I.       ARGUMENT FOR REHEARING AND TO PUBLISH OPINION

          FRAP 40 provides that a rehearing may be requested by petition as follows:

The petition must state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and must contain such argument in support of the petition as the petitioner desires to present.

 

The Notice of Entry of Judgment that accompanied the Memorandum Decision in this case specifies that a petition should only be made to direct this Court’s attention to one or more of the following situations: 1) a material point of fact or law overlooked in the decision, 2) a change in the law which occurred after the case was submitted and which appears to have been overlooked by the panel, and 3) an apparent conflict with another decision of the Court which was not addressed in the opinion.

          In the Memorandum this Court found:

          The district court properly dismissed Knight’s Fourth and Fourteenth Amendment unreasonable seizure claims because these claims were litigated and decided in a prior district court proceeding, and affirmed on appeal, Knight v. City of Seattle, 2003 WL 1900758 (9th Cir. April 16, 2003).  See Steen v. John Hancock Mut. Life Ins. Co., 106 F. 3d. 904, 910-11 (9th Cir. 1997).

 

Knight v. City of Seattle, (9th Cir. 2003) 61 F. Appx. 453 is an unpublished memorandum.  Therefore, pursuant to Ninth Cir. Rule 36-3 and Hart v. Massanari, (9th Cir. 2001) 266 F. 3d. 1155, it cannot be cited as precedent in the determination of a case.  That it can only be cited as a precedent is evident in that 1) it arose from a different incident, the impoundment of Mr. Knight’s automobile by the City of Seattle on January 6, 2002, and it reviewed a different statute, a City of Seattle municipal ordinance, Seattle Municipal Code 11.56.105A than the statutes that governed the Washington State Patrol (WSP).  The present case arises from the impoundment of Mr. Knight’s automobile by WSP Trooper Mitchell on August 4, 2002 and the stranding of Mr. Knight about 15 miles from his home in the middle of the night when no busses were running.  The statutory provisions governing the WSP for impoundments when a motorist is found to be driving with a suspended license were RCW 46.55.113 and WAC 204-96-010.

          What Knight v. Seattle found was that a Supreme Court of Washington decision subsequent to August 4, 2002, All Around Underground, Inc. v. Washington State Patrol, (2002) 148 Wash. 2d. 145, 60 P. 3d. 58 held that identical language in RCW 46.55.113 allowed the officer discretion.  Seattle, at 61 F. Appx. 454.  What the Seattle panel ignored, of course, is that at the time of the impoundment, the officer believed he lacked such discretion.  Mr. Knight recovered the impound fee in that case when he settled with Lincoln Towing.  Mr. Knight has not yet recovered the impound fee in this present case.

          What is undisputed and cannot be disputed, is that prior to December 12, 2003, the date of All Around Underground, WAC 204-96-010 mandated that a WSP trooper has no discretion, he must order the impound.  All Around Underground found that this is not authorized by RCW 46.55.113, and ordered relief to the trucking company.

    Pursuant to All Around Undergound, Mr. Knight is at least entitled to recover the impound fee.  In re Matter of the 1992 Honda Accord and Becerra v. City of Warden, (June 19, 2003) ____ Wash. App. ___ found that pursuant to All Around Underground, a city ordinance that mandated impoundment went beyond the authority granted by the state legislation, RCW 46.55.240(1) to the cities for impoundments under chapter 46.55 RCW.  Article XI Section 11 of the Washington Constitution provides that municipal ordinances shall not conflict with the general laws (meaning laws passed pursuant to Article II of the Washington Constitution) and provides the Legislature with the authority to define the powers of local governments to enact legislation. As to remedy and the good faith defense, the Becerra found that RCW 46.55.120(3) authorized monetary recovery, including impoundment, towing, and storage fees for an improper impoundment regardless of the good faith or lack of good faith on the part of the officer ordering impoundment.

          The impoundment of Mr. Knight’s vehicle was mandated by WAC 204-96-010, it allowed the WSP trooper no discretion.  All Around Underground found WAC 204-96-010 to exceed the statutory authority granted by the Legislature and ordered refund of the impoundment, towing, and storage fees to the trucking company for the improper impoundment.

          Under the Fourteenth Amendment, Mr. Knight is entitled to equal protection of Washington’s laws, and entitled by right of due process to not have those acting under color of the state’s laws, including Trooper Mitchell and Clark’s Towing, exceed the authority of the state’s laws.  Clark’s Towing is liable under 42 U.S.C. §1983 pursuant to Lugar v. Edmondson Oil Co., (1982) 457 U.S. 922, 73 L. Ed. 2d. 482, 102 S. Ct. 2744 for the $147.42 in impoundment, towing, and storage fees.  There is no interest of government served by having trucking companies and those whose licenses are suspended for driving while under the influence, as Mr. Becerra’s was, albeit without notice required by statute, recover the impoundment fees while Mr. Knight, whose license was suspended for child support, albeit without meeting the notice requirements of RCW 74.20A.320(1), is not allowed to recover the impoundment fees, where the impoundment is improper due to an improper regulation.  The same improper regulation as with the trucking company.

          In the Memorandum this Court found:

          The district court properly dismissed Knight’s Fourteenth Amendment claim alleging failure to meet the notice requirements of Was. Rev. Code § 74.20A.320(1) because Knight was served by certified mail with the notice of noncompliance and intent to suspend licenses.

 

This fact has NEVER been proven by the State Officers in either federal or state court.  There was no discovery process allowed by the district court in this case and therefore no opportunity for either party to prove or disprove this fact.  It also ignores the language of RCW 74.20A.320(1):

The department may serve upon a responsible parent a notice informing the responsible parent of the department's intent to submit the parent's name to the department of licensing and any appropriate licensing entity as a licensee who is not in compliance with a child support order. The department shall attach a copy of the responsible parent's child support order to the notice. Service of the notice must be by certified mail, return receipt requested. If service by certified mail is not successful, service shall be by personal service.

 

In the district court, Mr. Knight was only allowed the opportunity to establish that this case should not be dismissed under Younger abstention doctrine.  That the Memorandum did not cite Younger indicates that Mr. Knight proved abstention inappropriate.  If abstention is not appropriate, Mr. Knight is entitled to a proper discovery process under the Federal Rules of Civil Procedure and the local district court rules so he may prove that service by certified mail was not successful and the alternative of personal service was not completed within the requirements of Washington law.  Therefore the license suspension was not authorized by statute and the Fourteenth Amendment was violated.

          What Mr. Knight did enter into the record were three declarations with attached exhibits.  These attached exhibits include the evidence obtained by discovery and the results of the relevant state court proceedings.  Specifically Exhibits D, E, F, G, and H to the Declaration by Roger W. Knight in Support of Plaintiff’s Response to Order to Show Cause (Knight Declaration I), Document No. 10, ER 46-49 (declaration authenticating attached Exhibits) and ER 72-104, the Exhibits.  ER 74 indicates a clean driving record on the part of Mr. Knight as of February 27, 2002.  ER 77-78 are two declarations of service by C. Legge on a “JANE DOE”.  ER 79 indicates that certified mail with Postal Record Confirmation Number 7000 1670 0009 9011 1587 was attempted.  However, no evidence was ever entered into the district court record of this case or into the record of any state court case that this service by certified mail was successful, as required by RCW 74.20A.320(1).  Any finding by the district court that it has, and the above quoted finding in the Memorandum, is without basis in substantial evidence.  Exhibits G, ER 85-93 and H, ER 94-104 are Transcripts Mr. Knight prepared of two hearings in City of Mercer Island v. Knight, King County District Court, Bellevue Division Nos. MIC 84199 and MIC 84268 for his appeal in that case.  These transcripts prove, ER 95-104, that the state trial court found itself to lack the jurisdiction to consider whether the notice requirements of RCW 74.20A.320(1) were met.

          The Declaration by Roger W. Knight in Support of Plaintiff’s Supplement to Response to Order to Show Cause (Knight Declaration II) ER 42-45 and its attached Exhibit shows that Mr. Knight won reversal of the convictions for Driving While License Suspended (DWLS) in City of Mercer Island v. Knight, King County Superior Court No. 02-1-01137-0 SEA because the superior court found that the trial court had jurisdiction to determine whether the notice requirements of RCW 74.20A.320(1) were met.

          Subsequent to the January 7, 2003 Order, Document No. 21, ER 6-7, on January 13, 2003, the City of Mercer Island dropped the state court DWLS case without presenting evidence as to service required by RCW 74.20A.320(1).  This was entered into the record of the district court case from which Knight v. City of Mercer Island et al, 9th Cir. No. 03-35116 arises.  While Mr. Knight settled with the City of Mercer Island and its officers and the towing company who impounded his car during one of the Mercer Island incidents, the State Officers are still in that appeal, the issues therein are similar to the issues herein.

          What is also undisputed is that no criminal DWLS charge was ever filed arising from the incident of August 4, 2002 from which this case arises.

          If the appropriate Washington and local prosecuting authorities do not like their chances of proving service required by RCW 74.20A.320(1) prior to the incidents of January, February, and August 2002, in a state court criminal prosecution for DWLS, then Mr. Knight is entitled to the opportunity to prove service was not accomplished as required by RCW 74.20A.320(1) in a civil 42 U.S.C. §1983 action brought in federal court.

          Because of the lack of proper notice required by RCW 74.20A.320(1), the Memorandum’s next finding is also without basis in fact.  As for judicial remedies RCW 74.20A.320(3) prohibits consideration of ability to comply with the support order.  An administrative law appeal to a state superior court can only allege invalidity of the statutory scheme in addition to error by the administrative agency, RCW 34.05.570(3)(a).  The administrative agency may not consider a claim that the statute is invalid, Bear v. Gorton, (1974) 84 Wash. 2d. 380, 525 P. 2d. 379.  For those noncustodial parents unable to comply with their support orders, RCW 74.20A.320 is a bill of attainder providing for the automatic suspension of licenses upon a procedure wherein effective relief is unavailable without a finding that the statutory scheme is invalid.

          The final finding by the Memorandum reads:

          The district court properly dismissed Knight’s claim alleging violations of the anti-peonage statute, 42 U.S.C. § 1994, and the Thirteenth Amendment because Knight was not subject to peonage, or involuntary servitude in liquidation of any debt or obligation.  See United States v. Kozminski, 487 U.S. 931, 943 (1988) defining involuntary servitude; Clyatt v. United States, 197 U.S. 207, 215 (1905) (interpreting 42 U.S.C. § 1994).

 

Strictly speaking, Mr. Knight did not plead a Thirteenth Amendment claim, he relied on 42 U.S.C. §1994.  Also strictly speaking, Clyatt v. United States, (1905) 197 U.S. 207, 49 L. Ed. 726, 15 S. Ct. 429 did not actually interpret the provision that became codified as 42 U.S.C. §1994.  Clyatt was the review of a criminal prosecution for violating the predecessor to 18 U.S.C. §1581, which depended in part, but not completely, upon what is declared null and void by the part of the Antipeonage Act that establishes the civil right.  What United States v. Kozminski, (1988) 487 U.S. 931, 942-943, 101 L. Ed. 2d. 788, 108 S. Ct. 2751 found is:

          This judgment is confirmed when we turn to our previous decisions construing the Thirteenth Amendment. Looking behind the broad statements of purpose to the actual holdings, we find that in every case in which this Court has found a condition of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction. In Clyatt v. United States, 197 U.S. 207 (1905), for example, the Court recognized that peonage - a condition in which the victim is coerced by threat of legal sanction to work off a debt to a master - is involuntary servitude under the Thirteenth Amendment. Id., at 215, 218. Similarly, in United States v. Reynolds, 235 U.S. 133 (1914), the Court held that "[c]ompulsion of . . . service by the constant fear of imprisonment under the criminal laws" violated "rights intended to be secured by the Thirteenth Amendment." Id., at 146, 150. In that case the Court struck down a criminal surety system under which a person fined for a misdemeanor offense could contract to work for a surety who would, in turn, pay the convict's fine to the State. The critical feature of the system was that that breach of the labor contract by the convict was a crime. The convict was thus forced to work by threat of criminal sanction. The Court has also invalidated state laws subjecting debtors to prosecution and criminal punishment for failing to perform labor after receiving an advance payment. Pollock v. Williams, 322 U.S. 4 (1944); Taylor v. Georgia, 315 U.S. 25 (1942); Bailey v. Alabama, 219 U.S. 219 (1911). The laws at issue in these cases made failure to perform services for which money had been obtained prima facie evidence of intent to defraud. The Court reasoned that "the State could not avail itself of the sanction of the criminal law to supply the compulsion [to enforce labor] any more than it could use or authorize the use of physical force." Bailey, supra, at 244.

 

Where the threat of legal sanction is a permanent license suspension for failure to pay a debt or obligation not related to activity licensed, such as operating a motor vehicle, practicing law, or providing health care services, this is within involuntary servitude and peonage as defined by Kozminski and the cases cited therein.

          To suspend the driver’s license exposes the party to criminal prosecution and other abuses, such as being stranded in a remote location without the car.  Suspension of a driver’s license is a common criminal sanction for such crimes as driving while impaired, eluding a police officer, vehicular homicide, and refusing a breath or blood test when requested by a police officer.  To say that the threat of license suspension is not a threat of legal sanction is to draw a distinction that Kozminski and the cases cited therein do not.  License suspension as a means to coerce employment to pay a debt or obligation, in this case child support, is a new phenomenon not considered by these earlier involuntary servitude and peonage cases.  Therefore, under the logic of Hart v. Massanari, this is not the kind of case to be disposed of with an unpublished memorandum.  A decision in this case should be published to set the legal precedent and to inform all noncustodial parents of the extent of their rights under the Antipeonage Act.

          The Memorandum also ignores that contempt proceedings, arrest, and imprisonment are often used to sanction the noncustodial parent who fails to find employment adequate to allow compliance with a support order, RCW 26.18.050(4).  There can be no reasonable argument that requiring a parent to “establish that he or she exercised due diligence in seeking employment” or be found in contempt and incarcerated is not within the threat of legal process contemplated by Kozminski and the cases cited therein, which also consider the Antipeonage Act.

          Under FRE 201(b) this Court can take judicial notice that pursuant to RCW 26.18.050(4) noncustodial parents are routinely ordered to make 5 or 10 job contacts per week by King County Superior Court family court commissioners.  Example is State v. Dominique Allen Davis, King County Superior Court No. 01-3-08366-3 SEA.  Mr. Davis has been repeatedly prosecuted for contempt, was ordered to make 5 job contacts per week and provide the court with proof of such contacts.  This was increased to 10 job contacts per week and there are findings that he has not provided the court with the required proof of job contacts.  He has been arrested and imprisoned at least once.  The forms upon which these orders are written have the job contact requirement typed in with a box for the court to check.  Such preprinted forms indicate a routine practice.  Such practice is the crime defined by 18 U.S.C. §1581.  42 U.S.C. §1994 includes the word “orders” and declares such orders null and void.

II.      ARGUMENT FOR EN BANC REHEARING

          This Court has found that issues of child support enforcement and the constitutional rights of noncustodial parents are highly important, Duranceau v. Wallace, (9th Cir. 1984) (9th Cir. 1984) 742 F. 2d. 709; P.O.P.S. v. Gardner, (9th Cir. 1993) 998 F. 2d. 764; and United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871.  A claim of involuntary servitude prohibited by the Thirteenth Amendment was found by Ballek at 170 F. 3d. 873 n. 1 to be important enough to consider when raised for the first time on appeal.

          The Notice of Entry of Judgment page 2 provides 3 reasons for which a party may request rehearing en banc.  One reason clearly applies: The question of the definition of legal process or threat thereof that is necessary to prove a violation of the Antipeonage Act in the enforcement of child support is a question of the most exceptional importance.  In their dissents from the denial of en banc review in Silveira v. Lockyer, (9th Cir. May 6, 2003) ____ F. 3d. ____, Judges Pregerson, Kozinski, and Kleinfeld make excellent arguments that ALL Constitutional rights are equally important and if we have a broad interpretation of the right to free speech and freedom from unreasonable searches and seizures, so we should broadly interpret the right to keep and bear arms.  If Mr. Knight is allowed to give oral argument before this Court, he may say:

With all due respect, I cannot reconcile Judge Kozinski's dissent in the denial of en banc rehearing in Silveira with his opinion in Ballek. If indeed we should accord all provisions of the Constitution establishing rights with the same broad interpretation, then certainly freedom from involuntary servitude is as important a right as the right to keep and bear arms and the right to truthfully shout 'Fire!' in a crowded theatre. Just as defining the Second Amendment as only providing for a 'collective right', erases the Amendment from the Constitution and deprives all adult Americans of the Second Amendment protection of the right to keep and bear arms, Ballek deprives all parents of the Thirteenth Amendment protection against involuntary servitude.  All parents have a duty to support their children. Because we know how a person becomes a parent, under Ballek the Thirteenth Amendment now only protects those men who are strictly homosexual or strictly celibate.  Women retain their Thirteenth Amendment rights only by being strictly homosexual or strictly celibate, or by always exercising their right to abortion.  This is not what was contemplated by those who brought the Thirteenth Amendment into law and it is certainly what the Antipeonage Act was intended to prevent and prohibit.

 

Most adult Americans are parents.  Millions lack legal custody of their children and are subject to license suspensions, contempt proceedings, arrest and imprisonment for failure to maintain employment sufficient to allow them to comply with their support orders.  Ballek noted this at 170 F. 3d. 875.

          Our credibility as a free nation bound by its own laws is at stake.  Muslim nations have a different view of family law, whether strictly governed by sharia or not.  They notice that we create an exception to our state constitutions that prohibit imprisonment for debt and deny our noncustodial parents the protection of the Thirteenth Amendment and the rule of law.

          Mr. Knight does not ask for the protection of the Constitution and the Antipeonage Act because HE deserves it; he asks for this because WE THE PEOPLE deserve it.  Because the Constitution, the rule of law, and the integrity of the English language in which the law is written deserve it.

VI.     CONCLUSION

          For the reasons stated herein, this Motion for Rehearing with Suggestion for Rehearing En Banc and to Publish Opinion should be granted.

Respectfully submitted this 27th day of June, 2003,

 

                                                _________________________________

                                                          Roger W. Knight, appellant pro se

 

If the back button does not take you there, click Home to go to the Index page of this Antipeonage Act Website, click Enemies for the main Enemies page, click Letters for the Letters page, and click Allies for the Allies page.  Click C02-1641C to get to the main page for this case.  Or you can use the Antipeonage Act Site Map.