Knight v State Reply to State's Response

Comes now ROGER W. KNIGHT, plaintiff, to reply to the State's Response and Opposition to Petitioner's Petition and Application for Writ of Certiorari and Writ of Prohibition (State's Response).

STATE DOES NOT CITE ANY FACTS OR LAW TO SUPPORT THE PROPOSITION THAT IT WAS NOT ACTING IN PRIVITY WITH THE CITY OF MERCER ISLAND IN PROSECUTING MR. KNIGHT FOR DRIVING WHILE LICENSE SUSPENDED

The State of Washington does not dispute and cannot dispute that the Department of Social and Health Services (DSHS), its Division of Child Support (DCS), and the Department of Licensing (DOL) are state agencies, representing the same sovereign: the State of Washington. The State does not dispute and cannot dispute that it is these agencies that operated to suspend, or not suspend, Mr. Knight's driver's license during the year 2001. The State does not dispute and cannot dispute that the City of Mercer Island relied upon the State's alleged license suspension of 2001 for its prosecution of Mr. Knight for Driving While License Suspended (DWLS).

The Mercer Island Police Department relied upon dispatch reports that Mr. Knight's license was suspended to establish probable cause for citing him for DWLS. These dispatch reports can only come from information supplied by the State's DOL. Absent these State supplied dispatch reports, Mercer Island police had absolutely no reason or cause to cite Mr. Knight for DWLS. The City of Mercer Island relied upon the paper records supplied by the State's DOL for its prosecution of Mr. Knight, and submitted same to Mr. Knight in response to his discovery request. It is these same records the State used to "prove", without live testimony by the process server where Mr. Knight would have opportunity to cross examine, service required by RCW 74.20A.320(1) to Judge Barbara Linde, three days after Crawford v. Washington, (March 8, 2004) 124 S. Ct. _____ reaffirmed that a prosecutor must establish by live testimony of a witness, each fact relevant and necessary to prove a criminal charge.

There is no dispute as to any of these facts. For the State to herein assert that it was not in privity with the City of Mercer Island in its prior prosecution of Mr. Knight is like asserting that the salt and water in the ocean have nothing to do with each other. (Any chemist as an expert witness can testify that the salt is dissolved in the water and exists as individual sodium and chlorine ions intermingled with the water molecules.) To assert such lack of privity flies in the face of Gray v. City of Des Moines, (1997) 87 Wash. App. 689, 701-702, 943 P. 2d. 669 and and Barlindal v. City of Bonney Lake, (1996) 84 Wash. App. 135, 142-144, 925 P. 2d. 1289.

Had Mercer Island continued the case after remand, and won a jury verdict of guilty where the jury would be instructed that to make such finding, it had to find that service required by RCW 74.20A.320(1) was accomplished, the State in this present prosecution would assert that Mr. Knight is barred by such jury finding from asserting that service was not accomplished in this present case.

But Mercer Island did not continue the case on remand. Therefore, pursuant to Shuman v. Dept. of Licensing, (2001) 108 Wash. App. 673, 681-2, 32 P. 2d. 1011:

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.

Likewise, the circumstances of the attempted service prerequisite to any licenses suspension for child support were clearly recognized by Judge Trickey of this Court to be important and necessary to the criminal litigation. No more should be required.

STATE'S PROSECUTION IN DISTRICT COURT NO. C438381 IS COLLATERALLY ESTOPPED BY ITS DECISION TO DISCONTINUE PROSECUTION IN DISTRICT COURT NO. CQ54646KC

Appendix B to the State's Response is the Docket Sheet to State v. Knight, King County District Court No. CQ54646KC. The last page of this Exhibit is the docket report of the hearing held on January 9, 2004. The judge is identified as Judge Eide and the deputy prosecutor is identified as "Anderson". This docket sheet reads in significant part:

STATE MOVS TO DISMISS - PROOF PROBLEMS - WOULD NOT BE ABLE TO PROVE DEFT RECEIVED LETTER FROM D.O.L.

DEFT HAS NO OBJECTION AND REQUESTS DISMISSAL BE WITH PREJUDICE

GRANTED

Charge 1 Dismissed W/Prejudice

Here, the State cannot claim diversity of parties. What is reported here went beyond the minimum requirements of Shuman: Not only did the parties recognize that service required by RCW 74.20A.320(1) was important to the criminal prosecution, in this case notice by mail, the prosecutor specifically admitted that he could not provide evidence of the service by mail. The State in this case had as much full and fair opportunity to provide evidence of either form of service required by RCW 74.20A.320(1): successful service by certified mail or personal service. Therefore, collateral estoppel bars presentation of such fact in District

FEDERAL NINTH CIRCUIT FINDING IN CIVIL CASE ON APPEAL DOES NOT PRECLUDE MR. KNIGHT'S DEFENSE OF LACK OF SERVICE REQUIRED BY RCW 74.20A.320(1) IN STATE COURT CRIMINAL CASE FOR SEVERAL REASONS

A. State Does Not Meet Burden of Proof to Present Evidence of Federal Litigation

Sufficient to Prove All Elements of Collateral Estoppel

Burden of proof is on the party asserting collateral estoppel. State v. Williams, (1997) 132 Wash. 2d. 248, 254, 937 P. 2d. 1052, citing McDaniels v. Carlson, (1987) 108 Wash. 2d. 299, 303, 739 P. 2d. 254. Williams re-established that the four criteria must be met:

(1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea of collateral estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4) application of the doctrine must not work an injustice.

Williams at 132 Wash. 2d. 254.

For the State to assert that findings in Knight v. City of Mercer Island et al, Ninth Circuit No. 03-35116, 70 Fed Appx 413, unpublished decision attached to State's Response as Appendix D, and in Knight v. Serpas et al, Ninth Circuit No. 03-35016, 69 Fed. Appx. 830, unpublished decision attached to State's Response as Appendix E, it would have to attach, in addition to the "unpublished" decisions published in the Federal Appendix, the evidence that went into any finding of fact rendered by the Ninth Circuit.

This was not done in the King County District Court and was not done in this Court in this action. The minimum evidence required to prove all four elements would at the very least include the Briefs and Excerpts of Record submitted to the Ninth Circuit, and the complaints and pleadings submitted to the United States District Court for the Western District of Washington in Knight v. City of Mercer Island et al, W.D. Wash. No. C02-879L and Knight v. Serpas et al, W.D. Wash. No. C02-1641C.

That would be a pile of paperwork, and Mr. Knight is under no obligation to present it because he is not asserting any preclusive effect of these federal cases.

The reason for this is to evaluate what evidence, if any, supported the Ninth Circuit's findings as to the success of service by certified mail (what the State admitted could NOT be proven in King Co. District Court No. CQ54646KC, Appendix B to State's Response!), and what opportunity, if any, that Mr. Knight had to obtain, through the discovery process set forth in the Federal Rules of Civil Procedure, evidence to support his proposition that the service was not successful, and what opportunity, if any, he had to present such evidence.

Should the State submit the paperwork filed in the federal cases, it would show:

Upon receiving his copy of the Complaint, Judge John C. Coughenour filed and served an Order to Show Cause why the case should not be dismissed under Younger abstention doctrine. Mr. Knight responded to this Order and supplemented his response after Judge Michael Trickey in King County Superior Court reversed the Mercer Island DWLS convictions. Nevertheless, Judge Coughenour dismissed on the basis of Younger, Rooker-Feldman, Allen and Migra preclusion and the general idea that a noncustodial parent ordered to pay child support has no rights to assert anyway. Judge Trickey’s finding to the contrary notwithstanding. What Judge Coughenour did NOT determine, is the factual issue of whether the State accomplished notice required by RCW 74.20A.320(1). There was no opportunity by Mr. Knight to use the discovery process of the Federal Rules of Civil Procedure to determine this issue of fact. Under Shuman, the Ninth Circuit’s finding on appeal is not a “final judgment on the merits” because there was no fair and fair opportunity by Mr. Knight to litigate it in the federal courts.

It can also readily be shown that Judge Lasnik equally did not make any finding as to the factual issue of whether the State accomplished notice required by RCW 74.20A.320(1), and that Mr. Knight was not afforded the opportunity to engage in the discovery process under the Federal Rules of Civil Procedure. Judge Lasnik found the Complaint barred by Younger abstention and by Rooker-Feldman on the basis of the convictions in the Bellevue Division of the King County District Court that were reversed by Judge Trickey. Judge Lasnik ignored the reversal of convictions in denying Mr. Knight his Motion to Amend Judgment.

In both cases, Mr. Knight not only presented the evidence of Judge Trickey’s determination, he also filed declarations that on remand the City of Mercer Island moved for dismissal and that the state court granted Mr. Knight’s request that the dismissal be with prejudice. If this constitutes a final determination on the merits of whether notice required by RCW 74.20A.320(1) was accomplished, in that it was not, then Judge Lasnik’s order found frivolous a claim the state courts found meritorious.

This finding by Judge Lasnik is thus patently absurd.

Ordinarily, where there is no finding of fact by a trial court, and that the appellate court determines that such issue of fact is relevant, it remands with an instruction that the trial court make a determination of such fact. This is what Judge Trickey of this Court did in the Mercer Island DWLS cases in City of Mercer Island v. Knight, King County Superior Court No. 02-1-01137-0 SEA. This is NOT what the Ninth Circuit did in the federal civil cases.

B. Federal Courts Are Barred by 28 U.S.C. §1738 and Rooker-Feldman From

Factual Findings Against Mr. Knight as to Service Required by RCW

74.20A.320(1) by Ultimate Results in Mercer Island v. Knight in the State Courts

28 U.S.C. §1738 reads in significant part:

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

This is construed to mean that a judgment of a state courts are to be given the same preclusive effect, under res judicata or collateral estoppel or other such doctrine as the case may be, as the state's courts themselves give it. Migra v. Warren City School Board of Education, (1984) 465 U.S. 75, 81, 79 L. Ed. 2d. 56, 104 S. Ct. 892 at 465 U.S. 81, found:

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

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

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

If, under Shuman, the dismissal with prejudice in January 2003 in the Mercer Island DWLS cases is preclusive, then the Ninth Circuit did not have jurisdiction to subsequently make a contrary finding of fact, as such violated 28 U.S.C. §1738. The Ninth Circuit was prohibited from subsequently making the contrary finding by Rooker-Feldman and its published opinion in Ahmed v. Washington, (9th Cir. 2001) 276 F. 3d. 464, 467-469.

C. Findings in Federal Civil Cases Do Not Preclude Requirements to Prove Facts

Beyond Reasonable Doubt in Subsequent State Criminal Cases

State v. Williams, supra, found that Washington’s courts have yet (as of 1997) to apply the doctrine with respect to a finding of fact in a previous civil or administrative case to bar a subsequent criminal prosecution. At 132 Wash. 2d. 257-258, Williams found:

While some foreign jurisdictions have barred prosecution under the doctrine of collateral estoppel, both Dupard and Cleveland require us to closely examine public policy. We conclude that public policy simply does not allow a DSHS administrative hearing to prevent the State from prosecuting Williams.

First, the purposes underlying the administrative hearing and the criminal trial in the present case are wholly distinct. The purpose of the hearing was to determine whether Williams received overpayments of public assistance and the rate at which she would repay DSHS. The purpose of the criminal prosecution was to determine whether Williams had committed a crime. It is already established that the latter inquiry “is more appropriately addressed to the criminal justice system.” Dupard, 93 Wn. 2d at 276.

State v. Dupard, (1980) 93 Wash. 2d. 268, 276-277, 609 P. 2d. 961 found:

We believe public policy dictates rejection of collateral estoppel in this instance. Parole revocation is not part of a new criminal prosecution. Standlee v. Smith, 83 Wn. 2d 405, 518 P. 2d. 721 (1974). See also Standlee v. Rhay, 403 F. Supp. 1247 (E.D. Wash. 1975), rev’d 557 F. 2d. 1303 (9th Cir. 1977). Rather, it is a “continuing consequence” of the original conviction.

The parole revocation process has been described as a twofold inquiry. The first involves “a wholly retrospective factual question”; has the parolee in fact violated a condition of parole? Assuming an affirmative answer, the second step addresses the appropriate disposition of the matter. . . . In the instant case, the basic factual question to be answered is whether the parolee in fact committed a new crime. As a general proposition, we believe this inquiry is more appropriately addressed to the criminal justice system. See United States ex rel. Burgess v. Lindsay, 395 F. Supp. 404, 410 (E.D. Pa. 1975).

We believe the legislature contemplated that new crimes would be processed initially in the criminal justice system rather than by a parole revocation hearing. It may be noted that RCW 9.95.120 provides for a hearing within 30 days for one accused of violating his parole “other than the commission of, and conviction for, a felony or misdemeanor . . .” At another point in the same section reference may be found that “a parole is suspended pending the disposition of a new criminal charge, . . .”

Practical public policy requires that new criminal matters, when charged in the criminal justice system, must be permitted to be there decided, unhampered by any parallel proceedings of the Board of Prison Terms and Paroles. Consequently we hold that the board’s revocation hearing decision regarding Dupard may not be interposed as a basis for collateral estoppel in his prosecution on new criminal charges.

State v. Cleveland, (1990) 58 Wash. App. 634, 639-640, 794 P. 2d. 546 found:

Applying the four requirements of collateral estoppel to the facts of the case before us, we conclude that the first three are here satisfied. It is undisputed that the issue resolved in Cleveland’s favor in the dependency hearing was identical to the issue on which he was convicted in the criminal proceeding. That issue was sexual abuse of his stepdaughter K. There is also no question but that the dependency proceeding ended in a final judgment on the merits. The party against whom the estoppel is asserted is the State of Washington in both cases. It is immaterial that in the dependency proceeding, the State was represented by the Attorney General and in the criminal prosecution was represented by the county prosecuting attorney. State v. Dupard, 93 Wn. 2d 268, 609 P. 2d. 961 (1980).

The last requirement for the application of collateral estoppel is one of public policy: whether the doctrine’s application would work an injustice.

After consideration of Dupard and of Harris v. Washington, (1971) 404 U.S. 55, 56, 30 L. Ed. 2d. 212, 92 S. Ct. 183, finding that Harris held that mere failure to litigate, without something more, is insufficient to reject application of collateral estoppel on policy grounds, Cleveland at 58 Wash. App. 642, Cleveland at 58 Wash. App. 643-644 found:

It may be a fair question as to whether nonmutual collateral estoppel should be applied to the case before us, given that, as K.’s stepfather, Cleveland was not a party to the dependency proceeding. Because our decision here is based on separate policy considerations, we do not decide that issue. However, we note that the unusual circumstances here differ from those present in Standefer, because although Cleveland was not a party to the dependency proceeding, the only issue there concerned Cleveland’s conduct - whether he had sexually abused K. Therefore, unlike Standefer, which dealt with another party’s activities, the case before us concerned only Cleveland in both proceedings.

As noted above, we find overall considerations of public policy are determinative of the question before us. Dependency proceedings are often attended with a sense of urgency, are held as promptly as reasonably possible, and the entire focus of the proceeding is the welfare of the child. The focus being more narrow than in a typical felony trial, the state normally does not need, nor does it perform, the extensive preparation typically required for felony trials.

Furthermore, the prosecutor uses many more resources in developing a felony prosecution than those available and used in the typical dependency hearing. Dependency is decided by a judge, while felony trials are usually tried to a jury. In addition, if the State was faced with application of the doctrine of collateral estoppel to findings in dependency proceedings, there could well be a reluctance to conduct dependency proceedings in cases where one or more of the same issues would arise in subsequent criminal prosecutions. While the welfare of the minor children is undeniably important, we are influenced by the desireability of not impeding enforcement of the criminal law when no overriding consideration requires it.

Standefer is Standefer v. United States, (1980) 447 U.S. 10, 64 L. Ed. 2d. 689, 100 S. Ct. 1999.

Similarly, these public policy considerations counsel against the application of collateral estoppel to prohibit Mr. Knight from requiring the State to prove the fact of notice required by RCW 74.20A.320(1). The federal cases cited by the State are civil actions brought under 28 U.S.C. §§1331 and 1343 and under 42 U.S.C. §1983 and 42 U.S.C. §1994. 28 U.S.C. §§1331 and 1343 provide the federal district courts with original jurisdiction over matters of federal law, but not with any appellate jurisdiction to review any state court determination, Rooker v. Fidelity Trust Co., (1923) 263 U.S. 413, 68 L. Ed. 362, 44 S. Ct. 149 and District of Columbia Court of Appeals v. Feldman, (1983) 460 U.S. 462, 75 L. Ed. 2d. 206, 103 S. Ct. 1303. Accomplishment of notice required by RCW 74.20A.320(1) is reachable in the federal courts only under 28 U.S.C. §§1331 and 1343 and under 42 U.S.C. §1983, and only to the extent as required by the Fourteenth Amendment. This issue is irrelevant to any claim of peonage reachable under 42 U.S.C. §1994.

Other limitations to 42 U.S.C. §1983 jurisdiction includes consideration of the Full Faith and Credit Act, 28 U.S.C. §1738, as found by Allen v. McCurry, (1980) 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d. 308 and Migra v. Warren City School Board of Education, (1984) 465 U.S. 75, 81, 79 L. Ed. 2d. 56, 104 S. Ct. 892, and the abstention doctrine set forth in Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 746. Most of the pleadings in the federal cases involved these issues of pure law, and Mr. Knight was not afforded any opportunity to conduct discovery as to any issue of fact. All decisions were made by judges, in the federal district court and on appeal, no decisions as to fact were made by any jury.

The primary public policy purpose of any civil action under 42 U.S.C. §1983 is not to determine whether any person acting under color of state law committed a crime, it is merely to determine whether such actions under color of state law violated a civil right guaranteed by federal law. Standard of proof as to any issue of fact is preponderance of evidence.

The primary public policy purpose of this present state court criminal prosecution is much simpler: Did Mr. Knight commit a crime of driving while license suspended? The superior court in City of Mercer Island v. Knight reversed the previous convictions because the Bellevue District Court did not require that accomplishment of notice required by RCW 74.20A.320(1) be proven. But the superior court affirmed the finding that in a criminal DWLS case, issues as to the validity of the statutory scheme were not within the jurisdiction of a criminal court to decide. Those considerations can be raised on appeal of the administrative hearing provided by RCW 74.20A.320 upon an adequately served notice.

Therefore, it matters not to this proceeding what the federal courts have decided with respect to such issues of validity of the statutory scheme.

Other public policy considerations in a criminal case include the far greater protections afforded defendants in criminal cases: Right to Jury, Right to Non-Self Incrimination, and Right to Proof of All Elements of Crime Beyond Reasonable Doubt. In addition the primary focus of a criminal case is necessarily the guilt or innocence of the defendant of the crime charged. This is more appropriately determined in a criminal trial, than in any civil proceeding in any forum.

Because the State, pursuant to this Court’s finding in City of Mercer Island v. Knight, must prove beyond reasonable doubt that notice was accomplished as required by RCW 74.20A.320(1), whether the defendant is Mr. Knight or someone else, and because the previous federal court civil cases did not use such a high standard and operated under entirely different public policy considerations, it works an injustice to not require such proof in this case. Because the State admitted, through Deputy Prosecuting Attorney Kathryn Kim to the District Court on March 3, 2004, that the only witness it plans to call is a Washington State Patrol Trooper whose duties do not ordinarily include sending notice as required by RCW 74.20A.320(1), the State has no evidence whatsoever to present as to this notice. This was admitted by Deputy Prosecuting Attorney Anderson in State v. Knight, No. CQ54646KC when he moved for dismissal.

Therefore, the previous litigation of civil cases in the federal courts do not preclude the requirement of proof beyond reasonable doubt of the element Judge Trickey found needed to be proven.

CONCLUSION

For the reasons stated herein, the Application for Writ of Prohibition Should be Granted and the defendants prohibited from continuing the trial in State v. Knight, King County District Court No. C438381 and from requiring Mr. Knight to attend any further hearings, including the hearing currently scheduled for June 4, 2004.

Respectfully submitted this 17th day of May, 2004.

__________________________

Roger W. Knight, pro se

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