Knight v State Application for Statutory Writ of Prohibition to Enforce Collateral Estoppel

Comes now ROGER W. KNIGHT, plaintiff, to apply for a writ of certiorari or writ of review, RCW 7.16.030-140, or for a writ of prohibition, RCW 7.16.290-320. This application is supported by the Declaration of Roger W. Knight in Support of His Application for Statutory Writ of Certiorari or Statutory Writ of Prohibition, Chapter 7.16 RCW, and its attached Exhibits.

INTRODUCTION AND FACTS

The facts set forth in Mr. Knight’s motions and declarations to dismiss Complaint filed in State v. Knight, King County District Court, West Division No. C438381, are declared again in his Declaration of Roger W. Knight in Support of Application for Statutory Writ of Certiorari or Statutory Writ of Prohibition, Chapter 7.16 RCW:

I am the defendant in State v. Knight, King County District Court, West Division No. C438381 (No. C438381).

An order to pay child support was entered in In re Marriage of Knight, King County Superior Court No. 90-3-04471-1. The decree was entered on July 11, 1991, setting the payment rate at $851.76 per month. This decree contains no provision for the suspension of any license upon any failure to comply. It has not been modified since. RCW 74.20A.320 was enacted as part of the Workfirst Act, Laws 1997 chapter 58, which became effective on July 1, 1997, subsequent to the entering of the decree.

On September 11, 2001, the Department of Social and Health Services (DSHS), Division of Child Support (DCS) found time on that terrible day to certify me as being out of compliance with a support order and by September 16, 2001 the Department of Licensing (DOL) suspended the defendant’s license.

On January 6, 2002, the I found out about this suspension when the Seattle Police Department impounded my vehicle and cited me for Driving While License Suspended (DWLS), 3d degree. On January 23, 2002, the charge was dismissed with prejudice, City of Seattle v. Knight, Seattle Municipal Court No. 415256.

On January 21, 2002 and again on February 2, 2002, the Mercer Island Police Department cited me for DWLS, 3d degree. The resulting two cases were joined, City of Mercer Island v. Knight, King County District Court, Bellevue Division Nos. MIC 84199 and MIC 84268. The district court denied my motions to dismiss the complaints on the grounds that a court in a criminal DWLS case lacks the jurisdiction to consider whether the license suspension was valid, and I was convicted of two counts of DWLS by a jury.

On appeal in City of Mercer Island v. Knight, King County Superior Court No. 02-1-01137-0 SEA, Judge Michael Trickey reversed the two convictions for DWLS and remanded with instructions for a hearing to determine whether notice and service required by RCW 74.20A.320(1) was successfully completed. Without such finding, the charges were to be dismissed. This decision on RALJ Appeal was entered October 31, 2002. Judge Trickey found that he is bound by State v. Dolson, (1999) 138 Wash. 2d. 773, 779-780, 982 P. 2d. 100 and applied its logic to my case.

I attended the remand hearing on January 17, 2003 and was prepared to defend myself. The City moved for dismissal instead and I requested that the dismissal be with prejudice. The Bellevue Division of the district court granted the dismissal with prejudice.

No further suspension or license restoration activity was conducted by the DOL or by the DCS between September 2001 and August 2002. No violations are proven against me with respect to operating a motor vehicle during that time frame. There is no basis independent of the child support issue for suspending or revoking any license I hold.

The present district court case, State v. Knight No. C438381, arises from an incident on August 4, 2002. The charge is DWLS 3d Degree, and it is based on the same license suspension as the Mercer Island cases. I argued in my pleadings and at the hearing on March 11, 2004 that pursuant to this Court’s findings in City of Mercer Island v. Knight, the district court had jurisdiction to determine if notice required by RCW 74.20A.320(1) was accomplished before the certification of noncompliance with a support order by DSHS to the DOL and if not, the charge must be dismissed. I moved for dismissal on the grounds that pursuant to Shuman v. Dept. of Licensing, (2001) 108 Wash. App. 673, 681-682, 32 P. 2d. 1011, Mercer Island’s decision not to continue the case when it had full and fair opportunity to present evidence that notice required by RCW 74.20A.320(1), it does not work an injustice to apply the doctrine of collateral estoppel to bar prosecution in this case.

At the same time this West Division case is being litigated, the King County Prosecutor’s Office brought another charge for DWLS 3d Degree arising on an incident of November 2, 2002 in the South Division of the district court, State v. Knight, No. CQ54646KC. I moved to dismiss that case on the same grounds of collateral estoppel. Judge Pro Tem L. Stephen Rochon, denied the motion to dismiss on the grounds that the King County Prosecutor’s Office representing the State of Washington is not in privity with the City of Mercer Island in prosecuting a criminal DWLS charge arising from the same license suspension by the same State of Washington. This finding in spite of Shuman’s citation of Barlindal v. City of Bonney Lake, (1996) 84 Wash. App. 135, 925 P. 2d. 1289 on the pages I quoted in my motion in that case. I supplemented my Motion to Dismiss to argue that pursuant to Barlindal and to Gray v. City of Des Moines, (1997) 87 Wash. App. 689, 701-702, 943 P. 2d. 669, a municipality that brings a prosecution for DWLS is in privity with the county prosecutors who subsequently bring a prosecution for DWLS where such charge is dependent upon the same suspension of license, which is performed by the State, the same sovereign as represented by the county prosecutors in criminal cases.

While No. C438381 was still pending, on January 9, 2004 the King County Prosecutor’s Office moved to dismiss the charge in No. CQ54646KC, and the district court granted the dismissal and granted my request that the dismissal be with prejudice. Deputy Prosecutor Anderson explained that when he looked into it the state agencies could not confirm that they ever sent by certified mail the letter and that such service was successful, as required by RCW 74.20A.320(1). With this admission of a problem with the proof, the charge was dismissed with prejudice.

I again supplemented my Motion to Dismiss Complaint in No. C438381 to bring in the dismissal in No. C438381 and to argue that obviously the King County Prosecutor’s Office representing the State of Washington in No. CQ54646KC is in privity with the King County Prosecutor’s Office representing the State of Washington in No. C438381. They had the same full and fair opportunity to present evidence that notice required by RCW 74.20A.320(1) was accomplished prior to the license suspension actions of September 11 and 16, 2001 that Mercer Island had. In addition, Deputy Prosecuting Attorney Anderson admitted that they could not prove that the certified mail was sent, and that is an actual finding of fact.

At the hearing on March 3, 2004, I filed with the district court and served on Deputy Prosecuting Attorney Kathryn Y. Kim my declarations authenticating and entering into the record most of the record of the Mercer Island DWLS cases. When asked by Judge Barbara Linde about the volume of paperwork, I explained that the case law supports the proposition that the party who asserts collateral estoppel has the burden of proof, and I therefore wanted this volume of paper in the record of No. C438381. The State was not prejudiced because I served this same volume paperwork two months prior in response to a discovery request.

Two hearings on oral argument were held before Judge Barbara L. Linde on March 11, 2004. In the morning Deputy Prosecutor Kim admitted that the State could not prove that the certified mail, which appears to have been sent, was not successful, as required by RCW 74.20A.320(1). The prosecution submitted into evidence an abbreviated version of the Defendant’s Response to Discovery Request. The date stamp on the cover sheet indicates that it was received by the Criminal Division of the District Court Unit of the Norm Maleng Prosecuting Attorney’s office.

Ms. Kim argued that the documents attached therein establish that personal service was accomplished by a person named “C. Legge”. Therefore, the element of proof required by this Court in Mercer Island v. Knight is now met. I argued that this was the exact materials submitted to me by Mercer Island, and therefore, as Mercer Island dropped the case, then collateral estoppel bars attempting to prove the same issue of fact with the same evidence as possessed by Mercer Island. I submitted into the record of the case a computer printout of the syllabus and opinion in the new United States Supreme Court decision in Crawford v. Washington, (March 8, 2004) 124 S. Ct. ____. In criminal cases the Sixth Amendment guarantees the right of confrontation of witnesses and this is incorporated upon the States by the Fourteenth Amendment, as reaffirmed in Crawford, and is also provided by Article I Section 22 of the Washington Constitution. I argued that this means that no defendant in a criminal case can be convicted by summary judgment based on affidavit, declaration, and deposition testimony as to any material fact. Under Crawford, I argued that to prove the allegation that personal service was accomplished by C. Legge, the prosecution needs to call Ms. Legge so she can give live testimony before the jury and I can have the opportunity to cross examine her. Even before Crawford, the prosecution had to either produce their witness or explain why the witness was unavailable. As the prosecution has not done either, and as they listed the Washington State Patrol Trooper who pulled me over on August 4, 2002 as their only witness, they cannot prove the element required by Mercer Island v. Knight, and therefore the case should be dismissed for want of proof.

One final argument I presented is that as a practical matter, the documentation provided by the prosecution, aside from any issue as to whether it is within the established exceptions to the hearsay rules, does not provide enough information for any trier of fact to determine whether the requirements for personal service as established in Weiss v. Glemp, (1995) 127 Wash. 2d. 726, 903 P. 2d. 455 were met. The declarations by C. Legge do not specify whether she placed the paperwork in the hands of the unnamed women she described, or on the doorstep, or on the hood of the car she said was at the premises, or in the bushes, a windowsill, or anywhere. Ms. Legge simply does not describe what she did with the paperwork. Therefore, her live testimony was needed anyway to establish the facts necessary to evaluate whether the requirements of Weiss v. Glemp were met.

Judge Linde denied the Motion to Dismiss. She found that collateral estoppel did not bar the prosecution from establishing that the personal service was accomplished prior to the license suspension, and she further found that the documents established that this service was accomplished. The prosecution did not need to call her as a witness to give live testimony.

I then moved for continuation of the trial pending appeal. I waived speedy trial for that purpose and Ms. Kim asserted that the trail had already begun. Judge Linde found that the trial had already begun and granted my motion for continuation. She ordered me to appear on April 7, 2004 with proof that I commenced such appeal.

This Application for Statutory Writ is, in effect, that appeal. I intend to serve the prosecution and the district court, Judge Linde, copies of this Application and this Declaration and move for continuance of the trial pending decision on this Application.

These are the facts that give rise to this Application for Statutory Writ.

STATUTORY WRIT IS THE APPROPRIATE REMEMDY

The Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ) do not have a provision for appeals where the trail has been stayed pending appeal. RALJ 2.2 provides that only final decisions may be appealed. Mr. Knight freely admits that an appeal pursuant to the RALJ is a remedy available in the event he goes to trial and is convicted. This Court in a RALJ appeal can review Judge Linde’s decision denying dismissal on collateral estoppel and finding that live testimony by the process server is not necessary to prove the service required by RCW 74.20A.320(1).

A review by trial de novo does not seem appropriate in this case as the trial has not yet been completed.

That leaves statutory writs provided by chapter 7.16 RCW. RALJ 1.1(b) provides that statutory writs are retained and are not governed nor superseded by RALJ. State v. Epler, (1999) 93 Wash. App. 520, 524-525, 969 P. 2d. 448 found:

The threshold for a discretionary writ is not whether the district court committed error of law, but whether the court had jurisdiction to decide the motion. State ex rel. New York Cos. Co. v. Superior Court, 31 Wn.2d 834, 837-38, 199 P.2d 581 (1948). . . .

Some circumstances deprive a court of jurisdiction to deny a motion to dismiss a criminal trial. City of Seattle v. Hesler, 98 Wn.2d 73, 75, 653 P.2d 631 (1982) (denial of a jury in a criminal trial); Butts v. Heller, 69 Wn. App. 263, 848 P.2d 213 (1993) (clear violation of the speedy trial rule); State v. Harris, 2 Wn. App. 272, 469 P.2d 937 (1970) (unequivocal double jeopardy), rev'd on other grounds, 78 Wn.2d 894, 480 P.2d 484, reinstated, 404 U.S. 55, 92 S. Ct. 183, 30 L. Ed. 2d 212 (1971). But none of these cases involves discretionary rulings. They address clear violations of mandatory constitutional provisions or court rules that unequivocally prohibit trial.

Collateral estoppel is an element of double jeopardy in criminal cases. In one of the opinions cited by Epler, State v. Harris, (1976) 2 Wash. App. 272, 469 P. 2d. 937, the Court of Appeals granted a writ of prohibition directing the Clark County Superior Court to dismiss a criminal charge against Mr. Harris and that he be released from custody on the grounds that where an element of such crime is barred by collateral estoppel, the court lacks jurisdiction to establish such barred fact. Harris was reviewed by the Supreme Court of Washington and again by the Supreme Court of the United States, as to the issues of collateral estoppel and double jeopardy, but the Court of Appeals findings concerning the availability of a writ of prohibition to remedy a trial court refusing to dismiss on collateral estoppel or double jeopardy was not presented for review by the Supreme Courts. Therefore, Harris remains applicable precedent on this issue.

After finding that ordinarily a superior court has the jurisdiction to try an accused for a crime which occurred in its county, Harris found, at 2 Wash. App. 282:

This, then, is not a question of the court’s acting without its jurisdiction, but whether or not it would be acting in excess of its jurisdiction in proceeding to try the defendant for the offenses charged in the amended information. Where the constitution prohibits a double jeopardy trial, it would be in our view that a trial court does exceed its jurisdiction in proceeding with such trial.

After rejecting Mr. Harris’s claim that the prosecution in question was in fact prohibited by double jeopardy, the Harris Court then considered the question of res judicata and collateral estoppel and whether a trial court exceeds its jurisdiction where an element of a crime charged had already been considered in a prior proceeding. At 2 Wash. App. 288:

Collateral estoppel operates after a final judgment to establish conclusively a matter of fact or law for the purpose of a later lawsuit on a different cause of action between the parties or their privies to the original action. Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 429 P.2d 207 (1967) . . .

“[C]ollateral estoppel is designed to eliminate the expense, vexation, waste, and possible inconsistent results of duplicatory litigation.” Hoag v. New Jersey, supra at 470. In this sense, its purpose is similar to the purpose for the constitutional guarantee against double jeopardy. Logically, it should be protected by the Fifth Amendment.

Hoag v. New Jersey is Hoag v. New Jersey, (1958) 356 U.S. 464, 2 L. Ed. 2d. 913, 78 S. Ct. 829. At 2 Wash. App. 291-292 Harris concluded:

Because of the similarity in purpose between double jeopardy and collateral estoppel, when applied to a criminal case, because the record demonstrates without question that the retrial of petitioner for assault and murder will require relitigation of the same ultimate fact – (did petitioner mail the package containing the explosives?) – we have the view that collateral estoppel applies to prohibit retrial on that issue. Accordingly, the ultimate question raised by the amended information is barred of retrial and that issue is not properly before the trial court as per State v. Durham, 39 Wn.2d 781, 239 P.2d 1201. Our conclusion is that the trial court exceeded its jurisdiction in striking the defense of collateral estoppel and proceeding to trial on that issue. Thus, prohibition will lie.

In this present case, the district court denied Mr. Knight’s Motion to Dismiss on the grounds of collateral estoppel, and then found the factual issue that Mercer Island declined to present on remand proven by the very same evidence that Mercer Island submitted to Mr. Knight in response to his discovery request in that case. Judge Linde’s order granting Mr. Knight’s motion for a stay of the trial pending appeal is an indication that she has serious doubts as to the validity of her determinations with respect to the motion to dismiss and the proof required in a criminal trial, i.e. live testimony of a witness as to a necessary fact under the Confrontation Clause of the Sixth Amendment as redetermined in Crawford. While it appears that her findings with respect to whether the prosecution has to produce the process server C. Legge to give live testimony or to explain why she is unavailable is perhaps not ripe for a remedy under a statutory writ, her findings as to collateral estoppel most certainly are. What follows are those collateral estoppel arguments for this case:

THE PROSECUTION IS BARRED FROM PRESENTING EVIDENCE THAT LICENSE WAS VALIDLY SUSPENDED IN SEPTEMBER 2001 BY COLLATERAL ESTOPPEL AND ISSUE PRECLUSION AS AN INTEGRAL PART OF DOUBLE JEOPARDY

Harris v. Washington, (1971) 404 U.S. 55, 56, 30 L. Ed. 2d. 212, 92 S. Ct. 183 found:

In Ashe v. Swenson, (1970) 397 U.S. 436, 25 L. Ed. 2d. 469, 90 S. Ct. 1189, we held that collateral estoppel in criminal trials is an integral part of the protection against double jeopardy guaranteed by the Fifth and Fourteenth Amendments. See Benton v. Maryland, (1969) 395 U.S. 784, 23 L. Ed. 2d. 707, 89 S. Ct. 2056. We said that collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S., at 443. The State concedes that the ultimate issue of identity was decided by the jury in the first trial. That being so, the constitutional guarantee applies, irrespective of whether the jury considered all relevant evidence, and irrespective of whether the State acted in good faith in bringing successive prosecutions.

Ashe and Benton established and reaffirmed that the Fifth Amendment Double Jeopardy Clause was incorporated upon the States by the Fourteenth Amendment.

State v. Tili, (2003) 148 Wash. 2d. 350, 360-361, citing State v. Peele, (1968) 75 Wash. 2d. 28, 30, 448 P. 2d. 923 reaffirmed that collateral estoppel applies to criminal cases. Tili adopted the four criteria for collateral estoppel set forth in Peele and Rains v. State, (1983) 100 Wash. 2d. 660, 665, 674 P. 2d. 165:

The doctrine of collateral estoppel differs from res judicata in that, instead of preventing a second assertion of the same claim or cause of action, it prevents a second litigation of issues between the parties, even though a different claim or cause of action is asserted.

Seattle-First Nat’l Bank v. Kawachi, 91 Wn. 2d 223, 225-26, 588 P. 2d 725 (1978). The Court of Appeals in Seattle-First Nat’l Bank v. Cannon, 26 Wn. App. 922, 927, 615 P.2d 1316 (1980) (quoting Lucas v. Velikanje, 2 Wn. App. 888, 894, 471 P. 2d 103 (1970)) stated:

Affirmative answers must be given to the following questions before collateral estoppel is applicable:

(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (4) Will the application of the doctrine not work an injustice on the party against whom the doctrine is to be applied?

Shuman v. Dept. of Licensing, (2001) 108 Wash. App. 673, 677-678, 32 P. 2d. 1011 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; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with the party to the prior adjudication; and (4) application of the doctrine does not work an injustice.' Thompson v. Dep't of Licensing, 138 Wn.2d 783, 790, 982 P.2d 601 (1999).

The focus of the dispute in Shuman is the fourth element, whether the application of the doctrine works an injustice. Mr. Shuman argued, through attorney Kenneth D. Beckley, that because the prosecution had a full and fair opportunity to present the case that he refused a breath test in a previous criminal proceeding for driving while under the influence (DUI), and because the officer involved in the breath test did not appear to give testimony resulting in an order prohibiting the City of Cle Elum from alleging that he refused the breath test, the DOL was collaterally estopped from revoking his license on the basis of his alleged refusal of the breath test. The DOL made the argument that because the issue was not fully litigated in the criminal proceeding, collateral estoppel did not apply even thought the OPPORTUNITY to litigate the issue was there for Cle Elum. The DOL relied on In re Marriage of Murphy, (1998) 90 Wash. App. 488, 952 P. 2d. 624, in which the Washington court declined to give preclusive effect to an agreed Ohio divorce decree. However, the precise issue in Murphy was whether the Ohio court had acquired subject-matter jurisdiction, which may not be acquired by agreement or stipulation (other issues may be decided by such means, see below). The refusal to give collateral estoppel was based on an absence in the record that this issue of jurisdiction had actually been fully and fairly litigated, and finally decided. Murphy at 90 Wash. App. 498 and Shuman at 108 Wash. App. 680-681.

At 108 Wash. App. 680, the Shuman Court found that in Hanson v. City of Snohomish, (1993) 121 Wash. 2d. 552, 561, 852 P. 2d. 295 and Barlindal v. City of Bonney Lake, (1996) 84 Wash. App. 135, 142, 925 P. 2d. 1289, the prior rulings were the result of actually contested hearings as part of the criminal proceedings. Therefore, neither of these decisions directly supports the proposition that an OPPORTUNITY to contest an issue is enough to invoke collateral estoppel.

But Mr. Shuman cited Miles v. Child Protective Services Department, (2000) 102 Wash. App. 142, 153, 6 P. 3d. 112, review denied, (2001) 142 Wash. 2d. 1021 where the court held that an agreed order of dependency, which amounted to a finding that the children were abused or neglected, estopped the parents from relitigating such issues in a subsequent civil action. At 108 Wash. App. 681-682, the Court of Appeals found:

The Department contends Miles is distinguishable because in this case there were no findings or conclusions and it is unclear precisely what happened in the district court. But the Department may not have it both ways; either the suppression order was agreed or otherwise uncontested (in which case Miles applies) or it was contested (in which case Thompson, Hanson, and Barlindal apply).

As Professor Trautman has noted, the requirement that an issue must have been “actually litigated” in the prior case is not as clear as it may appear. Philip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash. L. Rev. 805, 833 (1985). More useful that Thompson’s litigation morass is an examination into

whether the issue was actually recognized by the parties as important and by the judge as necessary to the first judgment. If so, the determination should be conclusive, with an important qualification being whether the significance of the issue for purposes of the subsequent action was sufficiently foreseeable at the time of the first action.

Id. at 835.

This formulation is consistent with our decision in Murphy, in which there was no showing that the Ohio court or the parties considered subject-matter jurisdiction to be an issue.

Here, although the reasons for its decision are not clear from the record, the district court and the parties clearly recognized that the circumstances of Mr. Shuman’s breath test were important and necessary to the criminal litigation. No more should be required.

Indeed, requiring more would be an injustice to Mr. Shuman, who undeniably would be entitled to the benefit of collateral estoppel under Thompson if the court had conducted a full-blown evidentiary hearing on the issue. This injustice is recognized in the res judicata context, in which courts must respect “the convenience of the defendant addressing the merits of the case on multiple occasions.” Wagner v. McDonald, 10 Wn. App. 213, 218, 516 P. 2d 1051 (1973). Mr. Shuman appeared in district court, ready to address the merits of his case.

The result should be binding on the City of Cle Elum and other parties in privity, whatever the reasons for the prosecutor’s failure or inability to present a case.

and thereby established that OPPORTUNITY on the part of a prosecutor to contest an issue, where it is recognized by the parties and by the courts that the issue is necessary to the proceeding at hand, is sufficient to invoke collateral estoppel without working an injustice.

In the present case, the prosecution is alleging a crime of DWLS on August 4, 2002. There are two elements of this crime both of which have to be proven for there to be a conviction: 1) that the defendant operated a motor vehicle, and 2) that the license was validly suspended at the time the motor vehicle was operated. If either of these elements was previously litigated in a case that was dismissed with prejudice, wherein the prosecution had a full and fair opportunity to litigate the issue, then such element cannot be relitigated in this present case.

In Mercer Island v. Knight, the prosecution alleged two crimes of DWLS, on January 21 and February 2, 2002. The issue of whether Mr. Knight operated a motor vehicle on each of those two days is clearly a separate issue than whether he operated a motor vehicle on August 4, 2002, and thus would not preclude the charge in this present case. But the issue of whether his license was validly suspended was litigated, with Mercer Island dropping the charges when it was required to prove that notice required by RCW 74.20A.320(1) was accomplished, to prove the element of license suspension. There is no question that this issue was recognized by the parties as important to the criminal litigation, and recognized by the courts on appeal and on remand. Mercer Island had from October 31, 2002 through to January 17, 2003 to obtain the necessary evidence of notice and to prepare to present it on remand. Mr. Knight was present in court on January 17, 2003 and fully prepared to represent himself in litigating the matter. Therefore under Shuman, Mercer Island’s decision to drop the case and the Bellevue District Court’s decision to grant Mr. Knight’s request that the dismissal be with prejudice is conclusive.

This issue is identical to the issue of valid license suspension in this present case, as no further license suspension or restoration activity was engaged in by the DCS or the DOL between September 2001 and August 2002. Mercer Island had an unencumbered, full and fair opportunity to litigate this issue. With these previous charges dismissed with prejudice, as such is a final judgment on the merits, the doctrine of collateral estoppel bars relitigation of the issue of whether notice required by RCW 74.20A.320(1) was accomplished prior to the license suspension.

While the prosecution in this present case is not the City of Mercer Island, it is clearly in privity with Mercer Island, as Mercer Island was as dependent upon the actions of the DSHS and the DOL to establish the element of valid license suspension as is the prosecutor in this present case. Had there been no incorporated City of Mercer Island, then the King County Prosecutor would have been the office to bring the charge and the State of Washington would have been the named plaintiff, as they are in this present case, arising from an incident on unincorporated land east of the City of Issaquah. In both cases, the prosecution was bringing a criminal charge for a violation of Washington law, not of a local ordinance. Rains at 100 Wash. 2d. 665-666 found:

A substitution of parties who are qualitatively the same does not lessen the equivalency of the issues.

And Rains found at 100 Wash. 2d. 664-665:

Plaintiff claims the parties and their quality were not the same since Quast as a member of the PDC was not authorized to act on behalf of the State and the State, under the Eleventh Amendment, is immune from suit in federal court. The parties, although somewhat differently named on the complaints, were “qualitatively” the same. A suit against members of the PDC is in effect, a suit against the State. As the federal district court held, there were no violations of the plaintiff’s rights “by the state’s action”. “Identity of the parties is not a mere matter of form, but of substance . . . [P]arties nominally different may be, in legal effect, the same.”

The prosecution in this present case is qualitatively the same as the City of Mercer Island. Gray v. City of Des Moines, (1997) 87 Wash. App. 689, 701-702, 943 P. 2d. 669 found:

Pursuant to Barlindal, as long as all four elements of collateral estoppel are met in Gray's case, Judge Alumbaugh's determination that the seizure was constitutional will serve to bar Gray from challenging the forfeiture on that ground. As to the first element of collateral estoppel, the issue in this case is identical to the issue in the suppression hearing. As to the third element, although the parties are not the same, in that the State prosecuted Gray in the criminal proceeding whereas the City of Des Moines is the plaintiff in this action, the State and City are in privity within the meaning of the "same parties" factor. See Barlindal, 84 Wash. App. at 143-44 (privity demonstrated where a county and city had a mutual interest and shared a common purpose in the successful prosecution of the defendant and forfeiture of his possessions). As to the fourth element, "application of the doctrine [of collateral estoppel] works no injustice where the party being estopped had an opportunity in the first proceeding to present evidence and arguments to the trial court on the issue[.]" Id. at 144 (citation omitted). Gray had an opportunity to present evidence and arguments at the suppression hearing; therefore, it would not work an injustice to apply the doctrine to her.

Barlindal is Barlindal, supra, the case cited by Shuman. Barlindal at 84 Wash. App. 143-144 found:

Privity denotes a mutual or successive relationship to the same right or property. Owens v. Kuro, 56 Wn.2d 564, 354 P.2d 696 (1960). Our analysis leads us to hold that Pierce County and Bonney Lake were in privity under the facts of this case. The facts show that Pierce County and Bonney Lake had a mutual interest and shared a common purpose in a successful prosecution of Barlindal as well as a successful forfeiture of his possessions:

Both Pierce County and Bonney Lake were acting on authority of state law;

Both participated in the acquisition of a search warrant and the subsequent search;

Both had a unity of purpose in securing Barlindal's conviction with lawfully obtained evidence;

Either Pierce County or Bonney Lake could have been the "seizing agency" entitled to bring the forfeiture action;

Both the State and Bonney Lake would have benefited from an order of forfeiture of firearms had Pierce County been successful in its criminal prosecution;

The State would have benefited by receiving 10 percent of the net proceeds from forfeitures sought by Bonney Lake; Bonney Lake would have benefited from the forfeitures by retaining 90 percent of the net proceeds; and

The proceeds would have benefited law enforcement activity in Bonney Lake and Pierce County.

These factors demonstrate that Bonney Lake and Pierce County were in privity from beginning to end. Their mutual objective was to work together to lawfully obtain evidence; they both sought to obtain a criminal conviction; and both could have benefited financially from either a successful prosecution or a successful civil forfeiture. Bonney Lake's argument that it was not in privity with Pierce County because it did not have an opportunity to present its arguments concerning the validity of the search is without merit. It is the obligation of a county prosecuting attorney to control a felony prosecution; the inability of a municipal attorney to control the prosecution does not diminish the common interests that both agencies have in the outcome of the prosecution.

Both City of Mercer Island and King County on behalf of the State are acting on authority of state law, have a unity of purpose in securing convictions of Mr. Knight of Driving While License Suspended (DWLS) and in enforcing the State’s suspension of his license on September 16, 2001 for child support, and both would have benefited financially from fines assessed against Mr. Knight upon conviction of DWLS. That the King County Prosecutor did not control the Mercer Island litigation is not relevant where the State provided considerable assistance and evidence for Mercer Island’s ultimately unsuccessful efforts in prosecuting Mr. Knight for allegedly violating a state statute. The State had control of the evidence of license suspension needed by Mercer Island to successfully prosecute Mr. Knight and where Mercer Island ultimately judged the State’s evidence insufficient to answer the question presented by the Superior Court for remand, it is not an injustice to preclude this present prosecution under the doctrine of collateral estoppel.

The King County Prosecutor’s office, in the case of State v. Knight, King County District Court, South Division No. CQ54646KC, moved to dismiss a charge of DWLS arising from an incident of November 2, 2002 and based on the same license suspension of September 2001, and the district court granted Mr. Knight’s request that the dismissal be with prejudice. Deputy Prosecutor Anderson admitted to the court that he could not prove that service by certified mail was successful as required by RCW 74.20A.320(1). As this case was brought by the same prosecutor’s office representing the same sovereign, it is barred by collateral estoppel.

The interest expressed in the doctrines of res judicata, collateral estoppel, and by the constitutional prohibition of double jeopardy is served by not requiring Mr. Knight to repeatedly litigate the same issue. The district court and Judge Linde have exceeded their jurisdiction in not dismissing the case and only staying trial pending appeal.

CONCLUSION

For the reasons stated herein, this Application should be granted and writ requiring the King County District Court and Judge Barbara Louise Linde to dismiss the case for collateral estoppel and prohibiting trial by that court and prohibiting any further prosecution of any crime of DWLS based on the license suspension of September 2001 by the King County Prosecutor should be granted.

Respectfully submitted this 5th day of April, 2004.

__________________________

Roger W. Knight, pro se

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