I.       STATEMENT CONCERNING REPLY BRIEF

          Since this is a reply brief, and only for the purpose of this reply, the appellant formats this brief somewhat along the lines of the Response Brief of Appellees filed by the appellees.

II.      AS TO THE APPELLEES’ STATEMENT OF JURISDICTION

          Parties agree that this court has jurisdiction under 28 U.S.C. §1291.  While parties disagree on whether the district court had jurisdiction under 28 U.S.C. §§1331 and 1343, and under 42 U.S.C. §1983, the question of jurisdiction is an issue before this court.  The state officers do not plead any argument in their Brief in opposition to Mr. Knight’s assertion that 42 U.S.C. §1994 provides the district court with independent jurisdiction to enforce the abolition of peonage, therefore, it is conceded.

III.     AS TO THE APPELLEES’ STATEMENT OF ISSUE

          The appellees elect to present argument on only part of the issues presented by the appellant: whether the action below was barred by Younger abstention[1], Rooker-Feldman doctrine[2], and res judicata, pleading federal preclusion by virtue of Judge Lasnik’s decision of September 25, 2002 in W.D. Wash. No. C02-879L, appealed, 9th Cir. No. 03-35165.  Please see Exhibit K to the Declaration by Roger W. Knight in Support of Plaintiff’s Motion to Amend Judgment or for New Trial (Knight Declaration III), Document 19, ER 14-27.  The state officers then plead preclusion under 28 U.S.C. §1738 by virtue of previous state court litigation.

          They elected not to present argument as to the underlying claims.  They therefore concede these claims should this court find that jurisdiction was available for any of them.

IV.     AS TO APPELLEES’ STATEMENT OF THE CASE

A.      As to the Appellees’ Statement of Facts

          The “history of not paying his child support obligation” commenced when Mr. Knight was laid off from The Boeing Company on May 29, 1995.  Before that, Mr. Knight was several thousand dollars behind in compliance with the obligation in spite of nearly six years of wage garnishment.  Declaration by Roger W. Knight (Knight Declaration I), Document 10, page 2, ER 47 and the Case Payment History attached as Exhibit C thereto, ER 68-71.

          Parties agree that the importance of child support enforcement has received considerable attention by Congress.  However, the abolition of slavery received considerable attention of the Reconstruction Congress and the Antipeonage Act thus passed has never been modified to exclude the duty to support children from the phrase in 42 U.S.C. §1994: “debt or obligation, or otherwise.”

          Likewise the elimination of Jewish presence in Germany received considerable attention by the Reichstag and the Hitler Administration.  The Nazis believed and argued that any effort by a Jew to resist such measures in the courts was “frivolous”.  That a legislative body gives something considerable attention doesn’t make it right.  We have a different Constitution in the United States, intended to disallow such efforts against a group of persons.

          In Footnote 2 on Brief of Appellees State Defendants page 2, the state officers assert that:

States have been mandated to pass laws that strengthen child support enforcement remedies as a condition of maintaining eligibility requirements for public assistance funding over the years.

 

It is not and cannot constitutionally be a “mandate”.  The State of Washington, and any other state, has the option of not accepting the federal funds.  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, of which 42 U.S.C. §666(a)(16)[3] is an amendment, 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.

          Because the state officers cite a provision added to Title IV-D of the Social Security Act, this court should remand with instructions to allow amendment to the Complaint where Mr. Knight may challenge the federal provision, within the jurisdiction provided by 28 U.S.C. §1331.  Union Pacific Railway Co. v. Chicago, Rock Island, and Pacific Railway Co., (1896) 163 U.S. 564, 581, 41 L. Ed. 265, 16 S. Ct. 1173 reaffirmed that where a contract exceeds the lawful authority of a party, it cannot be rendered enforceable by application of the doctrine of estoppel.  A state cannot lawfully enter into a contract to violate the Thirteenth or Fourteenth Amendments because it cannot lawfully violate the Constitution.  Ex parte Young, (1908) 209 U.S. 123, 159-160, 52 L. Ed. 714, 28 S. Ct. 441.  42 U.S.C. §1994 declares null and void any contract wherein a state agrees to impose and enforce peonage.  Congress cannot lawfully obtain acquiescence of the States to its legislating on matters such as public assistance, family law, and child support, which are beyond the grants of authority of Article I Section 8 and the Appropriate Legislation Clauses by offering them federal funds.  For Congress to purchase with federal funding acquiescence of the States to such an usurpation of power is a violation of the Constitution for which citizens affected by the state statutes so purchased have Article III standing to challenge.

          Having SOLD its state sovereignty rights for its bag of Title IV-D money, the State of Washington and its officers are, under theories of contract, estopped from asserting these same state sovereignty rights against citizens who object to the policies thus purchased.  Martin v. Webb, (1884) 110 U.S. 7, 28 L. Ed. 49, 3 S. Ct. 428 found that where a bank allowed its cashier to execute a certain type of contract over a period of years, it is estopped from asserting that cashier lacked authority to execute such contracts and so bind the bank.  C&L Enterprises, Inc. v. Citizen Band Potawatami Indian Tribe of Oklahoma, (2001) 532 U.S. 411, 149 L. Ed. 2d. 623, 121 S. Ct. 1589 found that where a Native American tribe waived its sovereign immunity in a contract, the contract could be enforced in a state court as agreed by the parties.

          Where the state officers are motivated to adopt policies identical to those adopted by Congress by the condition of federal funding, it is bribery.  The state officers may have valid reasons for adopting a different policy.  As Washington is an elected state government, the anger of non-custodial parents at election time is as valid a reason as any, and it should not be overcome by the interest of the state officers to obtain federal funds for the state’s bureaucracy.  To do so denies the non-custodial parents equal protection of the right to participate in the making of public policy in violation of the Fourteenth Amendment, including by their votes, Bush v. Gore, (2000) 531 U.S. 98, 148 L. Ed. 2d 388, 121 S. Ct. 525.  It causes the state officers to value the votes of some citizens, members of Congress and the President, over the votes of the non-custodial parents.  Indeed, a reasonable argument may be made that the state’s courts should not allow this consideration to affect whether the WorkFirst Act offends the prohibition of multi-subject bills in Article II Section 19 of the Washington Constitution under the same standards by which they found tax cutting Initiative 695 to offend that provision.[4]

          Mr. Knight has a valid cause of action against the federal government as it is the federal government’s action in conditioning the receipt of federal funds on the adoption of a particular state policy that warps the decision making of the state officers.  He has at least as much standing as Mr. Newdow had in challenging the use of the Pledge of Allegiance in the public schools attended by his daughter.  Newdow v. United States Congress et al, (9th Cir. 2002) 292 F. 3d. 597, 602-603, amended February 28, 2003 and all petitions for rehearing denied.  Judge Reinhardt’s concurrence on February 28, 2003 states some excellent reasons why the independent judiciary should decide constitutional issues on the merits without regard to any storm of public opinion as may result.  This is applicable to any consideration of whether enforcement of child support obligations that either coerce employment or punish unemployment offend the Antipeonage Act, or even the Thirteenth Amendment.  United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, 875 was rendered with too much consideration of such a storm of public opinion, at least the opinion of state officers who coerce employment and punish unemployment in the enforcement of child support orders.

          This Court was not worried that Mr. Newdow is a recurring litigant and should not so worry about Mr. Knight.  As this Court decided the merits of Mr. Newdow’s claims, so it should decide the merits of Mr. Knight’s claims.

B.      As to Appellees’ Prior Procedural History

          The appellees violate Cir. Rule 36-3 by citing unpublished decisions by this Court without attaching copies of these decisions to its Brief.  As a citizen lacks standing to challenge any statute prior to its passage, the citation of all such decisions rendered prior to the passage of Laws of Washington 1997 chapter 58, the WorkFirst Act, and RCW 74.20A.320 et seq. cannot be for purposes of establishing and arguing law of the case, collateral estoppel, or res judicata.  Therefore, any citation of such decisions is for precedent and thus violates Cir. Rule 36-3 and Hart v. Massanari, (9th Cir. 2001) 266 F. 3d. 1155.

V.      AS TO APPELLEES’ ARGUMENT

A.      As to Appellees’ Standard of Review

          The state cites Snell v. Cleveland, Inc., (9th Cir. 2002) 316 F. 3d. 822 to assert that a sua sponte dismissal is reviewed for abuse of discretion.  Where the standard of review is abuse of discretion, error of law is an abuse of discretion. United States v. Taylor, (1988) 487 U.S. 326, 336-337, 101 L. Ed. 2d 297, 108 S. Ct. 2413.  Court must take into account the law and the particular circumstances of the case.  Burns v. United States, (1932) 287 U.S. 216, 223, 77 L. Ed. 266, 53 S. Ct. 154.  Abuse of discretion may include erroneous legal conclusion.  Denton v. Hernandez, (1992) 504 U.S. 25, 118 L. Ed. 2d. 340, 350, 112 S. Ct. 1728.

          But Snell at 316 F. 3d. 825 also found that a district court’s assumption of jurisdiction and an order dismissing for want of jurisdiction are reviewed de novo.  The general standard for determining whether a case should be reviewed for abuse of discretion or reviewed de novo is whether the case relies upon the determination of an issue of law, or where there is no discretion to abuse, Green v. City of Tucson, (9th Cir. 2001) 255 F. 3d. 1086, 1092-1093.

          Because error of law is an abuse of discretion, it follows that any appeal of a dismissal based upon an assertion of error of law is reviewed de novo.

B.      As to Appellees’ Rooker-Feldman Argument

          A general rule for Rooker-Feldman is that it applies only where a state court has made a final decision on an issue.  If the final decision is that it lacked jurisdiction to determine an issue, it follows that it does not preclude a federal court consideration of such issue because the federal court is not reviewing a state court determination of the underlying issue.  There is no Washington state court decision in any case involving Mr. Knight that precludes a federal determination of whether the WorkFirst Act is a bill of attainder, ex post facto law, or whether the suspension of licenses for failure to pay child support is declared null and void by 42 U.S.C. §1994.  The civil cases brought by Mr. Knight in King County Superior Court challenging the WorkFirst Act as a multi-subject bill did not raise these federal issues.  Therefore, King County Superior Court did not decide them.  In the criminal case brought by the City of Mercer Island, Mr. Knight raised these federal issues, but the state court found that it lacked jurisdiction to determine these issues.  While King County Superior Court reversed the Driving While License Suspended (DWLS) convictions on the grounds that the trial court erroneously found that it lacked jurisdiction to consider whether the notice requirement of RCW 74.20A.320(1) was met, it did not find that the trial court had jurisdiction to consider the challenges to the validity of the WorkFirst Act. Subsequently, on January 17, 2003, the state trial court dismissed the DWLS charges with prejudice and without determining whether the notice requirement of RCW 74.20A.320(1) was met.  Arguments on this matter were set forth in the Brief of Appellant pages 9-14, describing the state court litigation, and pages 18-21 as to Rooker-Fledman.

          The state officers’ assertion that an order dated 1991 and not modified since precludes federal court determination of the validity of a subsequently enacted statute is patently frivolous.  If adopted, it would render impossible the enforcement in federal court of the prohibition in Article I Section 10 clause 1 of bills of attainder and ex post facto laws.

C.      As to Appellees’ Res Judicata and Collateral Estoppel Argument

          Here, the state officers present a rather creative argument.  Instead of relying on the res judicata and collateral estoppel effect of Washington decisions under Washington law, (which under 28 U.S.C. §1738 is clearly dependent upon how the Washington courts view res judicata and collateral estoppel, and therefore Ohio’s treatment of these issues is irrelevant to this consideration) they rely on the decision rendered by Judge Lasnik in W.D. No. C02-879L, appealed 9th Cir. No. 03-35116.  By so doing, they attempt to argue that federal res judicata and collateral estoppel principles affect the analysis of whether Judge Lasnik’s determination of Washington state law res judicata and collateral estoppel principles preclude this action.

          One little problem with this strategy:  The Complaint, Document 1 in THIS case was filed on August 6, 2002.  Please see Civil Docket page 3, ER 4.  Judge Lasnik’s decision was rendered on September 25, 2002, please see Exhibit K attached to Knight Declaration III, Document 19, ER 14-27. This is exactly like their argument that an Order entered in 1991 precludes a challenge to a statute passed in 1997.  In No. C02-879L, Mr. Knight timely brought a Plaintiff’s Motion to Amend Judgment, FRCP 59, please see Exhibit L to Knight Declaration III, ER 28-41.  And he timely brought an appeal to this Court of the order denying that motion, No. 03-35116.  Therefore, that case has not reached the status of final decision.

          It may be reasonable for this Court to consolidate this case with No. 03-35116 and then review on the merits both district court decisions.

          Because the state officers are relying on the res judicata effect of Judge Lasnik’s decision, and did not present any argument defending Judge Lasnik’s decision, they have conceded Mr. Knight’s argument that the WorkFirst Act is a bill of attainder and an ex post facto law, and his argument that suspension of licenses to coerce employment or to punish unemployment to enforce a child support order are declared null and void by 42 U.S.C. §1994.

          The state officers make a leap of faith with respect to Mr. Knight’s Fourth Amendment claim.  Brief of Appellees pages 13-16.  Each seizure presents a different set of facts for evaluation of its reasonableness under the Fourth Amendment.  Judge Lasnik did not have jurisdiction to consider the reasonableness of the impoundment of Mr. Knight’s car on August 4, 2002 by Trooper Mitchell and Clark’s Towing.  It is under implied consent by the City of Mercer Island that he had jurisdiction to consider the impoundment by that City’s police and Superior Towing of his car on February 2, 2002.  It is clearly a different set of facts, and that escapes any preclusion.  Judge Lasnik’s findings might set a precedent by which Judge Coughenour may evaluate the August seizure, but it does not preclude Judge Coughenour’s evaluation.

          Judge Lasnik’s reliance upon Colorado v. Bertine, (1987) 479 U.S. 367, 93 L. Ed. 2d. 739, 107 S. Ct. 738, ER 22, is misplaced.  Mr. Bertine was impaired, Id. at 479 U.S. 368, Mr. Knight was not impaired during either February or August stop.  A search of Mr. Bertine’s vehicle found substantial evidence of crimes other than driving while impaired.  Id. at 479 U.S. 369.  The search of Mr. Knight’s car by Mercer Island’s police found no such evidence.  No search was conducted by Trooper Mitchell on August 4, 2002.  Complaint, Document No. 1, pages 5-6.  No evidence was admitted as to these facts due to the district court’s sua sponte summary dismissal.  Bertine considered the admissibility of evidence obtained in the search, no such issue was or could have been brought by Mr. Knight because no such evidence was ever presented for any prosecution.  While Mr. Knight was taken into custody for few hours by Mercer Island on February 2, 2002, he was NOT taken into custody by Trooper Mitchell on August 4, 2002.  This is a key factual difference between the two incidents involving Mr. Knight as well as a key factual difference between the August 4 incident and the Bertine arrest.  Bertine ultimately relied in its Footnote 7, 479 U.S. 376, on the established procedures and criteria the Boulder, Colorado Police Department had for determining whether to impound or leave locked and parked a vehicle.  These procedures included availability of arrestee to give approval to leaving car parked and locked.  Judge Coughenour dismissed the case before determining if the Washington State Patrol had any such procedures, let alone evaluating such procedures.

          Judge Coughenour merely concluded that Mr. Knight’s claims against the seizure of August 4, 2002 are unfounded solely because his claims against the WorkFirst Act and the license suspension fail.  He did not evaluate the facts of the seizure, including whether it was reasonable for Clark’s Towing to leave him stranded 15 miles from home just after midnight between a Sunday and a Monday forcing him to walk that distance home.  Order of Dismissal, Document No. 16, page 3, ER 11, lines 10-13.

          Bertine is necessarily modified by Knowles v. Iowa, (1998) 525 U.S. 113, 116-119, 142 L. Ed. 2d. 492, 119 S. Ct. 484, which disallowed the search of an automobile for a traffic infraction.  A charge of DWLS where the license suspension is based solely on failure to pay child support, does not implicate the public safety interest, while Mr. Bertine’s arrest for driving while impaired does.  If a parent is unable to comply with a support order, RCW 74.20A.320(3) prohibits consideration of such inability, a permanent suspension of his license will not improve his ability to comply.  If the parent has no recent traffic offenses or accidents on his record whatsoever, see ER 74, part of Exhibit D attached to Knight Declaration I, Document No. 10, the suspension does not serve the public interest in the safety of the roads and highways.  Schware v. Board of Bar Examiners, (1957) 353 U.S. 232, 239, 1 L. Ed. 2d. 796, 77 S. Ct. 752 found:

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

. . .

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

 

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

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

 

and thereby invalidated a city ordinance concerning the licensing of motion picture theaters.  Compliance or noncompliance with a child support order is irrelevant to whether the parent can safely operate a motor vehicle, the activity licensed in Mr. Knight’s case.  Because it is, the seizure of the automobile did not serve any public safety interest, and neither did prohibiting Mr. Knight from operating it to get home and to safely park it.

          The state officers’ 28 U.S.C. §1738 argument, Brief of Appellees pages 16-17, relies solely upon Rains v. State, (1983) 100 Wash. 2d. 660, 674 P. 2d. 165.  As argued in the Brief of Appellant pages 22-26, the criteria the Washington courts require for res judicata to apply are not present.  It is under res judicata that a claim that could have been raised but was not may be barred.  Collateral estoppel only affects the claim actually raised and decided.

          Hisle v. Todd Pacific Shipyards Corp., (2002) 113 Wash. App. 401, 411-412, 54 P. 3d. 687, 692-693 answers this question conclusively.  The rights under a collective bargaining agreement, including whether the collective bargaining agreement was validly entered into by the union and the employer, exist independent of the statutory right to be paid overtime wages.  Under the Washington Constitution, a multi-subject bill is void regardless of whether it also contains a bill of attainder or provides for peonage.  Under the United States Constitution, a bill of attainder is void regardless of whether it is part of a multi-subject bill.  42 U.S.C. §1994 declares null and void any attempt by virtue of the acts, usages, or orders of a state that impose or enforce peonage regardless of whether such acts, usages, or orders offend the state’s constitution.

D.      As to Appellees’ Younger Abstention Argument.

          The state officers do not answer the facts and arguments presented by Mr. Knight in his Brief of Appellant pages 14-18.  The state court in the criminal DWLS case found itself to lack jurisdiction to consider the validity of the WorkFirst Act, as found by Judge Lasnik, ER 15.  This finding of FACT is based on substantial evidence, no evidence to the contrary presented, it is a verity on appeal.  Wainwright v. Goode, (1983) 464 U.S. 78, 85, 78 L. Ed. 2d. 187, 104 S. Ct. 378, habeas corpus case, and De La Rama v. De La Rama, (1906) 201 U.S. 303, 313, 50 L. Ed. 765, 26 S. Ct. 485, findings of fact accepted except where plainly and manifestly against the weight of the evidence.  Wainwright and De La Rama interpreted statutes regulating appellate and habeas review of findings of fact.  These statutes reflect the general rule and common law.

VI.     AS TO ARGUMENTS CONCEDED BY THE APPELLEES

          The state officers do not present any argument challenging Mr. Knight’s assertions, Brief of Appellant pages 37-42, that 42 U.S.C. §1994 provides jurisdiction to the federal courts independent of any other statute, and that by including the word “orders” it creates a statutory exceptions to Rooker-Feldman doctrine, 28 U.S.C. §1783, and to 28 U.S.C. §2283.  Therefore, this issue is conceded.

          The state officers do not present any argument challenging Mr. Knight’s assertions, Brief of Appellant pages 42-44, that 42 U.S.C. §1994 covers child support obligations and that license suspension to coerce employment or to punish unemployment where employment is required for compliance with support order is declared null and void by 42 U.S.C. §1994, except to rely upon the preclusive effect of Judge Lasnik’s findings.  Therefore, this issue is conceded.

          The state officers do not present any argument challenging Mr. Knight’s assertion, Brief of Appellant pages 44-46, that the claims he presented are not frivolous, except to rely upon the preclusive effect of Judge Lasnik’s findings.  Therefore, this issue is conceded.

VII.    CONCLUSION

          For the reasons stated herein, the Order of Dismissal, Document 16, ER 9-11, the Judgment, Document 17, ER 8, and the Order, Document 21, ER 6-7 should be reversed or vacated and this case be remanded for further proceedings consistent with such reversal.

Respectfully submitted this 1st day of April, 2003,

 

                                                _________________________________

                                                          Roger W. Knight, appellant pro se

 


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[3] The number of this section is symbolically appropriate.  It authorizes the purchase of Constitutional principles for money.

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