KING COUNTY DISTRICT COURT, BELLEVUE DIVISION

 

CITY OF MERCER ISLAND,                        )

                                                                        )           No. MIC 84199

                                    plaintiff,                        )

                                                                        )           SUPPLEMENT TO

            v.                                                         )           MOTION TO DISMISS COMPLAINT

                                                                        )

ROGER W. KNIGHT,                                    )

                                                                        )

                                    defendant.                    )

____________________________________)

 

            Comes now ROGER W. KNIGHT, defendant, to supplement his motion for dismissal of the Complaint.

PURPOSE OF THIS SUPPLEMENT

            The reason for this supplement is to raise additional issues for why this criminal action should be dismissed.  While Constitutional issues may be raised for the first time on appeal, State v. Walsh, (2000) 143 Wash. 2d. 1, 6-8, 17 P. 3d. 591, it is best that all such issues be raised in the trial court, to provide a complete evidentiary record with respect to such issues in the trial court, and thereby best preserve such issues for appeal or for cross-appeal, as the case may be.  Because Mr. Knight has previously challenged the constitutionality of the child support order and of the WorkFirst Act in civil actions in other courts, it is also important that Mr. Knight clarifies that he is not estopped from raising challenges to the application of the child support order and the WorkFirst Act in this criminal case.

ISSUES RAISED IN THE MOTION TO DISMISS CRIMINAL COMPLAINT ARE NOT COLLATERALLY ESTOPPED BY HAVING BEEN RAISED IN PREVIOUS CIVIL ACTIONS

            State v. Swindell, (1979) 22 Wash. App. 626, 629-630, 590 P. 2d. 1292 affirmed (1980) 93 Wash. 2d. 192, 196, 607 P. 2d. 852 found that where the State is charging a defendant with unlawful possession of a firearm, where the State must prove the predicate conviction which render the subsequent possession of the firearm illegal, the defendant may challenge the constitutionality of the underlying conviction, even though the defendant never appealed the original conviction nor brought any petition for habeas corpus relief or filed a personal restraint petition.  The Supreme Court of Washington, at 93 Wash. 2d. 196 citing State v. Holsworth, (1980) 93 Wash. 2d. 148, 607 P. 2d. 845 found that in a criminal proceeding, whether for unlawful possession of firearm as in Swindell or for habitual criminal as in Holsworth, where prior convictions are a necessary part of the criminal charge, the defendant may challenge the present use of prior convictions on the grounds that the prior convictions were unconstitutional.

            A prior conviction may be unconstitutional on the grounds that the guilty plea was not voluntary, evidence admitted should have been suppressed on Constitutional grounds, the jury was given instructions that were in prejudicial error, the facts presented showed that no rational trier of fact could find guilt beyond reasonable doubt of all necessary elements of the crime charged, the statute criminalized Constitutionally protected behavior, such as free speech, or that the statute was not validly passed in accordance with Constitutionally mandated procedures (example: bill passed by Washington Legislature embracing more than one subject).

            In this present case, Mr. Knight is allegedly driving while license suspended, the suspension being for not complying with a child support order entered in accordance with chapter 26.19 RCW, the Support Schedule Law, and that the Department of Licensing (DOL) is authorized to suspend Mr. Knight’s licenses pursuant to authority granted by the WorkFirst Act, passed in 1997.  Mr. Knight has previously challenged the WorkFirst Act as embracing more than one subject in violation of Article II Section 19 of the Washington Constitution in two civil actions in King County Superior Court.  Mr. Knight has previously challenged the constitutionality of the Support Schedule Law several times, the most recent in a federal court action under 42 U.S.C. §1983 on the grounds of Troxel v. Granville, (2000) 530 U.S. 57, 147 L. Ed. 2d. 49, 120 S. Ct. 2054, 2060-2061: Knight v. Schmitz, W.D. Wash. No. C00-1874R, appealed, unpublished decision, 9th Cir. No. 01-35459, cert. den. 122 S. Ct. ____.  Mr. Knight challenged the 1990 child support order on the grounds that per Troxel, chapter 26.19 RCW is unconstitutional on its face to the extent that it is based upon the Legislative intent not only to provide the minimum level of support necessary to adequately care for the child, but “to provide additional child support commensurate with the parents’ income, resources, and standard of living.” RCW 26.19.001.  However, the federal district court abstained and the 9th Circuit affirmed the abstention not on the basis of Younger v. Harris, (1971) 401 U.S. 37, 46-54, 27 L. Ed. 2d. 669, 91 S. Ct. 746, as such abstention was precluded by RCW 26.09.170(1),[1]  Instead, the federal courts found that they lacked jurisdiction under 42 U.S.C. §1983 to consider what is essentially a Civil Rule 60 motion for relief from an old judgment because of Rooker-Feldman doctrine.  This in spite of Polites v. United States, (1960) 364 U.S. 426, 437, 5 L. Ed. 2d. 173, 81 S. Ct. 202:

            The validity of the District Court’s interpretation of §305 is not before us; we are not here directly reviewing the 1953 decision.  We hold only that the decisions in Maisenburg and Nowak were not effective to alter the law controlling the petitioner’s case.

 The implication is that if Nowak v. United States, (1958) 356 U.S. 660, 2 L. Ed. 2d. 1048, 78 S. Ct. 955 and Maisenberg v. United States, (1958) 356 U.S. 670, 2 L. Ed. 2d. 1056, 78 S. Ct. 960 were effective to alter the law, then relief from the 1953 judgment could be had without directly reviewing the judgment.  Polites made its decision on the merits of whether the subsequent decisions were effective to alter such law and to justify relief from the previous judgment.  In short, a Civil Rule 60 or an FRCP 60 motion for relief from an old judgment is not an exercise of appellate jurisdiction, it is an exercise of original jurisdiction.

            In any event, the federal courts did not rule on whether Troxel defined support orders in excess of what is necessary to allow the custodial parent to adequately care for the child is offensive to the parent’s Fourteenth Amendment right to make decisions as to the custody, care, and control of his children, at least with respect to how much money he spends on such care.  This Court therefore is not precluded from deciding whether the DOL cannot suspend any license for violating a support order that exceeds the Constitutional limits of state interest defined by Troxel.

            Mr. Knight has previously challenged contempt proceedings and the child support order to the extent that such proceedings coerce labor or punish unemployment, on the grounds that child support is a “debt or obligation, or otherwise” within 42 U.S.C. §1994, and therefore such proceedings and the support order are declared null and void by the statute.  Any imposition or enforcement of such an order is a crime within 18 U.S.C. §1581.  However, this Court is not precluded, per Swindell, from deciding whether the City of Mercer Island must prove beyond reasonable doubt that Mr. Knight possesses wealth sufficient to allow him to comply with the support order without employment in order to prove the criminal charge of driving while license suspended. Otherwise, the license suspension and this prosecution are declared null and void by 42 U.S.C. §1994 and constitute the crime defined by 18 U.S.C. §1581.

            The Court of Appeals in Swindell at 22 Wash. App. 629 drew a distinction between criminal proceedings and civil proceedings citing State v. Petersen, (1976) 16 Wash. App. 77, 553 P. 2d. 1110 and State v. Ponce, (1978) 21 Wash. App. 277, 584 P. 2d. 482.  Habitual traffic offender cases brought under chapter 46.65 RCW as it existed at that time were civil proceedings and the civil nature of such proceedings precluded collateral attack on the underlying driving convictions, Swindell at 22 Wash. App. 629 and Ponce.  However, for a criminal proceeding, the Court of Appeals found at 22 Wash. App. 629-630:

We reaffirm our recent holding that an accused in a criminal case may defend against an information charging a prior conviction by collaterally attacking the voluntariness of a prior guilty plea on which a judgment of conviction was secured. 

AS APPLIED TO MR. KNIGHT, THE WORKFIRST ACT IS A BILL OF ATTAINDER AND AN EX POST FACTO LAW 

            Bills of attainder and ex post facto laws are prohibited to Congress by Article I Section 9 clause 3 of the United States Constitution, prohibited to the States by Article I Section 10 clause 1 of the United States Constitution, and prohibited by Article I Section 23 of the Washington Constitution.

            The WorkFirst Act was passed by the Washington Legislature in 1997, Laws 1997 Chapter 58.  The child support order was imposed in its current form upon Mr. Knight in 1990.  In re Marriage of Knight, King County Superior Court No. 90-3-04471-1.  It does not contain any warning that failure to comply would result in any possible license suspension or revocation.  This was because there was no statute providing for such a license suspension or revocation.  This support order has not been modified since.  On May 29, 1995, Mr. Knight was laid off by The Boeing Company, which had been complying with a wage garnishment sent by the Department of Social and Health Services (DSHS).  By the time the WorkFirst Act was passed, Mr. Knight was well over two years out of compliance with the support order, with little hope of ever complying with it.  Third Declaration by Roger W. Knight in Support of Motion to Dismiss Complaint (Knight Declaration III).

            The Legislature knew that there were noncustodial parents who were in exactly the same situation.  Senator Mike Carroll was personally informed by Mr. Knight, who could not understand why a conservative Republican and former Parents Opposed to Punitive Support leader was willing to sell his rights for federal funds.  So was Senator Ray Schow, who represented the district Mr. Knight was then living in.  That Mr. Knight was able to sabotage Senator Schow’s re-election campaign in 1998 by informing a group of angry property taxpayers with whom the Senator was meeting to assure them that he was on their side, that he betrayed the noncustodial parents with whose support he had been previously elected, by selling their rights and licenses for a “bag of federal money” is of insufficient remedy in the face of a bill of attainder (that is part of a multi-subject bill).  Knight Declaration III.

            Bills of attainder and ex post facto laws impose punishment upon an individual person or upon a group of persons by legislative action and without judicial trial.  While bills of attainder are not restricted to criminal punishments, ex post facto laws add a quantum of punishment to previously committed crimes or define as criminal previous acts that were not criminal at the time committed.

            Cummings v. Missouri, (1867) 71 U.S. 277, 18 L. Ed. 356 and Ex parte Garland, (1867) 71 U.S. 333, 18 L. Ed. 366 struck down statutes passed after the end of the Civil War as bills of attainder and as ex post facto laws that required persons to swear an oath that they never fought for or aided the Confederate States of America during the Civil War in order to be allowed to practice certain professions.  In the case of Mr. Cummings it was to practice the profession of clergyman.  Because he performed religious services for all who came to him, whether they be Union or Confederate, he could not swear without committing perjury that he did not aid Confederates.  Incidentally, the Confederate States Constitution also prohibited to both the Richmond federal government in rebellion (Rebel Congress and President Davis), and to the States in rebellion, bills of attainder and ex post facto laws.

            It is clear that depriving a person the right or privilege to perform in certain professions is a punishment for purposes of bill of attainder and ex post facto analysis.  These statutes do not escape the Constitutional prohibition by any assertion that they only punish future conduct, such as Mr. Cummings performing religious services after passage of the Test Oath Law, because the real conduct being punished is the previous aiding the Confederacy, by denying Mr. Cummings the right to perform religious services.

            As found by Justice Story in Prigg v. Pennsylvania, (1842) 41 U.S. (16 Pet.) 539, 612, 10 L. Ed. 1060:

            No Court of Justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them. 

The Bill of Attainder and Ex Post Facto Clauses were in the Constitution at the time Justice Story made this ruling with respect to the Fugitive Slave Clause.  These clauses, along with the Thirteenth and Fourteenth Amendments passed to render the Fugitive Slave Clause surplusage, are entitled to at least the consideration that Justice Story gave to the Fugitive Slave Clause.  To pass a law prohibiting otherwise lawful conduct solely on the basis of past “bad acts” and to find that it is not a bill of attainder or ex post facto law because it only punishes future behavior, such as owning a firearm when disqualified by the previous “bad act” or operating a motor vehicle when disqualified for not paying child support, where such “bad acts” occurred prior to the passage of the statute, is to defeat the obvious ends of the Constitutional provisions.

            Justice Black’s concurring opinions in Aptheker v. Secretary of State, (1964) 378 U.S. 500, 518, 12 L. Ed. 2d. 992, 84 S. Ct. 1659 found that in addition to other Constitutional violations, the statute that prohibited members of the Communist Party of the United States from obtaining passports was a bill of attainder.  It follows that any Act of Congress prohibiting noncustodial parents unable to comply with support orders is also a bill of attainder.  United States v. Brown, (1965) 381 U.S. 437, 14 L. Ed. 2d. 484, 85 S. Ct. 1707, specifically found that the statute prohibiting Communist Party members employment by labor unions was a bill of attainder.

            United States v. Lovett, (1946) 328 U.S. 303, 315, 90 L. Ed. 1252, 66 S. Ct. 1073 found a provision of a wartime appropriations bill that barred compensation to three named individuals for government employment except for jury duty or military service was a bill of attainder.

            It is very clear, that if the Workfirst Act deprives Mr. Knight of any opportunity to practice any profession for which he might at present or at some time in the future qualify, where the practice of such profession requires a license, such as professional engineer (Mr. Knight earned a Bachelor of Science degree in Mechanical Engineering from the University of Washington in 1982 and thereby qualified for employment as an engineer by The Boeing Company from 1984 through 1995, Knight Declaration III page 2), or perhaps the practice of law, then the WorkFirst Act is clearly a bill of attainder and an ex post facto law.

            Furthermore, it flies in the face of the legislative intent of RCW 26.23.080, which prohibits the discriminatory discharge of an employee for child support garnishment, regardless of how far behind the noncustodial parent may be in complying with the order.  Prohibiting a parent from working a given profession is effectively prohibiting him or her from commencing the compliance with the support order as punishment for having not complied with the support order.  Such is not rationally related to the State’s claimed interest in providing for the child and can only be justified as a punitive measure.  As a punitive measure it is subject to the Bill of Attainder and Ex Post Facto Clauses, which prohibit, among other things, the passage of any American version of the Nuremburg laws which deprived Jews of their licenses, including business licenses and licenses to operate motor vehicles.  The more extreme Final Solution to the Jewish Problem was also a bill of attainder passed by Adolf Hitler himself.

            As to operating a motor vehicle, the license in question is closely related to the fundamental right to travel that was at issue in Aptheker, and that it may be required for certain forms of employment, (commercial driver’s licenses and licenses to operate a business also directly impact the ability to earn a living and to comply with a support order).

            The 1994 and 1996 amendments to the unlawful possession of firearms statute, RCW 9.41.040, have been challenged as bills of attainder and as ex post facto laws in that certain persons convicted of certain crimes prior to 1994 could legally own long guns, as they were only prohibited from owning guns with barrels shorter than 12 inches.  Then the Legislature arbitrarily prohibits this group from owning long barreled guns, catching up some individuals who purchased such weapons in the good faith belief that they were obeying the law (and that the Ex Post Facto Clause protected them).  The Supreme Court of Washington split 5-4 in State v. Schmidt, (2001) 143 Wash. 2d. 658, 23 P. 2d. 462.  The Dissent, written by Justice Charles W. Johnson, 143 Wash. 2d. 681-687, strongly disagreed with the majority in that the right to keep and bear arms is a fundamental right, Constitutionally recognized in Article I Section 24 of the Washington Constitution and the Second Amendment.  To enact a prohibition of possession of long firearms to a class of persons who were only prohibited from owning short firearms is to add a quantum of punishment and therefore to pass an ex post facto law.  Loss of a right, liberty or a privilege is a punishment, Schmidt Dissent at 143 Wash. 2d. 683.

            The majority of the Court found that merely adding long firearms to a list of firearms already prohibited to the class was not a punishment for prior crimes, Schmidt at 143 Wash. 2d. 675-676, and Court of Appeals opinion at 100 Wash. App. 297, 307, 984 P. 2d. 453 quoting United States v. Huss, (9th Cir. 1993) 7 F. 3d. 1444, 1448:

the ‘marginal effect of adding long guns to the otherwise exhaustive list of restricted weapons does not amount to punishment for ex post facto purposes.’ 

            However, the WorkFirst Act does not have any such “marginal effect” upon noncustodial parents who previously did not comply with support orders.  The license suspension provisions apply to all licenses issued by the State of Washington by directing the DOL to suspend licenses upon a certification by the DSHS that the noncustodial parent is out of compliance with a support order.  Previously there was no such threat in any support order, nor was one contemplated in any statute.  There is no list of license restrictions to which the WorkFirst Act makes a “marginal” addition.  To provide for the suspension of a driver’s license without regard to the motorist’s driving record solely on the basis of noncompliance with a pre 1997 support order where such noncompliance began prior to 1995 is to pass a bill of attainder and an ex post facto law.

CONCLUSION

            For the reasons stated herein, the Motion should be granted and the Complaint should be dismissed.

            Respectfully submitted this 5th day of March 2002.

 

                                                                        __________________________

                                                                        Roger W. Knight, pro se