I. IDENTITY OF THE MOVING PARTY
Roger W. Knight, appellant.
Review of the Order Denying Appellant’s Motion for Reconsideration entered in the Court of Appeals, Division One on April 26, 2001 and review of the Per Curiam Unpublished Opinion entered in the Court of Appeals, Division One on April 2, 2001.
III. ISSUES PRESENTED FOR REVIEW
A. Did the Court of Appeals and the King County Superior Court err in dismissing the action and appeal below because of the doctrine of res judicata or collateral estoppel? The two transactions from which the Superior Court cases below arise occurred more than two years apart.
B. If res judicata or collateral estoppel appropriately apply to this case on the basis of identity of transaction and issue raised, does it nevertheless work injustice in that it upholds a 1997 King County Superior Court decision finding that Laws of Washington 1997 Chapter 58, the Washington WorkFirst Temporary Assistance for Needy Families Act of 1997 (WorkFirst Act) does not violate Article II Section 19 of the Washington Constitution, when subsequently, this Court struck down Initiative 695 as impermissibly covering more than one subject in Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142 Wash. 2d. 183, 11 P. 3d. 762?
C. Does Fiore v. White, (2001) 148 L. Ed. 2d. 629, 121 S. Ct. 712 (Fiore II) support the argument that the Fourteenth Amendment mandates consistent application of the law in consideration of otherwise state law issues? This decision was not available for consideration by Mr. Knight, the State, or this State’s courts prior to January 2001.
D. The petitioner was unable to appeal the 1997 Superior Court decision upholding the Constitutionality of the WorkFirst Act because this Court denied the petitioner leave to proceed in forma pauperis on appeal when such leave was granted by King County Superior Court, and at that time he was unable to raise the $250.00 filing fee. Did this decision, denying appellate review of an issue arising from the Washington Constitution, and the Superior Court and Court of Appeals decisions relying on this denial to apply res judicata and collateral estoppel effect to the previous unappealed decision, violate the petitioner’s right to due process of law and equal protection of the laws under the Fourteenth Amendment as recognized in Boddie v. Connecticut, (1971) 401 U.S. 371, 28 L. Ed. 2d. 113, 91 S. Ct. 780 and continue such violation of the Fourteenth Amendment?
E. The Court of Appeals rendered its decision with an unpublished opinion. Does RCW 2.06.040 or any interpretation of RCW 2.06.040 that provides that the Court of Appeals decision cannot be cited as precedent, which in effect frees the Court of Appeals form the discipline of precedent, go beyond the grant of power to the Judiciary in Article III of the United States Constitution? Is reliance upon the grants and limitations of judicial power in Article III a necessary part of the right to due process of law in the Fourteenth Amendment and Article I Section 3 of the Washington Constitution?
IV STATEMENT OF THE CASE
On September 28, 1999, Mr. Knight received in the mail a “License Suspension Warning Letter”, CP 3. Mr. Knight was threatened with the suspension of all of his licenses issued by the State of Washington.
On September 29, 1999, Mr. Knight filed his Complaint in King County Superior Court, Kent Division, No. 99-2-22195-8 KNT. CP 1-3.
On March 20, 1999, the Department of Social and Health Services, Division of Child Support (DSHS), through Assistant Attorney General Lianne Malloy, moved for summary judgment dismissing the Complaint. CP 5, Motion for Summary Judgment, CP 6-36, Memorandum in Support of Motion for Summary Judgment. It was noted for hearing on May 12, 2000.
On March 21, 2000, Mr. Knight filed his Plaintiff’s Motion to Reopen Previous Case, No. 97-2-21231-6 KNT and consolidate with this Action and Motion for Summary Judgment in this Action Granting Relief and Reversing Summary Judgment in No. 97-2-21231-6 KNT Based on Subsequent Court Decisions, CP 287-289. The supporting Memorandum and its attachments is CP 37-286. He noted his Motion for Hearing on May 12, 2000, the same day that DSHS’ Motion was noted for hearing.
On May 12, 2000, the hearing on motions was held before Judge Harriet M. Cody. Mr. Knight believed that Paul H. King, WSBA #7370, would stand in for him and give oral argument. But Mr. King had a prior commitment in Everett and his attempt at communication with Judge Cody’s chambers was not as successful as would be hoped. Nevertheless, Judge Cody granted the DSHS’ Motion for Summary Judgment and dismissed the Complaint. CP 297-298.
On June 5, 2000, Mr. Knight filed the Notice of Appeal, CP 296, and had Sonja Anderson serve it upon the Attorney General’s Office at 900 Fourth Avenue, Seattle, Washington that same day. Mr. Knight mailed another copy of the Notice of Appeal directly to Lianne Malloy in Olympia.
On April 2, 2001, the Court of Appeals entered its unpublished opinion that his suit is barred by res judicata and collateral estoppel. Unpublished Opinion herein attached.
On April 26, 2001, the Court of Appeals denied the petitioner’s motion for reconsideration.
V. ARGUMENT
On August 18, 1997 the petitioner, Roger W. Knight, a License Suspension Warning Letter from the respondent agency. Mr. Knight filed suit in King County Superior Court requesting injunction against enforcement of the Workfirst Act on the grounds that it contemplated more than one subject in violation of Article II Section 19 of the Washington Constitution. Knight v. DSHS, No. 97-2-21231-6 KNT. Mr. Knight was granted leave to proceed in forma pauperis by the superior court in No. 97-2-21231-6 KNT. The superior court then found that the WorkFirst Act did not violate the Washington Constitution and certified that Mr. Knight is still indigent for the purposes of the appeal. However, this Court, without explanation, denied Mr. Knight’s application to proceed in forma pauperis on appeal. (Court of Appeals No. 41598-1-I, this Court’s number lost).
Mr Knight simply did not, in February 1998, have $250.00 to pay the filing fee, and therefore the appeal was dismissed. CP 32-34.
The second License Suspension Warning Letter was sent more than two years later. Between the two LSWR’s, the State never followed up with any effort to suspend any of Mr. Knight’s licenses.
It appears to be a question of first impression in this State’s courts whether when two transactions that take place more than two years apart, the doctrine of res judicata could apply to bar a lawsuit arising from the second transaction, however similar or identical the transactions may be. In its Unpublished Opinion, pages 5-6, the Court of Appeals relied upon Commissioner v. Sunnen, (1948) 333 U.S. 591, 92 L. Ed. 898, 68 S. Ct. 715 to find that res judicata and collateral estoppel barred the second lawsuit in the superior court.
But, as tacitly admitted by the Court of Appeals, Sunnen found that res judicata does not bar lawsuits arising from transactions more than one year apart. It is not surprising that the issue would come up in federal tax refund cases because similar issues can arise in different tax years involving the same taxpayer, each tax year creating a different transaction. But while Sunnen allowed that collateral estoppel can bar the same issue being raised in subsequent tax years that had been previously litigated, it specifically found that collateral estoppel does not apply to where there was a change in the law or a subsequent court decision either changed or clarified the law to such a degree that it would cause one taxpayer to be treated differently than other taxpayers similarly situated by virtue of the one taxpayer having previously litigated the issue.
The Court of Appeals erred, Unpublished Opinion page 6 and n. 13 when it found that Montana v. United States, (1979) 440 U.S. 147, 161, 59 L. Ed. 2d. 210, 99 S. Ct. 970 restricted the Sunnen exception to collateral estoppel. It did not; it merely applied Sunnen to the facts of that particular case.
These matters alone are important to public policy, and a published opinion by this Court on this issue alone would be regularly cited in subsequent cases where similar or identical transactions occur more than one year apart. This issue was fully and well briefed by the parties in the superior court and the Court of Appeals.
The criteria in RAP 13.4(b)(1) and (2) are met by the conflict of the Unpublished Opinion in this case with In re Metcalf, (1998) 92 Wash. App. 165, 174, 963 P. 2d. 911 citing Henderson v. Bardahl International Corp., (1967) 72 Wash. 2d. 109, 119, 431 P. 2d. 961 which found that res judicata should not apply where it works injustice. Collateral estoppel should not be applied where it works injustice. Metcalf, at 92 Wash. App. 174 citing State v. Williams, (1997) 132 Wash. 2d. 248, 254, 937 P. 2d. 1052. Metcalf’s issues were important; therefore collateral estoppel and res judicata did not apply. Metcalf, at 92 Wash. App. 176, citing Southcenter Joint Venture v. National Democratic Policy Commission, (1989) 113 Wash. 2d. 413, 418-9, 780 P. 2d. 1282 citing Kennedy v. City of Seattle, (1980) 94 Wash. 2d. 376, 379, 617 P. 2d. 713. Res judicata is not intended to deny a litigant his day in court, Schoeman v. New York Life Ins. Co., (1986) 106 Wash. 2d. 855, 860, 726 P. 2d. 1, citing Luisi Truck Lines, Inc. v. Utilities and Transportation Commission, (1967) 72 Wash. 2d. 887, 894-7, 435 P. 2d. 654. Res judicata is not to be applied so rigidly as to deny litigant his day in court, primary purpose of courts is to administer justice.
Fiore v. White, (2001) 121 S. Ct. 712, 713-714, 148 L. Ed. 2d. 629, (Fiore II) found that upon receiving the answer from the Pennsylvania Supreme Court that a subsequent decision involving Mr. Fiore’s codefendant with similar facts that he did not violate the criminal statue in question, did not create a change in the law, the United States Supreme Court reversed or vacated Mr. Fiore’s conviction upon a finding that it violated the Fourteenth Amendment.
Fiore II sets the precedent that the Fourteenth Amendment requires that if a trial court misapprehends the law, then it is up to the appellate courts to fix the problem on appeal, whether direct, or from an action or motion for relief from judgment or from a new action based upon a subsequent and separate transaction with similar facts. As applied to this case, if Initiative 695 contains more than one subject in violation of Article II Section 19, than the Workfirst Act must also be held unconstitutional on the basis that it contains at least seven subjects.
This issue was fully briefed by the petitioner in the Motion for Reconsideration before the Court of Appeals. Fiore II was not available for citation by Mr. Knight, the respondent state agency, or the courts before January 2001.
D. Denial of Leave to Proceed In Forma Pauperis on Appeal of 1997 Superior Court Decision and Granting Res Judicata and Collateral Estoppel Effect to 1997 Decision Violates the Fourteenth Amendment on Both Due Process and Equal protection Grounds.
For the this Court to deny leave to proceed in forma pauperis on appeal where the superior court granted such leave and subsequent to its decision found that the indigent plaintiff was still indigent, is to deny equal protection as to a substantial right, the right to be heard on appeal, on the basis of wealth without serving any legitimate interest of government. To give such an unappealed trial court decision the effect of res judicata or collateral estoppel is to continue the invidious discrimination.
Boddie v. Connecticut, (1971) 401 U.S. 371, 28 L. Ed. 2d. 113, 91 S. Ct. 780, sets the precedent that where important issues of fundamental rights, at least the case of dissolution of marriage where relief can only be obtained in a state’s courts, the absolute requirement of a filing fee violates the Fourteenth Amendment rights of those too poor to afford the filing fee. Likewise, injunction against the enforcement of a state statute as violation of the state constitution can only be obtained in the state’s courts. The right to challenge the constitutionality of a statute is fundamental to any person who obtains standing by reason of the application of the statute to himself. To be meaningful, such a challenge must include access to a state’s appellate courts, for it is on appeal that the published decisions that either uphold the statute or strike it down can be obtained and enforced. Precedent for this is Griffin v. Illinois, (1956) 351 U.S. 12, 18, 100 L. Ed. 891, 76 S. Ct. 585 for criminal appeals.
This issue was fully briefed by the petitioner in the Motion for Reconsideration before the Court of Appeals. As an issue of pure law, requiring no additional findings of fact than facts established in the superior court, it can be raised for the first time on appeal, RAP 2.5(a)(3), manifest error affecting a constitutional right. See also United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, constitutional issue raised for the first time on appeal considered and decided.
E. All Appellate Decisions Should Be Published and Should Set Precedent
An opinion should be published if it modifies or clarifies an established principle of law. State v. Fitzpatrick, (1971) 5 Wash. App. 661, 669, 491 P. 2d. 262. Any finding about how Amalgamated Transit applies to the WorkFirst Act meets the standard for publication set forth in Fitzpatrick and RCW 2.06.040: “Decisions having precedential value shall be published as opinions of the court.”
Fitzpatrick also found, at 5 Wash. App. 668-669 that:
Unpublished decisions do not become part of common law of state and will not be considered if cited to trial or appellate court.
This rule, however, violates Article III of the United States Constitution which is necessarily incorporated upon the states by the Fourteenth Amendment Due Process Clause. Anastasoff v. United States, (8th Cir. 2000) 223 F. 3d. 898, 899-900[1]
This issue was fully briefed by the petitioner in the Motion for Reconsideration before the Court of Appeals. Anastasoff was not available for citation by Mr. Knight, the respondent state agency, or the courts before August 2000. Mr. Knight did not have standing or cause to raise the issue of Anastasoff until the Court of Appeals issued an unpublished opinion. The previous case did not result in an opinion, published or unpublished, because Mr. Knight was denied in forma pauperis on appeal and was unable to pay the filing fee.
For the reasons stated herein, this Court should grant review of the Order Denying Appellant’s Motion for Reconsideration entered in the Court of Appeals, Division One on April 26, 2001 and review of the Per Curiam Unpublished Opinion entered in the Court of Appeals, Division One on April 2, 2001.
Dated this 21st day of May, 2001
Respectfully submitted,
____________________________________
Roger W. Knight, pro se
If the back button does not take you there, click Home to go to the Index page of this Antipeonage Act Website, click Enemies for the main Enemies page, click Letters for the Letters page, and click Allies for the Allies page. Click 46753-1 to get to the main page for this case. Or you can use the Antipeonage Act Site Map.
[1] Vacated on rehearing en banc, (2000) 235 F. 3d. 1054, as moot because federal government refunded disputed tax to taxpayer.