STATE OF WASHINGTON
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES
In re ROGER W. KNIGHT, )
) No.
586476
)
) REQUEST FOR ADJUDICATIVE
) HEARING,
RCW 74.20A.320
) REQUEST TO RESTORE DRIVER’S
) LICENSE OR NOTICE THAT IT HAS
) BEEN RESTORED
____________________________________)
ROGER
W. KNIGHT, hereby requests an adjudicative hearing before the Office of
Administrative Hearings to object to and challenge the application and the
validity of the WorkFirst Act and to request restoration of the driver license
or notice that it has been restored.
JURISDICTION,
VENUE, AND PARTIES
1. The Department of Social and Health Services
Division of Child Support and the Office of Administrative Hearings, have, if
the WorkFirst Act, Laws of Washington 1997 chapter 58 is valid, jurisdiction to
hear in an administrative hearing as contemplated by
RCW 74.20A.320 upon
service that meets the requirements of
RCW 74.20A.320(1).
2. Mr. Knight waives challenge to validity of
service by the King County Sheriff’s Department on March 11, 2003. All previous attempts, if any, to serve Mr.
Knight any Notice of Noncompliance and Intent to Suspend Licenses did not meet
the requirements of
RCW 74.20A.320(1).
This Request for Adjudicative Hearing is submitted within 20 days of the
service effected on March 11, 2003 and is therefore timely pursuant to
RCW
74.20A.320(2)(c).
3. Plaintiff ROGER W. KNIGHT is a resident of
King County, Washington. His mailing
address for the purpose of the administrative hearing is:
Roger W. Knight
c/o
ActionLaw.net
501 South Jackson
Street, No. B101
Seattle, Washington
98104
His daytime telephone number is 206-624-3685. Facsimile number 206-343-0929.
4. There are no restraining orders currently
restraining Mr. Knight and there are no such orders currently restraining any
person from contact with Mr. Knight or imposing any exclusion zone based on
distance from Mr. Knight, his workplace, or home.
KNIGHT IS
UNABLE TO COMPLY WITH THE SUPPORT ORDER
5. Mr. Knight is under an order to pay child
support entered in In re Marriage of
Knight, King County Superior Court No. 90-3-04471-1. The decree was entered on July 11, 1991,
setting the payment rate at $851.76 per month.
This order has not been modified since.
6. On May 29, 1995, Mr. Knight was laid off from
his employment by The Boeing Company.
After that he stopped making regular payments for child support. In spite of almost six years of paycheck
garnishment for child support, for the order entered in In re Marriage of Knight, and for the administrative order which
was superseded by Marriage of Knight,
Mr. Knight was still several thousand dollars behind in compliance with the
support order at the time of layoff. Mr.
Knight has not had income sufficient since to pay $851.76 per month and thus
has not had income sufficient to pay any amount toward any arrearage. At present, the arrearage is approximately
$66,200. Please see the Payment History
and Declaration of Roger W. Knight (Knight Declaration) submitted with this
Request for Adjudicative Proceeding.
7. Mr. Knight cannot enter into any repayment
agreement as contemplated by
RCW 74.20A.320(5) without committing fraud. If he does, he “shall
by color or aid of any false or fraudulent representation, pretense, token or
writing induce any creditor to participate in the benefits of such assignments”
which is defined as a gross misdemeanor by
RCW 9.45.100. If he knows he cannot pay a sum each month
sufficient to cover the repayment agreement, and he induces the creditor to
participate in the benefit of such assignment, he would be making a false or
fraudulent representation.
8. Mr. Knight is at present, unable to find
employment that generates income sufficient to cover any such repayment
agreement, Knight Declaration, therefore, he cannot enter into such agreement
without committing the crime defined by
RCW 9.45.100.
IN THE CASE OF SUPPORT
ORDERS THAT PRE-EXIST THE WORKFIRST ACT, AND HAVE NOT BEEN MODIFIED SINCE, THE
WORKFIRST ACT DOES NOT APPLY BECAUSE THE LEGISLATURE ELECTED NOT TO INCLUDE A
STATEMENT OF RETROACTIVE APPLICATION THAT MEETS THE
SMITH AND
CRUZ TEST. THEREFORE, THE DSHS LACKS STATUTORY
AUTHORIZATION TO CERTIFY NONCOMPLIANCE WITH SUCH PRE-EXISTING UNMODIFIED
SUPPORT ORDERS. AS AN ISSUE OF STATUTORY
CONSTRUCTION, THE DSHS CAN ADJUDICATE WHETHER THE LEGISLATURE AUTHORIZED IT TO
ACT AT ALL. HAVING ALREADY MADE THE
DETERMINATION THAT IT CAN ACT IN INITIATING THE PROCESS FOR LICENSE SUSPENSION
UNDER
RCW 74.20A.320, THE AGENCY CANNOT CLAIM TO LACK JURISDICTION TO REVERSE
SUCH DETERMINATION UPON PRESENTATION OF ARGUMENT AS TO THE LAW BY THE LICENSEE
9.
State v. Cruz, (1999) 139
Wash. 2d. 186, 190-191 found:
The presumption against retroactive application of a
statute “is an essential thread in the mantle of protection that the law
affords the individual citizen. That
presumption ‘is deeply rooted in our jurisprudence, and embodies a legal
doctrine centuries older than our Republic.’”
Lynce v. Mathis, 519 U.S. 433,
439, 117 S. Ct. 891, 895, 137 L. Ed. 2d 63 (1997) (quoting
Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct. 1483,
1497, 128 L. Ed. 2d 229 (1994)). See also
In re Personal Restraint of Shepard,
127 Wn. 2d 185, 193, 898 P. 2d 828 (1995) (court presumes newly enacted
statutes operate prospectively). The
constitutional prohibition against ex post facto legislation is but a further
manifestation of the repugnance with such retroactive legislation is viewed. See
Landgraf, 511 U.S. at 266.
Nonetheless, an amendment to a statute, such as the 1990 change to the
SRA, will be applied retroactively if: (1) the legislature so intended; (2) it
is “curative”; or (3) it is remedial, provided, however, such retroactive
application does not run afoul of any constitutional prohibition.
In re
F.D. Processing, Inc., 119 Wn. 2d 452, 460, 832 P. 2d 1303 (1992).
Reaffirmed
and quoted by
State v. Smith, (2001)
144 Wash. 2d. 665, 671-672, 673.
Cruz went on to find that Laws 1990
chapter 3 §1406(2) contained a specific legislative command that the statute
applies prospectively:
(2) Sections 201 through 203, 301 through 305, 701
through 706, and 901 through 904 shall
take effect July 1, 1990, and shall apply to crimes committed after July 1,
1990.
Cruz at 139 Wash. 2d. 192. “Curative” changes do not include substantive
changes.
Id. A “remedial” change
relates to practice, procedures, or remedies, and does not affect a substantive
or vested right.
Id.
Smith
at 144 Wash. 2d. 672 found:
In 2000, the Legislature responded
to our decision in
Cruz by enacting
RCW 9.94A.345.
Laws of 2000, ch. 26, §2.
This statute states: “Any sentence imposed under this chapter shall be
determined in accordance with the law in effect when the current offense was
committed.”
RCW 9.94A.345. On its face,
this language does not implicate
Cruz. However, the Legislature also included the
following statement in the statutory note:
“RCW
9.94A.345 is intended to cure any ambiguity that might have led to the
Washington supreme court’s decision in
State
v. Cruz, Cause No. 67147-8 (October 7, 1999). A decision as to whether a prior conviction
shall be included in an individual’s offender score should be determined by the
law in effect on the day the current offense was committed.
RCW 9.94A.345 is also intended to clarify the
applicability of statutes creating new sentencing alternatives or modifying the
availability of existing alternatives.
RCW
9.94A.345
Intent -- 2000 c 26. The State asks us to find in this language a
clear legislative intent that the 1997 amendment applies retroactively. We cannot.
Although this statement indicates a legislative discontent with our
holding in
Cruz, there is nothing
demonstrating an intent for the retroactive application of the 1997 amendment.
Smith
at 144 Wash. 2d. 673-674 found:
The SRA contains no language showing
the Legislature intended the 1997 amendment to apply retroactively. Legislative intent for retroactivity must be
clearly found within the statute’s language.
Landgraf, 511 U.S. at 268-69;
State v. Douty, 92 Wn. 2d 930, 935, 603
P. 2d 373 (1979). The 1997 amendment
changed the definition of “criminal history” to read as follows:
“Criminal
history means the list of a defendant’s prior convictions and juvenile
adjudications, whether in this state, in federal court, or elsewhere. The history shall include, where known, for
each conviction (a) whether the defendant has been placed on probation and the
length of terms thereof; and (b) whether the defendant has been incarcerated
and the length of incarceration.
RCW
9.94A.030(12). This language fails to
establish a legislative intent that the 1997 amendment applies retroactively.
Applying the
Smith and
Cruz tests to
the WorkFirst Act provisions relevant to this case,
RCW 74.20A.320 et seq.,
leads to the conclusion that the WorkFirst Act does not apply retroactively to
noncustodial parents who were and are still more than 180 days out of
compliance with support orders entered before January 1, 1997. Many such parents, including Mr. Knight, were
180 days out of compliance with their support orders on July 1, 1997. See Payment History. Mr. Knight has not yet made enough payments
(a little over $13,500 since June 1995) to bring his compliance with the
support order up to within 180 days of July 1, 1997. Therefore, any application of
RCW 74.20A.320
et seq. to Mr. Knight is a retroactive application of the statute.
RCW 74.20A.320 et seq. are not
“curative” or “remedial”. These far
sweeping provisions provide, for the first time in the history of the State of
Washington, the automatic and complete suspension and nonrenewal of all
licenses issued by the State upon certification that the noncustodial parent is
out of compliance with a support order.
The administrative hearing provided by
RCW 74.20A.320 is limited to only
considering 1) existence of a support order, 2) whether the person notified of
pending suspension or revocation and nonrenewal is the parent named in the
support order, and 3) whether the person is more than 180 days out of
compliance with the support order. There
is no consideration of whether the noncustodial parent is unable to comply with
the support order. Therefore, if the
noncustodial parent is unable to comply with the support order, the TOTAL and COMPREHENSIVE license suspension is PERMANENT. It can affect
licenses from Accountants to Water Well Contractors.
Because the WorkFirst Act provisions
in question are clearly not “curative” or “remedial”, and definitely affect
substantive rights, then there must be a clear statement of legislative intent
for retroactive application within the statute’s language, or the
DSHS and the
DOL lack the statutory authority to suspend or revoke Mr. Knight’s licenses, or
to prohibit renewal, or to prohibit him from obtaining any other license for
the first time.
The legislative intent of
RCW
74.20A.320 et seq. is set forth in Laws 1997 chapter 58 §801:
It is the intent of the legislature
to provide a strong incentive for persons owing child support to make timely
payments, and to cooperate with the department of social and health services to
establish an appropriate schedule for the payment of any arrears. To further ensure that child support
obligations are met, sections 801 through 890 of this act establish a program
by which certain licenses may be suspended or not renewed if a person is one
hundred eighty days or more in arrears on child support payments.
In the implementation and management
of this program, it is the legislature’s intent that the objective of the
department of social and health services be to obtain payment in full of
arrears, or where that is not possible, to enter into agreements with delinquent
obligors to make timely support payments towards the arrears. The legislature intends that if the obligor
refuses to cooperate in establishing a fair and reasonable payment schedule for
arrears or refuses to make timely support payments, the department shall
proceed with certification to a licensing entity or the department of licensing
that the person is not in compliance with a child support order.
There
is no clear statement here of intent of retroactive application of this statute
to pre-existing support orders and to pre-existing support arrearages. While the statutory and legislative language
does not specifically exclude pre 1997 support orders and arrearages, it does
not meet the
Smith and
Cruz test for specific legislative
intent for retroactivity to include such orders and arrearages.
This
agency, having necessarily made the determination that it can act under the
WorkFirst Act to commence these proceedings at all, cannot claim lack of
jurisdiction to reverse this finding upon presentation of argument as to the
law. The
Smith and
Cruz test is
not a test of the VALIDITY of the
statute, it is a test of the APPLICATION
of the statute. It sets forth a rule of
statutory construction, well within an administrative agency’s determination.
COERCION OF
EMPLOYMENT IS CONTRARY TO AMERICAN LAW
10. Any effort by legal process, including
license suspension, to coerce employment in liquidation of a debt or
obligation, whether such employment is available or not, is declared null and
void by 42 U.S.C. §1994 and is the crime defined by
18 U.S.C. §1581. If the intent is to coerce Mr. Knight into
entering into a repayment agreement as contemplated by
RCW 74.20A.320(5), where
compliance, if possible, requires employment, these proceedings are declared
null and void by 42 U.S.C. §1994. Mr.
Knight hereby asserts the same right to refuse to comply with such coercion
that a bank teller has to refuse and resist a robber’s demand.
RCW 9A.16.050 provides that homicide is
justifiable in such circumstances.
However it is not mandatory. A
person can choose not to kill even under circumstances where he has the legal
right to kill. Mr. Knight’s choice is
nonviolent and nonlethal resistance by presentation of arguments as to the
law. The free men on La Amistad were found to have the right
to resist coercion and kidnapping into slavery after former President John
Quincy Adams presented arguments as to the law.
La Amistad, (1841) 40 U.S.
518, 10 L. Ed. 826.
BY PROHIBITING CONSIDERATION
OF INABILITY TO COMPLY WITH A SUPPORT ORDER,
RCW 74.20A.320(3) DEPRIVES LIBERTY
AND PROPERTY WITHOUT DUE PROCESS OF LAW AND INVIDIOUSLY DISCRIMINATES IN
VIOLATION OF THE RIGHT TO EQUAL PROTECTION OF THE LAW
11.
Bell v.
Burson, (1971) 402 U.S. 535, 536, 29 L. Ed. 2d. 90, 91 S. Ct. 1586 found
that Georgia’s statutory scheme excluded any consideration of whether an
uninsured motorist involved in an accident is likely to be found liable for the
accident in the administrative hearing before the suspension of the
license. This was found to offend the
Fourteenth Amendment Due Process Clause because under Georgia’s statutes at the
time, an adjudication of non-liability restored the license.
Bell
at 402 U.S. 542-543. In the case of a
licensee unable to comply with a support order,
RCW 74.20A.320(3) deprives the
licensee by legislative fiat without serving the state’s interest in enforcing
the support order, and without any rational relationship with the activity
licensed. Thus, it violates the
Fourteenth Amendment on both Due Process and Equal Protection grounds, and it
violates
Article I Sections 3 and 12 of the
Washington Constitution.
IN THE CASE OF PARENTS
UNABLE TO COMPLY WITH SUPPORT ORDERS,
RCW 74.20A.320 IS A BILL OF ATTAINDER
12. By providing for the automatic and permanent
suspension of all licenses of noncustodial parents unable to comply with their
support orders, given that
RCW 26.09.170(1) prohibits any modification or
vacation of a support order and forgiveness of any arrearage, no matter what
the circumstances,
RCW 74.20A.320 imposes punishment by legislative fiat. It is thus a bill of attainder prohibited by
Article I Section 10 clause 1 of the United States Constitution and prohibited
by
Article I Section 23 of the
Washington Constitution.
IN THE CASE OF PARENTS
UNABLE TO COMPLY WITH SUPPORT ORDERS THAT PRE-EXIST THE WORKFIRST ACT AND WHERE
THE ARREARAGES BUILT UP BEFORE JULY 1, 1997,
RCW 74.20A.320 IS AN EX POST FACTO
LAW
13. By providing for the automatic and permanent
suspension of all licenses of noncustodial parents unable to comply with their
support orders, where such support orders and the arrearages pre-existed the
WorkFirst Act, given that
RCW 26.09.170(1) prohibits any modification or
vacation of a support order and forgiveness of any arrearage, no matter what
the circumstances,
RCW 74.20A.320 imposes punishment by legislative fiat for a
sin of omission that has been considered a crime any many jurisdictions,
including federal under 18 U.S.C. §228.
License suspension is a traditional punishment for such crimes as drunk
driving for driver’s licenses, abortion for medical licenses, and any felony
for licenses to practice law. It is thus
a bill of attainder prohibited by
Article I Section 10 clause 1 of the United
States Constitution and prohibited by
Article I Section 23 of the
Washington
Constitution.
LICENSE SUSPENSION FOR CHILD
SUPPORT OFFENDS DUE PROCESS IN THAT IT IS NOT RATIONALLY RELATED TO ANY
LEGITIMATE INTEREST OF GOVERNMENT
14. If a parent is unable to comply with a
support order, a permanent suspension of his license will not improve his
ability to comply. If the parent has no
recent traffic offenses or accidents on his record whatsoever, Knight
Declaration, the suspension does not serve the public interest in the safety of
the roads and highways.
Schware v. Board of Bar Examiners,
(1957) 353 U.S. 232, 239, 1 L. Ed. 2d. 796, 77 S. Ct. 752 found:
A state can require high standards for qualification,
such as good moral character or proficiency in its law, before it admits an
applicant to the bar, but any qualification must be have a rational connection
with the applicant’s fitness or capacity to practice law.
. . .
Obviously an applicant could not be excluded merely
because he was a Republican or a Negro or a member of a particular church.
City of Seattle v. Bittner, (1973) 81
Wash. 2d. 747, 754, 654, 505 P. 2d. 126 interpreted this to mean:
But even where the character
of an applicant is subject to evaluation by the licensing officer, the matters
taken into account must be relevant to the activity licensed.
and thereby
invalidated a city ordinance concerning the licensing of motion picture
theaters.
Compliance or noncompliance with a
child support order is irrelevant to whether the parent can safely operate a
motor vehicle, the activity licensed in Mr. Knight’s case. And it is irrelevant to whether he can safely
remove a kidney stone, pilot an aircraft, prescribe drugs, administer drugs,
prepare and sell prescription drugs, drill a water well, sign off on an
electrical or mechanical engineering drawing, hunt Roosevelt elk, carry a
concealed weapon, build a house, or any of the numerous other activities for
which this state requires a license.
WORKFIRST ACT, LAWS 1997
CHAPTER 58, IS VOID AS A MULTI-SUBJECT BILL
Acting
in good faith reliance on
Boot, Mr.
Tim Eyman and his merry band of signature gatherers presented Initiative 695 to
the people and the people passed it by a substantial margin.
As a
result,
Amalgamated Transit Union Local
587 v. State of Washington, (2000) 142 Wash. 2d. 183, 191, 11 P. 3d. 762
modified the essential logic of
Boot
in finding Initiative 695 void as embracing more than one subject in both title
and content, prohibited by
Article II Section 19. Where both
Boot and
Amalgamated Transit
found that the titles in the respective measure considered to be general,
Amalgamated Transit at 142 Wash. 2d. 217
established for the first time, a test for “rational unity” for such a bill to
comply with
Article II Section 19:
However, there is no
rational unity between the subjects of I-695.
. . . 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.
The
VRA and the OACSA were not analyzed under this test in these previous
decisions. When this test is applied to
the WorkFirst Act, the WorkFirst Act embraces more than one subject. The provisions reforming the terms and
conditions for public assistance grants are not necessary to implement license
suspension for noncompliance with child support orders and neither is necessary
to implement programs promoting teenage abstinence and pregnancy
prevention. As both title and content of
the WorkFirst Act thus embrace more than one subject, it is void in its
entirety.
LICENSE
MUST BE RESTORED PENDING OUTCOME OF THIS PROCEEDING
16 The service of the Notice of Noncompliance
and Intent to Suspend Licenses indicates a realization that the previous
attempt to serve and provide Mr. Knight with an opportunity to request
adjudication was not in compliance with the requirements of
RCW 74.20A.320(1).
RCW 74.20A.320(2)(c) requires this agency to
stay certification of noncompliance with the child support order to the
licensing agencies pending outcome of this proceeding. Because this new service and this new Notice
constitutes an implied recognition that the previous attempt to serve was
inadequate, the license suspension that occurred during September 2001 was
without the authority of law. Therefore,
the license should be restored immediately without any requirement of payment
of any re-issue fee and notification of such restoration be sent to Mr. Knight.
CONCLUSION
For
the reasons stated herein, not the least because this agency lacks statutory
authorization to certify noncompliance with a support order that predates the
WorkFirst Act and has not been modified since, this agency should withdraw its
Notice of Noncompliance and Intent to Suspend Licenses. Furthermore, Mr. Knight’s license should be
restored effective immediately.
RESPECTFULLY SUBMITTED, March 12, 2002.
____________________________________
Roger W. Knight, licensee
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 586476 to get to the main page for this case. Or you can use the Antipeonage Act Site Map.