`I. JURISDICTION AND VENUE OF
THIS COURT
Mr. Knight is prejudiced, his
license to operate a motor vehicle is indefinitely suspended,
RCW
34.05.530(a). The agency was required to
consider his interest in the license,
RCW 34.05.530(b). A judicial decision in favor of Mr. Knight would
redress the prejudice to his interest,
RCW 34.05.530(c). Mr. Knight has standing to challenge the
agency decision under
RCW 34.05.530 in that he is aggrieved and adversely
affected by the
agency decision.
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).
II. ASSIGNMENTS OF ERROR
1)
The Administrative Law Judge found:
Mr. Knight could
avoid its impact by paying support, seek modification and enter into an
agreement to pay arrears support.
Final
Order page 4 in Part 4 of Conclusion of Law.
To the extent any of the findings below are dependent upon finding
ability to comply is not based upon substantial evidence.
2)
The Legislature did not declare its intent to apply the WorkFirst Act to
pre-existing child support orders and to pre-existing child support arrearages
under the tests set forth in
State v. Cruz, (1999) 139
Wash.
2d. 186, 190-191, 985 P. 2d. 384 and
State v. Smith, (2001) 144
Wash.
2d. 665, 671-673, 30 P. 3d. 1245, 39 P. 3d. 294. Therefore, the findings in
Final Order page 5
part 5 of the Conclusions of Law are in error.
The child support payments that came due subsequent to the enactment of
the WorkFirst Act and the implementing regulations are part of a pre-existing
support order which does not provide for license suspension for failure to comply
and has not been modified. Therefore,
application of the WorkFirst Act is retroactive.
III.
ISSUES RAISED WHERE THIS COURT HAS JURISDICTION AND THE
ADMINISTRATIVE
AGENCY DID NOT
The
Final Order page 5 correctly
found that an administrative agency lacks the jurisdiction to consider the
validity of a statute.
RCW
34.05.570(3)(a) specifically provides this Court with subject matter
jurisdiction to consider the constitutionality of the statute at issue in the
administrative proceeding. Mr. Knight
raises these issues as follows:
1)
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 is not
rationally related to activities licensed.
This offends
Article I Sections 3 and 12 of the
Washington Constitution
and it offends the
Fourteenth Amendment.
2)
In the case of parents unable to comply with support orders, the
WorkFirst Act is a bill of attainder and as applied to pre-existing child
support orders it is an ex post facto law prohibited by
Article I Section 23 of
the Washington Constitution and prohibited to the States by
Article I Section
10 clause 1 of the United States Constitution.
3)
The WorkFirst Act is null and void as a multi-subject bill prohibited by
Article II Section 19 of the
Washington Constitution.
4)
Application of the Workfirst Act to coerce consent to a repayment
agreement on more than $60,000 child support debt, compliance with which
necessarily requires employment, is declared null and void by the Antipeonage
Act of 1867, 42 U.S.C. §1994.
IV. STATEMENT OF THE CASE
On 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.
On June 2, 2003, the petitioner filed his Petition for
Judicial Review of Agency Decisions,
Chapter 34.05.
On June 9, 2003, the petitioner filed his
Amended Petition
for Judicial Review of Agency Decisions,
Chapter 34.05.
V. ARGUMENT
Assignment of Error 1: Ability to Comply Not
Proven by Substantial Evidence
Mr. Knight declared, under penalty
of perjury, in his Declaration by Roger W. Knight, Exhibit 4 used in the
hearing below, that he is unable to comply with the support order. The state offered no evidence to refute this
testimony. Therefore, any finding by the
Administrative Law Judge that Mr. Knight is able to comply with the support
order and to enter into an agreement to pay the arrears without committing
fraud is without basis in substantial evidence.
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.
Assignment
of Error 2: There is no Legislative
Declaration of Intent to Apply the WorkFirst Act to Pre-existing Child Support
Orders and Pre-existing Child Support Arrearages that Meets the Requirements of
the
Smith and
Cruz Tests.
The WorkFirst Act does not embrace a
Legislative declaration of retroactive application to pre-existing support
orders under the
Smith and
Cruz tests.
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.
“Curative” changes do not include substantive changes,
Cruz at 139 Wash.
2d. 192. 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.
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. Payments due subsequent to July 1, 1997 are based on the 1991 support
order. Applying
RCW 74.20A.320 to these
payments is a legislative modification of the support order and is a
retroactive application.
RCW 74.20A.320 is not “curative” or
“remedial”. It provides, for the first
time, the automatic suspension and nonrenewal of all licenses issued by the
State upon certification that the noncustodial parent is out of compliance with
a support order.
RCW 74.20A.320(3)
prohibits consideration by the administrative hearing of ability to comply,
leading to automatic suspension for parents unable to comply. 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.
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 it 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 and unmodified support orders.
Under
Smith and
Cruz, the WorkFirst Act does not
authorize suspension of Mr. Knight’s license.
Constitutional Issue 1: 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 is 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 Georgia’s
statutory scheme offended the
Fourteenth Amendment Due Process Clause. It excluded consideration by the
administrative hearing of whether an uninsured motorist involved in an accident
is likely to be found liable. An
adjudication of non-liability restored the license in Georgia.
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) suspends the license by
legislative fiat without serving the state’s interest, as it does not improve
the parent’s ability to comply, and is without any rational relationship with
the activities 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.
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 found:
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.
Lawrence v. Texas, (2003)
156 L. Ed. 2d. 508, 123 S. Ct.
2472, 2485 found (citations omitted):
We have
consistently held, however, that some objectives, such as “a bare . . . desire
to harm a politically unpopular group,” are not legitimate state
interests. . . . When a law exhibits such a desire to harm a
politically unpopular group, we have applied a more searching form of
rationally basis review to strike down such laws under the
Equal Protection
Clause.
The
WorkFirst Act and the federal statute referenced in its title, the federal
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which
is P.L. 104-193, 110 Stat 2105, where it added
42 U.S.C. §666(a)(16), clearly
exhibit a “desire to harm a politically unpopular group.” Without consideration of ability to comply,
this desire to harm is bare and therefore not a legitimate interest of either
state or federal government.
Constitutional Issue No. 2: 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
suspension of all licenses of noncustodial parents unable to comply with their
support orders, given that
RCW 26.09.170(1) prohibits vacation of a support
order or forgiveness of arrearage,
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.
The support schedule law,
chapter 26.19 RCW, 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. Mr. Knight 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.
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. The imposition of such a
sanction by irrebuttable legislative presumption is a bill of attainder.
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.
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. 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 as 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.
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, it is a bill of attainder.
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 (VRA), 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. To
enact a prohibition of possession of long firearms to a class of persons previously
prohibited only 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 found that adding long firearms
to the 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.
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. 144, 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
involve an affirmative disability or restraint and has historically been
regarded as punishments, for drunk driving for driver’s licenses, abortion for
medical licenses, and 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. 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, (2003) 155 L. Ed. 2d. 164, 123 S. Ct. 1140 which cited the
Mendoza-Martinez factors, found that
Alaska’s Megan’s law, AS 12.63.010 et seq., 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. But
Lawrence, supra, at 123 S.
Ct. 2486 found that as a sodomy conviction requires
registration as a sex offender in four states, Texas Penal Code §21.06(a) had a
substantial adverse impact. The
Lawrence finding
that “a bare . . . desire to harm a politically unpopular group,” is not a legitimate
state interest is clearly informed by the constitutional prohibition of bills
of attainder and ex post facto laws.
Strogner v.
California, (2003) 156 L. Ed. 2d. 544,
123 S. Ct. 2446 found that a new law applying an extended statute of
limitations to a prosecution previously time barred is an ex post facto
law. Prior to July
1, 1997, license suspension was unavailable to sanction a failure to pay child
support. To impose such a sanction for a
noncompliance in progress prior to that date is to offend the settled
expectation and the prohibition of ex post facto laws.
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. 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.
13 NATIONS ratified the Constitution prohibiting 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.
Constitutional Issue 3: WorkFirst Act is Void as a Multi-Subject
Bill Prohibited by
Article II Section 19 of the
Washington Constitution
A. WorkFirst Act Fails Rational Unity Test for Bills with
General Titles
In
re Boot, (1996) 130
Wash. 2d. 553, 925 P. 2d. 964 upheld the VRA, supra, 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 1989 chapter 271. The VRA authorized the
Department of Health
to perform a study, amended firearms statutes, imposed a tax, and numerous
other things. The OACSA revised
controlled substance criminal statutes, required registration of beer kegs,
addressed drug and alcohol counseling in the public schools, imposed a tax, 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 measures 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, 828, 31 P. 3d. 659.
This test for rational unity was
clarified by
Washington Association of
Neighborhood Stores v. State of Washington, (2003) 149 Wash.
2d. 359, 370-371, 70 P. 3d. 920:
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.
. . . 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. Provisions necessary to one another understandably
share rational unity, and it is not surprising that we would comment on it. Nevertheless, neither observation relied on by the appellants indicates that the
absence of such a relationship defeats rational unity. It is on this erroneous basis that the appellants contend there is a lack of rational unity between the
provisions of I-773 . . . 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.
Then
Citizens for Responsible Wildlife Management v. State of Washington,
(2003) 149 Wash. 2d. 622, 631, 71
P. 3d. 644, found:
This court was clear in
Amalgamated
Transit Union Local 587 v. State that statutes enacted through the
initiative process must be shown to be unconstitutional beyond a reasonable
doubt; they are not reviewed under more or less scrutiny than legislatively
enacted bills.
Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205,
11 P.3d 762, 27 P.3d 608 (2000)
and
thereby rejected an argument that Initiatives be given less deference than Acts
of the Legislature. Legislative acts are
to be given the same scrutiny given Initiatives.
Citizens
then found at 149 Wash. 2d.
638-639:
Interestingly, this court, in both
Amalgamated and
City of Burien
upon which Citizens rely for their "test" of rational unity, clearly
expressed what has long been the true test of rational unity: "the existence of rational unity or not
is determined by whether the matters within the body of the initiative are germane
to the general title and whether they are germane to one another.
City of Burien, 144 Wn.2d at 826;
Amalgamated,
142 Wn.2d at 209-10. An analysis of
whether the incidental subjects are germane to one another does not necessitate
a conclusion that they are necessary to implement each other, although that may
be one way to do so.
This court has not
narrowed the test of rational unity to the degree claimed by Citizens. It is more likely that the statements made in
Amalgamated and
City of Burien in regard to the dual subjects being unnecessary to
implement the other were made to further illustrate how unrelated the two
were. Moreover, the instant title does
not contain two subjects, where one is more broad and long term than the
other. I-713's title therefore does not
manifest the dangers of logrolling as did those in
Amalgamated and
City of
Burien.
This
analysis can be employed to illustrate how the various subjects of Laws 1997
chapter 58, the WorkFirst Act, are unrelated to each other, i.e. the teen
abstinence program, time limitations on the receipt of public assistance, and
license suspensions for child support.
That there was logrolling in the WorkFirst Act is clear from its
legislative history. In previous
sessions of the Legislature, bills providing for the suspension of licenses for
child support were not passed..
When such a measure was included in
an omnibus bill placing time limits on public assistance grants, addressing
teen abstinence, and selling this state’s sovereignty over such matters for
federal funds, then it was passed with the votes of legislators, including Mike
Carroll and Ray Schow, who previously opposed the license suspension measure.
Citizens
flat rejected any argument that
Neighborhood
Stores effectively reversed
Amalgamated
Transit and
Kiga and restored the
Eyman Initiatives.
Amalgamated Transit thus survives with a finding that repeal of the
Motor Vehicle Excise Tax and replacing it with a flat $30 fee does not directly
relate and therefore not germane 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.
Otherwise, the Eyman Initiatives are restored, which
Citizens did not do.
Under this test the WorkFirst Act
embraces more than one subject.
Reforming terms and conditions for public assistance is not directly
related to license suspension for child support and neither is directly related
to promoting teenage abstinence and pregnancy prevention. As both title and content of the WorkFirst
Act thus embrace more than one subject, it is void.
There are
several “firewalls” found to exist pursuant to
Article II Section 19. One is the firewall between funding
provisions and provisions that affect substantive rights.
Washington State Legislature, et al. v. State of Washington, et al., (1999) 139 Wash.
2d. 129, 131-132, 985 P. 2d. 353;
Flanders v.
Morris, (1977) 88 Wash. 2d.
183, 187-188, 558 P. 2d. 769; and
State
ex rel. Washington Toll Bridge Authority v. Yelle, (1959)
54 Wash. 2d. 545, 551, 342 P. 2d.
588. This firewall is breached by
Section 319 of the WorkFirst Act, partial vetoed by
Governor Locke, and by
Sections 321 and 1011, which were not.
These measures authorize the respondent agency to accept federal funds
and to regulate the amount of funds authorized and for what purposes, and Section
1011 of the Act actually authorizes the agency to ALTER THE SUBSTANTIVE LAW to the extent necessary to qualify for
federal funds, without any requirement that such alteration be approved by the
elected Legislature, by the elected Governor, or by the courts.
Sections 321
and 1011 are not directly related to the teen abstinence program, the
limitations on public assistance grants, or the license suspension for
nonpayment of support programs established by other sections of the WorkFirst
Act.
B. Selling the
State’s Sovereignty for Federal Funds is Logrolling
One reason for
the firewall between appropriations and substantive rights provisions is to
prevent the need to pass appropriations bills from leading to logrolling,
Legislature v. State, supra, 139
Wash.
2d. 131-132 citing
Service Employees
International Union, Local 6 v. Superintendent of Public
Instruction, (1985) 104 Wash.
2d. 344, 351, 705 P. 2d. 776. An
appropriations bill cannot add restrictions to public assistance eligibility
and still be said to define no rights,
Flanders, supra,
88 Wash. 2d. 188. Such horse trading is condemned,
Power, Inc. v. Huntley, (1951) 39
Wash.
2d. 191, 198-199, 235 P. 2d. 173.
Omnibus budget bills provide too tempting a target for logrolling,
State v. Yelle, supra, 54 Wash.
2d. 551.
Likewise, so
does the sale of the state’s sovereignty over such issues as public assistance
and family law for federal funds. It
corrupts the integrity of Washington
state democracy as much as logrolling with the state’s own money. The clear purpose of the WorkFirst Act was to
rewrite the state’s public assistance, welfare, and child support laws to
qualify for federal funding. By this
process, the Legislature valued federal funding over the interests, concerns,
and desires of many citizens including advocates for the poor, public
assistance recipients, and non-custodial parents. This is the evil of logrolling, those
legislators who previously opposed license suspension for child support changed
their position, not because they changed their minds as to the wisdom of such
policy, but to qualify for federal funding.
A state can say no to the federal
dough.
Printz v. United States, (1997) 521 U.S.
898, 138 L. Ed. 2d. 914, 117 S. Ct. 2365 found that an
unfunded mandate by Congress is outside its Constitutional authority. However, the logic of
Printz is not affected by Congressional willingness to fund such a
mandate.
Title IV-D of the Social
Security Act, which is amended by the Act of Congress referenced in the title
to the WorkFirst Act, is not a mandate of “rights”.
Blessing
v. Freestone, (1997) 520 U.S.
329, 343-344, 137 L. Ed. 2d. 569, 117 S. Ct. 1353. In concurrence Justice Scalia found that a
state agreeing to provide certain services to private individuals in return for
federal funds is in the nature of a contract.
Id.
at 349-350. Obviously, if it is a
contract, a state can decline to enter into it.
Because the
primary purpose of the WorkFirst Act, as stated in its title, is to implement
an Act of Congress so as to qualify for federal funds, it constitutes an
appropriations and revenue measure in a bill with numerous provisions affecting
the substantive rights of the citizens of Washington. It therefore violates
Article II Section 19
by embracing the diverse subjects of appropriations and substantive rights.
C. WorkFirst Act
Title is Restrictive and Impermissibly Embraces More than One Subject
The title of the WorkFirst Act reads
in significant part:
AN
ACT Relating to implementing the federal personal responsibility and work
opportunity reconciliation act of 1996;
A restrictive title includes where a part or branch of a
subject is carved out and selected as the subject in the title,
State v. Thomas, (2000) 103 Wash. App.
800, 808, 14 P. 3d. 854, citing
State v.
Broadaway, (1997) 133 Wash.
2d. 118, 127, 942 P. 2d. 363; and
Amalgamated
Transit, supra, at 142 Wash.
2d. 210-217. The subject, implementation
of a particular Act of Congress, is carved out of the more general subjects of
personal responsibility and work opportunity.
If the
provisions of a bill are not sufficiently germane to each other to establish
rational unity required to survive
Article II Section 19 analysis where the
bill has a general title, it will not survive with a restrictive title. The bill will not survive with a restrictive
title that embraces two or more subjects.
Amalgamated Transit at 142
Wash.
2d. 216 citing
Power, supra, at 39
Wash.
2d. 200.
Power, at 39 Wash.
2d. 200 quotes Public Service Co. v.
Rektenwald, (1919) 290 Ill.
314, 318, 125 N. E. 271:
“The
constitutional provision that no act shall embrace more than one subject, which
shall be expressed in the title, prohibits the passage of an act containing
provisions not fairly embraced in the title and any such provisions are void,
and it also prohibits the passage of an act relating to different subjects
expressed in the title, in which case the whole act is void.”
The title of
the WorkFirst Act, while restrictively embracing the subject of implementing an
Act of Congress, impermissibly embraces two subjects in quoting the title of
the federal act: personal responsibility and work opportunity. “Personal responsibility” and “work
opportunity” are entirely different matters, and one does not embrace the
other. National Association of Creditors v. Brown, (1928) 147 Wash. 1, 264
P. 1005 found a bill concerning civil procedure in the courts with a title that
restrictively embraced “venue” did not embrace “jurisdiction”. Venue and jurisdiction are entirely distinct
matters, and one does not embrace the other.
Therefore, the
WorkFirst Act is void in that its title embraces two different subjects, in
that the title of the federal bill it is implementing embraces two different
subjects. It is also void in that its
provisions are not germane to each other and therefore embrace more than one
subject.
Constitutional Issue 4: License Suspension to Coerce Repayment
Agreement is Coercion of or Attempt to Coerce Employment Declared Null and Void
by Antipeonage Act
To coerce Mr. Knight into a
repayment agreement,
RCW 74.20A.320(5), where compliance, if possible, requires
employment, is declared null and void by
42 U.S.C. §1994:
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.
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.
42 U.S.C. §1994 includes the phrase: “debt or obligation,
or otherwise”. There is no language
limiting the application to debts arising from contract, or excepting child
support. 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 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 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. United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, 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.
It is beyond reason 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.
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, the
employment necessary to comply with a support order.
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.
Res Judicata and Collateral Estoppel Do
Not Bar these Issues or Claims
The State has indicated that it will
claim res judicata and collateral estoppel bars these claims. No court proceeding prior to July 1, 1997 provides a basis for such
bar. The federal courts in proceedings
subsequent to that date found themselves lacking jurisdiction under
Rooker-Feldman doctrine or required to
abstain under
Younger v. Harris. In such cases, no other determination by the
federal court can have any preclusive effect.
In the criminal Driving While License Suspended (DWLS) cases,
this Court
found, in City of Mercer Island v. Knight,
No. 02-1-01137-0 SEA, that a trial court had jurisdiction in a criminal DWLS
case to determine whether notice required by
RCW 74.20A.320(1) was
accomplished, but did NOT so find as
to the validity of the statute or even whether the
Smith and
Cruz test bars
its application. Therefore the criminal
cases do not preclude this Court’s consideration of these issues.
That leaves the civil actions in
this court, Knight v.
DSHS, Nos. 97-2-21231-6
KNT and 99-2-22195-8 KNT, which was appealed,
Court of Appeals
No.
46753-1-I.
Shuman v. Dept. of Licensing, (2001) 108
Wash.
App. 673, 681-682, 32 P. 2d. 1011 found:
As Professor Trautman has noted, the
requirement that an issue must have been “actually litigated” in the prior case
is not as clear as it may appear. Philip
A. Trautman, Claim and Issue Preclusion
in Civil Litigation in Washington, 60 Wash. L. Rev. 805, 833 (1985). More useful that Thompson’s litigation morass is an examination into
whether the issue
was actually recognized by the parties as important and by the judge as
necessary to the first judgment. If so,
the determination should be conclusive, with an important qualification being
whether the significance of the issue for purposes of the subsequent action was
sufficiently foreseeable at the time of the first action.
Id. at 835.
. . .
Here, although the reasons for its
decision are not clear from the record, the district court and the parties
clearly recognized that the circumstances of Mr. Shuman’s breath test were
important and necessary to the criminal litigation.
The
only issue raised in the previous civil actions was whether the WorkFirst Act
is void as a multi-subject bill, and whether the first case precluded the
second case ON THAT ISSUE. No other issue was recognized by the parties
as important or by the judges as necessary for the outcome of these cases. Therefore collateral estoppel does not
preclude any of the other issues.
Mr. Bennett has petitioned the
Supreme Court of Washington for review of
Bennett
v. State, (2002) 117 Wn. App. 483, 70 P. 3d. 147. Mr. Knight, along with James Edwin Mullins
and Sun H. Wineager, has been granted leave to file a brief of amici curiae, Bennett v. State,
Supreme Court No. 74361-4. Should the Supreme Court find the WorkFirst
Act to be a multi-subject bill, application of res judicata or collateral
estoppel to bar relief to Mr. Knight would work an injustice.
VI. CONCLUSION
For the reasons stated herein, the administrative
Final Order should be vacated or reversed and the respondent ordered to restore
the license.
Respectfully submitted this 10th day
of November 2003.
__________________________
Roger
W. Knight, pro se
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