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,
Rooker-Feldman doctrine,
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) 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.
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