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 Brief of Appellee Gary Locke.  Appellee Norm Maleng elected not to file a brief.  Appellee Royanne M. Schmitz has apparently elected not to file a brief.  Mr. Knight respectfully requests that Mrs. Schmitz not be sanctioned for failure to file a brief on the grounds that such a sanction would serve no purpose.

II.          JURISDICTION

          Parties agree that this Court has appellate jurisdiction to review this case under 28 U.S.C. §1291.  It is Mr. Knight’s position that the district court had subject matter jurisdiction provided by 42 U.S.C. §1983, for enforcement of civil rights by 28 U.S.C. §1343(a)(3) and (4), and for federal question by 28 U.S.C. §1331 on the grounds that Rooker-Feldman doctrine[1] does not apply to an action for relief from an old state court judgment due to change in circumstances.

III.          ISSUES PRESENTED FOR REVIEW

          Because the appellees did not file a cross-appeal, they do not have the right to present their own issues for review.  Mr. Knight concedes that there is a considerable body of case law finding that this Court may affirm a district court decision on grounds other than those found by the district court.  However, such grounds do not exist in this case, which may explain why Appellee Norm Maleng elected not to file a brief.

IV.     AS TO GOVERNOR LOCKE’S STATEMENT OF THE CASE

          A careful review of the appellee’s Statement of the Case, in both Facts and Procedural History, reveals no significant errors.

V.          ARGUMENT

A.          Rooker- Feldman Doctrine

          The parties agree that the standard for review in this case is de novo, whether from summary judgments in general, Case v. Kitsap County, (9th Cir. 2001) 249 F. 3d. 921, 925, or from determinations of subject matter jurisdiction, Olson Farms, Inc. v. Barbosa, (9th Cir. 1998) 134 F. 3d. 933, 936 and Green v. City of Tucson, (9th Cir. July 9, 2001) 2__ F. 3d. _____.

          Governor Locke’s argument concerning the Rooker  Feldman doctrine does not address the central issue of this appeal: whether Rooker-Feldman applies to an action for relief from an old state court judgment due to a subsequent change of circumstances, including a new United States Supreme Court decision that changes the law affecting the case.  It is merely a generalized argument that it prohibits federal court review of a final state court decision, whether that decision became final before or after exhausting all remedies in the state court system to meet the 28 U.S.C. §1257 standard for United States Supreme Court review.

          Without Troxel v. Granville, (2000) 530 U.S. 57, 147 L. Ed. 2d. 49, 120 S. Ct. 2054, 2061[2] there is no reason for Mr. Knight to bring this action in either state court or federal court.  Troxel provides Mr. Knight grounds to move for a modification of the child support order.

          A petition to permanently deprive parents of custody of a child is considered a new and separate proceeding, even if there is a dependency action in the same case.  In re Dependency of Hiebert, (1981) 28 Wash. App. 905, 908-909, 627 P. 2d. 551.  As such it is an exercise of the superior court’s original jurisdiction.

          In re Marriage of Olson, (2000) 100 Wash. App. 911, 915-916, 999 P. 2d. 1286 mandated superior court consideration of a motion to modify a child support order as provided by RCW 26.09.170.  However, RCW 26.09.170(1) prohibits the superior courts from modifying the child support orders for months previous to the filing of such motion, Olson at 100 Wash. App. 916 n. 6 and In re Marriage of Shoemaker, (1995) 128 Wash. 2d. 116, 121-123, 904 P. 2d. 1150.

          Shoemaker reversed a superior court decision reinstating a child support order five years after a previous decision vacated it.  When the superior court reinstated the order, it assessed the noncustodial parent five years worth of child support under the previously vacated order.  The Supreme Court of Washington found that RCW 26.09.170(1) prohibited such a modification for months gone by.

          Shoemaker proves Mr. Knight’s contention that he lacks adequate remedy at law in the state courts for the portion of his claim for relief for months prior to the month he brought it.  Whether a motion to modify a child support order is a direct or collateral attack on the original support order, or no attack at all because of the requirement under RCW 26.09.170 that a modification be based upon a subsequent change of circumstances with certain statutorily defined exceptions, a superior court decision on the motion may be appealed and the Supreme Court of Washington may review the decision, as it did in Shoemaker.  This is even if the Supreme Court of Washington made a decision or when the deadline for seeking such appellate review has passed on the original support order.  A final decision by the Supreme Court of Washington can be reviewed by the United States Supreme Court under 28 U.S.C. §1257.  Thus, a motion to modify is an exercise of the superior court’s original jurisdiction.

          Because Troxel changed the law affecting the case long after the original support order, a 42 U.S.C. §1983 action for relief is neither an appellate review of nor a collateral attack against the original support order.  Because the Washington courts did not have Troxel to consider when the original support order was imposed, Mr. Knight’s claim is not “inextricably intertwined” with the original support order.  Feldman at 460 U.S. 482.  Doe & Associates v. Napolitano, (9th Cir. June 6, 2001) 25_ F. 3d. _____ found:

Where the district court must hold that the state court was wrong in order to find in favor of the plaintiff, the issues presented to both courts are inextricably intertwined.

 

This is simply not the case where the issue is based upon the subsequent change in the law in Troxel.  Polites v. United States, (1960) 364 U.S. 426, 437, 5 L. Ed. 2d. 173, 81 S. Ct. 202.  The courts of Washington can no more predict a subsequent change in the law by judicial decision than Mr. Brent Moss.[3]  They have not decided whether Troxel changed the law affecting the child support order in any case involving Mr. Knight.  Thus, no inextricable intertwining and district court has original jurisdiction.  Worldwide Church of God v. McNair, (9th Cir. 1986) 805 F. 2d. 888, 892 quoting Robinson  v. Ariyoshi, (9th Cir. 1985) 753 F. 2d. 1468, 1472.

          Therefore, this action is an exercise of the district court’s original jurisdiction, which it has under 42 U.S.C. §1983, 28 U.S.C. §1343(a)(3) and (4), and 28 U.S.C. §1331.

B.          Eleventh Amendment

          Appellee Governor Gary Locke raises the Eleventh Amendment issue that the district court declined to rule on.  Order Granting Defendants’ Motions for Summary Judgment, page 7, ER 15.  Governor Locke raised this issue in the district court, Memorandum in Opposition to Plaintiff’s motion for Summary Judgment and in Support of Defendant’s Motion for Summary Judgment (Locke Memo), Document No. 26, pages 4-7, SER 11-14.  Governor Locke does not raise any immunity issue with respect to the other appellants.  By not filing Briefs the other appellants waived any claims for immunity for purposes of this appeal.  If this Court affirms on this basis, it should only affirm with respect to Governor Locke.  However, Governor Locke is not immune to prospective injunctive relief.

          Ex parte Young, (1908) 209 U.S. 123, 157-168, 52 L. Ed. 714, 28 S. Ct. 441 found that state officers can be sued in their individual capacities under the Civil Rights Act of 1871, now codified as 42 U.S.C. §1983, notwithstanding the Eleventh Amendment.[4]

          Appellee Norm Maleng raised the argument that Imbler v. Pachtman, (1976) 424 U.S. 409, 47 L. Ed. 2d. 128, 96 S. Ct. 984 provides prosecutors with absolute immunity, Memorandum of Defendant Maleng in Opposition to Plaintiff’s Motion for Summary Judgment and in Support of Defendant’s Motion for Summary Judgment (Maleng Memo), Document No. 23, page 2, SER 26 lines 37-41.  Imbler found that the absolute immunity applies to damages, but is silent on the issue of prospective injunction.  Ex parte Young, at 209 U.S. 159-160 and its progeny provides that prospective injunctive relief is available against prosecutors and other state actors.  Issue is waived by Appellee Maleng by not filing a brief.

          Governor Locke brings the argument that the Eleventh Amendment bars 42 U.S.C. §1983 suits against state officers enforcing unconstitutional and therefore void statutes as well as against states.  Edelman v. Jordan, (1974) 415 U.S. 651, 666-668, 39 L. Ed. 2d. 662, 94 S. Ct. 1347 merely confined the Ex parte Young rule to prospective injunctive relief, which the plaintiff requests.  Alabama v. Pugh, (1978) 438 U.S. 781, 57 L. Ed. 2d. 1114, 98 S. Ct. 3057 only dismissed the state and a state agency, leaving the injunction intact against the state officers.

          Florida Dept. of State v. Treasure Salvors, Inc., (1982) 458 U. S. 670, 684-690, 73 L. Ed. 2d. 1037, 102 S. Ct. 3304 affirmed Ex parte Young and found at 458 U.S. 697 that it applied where state officers were ordered to return property not owned by the state.  A federal court order to return such property implicates the Eleventh Amendment considerably less than a federal court order requiring the state to make a payment out of its treasury.  If a state has no right, after Troxel, to take funds for child support beyond the amount necessary to allow the custodial parent to adequately care for the child, which is no funds at all if the custodial parent has such resources, because such is offensive to the Fourteenth Amendment, the Eleventh Amendment is no bar to an order to return such funds.  Child support money belongs either to the paying parent or to the receiving parent.  It does not belong to the state, the state only acts as the conduit for the funds transfer.  There is certainly no Eleventh Amendment bar to any federal court judgment that the receiving parent owes a refund to the paying parent.

          This Court recently affirmed that prospective injunctive relief under Ex parte Young is available against state officers violating bankruptcy court injunctions, In re Ellett, (9th Cir. July 16, 2001) 2 __ F. 3d. ____.   Note 3 to Ellett cites Hoffman v. Connecticut Dept. of Income Maintenance, (1989) 492 U.S. 96, 102, 106 L. Ed. 2d. 76, 109 S. Ct. 2818 and finds that state can be bound by discharge of debts in bankruptcy, including unpaid taxes, but would not be subject to monetary recovery.  Taxes paid, unlike child support, belong to the state.

          Ellett analyzed actions of a state tax collector under the exceptions to Ex parte Young in Seminole Tribe v. Florida, (1996) 517 U.S. 44, 73, 134 L. Ed. 2d. 252, 116 S. Ct. 1114 and Idaho v. Coeur d’Alene Tribe, (1997) 521 U.S. 261, 281-288, 138 L. Ed. 2d. 438, 117 S. Ct. 2028.  Seminole Tribe found that Ex parte Young prospective injunctive relief is precluded where Congress enacted a remedial scheme to enforce the specific right within the statute.

          Coeur d’Alene Tribe at 521 U.S. 281-288 found that because the Tribe’s claim is effectively a quiet title action that implicated state ownership and sovereignty over the submerged lands in question, Ex parte Young did not apply to afford the Tribe prospective injunctive relief.  Furthermore, the Tribe has adequate remedy at law to present its claim in the Idaho courts.

          Chief Justice Rehnquist and Justice Kennedy made some observations of Ex parte Young in Coeur d’Alene.  At 521 U.S. 270-273, they found that access to federal court for prospective injunctive relief should be available where there is no state forum available to vindicate federal interests, citing Ex parte Young at 209 U.S. 166.  For the railroad officials, the penalties for noncompliance were so severe that they could not test the law without grave risk of heavy fines and imprisonment.  Thus a federal suit for

injunctive relief is “undoubtedly the most convenient, the most comprehensive and the most orderly way in which the rights of all parties can be properly, fairly and adequately passed on.”

          This is most certainly true for child support.  Once contempt proceedings under RCW 26.18.050 and chapter 7.21 RCW begin, a noncustodial parent risks imprisonment every time he steps into a Washington courtroom to be heard on any issue he may present with respect to his domestic relations matters or even with respect to any other matter.  This is a significant deterrent to the exercise of his right to due process of law under the Fourteenth Amendment and under Article I Section 3 of the Washington Constitution.  Given that RCW 26.09.170(1) prohibits the state’s courts from granting any relief whatsoever from the past due child support debt regardless of any reason that may be exist for such relief, Ex parte Young and Coeur d’Alene Tribe are additional authorities supporting Mr. Knight’s claim that the federal courts may grant him prospective injunctive relief against the state officers.

          If Governor Locke has personal involvement in the enforcement of child support statutes or he indirectly causes the deprivation, then he is a proper party in a 42 U.S.C. §1983 action.  Arnold v. International Business Machines Corp., (9th Cir. 1981) 637 F. 2d. 1350, 1355.  Ex parte Young, at 209 U.S. 157 found that a state officer is a proper party if “by virtue of his office, has some connection with the enforcement of the act”.

          Governor Locke raises a specious argument that he is not a person when acting in his official capacity.  But that is not the case where the state officer is being sued in his official capacity for prospective injunctive relief.  Will v. Michigan Dept. of State Police, (1989) 491 U.S. 58, 71 n. 10, 105 L. Ed. 2d. 45, 109 S. Ct. 2304.  Hamilton v. Endell, (9th Cir. 1992) 981 F. 2d. 1062 arose from a suit for damages for actions already taken, not for prospective injunctive relief.  It does not apply to prospective injunction because once injunction is granted, qualified immunity is no longer an issue, the right is clearly established.

          The Governor raises the argument that he cannot be sued under 42 U.S.C. §1983 on the basis of respondeat superior.  Monell v. Dept. of Social Services, (1978) 436 U.S. 658, 663 n. 7, 56 L. Ed. 2d. 611, 98 S. Ct. 2018 upheld Monroe v. Pape, (1961) 365 U.S. 167, 187-192, 5 L. Ed. 2d. 492, 81 S. Ct. 473[5] as to the respondeat superior doctrine while otherwise reversing as to liability of municipalities.  Monell at 436 U.S. 691-693 provides that liability does not apply to a municipality unless the actions of its agents are pursuant to an official policy.  If the agent of the municipality is enforcing an official policy of the municipality, the municipality can be held responsible.

          Chapter 26.19 RCW is an official policy of the State of Washington, enforced by its agents, including its Governor.  Governor Locke actually argues:

Knight has not alleged that Governor Locke directed, participated in, or had knowledge of the alleged conduct resulting in the deprivation of a constitutional right.

Brief of Appellee Gary Locke page 9.  Gary Locke was a prominent Democrat in the Washington House of Representatives when Laws of Washington 1988 c. 275, which became chapter 26.19 RCW, was passed.  He co-sponsored this bill, shepherded it through the committees, and he voted for it.  It is thus highly unlikely that he does not know that the purpose of this bill is “to provide additional child support commensurate with the parents’ income, resources, and standard of living.” RCW 26.19.001, Laws 1988 c. 275. §1.  Mr. Knight is not asking that Governor Locke be held responsible for actions in the past, he is only asking for prospective injunction against enforcing the law Locke helped pass.

          Regardless of who holds the office, Mr. Knight presented plenty of evidence in the district court of the Governor of Washington’s direct and indirect involvement in the enforcement of the state’s child support laws:

          Attached to the Declaration of Roger W. Knight in Support of Motion for Summary Judgment (Knight Declaration II), Document No. 20, FER 1-8, are true and correct copies of the cover letter sent by Assistant Attorney General Lianne S. Malloy and the Response to Plaintiff’s First Interrogatories and Request for Production with excerpts from the documents produced in response to the Request for Production.  The cover letter, FER 4, reads:

I am enclosing Governor Locke’s response to your interrogatories and request for production.

Attached to this cover letter is the Response that contains considerable information about the child support paid by Mr. Knight and how that money was disbursed.  Governor Locke thus produced a considerable amount of confidential information that the Division of Child Support (DCS) will not disclose except to those persons authorized by law to receive such information.  This information was retrieved at the request of the Attorney General’s Office while representing the Governor in this case.  The Answer to Interrogatory No. 2 reads:

Defendant Locke’s records show that Defendant Schmitz may have received medical assistance after 1995.

          If Governor Locke has nothing to do with the enforcement of child support, then they are not his records.  As they are his records, then he has by virtue of his office some connection with the enforcement of child support.

          The Second Declaration of Roger W. Knight in Support of Plaintiff’s Motion for Summary Judgment and in Opposition to Locke’s Cross Motion for Summary Judgment (Knight Declaration III), Document No. 34, FER 9-20, was submitted to clarify the Answers to Interrogatories and Requests for Production submitted by Governor Locke.  Attached to this Declaration is a copy of the Plaintiff’s First Interrogatories and Requests for Production to Defendants Maleng and Locke, FER 11-20.

          The Answer to Interrogatory No. 5, FER 6 reads:

Documents in possession of DSHS include the case payment history screen and IV-A history screen.

          The first sentence of Interrogatory No. 5, FER 15 reads:

Identify each and every document which or is in the possession or custody of NORM MALENG and GARY LOCKE on which was recorded or compiled child support paid by ROGER W. KNIGHT during the period from September 29, 1987 to the present.

Governor Locke admitted to possession or custody of the case payment history because Mr. Knight asked about documents in possession or custody of Mr. Maleng and Governor Locke.

          Interrogatory No. 6, FER 16, reads in its entirety:

In the Answer of Defendant Maleng, on page 3 paragraph 8 it is asserted: “Defendant admits paragraph 8 except the following: Defendant denies that either the Division of Child Support (DCS) or the Washington State Support Registry (WSSR) is headed by a direct appointee of the governor.”  In the Answer prepared by Assistant Attorney General Lianne Malloy on behalf of defendant LOCKE, on page 2 paragraph 8 it is asserted: “The defendant admits the allegations contained in paragraph eight except denies that the division of child support maintains the registry; that the registry is directed by an appointee of the governor who serves at the governor’s pleasure; and that an injunction against the governor should serve as an injunction against all employees of the Division of Child Support.  By way of further statement, the defendant asserts that the Director of the Division of Child Support is appointed by the Secretary of Department of Social and Health Services.”  Aside from the self-contradictions contained in these statements, these are the facts as known to the plaintiff:  Defendant GARY LOCKE is the Governor of Washington and he won re-election to this office on November 7, 2000.  Shortly before the election he appointed Dennis Braddock as Secretary of Department of Social and Health Services.  Governor LOCKE fired the previous Secretary of DSHS.  Governor LOCKE may, at his discretion, fire Dennis Braddock at any time during his current and subsequent term of office for any reason and replace Mr. Braddock with another person of his choosing. (If such person accepts the job offer, the Thirteenth Amendment prohibits state governors from drafting their appointees.)  The Washington Constitution does not require advise or consent of the Legislature or any other entity for such gubernatorial appointments.  As long as Dennis Braddock remains as Secretary of DSHS, he has hire and fire authority over all management level employees of the DSHS, including the Director of the Division of Child Support.  A court injunction would require Governor LOCKE to give the appropriate orders to Dennis Braddock.  If Mr. Braddock does not follow them, Governor LOCKE can replace him with somebody who will.  If either defendant MALENG or defendant LOCKE has any information that any of these facts as known to the plaintiff are false, then please set forth this information here.

And the information set forth by Governor Locke, FER 6:

Mr. Quasim was not fired by Governor Locke.  It is unclear what is meant by “management level employees” since this term is not defined.  The Secretary of DSHS has the ability to hire and fire management level employees in accordance with state law.

       The plaintiff can be forgiven for believing that the previous director of the Department of Social and Health Services (DSHS), Lyle Quasim, was fired by Governor Locke.  But every other fact set forth by the plaintiff in Interrogatory No. 6 is not contradicted by Governor Locke in his answer.  These other facts can be taken as admitted.

          The Governor of Washington appoints the Secretary of DSHS.  He can fire the Secretary anytime for any reason and appoint a replacement, in this case Dennis Braddock.  The Washington Constitution and the Revised Code of Washington do not require the advice and consent of the Legislature or either House thereof.  Mr. Braddock became Secretary of DSHS without such Legislative approval.  The Secretary of DSHS in turn has hire and fire authority over the Director of DCS.  Specifically admitted by Governor Locke in that the Director of DCS is a management level employee of DSHS.  The Secretary’s appointment power is spelled out in RCW 74.04.011.  Should the Governor ask the Secretary of DSHS to fire the current Director of DCS, the Secretary will carry out the command unless he decides to resign instead.  Through this chain of command, the Governor of Washington, by virtue of his office, has some connection with the enforcement of the child support statutes.

          Furthermore, in the event that the Mr. Knight may choose to live in another state, RCW 26.21.640 and RCW 26.21.650 set forth the authority of the Governor of Washington to seek extradition of the plaintiff upon a claim of criminal nonpayment of support.  Should the federal courts determine that the support order is based upon an unconstitutional statute, they can enjoin the Governor from seeking extradition of the plaintiff in the future.

          Therefore, Governor Locke is not immune to an action for prospective injunctive relief in this case.

          Mrs. Schmitz is a state actor in that she has acted in concert with state officers in the enforcement of the child support order based upon chapter 26.19 RCW, she is not merely acting as a private person.  She has made use of state procedures including a contempt prosecution with the help of state officers to obtain at least an additional $8,505.59[6], since May 1995, and has accepted payment of these funds.  She is a proper party to this action and is liable for both injunction and damages in the amount of at least $8,505.59 for acting under color of state law to violate the plaintiff’s Fourteenth Amendment rights. Lugar v. Edmonson Oil Co., (1982) 457 U.S. 922, 73 L. Ed. 2d. 482, 102 S. Ct. 2744, and Gritchen v. Collier, (9th Cir. June 13, 2001) 25_ F. 3d. ____, police officer threatening defamation suit is a private actor where he is not acting jointly with state officers.

C.      Res Judicata and Collateral Estoppel

          Governor Gary Locke raises the res judicata and collateral estoppel issues that the district court declined to rule on.  Order, page 7, ER 15.  Governor Locke raised these issues in the district court, Locke Memo, Document No. 26, pages 7-11, SER 14-18.  Mr. Knight concedes that if these equitable doctrines apply, then they apply with respect to all three appellees.

          However, these doctrines do not apply to this case because Troxel changed the law controlling the case.  Please see Brief of Appellant pages 15-22, incorporated herein by reference.

          Commissioner of Internal Revenue v. Sunnen, (1948) 333 U.S. 591, 599-600 597, 92 L. Ed. 898, 68 S. Ct. 715 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.

 

Blair v. Commissioner of Internal Revenue, (1937) at 300 U.S. 9 found that with respect to res judicata:

Here after the decision in the first proceeding, the opinion and decree of the state court created a new situation.  The determination of petitioner’s liability for the year 1923 had been rested entirely upon the local law.  Commissioner v. Blair, 60 F. (2d) 340, 342, 344.  The supervening decision of the state court interpreting that law in direct relation to this trust cannot justly be ignored in the present proceeding so far as it found that the local law is determinative of any material point in controversy.

Res judicata and collateral estoppel are equitable doctrines and as such, are subject to exceptions based upon equity, including as found above, the affect of a subsequent court decision that changes the law upon which the previous judgment was entered.

          Where a subsequent Supreme Court decision changes the circumstances, Restatement, Judgments §24(2), part f, speaks to this situation:

Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first.  See illustrations 10-12.  Where important human values - such as the lawfulness of a continuing personal disability or restraint - are at stake, even a slight change of circumstances may afford a sufficient basis for concluding that a second action may be brought.

          Important human values, such as the lawfulness of a personal disability, in this case the child support order, are at stake in this action.  Therefore, even a slight change in circumstances, in this case a subsequent Supreme Court decisions, should afford a sufficient basis for concluding a second action may be brought.

          Applying these principles to the present case, the intervening decision, Troxel v. Granville, eliminates any conclusive effect of earlier decisions arising out of the earlier litigation, whether by Mr. Knight or by any other person challenging the Constitutionality of child support statutes and practices.  Troxel was not available prior to June 5, 2000.

          The Blair Court’s and the Sunnen Court’s 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, Del Parker and other noncustodial parents who have challenged child support orders and statutes.  These people are not barred from citing the effect of Troxel because such a bar works injustice when noncustodial parents who have yet to challenge the validity of child support orders and statutes are not barred at all.  To bar them without chance to litigate denies due process of law.  Blonder-Tongue Laboratories v. University of Illinois, (1971) 402 U.S. 313, 329, 28 L. Ed. 2d. 788, 91 S. Ct. 1434 citing Hansberry v. Lee, (1940) 311 U.S. 32, 40, 85 L. Ed. 22, 61 S. Ct. 115.

          Governor Locke cites 28 U.S.C. §1738[7] and argues that it requires the federal courts to give the same res judicata effect to state court judgment that the state itself gives them.  Allen v. McCurry, (1980) 449 U.S. 90, 96-105, 66 L. Ed. 2d. 308, 101 S. Ct. 411 found that res judicata collateral estoppel bars relitigation in federal court a question decided in state court.  Migra v. Warren City School Board of Education, (1984) 465 U.S. 75, 80-85, 79 L. Ed. 2d. 56, 104 S. Ct. 892 found that claim preclusion bars litigation in federal court of a claim that was or could have been raised in a state court proceeding.

          The obvious problem with this is that the Washington courts have never decided the issue of whether Troxel changed the controlling law relevant to child support orders in any case involving Mr. Knight and cannot have made this decision in the original child support proceeding.  Therefore, the parties have not had a full and fair opportunity to litigate this issue.

          Taking Governor Locke’s position on 28 U.S.C. §1738 at face value, the Washington courts find that the equitable doctrines of res judicata, collateral estoppel, and claim preclusion are equitably limited and shall not apply as to work injustice.  Res judicata: In re Metcalf, (1998) 92 Wash. App. 165, 174, 963 P. 2d. 911 citing Henderson v. Bardahl International Corp., (1967) 72 Wash. 2d. 109, 119, 431 P. 2d. 961.  Collateral estoppel: Metcalf, at 92 Wash. App. 174 citing State v. Williams, (1997) 132 Wash. 2d. 248, 254, 937 P. 2d. 1052.  Metcalf’s issues were important, therefore collateral estoppel and res judicata did not apply.  Metcalf, at 92 Wash. App. 176, citing Southcenter Joint Venture v. National Democratic Policy Commission, (1989) 113 Wash. 2d. 413, 418-9, 780 P. 2d. 1282 citing Kennedy v. City of Seattle, (1980) 94 Wash. 2d. 376, 379, 617 P. 2d. 713.  Res judicata is not intended to deny a litigant his day in court, Schoeman v. New York Life Ins. Co., (1986) 106 Wash. 2d. 855, 860, 726 P. 2d. 1, citing Luisi Truck Lines, Inc. v. Utilities and Transportation Commission, (1967) 72 Wash. 2d. 887, 894-7, 435 P. 2d. 654.  Res judicata is not to be applied so rigidly as to deny litigant his day in court, primary purpose of courts is to administer justice.  There can be little doubt as to the importance of the issue raised by the plaintiff, given the large numbers of parents affected and the gravity of the challenge asserted.  See Metcalf at 92 Wash. App. 176.

          These doctrines are statutorily modified by RCW 26.09.170 with respect to child support orders, but only for months subsequent to the filing of the motion.  Therefore, it is consistent with Washington res judicata and claim preclusion practice as required by 28 U.S.C. §1738 for the federal courts to hear Mr. Knight’s claim for relief from an old child support judgment on the basis of the new decision in Troxel.

VI.          CONCLUSION

          For the reasons stated herein, the Order Granting Defendants’ Motions for Summary Judgment, Document No. 43, ER 9-15 and the Judgment, Document No. 44, ER 8, should be reversed or vacated and this case be remanded for further proceedings consistent with such reversal.

Respectfully submitted this 27th day of July, 2001,

 

                                       _______________________________

                                                Roger W. Knight, appellant pro se