I.          STATEMENT CONCERNING REPLY BRIEF

          Since this is a reply brief, and only for the purpose of this reply, the appellant formats this brief somewhat along the lines of the “Reply Brief” filed by the Appellees.

 

II.      AS TO APPELLEES’ STATEMENT OF THE ISSUES

          Parties are in agreement as to the issues on appeal.

 

III.     AS TO APPELLEES’ STATEMENT OF THE CASE

 

          The appellees add a considerable history of events prior to Mr. Knight filing the action below in the district court in February 2000.  With just as much justification, Mr. Knight could add the following preliminary events:

          On January 31, 1865, the House passed Senate Joint Resolution No. 16 presenting to the states for ratification an Amendment to abolish slavery and involuntary servitude.

          On April 9, 1865 General Lee surrendered to General Grant at Appomattox Court House, Virginia.  The other remaining Confederate armies subsequently surrendered to General Sherman in North Carolina and to General Canby in Louisiana and Texas.  Over 600,000 Americans lost their lives during the conflict.

          By December 1865 three quarters of the states then in the Union ratified the Thirteenth Amendment, it was proclaimed a part of the Constitution on December 18, 1865.  By the end of 1866, 35 of the 36 states, including 10 of the 11 former Confederate states, ratified the new Amendment.

          On March 2, 1867, President Andrew Johnson signed the Antipeonage Act into law.

          There is no dispute that these historical facts happened.  Neither is there any dispute that the duties to provide for a family were well recognized and often enforced by court orders in the cases of family abandonment, divorce, and out of wedlock births at this time in our history.  There is no dispute that the 1867 Congress was well aware of these obligations and the enforcement of these obligations.  There is no dispute that New Mexico Territory used its peonage system to enforce the duty to support a child by parents with and without custody, whether married to each other or not.  There is no dispute that the Antipeonage Act was passed specifically to abolish the peonage system then existing in New Mexico Territory and to prohibit any similar system from being enacted and enforced in any other state or territory of the United States.

          Mr. Knight does not dispute that he raised his challenge to the child support system as enforced in the state of Washington as violation of the Antipeonage Act and the Thirteenth Amendment in previous actions in the federal courts in the early 1990’s.  Another circuit has recently made an interesting ruling on the subject of unpublished decisions that by rule cannot be cited as precedent except for the purposes of law of the case, res judicata, and collateral estoppel type doctrines, Anastasoff v. United States, (8th Cir. 2000) 223 F. 3d. 898.  More on this on pages 14-22 of this Reply Brief.

 

IV.     AS TO APPELLEES’S ARGUMENT AND ANALYSIS

 

A.          Antipeonage Act and Thirteenth Amendment Application to Child Support

 

          The appellees do not address Troxel v. Granville, (2000) 147 L. Ed. 2d. 49, 120 S. Ct. 2054, 2060 and Mr. Knight’s argument that it limits the state’s interest in enforcing child support to the amount necessary to allow a custodial parent to “adequately cares for his or her children”, and that state’s interest disappears entirely where the custodial parent does not need a child support payment to adequately care for her children, see Brief of Appellant pages 27-31, and that Mr. Knight is ordered to pay significantly more in child support than that amount pursuant to a state law intended to create such result.  Where a state’s interest is limited or nonexistent, an exception to the Thirteenth Amendment certainly cannot be created, thus United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, cert. den. 145 L. Ed. 2d. 114, 120 S. Ct. 318 is in error and should be overruled.

          The appellees argue that because coercive means to enforce child support obligations were used prior to the passage of the Thirteenth Amendment, then the Thirteenth Amendment should not be considered to have affected it.  The first problem with this approach is that chattel slavery and peonage predated the Thirteenth Amendment, and the obvious purpose of the Amendment is to change the law to prohibit these institutions and practices.

          The second problem with this approach is that if child support was enforced by such coercive means prior to 1867, then Congress must be presumed to be aware of it.  Senator Lane’s comments on Congressional Globe, 39th Cong. 2d. Sess. p. 1571, ER 67, not only proves such knowledge, but proves that Congress considered it to be one of the obligations enforced by New Mexican peonage.  As Congress did not write in language specifically excluding child support from the phrase “debt or obligation, or otherwise”, in 42 U.S.C. §1994, then the rules of statutory construction set forth in Negronsott v. Samuels, (1993) 507 U.S. 99, 104, 122 L. Ed. 2d. 457, 113 S. Ct. 1119, require the finding that Congress intended it to be included.  See Brief of Appellant pages 6-11.

          Without addressing Negronsott, the appellees argue:

For the same reasons that the use of contempt proceedings to enforce child support obligations do not violate the Thirteenth Amendment, those proceedings do not violate the Anti-Peonage Act.

That is the sum total of their argument.  Mr. Maleng might consider ordering his deputy prosecutors to cease and desist contempt prosecutions, or at least give them fair warning so they can each make an informed decision as to whether to incur criminal liability for further violations of 18 U.S.C. §1581.

 

B.          Decision on Younger Abstention Requires Decision on Whether

          Antipeonage Act and Thirteenth Amendment Applies to Child Support

 

          The appellees put up no argument disputing that if the Antipeonage Act applies to child support, then they had acted in criminal bad faith by initiating state court contempt proceedings with the intent to coerce employment.  Such is a violation of 18 U.S.C. §1581, the criminal provision of the Antipeonage Act, for which the federal courts can enjoin under 42 U.S.C. §1983, Dombrowski v. Pfister, (1965) 380 U.S. 479, 482, 14 L. Ed. 2d. 22, 85 S. Ct. 1116.

          Likewise with the Thirteenth Amendment as any violation is a violation of 18 U.S.C. §1584, a criminal statute.

          Before the Supreme Court, Mr. Knight would suggest analyzing 42 U.S.C. §1983 under the rules of statutory construction set forth in Negronsott, supra; 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 decisions were entered since Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 746.

          42 U.S.C. §1983[1] reads:

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.

Did the 1871 Congress actually intend that federal district courts abstain from hearing such a complaint merely because that complaint could be heard in the state courts if it is a complaint against actions under color of state law that includes court proceedings?  If not, then perhaps Younger misapprehended 42 U.S.C. §1983.  But Mr. Knight need not to make this argument to prevail in this case.

 

C.          Subject Matter Jurisdiction Not Dependent on 42 U.S.C. §1983

 

          Mr. Knight suggests that 42 U.S.C. §1994 provides subject matter jurisdiction to the federal courts independent of 42 U.S.C. §1983 either by itself or in conjunction with the federal question statute, 28 U.S.C. §1331[2] and 28 U.S.C. §1343(a)(4), as does 42 U.S.C. §§1981 and 1982, originally passed as the Civil Rights Act of 1866 on April 9, 1866, 14 Stat 27, and repassed on May 31, 1870, 16 Stat 144.  Neither §1981 nor §1982 have specific language providing subject matter jurisdiction to the federal courts.  Jones v. Alfred H. Mayer, Co., (1968) 392 U.S. 409, 412 n. 1, 20 L. Ed. 2d. 1189, 88 S. Ct. 2186 was brought under 28 U.S.C. §1343(a)(4) to enforce §1982.

          This was also found in Mahone v. Waddle, (3d Cir. 1977) 564 F. 2d. 1018, 1032-1036, cert. den. 438 U.S. 904.  Mahone at 564 F. 2d. 1033 specifically found that the Civil Rights Act of 1866 provided federal courts with subject matter jurisdiction co-extensive with the rights which it declared.  Thomas v. St. Luke’s Health Systems, Inc., (N.D. Iowa 1994) 869 F. Supp. 1413, 1425, affirmed (8th Cir. 1995) unpublished memorandum noted on 61 F. 3d. 908 found that claims under 42 U.S.C. §1981 require invocation of federal question jurisdiction under 28 U.S.C. §1331 citing Cabell v. Chavez-Salido, (1982) 454 U.S. 432, 434 n. 4, 70 L. Ed. 2d. 677, 102 S. Ct. 735 which found that subject matter jurisdiction existed for §1981 claim under 28 U.S.C. §1331.  In 1980 Congress deleted the requirement for $10,000 in amount in controversy for jurisdiction from 28 U.S.C. §1331.

          If 42 U.S.C. §§1981 and 1982 provide subject matter jurisdiction in the federal courts either by itself or in conjunction with 28 U.S.C. §§1331 and 1343(a), independent of 42 U.S.C. §1983, then it follows that 42 U.S.C. §1994 passed less than a year later, also provides subject matter jurisdiction by itself or in conjunction with 28 U.S.C. §§1331 and 1343(a).

          A further argument for independent jurisdiction is that a grand jury indictment for violation of 18 U.S.C. §1581 could be heard in the federal courts in a criminal prosecution.  Why would one part of the Antipeonage Act independently provide subject matter jurisdiction and not the other part?  Neither part of the Antipeonage Act has been amended to grant state court judges any immunity to liability whatsoever.

 

D.      Res Judicata Does Not Bar this Action

 

          The key problems for the appellees in making this argument is the passage of time, nine years, and the fact that the previous litigation occurred long before any actual contempt action was prosecuted against Mr. Knight.  The present case involves a challenge to an actual contempt prosecution against Mr. Knight.  The underlying facts of nonpayment of support upon which the state court contempt prosecution is based did not occur until after Mr. Knight was laid off by The Boeing Company on May 29, 1995.  Prior to that time, he was paying child support through wage garnishment and was thus not in danger of contempt prosecution as long as he maintained his employment.  See Brief of Appellant pages 44-45 citing ER 15-26, 30-65.  Thus the transactions from which the previous and present federal litigation arises are clearly separate, res judicata does not apply.

          Four criteria were established concerning res judicata: Whether rights or interests established in prior judgment be destroyed or impaired by second litigation, whether substantially same evidence is presented in the two actions, whether the two suits involve infringement of the same right, and whether the two suits arise out of the same transactional nucleus of facts.  The most important of these criteria is whether the two lawsuits arise out of the same transactional nucleus of facts, Costantini v. Trans World Airlines, (9th Cir. 1982) 681 F. 2d. 1199, 1201-1202.  Identity of causes of action “cannot be determined precisely by mechanistic application of a single test.” Id. at 1202 n. 7 citing Abramson v. University of Hawaii, (9th Cir. 1979) 594 F. 2d. 202, 206, which in turn cited Expert Electric, Inc. v. Levine, (2d Cir. 1977) 554 F. 2d. 1227, 1234, cert. den. 434 U.S. 903.  Expert Electric at 554 F. 2d. 1234 found:

before res judicata can attach and conclusive effect be given . . . it must be found that causes of action . . . and the nucleus of facts that underlay them, were identical.

 

and cited Commissioner of Internal Revenue v. Sunnen, (1948) 333 U.S. 591, 597, 92 L. Ed. 898, 68 S. Ct. 715.

          Sunnen determined in no uncertain terms that res judicata does not bar successive actions based upon different tax years, however similar the facts and the law applied to the facts.  This is exactly like Illustration 9 of the Restatement, Judgments §24(2) part d.  See Brief of Appellant page 46.  Res judicata simply does not apply to this appeal because it arises out of a different transaction than the previous litigation.  See Western Systems, Inc. v. Ulloa, (9th Cir. 1992) 958 F. 2d. 864, 871 and Brief of Appellant pages 45-46.

          Sunnen at 333 U.S. 598 allows that when litigation arises from different tax years, then collateral estoppel, which can be thought of as a narrow form of res judicata, may apply.  Therefore, the appellees have a better claim for collateral estoppel than they do for res judicata.  However, issue preclusion or claim preclusion only attaches where res judicata applies, it does not attach where only collateral estoppel applies, Sunnen at 333 U.S. 598:

the prior judgment acts as a collateral estoppel only as to those matters in the second proceeding which were actually presented and determined in the first suit.

  Sunnen at 333 U.S. 599-600 set forth limitations to the application of collateral estoppel:

 

But a subsequent modification of the significant facts or a change or development in the controlling legal principles may make that determination obsolete or erroneous, at least for future purposes. If such a determination is then perpetuated each succeeding year as to the taxpayer involved in the original litigation, he is accorded a tax treatment different from that given to other taxpayers of the same class. As a result, there are inequalities in the administration of the revenue laws, discriminatory distinctions in tax liability, and a fertile basis for litigious confusion. . . . Such consequences, however, are neither necessitated nor justified by the principle of collateral estoppel. That principle is designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally. It is not meant to create vested rights in decisions that have become obsolete or erroneous with time, thereby causing inequities among taxpayers.

And so where two cases involve income taxes in different taxable years, collateral estoppel must be used

 with its limitations carefully in mind so as to avoid injustice. It must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged. . . . If the legal matters determined in the earlier case differ from those raised in the second case, collateral estoppel has no bearing on the situation. . . . And where the situation is vitally altered between the time of the first judgment and the second, the prior determination is not conclusive. . . . As demonstrated by Blair v. Commissioner, 300 U.S. 5, 9, 57 S.Ct. 330, 331, 81 L.Ed. 465, a judicial declaration intervening between the two proceedings may so change the legal atmosphere as to render the rule of collateral estoppel inapplicable. . . . the supervening decision cannot justly be ignored by blind reliance upon the rule of collateral estoppel

 

Applying these principles to the present case, the intervening decisions cited in the Brief of Appellant on page 45 eliminate any conclusive effect of the earlier unpublished opinions arising out of the earlier litigation.

          The Sunnen concern with applying one set of rules to a taxpayer by virtue of that taxpayer having already litigated his issues when a subsequent judicial declaration mandates a different set of rules upon other taxpayers similarly situated results in the rule that neither res judicata nor collateral estoppel shall be applied where it will work injustice.  This also applies to the cases of Mr. Knight, Mark Durban, Raymond Ternes, Tom Skelly, and other noncustodial parents who challenged contempt proceedings or the threat of contempt proceedings as violation of the Antipeonage Act and the Thirteenth Amendment in the federal courts of this circuit.  These people are not barred from citing the effect of subsequent published opinions because such a bar works injustice when noncustodial parents who have yet to bring federal lawsuits challenging contempt proceedings as violation of the Antipeonage Act and the Thirteenth Amendment are not barred at all.

          Sunnen at 333 U.S. 601-602 further found:

 

But if the relevant facts in the two cases are separable, even though they be similar or identical, collateral estoppel does not govern the legal issues which recur in the second case.  Thus the second proceeding may involve an instrument or transaction identical with, but in a form separable from, the one dealt with in the first proceeding. In that situation, a court is free in the second proceeding to make an independent examination of the legal matters at issue. It may then reach a different result or, if consistency in decision is considered just and desirable, reliance may be placed upon the ordinary rule of stare decisis.  Before a party can invoke the collateral estoppel doctrine in these circumstances, the legal matter raised in the second proceeding must involve the same set of events or documents and the same bundle of legal principles that contributed to the rendering of the first judgment.

. . .It is readily apparent in this case that the royalty payments growing out of the license contracts which were not involved in the earlier action before the Board of Tax Appeals and which concerned different tax years are free from the effects of the collateral estoppel doctrine.  That is true even though those contracts are identical in all important respects with the 1928 contract, the only one that was before the Board, and even though the issue as to those contracts is the same as that raised by the 1928 contract. For income tax purposes, what is decided as to one contract is not conclusive as to any other contract which is not then in issue, however similar or identical it may be.

 

Sunnen points to a conclusion that the fact of the contempt prosecution against Mr. Knight in 2000, being separate from the absence of a contempt prosecution against Mr. Knight in the early 1990’s, precludes collateral estoppel.

 

E.          Anastasoff and the Constitutionality of the Rule that Unpublished

          Memorandum Decisions do not Create Precedent and the Due Process

          Consideration of Good Faith Reliance on Ninth Circuit Rule 36-3.

 

          Out of courtesy, on September 14, 2000 Mr. Knight sent a letter to Mr. Jeffrey Richard concerning Anastasoff v. United States, (8th Cir. 2000) 223 F. 3d. 898.  He thus cannot claim unfair surprise at Mr. Knight bringing this decision up in this Reply Brief.  He does not address it in his Brief.  This letter reads in part:

 

It was released during late August, and it concerns the local rules every circuit has about unpublished decisions not being precedent.  This includes the 9th Circuit Rule 36-3.

As you know, we have had quite a problem with unpublished decisions in the 9th Circuit in cases involving Civil Rights Act of 1871 suits for injunction of state court contempt proceedings as violation of the 13th Amendment and the Antipeonage Act.  Do we now ignore Circuit Rule 36-3 to fall in line with Anastasoff or do we consider the due process issue of all of these litigants, including ourselves in Knight v. Maleng, relying upon Circuit Rule 36-3, only to have the rug pulled out from under us by a decision that we could not anticipate.  After all, Brent Moss could not anticipate a future court decision that for the first time created an exception to the 13th Amendment for child support, in part because the 9th Circuit decisions on the issue then existing were not published and therefore did not have precedential value.

 

In Ballek, supra, this Court considered a Thirteenth Amendment challenge to 18 U.S.C. §228 important enough to decide by published opinion even though it was raised for the first time on appeal.  Which begs the question: if the cases brought in the early 1990’s by Mr. Knight and the other fathers herein above named raising in the district court as well as on appeal, both Thirteenth Amendment and Antipeonage Act challenges to child support contempt enforcement, did not warrant published opinions, then what was so different about Ballek?  Is it because Ballek lacked any challenge based upon the Antipeonage Act, and could thus be decided without endangering numerous state officers with felony prosecution?

          One significant impact with this Court’s decision to not publish its decisions in these early 1990’s cases is the fact that the California courts were not officially informed of this Court’s views on these challenges.  Either Mr. Moss, his public defenders, and the California judges did not know about this Court’s unpublished memoranda, or they acted in the good faith belief that under Circuit Rule 36-3, these memoranda did not establish precedent.  Then on August 22, 2000, the Eighth Circuit finds that its version of Circuit Rule 36-3 is unconstitutional, on Article III grounds.  This is the same Article III of the Constitution from which we derive our well developed rules of case or controversy standing.  Judge Arnold found that all decisions by an appellate court must set precedent, must respect stare decisis, or if in subsequent decision a different conclusion of law is found, the earlier decisions must be considered and in the subsequent decision, overruled.  The concurring opinion by Judge Heany suggested an en banc hearing to reconsider his court’s holding in the unpublished decision.

          Anastasoff found that:

 

Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177-78, 2 L. Ed. 60 (1803). This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties. James B. Beam Distilling Co. v. Georgia_, 501 U.S. 529, 544, 115 L. Ed. 2d 481, 111 S. Ct. 2439 (1991); Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 399, 5 L. Ed. 257 (1821).  These principles, which form the doctrine of precedent, were well established and well regarded at the time this nation was founded. The Framers of the Constitution considered these principles to derive from the nature of judicial power, and intended that they would limit the judicial power delegated to the courts by Article III of the Constitution.  Accordingly, we conclude that 8th Circuit Rule 28A(i), insofar as it would allow us to avoid the precedential effect of our prior decisions, purports to expand the judicial power beyond the bounds of Article III, and is therefore unconstitutional.

 

          So do the prior unpublished decisions by this Court provide binding precedent that can be overturned only for a specific reason?  Is Ninth Circuit Rule 36-3 unconstitutional as it provides for the same avoidance of the precedence of prior decisions?  The rule of precedent served equity, justice, and the protection of the people by the rule of law from arbitrary power of government:

 

In addition, the Framers had inherited a very favorable view of precedent from the seventeenth century, especially through the writings and reports of Sir Edward Coke; the assertion of the authority of precedent had been effective in past struggles of the English people against royal usurpations, and for the rule of law against the arbitrary power of government.  In sum, the doctrine of precedent was not merely well established; it was the historic method of judicial decision-making, and well regarded as a bulwark of judicial independence in past struggles for liberty.

 

          Exactly how would that work?  Mr. Ternes brought suit under 42 U.S.C. §1983 challenging state court contempt proceedings as violation of the Thirteenth Amendment and the Antipeonage Act, Ternes v. Berchard et al., W.D. Wash. No. C93-944R.  Judge Rothstein dismissed the complaint and imposed sanctions under FRCP 11.  This Court summary affirmed on appeal, but did not publish its decision, No. 93-35913; it does not appear to be noted on any table on any page of the Federal Reporter.  There is no question that neither this Court nor the district court followed precedent in this case.  This decision found:

 

Appellees’ motion to dismiss this appeal is construed as a motion for summary affirmance.  So construed, the motion is granted.  It is manifest from the appellant’s brief that the questions on which the cause depends are so insubstantial as not to need further argument.  See United States v. Hooten, 693 F. 2d. 857, 858 (9th Cir. 1982) (per curiam).  Appellees’ request for attorney’s fees and sanctions is denied.

 

In Hooten, this Court found that motions to affirm should be confined to appeals obviously controlled by precedent and cases in which the insubstantiability is manifest from the face of the appellant’s brief.  This summary affirmance was entered on December 22, 1993.  Exactly what precedent obviously controlled Mr. Ternes’ appeal on that date?  None, as admitted by the California Supreme Court in Brent Moss v. Superior Court, (1998) 71 Cal. Rptr. 2d. 215, 950 P. 2d. 59.  If the California courts did not consider this question to be frivolous, indeed, the state’s Court of Appeals found it to be meritorious, (1996) 56 Cal. Rptr. 2d. 864, 868-870, then how this Court found it to be “manifestly insubstantial” is a complete mystery.  Obviously, Judge Rothstein’s award of FRCP 11 sanctions is at variance with Neitzke v. Williams, (1989) 490 U. S. 319, 325, 104 L. Ed. 2d. 338, 109 S. Ct. 1827 in that Mr. Ternes’ claim contained legal points that are arguable on their merits.  This Court later found that the Thirteenth Amendment claim was so not frivolous, that it decided it in an appeal with published opinion where the issue was raised for the first time on appeal in Ballek, supra.

          What the Anastasoff Court is driving at is that the discipline of following precedent or explaining why not, would tend to prevent judges from such arbitrary actions as the summary affirmance in Ternes.  If Ternes established binding precedent, the obvious conflicts it has with other precedents would either make the exercise of appellate jurisdiction almost impossible for a sane judge, or Ternes would have to be overruled to restore the integrity of stare decisis.  That is why this doctrine was considered by the Framers of the Constitution to be a bulwark of liberty.  It is also appropriate to consider Anastasoff in light of the concerns for fairness with intervening precedent set forth in Sunnen, supra.

          The same kind of thing happened to Mr. Skelly, who proceeded in forma pauperis, the difference being was that he was denied a fair hearing as to his claim under 28 U.S.C. §1915(d).  Skelly v. Heidemann et al, (9th Cir. 1994) unpublished memorandum noted on 26 F. 3d. 132.  Mr. Skelly raised the same issue as Mr. Ternes.  This Court found in Skelly:

 

Here, Washington’s statute requires only that an obligor show that he “exercised due diligence in seeking employment, in conserving assets, or otherwise in rendering himself . . . able to comply with the court’s order.” See Wash. Rev. Code § 26.18.050(4).  There is no requirement that the obligor work.  Because the statute itself does not violate the prohibition against involuntary servitude, the defendants’ initiation of civil contempt proceedings could not have coerced Skelly’s employment in violation of his constitutional rights.

 

          Yet this Court later found in Ballek at 170 F. 3d. 875 that to toss 18 U.S.C. §228 because it violated the Thirteenth Amendment would upend the practice in all fifty states of enforcing child support obligations with contempt proceedings designed to coerce employment.  See Brief of Appellant page 26.  If Skelly is binding precedent, then Ballek overruled it because obviously contempt proceedings are intended to coerce the noncustodial parent to work!

          When this Court’s decisions are published and thus recognized to set precedent, not only is the Supreme Court more likely to grant a petition for writ of certiorari, this Court is more likely to rehear the case en banc, as happened in Lambert v. Ackerley, (9th Cir. 1999) 180 F. 3d. 997, reversing three judge panel decision, 156 F. 3d. 1018.  It is the abuse of Circuit Rule 36-3 that can lead to unjust decisions as happened in Ternes and Skelly.  Precisely because unpublished decisions were heretofore recognized as only affecting the parties involved, and then only to the extent covered by law of the case, res judicata, and collateral estoppel, such unpublished opinions not being recognized as creating circuit splits, the probability that a person adversely affected by an unpublished decision can obtain relief is reduced by the lesser incentive that the Supreme Court has to hear the case and that this Court has to rehear the case en banc.  Yet these are the only remedies available in any such case.

          The Antipeonage Act and Thirteenth Amendment issues were heard in Durbin v. Durbin et al, (9th Cir. 1993) unpublished memorandum noted on 12 F. 3d. 1106 and Knight v. Knight et al, (9th Cir. 1993) unpublished memorandum noted on 996 F. 2d. 1225.  When this Court elects to publish its decision in a case with the intention of setting precedent, its analysis is of far better quality than its analyses in these two cases.  Had this Court chosen such a course of action in either of these two cases, then this Court would have had to deal honestly with the legislative history of the Antipeonage Act as set forth by Mr. Knight and Mr. Durbin.  This legislative history is again set forth by Mr. Knight in this present case.  That legislative history includes Senator Lane’s remarks recorded on Congressional Globe, 39th Cong. 2d. Sess. p. 1571, ER 67, cited by both Mr. Knight and by Mr. Durbin in the previous cases.  If this Court considers these previous cases to establish precedent, then this Court must consider whether to overrule them because of the failure to account for the legislative history and the intent of Congress as indicated by Senator Lane, as well as the rules of statutory construction set forth in Negronsott, supra.

          There is one finding in Anastasoff with which Mr. Knight must beg to differ:  It is true that at the time that the Constitution was framed, many decisions were not published, but were recognized as setting precedent.  However, since then, we have established a very efficient means by which decisions can be published, as is evident by the Federal Reporter.  If this Court were to adopt the Anastasoff rule, or have it imposed by the Supreme Court, then due process would require this Court to publish all of its decisions and the previous unpublished decisions, so that litigants and their attorneys have fair warning and can find and read the precedents that affect their case.  This might mean that instead of publishing 25 to 30 new volumes of the Federal Reporter each year, 70 to 80 might be published.  But perhaps not.  Where two or more appeals raise identical or similar issues, they can be consolidated.  When they are not, this Court could simply write: “In light of our decision in Smith v. Jones, we reverse the district court’s decision and remand for further proceedings consistent with our decisions in this case and in Smith.”

 

V.          CONCLUSION

 

         For the reasons stated herein, the Order, Document No. 33, ER 7, denying Mr. Knight’s motion for summary judgment and granting defendant’s cross motion for dismissal, and the Judgment, Document No. 34, ER 6, should be reversed and this case be remanded for further proceedings consistent with such reversal.

Respectfully submitted this 10th day of October, 2000,

 

                                       __________________________________

                                                Roger W. Knight, appellant pro se