I.       STATEMENT OF JURISDICTION

          Action below is for relief under 42 U.S.C. §1983 and 42 U.S.C. §1994.  District court had jurisdiction provided by 42 U.S.C. §1983, 28 U.S.C. §1343(a), and 28 U.S.C. §1331.  District court had jurisdiction to enforce the declaration, 42 U.S.C. §1994, that any attempt by virtue of state law, including orders, to enforce peonage in liquidation of any debt or obligation is null and void.

          Order Regarding Motions for Summary Judgment, Document 65, ER 15-28, and the Judgment, Document No. 66, ER 14, were filed on September 25, 2002.  Plaintiff’s Motion to Amend Judgment, FRCP 59, Document No. 67, was filed on October 2, 2002, less than ten days after the Judgment.  Order Denying Plaintiff’s Motion to Amend Judgment, Document No. 77, ER 12-13, was entered on January 30, 2003 and is the final disposition of the case in district court.  This Court therefore has jurisdiction to hear this appeal under 28 U.S.C. §1291.  Notice of Appeal, Document 81, ER 1, was filed on February 10, 2003, less than thirty days after the entry of the last Order.  This appeal is timely under FRAP 4(a)(4).

II.      STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

          Did district court err in dismissing Roger W. Knight’s Fourth and Fourteenth Amendment claim under 42 U.S.C. §1983 that impoundment of his automobile by City of Mercer Island was an unreasonable seizure?

          Did district court err in finding that Knight’s other claims were barred by Younger abstention[1], Rooker-Feldman doctrine[2], and res judicata?

          Is the WorkFirst Act, Laws of Washington 1997 chapter 58, establishing RCW 74.20A.320, as applied to unmodified child support orders entered and to support arrearages accumulated prior to its passage in 1997, a bill of attainder or an ex post facto law against parties unable to comply with such support orders prohibited by Article I Section 10 clause 1 of the Constitution?  Is freedom from bills of attainder and ex post facto laws enforceable under 42 U.S.C. §1983?

          Can Knight state a claim under 42 U.S.C. §1983 that by suspending his driver’s license solely for noncompliance with a child support order without meeting the notice requirements of RCW 74.20A.320(1), Fred Stephens, Dennis Braddock, and Gary Locke, herein after referred to as State Officers, offended his Fourteenth Amendment due process right to rely upon the state statute?  Should the Complaint be amended to conform to the evidence under FRCP 15(b)?  Did Knight likewise state Fourteenth Amendment claims under 42 U.S.C. §1983 to rely on the Legislature’s decision to not specifically apply the child support enforcement provision to pre-existing child support orders under the Smith and Cruz test[3] and to be governed only by statutes passed in accordance with Article II Section 19 the Washington Constitution prohibiting multi-subject bills such as the WorkFirst Act?

          Does the Antipeonage Act, 42 U.S.C. §1994, by including the word “orders” and declaring such that establish, maintain, or enforce peonage to be null and void, create a statutory exception to Rooker-Feldman doctrine, 28 U.S.C. §1738, res judicata, collateral estoppel, and 28 U.S.C. 2283?  Does 42 U.S.C. §1994 provide federal courts with jurisdiction independent of any other statute?  Is 42 U.S.C. §1994 authorized by Thirteenth Amendment Section 2?  Is attempting to coerce, by license suspension, Knight’s consent to a “repayment agreement” when he possesses wealth insufficient to comply with the support order without employment, declared null and void by 42 U.S.C. §1994?

          Was district court in error in finding claims and the questions of law upon which they are based frivolous, and in imposing a litigation bar prohibiting Knight from bringing any new complaints challenging the enforcement of the child support order as declared null and void by 42 U.S.C. §1994, the Antipeonage Act, and from bringing any new complaints challenging the Washington WorkFirst Act, RCW 74.20A.320, on any basis?

III.     REVIEWABILITY AND STANDARD FOR REVIEW

          A summary judgment is reviewed de novo.  Baldwin v. Trailer Inns, Inc., (9th Cir. 2001) 266 F. 3d. 1104, 1111.  A dismissal for Younger abstention is reviewed de novo.  Canatella v. California, (9th Cir. 2002) 304 F. 3d. 843, 850.  A dismissal for Rooker-Feldman doctrine is reviewed de novo, Canatella, at 304 F. 3d. 849.  A dismissal under 28 U.S.C. §1738 for preclusion under state law with respect to previous state court proceedings is reviewed de novo.  Robi v. Five Platters, Inc., (9th Cir. 1988) 838 F. 2d. 318, 321.  A dismissal for res judicata or collateral estoppel with respect to previous federal court decisions is reviewed de novo.  Akootchook v. United States, (9th Cir. 2001) 271 F. 3d. 1160, 1164.  Questions of law are reviewed de novo.  Lott v. Miller, (2002) 304 F. 3d. 918, 922.  Whether claims are “frivolous” is reviewed de novo.  Nelson v. Int’l Brotherhood of Electrical Workers, Local 46 AFL-CIO, (9th Cir. 1990) 899 F. 2d. 1557, 1561.

IV.     STATEMENT OF THE CASE

          April 23, 2002.  Roger W. Knight filed Complaint for Enforcement of Civil Rights, 42 U.S.C. §1983, Document 1, along with Declaration by Judith Calhoun, (Calhoun Declaration I), Document 2, ER 133-136, and Declaration by Roger W. Knight, (Knight Declaration I) and its attached Exhibits, Document 3, ER 87-132.

          June 5, 2002.  Knight filed his Plaintiff’s Motion for Partial Summary Judgment (Knight Motion), Document 36, and his Declaration by Roger W. Knight in Support of Plaintiff’s Motion for Summary Judgment (Knight Declaration III), Document 37, ER 72-75.

          June 24, 2002.  State Officers filed the Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment and Motion and Memorandum in Support of Defendant’s Motion for Summary Judgment (State Motion), Document 41.

          June 24, 2002.  City of Mercer Island, Alan Merkle, Ron Elsoe, Londi K. Lindell, and Wayne Stewart, herein after referred to as Mercer Island when not referenced individually, filed Mercer Island Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment and Motion and Memorandum in Support of Defendants’ Motion for Summary Judgment (Mercer Island Motion), Document 42 and Declaration of Officer Brian Noel in Support of Mercer Island Defendants’ Motion for Summary Judgment (Noel Declaration) and attached Exhibits, Document 43, ER 63-71.  Superior Towing never appeared.

          June 9, 2002.  Knight filed his Plaintiff’s Cross Motion for Summary Judgment with Suggestion for Certification of State Law Questions to Supreme Court of Washington (Knight Cross Motion), Document 48.

          September 25, 2002.  District court entered the Order Regarding Motions for Summary Judgment, Document No. 65, ER 15-28, and the Judgment, Document No. 66, ER 14.

          October 2, 2002.  Knight filed his Plaintiff’s Motion to Amend Judgment, FRCP 59, Document 67.

          January 30, 2003.  District court entered the Order denying Plaintiff’s Motion to Amend Judgment, Document 77, ER 12-13.

          February 10, 2003.  Knight filed his Notice of Appeal, Document 81, ER 1.

V.      ARGUMENT

A.      Impound of he Automobile on February 2, 2002 by Mercer Island

 

          i.        Impound Was an Unreasonable Seizure in Violation of the Fourth and

                    Fourteenth Amendments.  Relief is Available Under 42 U.S.C. §1983.

 

          The Fourth Amendment protection against unreasonable seizures is incorporated upon the States by the Fourteenth Amendment, Mapp v. Ohio, (1961) 367 U.S. 643, 6 L. Ed. 2d. 1081, 81 S. Ct. 1684, and is a right for which relief is available under 42 U.S.C. §1983, Gonzaga University v. Doe, (2002) 536 U.S. 273, 153 L. Ed. 2d. 309, 122 S. Ct. 2268, 2270.  It requires all seizures of transportation devices be reasonable.  Carroll v. United States, (1925) 267 U.S. 132, 158-159, 69 L. Ed. 543, 45 S. Ct. 280 found:

The right to search and the validity of the seizure are not dependent on the right to arrest.  They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.

 

          Knowles v. Iowa, (1998) 525 U.S. 113, 116-119, 142 L. Ed. 2d. 492, 119 S. Ct. 484, noted that there are two rationales for the “search incident to arrest” exception as set forth in United States v. Robinson, (1973) 414 U.S. 218, 234, 38 L. Ed. 2d. 427, 94 S. Ct. 467:

(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial.

. . .

          Nor has Iowa shown the second justification for the authority to search incident to arrest - the need to discover and preserve evidence.  Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained.   . . .

          Here we are asked to extend that “bright line rule” to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all.  We decline to do so.

 

          A Driving While License Suspended (DWLS) charge requires neither search nor seizure of the automobile.  Impounding an automobile that is nonfunctioning or parked illegally is part of the “community caretaking functions” of the police.  South Dakota v. Opperman, (1976) 428 U.S. 364, 365-369, 49 L. Ed. 2d. 1000, 96 S. Ct. 3092.  However, as it is undisputed that the vehicle was functional and legally parked on February 2, 2002 when Knight was arrested for DWLS, that the search was conducted prior to the impound and no search conducted subsequent, no evidence of criminal activity was found in the search, and Knight consented to leaving the car in place, Knight Declaration III pages 3-4, ER 74-75, and Noel Declaration pages 2-3 and attached Exhibits, ER 64-68, the seizure of the automobile was thus not reasonable under Carroll and Knowles, and was outside the community caretaking functions of the police set forth in Opperman.

          ii.       Fourth Amendment Issue of Impound Not Barred in the Action Below

          Fourth Amendment analysis necessarily depends upon an examination of the facts of each seizure, which presents a unique transaction for litigation.  The validity of the seizure was never an issue in the state court criminal action, City of Mercer Island v. Knight, King County District Court, Bellevue Division Nos. MIC 84199 and MIC 84268 (MI v. Knight), wherein Knight was prosecuted for DWLS.  Calhoun Declaration I, Document 2, ER 133-136; Knight Declaration I, Document 3, pages 1-5, ER 87-91, its Exhibits A-1, ER 96, E, ER 121-125, and F, ER 126-132; Declaration of Wayne Stewart in Support of Mercer Island Defendants’ Opposition to Plaintiff’s Motion for Preliminary Injunction (Stewart Declaration), Document 22, ER 84-86; Declaration by Roger W. Knight Re State Court Trial (Knight Declaration II), Document 30, ER 80-83; Declaration by Judith Calhoun Re State Court Trial (Calhoun Declaration II), Document 31, ER 76-79; Declaration by Roger W. Knight in Support of Plaintiff’s Reply to Mercer Island Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment (Knight Declaration IV), Document 46, pages 1-4, ER 49-52, particularly page 4, ER 52, Declaration by Roger W. Knight Re Transcript of State Court Motion Hearing of April 19, 2002 (Knight Declaration V), Document 60, and its attached Exhibit (Transcript), ER 37-48.  Nor was the seizure an issue in the appeal, City of Mercer Island v. Knight, King County Superior Court No. 02-1-01137-0 SEA, where the convictions were reversed, Supplemental Declaration by Roger W. Knight (Knight Declaration VI), Document 72, and its attached Exhibit, ER 33-36, or upon remand, Supplemental Declaration by Judith Calhoun (Calhoun Declaration III), Document 74, ER 31-32, and Second Supplemental Declaration by Roger W. Knight (Knight Declaration VII), Document 75, ER 29-30.  No evidence found in the search was presented therein, as Knight presented Officer Noel with his license, registration and proof of insurance before the search.  Officer Noel’s Declaration part of Exhibit E to Knight Declaration I, Document 3, ER 123; Knight Declaration III, Document 37, page 3, ER 74; Exhibit attached to Noel Declaration, Document 43, ER 67.  This claim is not barred by Younger abstention, Rooker-Feldman, 28 U.S.C. §1738, res judicata or collateral estoppel.

          iii.      Fourth Amendment Issue of Impound Tried by Implied Consent of

                   the Parties

 

          Under FRCP 15, leave to amend the Complaint should be granted as justice so requires or where the issue is tried by express or implied consent of the parties.  Because Knight’s automobile was legally parked when impounded, justice requires amendment to the Complaint to include this claim.  Mercer Island tried the issue by express or implied consent when it briefed it on pages 6-12 of its Mercer Island Motion, Document 42.

B.      Other Claims Not Barred in Action Below by Younger Abstention, Rooker-

          Feldman Doctrine, 28 U.S.C. §1738, Res Judicata, or Collateral Estoppel

 

          i.        State Court Actions and Other Federal Court Actions

          Exhibit B to Knight Declaration I, Document 3, ER 97-113 is the Decree entered on July 11, 1991 in In re Marriage of Knight, King County Superior Court No. 90-3-04471-1.  Nothing in this Decree authorizes, threatens, or provides for the suspension of licenses for nonpayment of child support.  RCW 74.20A.320 was not added until July 1, 1997, therefore, the Decree does not include it.  No motion to modify this support order was ever presented.  It is thus not an on going state court proceeding and contains no judgment on the validity or application of the WorkFirst Act passed in 1997.

          Knight was charged with DWLS in MI v. Knight.  On page 9 of the Transcript of April 19, 2002, ER 48, at lines 22-27, the state court found:

Court:  Well the issue before me was whether or not the case should be dismissed based upon lack of notice.  This court does not have jurisdiction to hear collateral issues of whether or not the Legislature is empowered to adopt the WorkFirst law.  That’s a collateral attack on the licensing scheme that I don’t have jurisdiction to hear that issue.  So I’m not going to hear it.

 

Thus Knight filed the Complaint, Document 1, on April 23, 2002, claiming Younger abstention exception.

          Exhibit A to the Knight Declaration IV, Document 46, ER 53-60, is documentation Knight received for the first time on May 20, 2002, it was never entered into evidence in MI v. Knight, Knight Declaration IV page 2, ER 50.  On May 21, 2002, the state court reaffirmed its prior decisions that it lacked jurisdiction to consider the validity of the WorkFirst Act, and found that it lacked jurisdiction to consider whether the notice requirements of RCW 74.20A.320(1) were met for the Washington Department of Social and Health Services (DSHS) to obtain jurisdiction to administratively certify noncompliance with a support order to the state’s Department of Licensing (DOL), upon such notification the DOL must suspend the license.  Knight Declaration IV pages 2-3, ER 50-51.

          The convictions for DWLS were reversed on October 31, 2002, Knight Declaration VI, Document 72, ER 33-36, on the basis that the state trial court had jurisdiction to consider whether the statutory notice requirements were met.  On remand, Mercer Island did not present any evidence as to whether the statutory notice requirements were met, and the state court dismissed the case without hearing or deciding this issue.  Knight Declaration VII, Document 75, ER 29-30.

          However, the superior court found that a challenge to the validity of the WorkFirst Act cannot be heard in a criminal DWLS proceeding.  Knight Declaration VI, Document 72, page 2, ER 34.

          Knight was charged with DWLS by the City of Seattle for an incident on January 6, 2002, City of Seattle v. Knight, Seattle Municipal Court No. 415256.  On January 23, 2002, Seattle Municipal Court dismissed with prejudice the DWLS complaint without deciding any issue of fact or law.  Knight then filed Knight v. City of Seattle et al, W.D. Wash. No. C02-201R.  Subsequent to April 23, 2002 when the Complaint, Document 1 was filed, the district court in No. C02-201R decided on the merits the issue of whether the impoundment of his automobile offended the Fourth and Fourteenth Amendments and whether Knight lacked standing to request injunction against future impoundments.  No decision on the validity of the license suspension, of RCW 74.20A.320, or of the support order was made in No. C02-201R.  It is presently on appeal to this Court in No. 02-35939, the briefs have been filed.

          Knight v. Maleng et al, W.D. Wash. No. C00-151Z, challenged then on-going state court contempt proceedings in In re Marriage of Knight, King County Superior Court No. 90-3-04471-1 KNT as declared null and void by the Antipeonage Act.  The district court found, and this Court affirmed in unpublished decision, No. 00-35625, see attached memorandum decision, that the federal courts must abstain under Younger doctrine.  Therefore no decision on the merits of the claim was made in this proceeding.  In September 2001, the state court ceased attempting to enforce the support order through contempt without entering any finding on the validity of the enforcement through contempt.

          Knight v. Schmitz, et al, W.D. Wash. No. C00-1874R, challenged the support order entered in 1991 and the support schedule statute, chapter 26.19 RCW, as exceeding the state’s interest in the welfare of the child and offending Knight’s Fourteenth Amendment right as a parent to make decisions as to the custody, care, and support of the child, including how much money to spend, based on Troxel v. Granville, (2000) 530 U.S. 57, 147 L. Ed. 2d. 49, 120 S. Ct. 2054 entered on June 5, 2000.  The district court found, and this Court affirmed in unpublished decision, No. 01-35459, see attached memorandum decision, that the federal courts lacked jurisdiction under the Rooker-Feldman doctrine.

          Knight v. State of Washington, King County Superior Court No. 97-2-21231-6 KNT (Knight v DSHS I), and Knight v. State of Washington, King County Superior Court No. 99-2-22195-8 KNT appealed Washington Court of Appeals Div. 1 No. 46753-1-I (Knight v. DSHS II) resulting in unpublished decision, challenged the Washington WorkFirst Act as a multi-subject bill prohibited by Article II Section 19 of the Washington Constitution.  No federal issues were raised in these proceedings.

          ii.       Younger Abstention.

          Canatella v. California, (9th Cir. 2002) 304 F. 3d. 843, 850 found:

This court reviews de novo whether abstention is required.  Green v. City of Tucson, 255 F. 3d. 1086 (9th Cir. 2001)(en banc).  Younger and its progeny teach that the federal courts may not, where circumstances dictate, exercise jurisdiction when doing so would interfere with state judicial proceedings.  See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).  A district court must abstain and dismiss a suit on the basis of Younger where: (1) state proceedings are on going; (2) important state interests are involved; and (3) the plaintiff has an adequate opportunity to litigate federal claims in the state proceedings.  See id. at 432, 102 S. Ct. 2515.  However, we recently held that the Middlesex inquiry is triggered “only when the threshold condition for Younger abstention is present – that is, when the relief sought in federal court would in some manner directly “interfere” with on going state court proceedings.” Green v. City of Tucson, 255 F. 3d. at 1097.

          Of course the Green interference inquiry presumes the existence of an ongoing state proceeding to be interfered with, which is precisely what the first prong of the Middlesex test requires the district court to consider.  We consider whether the state court proceedings were ongoing as of the time the federal action was filed.  See Beltran v. State of California, 871 F. 2d. 777, 782 (9th Cir. 1988).

 

          Beltran v. California, (9th Cir. 1988) 871 F. 2d. 777, 782 found that abstention requires proceedings to be ongoing at the time plaintiff initiates federal proceedings.  The DWLS action filed in Seattle for the incident of January 6, 2002 was dismissed with prejudice before April 2002 and no appeal timely filed.  Neither the support order entered in 1991 nor the contempt proceedings pursued until September 2001 in In re Marriage of Knight were on going as of April 23, 2002.  As argued below, the state DSHS never acquired in personam jurisdiction to certify noncompliance with a support order to the DOL.  There is no on going state court proceeding arising from that state administrative action.

          The third prong of the Middlesex test requires adequate opportunity to litigate federal claims in the state proceedings.  Without notice sufficient to acquire in personam jurisdiction as required by RCW 74.20A.320(1), the plaintiff was deprived by Dennis Braddock through his agency DSHS of adequate opportunity by means of a petition for redetermination of administrative decision in a superior court, chapter 34.05 RCW, subsequent to the hearing provided by RCW 74.20A.320, wherein he may challenge the validity of the WorkFirst Act.  In MI v. Knight, the state court found it lacked jurisdiction to consider these issues on April 19, 2002, and again on May 21, 2002.  These findings as to jurisdiction to consider the validity of the WorkFirst Act were upheld on October 31, 2002 while reversed as to jurisdiction to consider whether the DSHS had acquired in personam jurisdiction by service as required by RCW 74.20A.320(1).  The issue of whether DSHS acquired in personam jurisdiction was not decided on remand.  See above pages 10-12 for references to the record.

          Ordinarily, Younger abstention applies where a losing litigant has not exhausted his state appellate remedies, Dubinka v. Judges of Superior Court, (9th Cir. 1994) 23 F. 3d. 218, 223 citing Huffman v. Pursue, Ltd., (1975) 420 U.S. 592, 607-611, 43 L. Ed. 2d. 482, 95 S. Ct. 1200.  Neither Dubinka nor Huffman considered the case where the state court found itself lacking in jurisdiction to consider the validity of the state statute.  Huffman found at 420 U.S. 594:

A similar issue was raised in Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), but we were not required to decide it because there the enjoined state proceedings were before a biased administrative body which could not provide a necessary predicate for a Younger dismissal, that is, 'the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved.' Id., at 577, 93 S.Ct., at 1697.

 

To timely decide the federal issues involved can only mean before trial in a criminal case, not on appeal after trial.  The opportunity required for Younger abstention as found by Gibson for timely decision is not met.

          Green v. City of Tucson, (9th Cir. 2001) 255 F. 3d. 1086, 1093 found:

The Supreme Court has stressed, on the one hand, that federal courts are obliged to exercise the jurisdiction given to them, Colorado River, 424 U.S. at 817,[4] . . . and on the other, that when a case meets the narrow Younger exception to that general principle “there is no discretion to grant injunctive relief.”  Id. at 816 n. 22.  So in addressing Younger abstention issues, district courts must exercise jurisdiction except when specific legal standards are met, and may not exercise jurisdiction when those standards are met; there is no discretion vested in the district courts to do otherwise.

 

Having thus established that there is no discretion to abuse on the question of whether Younger applies, Green went on to find, at 255 F. 3d. 1094:

Younger doctrine only applies when there is an additional element absent here: that the federal relief sought would interfere in some manner in the state court litigation.  That requirement is ordinarily . . . restricts application of the Younger doctrine to circumstances in which the state court proceeding is an enforcement action against the federal court plaintiff, and is not met simply by the prospect that the federal court decision may, through claim or issue preclusion, influence the result in state court.

 

After reviewing Younger v. Harris and Middlesex County Ethics Comm. v. Garden State Bar Ass’n, (1982) 457 U.S. 423, 73 L. Ed. 2d. 116, 102 S. Ct. 2515, Green went on to find that a conflicting federal court decision on a point of law does not “interfere” with an ongoing state court proceeding, at 255 F. 3d. 1096-1098, and that the federal case in question does not so interfere, id. at 1098-1099.

          Green cited and analyzed New Orleans Public Service, Inc. v. Council of the City of New Orleans, (NOPSI) (1989) 491 U.S. 350, 105 L. Ed. 2d. 298, 109 S. Ct. 2506.  NOPSI challenged a New Orleans City Council utility rate order in both Louisiana and federal courts.  NOPSI found that Younger does not extend to where the plaintiff in the federal action is the plaintiff in the state court action, even if “important state interests” are at stake in the state court proceeding, and that the party has full and fair opportunity to litigate his federal law claims in the state court proceeding he himself commenced.  This applies to Knight v. DSHS I and Knight v. DSHS II where Knight was the plaintiff in the state court action.

          Because the necessary elements for Younger abstention are not present, the district court is required to exercise its jurisdiction.

          iii.      Rooker-Feldman.

          Canatella, supra, at 304 F. 3d. 849 found:

          The district court determined that Canatella’s § 1983 suit was, in effect, an action to review the California Supreme Court’s final disciplinary order approving the settlement between Canatella and the State Bar.  The court reasoned that because Canatella was still on probation, a grant of his requested injunctive and declaratory relief would effectively nullify the California Supreme Court’s approval of Canatella’s probationary status.  The court was rightly concerned that asserting jurisdiction might require review of a final state court decision, particularly one potentially subject to revision in the state court system, . . . but this situation no longer obtains.  On March 18, 2001, Canatella completed his probationary sentence under the stipulated discipline approved by the Supreme Court of California.  He has done so without incurring further disciplinary sanction.  Review of his First and Fourteenth Amendment claims no longer raises the specter of review of a final state court decision, and the question of whether Rooker-Feldman applies is moot.

 

And at the word “moot” is Footnote 6 on 304 F. 3d. 849-850:

          We note that even if Canatella were still under the probationary period, Rooker-Feldman would likely not bar Canatella’s claims.  His complaint does not request review of the stayed suspension to which he stipulated with the State Bar, and seeks only prospective relief.  Nor does the complaint request review of the probationary sentence.  . . .  Prospective injunction and declaratory relief in the current action thus does not appear to require review by the district court of the final California Supreme Court order approving Canatella’s discipline.  We do not read Canatella’s complaint to be a “skillful attempt to mask the true purpose of the action, which essentially is to reverse the decision of the Supreme Court of [California].” Stern v. Nix, 840 F. 2d. 208, 212 (3d. Cir. 1988).  We therefore do not believe that Canatella’s federal claim would have been “inextricably intertwined” with the state proceedings, as is required for dismissal on the basis of Rooker-Feldman.  See Feldman, 460 U.S. at 482 n. 16.

 

Likewise, prospective injunctive relief requiring the State Officers to restore the driver’s license would not have invalidated the convictions for DWLS as it would not affect the previous status of the license.  As these convictions were reversed on appeal and dismissed with prejudice on remand, review of Knight’s “claims no longer raises the specter of review of a final state court decision, and the question of whether Rooker-Feldman applies is moot.”

          As state court found that it lacked jurisdiction to consider the issues of whether RCW 74.20A.320 as applied to the plaintiff is invalid in the DWLS case, finding partially affirmed on appeal, no further findings on remand, there is no appellate review of a decision not made by the state court.  Olson Farms, Inc. v. Barbosa, (9th Cir. 1998) 134 F. 3d. 933, 937 paraphrasing Robinson v. Ariyoshi, (9th Cir. 1985) 753 F. 2d. 1468, 1472:

(Where state court refused to decide federal issue, our decision of that issue will not be review of state court decision and will not be barred on jurisdiction or res judicata grounds.)

 

          Neither would prospective injunction require appellate review of Knight v. DSHS I and Knight v. DSHS II wherein Knight challenged the WorkFirst Act as a multi-subject bill prohibited by Article II Section 19 of the Washington Constitution.  He did not present any federal questions therein.  There is thus no jurisdictional bar to a federal court action under 28 U.S.C. §§ 1331 and 1343, and under 42 U.S.C. §1983.  Dubinka v. Judges of Superior Court, (9th Cir. 1994) 23 F. 3d. 218, 222, found:

However, the district court did have jurisdiction to determine the general constitutionality of the district’s bar rule, because such review would not require reviewing “a final state-court judgment in a particular case.”  Feldman, 460 U.S. at 486-488, 103 S. Ct. at 1317-18.

          In the present case, appellants’ complaint does not require the district court to review a state court decision.  In broad language it challenges the general constitutionality of Proposition 115.  For example, it alleges that the discovery statutes are not fully reciprocal and that compelled disclosure of information regarding defense witnesses violates the Fifth and Sixth Amendments.  A district court could easily analyze these claims without resorting to the state trial courts’ discovery orders in the pending cases.  . . .  Therefore, the district court did have subject matter jurisdiction to hear appellants’ facial challenges to the constitutionality of Proposition 115.

 

Likewise, a consideration of whether the WorkFirst Act is a bill of attainder or an ex post facto law does not require any review of any of the state court proceedings cited herein.  No state court has ruled on this issue.

          iv.      28 U.S.C. §1738.

          Migra v. Warren City School Board of Education, (1984) 465 U.S. 75, 81, 79 L. Ed. 2d. 56, 104 S. Ct. 892 at 465 U.S. 81, found:

It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.  In Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d. 308 (1980), this Court said:

"Indeed, though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so. . . ." Id., at 449 U.S. 96.

 

Migra went on to find, at 465 U.S. 83-87, that whether a state court proceeding wherein a 42 U.S.C. §1983 claim could have been raised but was not bars a subsequent proceeding in federal court is dependent upon whether the state’s courts consider such a claim barred.

          Hisle v. Todd Pacific Shipyards Corp., (2002) 113 Wash. App. 401, 410-411, 54 P. 3d. 687, 692 found:

          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.  . . .  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).

. . .

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);

 

          There is no identity of parties between the appellees and the State of Washington and its DSHS in Knight v. DSHS I and Knight v. DSHS II.  The State and its agencies are immune to 42 U.S.C. §1983 actions in federal courts under the Eleventh Amendment but its officers are not, Ex parte Young, (1908) 209 U.S. 123, 157-168, 52 L. Ed. 714, 28 S. Ct. 441.  Knight v. DSHS I and Knight v. DSHS II arose from warning letters in 1997 and 1999 which did not provide for any administrative hearing as required by RCW 74.20A.320.  No identity in cause of action exists between the threatening letters and an actual suspension of a license in 2001, where facts surrounding the suspension determine some or all of the claims.  The only issue raised by Knight was whether the WorkFirst Act is void as a multi-subject bill.  To plead bill of attainder, Knight would have to plead inability to comply, see RCW 74.20A.320(3).  To plead 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 fact. [5]  There is thus not the “same transactional nucleus of facts” from which the state court challenge to the WorkFirst Act as a multi-subject bill arose.

          Hisle at 113 Wash. App. 411-412, 54 P. 3d. 692-693 found that a challenge to a collective bargaining agreement does not apply, through res judicata, to bar any challenge to the failure to pay overtime wages required by RCW 49.46.130.  The statutory right to overtime pay is independent of any contract.

          By the same token, the rights to not be targeted by a bill of attainder or held in a condition of peonage are independent of the right to not be governed by a multi-subject bill.  A bill of attainder or a requirement to work based upon a debt or obligation is void whether it is passed as a single subject bill or included as part of a multi-subject bill.  Therefore, the claims in this case are not barred by res judicata under Washington law.

          Because the original divorce case was litigated long before the WorkFirst Act was passed, Knight Declaration I, Document 3, Exhibit B, ER 97-113, it does not preclude any challenge to subsequently passed legislation.

          Shuman v. Dept. of Licensing, (2001) 108 Wash. App. 673, 677-678, 32 P. 3d. 1011, 1013-1014 found:

A party seeking to invoke the doctrine of collateral estoppel must prove: (1) the issue decided in the prior adjudication is identical with the one presented in the second action; . . . Thompson v. Dep't of Licensing, 138 Wn. 2d 783, 790, 982 P.2d 601 (1999).

 

The issue raised by Knight in Knight v. DSHS I and Knight v. DSHS II, his claim that the WorkFirst Act is void as a multi-subject bill, he raised in Paragraph 26 of the Complaint, Document 1, on the theory that the Fourteenth Amendment allows criminal prosecutions based only on validly passed and validly applied state law.  The Fourteenth Amendment was not raised in Knight v. DSHS I and II, thus it is not identical with the Paragraph 26 claim.  None of the other issues raised in this case are precluded by collateral estoppel under Washington law.

          As to Knight’s claim that failure to comply with the notice requirements of RCW 74.20A.320(1) offended his Fourteenth Amendment right to rely upon a state notice statute, State v. Dolson, (1999) 138 Wash. 2d. 773, 781-782, 982 P. 2d. 100, 104 found:

          The State also asserts that Dolson was not prejudiced because Dolson had actual knowledge of his license revocation at the time of his 1996 arrest for driving with a revoked license. The State points out that Dolson had been convicted of driving without a license on three separate occasions since the 1990 revocation.

 

Emphasis added.  Nevertheless, Dolson at 138 Wash. 2d. 782-783, 982 P. 2d. 105 went on to find the license suspension was invalid and reversed the fourth DWLS conviction.  A Washington court in a DWLS case has jurisdiction to consider whether notice met requirements of RCW 74.20A.320(1), Knight Declaration VI and its Exhibit, Document 72, ER 33-36.  Washington courts do not recognize a DSHS or DOL administrative action to be preclusive when the issue is a statutory notice requirement for the administrative agency to acquire jurisdiction over the licensee.  On remand, on January 17, 2003, the DWLS case was dismissed with prejudice and without determining whether the notice requirement of RCW 74.20A.320(1) was met.  A Complaint may be amended, FRCP 15(b), to conform to the evidence.  Puget Sound Gillnetters Association v. U.S. District Court, (9th Cir. 1978) 573 F. 2d. 1123, 1131, vacated on other grounds, 443 U.S. 658.

Therefore, 28 U.S.C. §1738 does not bar federal court consideration of any of the claims.

          v.       Res Judicata and Collateral Estoppel With Respect to Other Federal

                   Proceedings.

 

          Knight v. Maleng et al, W.D. Wash. No. C00-151Z affirmed 9th Cir. No. 00-35625 considered contempt proceedings in a state court and found that the federal courts must abstain from hearing such a claim under the Younger abstention doctrine.  Knight v. Schmitz, et al, W.D. Wash. No. C00-1874R affirmed 9th Cir. No. 01-35459 considered whether a new Supreme Court decision, Troxel, supra, could establish a basis that an old child support order offended the Fourteenth Amendment and found that the federal courts lacked jurisdiction to consider such a claim under the Rooker-Feldman doctrine.[6]  Thus no determinations were made of the underlying issues in either case that would have a res judicata or collateral estoppel effect.  As these cases were litigated before the license suspension in September 2001 and did not consider any challenge to a license suspension, they do not preclude this case.

          All other federal cases which involved Knight were litigated before the passage of the WorkFirst Act in 1997, they did not consider license suspension for child support.  As all federal cases involving Knight have so far resulted in unpublished decisions by this Court, they cannot be cited as precedent in the determination of this case.  Ninth Cir. Rule 36-3 and Hart v. Massanari, (9th Cir. 2001) 266 F. 3d. 1155.  Knight cites these cases only to establish absence of res judicata or collateral estoppel effect.  The district court’s citation of an unpublished opinion as precedent in its Order, Document No. 65, page 6, ER 20, is contrary to Cir. Rule 36-3 and Hart.

C.      Washington WorkFirst Act, RCW 74.20A.320, is a Bill of Attainder and an

          Ex Post Facto Law Prohibited by Article I Section 10 Clause 1.  Freedom

          From Bills of Attainder and Ex Post Facto Laws is a Civil Right that Can Be

          Enforced Under 42 U.S.C. §1983.

 

          The WorkFirst Act was passed as Laws of Washington 1997 Chapter 58.  The child support order was imposed in its current form upon Mr. Knight in 1991 and has not been modified since.  Knight Declaration I, Document 3, Exhibit B, ER 97-113.  On May 29, 1995, Knight was laid off by The Boeing Company.  Knight Declaration I page 4, ER 90.  When the WorkFirst Act was passed, Knight was well over two years out of compliance with the support order.  Exhibit C to Knight Declaration I, ER 114-117.  RCW 26.09.170(1) prohibits modifications of child support orders for months prior to the motion.  The parent cannot petition for a reduction in the arrears no matter the circumstances.

          Where United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, 873 finds that a “parent should never be confronted with a situation where he is ordered to make child support payments he cannot afford”, this Court failed to take into account RCW 26.09.170(1) and: 1) Support schedule laws, chapter 26.19 RCW, which can impose unreasonable orders upon parents with incomes in the $20,000-$40,000 per year range[7] which in combination with 26 U.S.C. §152(e) prohibiting deductions for child support paid, results in extremely low take home incomes.  2) Levels of income can be “imputed”, meaning determined without admissible evidence.  3) When the parent asks for a reduction in the support order, mercy is often refused.  4) A parent with an unreasonable child support order cannot afford legal representation to obtain a reduction in the level of support ordered.

          RCW 74.20A.320(3) prohibits consideration of inability to comply with a support order.  If the parent has not complied with the support order, the licenses must be suspended, permanently if the parent is never able to comply.  For a pre-existing support order where the debt was accrued prior to the passage of the statute, the imposition of such a sanction by irrebuttable legislative presumption is a bill of attainder.  The subsequent legislation is a legislative, not a judicial, modification of the pre-existing support order.

          A bill of attainder or an ex post facto law imposes punishment upon a group of persons by legislative action and without judicial trial.  While bills of attainder are not restricted to criminal punishments, ex post facto laws add a quantum of punishment to previously committed crimes or define as criminal previous acts that were not criminal at the time committed.[8]

          Cummings v. Missouri, (1867) 71 (4 Wall.) U.S. 277, 18 L. Ed. 356 and Ex parte Garland, (1867) 71 (4 Wall.) U.S. 333, 18 L. Ed. 366 invalidated as bills of attainder and ex post facto laws measures conditioning practice in certain professions on oath that party never aided the Confederacy.  Cummings and Garland could not take such oaths without committing perjury.  The restrictions punish the previous aiding the Confederacy.  Likewise, to prohibit operating an automobile or traveling abroad, when disqualified for not paying child support owed prior to the passage of such statute, is to pass a bill of attainder.

          Justice Black’s concurring opinion in Aptheker v. Secretary of State, (1964) 378 U.S. 500, 518, 12 L. Ed. 2d. 992, 84 S. Ct. 1659 found the statute prohibiting Communist Party members from obtaining passports was a bill of attainder.  It follows that any statute prohibiting parents unable to comply with support orders from operating automobiles is also a bill of attainder.  It impacts the right to travel, a key issue in Aptheker.

United States v. Brown, (1965) 381 U.S. 437, 14 L. Ed. 2d. 484, 85 S. Ct. 1707 found that the statute prohibiting Communist Party members employment by labor unions was a bill of attainder.  United States v. Lovett, (1946) 328 U.S. 303, 315, 90 L. Ed. 1252, 66 S. Ct. 1073 found a statutory provision that barred compensation to three named individuals for government employment was a bill of attainder.  As RCW 74.20A.320 deprives Knight of any opportunity to practice any licensed profession for which he might at present or in the future qualify, it is a bill of attainder and an ex post facto law.  It can keep him from ever becoming able to comply with the support order.

          United States v. Huss, (9th Cir. 1993) 7 F. 3d. 1444, 1448 found:

the ‘marginal effect of adding long guns to the otherwise exhaustive list of restricted weapons does not amount to punishment for ex post facto purposes.’

 

          However, RCW 74.20A.320 does not have any such “marginal effect” upon parents who previously did not comply with support orders.  RCW 74.20A.320 applies to all licenses by directing the state’s agencies to suspend licenses upon a certification by DSHS that the parent is out of compliance with a support order.  Previously no such threat existed in any support order or was contemplated in any statute.  There is no list of license restrictions to which the RCW 74.20A.320 makes a “marginal” addition.  It is thus an ex post facto law to the extent noncompliance with a support order may be considered a crime.  It is a bill of attainder whether or not nonpayment of child support is considered a crime.

          Some useful guideposts of whether a sanction imposed by subsequent legislation is punitive are set forth in Kennedy v. Mendoza-Martinez, (1963) 372 U.S. 14, 168-169, 9 L. Ed. 2d. 644, 83 S. Ct. 554:

(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter "; (4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." It is important to note, however, that "these factors must be considered in relation to the statute on its face,"

 

Suspension of licenses, whether to operate an automobile or other activities, involve an affirmative disability or restraint.  Such has historically been regarded as punishments for such crimes as drunk driving for driver’s licenses, abortion for medical licenses, and any felony for licenses to practice law.  Under RCW 74.20A.320 it comes into play on a finding of noncompliance with a support order.  Suspending licenses serve the traditional aims of punishment, retribution and deterrence.  People are less likely to drive while impaired if they believe their licenses to drive will be suspended, and those who drive while impaired are subject to the retribution of license suspension and other penalties.  The behavior to which RCW 74.20A.320 applies license suspension, noncompliance with a support order, has been and is considered a crime in many jurisdictions, including federal under 18 U.S.C. §228.  Because RCW 74.20A.320(3) prohibits consideration of ability to comply with the support order, no non-punitive purpose can be rationally assignable to the sanction of license suspension.  Even in the case of those who may be able to comply with their support orders, license suspension is counterproductive to such ability and appears excessive to any purpose of coercing a repayment agreement out of the noncustodial parent.

          A noncustodial parent who is unable to comply with the support order cannot, without committing fraud, sign any repayment agreement as contemplated by RCW 74.20A.320(5).  Similarly, a former Confederate could not, without committing perjury, swear that he did not aid the Confederate States of America.

          By contrast, Smith v. Doe, (March 5, 2003) 123 S. Ct. ____, which cited the Mendoza-Martinez factors, found that Alaska’s Megan’s law was not a punitive ex post facto law because it only required registration as a sex offender, it did not restrict any activities a sex offender may pursue, including operating automobiles.

          Gonzaga University v. Doe, (2002) 536 U.S. 273, 153 L. Ed. 2d. 309, 122 S. Ct. 2268, 2270-2275 found that only rights, not “benefits” or “interests”, can be enforced by 42 U.S.C. §1983.  This statute, and the law originally passed in 1871, 17 Stat 13, has always been recognized to enforce the rights to due process and equal protection in the Fourteenth Amendment.  Freedom from bills of attainder and ex post facto laws are fundamental to the right to due process of law.  In Federalist Paper 44, quoted in Brown, 381 U.S. 444 n. 18, James Madison wrote:

          Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact and to every principle of sound legislation.

 

In Federalist Paper 78, listed in Brown, n. 17, Alexander Hamilton wrote:

          By a limited Constitution, I understood one which contains certain specified exceptions to legislative authority; such for instance, as that it shall pass no bills of attainder, no ex post facto laws and the like.  Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of rights or privileges would amount to nothing.

 

In Federalist Paper 84, Hamilton responds to the objection that the proposed Constitution lacks a bill of rights, by citing the provisions that provide for rights, including Article I Section 9 clause 3, which prohibits bills of attainder and ex post facto laws.  Other provisions he listed from the original Constitution include the privilege of the writ of habeas corpus, trial for crimes by jury in the state wherein committed, the limit to the definition of treason, and limiting the attainder of treason.  He then writes:

The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and formidable instruments of tyranny.

 

While Hamilton subsequently argued that the rights provided by the original Constitution obviated the need of a Bill of Rights, the First Congress nevertheless proposed it to the States, who immediately ratified ten of the Amendments proposed.  At a time when 13 NATIONS considered limits on their sovereignty to form a more perfect union, the proposed Constitution prohibited Congress and these States, in Article I Section 10 clause 1, from passing bills of attainder and ex post facto laws.  That is how important these prohibitions were considered to be for the maintenance of American freedom.

          Freedom from bills of attainder and ex post facto laws are thus rights that can be enforced with 42 U.S.C. §1983.

D.      Suspending License for Child Support Without Meeting Notice

          Requirement of RCW 74.20A.320(1) Violates Fourteenth Amendment

          Due Process Right to Rely Upon State Statute and Therefore States a Claim

          Enforceable Under 42 U.S.C. §1983. Likewise for Smith and Cruz Test and

          for Multi-Subject Bill Prohibited by the Washington Constitution

 

          RCW 74.20A.320(1) reads:

          (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.

 

Appellee Dennis Braddock, through his agency DSHS, failed to successfully complete notice by certified mail and he failed to accomplish personal service.  United Pacific Insurance v. Discount Co., (1976) 15 Wash. App. 559, 561-562, 550 P. 2d. 699, 701 which reads:

          Normal “delivery” thereof would have been effected upon Mrs. Norelius except for her obvious attempt to evade service by slamming the door after the papers had been held out to her.  The summons need not actually be placed in the defendant’s hand.  We find, as did the trial court, that facts in the record support a conclusion that “delivery” occurred and service was effected.

 

is in conflict with and therefore has been overruled by Weiss v. Glemp, (1995) 127 Wash. 2d. 726, 903 P. 2d. 455.  The facts as found in Weiss at 127 Wash. 2d. 729, 903 P. 2d. 456 read in part:

The priest informed them that Glemp was having breakfast and asked them to return later.  The messenger responded that he had “important legal documents . . . and it would only take a second to make the delivery.”  . . .  The priest asked them to wait and returned with a second priest who identified himself in English as Glemp’s secretary.  The messenger told him they had legal documents for Glemp and would like to see him.  The secretary said Glemp was not available, was not a citizen, and was not subject to this country’s laws.  The messenger responded that was irrelevant and that he just wanted to deliver the documents to Glemp.  The secretary asked the messenger and interpreter to leave, and they left.

 

The priests’ refusal to take the papers and demand that the messengers leave, is as much a refusal of “delivery” as Mrs. Norelius’.  Nevertheless, Weiss found at 127 Wash. 2d. 731-732, 903 P. 2d. 457-458 that the summons was not left with anyone, with either Cardinal Glemp

or a person of suitable age and discretion, such as Glemp’s secretary who came to the door.  That is noncompliance with the statute, an essential objective of the statute is the requirement that process be actually delivered to a responsible person.

 

That RCW 74.20A.320(1) requires personal service within meaning of RCW 4.28.080 absent a successful service by certified mail is evident from the statute’s language, which does not qualify the definition of the phrase “personal service”.  State ex rel Coughlin v. Jenkins, (2000) 102 Wash. App. 60, 64-65, 7 P. 3d. 818, 821 found that an unqualified statutory reference to “personal service” means personal service within meaning of RCW 4.28.080.  Weiss, not United Pacific Ins., is the appropriate standard of law to evaluate this evidence.

          The declaration of service by C. Legge on the first page of Exhibit A to Knight Declaration IV, Document 46, ER 53, reads in significant part:

Then presenting to and leaving the same with JANE DOE, RESIDENT WHO REFUSED TO GIVE HER NAME 67 125 5’6C/F GRAY HAIR.

 

C. Legge goes into somewhat more detail on the second page, ER 54:

SERVED JANE DOE RESIDENT, WHO REFUSED TO ACCEPT THE DOCUMENTS, SIGN OR GIVE HER NAME.  SHE SAID SHE WOULD NOT ANSWER ANY QUESTIONS.

 

No more information is available from C. Legge.  Based upon the standards for personal service set forth in Weiss, there is no personal service accomplished by appellee Dennis Braddock and the DSHS never had in personam jurisdiction to certify noncompliance with the support order to the DOL.  Mercer Island elected not to present any evidence as to this service on remand, Knight Declaration VII, Document 75, page 2, ER 30.

          Dusenbury v. United States, (2002) 534 U.S. 161, 151 L. Ed. 2d. 597, 122 S. Ct. 694, 699-700 found that the Fifth Amendment Due Process Clause requires notice and opportunity to be heard, and that this protection is identical to the protection granted by the Fourteenth Amendment Due Process Clause.  It adopted Mullane v. Central Hanover Bank & Trust Co., (1950) 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 in that actual notice need not be accomplished, but that there be notice reasonably calculated to apprise the party of the impending deprivation of a property or liberty interest.  Mullane found a New York notice statute inadequate to the due process requirements of the Fourteenth Amendment.

          However, where a state statute meets and goes beyond the minimum due process notice requirements of the Fourteenth Amendment, the Fourteenth Amendment requires that such statutory requirements be met.  Lehr v. Robertson, (1983) 463 U.S. 248, 263-265, 77 L. Ed. 2d. 614, 103 S. Ct. 2985 upheld New York statutes providing an unwed father can obtain the right to notice with respect to adoption procedures involving his child by sending a postcard to the state’s agency, which Lehr failed to do.  Had he sent the postcard, logic dictates that the Fourteenth Amendment protects his right to receive notice per the statute.

          Martinez v. Mafchir, (10th Cir. 1994) 35 F. 3d. 1486, 1491-1493 established that under the Fourteenth Amendment a party has the due process right to rely upon the notice procedures set forth in a state statute.  Thus failure to meet the statutory requirement is actionable under 42 U.S.C. §1983.

          Such doctrine is a reasonable extension of the void for vagueness doctrine reaffirmed by City of Chicago v. Morales, (1999) 527 U.S. 41, 58, 144 L. Ed. 2d. 67, 119 S. Ct. 1849.  The purpose of the fair notice requirement under void for vagueness is to enable the ordinary citizen to conform conduct to the statute.  As a citizen has a Fourteenth Amendment right to know what conduct is prohibited by a statute, that citizen has a Fourteenth Amendment right to rely upon the language of that statute.  There is no valid reason for there to be a distinction between the right to rely upon the language of a criminal statute and the right to rely upon the language of a non-criminal statute mandating certain requirements for notice and opportunity to be heard that exceeds the minimum requirements otherwise existing under the Fourteenth Amendment and enforceable under 42 U.S.C. §1983.

          Because it was only on January 17, 2003 that we found out that the state court was not going to determine this issue in MI v. Knight, the Complaint should be amended to conform to the evidence thus resulted.  Of course, as the state trial court originally found that it lacked jurisdiction to consider this claim, the requirements for Younger abstention are not met and the federal courts may consider it.

          By the same token Knight pled Fourteenth Amendment causes of action with his claim that the WorkFirst Act does not contain a legislative declaration of intent to apply to pre-existing child support order that meets the Smith and Cruz test and his claim that the WorkFirst Act is a multi-subject bill prohibited by Article II Section 19 of the Washington Constitution.  Resolution, however, would require certification of these questions to the Supreme Court of Washington, as requested by Knight in his Knight Cross Motion, Document 48.

E.      Antipeonage Act

 

          i.        Claim of Violation of Antipeonage Act, 42 U.S.C. §1994, While

                    Enforceable Under 28 U.S.C. §1331, 28 U.S.C. §1343, and 42 U.S.C.

                   §1983, States a Claim for Which 42 U.S.C. §1994 Provides Federal

                   Court With Jurisdiction Independent of Any Other Statute.  It is

                   Authorized by Thirteenth Amendment Section 2.

 

          Neither 42 U.S.C. §§1981 nor 1982 have specific language providing jurisdiction to the federal courts.  Yet these statutes were found enforceable in Jones v. Alfred H. Mayer, Co., (1968) 392 U.S. 409, 20 L. Ed. 2d. 1189, 88 S. Ct. 2186 without any reliance upon any other statute for jurisdiction.  Steel Co. v. Citizens for Better Environment, (1998) 523 U.S. 83, 89, 140 L. Ed. 2d. 210, 118 S. Ct. 1003 for 42 U.S.C. §11046 and Verizon Maryland, Inc. v. Public Service Commission of Maryland, (2002) 535 U.S. 635, 152 L. Ed. 2d. 871, 122 S. Ct. 1753, 1758-1759 for 47 U.S.C. §252 each find that an Act of Congress grants subject matter jurisdiction to the federal courts as necessary to give effect to the rights it provides if one construction of the statute provides an enforceable right and another construction of the statue denies the enforceable right.

          The federal courts thus have jurisdiction granted independently by the Antipeonage Act.  One construction of the phrase: “debt or obligation, or otherwise” in 42 U.S.C. §1994 includes child support, which grants a parent ordered to pay child support an enforceable right.  Another construction, that it does not include child support, would deny such a parent an enforceable right.

          The Antipeonage Act has always been found to be authorized by Section 2 of the Thirteenth Amendment, Civil Rights Cases, (1883) 109 U.S. 3, 20-23, 27 L. Ed. 835, 3 S. Ct. 18.

          ii.       Antipeonage Act, 42 U.S.C. §1994, Creates Statutory Exception to

                    Rooker-Feldman Doctrine, 28 U.S.C. §1738, and 28 U.S.C. §2283.

 

          42 U.S.C. §1994 reads:

          The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in any Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.

 

This language is adapted from the original statute at 14 Stat 546, which refers specifically to the system then existing in New Mexico Territory.  Negonsott v. Samuels, (1993) 507 U.S. 99, 104, 122 L. Ed. 2d. 457, 113 S. Ct. 1119, found:

          “Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.”

 

quoting Griffin v. Oceanic Contractors, Inc., (1982) 458 U.S. 564, 570, 73 L. Ed. 2d. 973, 102 S. Ct. 3245.  These rules are further summarized in United States v. Romo-Romo, (9th Cir. 2001) 246 F. 3d. 1272, 1274-1275 and the Supreme Court decisions cited therein.

          The Antipeonage Act targets state court orders with the language “acts, laws, resolutions, ORDERS, regulations, or usages”.  State court orders are declared null and void, if such orders establish, maintain, or enforce the service or labor of any person as a peon in liquidation of a debt or obligation.  “To suggest otherwise . . . ‘is to reject the plain meaning of language’”, Jones at 392 U.S. 419 quoting Hurd v. Hodge, (1948) 334 U.S. 24, 34, 92 L. Ed. 1187, 68 S. Ct. 847.

          Under the system known as peonage in New Mexico Territory, a person can voluntarily contract with an employer to become his peon, or be ordered into such bondage by the courts.  The Territory’s Master and Servant Act regulated peonage and enforced the contracts.  The Service of Process Act of 1852 §§5-7 provided for arrest and imprisonment of defendants in civil lawsuits.  Peonage can be imposed by court order upon judgments including awards for alimony and child support.  The Vagrancy Act as amended in 1860, §11 included abandoning family without the means of support within its definition of vagrancy.  Upon conviction, the party shall be imprisoned until “sold”.  Vagrancy Act of 1860 §14.  This means an employer can pay the fines of the convicted vagrant creating the debt upon which the convict is remanded to peonage.  How New Mexican peonage worked is described in Jaremillo v. Romero, (1857) 1 N.M. (Gildersleeve) 190 and Peonage Cases, (M.D. Ala. 1903) 123 F. 671.

          42 U.S.C. §1994 provides the federal courts with jurisdiction to declare state court orders null and void to the extent that such orders establish, maintain, or enforce peonage, because that is the precise right it declares.  It thus grants a statutory exception by its independent grant of jurisdiction to the Rooker-Feldman doctrine, 28 U.S.C. §1738, and 28 U.S.C. §2283.  Any finding that it does not is an absurd result, given the inclusion of the word “orders” in 42 U.S.C. §1994 and that it refers to both pre-existing and future orders.

          42 U.S.C. §1983, which creates an exception to 28 U.S.C. §2283, Mitchum v. Foster, (1972), 407 U.S. 225, 32 L. Ed. 2d. 705, 92 S. Ct. 2151, but not to 28 U.S.C. §1738, Migra, supra, does not presently include the word “orders”, nor did it when originally passed, 17 Stat 13.  This is a deliberate decision made by Congress between 1867 and 1871 that the courts are obligated to respect.  The concerns Senators and Representatives expressed about usurping the sovereignty and independence of the state courts in the process of enacting the Civil Rights Act of 1871 as described in Allen v. McCurry, (1980) 449 U.S. 90, 66 L. Ed. 2d. 308, 101 S. Ct. 411 were not present during the consideration for the Peonage Bill.  Congress never removed the word “orders” from the Antipeonage Act.  This too, is a deliberate decision the courts are obligated to respect.

          Rooker-Feldman is a statutory jurisdictional doctrine, Olson Farms, supra at 134 F. 3d. 937.  This jurisdictional doctrine is a result of the “interplay” between 28 U.S.C. §1331, original jurisdiction over federal questions, and 28 U.S.C. §1257, appellate review on certiorari by the Supreme Court of final state supreme court decisions.  Dubinka, supra, at 23 F. 3d. 221.

          Precisely because Rooker-Feldman acknowledges that Congress can provide federal courts appellate jurisdiction to review decisions of state courts in 28 U.S.C. §1257, it does not preclude Congress from providing through other statutes such federal court appellate jurisdiction.  By including the word “orders” in 42 U.S.C. §1994, and declaring such that enforce peonage to be null and void, Congress created an exception to Rooker-Feldman.

          iii.      Claim that License Suspension for Child Support is a Sanction for

                    Previously Insufficient Employment and is an Attempt to Coerce

                    Employment in Liquidation of Debt or Obligation States a Claim for

                    Which Relief Can be Granted Under the Independent Jurisdiction of

                   the Antipeonage Act, 42 U.S.C. §1994.  Such Sanction and Attempt is

                   Declared Null and Void by 42 U.S.C. §1994.

 

          42 U.S.C. §1994 and the Antipeonage Act as originally passed, 14 Stat 546, include the phrase: “debt or obligation, or otherwise”.  If Congress had intended an exception for child support or alimony, or to limit the application to debts arising from contract, it could have easily written in such language.  Limitations to contractual debts are written explicitly in the imprisonment for debt provisions of some state constitutions.  State v. Lenz, (Ct. App. 1999) 230 Wis. 529, 602 N.W. 2d. 172 found that as child support is not a debt arising from contract, the plain language of Article I Section 16 of the Wisconsin Constitution, “debts arising from contract”, does not prohibit contempt proceedings for child support.  Congress’ choice to not so limit the application of 42 U.S.C. §1994, indeed to write the broadest possible language, “debt or obligation, or otherwise”, should be respected by the courts.

          If the language of 42 U.S.C. §1994 does not express the will of Congress in reasonably plain terms, then Senator Lane’s comments recorded in the Congressional Globe, 39th Cong. 2d. Sess. at p. 1571, copies of which are attached as Exhibits B and C to Knight Declaration IV, Document 46, ER 61-62, about the effects of New Mexico’s system on the peon with a family to support should answer the question.  Congress was no doubt aware of the obligation to support a family.  Ballek, supra at 170 F. 3d. 874 n. 2 cites 2 James Kent, Commentaries on American Law 161 Leonard W Levy ed., Da Capo Press 1971 (1827) and Stanton v. Willson, 3 Day 37 (Conn. 1808) finding non-custodial divorced father responsible for full financial maintenance of his children.  It is beyond reason to the point of absurdity to presume that Senators and Representatives in the winter of 1866-1867 considering a limitation on the methods of enforcing debts and obligations were not aware of the enforcement of alimony and child support given the widespread use of Kent’s Commentaries at that time in the practice of law.

          The deliberate decision by Congress to not exclude alimony and child support from the Antipeonage Act, as originally passed in 1867, 14 Stat 546, and since as codified as 42 U.S.C. §1994, should be respected by the courts.

          RCW 74.20A.320(5) provides that the DSHS may stay suspension of the license if the parent agrees to a repayment schedule acceptable to the DSHS.  This is a clear statutory authorization for the agency to coerce, through a legal sanction not justified by any other consideration, and not related in any way to the activities licensed, including operating motor vehicles, to coerce the employment necessary to comply with a support order.  RCW 74.20A.320(9) provides that the DSHS may send a release of the license suspension when the parent is in compliance with the support order.

          This is precisely the type of statutory scheme declared null and void by 42 U.S.C. §1994.

F.      Claims Are Not Frivolous

          A complaint is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, (1989) 490 U.S. 319, 325, 104 L. Ed. 2d. 338, 109 S. Ct. 1827.  An “appeal is frivolous if the result is obvious or the arguments are wholly without merit.”  Smith v. Ricks, (9th Cir. 1994) 31 F. 3d. 1478, 1489.  In United States v. Tucor International, Inc., (9th Cir. 2001) 238 F. 3d. 1171 the government’s position was not so obviously wrong as to be frivolous.

          Knight’s construction of the Antipeonage Act is not only reasonable, Moss v. Superior Court, (1996) 56 Cal. Rptr. 2d. 864, 868-870 found it meritorious.  While the California Supreme Court reversed the findings as to the Thirteenth Amendment and the Antipeonage Act, it nevertheless affirmed the annulment of contempt of Mr. Moss on the grounds that he relied in good faith in the protection of the Thirteenth Amendment and the Antipeonage Act and cannot be expected to anticipate a future court decision finding that the antislavery protections in American law do not apply to child support orders.  Moss v. Superior Court, (1998) 71 Cal. Rptr. 2d. 215, 950 P. 2d. 59.

          Knight has since acted in the good faith belief that a California court decision construing 42 U.S.C. §1994 does not bind the federal courts, and that the California Supreme Court’s construction of 42 U.S.C. §1994 conflicts with the rules of statutory construction for Acts of Congress set forth by numerous Supreme Court decisions including the decisions summarized in United States v. Romo-Romo, (9th Cir. 2001) 246 F. 3d. 1272, 1274-1275.

          Therefore, the claims presented by Knight are not frivolous.

VI.     CONCLUSION

          For the reasons stated herein, the Order Regarding Motions for Summary Judgment, Document 65, ER 15-28, the Judgment, Document 66, ER 14, and the Order Denying Plaintiff’s Motion to Amend Judgment, Document 77, ER 12-13, should be reversed or vacated and this case be remanded for further proceedings consistent with such reversal.

Respectfully submitted this 10th day of March, 2003,

 

                                                _________________________________

                                                          Roger W. Knight, appellant pro se