I. IDENTITY OF THE MOVING PARTY
Roger W. Knight, appellant.
Reconsideration of the Per Curiam Unpublished Opinion entered in this action on April 2, 2001 and publication by the Reporter of Decisions of either this opinion or of any opinion that results from reconsideration.
III. SUPPORTING RECORD
Decisions of the Supreme Court of Washington and of the United States Supreme Court that were released subsequent to the submission by the parties in this case of their Briefs, support Mr. Knight’s Motion for Reconsideration. These decisions are Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142 Wash. 2d. 183, 11 P. 3d. 762, which is the Initiative 695 decision, and Fiore v. White, (2001) 148 L. Ed. 2d. 629, 121 S. Ct. 712 (Fiore II). A federal question of equal protection and due process of law under the Fourteenth Amendment arises from Mr. Knight’s inability to litigate his 1997 case on appeal for the want of $250.00 for the filing fee and this Court’s and the superior court’s subsequent refusal to reopen this earlier case, giving it res judicata and collateral estoppel effect when Mr. Knight is subsequently able to pay the $250.00 filing fee. This issue is implicated by Boddie v. Connecticut, (1971) 401 U.S. 371, 28 L. Ed. 2d. 113, 91 S. Ct. 780 and Griffin v. Illinois, (1956) 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585. Article II Section 19 regulates the legislative and therefore the political process. Participation in the political process is covered by the Equal Protection Clause, Bush v. Gore, (2000) 148 L. Ed. 2d 388, 121 S. Ct. 525. Anastasoff v. United States, (8th Cir. 2000) 223 F. 3d. 898 was released about a month before Mr. Knight filed his Reply Brief of Appellant, it supports his request for publication.
IV. ARGUMENT
In Fiore v. White, (2001) 121 S. Ct. 712, 713-714, 148 L. Ed. 2d. 629, (Fiore II) the United States Supreme Court wrote in per curiam:
Petitioner, William Fiore, was convicted of violating a Pennsylvania statute prohibiting the operation of a hazardous waste facility without a permit. After Fiore’s conviction became final, the Pennsylvania Supreme Court interpreted the statute for the first time, and made clear that Fiore’s conduct was not within its scope. However, the Pennsylvania courts refused to grant Fiore collateral relief. We granted certiorari in part to decide when, or whether, the Federal Due Process Clause requires a State to apply a new interpretation of a state criminal statute retroactively to cases on collateral review.
In order to determine if that question was in fact presented, we asked the Pennsylvania Supreme Court whether its decision interpreting the statute not to apply to conduct like Fiore’s was a new interpretation, or whether it was, instead, a correct statement of the law when Fiore’s conviction became final. The Pennsylvania Supreme Court, responding to our certified question, has now made clear that retroactivity is not at issue. At the same time, that court’s interpretation of its statute makes clear that Fiore did not violate the statute. We consequently find that his conviction is not consistent with the demands of the Federal Due Process Clause. See Jackson v. Virginia, 443 U.S. 307, 316, 61 L. Ed. 2d. 560, 99 S. Ct. 2781 (1979).
I
This case, previously described in greater detail in our opinion certifying the state-law question to the Pennsylvania Supreme Court, 528 U.S. 23, 145 L. Ed. 2d. 353, 120 S. Ct. 469 (1999),[2] arises out of William Fiore’s conviction under a Pennsylvania statute that prohibits “operat[ing] a hazardous waste” facility without a “permit.” Pa. Stat. Ann., Tit. 35, §6018.401(a) (Purdon 1993); see Commonwealth v. Fiore, CC No. 8508740 (Ct. Common Pleas, Allegheny Cty., Pa., Jan. 19, 1988), App. 6. The Commonwealth conceded that Fiore in fact had a permit, but argued that Fiore had deviated so dramatically from the permit’s terms that he nonetheless had violated the statute. And the Commonwealth’s lower courts agreed. See id., at App. 43-44; Commonwealth v. Fiore, No. 00485 PGH 1988 (May 12, 1989), App. 99-100 (affirming Fiore’s conviction on the trial court’s reasoning).
The Pennsylvania Supreme Court declined to review Fiore’s case, Commonwealth v. Fiore, 525 Pa. 577, 575 A. 2d 109 (1990), and his conviction became final. Thereafter, the Pennsylvania Supreme Court agreed to review the conviction of Fiore’s co-defendant, David Scarpone, convicted of the same crime at the same time. The Supreme Court reversed Scarpone’s conviction on the ground that the statute meant what it said: The statute made it unlawful to operate a facility without a permit; one who deviated from his permit’s terms was not a person without a permit; hence, a person who deviated from his permit’s terms did not violate the statute. Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993) (describing the Commonwealth’s interpretation as “a bald fiction we cannot endorse”).
Fiore, unsuccessful in his subsequent state-court attempts to have his own conviction set aside, see Commonwealth v. Fiore, 445 Pa. Super. 401, 665 A. 2d 1185 (1995), appeal denied, Commonwealth v. Fiore, 544 Pa. 623, 675 A. 2d 1243 (1996), brought a federal habeas corpus action. The District Court granted the writ, but the Court of Appeals for the Third Circuit reversed. 149 F.3d 221 (1998). The Court of Appeals believed that the Pennsylvania Supreme Court, in Scarpone’s case, had announced a new rule of law, inapplicable to Fiore’s already final conviction. Id., at 227. And, the Court of Appeals said, “state courts are under no [federal] constitutional obligation to apply their decisions retroactively.” Id., at 222. We granted certiorari to determine whether Fiore’s conviction was inconsistent with the Due Process Clause.
II
Because we were uncertain whether the Pennsylvania Supreme Court’s decision in Scarpone’s case represented a change in the law of Pennsylvania, we certified the following question to that court:
“Does the interpretation of Pa. Stat. Ann., Tit. 35, §6018.401(a) (Purdon 1993), set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993), state the correct interpretation of the law of Pennsylvania at the date Fiore’s conviction became final?”
528 U.S., at 29.
We received the following reply:
“Scarpone did not announce a new rule of law. Our ruling merely clarified the plain language of the statute. . . . Our interpretation of [§6018.401(a)] in Scarpone furnishes the proper statement of law at the date Fiore’s conviction became final.”
Fiore v. White, 562 Pa. 634, 646, 757 A. 2d 842, 848-849 (2000) (citation omitted).
The Pennsylvania Supreme Court’s reply specifies that the interpretation of §6018.401(a) set out in Scarpone “merely clarified” the statute and was the law of Pennsylvania-as properly interpreted-at the time of Fiore’s conviction. Because Scarpone was not new law, this case presents no issue of retroactivity. Rather, the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit.
This Court’s precedents make clear that Fiore’s conviction and continued incarceration on this charge violate due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. See Jackson, supra, at 316; In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d. 368, 90 S. Ct. 1068 (1970). In this case, failure to possess a permit is a basic element of the crime of which Fiore was convicted. Scarpone, supra, at 279, 634 A. 2d, at 1112. And the parties agree that the Commonwealth presented no evidence whatsoever to prove that basic element. To the contrary, the Commonwealth, conceding that Fiore did possess a permit, see Brief for Respondents 1, necessarily concedes that it did not prove he failed to possess one.
The simple, inevitable conclusion is that Fiore’s conviction fails to satisfy the Federal Constitution’s demands. We therefore reverse the contrary judgment of the Third Circuit and remand this case for proceedings consistent with this opinion.
So ordered.
The significance of this decision is that the subsequent Pennsylvania Supreme Court decision interpreting the relevant state law did NOT change the law, the controlling principles, or the legal climate. Therefore, the Pennsylvania trial court applied the law inappropriately to Mr. Fiore. The Pennsylvania Supreme Court refused to apply the SAME law to Mr. Fiore as it did to Mr. Scarpone. Such inconsistent application of the law violates both Equal Protection and Due Process Clauses of the Fourteenth Amendment. There are no legitimate interests of government served by the distinction between Mr. Fiore and Mr. Scarpone.
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 this Court has decided that two License Suspension Warning Letters issued more than two years apart nevertheless constitutes “one transaction”, or actually “no transaction”[3], then the action Mr. Knight filed in the superior court in 1999 is an “independent action” for relief from judgment, well within Civil Rule 60. Pennsylvania’s failure to grant Mr. Fiore’s request for relief from his judgment resulted in the United States Supreme Court granting him that relief.
Res judicata and collateral estoppel shall not be applied where either does injustice. In re Metcalf, (1998) 92 Wash. App. 165, 174, 963 P. 2d. 911. Fiore II provides that neither of these doctrines should preclude relief even when there is no Sunnen change in the law,[4] where the judgment is contrary to the law as subsequently clarified.
B. As Amalgamated Transit Interpretated Article II Section 19 of the Washington Constitution, Consistent Application of the Law Mandates Injunction Against Laws of Washington 1997 Chapter 58, the Washington WorkFirst Temporary Assistance for Needy Families Act of 1997, Regardless of Whether Amalgamated Transit Created New Law or Not
The “Rules of statutory construction apply to initiatives.” as it applies to acts of the Legislature. Id., at 205. And:
It is not the prerogative nor the function of the judiciary to substitute what they may deem to be their better judgment for that of the electorate in enacting initiatives . . . unless the errors in judgment clearly contravene state or federal constitutional provisions.” Fritz v. Gorton, 83 Wn. 2d 275, 287, 517 P. 2d 911 (1974). Nor is it the province of the courts to declare laws passed in violation of the constitution valid based upon considerations of public policy.
Id., at 206. The same applies to bills passed by the Legislature and signed by the Governor. “Art. II § 19 applies to initiatives.” Id.
The Supreme Court of Washington has eliminated all distinctions between how Article II Section 19 applies to initiatives and how it applies acts of the Legislature. Thus all standards applied in Amalgamated Transit to Initiative 695 apply equally to the WorkFirst Act. This is true whether Amalgamated Transit created new law or not subsequent to a decision by King County Superior Court in 1997 finding that the WorkFirst Act did not contemplate more than one subject.
If the 1997 superior court decision is contrary to Amalgamated Transit, then under Fiore II Mr. Knight is entitled to relief from the application of the WorkFirst Act as are all those who are affected by the Act, regardless of whether they challenged the Act in 1997 or not.
One consideration used to determine how liberally to construe Article II Section 19 in favor of the legislative act is whether the title was “general” or “restrictive”. A bill or initiative with a general title that encompasses all of its provisions is given the rational unity test for determining if its provisions cover a single subject or separate subjects. Amalgamated Transit at 142 Wash. 2d. 209.[5]
Initiative 695 had a general title. Id. at 217. But the finding is:
However, there is no rational unity between the subjects of I-695. Similar to the act in Wash. Toll Bridge Auth. v. State[6], I-695 also has two purposes: to specifically set license tab fees at $30 and to provide a continuing method of approving all future tax increases. Further, neither subject is necessary to implement the other. I-695 violates the single-subject requirement of art. II, § 19 because both its title and the body of the act include two subjects: repeal of the MVET and a voter approval requirement for taxes.
Id. at 217.
The WorkFirst Act contemplates at least seven different subjects for which there is no rational unity: 1) Immigrant Protection, 2) Washington WorkFirst, 3) Child Care, 4) Teen Parents, 5) Illegitimacy Prevention and Abstinence, 6) DSHS Accountability, and 7) License Suspension, Child Support Enforcement.
The provisions concerning child care are not necessary to implement child support enforcement through license suspension. The provisions concerning Washington WorkFirst, which reforms public assistance and provides for helping recipients of public assistance into the job market and off of public assistance and imposes time limits for receiving public assistance, are not necessary for illegitimacy prevention and for promoting abstinence. Under the tests applied to Initiative 695 by Amalgamated Transit, the WorkFirst Act is clearly in violation of the Single Subject Clause. This Court has the duty to enjoin the enforcement of the WorkFirst Act regardless of what Mr. Knight did in 1997.
C. 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 Superior Court Decision Violates the Fourteenth Amendment on Both Due Process and Equal Protection Grounds.
For the Supreme Court of Washington 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.
In Boddie v. Connecticut, (1971) 401 U.S. 371, 28 L. Ed. 2d. 113, 91 S. Ct. 780, public assistance recipients were unable to obtain a divorce because the filing fee was beyond their means.
In England prior to the American Revolution, divorces could only be granted by the Parliament. The American Colonies began the process of divorce by court decree. Since the Revolution, states evolved their divorce and family law, sometimes retaining the right to grant a divorce by legislature in addition to divorce by court decree. Almost all states now exclusively provide for divorce by court decree, it has to be applied for through the states’ courts.
Boddie determined that given the restriction to the courts for divorce, Connecticut violated the Fourteenth Amendment by absolutely requiring payment of the filing fee, regardless of the poverty of the couple seeking divorce. This finding is in view of the basic position of marriage in society and the state monopolization of dissolving that relationship. Boddie at 401 U.S. 381, 383. The decision is limited to where the parties seek divorce in good faith, and that their indigency is bona fide. However, the Supreme Court did not apply its finding to civil litigation in general, Id. at 382-383, it applied it to where filing in court is the “exclusive precondition to the adjustment of a fundamental human relationship.”
It would be reasonable to find, based on Boddie, that leave to proceed in forma pauperis, providing access to the courts for indigent plaintiffs, is not Constitutionally mandated for civil litigation in general. A breach of contract or a tort can be settled by negotiation without any filing in any court; there is thus no monopoly on the remedy.
But a plaintiff can obtain only in the state courts injunction against enforcement of a statute because it violates the state constitution. The Eleventh Amendment has been found to prohibit federal courts from issuing injunctions against state officers based upon state law while preserving to the federal courts the power to issue such injunctions based upon federal Constitutional law. Pennhurst State School & Hospital v. Halderman (II), (1984) 465 U.S. 89, 102, 79 L. Ed. 2d. 67, 104 S. Ct. 900. A constitutional challenge to a statute is a fundamental right of our society.
The Fourteenth Amendment requires the states to provide a means by which an indigent litigant can obtain a fair hearing on a claim that a state law violates the state constitution. Mr. Knight received this access from King County Superior Court in 1997. But the issue here is: did the Supreme Court of Washington violate the Fourteenth Amendment in denying leave to proceed in forma pauperis on appeal, and did this Court violate the Fourteenth Amendment by giving that unappealed decision res judicata and collateral estoppel effect, where the lack of appeal is the result of the denial of leave to appeal in forma pauperis?
Boddie is silent on that issue, because a trial court can grant a divorce without any appeal being necessary. The terms of the decree may be subject to appeal, but the parties may negotiate those issues without appeal, at least to the extent not prohibited by the state’s laws.
But a constitutional challenge to a statute, to be meaningful, requires appellate court review. It is the appellate courts that can issue the necessary injunctions and findings that strike the death knell to an unconstitutional statute. This is why the Supreme Court of Washington accepted direct review of Amalgamated Transit.
Griffin v. Illinois, (1956) 351 U.S. 12, 18, 100 L. Ed. 891, 76 S. Ct. 585 found that indigent criminal defendants had as much right under the Fourteenth Amendment to access to the state appellate courts for appeal of their convictions as defendants who can pay the filing fee for appeal and purchase the transcripts. Any rule that denies the indigent defendants “an adequate appellate review accorded to all who have money enough to pay the costs in advance” offends equal protection and due process without serving any legitimate interest of government. Id. As statistics show that many criminal convictions are reversed by state appellate courts, denying adequate review to the poor means many will suffer from unjust convictions which appellate courts would set aside. Id., at 19.
Many unjust convictions are set aside because of evidence admitted in violation of constitutional provisions, or because of other procedural due process violations, or because of ineffective assistance of counsel, or because the activity for which defendant was prosecuted was constitutionally protected, or because the statute was void for vagueness or otherwise unconstitutional. Fiore II arose from a criminal case in which the defendants were able to prosecute their appeals and habeas corpus petitions. Rights afforded by state constitutions are just as important within the context of state law as rights afforded by the United States Constitution. Even if the state constitutional provision merely regulated how the Legislature or the voters can pass legislation, such a challenge goes to the fundamental right to limit deprivations of life, liberty, or property to where such is authorized by validly passed legislation.
Noncustodial parents have as much right to participate in the political process with as much protection from unconstitutional logrolling of legislation hostile to their interests as all other citizens. There is no legitimate interest of government served by denial of the equal protection of the laws as to participating in the political process. Bush v. Gore, (2000) 148 L. Ed. 2d. 388, 121 S. Ct. 525, 530-533, finding that the Equal Protection Clause prohibited vote recount methods that did not treat all voters in a state equally.
Precisely because the interests here are as important as the interests of couples to seek divorce and of wrongfully convicted criminal defendants to appellate review, the Supreme Court of Washington’s arbitrary denial of Mr. Knight’s request for leave to proceed in forma pauperis form the 1997 superior court decision and this Court’s granting res judicata and collateral estoppel effect to that decision violated the Fourteenth Amendment.
D. This Court’s Opinion Should Be Published and Should Set Precedent, Whether Reconsideration is Granted or Not.
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[7] found:
Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177-78, 2 L. Ed. 60 (1803). This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544, 115 L. Ed. 2d 481, 111 S. Ct. 2439 (1991); Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 399, 5 L. Ed. 257 (1821). These principles, which form the doctrine of precedent, were well established and well regarded at the time this nation was founded. The Framers of the Constitution considered these principles to derive from the nature of judicial power, and intended that they would limit the judicial power delegated to the courts by Article III of the Constitution. Accordingly, we conclude that 8th Circuit Rule 28A(i), insofar as it would allow us to avoid the precedential effect of our prior decisions, purports to expand the judicial power beyond the bounds of Article III, and is therefore unconstitutional.
The rule of precedent served equity, justice, and the protection of the people by the rule of law from arbitrary power of government:
In addition, the Framers had inherited a very favorable view of precedent from the seventeenth century, especially through the writings and reports of Sir Edward Coke; the assertion of the authority of precedent had been effective in past struggles of the English people against royal usurpations, and for the rule of law against the arbitrary power of government. In sum, the doctrine of precedent was not merely well established; it was the historic method of judicial decision-making, and well regarded as a bulwark of judicial independence in past struggles for liberty.
Id., at 900. What the Anastasoff Court is driving at is that the discipline of following precedent or explaining why not, would tend to prevent judges from arbitrary actions that treat individual litigants in a manner contrary to their expected rights as deduced from established precedent unless such litigants successfully argued for such variance.
In requiring that such a variance establish binding precedent, Article III of the United States Constitution would cause the court to consider the obvious conflicts with other precedents. Too many precedents with conflicts would either make the exercise of appellate jurisdiction almost impossible for a sane judge, or some would have to be overruled to restore the integrity of stare decisis. That is why this doctrine was considered by the Framers of the Constitution to be a bulwark of liberty. It is also appropriate to consider Anastasoff in light of the concerns for fairness with intervening precedent set forth in Sunnen, supra.
When this Court’s decisions are published and thus recognized to set precedent, not only is the Supreme Court of Washington more likely to grant review, this Court is more likely to reconsider its decision on a motion. Precisely because unpublished decisions were heretofore recognized as only affecting the parties involved, and then only to the extent covered by law of the case, res judicata, and collateral estoppel, the probability that a person adversely affected by an unpublished decision can obtain relief is reduced by the lesser incentive that the Supreme Court of Washington has to hear the case and that this Court has to reconsider its opinion.
There is one finding in Anastasoff with which Mr. Knight must beg to differ: It is true that at the time that the Constitution was framed, many decisions were not published, but were recognized as setting precedent. However, since then, we have established a very efficient means by which decisions can be published, as is evident by the Washington Reporter and the Washington Appellate Reports. If this Court were to adopt the Anastasoff rule, or have it imposed by the Supreme Court of Washington or the United States Supreme Court, then due process would require this Court to publish all of its decisions and the previous unpublished decisions, so that litigants and their attorneys have fair warning and can find and read the precedents that affect their case. This might mean publishing numerous new volumes of the Reports each year. But perhaps not. Where two or more appeals raise identical or similar issues, they can be consolidated. When they are not, this Court could simply write: “In light of our decision in Smith v. Jones, we reverse the superior court’s decision and remand for further proceedings consistent with our decisions in this case and in Smith.”
Reliance upon the grants and limitations of judicial power embodied in Article III of the United States Constitution is a fundamental part of the right to due process of law. Therefore, Article III is incorporated upon the States by the Fourteenth Amendment.
For the reasons stated herein, this Court should reconsider its Unpublished Opinion released on April 2, 2001 and publish either this opinion or any opinion that results from reconsideration.
Dated this 11th day of April, 2001
Respectfully submitted,
____________________________________
Roger W. Knight, pro se
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[1] This alone is grounds for publication, RCW 2.06.040. See Part D.
[3] Unpublished Opinion page 5: “Knight attempts to characterize each warning letter as a separate transaction, but neither letter constituted a transaction.” If that be the case, then the appellant never had STANDING to challenge the WorkFirst Act and both 1997 and 1999 superior court decisions should be vacated allowing Mr. Knight to raise his challenge to the WorkFirst Act if and when the State actually takes action to suspend his licenses. Knight v. United States, W.D. Wash. No. C93-13WD, vacated and remanded, 12 F. 3d 1107 (9th Cir. 1993), unpublished memorandum finding that Mr. Knight lacked standing to challenge 18 U.S.C. §228. If Mr. Knight is ever prosecuted for allegedly violating 18 U.S.C. §228, then No. C93-13WD would not bar a Constitutional challenge to 18 U.S.C. §228 because it was vacated.
[4] Unpublished Opinion, page 6: “We note that United States Supreme Court has substantially narrowed Sunnen’s scope.” with Note 13 citing Montana v. United States, (1979) 440 U.S. 146, 161, 59 L. Ed. 2d. 210, 99 S. Ct. 970. Mr. Knight respectfully disagrees: Montana merely quoted and applied Commissioner v. Sunnen, (1948) 333 U.S. 591, 599, 92 L. Ed. 898, 68 S. Ct. 715 and found that the claim for exception from res judicata and collateral estoppel did not meet the Sunnen standard.
[5] “Where a general title is used, all that is required is rational unity between the general subject and the incidental subjects.”
[7] Vacated on rehearing en banc, (2000) 235 F. 3d. 1054, as moot because federal government refunded disputed tax to taxpayer.