I.  AS TO THE STATE’S INTRODUCTION, STATUTORY BACKGROUND, FACTUAL AND PROCEDURAL BACKGROUND, AND PRIOR LITIGATION HISTORY

 

            The State has conceded and stipulated that the support order entered on July 11, 1991 in In re Marriage of Knight, King County Superior Court No. 90-3-04471-1, has not been modified since.  While it is true Mr. Knight could move to modify this support order, one reason for not doing so is that any order resulting from any motion to modify (which could also be brought by Mrs. Royanne Schmitz or by the State through her subrogation), would include a specific warning that licenses suspension is now available to enforce such order, and that INABILITY to comply with such order is not a defense.  At least with contempt proceedings pursuant to chapters 7.21 RCW and 26.18 RCW, inability to comply is a defense.

            Why is such language added to support orders post July 1, 1997?  Is it necessary to add such language to incorporate the license suspension program set forth in RCW 74.20A.320 et seq.?  If so, then this Court should order Mr. Knight’s license restored immediately and to enjoin the State from suspending his licenses until there has been a modification to the support order to incorporate this remedy.

            Under such circumstances, Mr. Knight has a good legal reason for NOT moving for modification.  Another good legal reason is futility, RCW 26.09.170(1) prohibits modification or forgiveness or vacation of support debt already accrued, regardless of any reasons, facts, changes in the law, or set of circumstances that would otherwise support such modification or forgiveness.  While such measures are sometimes referred to as “the Bradley Amendment” for a 1986 Act of Congress, 42 U.S.C. §666(a)(9)(C), incorporating such into Congress’ requirements to each state to qualify for its bag of federal money, the original RCW 26.09.170(1) was enacted by Laws 1973 1st ex. sess. chapter 157 §17, it established this ban.

            Had the State moved to modify the support order to incorporate the license suspension provision, Mr. Knight could have challenged the validity of the WorkFirst Act head on, the way a criminal defendant can challenge the validity of the criminal statute.  Because the state elected not to do that, it has forced Mr. Knight to act as a one man legal defense fund for non-custodial parents.  First, the state sends a series of threatening letters by regular mail that do not meet the requirements of RCW 74.20A.320 to commence the 20 day countdown.  Then, on September 11, 2001, the State moved to suspend Mr. Knight’s license based upon a blown serve.  After the City of Mercer Island moved for dismissal of its criminal Driving While License Suspended (DWLS) charges and the King County District Court granted Mr. Knight’s request that this dismissal be with prejudice on January 17, 2003, City of Mercer Island v. Knight, Nos. MIC 84199 and MIC 84268, effectively conceding, through collateral estoppel, that service was inadequate to meet the requirements of RCW 74.20A.320(1), the Ninth Circuit violated the Rooker-Feldman doctrine by finding that this service was adequate!  And thereby found frivolous a claim the state courts found meritorious.

            In Knight v. Serpas, 9th Cir. No. 03-35016, Mr. Knight filed a petition for rehearing en banc.  At the time this reply brief is written, he has not been served any decision upon this petition.  In Knight v. Mercer Island, 9th Cir. No. 03-35116, the clerks inexplicitly stuffed the first two pages of the June 23, 2003 memorandum into an envelope on AUGUST 27, 2003!  Mr. Knight immediately filed a motion to recall mandate and for extension of time to file a petition for rehearing.  At the time this reply brief is written, he has not been served any decision upon this motion.

            Two defects to the federal court’s findings with respect to the litigation bar:  Brent Moss v. Superior Court, (1996) 56 Cal Rptr. 864, 868-870 found meritorious a noncustodial parent’s claim for protection under the Thirteenth Amendment and the Antipeonage Act, and Zablocki v. Redhail, (1978) 434 U.S. 374, 54 L. Ed. 2d. 618, 98 S. Ct. 673 found meritorious a noncustodial parent’s Fourteenth Amendment claim that conditioning the right to marry upon ability to comply with a support order offended his fundamental rights and not rationally related to the state interest.  The litigation bar presently prohibits Mr. Knight from pleading either such issue in the federal courts.  Both such issues apply herein as argued below.

            Because the Ninth Circuit did not reverse or vacate the district court’s finding that they had to abstain under Younger, and lacked jurisdiction under Rooker-Feldman, all other findings are obiter dicta.  Therefore have no res judicata, collateral estoppel or other claim preclusion effect.

II. AS TO RES JUDICATA AND COLLATERAL ESTOPPEL

            Because of the federal court’s findings as to Younger and Rooker-Feldman, only the previous state court cases can be considered for res judicata and collateral estoppel effect.  The criminal DWLS cases brought by Mercer Island do not have any such preclusive effect EXCEPT as to adequacy of service required by RCW 74.20A.320(1).  This Court in City of Mercer Island v. Knight, No. 02-1-01137-0 SEA, Decision on RALJ Appeal entered on October 31, 2002, found that a court in a criminal DWLS case did not have jurisdiction to consider a challenge to the validity of the underlying statutory scheme or its application to Mr. Knight.

            That leaves Knight v. DSHS, King County Superior Court No. 97-2-21231-6 KNT and No. 99-2- 2-22195-8 KNT, and the appeal of the second case, Court of Appeals No. 46753-1-I.

            The ONLY issue raised by Mr. Knight in these previous cases was whether the WorkFirst Act, Laws 1997 chapter 58, establishing RCW 74.20A.320 et seq., is a multi-subject bill that is void as prohibited by Article II section 19 of the Washington Constitution.

            This is the issue decided in Bennett v. State, (2003) 117 Wash. App. 483, 70 P. 3d. 147.  Mr. Bennett timely filed a petition for review to the Supreme Court of Washington.  Mr. Knight, along with Sun Wineager and James Edwin Mullins and through attorney John R. Scannell, WSBA #31035, were granted their motion for leave to file a brief of amici curiae and their brief was filed, Bennett v. State, Supreme Court No. 74361-4.

            In the event the Supreme Court of Washington finds the WorkFirst Act to be a multi-subject bill, Mr. Knight is entitled to the subsequent change in law exception to res judicata.  It would work an injustice to deny restoration of his license because he previously challenged the WorkFirst Act as a multi-subject bill.

            The application of the previous civil cases in this Court to any of the other issues raised herein, can only be through collateral estoppel.  Hisle v. Todd Pacific Shipyards Corp., (2002) 113 Wash. App. 401, 411-412, 54 P. 3d. 687, 692-693 found that failure to pay overtime wages may offend a collective bargaining agreement, but adjudication of the collective bargaining agreement does not bar a suit for unpaid overtime wages:

            Res judicata bars all grounds for recovery that could have been asserted, whether they were or not, in a prior action between the same parties if there is a concurrence of identity in (1) the subject matter; (2) the cause of action; (3) persons and parties; and (4) the quality of the persons for or against whom the claim is made.  Deja Vu, 96 Wn. App. at 262; Karr, 994 F.2d at 1429; Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983).  If any single requirement is lacking, the doctrine does not apply, International Bhd. of Pulp, Sulphite & Paper Mill Workers v. Delaney, 73 Wn.2d 956, 960, 442 P.2d 250 (1968), and the party invoking the defense has the burden of proving its applicability.  McDaniels v. Carlson, 108 Wn.2d 299, 304, 738 P.2d 254 (1987).

 

Deja Vu is Deja Vu-Federal Way, Inc. v. City of Federal Way, (1999) 96 Wash. App. 255, 979 P. 2d. 464.  Karr is International Union of Operating Engineers v. Karr, (9th Cir. 1993) 994 F. 2d. 1426.  Hisle further found:

In considering whether causes of action are the same for purposes of res judicata, courts consider (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.  Hayes v. City of Seattle, 131 Wn.2d 706, 713, 934 P.2d 1179, 943 P.2d 265 (1997); Constantini, 681 F.2d at 1201-02 (9th Cir. 1982).

 

Constantini is Constantini v. Trans World Airlines, (9th Cir. 1982) 681 F. 2d. 1199.  Res judicata fails on 2), the requirement for an identical cause of action.  The only fact at issue in the previous civil litigation was the receipt by Mr. Knight of two letters, two years apart, threatening suspension of the licenses without any provision for the administrative hearing provided by RCW 74.20A.320.  The only issue raised by Mr. Knight at that time was whether the WorkFirst Act is void as a multi-subject bill.  To plead bill of attainder, Mr. Knight would have to plead inability to comply.  To plead violation of the Antipeonage Act, he would have to plead inability to comply without employment.  If the WorkFirst Act is a multi-subject bill, it is void regardless of any other fact, the only fact Mr. Knight had to plead was the fact sufficient to establish standing to challenge the Act: receipt of a threatening letter.  Mere fact that Mr. Knight could have pleaded the additional fact of inability to comply without employment does not mean that it is a part of the “same transactional nucleus of facts” from which the challenge to the WorkFirst Act as a multi-subject bill arose.

            In the present case, additional facts include the suspension of the license in September 2001 and the service of March 2003, two years after the Letter that gave rise to Knight v. DSHS, No. 99-2-22195-8 KNT and four years after the Letter that gave rise to Knight v. DSHS, No. 97-2-21231-6 KNT, and Mr. Knight declared under penalty of perjury that he was still several thousand dollars out of compliance with the support order when he was laid off by The Boeing Company on May 29, 1995 and has since been unable to comply with the support order.  This is not the same transactional nucleus of facts, not substantially the same evidence, not infringement of the same right except the claim for the right not to be governed by multi-subject bills, as was presented in the previous civil cases in this Court.

            Hisle ultimately found that a previous challenge to the validity of a collective bargaining agreement does not apply, through the doctrine of res judicata, to any challenge of the payment of the employees covered by the collective bargaining agreement as not sufficient to meet the requirement for time and a half overtime set forth by statute: RCW 49.46.130.  The right to be paid overtime wages is not to be bargained away by the employee and any such agreement is void as contrary to public policy.  The right to overtime pay is independent of any contract, and therefore, no litigation solely concerning the contract will have any res judicata effect on any subsequent litigation to enforce the statutory right to overtime compensation.

            By the same token, the right to not be targeted by a bill of attainder or held in a condition of peonage in liquidation of a debt or obligation is independent of the right to not be governed by a multi-subject bill.  A bill of attainder passed as a single subject bill is just as void, under both Article I Section 10 clause 1 of the United States Constitution and Article I Section 23 of the Washington Constitution, as when it is included as part of a multi-subject bill void as prohibited by Article II Section 19 of the Washington Constitution.  A requirement to work based upon a debt or obligation, to be punished with license suspension, is declared null and void by 42 U.S.C. §1994 whether it arises from a statute, whether as part of a single subject or multi-subject bill, or a common law usage, and the federal statute includes the word “orders”.

            Res judicata simply does not apply to preclude any issue not raised in the previous civil cases because of a lack in the necessary requirements for identity of the subject matter, the parties, and the cause of action.  Therefore, the issues of the Smith and Cruz tests, developed subsequent to 1997, and whether application of the WorkFirst Act to Mr. Knight violates the Bill of Attainder and Ex Post Facto Clauses of the Washington and United States Constitutions, and Antipeonage Act, are not precluded because these issues were not raised in the previous civil cases in this Court.

            Likewise, whether suspending licenses for nonpayment of support without allowing any defense as to inability to comply, and non-relationship to the interest of government asserted, or to the activities licensed offend substantive due process and equal protection.  Such issue is dependent upon the fact of inability to comply, a fact subject to change with time.  In the present case, this fact is stipulated by the State: DSHS’s Trial Brief page 19.

III. AS TO THE VALIDITY OF THE STATUTORY SCHEME, STEP BY STEP PROCESS TO ANALYZE CLAIMS

 

            In spite the limitation of 24 pages, Mr. Knight adequately briefed his claims against the validity of the WorkFirst Act in his Brief of Petitioner.

            In consideration of these issues, this court may have to follow a step by step process:

            Step One: Determination of whether it is necessary to modify a pre-existing child support order to provide the Department of Social and Health Services (DSHS) and its Division of Child Support (DCS) with the authority to commence license suspension under RCW 74.20A.320.  If this Court finds that such modification is necessary, it will order immediate restoration of the license and enjoin further license suspension activity for child support unless and until a modification is made to the support order providing for such.  This Court would not need to consider any other issue.  If this Court finds incorporation into the support order unnecessary, then it can move on to Step Two.

            Step Two: Determination of whether the Legislature declared an intent to apply the WorkFirst Act license suspension provisions to pre-existing support orders under the Smith and Cruz test.  Please see Brief of Petitioner pages 4-7.  The WorkFirst Act is not remedial because it upsets a vested right:  Mr. Knight’s right to operate a motor vehicle so long as he does not commit those infractions or a sufficient number of infractions with said motor vehicle, fails to pay any fines so assessed, or commit those crimes with the motor vehicle for which the law provides for suspension or revocation of the license.  Mr. Knight’s driving record is clean.  If this Court finds that the Legislature did not declare its intent to apply the WorkFirst Act to pre-existing support orders under the Smith and Cruz test, and that it needed to, then it would find that the DSHS lacked a statutory authorization to initiate license suspension and order the license immediately restored until the Legislature amends the WorkFirst Act to provide for such application.  This Court would then not need to consider the validity of the WorkFirst Act.  If, however, this Court finds that either the Smith and Cruz test does not apply or that it is met, then it can move on to Step Three.

            Step Three.  Determination of the validity of the WorkFirst Act.

            Zablocki v. Redhail, supra, at 434 U.S. 387 found:

            Under the challenged statute, no Wisconsin resident in the affected class may marry in Wisconsin or elsewhere without a court order, and marriages contracted in violation of the statute are both void and punishable as criminal offenses.  Some of those in the affected class, like appellee, will never be able to obtain the necessary court order, because they either lack the financial means to meet their support obligations or cannot prove that their children will not become public charges.  These persons are absolutely prevented from getting married.

 

Emphasis added.  This is exactly the situation faced by those noncustodial parents unable to EVER comply with their support orders, particularly in light of RCW 26.09.170(1) prohibition of forgiveness of pre-existing support debt.  A noncustodial parent whose license is suspended under the WorkFirst Act and is unable to comply with the support order, is absolutely prevented from acquiring restoration of the license.  The license suspension is therefore PERMANENT.  The Supreme Court of the United States found that noncustodial parents sometimes do lack the financial means to meet their support obligations, and therefore, a prohibition of marriage based on such was offensive to their fundamental rights.

            Zablocki at 434 U.S. 387 further found:

Many others, able in theory to satisfy the statute’s requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry.

 

Why should Mr. Knight endeavor to qualify for a professional engineering license or a license to practice law, to hunt Roosevelt elk, to carry a concealed weapon, to drill water wells, etc. if he cannot obtain restoration of his driver’s license, in spite of his clean driving record?

            Zablocki at 434 U.S. 389 found:

            With regard to safeguarding the welfare of the out-of-custody children, appellant’s brief does not make clear the connection between the State’s interest and the statute’s requirements.  At argument, appellant’s counsel suggested that, since permission to marry cannot be granted unless the applicant shows that he has satisfied his court-determined support obligations to the prior children and that those children will not become public charges, the statute provides incentive for the applicant to make support payments to the children. . . . This “collection device” rationale cannot justify the statute’s broad infringement on the right to marry.

            First, with respect to individuals who are unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant’s prior children.

 

Emphasis added.  Exactly what has happened in this present case!

            Zablocki at 434 U.S. 390 found:

Given the possibility that the new spouse will actually better the applicant’s financial situation, by contributing income from a job or otherwise, the statute in many cases may prevent affected individuals from improving their ability to satisfy their prior support obligations.

 

Exactly what license suspensions do!  Many professions require licenses, including driver’s licenses, if only to allow commuting to employment.  Prohibiting a noncustodial parent from ever obtaining a license required by a profession, closes off numerous possibilities that would improve his ability to meet his support obligations as well as ruining any such current ability dependent upon the existing license.

            Because license suspension for those unable to comply with their support orders is so clearly counterproductive to the claimed state interest, it is offensive to the Fourteenth Amendment under Zablocki, Schware v. Board of Bar Examiners, (1957) 353 U.S. 232, 239, 1 L. Ed. 2d. 796, 77 S. Ct. 752; Bell v. Burson, (1971) 402 U.S. 535, 539, 29 L. Ed. 2d. 90, 91 S. Ct. 1586, and to Article I Sections 3 and 12 of the Washington Constitution under City of Seattle v. Bittner, (1973) 81 Wash. 2d. 747, 754, 654, 505 P. 2d. 126 as argued in the Brief of Petitioner pages 7-8.  Justice O’Connor’s concurrence in Lawrence v. Texas, (2003) 156 L. Ed. 2d. 508, 123 S. Ct. 2472, 2485 cited or quoted Department of Agriculture v. Moreno, (1973) 413 U.S. 528, 534, 37 L. Ed. 2d. 782, 93 S. Ct. 2821; Cleburne v. Cleburne Living Center, Inc., (1985) 473 U.S. 432, 446-447, 87 L. Ed. 2d. 313, 105 S. Ct. 3249; and Romer v. Evans, (1996) 517 U.S. 620, 632, 134 L. Ed. 2d. 855, 116 S. Ct. 1620 and reaffirming that a bare desire to harm a politically unpopular group is not a legitimate state interest.

            Neither is it a legitimate federal interest upon which Congress may impose a requirement to qualify for federal funds, and the sale of such state sovereignty for federal funds on the basis of such illegitimate interest cannot be lawfully sustained.

            As to the issue of peonage, support enforcers and attorneys seem to grasp it, even if they may not agree with it.  The problem arises with some of the general public, including noncustodial parents themselves, who seem unable to comprehend the concept.  A conversation that seems to be successful goes as follows:

            “You mean you don’t want to support your children?”

            “Let me ask you this.  Do you mind working for a living?”

            “Of course not.”

            “Do you mind lay-offs?”

            “Yes.  As I do not mind working for a living, being laid off means that I don’t get to do it for a while.”

            “Would you mind having to report 3 or 5 or 10 contacts with employers each week?”

            “I do that for my unemployment compensation.”

            “Yes, but you are being PAID for making such reports.  One is not required to sign up for unemployment merely because one qualifies.  Would you mind being required to go to a court room to so inform as to your efforts to seek employment to a person in a black robe who, if he or she does not like your explanation, can order you immediately imprisoned, and there are the deputy sheriffs carrying loaded firearms to lead you off to jail?”

            “Uh, . . . “

            “And if you do not like that, how does having a child to support make it better?”

            That is why we have a Thirteenth Amendment prohibiting involuntary servitude, a federal statute prohibiting peonage, and an Article I Section 17 of the Washington Constitution prohibiting imprisonment for debt.  Suspending licenses for such failure to maintain employment likewise offends these provisions.

IV.  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 15th day of December 2003.

 

                                                                        __________________________

                                                                        Roger W. Knight, pro se

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