Chief Civil Judge James Doerty

1:30 pm. Wednesday, June 16, 2004

  

SUPERIOR COURT OF WASHINGTON

COUNTY OF KING COUNTY

 

ROGER W. KNIGHT,                                    )

                                                                        )           No. 04-2-07991-8 SEA

                                    plaintiff,                        )

                                                                        )           MOTION FOR ORDER TO SHOW

            v.                                                         )           CAUSE WHY STATUTORY WRIT

                                                                        )           OF PROHIBITION SHOULD NOT BE

STATE OF WASHINGTON, KING              )           GRANTED ON BASIS OF

COUNTY DISTRICT COURT, WEST           )           UNREASONABLE DELAY IN

DIVISION, the Honorable BARBARA            )           NOTICE OF CHARGE.

LOUISE LINDE, in her capacity as Judge        )          

of the King County District Court, West            )

Division, NORM MALENG, King County       )

Prosecutor, and KATHRYN Y. KIM,              )

Deputy Prosecuting Attorney,                           )

                                                                        )

                                    defendants.                   )

____________________________________)

 

MOTION AND RELIEF REQUESTED

            Comes now ROGER W. KNIGHT, plaintiff, to move for a an order to show cause why a Statutory Writ of Prohibition, Chapter 7.16 RCW should not be granted on the basis of unreasonable delay in informing Mr. Knight of the Complaint filed on April 17, 2003 in State v. Knight, King County District Court, West Division No. C438381, in violation of CrRLJ 3.3 and the Sixth and Fourteenth Amendments and Article I Section 22 of the Washington Constitution.

EVIDENCE AND FACTS IN SUPPORT OF MOTION

            In response to Mr. Knight's original Application for Writ of Prohibition in this case, the State, through Ms. Jennifer L. Worley, Deputy Prosecuting Attorney, filed its State's Response and Opposition to Petitioner's Petition and Application for Writ of Certiorari and Writ of Prohibition (State's Response), and served a copy on Mr. Knight through the United States Postal Service.  Mr. Knight received his copy of this document on Monday May 17, 2004.  Mr. Knight and Ms. Worley appeared before this Court the next day and Mr. Knight's original Application was denied.

            For the first time, Mr. Knight had, as Appendix A to this State's Response, a complete docket sheet to No. C438381.

            From the Appendices attached to the State's Response and from the Declaration of Roger W. Knight in Support of Application for Statutory Writ of Certiorari or Statutory Writ of Prohibition, Chapter 7.16 RCW (Knight Declaration I),  Declaration of Roger W. Knight in Support of a Writ of Prohibition on Basis of Unreasonable Delay in Notice (Knight Declaration II), and the Declaration of John R. Scannell in Support of a Writ of Prohibition on Basis of Unreasonable Delay in Notice (Scannell Declaration) and other evidence, the following facts are set forth:

            The case arises from an incident on August 4, 2002.

            The Compliant was filed with the District Court on April 17, 2003, less than one year after the incident of August 4, 2002 and within the limitation set by RCW 9A.04.080(1)(j) for misdemeanors.  A charge of Driving While License Suspended 3rd degree is defined by RCW 46.20.342(1)(c) to be a misdemeanor.

            On April 21, 2003, the arraignment hearing notice was returned by the United States Postal Service with a notation that the addressee was unknown.

            On April 29, 2003, Mr. Knight did not appear at the arraignment for the simple reason that he did not know about it.  The District Court issued a bench warrant for his arrest.

            However, the Division of Child Support of the Department of Social and Health Services, agencies of the sovereign represented as the plaintiff in this case, served by personal service Mr. Knight with the notice required by RCW 74.20A.320(1) at 501 South Jackson Street, Seattle, Washington on March 11, 2003.  (This is subsequent to the incident of August 4, 2002 and therefore has no relevance to the issue of whether the license was validly suspended on that date.)  On March 12, 2003 Mr. Knight served on the Division of Child Support his request for administrative hearing.  He gave his mailing address as 501 South Jackson Street, No. B101, Seattle, Washington 98104.  He gave his daytime telephone number as 206-624-3685 and facsimile number as 206-343-0929.

            On April 16, 2003, Mr. Knight attended the administrative hearing before Administrative Law Judge Gail G. Maurer, WSBA #1207, of the Office of Administrative Hearings in Seattle.  Representing the State was Claims Officer Thomas R. Atkinson, WSBA #20138.  He had an opportunity to inform Mr. Knight of the charge pending in the District Court and of the arraignment then scheduled for April 29, 2003, but did not.

            After that hearing King County Deputy Sheriffs Jana Marie Wilson and Gregg Edward Walker arrested Mr. Knight and booked him into King County Jail.

            On April 21, 2003 in State ex rel Schmitz v. Knight, King County Superior Court No. 90-3-04471-1, Mr. Knight appeared before Commissioner Leonid I. Ponomarchuk with attorney John R. Scannell, WSBA #31035.  Representing the State was King County Deputy Prosecuting Attorney Jennifer Marie Sandvik, WSBA #29708.  Ms. Sandvik works for the same elected prosecutor as the deputy prosecutors who have represented the State in the DWLS case in District Court.  Ms. Sandvik had an opportunity to inform Mr. Knight of the DWLS charge in the District Court and of the arraignment then scheduled for April 29, 2003 but did not.  After hearing argument and reading the submitted pleadings, Commissioner Ponomarchuk ordered Mr. Knight released from the jail and set a subsequent hearing for May 20, 2003.

            Therefore, on April 29, 2003, Mr. Knight was free and could have attended the arraignment in District Court had he been given notice.

            Commissioner Ponomarchuk ordered Mr. Knight to provide his home address and Mr. Knight immediately complied by writing his home address on a piece of paper then held by Ms. Sandvik: (redacted for this website) Seattle, Washington 98(redacted for this website).

            C. Legge states in an Affidavit of Service used by the State in the District Court to provide evidence of personal service as required by RCW 74.20A.320(1) that on May 8, 2001, she/he served on a woman who did not give her name at (redacted for this website), Seattle, Washington.  It is upon this service the alleged license suspension in September 2001 is based.

            On May 1, 2003 Mr. Scannell filed a motion to modify the Commissioner’s order and won cancellation of the subsequent hearing date then set for May 20, 2003.  At the hearing on this motion on May 16, 2003, attended by a King County deputy prosecutor, the superior court judge ordered the contempt prosecution dismissed based on an inadequate service.  The deputy prosecutor had another opportunity to inform Mr. Scannell, Mr. Knight’s attorney in the support contempt case, of the criminal charge filed in the District Court and of the bench warrant issued when he failed to appear, and did not.  Before this hearing, Mr. Knight submitted to this Court in the support contempt case a declaration that reads in significant part:

            From June 1991 through November 2000 I lived with my parents at (redacted for this website), Federal Way, Washington.  During November 2000 I moved to (redacted for this website), Seattle, Washington.  My son Axel Knight helped me move a heavy computer table and other belongings into my new room.  I purchased a mattress and box spring and had these delivered to (redacted for this website), Seattle, Washington.  I built several bookshelves out of kits purchased at WalMart and brought my books and papers, including legal pleadings that have accumulated over the years, to be stored in these bookshelves at (redacted for this website).  I moved my television and stereo to (redacted for this website).  I moved my clothes there, I moved cooking and eating utensils there, I sleep there and bathe there.  I changed the address on my automobile registration to (redacted for this website), Seattle, Washington, and the form I filled out indicated that it was good for both the automobile license tab and for the driver’s license.  I have continuously resided there since.  I voted in the November 2000 election at Nautilus Elementary School based on my voter registration address at (redacted for this website), Federal Way.  Soon after, I changed my voter registration to the address at (redacted for this website), Seattle and I have voted in Seattle elections since.  I voted on Seattle School Board candidates, on Seattle School District levies, on the City’s Monorail Initiative, and on the Mayor and City Council elections.  I voted on state and federal representative elections in November 2002.  I voted on state initiatives.  Ivy Rose Williams also lives at (redacted for this website), Seattle.

            I changed my listed address with the Boeing Employees Credit Union to (redacted for this website) and I receive the monthly statements on my account at this address.  I changed my listed mailing address with Ohio Casualty Company and their local agent in Port Townsend for the purpose of car insurance to (redacted for this website), Seattle.  I have used the address of ActionLaw.net and formerly the Law Office of Paul King as a mailing address for legal paperwork because there are some things I do not want to receive at home.  Unfortunately I have recently experienced difficulties with the Postal Service not delivering the mail to the law office address, or to (redacted for this website), Seattle when addressed there, but that is not due to any failure on my part.  I have complained about this to the Postal Service and hope this situation will soon be resolved.

 

Mr. Knight further declared:

            Between 10:30 am and 11:00 am, April 9, 2001, a loud knock occurred on the front door of (redacted for this website), Seattle, Washington 98(redacted for this website).  When I answered the door, King County Deputy Sheriff Gregory Walker and Deputy Sheriff Jana Wilson were at the door.  Deputy Walker informed me that he had a warrant for my arrest for failing to appear at a child support hearing.  The two deputies placed me in handcuffs and drove me to the King County Jail at 500 Fifth Avenue, Seattle.

            During the morning of May 2, 2001, between 10:30 am and 11:00 am, I was arrested by King County Deputy Sheriff Gregory Walker and Deputy Sheriff Jana Wilson.  I was outside the house, at the intersection of (redacted for this website).  They denied waiting for me to come out of the house and I confirmed to them that I still live at (redacted for this website).  The two deputies placed me in handcuffs and drove me to the King County Jail at 500 Fifth Avenue, Seattle.

            On April 16, 2003, at 11:30 a.m. I appeared before the Office of Administrative Hearings at 1904 Third Avenue, Suite 722, Seattle, Washington to be heard on my challenge to the child support license suspension.  After giving argument during this hearing to the administrative law judge, King County Deputy Sheriff Gregory Walker and Deputy Sheriff Jana Wilson appeared and announced they had a bench warrant for missing a child support hearing.  They asked me if I still lived at (redacted for this website), Seattle, Washington.  I answered that I still did.  The two deputies placed me in handcuffs and drove me to the King County Jail at 500 Fifth Avenue, Seattle.  I obtained release by court order in this action five days later on Monday April 21, 2003.

 

            Voter registration.  Repeatedly informing deputy sheriffs where he lived.  Filling out the change of address form for the Department of Licensing.  Mr. Knight duly and repeatedly informed the authorities of his residence and office address, voice and facsimile telephone numbers.  During May 2003, it became apparent that the Postal Service was no longer willing to deliver mail to 501 South Jackson Street No. B101, Seattle, Washington because they decided they didn’t like delivering to basement offices.  Mr. Knight rectified this problem by obtaining use of Post Office Box 3444, Seattle, Washington 98114, at the International Station on 6th Avenue South in Seattle.

            On June 2, 2003, Mr. Knight filed and served his Petition for Judicial Review of the agency decision that resulted from the hearing held on April 16, 2003.  It became Knight v. State of Washington, King County Superior Court No. 03-2-27325-2 SEA.  In this Petition, Mr. Knight gave his home address as (redacted for this website), Seattle, Washington 98144 and his mailing address as P.O. Box 3444, Seattle, Washington 98104.  He subsequently corrected the Zip Code to 98114.  It did not occur to Mr. Knight that the Postal Service would designate a different Zip Code to the Post Office boxes than the Zip Code written on the building in which they are housed.

            Nevertheless, Ms. Lianne Malloy, WSBA #15028, Assistant Attorney General representing the State in Knight v. State and other cases has faithfully mailed documents to P.O. Box 3444 since June 2003 and the Postal Service faithfully delivered these documents to this Post Office Box.  However, Ms. Malloy never took advantage of the numerous opportunities thus presented to inform Mr. Knight of the DWLS charge filed in the District Court in this case and the bench warrant issued on April 29, 2003.

            Somehow, the District Court Division of the King County Prosecutor’s Office found out about P.O. Box 3444, Seattle, Washington 98114.  On October 24, 2003 they filed the charge of DWLS 3rd degree in State v. Knight, King County District Court South Division No. CQ54646KC and mailed the Summons announcing the arraignment date of November 6, 2003 to P.O. Box 3444, Seattle, Washington 98114.  Docket sheet for this case is attached as Appendix B to the State's Response.  However, they did not include a copy of the bench warrant issued in No. C438381 in the envelope.  Nothing mailed in this envelope provided any information that there was another DWLS case pending against Mr. Knight.  Mr. Knight appeared at the arraignment on November 6, 2003 and the State was represented by a deputy prosecutor.  This deputy prosecutor had the opportunity to inform Mr. Knight of the bench warrant and did not.

            On December 5, 2003, Mr. Knight appeared in another hearing in No. CQ54646KC.  This time the deputy prosecutor informed the Court and Mr. Knight about the bench warrant outstanding in the West Division of the District Court.

            After the hearing in Burien, Mr. Knight returned to Seattle and went to the Clerk’s Office for this Division of this Court and asked if there was a bench warrant outstanding.  Mr. Knight requested that the warrant be quashed as he never had notice of the warrant or of the arraignment.  The Clerk recalled the warrant and this warrant is subsequently quashed.  The Clerk informed Mr. Knight of a new arraignment date of December 16, 2003.

            Mr. Knight has attended every hearing scheduled in this case since.

            From April 21, 2003 through December 5, 2003 is 228 days.

            From April 21, 2003 through September 1, 2003 is 132 days.

LEGAL AUTHORITY

STATUTORY WRIT IS THE APPROPRIATE REMEMDY

            Butts v. Heller, (1993) 69 Wash. App. 263, 268-269, 815 P. 2d. 213 found that the speedy trial requirements of CrR 3.3 and CrRLJ 3.3 are enforceable by writ of prohibition.  Where there is an unreasonable delay where the defendant receives notice more than 105 days after a criminal complaint is filed in a limited jurisdiction court, and where there is no fault on the part of the defendant as to the delay, he was resident within the State and amenable to process, then reversal of any decision not dismissing the complaint is unquestioned.  The only remedy by the limited jurisdiction court upon findings of such facts is dismissal with prejudice, CrRLJ 3.3(i); City of Seattle v. Hilton, (1991) 62 Wash. App. 487, 494, 815 P. 2d. 808; and City of Seattle, v. Guay, (2003) 150 Wash. 2d. 288, 295.  Thus a writ of prohibition is an appropriate remedy.

CrRLJ 3.3 AS IT EXISTED PRIOR TO SEPTEMBER 1, 2003 APPLIES

            The Compliant in District Court No. C438381 was filed on April 17, 2003, Mr. Knight was released from jail on April 21, 2003, each date is more than 105 days prior to September 1, 2003, when major changes in CrRLJ 3.3 went into effect.  Therefore these changes do not apply to this case or to District Court No. C438381.

CrRLJ and CrR ARE INTERPRETED CONSISTENTLY WHERE LANGUAGE IS IDENTICAL OR NEAR IDENTICAL

 

            City of Seattle v Guay, (2003) 150 Wash. 2d. 288, 300 found:

. . . we strive to construe the criminal rules for courts of limited jurisdiction and those for superior courts as consistently as possible, . . . See City of Seattle v. Crockett, 87 Wn. 2d 253, 256, 551 P. 2d 740 (1976) (the procedural rules “were designed to operate in conjunction with one another and not to require meaningless and useless duplication”); State v. Mack, 89 Wn. 2d 788, 792, 576 P. 2d 44 (1978) (“The identity of purpose, together with the philosophy enunciated in Crockett, warrants our construction of both rules in a consistent manner.”).

 

CrR 3.3(c)(1) reads in relevant part:

If the defendant is not detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 14 days after that appearance in superior court which next follows the filing of the information or indictment.  . . .  A defendant released from jail whether or not subjected to conditions of release pending trial shall be brought to trial not later than 90 days after the date of arraignment.

 

CrRLJ 3.3(c)(1) reads in relevant part:

If the defendant is not detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 15 days after that appearance in superior court which next follows the filing of the information or indictment.  . . .  A defendant released from jail whether or not subjected to conditions of release pending trial shall be brought to trial not later than 90 days after the date of arraignment.

 

The two provisions are identical except that for courts of limited jurisdiction, the time for arraignment is 15 days.

BECAUSE OF IDENTITY OF RELEVANT LANGUAGE, STRIKER RULE APPLIES TO CrRLJ 3.3 AS IT APPLIES TO CrR 3.3.

 

            State v. Striker, (1976) 87 Wash. 2d. 870, 872-873, 557 P. 2d. 847 found:

            Where as here, the rules have not been followed and, through no fault or connivance of the defendant, a long period of delay has occurred between the filing of the information and the time the defendant is brought before the court, the question becomes: What is the applicable date from which to calculate the period in which he must be brought to trial?

            The United States Supreme Court has said that the right to a speedy trial, guaranteed under the sixth amendment to the United States Constitution, which was made applicable to the states in Klopfer v. North Carolina, 386 U.S. 213, 18 L. Ed. 2d. 1, 87 S. Ct. 988 (1967), attaches when an indictment or information is filed, or when the defendant is arrested and held to answer, whichever occurs earlier.  United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d. 468, 92 S. Ct. 455 (1971).  This concept has been embodied in the ABA Standards Relating to Speedy Trial § 2.2 (Approved Draft, 1968), which provides the time for trial should commence or run from the date the charge is filed, unless the defendant has continuously been held to answer for the crime (or one based on the same conduct or arising from the same criminal episode) prior to the filing.

 

And from this concluded at 87 Wash. 2d. 875:

            . . . a due regard for the protection of the petitioners’ constitutional rights, as well as consideration of policy in the administration of justice, compel us to the conclusion that where, contrary to the expectation expressed in the rules, a delay has occurred between the filing of the information and the bringing of the accused to court, CrR 3.3 must be deemed to operate from the time the information is filed.

 

Cited by Seattle v. Hilton, supra, at 62 Wash. App. 491-492, which found at 492-493:

Instead, we find that Striker and its underlying policies govern by analogy the resolution of this present case.  The expectation inherent in CrRLJ 3.3(d)(4) is that the defendant’s appearance before the court will occur shortly after the mandate for a new trial is filed in the municipal court.  If that expectation is met, a defendant awaiting a new trial after appeal will receive a speedy trial if the time is calculated from the date of that appearance.

            However, if the defendant is not brought before the trial court within a reasonable time after the mandate for a new trial is filed, the expectation of the rule is not satisfied.  Under such circumstances, the defendant’s speedy trial right will commence from the date the trial court receives the mandate.  Cf. Striker.  Otherwise, the prosecution of the new trial could be delayed indefinitely.  This result would directly conflict with the public’s interest in having criminal matters resolved in a timely manner.  See CrRLJ 3.3(b) (“Criminal trials shall take precedence over civil trials.”); Striker, at 872 n. 2 (even if not under arrest or otherwise restrained in his freedom, a defendant can be seriously disadvantaged by delay following charge, due to anxiety, public suspicion, and difficulty in securing witnesses).

            Hilton urges us to take the position expressed by 2 American Bar Ass’n, Standards for Criminal Justice, Std. 12-2.2 (1978), which is comparable to the view taken in the proposed amendment to CrR 3.3(d)(4).  However, absent adoption of a similar amendment to CrRLJ 3.3(d)(4), we cannot hold that a defendant’s speedy trial right automatically commences from the date the municipal court receives the mandate for a new trial.  Instead, pursuant to Striker, we are constrained to hold that a defendant’s speedy trial right is calculated from the date of defendant’s appearance before the court so long as that appearance occurred within a reasonable time from the filing of the mandate.  If the defendant’s appearance was unreasonably delayed, then the speedy trial period begins to run from the date the mandate is received.

 

Likewise, if the time for appearance by a defendant for arraignment as provided by CrRLJ 3.3(c)(1) is unreasonably delayed longer than the 15 days provided by the rule, then the time for trial shall begin to run from the 15th day after the complaint is filed.

            In this case, the Complaint was filed on April 17, 2003 and the arraignment notice was returned by the Postal Service on April 21, 2003.  However, on that same day, Deputy Prosecuting Attorney Jennifer Sandvik was in the same courtroom as Mr. Knight and she had the opportunity to inform him, directly and personally, that he had an arraignment scheduled on April 29, 2003.  As Mr. Knight provided to her his current residence address at that hearing, the arraignment could have been mailed in time to be received by Mr. Knight.  It could have been sent by facsimile to Mr. John Scannell’s office, or mailed there.  A telephone call could have informed Mr. Knight of this arraignment.  And as Mr. Knight was being released from jail that day, he would have been free to attend the arraignment on April 29, 2003.

            State v. Austin, (2003) 119 Wash. App. 319, 325 found:

            But “[t]he overall purpose of the due diligence standard developed by the Greenwood line of cases is to ensure that the State takes those steps reasonably calculated to provide timely notice of pending charges to a defendant.” State v. Vailencour, 81 Wn. App. 372, 377, 914 P. 2d 767 (1996) (emphasis added).  Thus, if the State has information that may lead to the defendant’s whereabouts,

 

Such as a return on arrest warrant indicating that said defendant is in jail, and a notice of hearing informing the Prosecutor’s Office in which courtroom and when the defendant and his counsel will be present, and the said counsel will ask for the defendant’s release, which would free such defendant to appear for an arraignment.

            to show due diligence, it must take reasonable steps to follow up on that information or show that doing so would be unreasonably burdensome.  See State v. Hunnel, 52 Wn. App. 380, 386, 760 P. 2d 947 (1988) (“When the State sits idly by and does nothing with the information available to it, it cannot claim that it made a good faith effort to locate the defendant.”); see also Jones, 79 Wn. App. at 13, (The State did not act with due diligence because it “failed to diligently act upon the information it had regarding [the defendant’s] whereabouts.”); State v. Bazan, 79 Wn. App. 723, 730, 904 P. 2d 1167 (1995) (In determining whether the State acted with due diligence, “the court considers relevant factors, including whether the defendant was aware of the pending charge and the amount and nature of the information known or readily available to the State,”)

 

Id.  Jones is State v. Jones, (1995) 79 Wash. App. 7, 901 P. 2d. 1075.  The constructive last day for arraignment would have been 15 days after April 21, 2003, or May 6, 2003, allowing the exclusion of the time Mr. Knight was in King County Jail on another matter.

BECAUSE UNREASONABLE DELAY IN EXCESS OF 105 DAYS CANNOT BE CURED UPON OBJECTION AT ARRAIGNMENT, GREENWOOD APPLIES, OBJECTION IS NOT WAIVED AND CrRLJ 3.3(i) MANDATES DISMISSAL

 

            State v. Greenwood, (1993) 120 Wash. 2d. 585, 606-607, 845 P. 2d. 971 found:

The purpose of an objection to CrR 3.3(e) is to inform the trial court of an alleged error in order to permit timely correction of that error, Bernhard, at 600.  Where the time for trial calculation has already expired, such an objection would not assist the court in setting a trial within the requirements of CrR 3.3.  In such cases, a defendant cannot be deemed to have waived his or her objection.  See State v. Nelson, 47 Wn. App. 579, 586, 736 P.2d 686, review denied, 108 Wn. 2d 1024 (1987).  Because Weyland was not brought before the court until after the time for trial period had elapsed, he cannot be deemed to have waived his objection.

            The 125-day delay that occurred in this case prior to the defendant’s arraignment was unduly long.  The State failed to act in good faith and with due diligence in bringing Weyland before the court for arraignment, and the delay was not caused by any fault or connivance on Weyland’s part.  Striker therefore applies to this case and requires the establishment of a constructive arraignment date of 14 days after the information was filed, or October 1.  Weyland not brought to trial within 90 days of this date.

            A criminal charge not brought to trial within CrR 3.3’s requirements shall be dismissed with prejudice.  CrR 3.3(i).  We therefore reverse the Court of Appeals, and we reinstate the trial court’s ruling dismissing the charge against Weyland with prejudice.

 

Bernhard is State v. Bernhard, (1986) 45 Wash. App. 590, 726 P. 2d. 991 review denied, 107 Wash. 2d 1023.

            90 days after the constructive arraignment date of May 6, 2003 is August 4, 2003, the day the statute of limitations ran out on the charge had it not been filed.  This case was over on August 5, 2003.

PROPOSED ORDER

            A copy of the proposed Order is provided hereto.

            Respectfully submitted this 1st day of June, 2004.

 

                                                                        __________________________

                                                                        Roger W. Knight, pro se

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