I. STATEMENT
CONCERNING REPLY BRIEF
III. AS TO THE APPELLEES’ STATEMENT OF ISSUE
It is the
appellant in an appeal to sets forth the issues presented on appeal. Interestingly, while the state officers state
as issues whether
Younger abstention[1],
Rooker-Feldman doctrine[2],
and res judicata, and collateral estoppel doctrine bar an action under
42 U.S.C. §1983, they do not state as an issue whether an action under
42 U.S.C.
§1994 is so barred.
IV. AS
TO APPELLEES’ STATEMENT OF THE CASE
A. As
to the Appellees’ Statement of Facts
When
Mr. Knight was laid off from The Boeing Company on
Parties
agree that the importance of child support enforcement has received considerable
attention by Congress. However, the
abolition of slavery received considerable attention of the Reconstruction
Congress and the Antipeonage Act thus passed has never been modified to exclude
the duty to support children from the phrase in
42 U.S.C. §1994: “debt or
obligation, or otherwise.”
In Footnote 1 on Brief of Appellees
State Defendants page 2, the state officers assert that:
States have been mandated to pass laws that strengthen
child support enforcement remedies as a condition of maintaining eligibility
for public assistance funding over the years.
It is not and
cannot constitutionally be a “mandate”.
The State of
Because the state officers cite a provision
added to Title IV-D of the Social Security Act,
this Court should remand with
instructions to allow amendment to the
Complaint where Mr. Knight may challenge
the federal provision, within the jurisdiction provided by
28 U.S.C. §1331.
Union
Pacific Railway Co. v. Chicago, Rock Island, and Pacific Railway Co.,
(1896) 163
Having SOLD its state sovereignty rights for its bag of
Title IV-D money
in enacting the WorkFirst Act, Laws of Washington 1997 chapter 58, establishing
RCW 74.20A.320 et seq., the State of Washington and its officers are, under
theories of contract, estopped from asserting these same state sovereignty rights
against citizens who object to the policies thus purchased. Martin
v. Webb, (1884) 110
Where the state officers are motivated
to adopt policies identical to those adopted by Congress by the condition of
federal funding, it is bribery. The
state officers may have valid reasons for adopting a different policy. As
Mr. Knight has a valid cause of action
against the federal government as it is the federal government’s action in
conditioning the receipt of federal funds on the adoption of a particular state
policy that warps the decision making of the state officers. He has at least as much standing as Mr. Newdow
had in challenging the use of the Pledge of Allegiance in the public schools
attended by his daughter.
Newdow v. United States Congress et al,
(9th Cir. 2002)
This Court was not concerned that Mr. Newdow is a recurring litigant and should not be so concerned about Mr.
Knight. As
this Court decided the merits
of Mr. Newdow’s claims, so it should decide the merits of Mr. Knight’s claims.
B. As to
Appellees’ Prior Procedural History
As a citizen lacks standing to
challenge any statute prior to its passage, the citation of all such decisions
rendered prior to the passage of the WorkFirst Act cannot be for purposes of
establishing and arguing law of the case, collateral estoppel, or res
judicata. Therefore, any citation of
such decisions is for precedent and thus violates Cir. Rule 36-3 and
Hart v. Massanari, (9th Cir. 2001)
As to whether such unpublished
decisions support the litigation bar,
Brent
Moss v. Superior Court, (1996) 56 Cal. Rptr. 2d. 864, 868-870 provides a
strong counterpoint to any assertion that an argument that coercion of
employment or punishment of unemployment which is inherent in contempt
proceedings, license suspensions, or even prohibitions of subsequent marriage
and procreation violates the
Thirteenth Amendment and the Antipeonage Act is
“frivolous”.
V. AS TO APPELLEES’ ARGUMENT
A. As to
Appellees’ Standard of Review
The state cites DeLong v. Hennesey, (9th Cir. 1990)
B. As to Appellees’
Rooker-Feldman Argument
A general rule for
Rooker-Feldman is that it applies only
where a state court has made a final decision on an issue. If the final decision is that it lacked
jurisdiction to determine an issue, it follows that it does not preclude a
federal court consideration of such issue because the federal court is not
reviewing a state court determination of the underlying issue. There is no
The state officers’ assertion that an
order dated 1991 and not modified since precludes federal court determination
of the validity of a subsequently enacted statute is patently frivolous. If adopted, it would render impossible the
enforcement in federal court of the prohibition in
Article I Section 10 clause
1 of bills of attainder and ex post facto laws.
The state officers take an expanded
interpretation of the phrase “inextricably intertwined” in that any challenge
to any subsequently enacted statute used to enforce a pre-existing court order
is thus “inextricably intertwined” with the pre-existing court order, and
therefore barred by
Rooker-Feldman. The state officers also argue that as Mr.
Knight could have raised his Antipeonage Act and bill of attainder arguments in
his King County Superior Court civil lawsuit challenging the WorkFirst Act as a
multi-subject bill prohibited by
Article II Section 19 of the
Washington
Constitution, the federal courts are prohibited by
Rooker-Feldman in addition to
28 U.S.C. §1738, from considering the Antipeonage Act and bill of attainder issues in that such could “effectively
reverse” the state court findings as to whether the WorkFirst Act is prohibited
by the Washington Constitution.
Such an expanded interpretation of
Rooker-Feldman is not supported by
Canatella v. California, (9th Cir. 2002)
By its inclusion of the word “orders”,
42 U.S.C.
§1994 creates a statutory exception to
Rooker-Feldman doctrine. Other statues have recently been found to
create an exception to, or to provide jurisdiction parallel and in no way
precluded by,
Rooker-Feldman.
In re
Gruntz, (9th Cir. 2000) 202 F. 3d. 1074, 1078-1079 found that
Rooker-Feldman does not preclude a
federal court review of a state court decision that the automatic stay provided
by 11 U.S.C. §362 did not prohibit a criminal prosecution.
Gruntz
at 202 F. 3d. 1079 found that
Rooker-Feldman
does not touch the writ of habeas corpus, because
28 U.S.C. §2254 expressly
provides for collateral review of state court criminal convictions. As with habeas corpus jurisdiction so it is
with bankruptcy law.
Gruntz at 202 F. 3d. 1079:
In apparent contradiction to the
Rooker-Feldman
theory, bankruptcy courts are empowered to avoid state judgments, see e.g., 11 U.S.C. §§
544,
547,
548,
549; to modify them, see e.g., 11
U.S.C. §§ 1129,
1325; and to discharge them, see e.g., 11 U.S.C. §§
727,
1141,
1328. By statue, a post petition state judgment is
not binding on the bankruptcy court to establish the amount of debt for
benkruptcy purposes. See
11 U.S.C. §109(e);
Slack v. Wilshire Ins. Co. (In re Slack), 187 F. 3d. 1070, 1073 (9th
Cir. 1999) as
amended 1999 WL 694990
(Sept. 9, 1999).
GC & KB Investments, Inc. v. Wilson, (9th Cir.
Because
the
Rooker-Feldman doctrine is “one
of congressional intent . . . where Congress has specifically granted
jurisdiction to the federal courts, the doctrine does not apply.”
Mozes v. Mozes,
Holder v. Holder, (9th Cir. 2002)
As
Rooker-Feldman
is a doctrine of Congressional intent and not of Constitutional mandate,
consideration of the intent of the 1867 Congress in enacting the Antipeonage
Act, 14 Stat 546, and in not subsequently modifying its essential language,
42 U.S.C. §1994, is appropriate. The 1867
Congress intended to abolish peonage, then and forever.
42 U.S.C. §1994 reads in part:
. . . 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, . . .
Congress was
reacting to the system that then existed in
C. As to Appellees’ Res Judicata and
Collateral Estoppel Argument
The state officers’ expansion of the
reach of res judicata and collateral estoppel, and by reference, Full Faith and
Credit, 28 U.S.C. §1738, provide no arguments that merit a response, they are
unmeritorious on their face. Mr. Knight
did not litigate any challenge to the WorkFirst Act in the federal courts prior
to 2002. Where the federal courts
abstained under
Younger or found
themselves to lack jurisdiction under
Rooker-Feldman,
they made no other determination that will have a preclusive effect. Mr. Knight relies on his arguments in his
Brief of Appellant, pages 22-26. as to preclusive effect of state court
judgments and 28 U.S.C. §1738, and on his
Brief of Appellant pages 26-28, as to
the preclusive effect of federal court judgments.
However, it is incumbent that we
address whether the Antipeonage Act creates an exception to the preclusive
effect of state court judgments and to
28 U.S.C. §1738.
Holder,
supra, at
The
district court erred in ruling that the California Court of Appeal decision
would be entitled to preclusive effect when it becomes final. Such a holding undermines the purposes of
. . .
The
district court erred, however, in applying general res judicata principles in
this context. We have recognized that,
in some cases, “the implementation of federal statutes representing
countervailing and compelling federal policies justifies departures from a
strict application” of general res judicata principles. Red Fox
v. Red Fox,
. . .
It
would also undermine the very scheme created by the
Hague Convention and
ICARA
to hold that a Hague Convention claim is barred by a state court custody
determination, simply because a petitioner did not raise his
Hague Convention
claim in the initial custody proceeding.
The Hague Convention provides that children are not automatically
removed from its protections by virtue of a judicial decision awarding custody
to the alleged abductor. E.g.,
Hague Convention, art. 17, 19 I.L.M. at 1503. Indeed, the typical
Hague Convention case involves at least the potential for two competing custody
orders, one in the children’s “habitual residence,” and one in the country to
which the children have been taken. To
hold that a left-behind parent is barred, in such a case, from raising a
Hague
Convention claim in a subsequent federal proceeding just because he or she did
not raise it in the state custody proceeding would render the
Convention an
incompetent remedy for the very problem that it was ratified to address.
42 U.S.C.
§11603(g) provides for full faith and credit to a state court determination of
a Hague Convention claim, but is found by this Court to not provide for full
faith and credit where the state court did not rule on the
Hague Convention
issue or where no such issue was presented.
The Antipeonage Act represents a
countervailing and compelling federal policy that clearly justifies a departure
from a strict application of general res judicata principles. Unlike the
ICARA,
42 U.S.C. §1994 does not require
full faith and credit of a state court decision with respect to whether its
order is declared null and void by
42 U.S.C. §1994, it simply declares null and
void all state court orders that impose peonage.
Holder
at
In
As
this practice is overcome when there is a claim under the
Hague Convention, it
is overcome by the declaration in
42 U.S.C. §1994 that all orders imposing
peonage are null and void. As plead by
Mr. Knight in his
Brief of Appellant pages 22-24,
Hisle v. Todd Pacific Shipyards Corp., (2002) 113
At that
To bar an Antipeonage Act claim by res
judicata or collateral estoppel would clearly work injustice and deny Mr.
Knight his day in court. This issue is clearly
as important as the issues raised by Mr. Metcalf.
D. As to Appellees’
Younger Abstention Argument.
The state officers do not answer the
facts and arguments presented by Mr. Knight in his
Brief of Appellant pages
14-19. The
state court in the criminal DWLS case found itself to lack jurisdiction to consider the validity of the
WorkFirst Act, as found by the district court,
Order, Document No. 65, page 2,
ER 16, lines 14-16. This finding of fact
is based on substantial evidence, no evidence to the contrary presented, it is
a verity on appeal.
Wainwright v. Goode, (1983) 464
Where a state court finds itself to
lack jurisdiction to consider the validity of the statute in question, there is
no opportunity to have timely decided such questions,
Younger does not apply.
Meredith v.
The
State contends that under
Exactly the
circumstance under which Mr. Knight filed the
Complaint, Document No. 1,
below. He presented his challenges to
the validity of the WorkFirst Act in the
state court proceeding, and the
state
court found that it lacked jurisdiction to consider them. Per
Meredith,
it is an inadequate and untimely remedy that he could raise such issue on
appeal.
E. As to Appellees’ Argument on the
Substantive Issues
1.
WorkFirst Act as a Multi-Subject Bill
Other than that the
Fourteenth Amendment
prohibits the enforcement of any state law that is not validly enacted pursuant
to the state’s constitution, this is a state law issue. If determination of the validity of the
WorkFirst Act under
Article II section 19 of the
Washington Constitution is
necessary for determination of this appeal, then resolution of the conflict
between
Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142
Brief of Appellant pages 14 and 27,
Mr. Knight cites
Troxel v. Granville, (2000) 530
Ballek, supra, at
(b) As used in this section
“support” includes necessary food, care, clothing, shelter, medical attention,
and education.
Nothing in this provision about the expenditure of any set
amount of money each month, whether or not set by any court order. While
In other words, William and Melinda
Gates are not required to spend any more funds for the care of their children
than Roger W. and Royanne Knight. If the
Gates’ enroll their children in the public schools, they are not required to
enroll them in a private school, however wealthy they may be from selling the
software with which this Brief is written.
The problem with a child support order
is that it reduces the non-custodial parent’s responsibility to the mere
provision of a quantity of money each month.
Under the child support statutes as presently existing, Madonna could
require the fathers of her children to pay her child support. If she does not, it is because the Material
Girl understands the absurdity of any proposition that she needs child support
to adequately care for her children.
Marcia Clark, the unsuccessful prosecutor of O.J. Simpson, famously
requested an increase in the support order against her former husband, Gordon Clark. Her reason was that she needed more money to
buy the clothes she was wearing for a televised trial. Her salary was then over $90,000 per year. Subsequent to the acquittal of Mr. Simpson,
she obtained a book contract with an initial payment of approximately $4
million.[3] Since then, Ms. Clark has had no need of a
child support order against her former husband to adequately care for her
children.
The point Mr. Knight made with
Troxel in
Knight v. Schmitz, et al, W.D. Wash. No. C00-1874R affirmed 9th
Cir. No. 01-35459 is that while it ruled on the validity of a grandparent
visitation statute, it also established a general rule of law:
Accordingly, so long as a
parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to
inject itself into the private realm of the family to further question the
ability of that parent to make the best decisions concerning the rearing of
that parent’s children.
Troxel, at 121
3.
Antipeonage Act
The state argues that because Mr.
Knight is not restricted as what profession or to which employer he may choose,
there is no master and no violation of the Antipeonage Act. Mr. Ballek was not so restricted either, but
this Court felt it necessary to create an exception to the protection of the
Thirteenth Amendment to avoid “undermining the well-established practices in
the state courts for policing compliance with child support obligations”.
Ballek
at
The flaw in the state officers’
reasoning is if Mr. Knight is required to produce $851.76 per month, ER 106, to
the state officers for disbursement to his ex-wife, they are the master, and he
is limited in the forms of employment he may undertake. He cannot accept employment as an independent
contractor in a law office representing non-wealthy clients in wage claims and
employment discrimination cases, nor can he take time off to write a novel such
Neanderthal Return, even in the hopes
it might sell enough copies to enable compliance with the support order.[4] Even if it can be proven that employment that
allows Mr. Knight sufficient income to provide $851.76 per month plus an amount
sufficient to cover over $60,000 in arrears is unavailable, it is the ATTEMPT to establish, maintain, or
enforce peonage that 42 U.S.C. §1994 declares null and void, whether such
attempt is successful or not.
United States v. Gaskin, (1944) 320
Pollock
v. Williams, (1944) 322
We can conceive reasons,
even if unconstitutional ones, which might lead well-intentioned persons to
apply this Act as a means to make otherwise shiftless men work,
And note 26
referenced therein reads:
Dr.
Albert Bushnell Hart in The Southern South, after reviewing and unsparingly
condemning evidences of peonage in some regions, says, “Much of the peonage is
simply a desperate attempt to make men earn their living. The trouble is that nobody is wise enough to
invent a method of compelling specific performance of a labor contract which
shall not carry with it the principle of bondage.”
And why
compel men to earn their living? To
support any children they may have? The
trouble is that nobody is wise enough to invent a method of compelling specific
performance of a support order which shall not carry with it the principle of
bondage.
Pollock, at 322
Whatever of social value there may be, and of course
it is great, in enforcing contracts and collection of debts, Congress has put
it beyond debate that no indebtedness warrants the suspension of the right to
be free from compulsory service. This
congressional policy means that no state can make quitting of work any
component of a crime, or make criminal sanctions available for holding unwilling
persons to labor.
Suspension of
a driver’s license is a common criminal sanction for such crimes as driving
while impaired, eluding a police officer, vehicular homicide, and refusing a
breath or blood test when requested by a police officer. To impose it for failure to comply with a
child support order is to offend the congressional policy set forth by the
Antipeonage Act.
Pollock
at 322 U.S. 19 note 30 sets forth an extensive analysis of the labor situation
in the
Where in the same substantive context the State
threatens by statute to convict on a presumption, its inherent coercive power
is such that we are constrained to hold that it is equally useful in attempts
to enforce involuntary service in discharge of a debt, and the whole is
invalid.
Because the
state officers suspend licenses upon the pure presumption of
RCW 74.20A.320,
noncustodial parents are left with the choice of finding employment or loss of
the right or privilege to participate in any activity that requires a license. Those noncustodial parents who have
employment dare not leave it. Mr. Knight
had employment with The Boeing Company, the support order is based on his
income there, the present failure to comply with the support order is directly
due to his being laid off by The Boeing Company.
Knight Declaration I, Document No. 3 page 4,
ER 90 and its Exhibit B, ER 97-113.
The necessary consequence is that one who has received
an advance on contract for services which he is unable to repay is bound by the
threat of penal sanction to remain at his employment until the debt has been
discharged. Such coerced labor is
peonage.
United
States v. Reynolds,
(1914) 235
When thus at labor, the convict is working under a
contract which he has made with his surety.
He is to work until the amount which the surety has paid for him -- the
sum of the fine and the costs -- is paid.
The surety has paid the state and the service is rendered to reimburse
him. That is the real substance of the
transaction. The terms of that contract
are agreed upon by the contracting parties, as the result of their own negotiations. The statute of the state does not prescribe
them. It leaves the making of the
contract to the parties concerned, and this fact is not changed because of the
requirement that the judge shall approve the contract.
Thus, it is
not fatal to a claim of peonage that the peon may choose his employer or even
his profession. The surety as
contemplated in
Reynolds could easily
be a manufacturing concern, a restaurant, or an engineering firm, if interested
in hiring someone with appropriate skills who happens to be in trouble with the
law.
4.
WorkFirst Act as Bill of Attainder and Ex Post Facto Law.
The flaw in the State’s argument is
that
RCW 74.20A.320(3) prohibits consideration of ability to comply with the
support order. Therefore, it is a bill
of attainder, a punishment legislatively imposed upon a completely irrebuttable
presumption.
5.
Litigation Bar
As briefed in the
Appellant’s Motion
for Stay of Judgment Imposing Litigation Bar Pending Appeal, FRAP 8, the
litigation bar is dependent upon the claims set forth herein being
frivolous. As argued therein and in the
Brief of Appellant pages 48-50, these claims are not only not frivolous, they
are meritorious. If they are not
frivolous, then Mr. Knight’s status as a repeat litigator is no more significant
than Mr. Newdow’s.
Many a person released from a sentence
of death was a repeat litigator, that is how he obtained release from the
sentence of death. Alive.
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 28th
day of April, 2003,
_________________________________
Roger
W. Knight, appellant pro se
[2]
Rooker v. Fidelity Trust Co., (1923) 263
[3] Without a Doubt,
Viking Press 1997, Marcia Clark with Teresa Carpenter.
[4] Unfortunately it has not. Available at www.1stbooks.com.
