I.          ASSIGNMENTS OF ERROR

A.        Federal cases cited by the superior court, CP 161, do not bar the claims herein on res judicata and/or collateral estoppel grounds.  Burden of proof is on the party asserting such bar, submission of unpublished decisions as published in the Federal Appendix, CP 119-124, insufficient to meet burden without submission of Briefs and Excerpts of Record to allow superior court to evaluate basis of Ninth Circuit’s findings.  The Ninth Circuit did not overrule or vacate the federal district court’s findings that claims were barred by Rooker-Feldman[1] doctrine and that federal court must abstain under Younger[2] doctrine.  Where federal court finds itself so barred it cannot consistent with such finding make a binding ruling on the merits of the underlying case.

B.         Superior court erred in finding that if it were to reach a decision on the merits, Mr. Knight failed to show the suspension of the license unconstitutional.

 

II.        NEW ISSUE ON APPEAL, REDMOND V. MOORE

            CHANGED SUBSTANTIVE LAW

 

            City of Redmond v. Moore, (June 3, 2004) ___ Wash. 2d. ____ changed the substantive law and rendered all child support suspensions pursuant to RCW 74.20A.320 unconstitutional.  That it represents a change in substantive law is evident from the dissent by four justices.  Moore found that a statutory prohibition of a driver improvement interview or formal hearing before the Department of Licensing (DOL) works a deprivation of the license interest without due process of law.  Due process of law is mandated by Article I Section 3 of the Washington Constitution and by the Fourteenth Amendment.  Mr. Knight never received any opportunity of any hearing before the DOL before his license was suspended in September 2001 and this present litigation never restored the license or provided for any DOL hearing.

            As Moore found RCW 46.20.289 and RCW 46.20.324(1) unconstitutional on their face, RCW 74.20A.320(13) is likewise facially unconstitutional because it declares the hearing provided by the WorkFirst Act before the Department of Social and Health Sevices (DSHS) to be the exclusive administrative remedy and RCW 46.20.324(1) provides for automatic license suspension without any hearing before the DOL.

            Mr. Knight reserves the right to seek damages from the State for wrongful suspension of his license in a separate civil action.

III.       STATEMENT OF THE CASE

            On March 11, 2003, the DSHS served upon the petitioner the Notice of Noncompliance and Intent to Suspend Licenses.

            On March 12, 2003 Mr. Knight served his Request for Adjudicative Hearing, RCW 74.20A.320 Request to Restore Driver’s License or Notice that it has Been Restored.

            On April 16, 2003 the parties appeared before Administrative Law Judge Gail G. Maurer of the Office of Administrative Hearings.

            On May 6, 2003, Administrative Law Judge Gail G. Maurer entered the Final Order.  Exhibit attached to Amended Petition, Sub No. 6, CP 25-30.

            On May 21, 2003, the Office of Administrative Hearings re-mailed the Final Order due to problems with the United States Postal Service delivering mail to Mr. Knight.

            On June 2, 2003, Mr. Knight filed his Petition for Judicial Review of Agency Decisions, Chapter 34.05, Sub No. 1.

            On June 9, 2003, Mr. Knight filed his Amended Petition for Judicial Review of Agency Decisions, Chapter 34.05, Sub No. 6, CP 1-30.

            On November 10, 2003, Mr. Knight filed his Brief of Petitioner, Sub No. 25, CP 31-59.

            On December 8, 2003, the State filed its DSHS’S Trial Brief, Sub No. 27, CP 60-144.

            On December 15, 2003, Mr. Knight filed his Reply Brief of Petitioner, Sub No. 30, CP 145-159.

            On March 19, 2004 the superior court entered it Order Affirming Administrative Decision, Sub No. 35, CP 160-161.

            On April 1, 2004, Mr. Knight filed his Notice of Appeal to the Court of Appeals, Division One, Sub No. 36, CP 162-164.

IV.       ARGUMENT

A.        Federal Cases Not Preclusive, Burden of Proof Not Met.

            Where the State asserts the preclusive effect of a previous court proceeding, it has the burden of proof.  Shuman v. Dept. of Licensing, (2001) 108 Wash. App. 673, 681-682, 32 P. 2d. 1011 citing Thompson v. Department of Licensing, (1999), 138 Wash. 2d. 783, 790, 982 P. 2d. 601.  To meet this burden it would have had to present to the superior court the entire record of Knight v. Serpas et al, W.D. Wash. No. C02-1641C and the entire record of the appeal, 9th Circuit No. 03-35016, including Briefs and the Excerpts of Record.  The State only submitted the unpublished memorandum in this case, as an Exhibit to its DSHS Trial Brief, Sub No. 27, CP 123-124.  This unsubmitted record 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 City of Mercer Island v. Knight, King County Superior Court No. 02-1-01137-0 SEA reversed the Mercer Island DWLS convictions.  Nevertheless, Judge Coughenour dismissed on the basis of Younger and Rooker-Feldman doctrines citing Judge Lasnik's analysis in his findings in Knight v. City of Mercer Island et al, W.D. Wash. No. C02-879L.  The State did not submit any of the pleadings or findings in the federal Mercer Island case except the unpublished memorandum in 9th Cir. No. 03-35116, at CP 119-121.

            The evidence that the State submitted as part of it DSHS Trial Brief, Sub No. 6, CP 119-124 does not controvert Mr. Knight contention in his Brief of Appellant, Sub No. 25 at page 23, CP 58:

      The State has indicated that it will claim res judicata and collateral estoppel bars these claims.  No court proceeding prior to July 1, 1997 provides a basis for such bar.  The federal courts in proceedings subsequent to that date found themselves lacking jurisdiction under Rooker-Feldman doctrine or required to abstain under Younger v. Harris.  In such cases, no other determination by the federal court can have any preclusive effect.

 

            This is an eminently simple and obvious concept.  The Ninth Circuit did not address the Western District of Washington's findings that it lacked jurisdiction under Rooker-Feldman and that it had to abstain under Younger v. Harris.  Therefore, the Ninth Circuit did not overrule these findings.  Therefore, no findings by the federal courts as to the matters over which they found themselves to lack jurisdiction, or from which they were required to abstain, can, consistent with such findings, have a preclusive effect.

            This doctrine is illustrated perfectly in the majority opinion and concurrences in Elk Grove Unified School Dist. v. Newdow, (June 14, 2004) 124 S. Ct. ____.  The majority found that Mr. Newdow, as the noncustodial parent not allowed the authority to represent his child's interests in the courts pursuant to a state court order, lacked standing to challenge the validity of statutes requiring the public schools to conduct a Pledge of Allegiance ceremony where the Pledge contains the words "under God".  Having so found, the Supreme Court did not rule on the issue and vacated the Ninth Circuit's findings.  The concurrences, written by Justices Rehnquist, O'Connor, and Thomas, each found that he had such standing, and then ruled on the merits finding that inclusion of the phrase to be no more offensive than the phrase "In God We Trust" printed on the currency or on Georgia's new state flag.

            Either a court has jurisdiction to rule on the matters presented or it does not.  If it does not, then the findings are appropriately vacated and have no preclusive effect under res judicata or collateral estoppel.  Where a court has jurisdiction and must abstain, as in the case where Younger v. Harris applies, again, any decision on the merits of the underlying issue must necessarily be void and having no preclusive effect.

            Therefore, the superior court's findings are in error.

B.        Smith and Cruz Test.

            Mr. Knight incorporates herein by reference, the arguments presented in his Brief of Petitioner, Sub No. 25, pages 4-7, CP 39-42, as to the test for retroactive application of an Act of the Legislature under the test set forth in State v. Cruz, (1999) 139 Wash. 2d. 186, 190-191, 985 P. 2d. 384 and State v. Smith, (2001) 144 Wash. 2d. 665, 671-673, 30 P. 3d. 1245, 39 P. 3d. 294.  Laws 1997 chapter 58 was passed in 1997 and the support order was entered in 1991 and has not been modified to provide for license suspension upon any failure to comply.

            The findings in State v. Varga, (2004) 151 Wash. 2d. 179, 86 P. 3d. 139 do not change the test.  Varga found that the Legislature met the burden of declaring intent of retrospective application without passing an unconstitutional ex post facto law.

C.        Due Process and Equal Protection

            The WorkFirst Act prohibits consideration of ability to comply with the support order in the administrative hearing, RCW 74.20A.320(3).  Therefore, in the case of persons unable to comply with their support orders it provides for suspension of the license without meaningful remedy, without promoting the state's claimed interest in the support of the children, and for reasons unrelated to the activities licensed.  As a bare desire to harm a politically unpopular group is not a legitimate state interest, the statute offends the requirements for due process and equal protection in violation of Article I Sections 3 and 12 of the Washington Constitution and the Fourteenth Amendment.  Mr. Knight incorporates herein by reference the arguments presented in his Brief of Petitioner, Sub No. 25, pages 7-8, CP 42-43 and in his Reply Brief of Petitioner, Sub No. 30, pages 9-11, CP 156-158.

D.        WorkFirst Act as a Bill of Attainder

            Because RCW 74.20A.320(3) prohibits consideration of inability to comply with the support orders it is a bill of attainder targeted at those noncustodial parents unable to comply with their support orders prohibited by Article I Section 23 of the Washington Constitution and by Article I Section 10 clause 1 of the United States Constitution.  Mr. Knight incorporates herein by reference the arguments presented in his Brief of Petitioner, Sub No. 25, pages 7-14, CP 42-49 and in his Reply Brief of Petitioner, Sub No. 30, pages 9-11, CP 156-158.

E.         WorkFirst Act as a Multi-Subject Bill

            Mr. Knight incorporates herein by reference, the arguments presented in his Brief of Petitioner, Sub No. 25, pages 14-21, CP 49-56 that Laws 1997 chapter 58 is a multi-subject bill prohibited by Article II section 19 of the Washington Constitution.  It is Mr. Knight's contention that Bennett v. State, (2003) 117 Wash. App. 483, 70 P. 3d. 147 is inconsistent with Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142 Wash. 2d. 183, 191, 11 P. 3d. 762; City of Burien v. Kiga, (2001) 144 Wash. 2d. 819, 828, 31 P. 3d. 659; Washington Association of Neighborhood Stores v. State of Washington, (2003) 149 Wash. 2d. 359, 370-371, 70 P. 3d. 920; and Citizens for Responsible Wildlife Management v. State of Washington, (2003) 149 Wash. 2d. 622, 631, 71 P. 3d. 644.

F.         Antipeonage Act

            To attempt to coerce Mr. Knight into a repayment agreement, RCW 74.20A.320(5), where compliance, if possible, requires employment, is declared null and void by 42 U.S.C. §1994.  Even if Mr. Knight is unable to obtain employment at wages sufficient to enable his compliance with such repayment agreement, it is the attempt that 42 U.S.C. §1994 declares null and void and it is the arrest with the intent to place in a condition of peonage that 18 U.S.C. §1581 defines as a crime.  United States v. Gaskin, (1944) 320 U.S. 527, 527-530, 88 L. Ed. 287, 64 S. Ct. 318.  Mr. Knight incorporates herein by reference the arguments presented in his Brief of Petitioner, Sub No. 25, pages 21-23, CP 56-58 and in his Reply Brief of Petitioner, Sub No. 30, pages 11-12, CP 158-159.

            That Mr. Knight is free to choose his employer, if he can find one, and choose his profession makes no difference in the nature of the condition of employment coerced by threat or fact of legal process.  United States v. Reynolds, (1914) 235 U.S. 133, 146, 59 L. Ed. 162, 35 S. Ct. 86:

The surety has paid the state and the service is rendered to reimburse him.  That is the real substance of the transaction.  The terms of that contract are agreed upon by the contracting parties, as the result of their own negotiations.  The statute of the state does not prescribe them.  It leaves the making of the contract to the parties concerned, and this fact is not changed because of the requirement that the judge shall approve the contract.

 

Threat or fact of legal process proves involuntary servitude, United States v. Kozminski, (1988) 487 U.S. 931, 101 L. Ed. 2d. 788, 108 S. Ct. 2751.

            When considering debts and obligations in general, most people can understand the difference between lawful and unlawful means of collecting debts.  Were this not so, it would be impossible for any prosecutor to obtain a conviction from a jury for peonage or its closely related crime, extortion.  Most people would readily understand that armed robbery, an acute form of extortion, is a crime even if the victim legitimately owed the perpetrator the money.  Should a landlord point a gun at his tenant and demand payment of rent, he is committing a crime even though the rent is duly owed.  In State v. Pauling, (2003) 149 Wash. 2d. 381, 69 P. 3d. 331, the Supreme Court of Washington reinstated a conviction of extortion.  It mattered not whether the debt was legitimately owed, Pauling, at 149 Wash. 2d. 392.  It’s the means by which party tries to collect the debt that defines the crime.

            The facts proven to a jury in Pauling is that Mr. Pauling obtained a default judgment against a former girlfriend for $5,000.  He had some photographs of her engaged in certain activities and he threatened to post these images on the Internet if she did not satisfy the judgment.  This would embarrass her.  This was found to be sufficiently coercive to sustain a conviction of extortion.

            If Mr. Pauling told his girlfriend that she could get a job, any job, it mattered not what she did or who she worked for, and paid him half of her take-home pay until the judgment was paid in full, not only would he be committing extortion, chapter 9A.56 RCW, he would be committing the crime of peonage, 18 U.S.C. §1581.

            That, most people can understand.

            If it turned out that the judgment obtained against the girlfriend was for CHILD SUPPORT, coercion of payment by threat of Internet posting of embarrassing photographs IS STILL EXTORTION AND IT IS STILL PEONAGE!!!!!!

            While Pauling found, in effect, that had Mr. Pauling threatened garnishment and execution procedures he would not be committing extortion, that does not mean that a court order to pay the judgment or suffer loss of licenses and privileges, loss of the rights to vote and to keep and bear arms (consequence of felony conviction in most states, imposed by some for nonpayment of child support), or be imprisoned is legitimate and not declared null and void by 42 U.S.C. §1994.

            Garnishment is not peonage because it is merely the taking of property owed to a judgment debtor, chapter 6.27 RCW.  It is ordinarily not a crime nor contempt of court for a judgment debtor to quit employment in the event of wage garnishment.  Where a judgment debtor is threatened with such sanctions for quitting employment in reaction to a wage garnishment, then we have peonage.

            Those concerned that the Antipeonage Act declares null and void a court order to pay a judgment where the judgment debtor lacks wealth sufficient to cover the debt without employment may consider this:  Most money judgments obtained in civil cases are not ORDERS to pay the money, they are merely FINDINGS that the money is owed.  Outside the field of family law, we have able to live with that since 1867.  To create an exception for family law obligations that Congress did not create in the language of 42 U.S.C. §1994 is to negate the rule of law.

G.        City of Redmond v Moore.

            RAP 2.5(a)(3) provides that a party may raise for the first time in the appellate court a "manifest error affecting a constitutional right".  State v. WWJ Corp., (1999) 138 Wash. 2d. 595, 601-602, 980 P. 2d. 1257 found that this Rule broadened the scope of constitutional issues raised for the first time on appeal from the narrower common law rule that limited such review to criminal cases and to jurisdictional issues in civil cases.  It found that there was no distinction between civil and criminal cases under RAP 2.5(a)(3), any manifest error affecting a constitutional right may be raised.  This overruled Arripa v. Dept. of Social and Health Services, (1978) 91 Wash. 2d. 135, 141, 588 P. 2d. 185.

            State v. Hanson, (June 17, 2004) ____ Wash. 2d. _____ upheld the rule for prospective application of new precedents set forth by In re Personal Restraint of St. Pierre, (1992) 118 Wash. 2d. 321, 823 P.2d 492.  Generally, prospective application includes cases not yet final including cases on appeal.  That is the status of this case.  Hanson further found:

      St. Pierre sets out current prospective application analysis in Washington.  The analysis derives from two United States Supreme Court cases. In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), the Court held that a new rule applies prospectively to all cases pending on direct review or not yet final.  In Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the Court held that a new rule will not be given retroactive application to cases on collateral review except when either (a) the new rule places certain kinds of primary, private individual conduct beyond the power of the state to proscribe, or (b) the rule requires the observance of procedures implicit in the concept of ordered liberty.  Teague, 489 U.S. at 290.

      A new rule breaks new ground or imposes a new obligation.  Teague, 489 U.S. at 301.  A new rule is a "result . . . not dictated by precedent existing at the time the defendant's conviction became final."  Id.  As stated in St. Pierre, the rule based on those cases is that a new rule prospectively applies to cases not yet finalized unless a collateral review exception is present.  "The critical issue in applying the current {prospectivity} analysis is whether the case was final when the new rule was announced." St. Pierre, 118 Wn.2d at 327.  The St. Pierre Court interpretation of finality is consistent with RAP 12.7.

 

            Therefore, even if this case was over, which it is not, Mr. Knight would be entitled to the benefit of City of Redmond v. Moore, (June 3, 2004) ____ Wash. 2d. ____.  By finding that constitutional due process requires the DOL provide an opportunity for a hearing and that suspensions without hearings as required by RCW 46.20.324(1) violate due process, Moore set up a new rule that breaks new ground and imposes a new obligation on the State.  Four justices dissented from the majority opinion in Moore because they did not consider the result dictated by precedent prior to June 3, 2004.  Because Moore arises from the constitutional right to due process of law, it requires observance of procedures implicit in the concept of ordered liberty.

            Moore found:

      DOL suspended both Moore and Wilson's driver's licenses pursuant to RCW 46.20.289.  That statute provides in relevant part:

            The department shall suspend all driving privileges of a person when the department receives notice from a court . . . that the person has failed to respond to a notice of traffic infraction, failed to appear at a requested hearing, violated a written promise to appear in court, or has failed to comply with the terms of a notice of traffic infraction or citation, other than for a standing, stopping, or parking violation. A suspension under this section takes effect thirty days after the date the department mails notice of the suspension, and remains in effect until the department has received a certificate from the court showing that the case has been adjudicated.

Additionally RCW 46.20.324(1) provides:

            A person shall not be entitled to a driver improvement interview or formal hearing as hereinafter provided:

            (1) When the action by the department is made mandatory by the provisions of this chapter or other law.

      As a threshold matter we must first determine whether Moore and Wilson present a facial or an as-applied challenge to the constitutionality of RCW 46.20.289 and .324(1).  An as-applied challenge to the constitutional validity of a statute is characterized by a party's allegation that application of the statute in the specific context of the party's actions or intended actions is unconstitutional.  Wash. State Republican Party v. Wash. State Pub. Disclosure Comm'n, 141 Wn.2d 245, 282 n.14, 4 P.3d 808 (2000).  Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated.  Id.  In contrast, a successful facial challenge is one where no set of circumstances exists in which the statute, as currently written, can be constitutionally applied.  Id. (citing In re Det. of Turay, 139 Wn.2d 379, 417 n.27, 986 P.2d 790 (1999)).  The remedy for holding a statute facially unconstitutional is to render the statute totally inoperative.  Turay, 139 Wn.2d at 417 n.27.

      Here Moore and Wilson contend that mandatory suspension of a driver's license, pursuant to RCW 46.20.289, without granting an administrative hearing violates due process.  They argue due process requires DOL provide the opportunity for an administrative hearing to resolve potential ministerial errors in the record, such as misidentification, miscalculation of the fine, or errors in the conviction form.  They also do not challenge the factual basis for their suspensions.  The essence of their argument is that RCW 46.20.289 violates due process because it fails to afford any driver facing a suspension of his or her license under that statute an opportunity for an administrative hearing with DOL prior to or after such suspension.  Accordingly, Moore and Wilson challenge the constitutionality of RCW 46.20.289, and by extension, .324(1).

      It is well settled that driver's licenses may not be suspended or revoked ''without that procedural due process required by the Fourteenth Amendment.''  Dixon v. Love, 431 U.S. 105, 112, 97 S. Ct. 1723, 52 L. Ed. 2d 172 (1977) (quoting Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)); City of Redmond v. Arroyo-Murillo, 149 Wn.2d 607, 612, 70 P.3d 947 (2003).  An important corollary to this rule is that a driver cannot be convicted of driving while his or her license is suspended or revoked if the suspension or revocation violates due process.  State v. Dolson, 138 Wn.2d 773, 783, 982 P.2d 100 (1999).  Though the procedures may vary according to the interest at stake, '{t}he fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.''  Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965)).

      To determine whether existing procedures are adequate to protect the interest at stake, a court must consider the following three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards ; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.  Mathews, 424 U.S. at 335, cited in Tellevik v. Real Property, 120 Wn.2d 68, 78, 838 P.2d 111 (1992).

      The first Mathews factor requires identification of the nature and weight of the private interest affected by the official action challenged.  The private interest in this case is the driver's interest in the continued use and possession of a driver's license.  Depriving a person of the use of his or her vehicle can significantly impact that person's ability to earn a living.  See Bell, 402 U.S. at 539.  Moreover the State 'will not be able to make a driver whole for any personal inconvenience and economic hardship suffered by reason of any delay in redressing an erroneous suspension through postsuspension review procedures.'  Mackey v. Montrym, 443 U.S. 1, 11, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979).  As such, the United States Supreme Court has made clear that a driver's interest in his or her driving privileges 'is a substantial one.'  Id.; Dolson, 138 Wn.2d at 776-77 (recognizing '{a} driver's license represents an important property interest').

      Additionally '{t}he duration of any potentially wrongful deprivation of a property interest is an important factor in assessing the impact of official action on the private interest involved.'  Mackey, 443 U.S. at 12.  Under RCW 46.20.289 a person whose license has been erroneously ordered suspended receives notice that his or her license will be suspended 30 days from the date of the notice.  He or she is not, however, offered any procedure to contest the suspension other than being instructed by the notice to resolve the matter with the court.  The public is left to its own devices to secure a timely hearing from a court to reverse the error before the suspension takes effect.  The statute, however, provides no guaranty such a hearing will take place promptly.  See RCW 46.20.289.  Once a suspension takes effect, it remains in effect until the driver can resolve the matter with the court.  Id.  Thus the duration of an erroneous suspension under RCW 46.20.289 is dependent on the time it takes to get a court to reverse the error.

      The second Mathews factor is the risk of erroneous deprivation of the interest at stake through the procedures used and the probable value, if any, of additional or substitute safeguards.  Warner v. Trombetta, 348 F. Supp. 1068 (M.D. Pa.1972), aff'd, 410 U.S. 919, 93 S. Ct. 1392, 35 L. Ed. 2d 583 (1973), cited by both parties, is directly on point.  There the plaintiff pleaded guilty to hit and run.  Id. at 1070.  Pursuant to a Pennsylvania statute that required the department of transportation to suspend a driver's license upon proof the driver had been convicted of hit and run driving, the plaintiff's license was revoked for one year.  Id.  After the one-year period expired the Pennsylvania Department of Transportation refused to reinstate his license because he could not show he was financially capable of paying for car insurance.  Id.

      The plaintiff sought to invalidate the statute under which his license had been revoked because it did not require the agency to offer an administrative hearing.  Id. at 1069.  The Pennsylvania Department of Transportation argued procedural due process does not necessitate an administrative hearing prior to suspension where suspension is mandated regardless of fault.  Id. at 1071.  The court rejected this argument, noting that even if the underlying conviction itself cannot be contested, there still remained the possibility of error, including misidentification of the infractor, miscalculation of the fine by the court, and errors on the report of conviction form.  Id.  It concluded:

            The fatal defect in the statute at bar is that there is no provision made for any type of administrative hearing with notice and an opportunity to be heard before the revocation action becomes effective. Hence, the possibility exists that error in a conviction record could result in the revocation of the license of an innocent motorist. Under these circumstances, we conclude that the essentials of due process require the opportunity for some sort of meaningful administrative hearing prior to the revocation of an operator's license.

Id. (emphasis added).  However, Warner limited the scope of the administrative hearing to ministerial matters; the department of transportation was not required to provide a party an additional opportunity to dispute guilt.  Id.

      Wilson and Moore argue RCW 46.20.289, like the statute invalidated in Warner, subjects drivers to unreasonable risks of error.  In their respective motions to dismiss they attached as exhibits documents pertaining to nonparties to illustrate the difficulties facing drivers when there is no opportunity for an administrative hearing.  These exhibits provide telling examples of the significant risk of error under RCW 46.20.289.

      The record indicates DOL erroneously suspended the driver's license of one person for eight months after it was misinformed by the court that he had been convicted of driving under the influence.  The record also indicates another person had his license erroneously suspended after having been falsely identified by the court as the recipient of an unpaid speeding ticket.  Despite his best efforts, the wrongly suspended driver could not get a hearing from the court to correct the matter until over a month after his license had been suspended.

      What is more, unlike chapter 46.20 RCW, the statute invalidated in Warner provided a postdeprivation right to appeal from suspension.  See 75 Pa. Stat. Ann. sec. 620 ('Any person whose operator's license or learner's permit has been suspended, or who has been deprived of the privilege of applying for an operator's license or learner's permit under the provisions of this act, shall have the right to file a petition, within thirty (30) days thereafter, for a hearing in the matter in the court of common pleas of the county in which the operator or permittee resides . . . .'), repealed by Act 1977, June 17, P.L. 162 (July 1, 1977).  Parties could obtain a stay of suspension until the appeal had been heard.  See, e.g., Commonwealth v. Scavo, 206 Pa. Super. 544, 214 A.2d 309 (1965) (upon notice of appeal, driver obtained an order of supersedeas to stay suspension of his license pending outcome of appeal); see also In re Turney, 44 Pa. Commw. 333, 403 A.2d 1350, 1351 (1979) (noting the driver's notice of suspension provided the following guaranty: ''You have the right of Appeal to the Court of Common Pleas of the County wherein you reside within thirty (30) days of receipt of this notice.  Notice to this Department of timely Appeal will stay the action herein set forth pending final outcome of the Appeal.'').  RCW 46.20.289 provides no such appeal process and even if a court schedules a hearing to correct an alleged error, it is unclear whether it has the authority to stay the suspension pending the outcome of the hearing.  Thus, the challenged provisions of the statute in this case offer far fewer procedural guaranties of due process than the statute invalidated in Warner.

      With regard to risk of error, DOL notes it issued 386,114 notices of suspension in 1999, 401,471 in 2000, and 391,265 in 2001, based on information it received from the courts.  Although the record does not include statistical evidence of the rate of error, the record does provide the illustrative examples of errors discussed above.  Those examples, taken in conjunction with the sheer volume of information DOL receives from the courts, weigh heavily in favor of Moore and Wilson's argument that the risk of error under the current legislative scheme is substantial.

 

            Attached as an Exhibit to the DSHS Trial Brief, Sub No. 27, are two Reports to the Legislature of the Washington State License Suspension Program, CP 82-110.  First of all, these reports tout the "success" of the program in its coercion of payments.  This is like touting Molotov Pauling's tactics had he been successful in obtaining payment from his girlfriend.  One reason societies generally prohibit extortion and peonage is that while such debt collection tactics may often be successful, they destroy good will.  When citizens lack good will, society suffers.

            On page 10 of Exhibit A, the Report for October 2001 through September 2002, CP 93, is a table listing licenses suspended and reinstated.  From October 1998 through September 2002 31,791 licenses were suspended.  Of these licenses, 16,901 were reinstated.  That leaves 14,890 licenses that are PERMANENTLY SUSPENDED.

            This adds to the volume of information received by DOL from the courts.  The table on page 11, CP 94, shows that most licenses suspended are driver's licenses.  However, the Department of Health suspended 112 professional licenses for child support and only reinstated 71.  That leaves 41 fewer trained health care workers, each of whom has had an expensive education.  This damages the quality and availability of health care.

            We see more large numbers on the table on page 12, CP 95.  Moore went on to find:

      Nevertheless the City maintains there was no due process violation because Moore and Wilson, like all drivers who have their license suspended under RCW 46.20.289, had an opportunity to be heard at their respective court hearings on the underlying violation.  But as Moore and Wilson argued below, that court hearing does not address ministerial errors that might occur when DOL processes information obtained from the courts pertaining to license suspensions and revocations, e.g., misidentification, payments credited to the wrong account, the failure of the court to provide updated information when fines are paid.

 

Misidentification and payments credited to the wrong account are possible at the Division of Child Support (DCS).  Several hundred thousand support orders are in effect at any given time in the State of Washington.  Chances are, more than one David E Johnson is ordered to pay child support, more than one David E. Johnson is receiving child support, while simultaneously more than one David E. Johnson is neither.  At least one David E. Johnson is a support enforcement officer at the DCS in Seattle.

            More than 20 David E. Johnsons have granted deeds of trust recorded in King County and their signatures all look different.  This is a matter of public record that this Court may take judicial notice of under ER 201.  Moore continued:

       The City argues the types of errors raised are to be anticipated in any clerical action, and procedural due process does not require procedures so comprehensive as to preclude any possibility of error.''  Br. of Pet'r at 13 (quoting Mackey, 443 U.S. at 13).  The City cites Mackey for the proposition that the mere possibility of error does not constitute a violation of due process.  However, Mackey is inapposite.

       Mackey upheld a Massachusetts statute mandating suspension of a driver's license for refusing to take a breath-analysis test upon arrest for operating a motor vehicle while under the influence of intoxicating liquor. Mackey, 443 U.S. at 19.  But there the statute entitled the driver to an immediate postsuspension hearing before the Registrar of Motor Vehicles to correct clerical errors and to seek prompt resolution of any factual disputes as to the accuracy of the officer's report.  Id. at 7 n.5.  Unlike the statute in Mackey, chapter 46.20 RCW does not authorize DOL to provide any administrative hearings to persons subject to a mandatory suspension or revocation of their license.

       The City further suggests the current statutory scheme provides persons subject to an allegedly erroneous license revocation or suspension an opportunity to be heard because they may request a record review or informal hearing before DOL.  However it acknowledges DOL cannot alter its order of suspension or revocation until it receives updated information from the district court.

 

RCW 74.20A.320(2)(f) provides that the DOL shall not restore the license until provided with a release from the DSHS.  Moore continues:

Moreover, an adverse decision in an informal hearing is not an appealable action.  Cf. RCW 34.05.570.

      The City also argues such persons may apply to the court for relief from a judgment due to a clerical error under CrRLJ 7.8, file a writ of review, a writ of mandamus, or seek an injunction against DOL.  Although these methods may bring relief from clerical errors and misidentification, they are costly, time consuming, and burdensome, and should be discounted.  See Fuller v. Oregon, 417 U.S. 40, 54, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974) (noting imposition of a cost upon the exercise of the right to a hearing is impermissible if it has the primary purpose of penalizing those who choose to exercise their constitutional rights).  Moreover, the notices of suspension do not advise the drivers of the alternative procedures or remedies the City suggests.

      Finally, the third Mathews factor requires consideration of the State's interest in the fiscal and administrative burden that additional or substitute procedural requirements would entail.  Nguyen v. Dep't of Health Med. Quality Assurance Comm'n, 144 Wn.2d 516, 532, 29 P.3d 689 (2001).

      Rather the City cites Stauffer v. Weedlun, 188 Neb. 105, 195 N.W.2d 218 (1972), for the proposition that a State's interest may be sufficient to overcome the risk of wrongly terminating a driver's license.

      In Stauffer the Nebraska Supreme Court upheld the constitutionality of a statute which provided for mandatory revocation of a driver's license upon accumulation of 12 or more traffic violation points, without providing prior notice and a hearing.  195 N.W.2d at 221.  The court upheld the statute reasoning the risk of erroneous deprivation was minimal because the statute provided for an immediate appeal in district court and authorized the judge to stay revocation pending the outcome of the appeal.  Id. At 223.  The court found, on the other hand, that the State had a 'compelling public interest in removing from the highways those drivers whose records demonstrate unsafe driving habits.'  Id. at 224.  The minimal risk of error combined with the compelling State interest in promoting public safety, the court reasoned, outweighed the need for notice and a hearing prior to the revocation.  Id.

      The public safety interest present in Stauffer is not at issue here.  The State's interest in suspending an individual's driver's license for failing to appear, pay, or comply with a notice of traffic infraction is in the efficient administration of traffic regulations and in ensuring offending drivers appear in court, pay applicable fines, and comply with court orders.  Although undoubtedly important, this interest does not rise to the level of the State's compelling interest in keeping unsafe drivers off the roadways.  Simply put, failing to resolve a notice of traffic infraction does not pose the same threat to public safety as habitually unsafe drivers do.

 

            Mr. Knight has been making this exact point in every forum, state and federal, since he was first charged with Driving While License Suspended (DWLS) based on the child support suspension of September 2001.  Payment or nonpayment of child support is completely irrelevant to whether a driver safely operates a motor vehicle.  RCW 74.20A.320 is not rationally related to the public safety interest.  Where the driver is unable to comply with the support order, the child support interest is not served.  Please see Zablocki v. Redhail, (1978) 434 U.S. 374, 54 L. Ed. 2d. 618, 98 S. Ct. 673, permanent denial of the right to marry to noncustodial parents unable to comply with their support orders deprived a fundamental right without serving the claimed state interest.  Please see also pages 7-10 herein above; Brief of Petitioner, Sub No. 25, pages 7-14, CP 42-49; and Reply Brief of Petitioner, Sub No. 30, pages 9-11, CP 156-158.

            Per the statistics provided by the DSHS itself, at CP 93-95, about 40% of all licenses suspended for child support are not reinstated.  While a few of these persons are obstinate, a normal human reaction to coercion and extortion, most are likely unable to comply with their support orders and the license suspensions have not improved their ability to comply.

            Moore concludes:

      In its amicus brief DOL claims it will incur significant fiscal and administrative burdens if it is required to provide an administrative hearing for drivers who receive suspension notices under RCW 46.20.289.

      The potential cost to the State is not proved on this record, although DOL alleges that providing an opportunity for such a hearing would increase its workload and mandate the hiring of additional staff to process the hearings.  While this may be true, the burden on the State is worthy of consideration but in itself not controlling.  We are not persuaded that the burden of providing hearings to those individuals whose licenses have been ordered suspended under RCW 46.20.289 outweighs the risk of error and the benefit of providing hearings with DOL to correct potential ministerial errors.

      Therefore we hold RCW 46.20.289 and .324(1) are contrary to the guaranty of due process because they do not provide adequate procedural safeguards to ensure against the erroneous deprivation of a driver's interest in the continued use and possession of his or her driver's license.

            Mr. Knight's license was suspended pursuant to RCW 46.20.324(1) upon certification by the DSHS of noncompliance with a support order.  This certification was issued on September 11, 2001.  The DOL suspended the license on September 16, 2001, after 5 days.  Because RCW 74.20A.320(13) provides that the hearing before the DSHS is the sole administrative remedy, the DOL did not, by statute, have the authority to conduct any hearing upon receiving certification from the DSHS.

            As a result of this suspension, Mr. Knight has endured five criminal prosecutions for DWLS.[3]  Mr. Knight defeated these criminal prosecutions primarily because Judge Michael Trickey found that the prosecutor must prove service required by RCW 74.20A.320(1) and reversed two DWLS convictions.  City of Mercer Island v. Knight, King County Superior Court No. No. 02-1-01137-0 SEA.  Had Mr. Knight been afforded a hearing before the DOL, he could have pleaded lack of service required by RCW 74.20A.320(1) before the suspension of his license.  Five criminal cases and two federal civil cases could have been avoided.

            A challenge to the validity of the statutory scheme could have been litigated much earlier in a superior court appeal of such a DOL hearing.

            While service as required by RCW 74.20A.320(1) was accomplished on March 11, 2003 commencing this present course of action, Mr. Knight’s license has not been restored.

            RCW 46.20.324(1) has already been found facially unconstitutional.  RCW 74.20A.320(13) is facially unconstitutional for the same reasons Moore found RCW 46.20.289 facially unconstitutional.

            As Moore represents a substantial change in the law and a change in the legal climate, it creates an exception to the preclusion doctrines of res judicata and collateral estoppel on the grounds that denying only those with prior histories of litigation of the benefit of the new rule available to all other persons works an injustice.  Commissioner of Internal Revenue v. Sunnen, (1948) 333 U.S. 591, 599-600, 92 L. Ed. 898, 68 S. Ct. 715 and Deja Vu, Inc. v City of Federal Way, (1999) 96 Wash. App. 255, 258, 979 P. 2d. 464 citing Garcia v. Wilson, (1991) 63 Wash. App. 516, 518, 820 P. 2d. 964.

V.        RESERVATION OF THE RIGHT TO SEEK DAMAGES

            Mr. Knight reserves the right to seek monetary damages for the wrongful dismissal of his license in violation of his right to due process of law and other constitutional rights in a separate civil action.

VI.       CONCLUSION

            For the reasons stated herein, the decision by the superior court should be reversed and the State ordered to restore Mr. Knight’s driver’s license without requirement of payment of a $20.00 restoration fee.  Mr. Knight should be allowed to renew his license on the same basis as he would have been allowed on or before the expiration date of June 30, 2003, i.e., without any requirement for a driving test.

Dated this 21st day of June, 2004

                                                            Respectfully submitted,

 

                                                ____________________________________

                                                            Roger W. Knight, pro se