KING COUNTY DISTRICT COURT, BELLEVUE DIVISION

 CITY OF MERCER ISLAND,                        )

                                                                        )           No. MIC 84199

                                    plaintiff,                        )

                                                                        )           SECOND SUPPLEMENT TO

            v.                                                         )           MOTION TO DISMISS COMPLAINT

                                                                        )           DOLSON DEFENSE IS PROVEN

ROGER W. KNIGHT,                                    )

                                                                        )

                                    defendant.                    )

____________________________________)

 

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

DOLSON DEFENSE IS PROVEN

            On March 5, 2002, the defendant appeared before this Court to be arraigned in the case of Mercer Island v. Knight, No. 84268.  He pled Not Guilty and demanded a jury.  On that day he served the City Attorney’s Office and filed in this Court his Third Declaration of Roger W. Knight in Support of Motion to Dismiss Complaint (Knight Declaration III) and his Supplement to Motion to Dismiss Complaint in this case and in No. 84268.

            After the hearing, he went into the Law Office of Paul H. King to work.  While there, he received the final evidentiary piece of the puzzle of this case.  Attached as Exhibit C to the Fourth Declaration of Roger W. Knight in Support of Motion to Dismiss Complaint (Knight Declaration IV) is the letter from Lawna M. Knight, Custodian of Records of the Department of Licensing (DOL) dated February 27, 2002.  This may have been sent in response to Mr. Knight’s Subpoena Dulces Tecum, Exhibit B to Knight Declaration IV, which asked for a certified copy of the address change form Mr. Knight declared he filled out on March 5, 2001, Knight Declaration I pages 2-3.  No such form has been supplied to Mr. Knight by the DOL since he mailed his Subpoena Dulces Tecum.

            A careful examination of the Lawna Knight letter admits that Mr. Knight’s address was never updated from his old Federal Way address by means of any form Mr. Knight filled out to notify the DOL of his new address.  Instead, on September 11, 2001, the DOL found time to change its “Address of Record” for Mr. Knight because “REASON: address based on violation date9-05-2001 SUPPORT ENFORCEMENT”.  The “Address of Record” was changed to “318 6TH AVE S SEATTLE WA 98104-2750”.

            Exhibit A to Knight Declaration IV is the discovery package sent to Mr. Knight by the Mercer Island City Attorney.  The last three documents in this discovery package are documents from the DOL.  The first document is a letter from DOL Custodian of Records Donna McGoldrick dated January 29, 2002, written in the form of a declaration under penalty of perjury.  She lists the “Address of Record” as “318 6TH AVE S SEATTLE, WA 98104”.  The second document, apparently included as an attached exhibit to the McGoldrick letter/declaration is a DOL “ORDER OF SUSPENSION” dated September 13, 2001 declaring Mr. Knight’s license to operate a motor vehicle is suspended effective September 16, 2001 “FOR NOT BEING IN COMPLIANCE WITH A CHILD SUPPORT ORDER”.  The address for Mr. Knight is “318 6TH AVE S SEATTLE, WA 98104-2750”.

            None of the documents supplied to the defendant in discovery in this case, either by the City Attorney or by the DOL indicate that any license suspension notification document or any opportunity to be heard regarding such suspension has been sent to:

            (redacted for this web site)

            Federal Way, Washington 98003

 or to:

            (redacted for this web site)

            Seattle, Washington 98(redacted) 

Therefore, there is no evidence that the DOL complied with RCW 46.20.205 and with Mr. Knight’s Constitutional right to due process of law.  Per State v. Dolson, (1999) 138 Wash. 2d. 773, 982 P. 2d. 100 the license suspension is void.  As amended by Laws of Washington 1998 c. 41 §13 and Laws of Washington 1999 c 6 §24, the current version of RCW 46.20.205(1) reads:

(1) Whenever any person after applying for or receiving a driver's license or identicard moves from the address named in the application or in the license or identicard issued to him or her, the person shall within ten days thereafter notify the department of the address change. The notification must be in writing on a form provided by the department and must include the number of the person's driver's license. The written notification, or other means as designated by rule of the department, is the exclusive means by which the address of record maintained by the department concerning the licensee or identicard holder may be changed. 

While the Legislative change of Laws of Washington 1996 c 30 §4 which added the language “or other means as designated by rule of department” has not been affected by the 1998 and 1999 changes, the Dolson criteria that a licensee has the right under due process of law to rely upon the written notification that he provides cannot be overridden by legislative act or administrative rule, where the statute continues to provide the written notification procedure.  Mr. Knight declared that he notified the DOL of his address change from (redacted), Federal Way, Washington 98003 to (redacted), Seattle, Washington 98(redacted) on March 5, 2001, Knight Declaration I pages 2-3.  The Vehicle Registration Certificate, Knight Declaration I Exhibit D that he received that day lists “(redacted) SEATTLE WA 98(redacted)” as his address.  The DOL mailed the Vehicle Renewal Notice, Knight Declaration I Exhibit C to Mr. Knight at (redacted), Seattle, Washington 98(redacted).  When Mr. Knight went to the DOL office in the King County Administration Building on February 25, 2002 to renew his Vehicle License Registration, he asked about the form and the DOL supplied him with a blank form.  Knight Declaration II and its Exhibit B.  This blank form indicates that the change of address shall be effective for both Driver License and for Vehicle Registration.

            The DOL does not explain why the Vehicle Registration Certificate and the Vehicle Renewal Notice listed and were sent to one address, while the driver license suspension paperwork listed and were sent to another address.  The DOL does not set forth what rule it promulgated that provides for vehicle registration notices to be sent to one address while license suspension notices to be sent to another address when the licensee fills out the SAME form with the title that declares that it is effective for both.  Furthermore, the DOL, as of the date of this Second Supplement, has not complied with Mr. Knight’s subpoena concerning the document that he filled out to notify the DOL of the change of address nor has it declared that such document does not exist or no longer exists in the DOL’s archives.

            Dolson at 138 Wash. 2d. 779-780 found:

            Given that the Legislature has set out the exclusive means for notification, we conclude that DOL’s repudiation of that procedure in favor of another was not reasonably calculated to provide notice. Under RCW 46.20.205, a driver has the responsibility to ensure that DOL’s records of his address are correct. Along with this responsibility comes the assurance that DOL will rely upon the address of record for the mailing of all official documents. The statute affords licensees control over the notification process by giving them exclusive authority to establish and maintain the address of record. As amicus explains, this control is particularly important to low income people who may have difficulty establishing permanent housing. Br. of Amicus Curiae Public Defender Association at 11-12. A person experiencing such instability would rely on the “address of record” supplied to DOL, even if the person does not always reside at that address. Given the unequivocal mandate of RCW 46.20.205, a person would expect DOL to send all important documents to the address of record maintained by the licensee. Should DOL “update” its records based on information gleaned from a ticket or an arrest, a licensee would not know that the address of record had been changed. This would prevent the licensee from taking appropriate steps to ensure that DOL had his correct address in its files.

            Contrary to the Court of Appeals’ conclusion, a notice procedure that contradicts a licensee’s legal expectations cannot be reasonably calculated to provide notice. DOL’s decision to send notification to an address other than the address of record did not comply with the spirit of the statute because it conflicted with the statutory objective to put control over the notification process in the hands of the licensee. 

The change in 1996 to RCW 46.20.205 does not change this basic analysis.  Any rule promulgated by the DOL to allow the address of record to be changed by a notification by another agency is not consistent with the licensee’s legal expectations when he fills out a change of address form, or when he does not, if such is a conscious decision.

EVEN IF THE DOL PROVIDED NOTICE REASONABLY CALCULATED TO APPRISE MR. KNIGHT, IT DID NOT MEET REQUIREMENT THAT HE BE GIVEN AN OPPORTUNITY TO BE HEARD. 

            The Documents attached to the McGoldrick Declaration, Knight Declaration IV Exhibit A, simply announces that Mr. Knight’s license has been suspended.  No driver improvement hearing as required by RCW 46.20.322 and RCW 46.20.323.  Indeed, given the “Abstract of Complete Driving Record” attached to the Lawna Knight Letter, Knight Declaration IV Exhibit C, there is not any improvement to be made.  The exception to RCW 46.20.322 set forth in RCW 46.20.325 is not present in this case.  Mr. Knight’s record does not indicate that he presents a danger to the safety of persons on the highway.  Indeed, if Mr. Knight relies upon other persons whose driving records he cannot know, and such person’s driving records list serious traffic offenses, the license suspension would work contrary to the public interest in the safety of the highways.  If RCW 74.20A.320, referenced by RCW 46.20.291(8), contains a provision that a suspension for noncompliance with a child support order is “mandatory” and therefore within the exception for “mandatory suspension” in RCW 46.20.324(1), then the WorkFirst Act is a bill of attainder that imposes its punishment without judicial trial for those out of compliance with support orders when the WorkFirst Act was passed in 1997.  Mr. Knight fits that description, Knight Declaration III.  If the noncompliance is thought of as a crime, then the WorkFirst Act is also an ex post facto law.

            Whether the WorkFirst Act is a bill of attainder or not, for license suspension or revocation, Mr. Knight is entitled to opportunity to be heard as well as notice.  Dolson at 138 Wash. 2d. 782 found:

However, the due process defect at issue here is the deprivation of his right to a hearing, not the lack of notice of the fact of revocation. By law, Dolson had 15 days to appeal the revocation. RCW 46.65.065. Because of DOL’s error, Dolson never received notice of nor exercised his right to request a hearing. Due process requires the opportunity to be heard. Bell v. Burson, 402 U.S. 535, 539-40, 91 5. Ct. 1586, 29 L. Ed. 2d 90 (1971). Where due process is not satisfied prior to a license revocation, the underlying revocation or suspension is void. Baker; 49 Wn. App. at 780. 

Baker is State v. Baker, (1987) 49 Wash. App. 778, 745 P. 2d. 1335.

            And therefore, a void suspension cannot support a conviction of driving while license suspended, Dolson at 138 Wash. 2d. 782 for void revocation of license.

CONCLUSION

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

            Respectfully submitted this 7th day of March 2002.

 

                                                                        __________________________

                                                                        Roger W. Knight, pro se

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