KING COUNTY DISTRICT COURT, BELLEVUE DIVISION

 

CITY OF MERCER ISLAND,                        )

                                                                        )           No. MIC 84199

                                    plaintiff,                        )

                                                                        )           THIRD SUPPLEMENT TO

            v.                                                         )           MOTION TO DISMISS COMPLAINT

                                                                        )           SMITH AND CRUZ TEST FOR

ROGER W. KNIGHT,                                    )           RETROACTIVE APPLICATION OF

                                                                        )           WORKFIRST ACT

                                    defendant.                    )

____________________________________)

 

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

THE WORKFIRST ACT DOES NOT APPLY RETROACTIVELY TO MR. KNIGHT UNDER SMITH AND CRUZ TEST, IF IT DOES, IT IS A BILL OF ATTAINDER AND AN EX POST FACTO LAW 

            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, before the legislative session began.  Many such parents, including Mr. Knight, were 180 days out of compliance with their support orders on July 1, 1997.  Third Declaration of Roger W. Knight in Support of Motion to Dismiss Complaint (Knight Declaration III).  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.  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.  At least RCW 26.18.050 provides that the parent may defend against a contempt prosecution on the basis of inability to comply with the support order.  RCW 74.20A.320 allows no consideration of such issue.[1]  Therefore, if the noncustodial parent is unable to comply with the support order, the TOTAL and COMPREHENSIVE license suspension is PERMANENT.  It is as PERMANENT as the TOTAL and COMPREHENSIVE license suspensions of the Jews enacted by the Nuremburg Laws of 1938 Germany.  The Jews of Germany who survived the Nazi era had their licenses restored only by the Allied Victory in 1945.  In the RCW Annotated, the Green Books, the Cross References for RCW 74.20A.320 lists numerous licenses from Accountants to Water Well Contractors.  To characterize RCW 74.20A.320 as a Nuremburg Law is not an exaggeration.

            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 Department of Social and Health Services (DSHS) and the Department of Licensing (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, such as Professional Engineer.

            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 order and arrearages.

            If the WorkFirst Act is intended by the Legislature to apply retroactively, its sweeping license suspension provisions, far greater in impact than the “marginal effect” of adding a prohibition of ownership of long firearms to an existing prohibition of short firearms upon the group of persons with certain previous felony convictions,[2] clearly constitute a bill of attainder directed at those parents under pre 1997 child support orders who were out of compliance by at least 180 days on July 1, 1997.  To the extent that such noncompliance can be considered criminal,[3] the WorkFirst Act is 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 19th day of March 2002.

 

                                                                        __________________________

                                                                        Roger W. Knight, pro se