Judge Richard Jones

  

SUPERIOR COURT OF WASHINGTON

IN AND FOR THE COUNTY OF KING

 

ROGER W. KNIGHT,                                    )

                                                                        )           No.  03-2-27325-2 SEA

                                    petitioner,                     )

                                                                        )           AMENDED PETITION FOR JUDICIAL

            v.                                                         )           REVIEW OF AGENCY DECISION,

                                                                        )           CHAPTER 34.05 RCW

STATE OF WASHINGTON, and                   )

DEPARTMENT OF SOCIAL AND               )

HEALTH SERVICES,                                     )

                                                                        )

                                    respondent.                  )

____________________________________)

 

            COMES NOW ROGER W. KNIGHT, to petition for judicial review of an agency decision under chapter 34.05 RCW.

NAME AND MAILING ADDRESS OF PETITIONER

            Roger W. Knight

            Redacted for this Website

            Seattle, Washington 98redacted for this website

 

NAME AND MAILING ADDRESS OF PETITIONER’S ATTORNEY

            Roger W. Knight, pro se

            c/o ActionLaw.net

            Redacted for this Website

            Seattle, Washington 98Redacted for this Website

 

NAME AND MAILING ADDRESS OF AGENCY

            Department of Social and Health Services, Division of Child Support

            500 First Avenue South

            Seattle, Washington 98104-2830

 

AGENCY DECISIONS AT ISSUE

            Final Order dated May 6, 2003, mailed May 21, 2003.  The case is filed under the agency docket number 03-2003-C-1839.  Please see attached Exhibit A.

PARTIES TO ADJUDICATIVE PROCEEDINGS

            Roger W. Knight and the Department of Social and Health Services, Division of Child Support.

FACTS THAT DEMONSTRATE PETITIONER IS ENTITLED TO JUDICIAL REVIEW

             Petitioner’s license to operate a motor vehicle is indefinitely suspended, thus he is prejudiced within the meaning of RCW 34.05.530(a).  The Final Order did not require restoration of the license, petitioner’s interest in the license was the interest the agency was required to consider, within RCW 34.05.530(b).  A judicial decision in favor of the petitioner would substantially eliminate or redress the prejudice to the petitioner’s interest, in that he would be entitled to restoration of his license to operate a motor vehicle, thus satisfying the requirements of RCW 34.05.530(c).  Therefore he has standing to challenge the agency decision under RCW 34.05.530 in that he is aggrieved and adversely affected by the agency decision.

            The Statement of the Case is as follows:

            March 11, 2003, the respondent agency served upon the petitioner the Notice of Noncompliance and Intent to Suspend Licenses.

            On March 12, 2003 the petitioner served his Request for Adjudicative Hearing, RCW 74.20A.320 Request to Restore Driver’s License or Notice that it has Been Restored.

            On April 16, 2003 the parties appeared before Administrative Law Judge Gail G. Maurer of the Office of Administrative Hearings.  The parties testified as to facts and gave argument as to law during this hearing.

            On May 6, 2003, Administrative Law Judge Gail G. Maurer entered the Final Order.

            On May 21, 2003, the Office of Administrative Hearings re-mailed the Final Order due to problems with the United States Postal Service delivering mail to the petitioner.

            While Mr. Knight may request a reconsideration of the Final Order by the Administrative Law Judge, he may appeal the Final Order to this Court without requesting such administrative reconsideration, RCW 34.05.534(2) and RCW 34.05.470(5).  This petition is filed and served less than 30 days after the re-mailing of the Final Order and is therefore timely under WAC 388-02-0645 and RCW 34.05.542(3).

            This Court has jurisdiction under Article IV Section 6 of the Washington Constitution.  This Court has venue under chapter 4.12 RCW and under RCW 34.05.514(1).

ARGUMENT FOR RELIEF

A.        Introduction

            RCW 34.05.570(3) provides that a court in reviewing agency orders in adjudicative proceedings shall grant relief if it determines:

            (a) The order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied.

            (b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;

            (c) The agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure;

            (d) The agency has erroneously interpreted or applied the law;

 

            The petitioner is under an order to pay child support entered in In re Marriage of Knight, King County Superior Court No. 90-3-04471-1.  The decree was entered on July 11, 1991, setting the payment rate at $851.76 per month.  It has not been modified since.  RCW 74.20A.320 was enacted as part of the Workfirst Act, Laws 1997 chapter 58.  If this bill does not apply to support orders entered prior to its effective date, July 1, 1997, where such support orders are not modified, then the respondent agency lacked statutory authority to suspend the petitioner’s license, within RCW 34.05.570(3)(b) and therefore the agency has engaged in an unlawful procedure within RCW 34.04.570(3)(c), and has erroneously interpreted and applied the law within RCW 34.05.570(3)(d).  If the bill applies to support orders entered prior to its effective date, July 1, 1997, where such support orders are not modified, then it is in violation of constitutional provisions on its face and as applied, within RCW 34.05.570(3)(a).

            On May 29, 1995, Mr. Knight was laid off from his employment by The Boeing Company.  After that he stopped making regular payments for child support.  In spite of almost six years of paycheck garnishment for child support, Mr. Knight was still several thousand dollars behind in compliance with the support order at the time of layoff.  Mr. Knight has not had income sufficient since to pay $851.76 per month and thus has not had income sufficient to pay any amount toward any arrearage.  As found in the Final Order page 1, the arrearage as of December 26, 2002 is $66,229.69.  Mr. Knight is at present, unable to find employment that generates income sufficient to cover this arrearage and the currently monthly amount.

            Mr. Knight cannot enter into any repayment agreement as contemplated by RCW 74.20A.320(5) without committing fraud.  If he does, he “shall by color or aid of any false or fraudulent representation, pretense, token or writing induce any creditor to participate in the benefits of such assignments” which is defined as a gross misdemeanor by RCW 9.45.100.  If he knows he cannot pay a sum each month sufficient to cover the repayment agreement, and he induces the creditor to participate in the benefit of such assignment, he would be making a false or fraudulent representation.

            Mr. Knight is barred from obtaining any reduction in the arrearage by RCW 26.09.170(1).  The Administrative Law Judge ignored this fact when finding:

Mr. Knight could avoid its impact by paying support, seek modification and enter into an agreement to pay arrears support.

 

The Administrative Law Judge does not identify any facts, and none were submitted into the record by either party, to support the proposition that Mr. Knight possesses $66,229.69 with which to pay the support arrearage, or can obtain such funds, or where he can obtain income sufficient to pay this arrearage plus the current support, as established by the pre-existing support order, of $851.76 per month.

            Where findings of fact cannot be supported by substantial evidence, or is against the weight of evidence, such findings of fact cannot stand on appeal.  Substantial evidence is that which is sufficient to persuade a fair minded person of the truth or correctness of the challenged finding.  Campbell v. Board of Volunteer Firefighters, (2002) 111 Wash. App. 413, 45 P. 3d. 216; Brighton v. Washington Department of Transportation, (2001) 109 Wash. App. 855, 862, 38 P. 3d. 344; and In re Contested Election of Schoessler, (2000) 140 Wash. 2d. 368, 385, 998 P. 2d. 818.

B.        Smith and Cruz Test

            The WorkFirst Act does not embrace a Legislative declaration of retroactive application to pre-existing support orders under the Smith and Cruz test  State v. Cruz, (1999) 139 Wash. 2d. 186, 190-191, 985 P. 2d. 384 found:

            The presumption against retroactive application of a statute “is an essential thread in the mantle of protection that the law affords the individual citizen.  That presumption ‘is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.’”  Lynce v. Mathis, 519 U.S. 433, 439, 117 S. Ct. 891, 895, 137 L. Ed. 2d 63 (1997) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 1497, 128 L. Ed. 2d 229 (1994)).  See also In re Personal Restraint of Shepard, 127 Wn. 2d 185, 193, 898 P. 2d 828 (1995) (court presumes newly enacted statutes operate prospectively).  The constitutional prohibition against ex post facto legislation is but a further manifestation of the repugnance with such retroactive legislation is viewed.  See Landgraf, 511 U.S. at 266.  Nonetheless, an amendment to a statute, such as the 1990 change to the SRA, will be applied retroactively if: (1) the legislature so intended; (2) it is “curative”; or (3) it is remedial, provided, however, such retroactive application does not run afoul of any constitutional prohibition.  In re F.D. Processing, Inc., 119 Wn. 2d 452, 460, 832 P. 2d 1303 (1992).

 

Reaffirmed and quoted by State v. Smith, (2001) 144 Wash. 2d. 665, 671-672, 673, 30 P. 3d. 294, 39 P. 3d. 294.  Cruz went on to find that Laws 1990 chapter 3 §1406(2) contained a specific legislative command that the statute applies prospectively:

            (2) Sections 201 through 203, 301 through 305, 701 through 706, and 901 through 904 shall take effect July 1, 1990, and shall apply to crimes committed after July 1, 1990.

 

Cruz at 139 Wash. 2d. 192.  “Curative” changes do not include substantive changes.  Id.  A “remedial” change relates to practice, procedures, or remedies, and does not affect a substantive or vested right.  Id.

            Smith at 144 Wash. 2d. 672 found:

            In 2000, the Legislature responded to our decision in Cruz by enacting RCW 9.94A.345.  Laws of 2000, ch. 26, §2.  This statute states: “Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.” RCW 9.94A.345.  On its face, this language does not implicate Cruz.  However, the Legislature also included the following statement in the statutory note:

“RCW 9.94A.345 is intended to cure any ambiguity that might have led to the Washington supreme court’s decision in State v. Cruz, Cause No. 67147-8 (October 7, 1999).  A decision as to whether a prior conviction shall be included in an individual’s offender score should be determined by the law in effect on the day the current offense was committed.  RCW 9.94A.345 is also intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives.

RCW 9.94A.345 Intent -- 2000 c 26.  The State asks us to find in this language a clear legislative intent that the 1997 amendment applies retroactively.  We cannot.  Although this statement indicates a legislative discontent with our holding in Cruz, there is nothing demonstrating an intent for the retroactive application of the 1997 amendment.

 

            Smith at 144 Wash. 2d. 673-674 found:

            The SRA contains no language showing the Legislature intended the 1997 amendment to apply retroactively.  Legislative intent for retroactivity must be clearly found within the statute’s language.  Landgraf, 511 U.S. at 268-69; State v. Douty, 92 Wn. 2d 930, 935, 603 P. 2d 373 (1979).  The 1997 amendment changed the definition of “criminal history” to read as follows:

“Criminal history means the list of a defendant’s prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere.  The history shall include, where known, for each conviction (a) whether the defendant has been placed on probation and the length of terms thereof; and (b) whether the defendant has been incarcerated and the length of incarceration.

RCW 9.94A.030(12).  This language fails to establish a legislative intent that the 1997 amendment applies retroactively.

 

            Applying the Smith and Cruz tests to the WorkFirst Act provisions relevant to this case, RCW 74.20A.320 et seq., leads to the conclusion that the WorkFirst Act does not apply retroactively to noncustodial parents who were and are still more than 180 days out of compliance with support orders entered before January 1, 1997.  Many such parents, including Mr. Knight, were 180 days out of compliance with their support orders on July 1, 1997.  Mr. Knight has not yet made enough payments (a little over $13,500 since June 1995) to bring his compliance with the support order up to within 180 days of July 1, 1997.  Therefore, any application of RCW 74.20A.320 et seq. to Mr. Knight is a retroactive application of the statute.

            RCW 74.20A.320 et seq. are not “curative” or “remedial”.  These far sweeping provisions provide, for the first time in the history of the State of Washington, the automatic and complete suspension and nonrenewal of all licenses issued by the State upon certification that the noncustodial parent is out of compliance with a support order.  The administrative hearing provided by RCW 74.20A.320 is limited to only considering 1) existence of a support order, 2) whether the person notified of pending suspension or revocation and nonrenewal is the parent named in the support order, and 3) whether the person is more than 180 days out of compliance with the support order.  There is no consideration of whether the noncustodial parent is unable to comply with the support order.  Therefore, if the noncustodial parent is unable to comply with the support order, the TOTAL and COMPREHENSIVE license suspension is PERMANENT.  It can affect licenses from Accountants to Water Well Contractors.

            Because the WorkFirst Act provisions in question are clearly not “curative” or “remedial”, and definitely affect substantive rights, then there must be a clear statement of legislative intent for retroactive application within the statute’s language, or the agencies lack the statutory authority to suspend or revoke Mr. Knight’s licenses, or to prohibit renewal, or to prohibit him from obtaining any other license for the first time.

            The Administrative Law Judge’s findings, Final Order page 4 that the court will not apply a remedial statute retroactively if it affects a substantive or vested right, citing Miebach v. Colasurdo, (1984) 102 Wash. 2d. 170, 181, 685 P. 2d. 1074, is contradicted by its findings that suspension or revocation of a driver’s license is not penal or criminal in nature and therefore suspension does not unjustly or unreasonably impair the petitioner’s driving privilege.  A driver’s license is recognized as a substantive or vested right in Bell v. Burson, (1971) 402 U.S. 535, 539, 29 L. Ed. 2d. 90, 91 S. Ct. 1586:

Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.

 

The Supreme Court of the United States does not consider it a mere privilege.  Without the Legislative declaration of retroactive application required by Smith and Cruz, the WorkFirst Act does not apply to pre-existing child support orders and the Administrative Law Judge’s conclusion that RCW 74.20A.320 does, Final Order page 4 bottom line, is in error.

            The legislative intent of RCW 74.20A.320 et seq. is set forth in Laws 1997 chapter 58 §801:

            It is the intent of the legislature to provide a strong incentive for persons owing child support to make timely payments, and to cooperate with the department of social and health services to establish an appropriate schedule for the payment of any arrears.  To further ensure that child support obligations are met, sections 801 through 890 of this act establish a program by which certain licenses may be suspended or not renewed if a person is one hundred eighty days or more in arrears on child support payments.

            In the implementation and management of this program, it is the legislature’s intent that the objective of the department of social and health services be to obtain payment in full of arrears, or where that is not possible, to enter into agreements with delinquent obligors to make timely support payments towards the arrears.  The legislature intends that if the obligor refuses to cooperate in establishing a fair and reasonable payment schedule for arrears or refuses to make timely support payments, the department shall proceed with certification to a licensing entity or the department of licensing that the person is not in compliance with a child support order.

 

There is no clear statement here of intent of retroactive application of this statute to pre-existing support orders and to pre-existing support arrearages.  While the statutory and legislative language does not specifically exclude pre 1997 support orders and arrearages, it does not meet the Smith and Cruz test for specific legislative intent for retroactivity to include such orders and arrearages.

C.        By Prohibiting Consideration of Inability to Comply With Support Orders,

            RCW 74.20A.320 Deprives Liberty and Property Without Due Process of Law

            And Invidiously Discriminates in Violation of the Right to Equal Protection

            License Suspension for Child Support Not Rationally Related to Activities

            Licensed, Offending Fourteenth Amendment and Article I Sections 3 and 12 of the

            Washington Constitution

            Bell v. Burson, supra, at 402 U.S. 536, found that Georgia’s statutory scheme excluded any consideration of whether an uninsured motorist involved in an accident is likely to be found liable for the accident in the administrative hearing before the suspension of the license.  This was found to offend the Fourteenth Amendment Due Process Clause because under Georgia’s statutes at the time, an adjudication of non-liability restored the license.  Bell at 402 U.S. 542-543.  In the case of a licensee unable to comply with a support order, RCW 74.20A.320(3) deprives the licensee by legislative fiat without serving the state’s interest in enforcing the support order, and without any rational relationship with the activity licensed.  Thus, it violates the Fourteenth Amendment on both Due Process and Equal Protection grounds, and it violates Article I Sections 3 and 12 of the Washington Constitution.

            If a parent is unable to comply with a support order, a permanent suspension of his license will not improve his ability to comply.  If the parent has no recent traffic offenses or accidents on his record whatsoever, the suspension does not serve the public interest in the safety of the roads and highways.  Schware v. Board of Bar Examiners, (1957) 353 U.S. 232, 239, 1 L. Ed. 2d. 796, 77 S. Ct. 752 found:

            A state can require high standards for qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must be have a rational connection with the applicant’s fitness or capacity to practice law.

. . .

            Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church.

 

City of Seattle v. Bittner, (1973) 81 Wash. 2d. 747, 754, 654, 505 P. 2d. 126 interpreted this to mean:

But even where the character of an applicant is subject to evaluation by the licensing officer, the matters taken into account must be relevant to the activity licensed.

 

and thereby invalidated a city ordinance concerning the licensing of motion picture theaters.

            Compliance or noncompliance with a child support order is irrelevant to whether the parent can safely operate a motor vehicle, the activity licensed in Mr. Knight’s case.  And it is irrelevant to whether he can safely remove a kidney stone, pilot an aircraft, prescribe drugs, administer drugs, prepare and sell prescription drugs, drill a water well, sign off on an engineering drawing, hunt Roosevelt elk, carry a concealed weapon, build a house, or any of the numerous other activities for which this state requires a license.

D.        In Case of Parents Unable to Comply With Support Orders WorkFirst Act is a

            Bill of Attainder and as Applied to Pre-Existing Support Orders, it is an

            Ex Post Facto Law, Offending Article I Section 10 clause 1 of the United States

            Constitution and Article I Section 23 of the Washington Constitution

            By providing for the automatic and permanent suspension of all licenses of noncustodial parents unable to comply with their support orders, given that RCW 26.09.170(1) prohibits any modification or vacation of a support order and forgiveness of any arrearage, no matter what the circumstances, RCW 74.20A.320 imposes punishment by legislative fiat.  It is thus a bill of attainder prohibited by Article I Section 10 clause 1 of the United States Constitution and prohibited by Article I Section 23 of the Washington Constitution.

            United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, 873 finds that a “parent should never be confronted with a situation where he is ordered to make child support payments he cannot afford”, based on Alaska law.  Such a finding applied to Washington law would fail to take into account RCW 26.09.170(1) and: 1) Support schedule laws, chapter 26.19 RCW, which can impose unreasonable orders upon parents with incomes in the $20,000-$40,000 per year range which in combination with 26 U.S.C. §152(e) prohibiting deductions for child support paid, results in extremely low take home incomes.  This in fact is what happened to Mr. Knight and is why he was unable to come into full compliance with the support order in spite of almost 6 years of garnishments of his wages earned while employed at The Boeing Company.  2) Levels of income can be “imputed”, meaning determined without admissible evidence.  3) When the parent asks for a reduction in the support order, mercy is often refused.  4) A parent with an unreasonable child support order cannot afford legal representation to obtain a reduction in the level of support ordered.

            RCW 74.20A.320(3) prohibits consideration of inability to comply with a support order.  If the parent has not complied with the support order, the licenses must be suspended, permanently if the parent is never able to comply.  For a pre-existing support order where the debt was accrued prior to the passage of the statute, the imposition of such a sanction by irrebuttable legislative presumption is a bill of attainder.  The subsequent legislation is a legislative, not a judicial, modification of the pre-existing support order.

            A bill of attainder or an ex post facto law imposes punishment upon a group of persons by legislative action and without judicial trial.  While bills of attainder are not restricted to criminal punishments, ex post facto laws add a quantum of punishment to previously committed crimes or define as criminal previous acts that were not criminal at the time committed.[1]

            Cummings v. Missouri, (1867) 71 (4 Wall.) U.S. 277, 18 L. Ed. 356 and Ex parte Garland, (1867) 71 (4 Wall.) U.S. 333, 18 L. Ed. 366 invalidated as bills of attainder and ex post facto laws measures conditioning practice in certain professions on oath that party never aided the Confederacy.  Cummings and Garland could not take such oaths without committing perjury.  The restrictions punish the previous aiding the Confederacy.  Likewise, to prohibit operating an automobile or traveling abroad, when disqualified for not paying child support owed prior to the passage of such statute, is to pass a bill of attainder.  This is directly applicable to where a parent unable to comply with a support order would have to commit fraud to enter a repayment agreement as contemplated by RCW 74.20A.320(5).  The statute effectively bars licensed activities to noncustodial parents unable to comply with their support orders as the test oaths barred former Confederates from practicing certain professions.

            Justice Black’s concurring opinion in Aptheker v. Secretary of State, (1964) 378 U.S. 500, 518, 12 L. Ed. 2d. 992, 84 S. Ct. 1659 found the statute prohibiting Communist Party members from obtaining passports was a bill of attainder.  It follows that any statute prohibiting parents unable to comply with support orders from operating automobiles is also a bill of attainder.  It impacts the right to travel, a key issue in Aptheker.

            United States v. Brown, (1965) 381 U.S. 437, 14 L. Ed. 2d. 484, 85 S. Ct. 1707 found that the statute prohibiting Communist Party members employment by labor unions was a bill of attainder.  United States v. Lovett, (1946) 328 U.S. 303, 315, 90 L. Ed. 1252, 66 S. Ct. 1073 found a statutory provision that barred compensation to three named individuals for government employment was a bill of attainder.  As RCW 74.20A.320 deprives Knight of any opportunity to practice any licensed profession for which he might at present or in the future qualify, it is a bill of attainder and an ex post facto law.  It can keep him from ever becoming able to comply with the support order.

            The Supreme Court of Washington split 5-4 in State v. Schmidt, (2001) 143 Wash. 2d. 658, 23 P. 2d. 462 on whether the Violence Reduction Act, Laws 1994 1st Sp. Sess. chapter 7, amending firearms statutes, as applied to bar those with pre-existing felony convictions from owning long firearms, is an ex post facto law.  The Dissent, written by Justice Charles W. Johnson, 143 Wash. 2d. 681-687, strongly disagreed with the majority in that the right to keep and bear arms is a fundamental right, Constitutionally recognized in Article I Section 24 of the Washington Constitution.  To enact a prohibition of possession of long firearms to a class of persons who were only prohibited from owning short firearms is to add a quantum of punishment and therefore to pass an ex post facto law.  Loss of a right, liberty or a privilege is a punishment, Schmidt Dissent at 143 Wash. 2d. 683.

            The majority of the Court found that merely adding long firearms to a list of firearms already prohibited to the class was not a punishment for prior crimes, Schmidt at 143 Wash. 2d. 675-676, and Court of Appeals opinion at 100 Wash. App. 297, 307, 984 P. 2d. 453 quoting  United States v. Huss, (9th Cir. 1993) 7 F. 3d. 1444, 1448 found:

the ‘marginal effect of adding long guns to the otherwise exhaustive list of restricted weapons does not amount to punishment for ex post facto purposes.’

 

            However, RCW 74.20A.320 does not have any such “marginal effect” upon parents who previously did not comply with support orders.  RCW 74.20A.320 applies to all licenses by directing the state’s agencies to suspend licenses upon a certification by the respondent agency that the parent is out of compliance with a support order.  Previously no such threat existed in any support order or was contemplated in any statute.  There is no list of license restrictions to which the RCW 74.20A.320 makes a “marginal” addition.  It is thus an ex post facto law to the extent noncompliance with a support order may be considered a crime.  It is a bill of attainder whether or not nonpayment of child support is considered a crime.

            Some useful guideposts of whether a sanction imposed by subsequent legislation is punitive are set forth in Kennedy v. Mendoza-Martinez, (1963) 372 U.S. 14, 168-169, 9 L. Ed. 2d. 644, 83 S. Ct. 554:

(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter "; (4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." It is important to note, however, that "these factors must be considered in relation to the statute on its face,"

 

Suspension of licenses, whether to operate an automobile or other activities, involve an affirmative disability or restraint.  Such has historically been regarded as punishments for such crimes as drunk driving for driver’s licenses, abortion for medical licenses, and any felony for licenses to practice law.  Under RCW 74.20A.320 it comes into play on a finding of noncompliance with a support order, a scienter.  Suspending licenses serve the traditional aims of punishment, retribution and deterrence.  People are less likely to drive while impaired if they believe their licenses to drive will be suspended, and those who drive while impaired are subject to the retribution of license suspension and other penalties.  The behavior to which RCW 74.20A.320 applies license suspension, noncompliance with a support order, has been and is considered a crime in many jurisdictions, including federal under 18 U.S.C. §228.  Because RCW 74.20A.320(3) prohibits consideration of ability to comply with the support order, no non-punitive purpose can be rationally assignable to the sanction of license suspension.

            By contrast, Smith v. Doe, (March 5, 2003) 123 S. Ct. ____, which cited the Mendoza-Martinez factors, found that Alaska’s Megan’s law was not a punitive ex post facto law because it only required registration as a sex offender, it did not restrict any activities a sex offender may pursue, including operating automobiles.

            Freedom from bills of attainder and ex post facto laws are fundamental rights.  In Federalist Paper 44, quoted in Brown, 381 U.S. 444 n. 18, James Madison wrote:

            Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact and to every principle of sound legislation.

 

In Federalist Paper 78, listed in Brown, n. 17, Alexander Hamilton wrote:

            By a limited Constitution, I understood one which contains certain specified exceptions to legislative authority; such for instance, as that it shall pass no bills of attainder, no ex post facto laws and the like.  Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of rights or privileges would amount to nothing.

 

In Federalist Paper 84, Hamilton responds to the objection that the proposed Constitution lacks a bill of rights, by citing the provisions that provide for rights, including Article I Section 9 clause 3, which prohibits bills of attainder and ex post facto laws.  Other provisions he listed from the original Constitution include the privilege of the writ of habeas corpus, trial for crimes by jury in the state wherein committed, the limit to the definition of treason, and limiting the attainder of treason.  He then writes:

The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and formidable instruments of tyranny.

 

While Hamilton subsequently argued that the rights provided by the original Constitution obviated the need of a Bill of Rights, the First Congress nevertheless proposed it to the States, who immediately ratified ten of the Amendments proposed.  At a time when 13 NATIONS considered limits on their sovereignty to form a more perfect union, the proposed Constitution prohibited Congress and these States, in Article I Section 10 clause 1, from passing bills of attainder and ex post facto laws.  That is how important these prohibitions were considered to be for the maintenance of American freedom.

E.         WorkFirst Act is Void as a Multi-Subject Bill Prohibited by Article II Section 19

            Of the Washington Constitution

            In re Boot, (1996) 130 Wash. 2d. 553, 925 P. 2d. 964 upheld the Violence Reduction Act (VRA), Laws 1994 1st Sp. Sess. chapter 7, as a single subject bill in compliance with Article II Section 19 of the Washington Constitution, and by reference affirmed three Washington Court of Appeals decisions upholding the Omnibus Alcohol and Controlled Substances Act (OACSA), Laws of Washington 1989 chapter 271.  The VRA authorized the Washington Department of Health to perform a study, amended firearms statutes, and imposed a tax on wine, beer, cigarettes and soft drinks, and other things.  The OACSA incorporated revisions of controlled substance criminal statutes, non-criminal provisions concerning the registration of beer kegs, drug and alcohol counseling in the public schools, imposed a tax on wine, beer, cigarettes, and soft drinks and set appropriations.

            Then Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142 Wash. 2d. 183, 191, 11 P. 3d. 762 modified the essential logic of Boot in finding Initiative 695 void as embracing more than one subject in both title and content, prohibited by Article II Section 19.  Where both Boot and Amalgamated Transit found that the titles in the respective measure considered to be general, Amalgamated Transit at 142 Wash. 2d. 217 established for the first time, a test for “rational unity” for such a bill to comply with Article II Section 19:

However, there is no rational unity between the subjects of I-695.  . . . I-695 also has two purposes: to specifically set license tab fees at $30 and to provide a continuing method of approving all future tax increases.  Further, neither subject is necessary to implement the other.  I-695 violates the single-subject requirement of art. II, § 19 because both its title and the body of the act include two subjects: repeal of the MVET and a voter approval requirement for taxes.

 

Affirmed in City of Burien v. Kiga, (2001) 144 Wash. 2d. 819, 31 P. 3d. 659.

            This test for rational unity was further modified by Washington Association of Neighborhood Stores v. State of Washington, (May 8, 2003) ____ Wash. 2d. _____:

In order to survive, however, rational unity must exist among all matters included within the measure and the general topic expressed in the title. Kiga, 144 Wn.2d at 826.  Rational unity requires included subjects to be reasonably connected to one another and the ballot title.  Amalgamated Transit Union, 142 Wn.2d at 207.  Appellants argue there are multiple subjects contained within I-773 and that they are unrelated and not necessary for each other's implementation.  . . .  They rely on this court's holdings in Amalgamated Transit Union and Kiga for this position.  In Amalgamated and Kiga, it was determined that an initiative had two subjects and 'neither subject {was} necessary to implement the other.'  Amalgamated Transit Union, 142 Wn.2d at 217; Kiga, 144 Wn.2d at 828.  However, the appellants wrongly equate 'rational unity' with 'necessity,' claiming that provisions in a measure only share rational unity if they are necessary to one another.  . . .  We disagree.

  We conclude rational unity exists between the sections of the initiative because the tobacco taxes directly relate to the programs they fund, and the programs relate to the title.  As the ballot title explains, the subject of I-773 is imposing additional tobacco taxes for low-income health programs and other programs.  Every provision of the initiative relates to those functions.  The provisions raising taxes relate because they provide the revenue to support the new and existing programs.  Each section of I-773 presents a single and rationally unified proposal for improving the health of our state's low-income citizens without imposing a net loss of tax revenue on other preexisting programs.  The provisions are interrelated and germane to the general subject matter of I-773 and are, therefore, rationally unified and constitutional.

 

The dissent, written by Justice Richard Sanders, while not commenting directly upon the analysis as to the Single Subject Requirement, nevertheless criticizes the finding that the Two Year Appropriations Clause, Article VIII Section 4 was not violated.  The majority determined that the Initiative’s language that Legislature “shall” appropriate funds for health care, is actually a suggestion, not a mandate.  If it is a suggestion, then the tobacco tax imposed by the Initiative arguably does not “directly” relate to the programs funded, at least beyond two years when the Legislature may choose to spend the tobacco tax revenue in such manner.

            An alternative argument is that Neighborhood Stores effectively reversed Amalgamated Transit and Kiga and restored the Eyman Intiatives.  Since this argument is not likely to be accepted, then Amalgamated Transit must survive by a finding that repeal of the Motor Vehicle Excise Tax and replacing it with a flat $30 fee does not directly relate to the requirement for a vote for every state and local tax increase, as contained in Initiative 695.  Where “neither subject is necessary to implement each other” is found, then the test for rational unity must require that each allegedly diverse provision of a bill or initiative “directly relate” to each other such diverse provision.

            The VRA and the OACSA were not analyzed under this test in the previous decisions.  When this test is applied to the WorkFirst Act, the WorkFirst Act embraces more than one subject.  The provisions reforming the terms and conditions for public assistance grants are not necessary to implement nor are directly related to license suspension for noncompliance with child support orders and neither is necessary to implement nor are directly related to programs promoting teenage abstinence and pregnancy prevention.  As both title and content of the WorkFirst Act thus embrace more than one subject, it is void in its entirety.

            Bennett v. State of Washington, (Div. II, June 3, 2003) ____ Wash. App. ____ does not adequately explain why there is rational unity in the WorkFirst Act and no rational unity in Initiative 695 as found by Amalgamated Transit.  Both the repeal of the Motor Vehicle Excise Tax and the requirement for voter approval are apparently within the subject of tax limitation, which is listed in the Initiative title.  Bennett found that license suspension for child support and the other provisions of the WorkFirst Act (teen parents, limitations on public assistance, illegitimacy prevention and abstinence promotion, accountability of DSHS) are within the subject of personal responsibility.  How accountability of DSHS is within the subject of personal responsibility is not explained in Bennett.  There is no analysis of the WorkFirst Act by the Bennett Court on the necessity of implementation test that was apparently established by Amalgamated Transit and Kiga, or the direct relationship test as clarified by Neighborhood Stores.  In fact, Neighborhood Stores is not cited by Bennett.

G.        License Suspension to Coerce Repayment Agreement is Coercion of or Attempt to

            Coerce Employment Declared Null and Void by Antipeonage Act

            Any effort by legal process, including license suspension, to coerce employment in liquidation of a debt or obligation, whether such employment is available or not, is declared null and void by 42 U.S.C. §1994 and is the crime defined by 18 U.S.C. §1581.  If the intent is to coerce Mr. Knight into entering into a repayment agreement as contemplated by RCW 74.20A.320(5), where compliance, if possible, requires employment, the proceedings below and the statutes and common law usages upon which the proceedings below are based, are declared null and void by 42 U.S.C. §1994.

            42 U.S.C. §1994 reads:

            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.

 

This language is adapted from the original statute at 14 Stat 546, which refers specifically to the system then existing in New Mexico Territory.  Negonsott v. Samuels, (1993) 507 U.S. 99, 104, 122 L. Ed. 2d. 457, 113 S. Ct. 1119, found:

            “Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.”

 

quoting Griffin v. Oceanic Contractors, Inc., (1982) 458 U.S. 564, 570, 73 L. Ed. 2d. 973, 102 S. Ct. 3245.  These rules are further summarized in United States v. Romo-Romo, (9th Cir. 2001) 246 F. 3d. 1272, 1274-1275 and the Supreme Court decisions cited therein.

            Under the system known as peonage in New Mexico Territory, a person can voluntarily contract with an employer to become his peon, or be ordered into such bondage by the courts.  The Territory’s Master and Servant Act regulated peonage and enforced the contracts.  The Service of Process Act of 1852 §§5-7 provided for arrest and imprisonment of defendants in civil lawsuits.  Peonage can be imposed by court order upon judgments including awards for alimony and child support.  The Vagrancy Act as amended in 1860, §11 included abandoning family without the means of support within its definition of vagrancy.  Upon conviction, the party shall be imprisoned until “sold”.  Vagrancy Act of 1860 §14.  This means an employer can pay the fines of the convicted vagrant creating the debt upon which the convict is remanded to peonage.  How New Mexican peonage worked is described in Jaremillo v. Romero, (1857) 1 N.M. (Gildersleeve) 190 and Peonage Cases, (M.D. Ala. 1903) 123 F. 671.

            42 U.S.C. §1994 and the Antipeonage Act as originally passed, 14 Stat 546, include the phrase: “debt or obligation, or otherwise”.  If Congress had intended an exception for child support or alimony, or to limit the application to debts arising from contract, it could have easily written in such language.  Limitations to contractual debts are written explicitly in the imprisonment for debt provisions of some state constitutions.  State v. Lenz, (Ct. App. 1999) 230 Wis. 529, 602 N.W. 2d. 172 found that as child support is not a debt arising from contract, the plain language of Article I Section 16 of the Wisconsin Constitution, “debts arising from contract”, does not prohibit contempt proceedings for child support.  Congress’ choice to not so limit the application of 42 U.S.C. §1994, indeed to write the broadest possible language, “debt or obligation, or otherwise”, should be respected by the courts.

            If the language of 42 U.S.C. §1994 does not express the will of Congress in reasonably plain terms, then Senator Lane’s comments recorded in the Congressional Globe, 39th Cong. 2d. Sess. at p. 1571, about the effects of New Mexico’s system on the peon with a family to support should answer the question.  Congress was no doubt aware of the obligation to support a family.  Ballek, supra at 170 F. 3d. 874 n. 2 cites 2 James Kent, Commentaries on American Law 161 Leonard W Levy ed., Da Capo Press 1971 (1827) and Stanton v. Willson, (Conn. 1808) 3 Day 37 finding non-custodial divorced father responsible for full financial maintenance of his children.  It is beyond reason to the point of absurdity to presume that Senators and Representatives in the winter of 1866-1867 considering a limitation on the methods of enforcing debts and obligations were not aware of the enforcement of alimony and child support given the widespread use of Kent’s Commentaries at that time in the practice of law.

            The deliberate decision by Congress to not exclude alimony and child support from the Antipeonage Act, as originally passed in 1867, 14 Stat 546, and since as codified as 42 U.S.C. §1994, should be respected by the courts.

            RCW 74.20A.320(5) provides that the DSHS may stay suspension of the license if the parent agrees to a repayment schedule acceptable to the DSHS.  This is a clear statutory authorization for the agency to coerce, through a legal sanction not justified by any other consideration, and not related in any way to the activities licensed, including operating motor vehicles, the employment necessary to comply with a support order.  That the noncustodial parent may choose his employer does not escape the prohibition.  United States v. Reynolds, (1914) 235 U.S. 133, 146, 59 L. Ed. 162, 35 S. Ct. 86:

When thus at labor, the convict is working under a contract which he has made with his surety.  He is to work until the amount which the surety has paid for him -- the sum of the fine and the costs -- is paid.  The surety has paid the state and the service is rendered to reimburse him.  That is the real substance of the transaction.  The terms of that contract are agreed upon by the contracting parties, as the result of their own negotiations.  The statute of the state does not prescribe them.  It leaves the making of the contract to the parties concerned, and this fact is not changed because of the requirement that the judge shall approve the contract.

 

Thus, it is not fatal to a claim of peonage that the peon may choose his employer or even his profession.  The surety as contemplated in Reynolds could easily be a manufacturing concern, a restaurant, or an engineering firm, if interested in hiring someone with appropriate skills who happens to be in trouble with the law.  RCW 74.20A.320(9) provides that the DSHS may send a release of the license suspension when the parent is in compliance with the support order.

            This is precisely the type of statutory scheme declared null and void by 42 U.S.C. §1994.

PETITIONER’S REQUEST TO FILE OVERLONG TRIAL BRIEF

            The Case Schedule Order provides that the Petitioner’s Trial Brief is due on or before November 17, 2003.  Because of the nature of the legal issue involved in this case, petitioner anticipates that he may need more than 24 pages for his Trial Brief to properly brief all of these legal issues.  Therefore he respectfully requests permission to file an overlong Trial Brief of up to 40 pages.

REQUEST FOR RELIEF

            Petitioner prays for an order reversing or vacating the Final Order and requiring restoration of his license to operate a motor vehicle without any reissue fee, and if such order is entered after June 30, 2003, that he be allowed to renew his license on the same basis if he had been allowed to renew prior to the expiration date of June 30, 2003.

Respectfully submitted, June 9, 2003,

 

                                                            ____________________________________

                                                            Roger W. Knight, pro se

                                                            Petitioner