that applies only to the parties in a case. The appellate courts are free to deviate from precedent without setting precedent. Thus no consistent application of the law. The appellate courts are also free to avoid an issue by ruling on it without establishing precedent. Parties therefore cannot rely upon precedent.
“Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law.” Anastasoff at 223 F. 3d. 899 citing Marbury v. Madison, (1803) 5 U.S. (1 Cranch) 137, 177-8, 2 L. Ed. 60. “This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties.” Anastasoff at 223 F. 3d. 900 citing James B. Distilling Co. v. Georgia, (1991) 501 U.S. 529, 544, 115 L. Ed. 2d. 481, 111 S. Ct. 2439 and Cohens v. Virginia, (1821) 19 U.S. (6 Wheat.) 264, 399, 5 L. Ed. 257. Anastasoff thus found 8th Circuit Rule 28A(i), which is similar to 9th Circuit Rule 36-3, to expand the judicial power beyond the grant of Article III.
Federal courts are not free to extend judicial power beyond the grant of Article III, Anastasoff at 223 F. 3d. 905 citing Willy v. Coastal Corp., (1992) 503 U.S. 131, 135, 117 L. Ed. 2d. 280, 112 S. Ct. 1076. Willy found that rules adopted by the courts can only apply if they do not expand judicial authority beyond the grant of Article III. Anastasoff at 223 F. 3d. 905 further found:
Rule 28A(i) allows us to depart from the law set out in such prior decisions, without any reason to differentiate the cases. This discretion is completely inconsistent with the doctrine of precedent; even in constitutional cases, courts “have always required a departure from precedent to be supported by some ‘special justification’” United States v. International Business Machines Corp., 517 U.S. 843, 856, 116 S. Ct. 1793, 135 L. Ed. 2d 124 (1996) quoting Payne v. Tennessee, 501 U.S. 808, 842, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) (Souter, J., concurring).
In IBM, at 517 U.S. 856, Justice Thomas wrote:
. . . we frequently have declined to overrule cases in appropriate circumstances because stere decises “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and percieved integrity of the judicial process.”
quoting Payne at 501 U.S. 827.
9th Circuit Rule 36-3 extends the judicial power beyond the grant of Article III and thereby denies the parties due process of law required in federal courts by the Fifth Amendment. Reliance upon the grants and limitations of judicial power in Article III is a necessary part of the right to due process.
While Congress granted this Court discretion upon writ of certiorari as to whether to exercise its appellate jurisdiction in cases out of the courts of appeals, 28 U.S.C. §1254 and out of the state supreme courts, 28 U.S.C. §1257, it did not grant the same discretion to the courts of appeals with 28 U.S.C. §1291. Therefore, the use of 9th Circuit Rule 36-3 to avoid creating a precedent impermissibly extends or restricts jurisdiction conferred by statute. Willy at 503 U.S. 135 citing Sibbach v. Wilson & Co., (1941) 312 U.S. 1, 10, 85 L. Ed. 479, 61 S. Ct. 422.
IX. Conclusion
For the reasons stated herein, this Petition for Writ of Certiorari should be granted.
Respectfully submitted,
Roger W. Knight, pro se
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