I.       MOTION FOR STAY OF JUDGMENT IMPOSING LITIGATION BAR

          Now comes the appellant, Roger W. Knight, to move for a stay of the judgment below imposing litigation bar, Order Regarding Motions for Summary Judgment, Document No. 65, pages 11-14, ER 25-28.

II.      EXCERPTS OF RECORD FILED EARLY TO SUPPORT THIS MOTION

          Ordinarily the Excerpts of Record are filed with the Brief of Appellant, Circuit Rule 30-1.2.  Mr. Knight intends to file his Brief of Appellant prior to March 25, 2003 to comply with the Time Schedule Order.  Because this Motion necessarily refers to documents required in the Excerpts of Record, Mr. Knight elects to prepare and file the Excerpts early to support this Motion, to meet the requirement of FRAP 8(a) for filing of relevant parts of the record.

III.     MOTION FOR STAY FILED IN AND DECIDED BY DISTRICT COURT

          On February 3, 2003, Mr. Knight filed his Plaintiff’s Motion for Stay of Judgment Imposing Litigation Bar Pending Appeal, FRAP 8, Document No. 78.  On February 4, 2003, the district court entered the Order Denying Plaintiff’s Motion for Stay of Judgment, Document No. 79, ER 11.

IV.     ABBREVIATED STATEMENT OF THE CASE

          On September 25, 2002, the district court entered the Order Regarding Motions for Summary Judgment, Document No. 65, ER 15-28.  Pages 11-14 of this Order, ER 25-28, sets forth and imposes the litigation bar prohibiting Mr. Knight from bringing, pro se, any new complaint in the district court which “involves, refers to, or calls into question the validity of plaintiff’s child support order, the WorkFirst Act[1], or the state’s efforts to collect child support payments through contempt proceedings or license suspensions.”

          Also on September 25, 2002, the district court entered the Judgment, Document No. 66, ER 14.

          On October 2, 2002, Mr. Knight filed his Plaintiff’s Motion to Amend Judgment, FRCP 59, Document No. 67, noted on Docket Sheet page 8, ER 9.

          On January 30, 2003, the district court entered the Order denying Plaintiff’s Motion to Amend Judgment, Document No. 77, ER 12-13.

          On February 3, 2003, Mr. Knight filed his Plaintiff’s Motion for Stay of Judgment Imposing Litigation Bar Pending Appeal, FRAP 8, Document No. 78, noted on the Docket Sheet page 8, ER 9.

          On February 4, 2003, the district court entered the Order Denying Plaintiff’s Motion for Stay of Judgment, Document No. 79, ER 11.

          On February 10, 2003, Mr. Knight filed his Notice of Appeal, Document No. 81, ER 1.

V.      ARGUMENT

A.      Standards for Stay Pending Appeal

          This Court can grant a stay pending appeal lifting the litigation bar.  Northcross v. Board of Education of Memphis City Schools, (6th Cir. 1972) 963 F. 2d. 329, stay may be granted in school desegregation cases.  McBride v. Western Union Telegraph Co., (S.D Cal. 1948) 78 F. Supp. 446, 450, stay may be granted allowing plaintiff continued use of defendant’s telegraph wires.

          Four factors are considered in deciding whether to grant a stay: 1) Whether the stay applicant has made a strong showing that he is likely to succeed on the merits; 2) Whether the applicant will be irreparably injured absent a stay; 3) Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and 4) the public interest.  Hilton v. Braunskill, (1987) 481 U.S. 770, 776, 95 L. Ed. 2d. 724, 107 S. Ct. 2113.

          An excellent treatise on consideration of the four factors in a motion for stay is written in Michigan Coalition of Radioactive Materials Users v. Griepentrog, (6th Cir. 1991) 945 F. 2d. 150.  These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.  Michigan Coalition at 945 F. 2d. 153 citing In re DeLorean Motor Co., (6th Cir. 1985) 755 F. 2d. 1223, 1229.  The primary factor, as shown by the order of listing in Hilton, and as analyzed by Michigan Coalition at 945 F. 2d. 153-155, is the strong showing of probability of success on the merits.  It is considered in relation to the possibility of irreparable injury absent a stay.  Michigan Coalition at 945 F. 2d. 153 found:

The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay.  . . .  Simply stated, more of one excuses less of the other.  This relationship, however, is not without its limits; the movant is always required to demonstrate more than mere “possibility” of success on the merits.

 

With these considerations in mind, Mr. Knight presents the following argument that he shows a strong probability of success on the merits in overturning the litigation bar.  For reasons argued below, he does not need to show a strong probability of success on the merits as to the claims he raised in the district court, only that those claims are not frivolous and brought in good faith.

B.      Standards for Litigation Bar.

          The standards for barring a pro se litigant from filing actions in the federal courts are set forth in DeLong v. Hennesey, (1990) 912 F. 2d. 912 and O’Loughlin v. Doe, (1990) 920 F. 2d. 614.  Such orders are reviewed for abuse of discretion, DeLong at 912 F. 2d. 1146.  Error of law or erroneous assessment of the evidence is an abuse of discretion. Cooter & Gell v. Hartmarx Corp., (1990) 496 U.S. 384, 405, 110 L. Ed. 2d. 359, 110 S. Ct. 2447.  Prefiling orders against vexatious litigant under the All Writs Act, 28 U.S.C. §1651(a), should rarely be filed, as it is an extreme remedy, and such order should “remain very much the exception to the general rule of free access to the courts”, DeLong at 912 F. 2d. 1144.  Notice and opportunity to be heard is required before such an order is issued, litigant is entitled to an opportunity to oppose the entry of such an order.  Id.  The record needs to show in some manner that the litigant’s activities were numerous or abusive, Id. citing Wood v. Santa Barbara Chamber of Commerce, Inc., (9th Cir. 1983) 705 F. 2d. 1515, 1523, 1526, cert. den. 465 U.S. 1081 (35 related complaints filed); In re Oliver, (3d. Cir. 1982) 682 F. 2d. 443, 444 (over 50 frivolous cases filed), and In re Green, (D.C. Cir. 1981) (per curiam) 669 F. 2d. 779, 781 (over 600 complaints filed).  DeLong found at 912 F. 2d. 1148:

          Next we find that before a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make “substantive findings as to the frivolous or harassing nature of the litigant’s actions.” Powell, 851 F. 2d at 431; see also Sires v. Gabriel, 748 F. 2d. 49, 51 (1st Cir. 1984) (pre-filing injunction could not stand because magistrate stated that “petitioner has been a constant litigator” but failed to state that petitioner’s claims were frivolous or brought in bad faith).  To make such a finding, the district court needs to look at “both the number and content of the filings as indicia” of the frivolousness of the litigant’s claims.  Powell, 851 F. 2d at 431.  See also Moy, 906 F. 2d at 470 (A pre-filing “injunction cannot issue merely upon a showing of litigiousness.”)

          In the instant case, the district court held in its dismissal of the habeas petitions, and the subsequent denial of motions, that De Long lacked jursidiction.  However, the district judge made no finding that De Long’s claims were frivolous.  Merely because a claim lacks jurisdiction does not make the claim per se frivolous.  Moreover, even if De Long’s habeas petition is frivolous, the court did not make a finding that the number of complaints was inordinate.

          An alternative to the finding of frivolousness is the finding that De Long’s claims show a pattern of harassment.  See Powell, 851 F. 2d at 431.  The district judge made no finding that De Long’s claims were harassing.

          Absent findings of harassment or frivolousness, we cannot uphold the district court’s order.

 

Moy is Moy v. United States, (9th Cir. 1990) 906 F. 2d. 467.

          De Long further found at 912 F. 2d. 1148 that such orders must be narrowly tailored to fit the vice encountered and to avoid infringing on the litigator’s right of access to the courts.  See also O’Loughlin at 920 F. 2d. 618, order overly broad.

C.      Standards for Determining Frivolous Action.

          O’Loughlin v. Doe, supra, found that:

          An in forma pauperis complaint is frivolous if it has “no arguable basis in fact or law.”  Franklin v. Murphy, 745 F. 2d. 1221, 1228 (9th Cir. 1984).

 

Neitzke v. Williams, (1989) 490 U.S. 319, 325, 104 L. Ed. 2d. 338, 109 S. Ct. 1827 found that a complaint is frivolous if “it lacks an arguable basis either in law or fact.”  A case is frivolous only if it is baseless and without reasonable and competent inquiry.  Sprewell v. Golden State Warriors, (9th Cir. 2000) 231 F. 3d. 520, 530.  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.

D.      Challenge to Child Support Order or Enforcement of Child Support Order as Declared Null and Void by the Antipeonage Act, 42 U.S.C. §1994.

 

          Mr. Knight’s construction of the Antipeonage Act is not only reasonable, Brent Moss v. Superior Court, (1996) 56 Cal. Rptr. 2d. 864, 868-870 found it to be 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.

          Mr. 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, who have the primary duty to construe Acts of Congress, 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 claim has an arguable basis in law and fact.

          The district court construed 42 U.S.C. §1994 in a manner different than Mr. Knight’s construction, Order, Document No. 65, pages 6-7, ER 20-21, but as reasonable men can disagree on the construction of a statute, such disagreement does not give rise to a finding of no arguable basis in law and fact.  After improperly citing, Id. page 6, ER 20, an unpublished decision by this Court that was entered prior to the enactment by the Washington Legislature of the WorkFirst Act, as a precedent,[2] the district court found, Id.:

plaintiff’s allegations do not support a cause of action under 42 U.S.C. §1994.  Neither the child support orders nor the more recent suspension of his license holds plaintiff to service or labor, or involuntary servitude in liquidation of a debt.  His services have not been purchased by a master, nor is he compelled to work off his debt in any specific labor or servitude.

 

There is a master, Royanne M. Schmitz.  She is the mother of Mr. Knight’s children, for whom she was awarded custody, and on whose behalf the appellees repeatedly attempt to coerce Mr. Knight’s liquidation of the debt or obligation defined in the divorce decree as child support.  Exhibit B to the Declaration by Roger W. Knight (Knight Declaration I), Document No. 3, ER 97-113.

          The district court’s finding that “Neither the child support orders nor the more recent suspension of his license holds plaintiff to service or labor, or involuntary servitude in liquidation of a debt.” conflicts with the California Court of Appeals’ finding in Brent Moss, supra, at 56 Cal. Repr. 2d. 869:

Nevertheless, the Court of Appeal annulled the order, holding that a sentence of incarceration could not be imposed merely because Husband chose not to seek employment or to earn money in any way. The court relied on Ex parte Todd (1897) 119 Cal. 57, 50 P. 1071, in which the Supreme Court overturned a judgment of contempt based on the contemnor's failure to seek employment, although he was admittedly without funds. The court held, in what must be considered the strongest terms, "This order was clearly in excess of the power of the court, which cannot compel a man to seek employment in order to earn money to pay alimony, and punish him for his failure to do so."

    The basis for these holdings, . . . is the constitutional prohibition against involuntary servitude, as contained in the Thirteenth Amendment . . . The court also pointed out that the United States Supreme Court, discussing the Antipeonage Act (implementing the Thirteenth Amendment under the enabling language of the Amendment; see now 18 U.S.C.A. § 1581, 42 U.S.C.A. § 1994), has stated that "... Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor." (Pollock v. Williams (1944) 322 U.S. 4, 18, 64 S.Ct. 792, 799, 88 L.Ed. 1095.)

 

To find a violation of the Thirteenth Amendment requires a finding of involuntary servitude.  To find a violation of the Antipeonage Act requires a finding of involuntary servitude based upon a debt or obligation.

          The district court’s finding also conflicts with this Court’s findings in United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, 873:

The district court found that, at relevant times, Ballek did not have the means to pay child support.  The court nevertheless found that Ballek acted willfully because he failed to maintain gainful employment that would have enabled him to meet his child support obligations.

 

Thus Jeffrey Ballek proved everything needed to prove a violation of the Thirteenth Amendment, he was held in involuntary servitude by the child support order and by the enforcement of the child support order, in his case by a federal prosecution for violating 18 U.S.C. §228.  This Court went on to create, for the first time, a doctrine that a parent’s duty to support his children, which does not arise as a punishment for a crime whereof the party has been duly convicted, creates an exception to the Thirteenth Amendment’s prohibition of involuntary servitude.  However, by exercising the discretion to review an issue raised for the first time on appeal, Ballek, at 170 F. 3d. 873 n. 1, this Court necessarily found that Mr. Ballek and his federal public defender, Canton F. Gunn, acted in good faith in raising the Thirteenth Amendment issue.

          Precisely because Ballek did not rule on whether the Antipeonage Act declared Mr. Ballek’s support order and any enforcement thereof based on failure to maintain employment to be null and void, Mr. Knight has always acted in good faith and without harassing intent whenever he challenged any attempt to enforce the child support order or to punish him for noncompliance with such order as declared null and void by 42 U.S.C. §1994.

          As the enforcement of child support predates the Thirteenth Amendment, Ballek at 170 F. 3d. 874 n. 2, citing 2 James Kent, Commentaries on American Law 161, (1827) Leonard W Levy ed., Da Capo Press 1971 and Stanton v. Willson, (Conn. 1808) 3 Day 37, it follows that it predates the Antipeonage Act, originally passed on March 2, 1867, 14 Stat 546.  As Kent’s Commentaries were widely used as a reference in the practice of law at the time, there can be no reasonable doubt that the 39th Congress was aware of the enforcement of child support when it passed the Antipeonage Act.  Congress made a deliberate decision to not create an exception for child support in the language “debt or obligation, or otherwise”, in the Antipeonage Act, as originally passed, and as presently codified in 42 U.S.C. §1994.  Such a deliberate decision should be respected by the courts.

          While the will of Congress is plain from the language of 42 U.S.C. §1994, if this Court needs to go further, the remarks by Senator Lane during discussion of the Peonage Bill recorded in the Congressional Globe, 39th Cong. 2d. Sess. at p. 1571 about the effects of New Mexico’s system on the peon with a family to support should answer the question.  Copies of this page are attached as Exhibits B and C to the 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 No. 46, ER 61-62.

          Neither is it wholly without merit to argue that the inclusion of the word “orders” in 42 U.S.C. §1994 creates a statutory exception to the Full Faith and Credit Act, 28 U.S.C. §1738, and to the Rooker-Feldman doctrine.  These doctrines apply to claims under 42 U.S.C. §1983, which lacks the word “orders”, and has a legislative history that supports these doctrines.  But there is no such legislative history with respect to the Antipeonage Act.  Congress made a deliberate decision between 1867 and 1871 to delete the word “orders” from the subsequent civil rights legislation but did not so revise the Antipeonage Act.

E.      Other Challenges to Washington WorkFirst Act Not Frivolous.

 

          i.        As a Multi-Subject Bill Prohibited by Article II Section 19 of the

                   Washington Constitution.

 

          In striking down Initiative 695 as a two subject bill prohibited by Article II Section 19 of the Washington Constitution, Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142 Wash. 2d. 183, 191, 11 P. 3d. 762 modified the essential logic of In re Boot, (1996) 130 Wash. 2d. 553, 925 P. 2d. 964 which upheld the Violence Reduction Act (VRA), Laws of Washington 1994 1st Sp. Sess., c. 7, as a single subject bill, and by reference affirmed three Washington Court of Appeals decisions upholding the Omnibus Alcohol and Controlled Substances Act (OACSA), Laws of Washington 1989 chapter 271.  The VRA authorized the Washington Department of Health to perform a study, amended firearms statutes, and imposed a tax on wine, beer, cigarettes and soft drinks, and other things.  The OACSA incorporated non-criminal provisions concerning the registration of beer kegs, revisions of controlled substance criminal statutes, drug and alcohol counseling in the public schools, and imposed a tax on wine, beer, cigarettes, and soft drinks.  The OACSA also set appropriations.

          Initiative 695 had a general title. Id. at 216-217 (citing In re Boot and other cases).  But the finding is:

However, there is no rational unity between the subjects of I-695.  . . . I-695 also has two purposes: to specifically set license tab fees at $30 and to provide a continuing method of approving all future tax increases.  Further, neither subject is necessary to implement the other.  I-695 violates the single-subject requirement of art. II, § 19 because both its title and the body of the act include two subjects: repeal of the MVET and a voter approval requirement for taxes.

 

Id. at 217.  This set up for the first time, a specific test for “rational unity”.  If applied to the VRA, OACSA, and the WorkFirst Act, these legislative acts would lack rational unity and be void multi-subject bills.  In addition to enacting RCW 74.20A.320 et seq to provide for license suspension for nonpayment of child support, the WorkFirst Act revised public assistance statutes, established a program for illegitimacy prevention and encouraging abstinence, and a program for teenage pregnancy.  To boil this down to a three minute oral argument, an attorney representing a party affected by an allegedly multi-subject bill could say:

In re Boot, Amalgamated Transit and many other decisions all found that the bills and initiatives at issue had general titles.  All held that all that was necessary was that there be 'rational unity' in all of the provisions with respect to the subject of the general title.  However, Amalgamated Transit for the first time established a specific test to determine rational unity: Each and every provision of a bill or initiative with a general title must be necessary to implement each and every other provision, or it lacks rational unity.  As an example, had the Uniform Controlled Substances Act been passed without the 300 series sections concerning the lawful uses of controlled substances by the health care industry, it would meet the Amalgamated Transit rational unity test.  The provisions providing for law enforcement powers and responsibilities are necessary to implement the provisions defining crimes and the penalties for the crimes.  These provisions are not necessary to implement the provisions concerning lawful health care uses of controlled substances and vice versa.  Amalgamated Transit made this exact point with Initiative 695: absent the section providing for a vote on all tax increases, all of the other provisions would have had rational unity by necessity of implementation with the repeal of the Motor Vehicle Excise Tax and the establishment of the flat $30 license tab fee.  Because the previous decisions concerning the Violence Reduction Act, the Omnibus Alcohol and Controlled Substances Act and other omnibus bills do not analyze these bills under the necessity of implementation test subsequently established by Amalgamated Transit, these omnibus bills passed by the Legislature must be re-analyzed under this test for there to be 'rational unity' in the way Article II Section 19 is applied.

 

The Uniform Controlled Substances Act (UCSA) is originally Laws of Washington 1971 1st ex. sess. chapter 308, it established chapter 69.50 RCW.  The UCSA, the OACSA which amended the UCSA, and the VRA together account for a substantial portion of the Washington State Department of Corrections’ guest list.  When these prisoners and their attorneys bring this argument, the Supreme Court of Washington may decide it needs to resolve the conflict between In re Boot and Amalgamated Transit, and decide whether to judge acts of the Legislature by the same standard as tax limiting initiatives.

          At which point the WorkFirst Act may also be declared null and void.

          ii.       As Not Authorizing Application to Pre-existing Child Support Orders

                   Under the Smith and Cruz Test.

           State v. Smith, (2001) 144 Wash. 2d. 665, 671-672, 30 P. 3d. 1245, 39 P. 3d. 294 and State v. Cruz, (1999) 139 Wash. 2d. 186, 191, 985 P. 2d. 384 established that the Legislature must unequivocally state its intent that a bill has retrospective intent where it affects substantive rights.  In the case of the WorkFirst Act, the substantive right to operate a motor vehicle be suspended for nonpayment of child support pursuant to RCW 74.20A.320, without regard to the absence of any traffic offenses on the part of the licensee.  Where the child support order and arrearage predates the WorkFirst Act there is no explicit statement of legislative intent to apply retroactively the license suspension provision.

          iii.      As a Bill of Attainder and an Ex Post Facto Law

           Since Calder v. Bull, (1798) 3 U.S. (3 Dall.) 386, 1 L. Ed. 648; the Ex Post Facto Clauses apply only where the nature of the previous action and the subsequent legislative punishment is more criminal than civil.  In many states and in 18 U.S.C. §228, nonpayment of child support has been treated as a criminal matter.  Therefore a subsequent legislative act imposing the sanction of license suspension, usually imposed for such crimes as driving while impaired or eluding a police officer, can be challenged in good faith as an ex post facto law.

          Because RCW 74.20.320(3) prohibits the Washington State Department of Social and Health Services (DSHS) from considering the noncustodial parent’s ability to comply with the support order, for those parents unable to comply with their support orders, the statute meets the definition of bill of attainder set forth in United States v. Brown, (1965) 381 U.S. 437, 14 L. Ed. 2d. 484, 85 S. Ct. 1707.  Brown at 381 U.S. 438 note 1 quotes the statute:

          (a) No person who is or has been a member of the Communist Party . . .

Such persons thus could not escape the prohibition by renouncing their membership in this particular political party.  Even if there is only a preventative purpose to such a prohibition, Brown at 381 U.S. 457 found that to be within the meaning of punishment for bill of attainder analysis and at note 32 found that inescapability need not necessarily be proven to prove a statute a bill of attainder.

          RCW 74.20A.320 imposes a punishment in that there is no remedial purpose for such a license suspension:  If a party is unable to comply with a support order, a license suspension does not improve the probability of compliance.  There is no more rational relationship between license suspension for child support and the public interest in the safety of the roads and highways than there would be if the licenses were suspended, revoked, or refused on the basis of gender, race, or religion.

          iv.      As Not Rationally Related to Any Legitimate Interest of Government

           As argued herein above, if a parent is unable to comply with a support order, 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 120, part of Exhibit D attached to Knight Declaration I, Document No. 3, 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.

F.      Intent to Harass Cannot be Rationally Shown.

           This case is part of an extensive defense to a criminal prosecution and a suspension of license that led to the criminal prosecution.  Mr. Knight presented his challenges to the license suspension and to the validity of the WorkFirst Act in the state court criminal proceeding, pursuant to the command in Younger v. Harris, (1971) 401 U.S. 37, 45-46, 27 L. Ed. 2d. 669, 91 S. Ct. 746 quoting Fenner v. Boykin, (1926) 271 U.S. 240, 243-244 70 L. Ed. 927, 46 S. Ct. 492:

The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.

 

Mr. Knight did exactly that.  He filed the Complaint, Document No. 1, only subsequent to the state court’s finding that it lacked jurisdiction to entertain a challenge to the validity of the WorkFirst Act or its application to Mr. Knight, because such would constitute a “collateral attack” against the state agency proceeding whereby his license was suspended.  Knight Declaration I, Document No. 3 pages 2-4, ER 88-90; Declaration by Judith Calhoun (Calhoun Declaration I) pages 2-3, ER 134-135; not contradicted by Declaration of Wayne Stewart (Stewart Declaration), Document No. 22, ER 84-86; and Transcript of the Motion Hearing April 19, 2002 pages 2-9, ER 41-48, attached as an Exhibit to the Declaration by Roger W. Knight Re Transcript of State Court Motion Hearing of April 19, 2002 (Knight Declaration V), Document No. 60.  This was found by the district court, Order, Document No. 65, page 2, ER 16.  This finding of fact is based on substantial evidence, it may be accepted as a verity on appeal.

          Without being heard on his challenges to the validity of the WorkFirst Act or of sufficiency of service required by RCW 74.20A.320(1), Mr. Knight was convicted of two counts of Driving While License Suspended (DWLS) in the state court.  Declaration by Roger W. Knight Re State Court Trial (Knight Declaration II), Document No. 30, ER 80-83 and Declaration by Judith Calhoun re State Court Trial (Calhoun Declaration II), Document No. 31, ER 76-79.  Found, Order, Document No. 65, page 2, ER 16.

          While Mr. Knight’s Motion to Amend Judgment was pending, King County Superior Court reversed the convictions for DWLS. Supplemental Declaration by Roger W. Knight, (Knight Declaration VI), Document No. 72, ER 33-35, and its attached Exhibit, ER 36.  The state superior court found that the trial court had jurisdiction to consider whether the notice requirements of RCW 74.20A.320(1) were met and remanded for a hearing so determine.  However, the superior court found that a trial court in a criminal DWLS case did not have the jurisdiction to consider the validity of the WorkFirst Act.  Knight Declaration VI, Document No. 72, page 2, ER 34, lines 2-6.  The superior court also found that the trial court could not order equitable relief upon a finding that the notice requirements of RCW 74.20A.320(1) were not met.  Knight Declaration VI, Document No. 72, page 3, ER 35, lines 1-8.

          Upon remand, the City of Mercer Island and Wayne Stewart elected not to continue the prosecution and the state court dismissed the complaints with prejudice.  No determinations were made on remand as to whether the service requirements of RCW 74.20A.320(1) were met.  Supplemental Declaration of Judith Calhoun (Calhoun Declaration III), Document No. 74, ER 31-32 and Second Supplemental Declaration by Roger W. Knight (Knight Declaration VII), Document No. 75, ER 29-30.

          As Mr. Knight prevailed in the state court case without the underlying issues of the validity of the WorkFirst Act or the license suspension being decided, to find him in bad faith for bringing the federal action below and for bringing this appeal is like finding a zebra acted in bad faith when successfully defending against a lion attack by kicking the lion in the face.

G.      Irreparable Injury Absent a Stay.

           Defendant Fred Stephens, through his agency the Washington State Department of Licensing (DOL) has not restored Mr. Knight’s license in spite of the outcome of the state court Mercer Island DWLS case.  A new federal lawsuit under 42 U.S.C. §1983 seeking equitable relief requiring him to restore the license pending notice that meets the statutory requirement of RCW 74.20A.320, on the grounds that the present license suspension offends Mr. Knight’s Fourteenth Amendment right to rely upon the notice procedures set forth in the state statute may prove successful.

          Presently, Mr. Knight is prohibited from bringing such a suit in the Western District of Washington.  Order, Document No. 65, page 13, ER 27 reads in part:

If the action involves, refers to, or calls into question the validity of plaintiff’s child support order, the WorkFirst Act, or the state’s efforts to collect child support payments from plaintiff through contempt proceedings or license suspensions, it will be dismissed sua sponte without further notice.

 

Even though Mr. Knight has prevailed in the state court DWLS case, if he brings any action challenging the validity of the license suspension on any grounds, including lack of notice required by the statute and his Fourteenth Amendment right to rely upon the language of the statute, the suit will be immediately dismissed with possible sanctions imposed.

          The irreparable injury is the inability to obtain equitable relief restoring the license under circumstances where no criminal charge for DWLS can be sustained because the prosecution is unable or unwilling to attempt to prove that the service was adequate.  Mr. Knight is thus denied the privilege of operating his motor vehicle without the possibility of harassment by the police, impoundment of his vehicle, and being stranded in a remote location.  Since an incident in November 2002 shortly after his victory in King County Superior Court, Mr. Knight has not regularly exercised his visitation rights with his sons because they were with him when the King County Sheriff’s Department impounded his automobile.  Mr. Knight and his sons were forced to walk from the scene.  As a parent, Mr. Knight does not wish to expose his sons to another such incident.  No criminal charge for DWLS has been filed arising from that incident.

H.      No Injury to Other Interested Persons.

          Mr. Knight does not present any greater danger on the roads and highways when operating his motor vehicle than any other person, ER 120, a stay lifting the litigation bar will not injure any other person if the license is immediately restored.  The state officers named in this case could avoid any suit that Mr. Knight may bring by restoring the license.  King County and the towing company could likewise avoid a lawsuit by offering settlement for the liability incurred during the incident in November 2002.  The deputy sheriff was shown a copy of the superior court order reversing the convictions for DWLS.

I.       Public Interest.

          The public is always interested in any action to enforce the Constitution and laws of the United States.  A stay lifting the litigation bar would serve this public interest.

VI.     CONCLUSION

          For the reasons stated herein, this Appellant’s Motion for Stay of Judgment Imposing Litigation Bar Pending Appeal should be granted.

Respectfully submitted this 19th day of February, 2003,

 

                                                _________________________________

                                                          Roger W. Knight, appellant pro se