City of
King County District Court,
No. 84199 and No. 84268
TRANSCRIPT OF EXCERPTS OF
THE TRIAL: PRETRIAL MOTIONS AND EXCEPTIONS TO JURY INSTRUCTIONS,
Prepared by Roger W. Knight
From compact disk supplied
by the King County District Court, Bellevue Division
using software made by
FTR Player, Ltd.
Start
time:
Court: All right. Any
other motions in limine?
Knight: Okay. I
have two motions in limine. Having observed the CCDR’s,
the
CCDR’s indicate
that the Department of Licensing received a certification of
nonpayment of child support. However, the CCDR’s
lack a foundation. The
foundation being the document by which the
Department of Social and Health
Services informed the
Department of
Licensing, that is, certifying the
noncustodial, the
licensee, in my case, in this case, me, as being in
noncompliance with a child support
order. The statute requires that the
Department of Social and Health Services go
through a series of steps before
they can get to that point. And the prosecution has the burden of proof
beyond
reasonable doubt that the license is validly
suspended. And if the CCDR lacks
the foundation, the foundation being the
actual certification from the Department
of Social and Health Services, then it is
inadmissible. I would also argue that
absent any personnel from the
Department of
Social and Health Services as a
witness, we have no testimony by any witness
that the triers of fact, that uh,
whose demeanor that the triers
of fact can observe, and who I can confront and
cross examine, and ask questions, under my
Sixth Amendment right and
Article
I Section 22 right to do so, while uh, in the
presence of the trier of fact, I would
therefore, submit that the CCDR is therefore unsupported, uh, evidence, it’s
unsupported.
Court: All right, let’s hear from Mr. Robins.
Prosecutor: Your Honor, yesterday, I did have a
member from
DSHS here ready to trial.
However, Judge Jacke
ruled that uh, at the jury call, when you uh, issued a
statement to Mr. Knight that the issues of
that nature having to do with the
underlying issue of
DSHS
was in fact a collateral attack and that uh a collateral
attack would have to be brought in the court
that has subject matter jurisdiction
would be in a family law matter that matter
would have to be brought in the
superior court because a court of limited
jurisdiction does not have subject
matter jurisdiction to decide such
issues. That being ruled, Judge Jacke
indicated to me that she was not going to
allow me to to present the
DSHS
individual by the name of Linda Brooks who
was here and who had the
document showing that it was both personally
served and sent by uh certified
mail.
Court: All right. Was
that Judge Jacke’s ruling yesterday, Mr. Knight?
Knight: Well, Judge Jacke
said that was because you made a ruling on May 17, last
Friday.
Court: I do recall stating um when you said you wanted to
file another motion that
collateral attacks on the statutory scheme
were not going to be allowed and
we’re not going to set another motion hearing
to provide you with a collateral
attack.
The collateral attack issue I don’t know if you understand what I’m
saying here but it’s basically you are
collaterally or sort of cross attack on the
underlying suspension itself. What the
City has to prove in a case like
this is
that on a particular day you are driving a
car and your driving status was
suspended and that the
Department of
Licensing sent you a letter telling you that
you would be suspended unless you corrected
whatever the underlying problem
was.
So that’s what the City’s burden is in this case. The
City doesn’t have the
burden to show anything about DSHS or what it did.
If you wish to challenge
that, you would have to bring an action in
the appropriate court which isn’t this
one, to challenge
DSHS’s
underlying action in terms of what they did.
Knight: May I respond to that? Allow me to give you an argument that this
finding
legally in error. I certainly have the right to present this
argument in a brief to
the Superior Court on appeal. Unless the jury finds me not guilty in which
case
no appeal can be had. The argument is this: The
State v. Dolson
decision is a
1999 Supreme Court of
overrule all previous
Court of Appeals
decisions to the extent there is a conflict.
In
State v Dolson,
the basic reasoning in that the trial court in a subsequent
criminal DWLS case
has the jurisdiction to disallow a license suspension if
there’s a lack of notice required by the
statute. Now it did not consider a child
support suspension where the statutory scheme
sets up a different notice and
opportunity to be heard. By the time the
Department of Licensing
receives the
certification of noncompliance with a support
order, it no longer has, uh, it does
not have the power to hold an administrative
hearing because Subsection 13 of
72, I mean
74.20A.320 states that the WorkFirst Act is the sole means by which
a an administrative hearing can be had. And
State v. Dolson
was on the issue of
obtaining the hearing. Now, in light of the previous decisions, uh,
the two
decisions that I can think of is
Upward v. Department of Licensing and
City of
Bellevue v Montgomery, which arose in
this Court. Originally.
And I would like
to ask you a very quick question, the basis
of your decision of April 19. Were
these two decisions the basis of your
decision of April 19?
Court: I didn’t specifically have anyone argue any case law
to me on that date. It’s a
basic legal tenet that in a colat, in a case such as this, a collateral attack on the
underlying statutory scheme is not an issue
for this Court.
Knight: Okay.
Court: So, sir. I’m
very familiar with the
Dolson case, and the
Dolson case is an issue
of addresses and where the
Department of
Licensing sent addresses and the fact
that someone’s address had been changed, and
whether or not it met the statutory
scheme.
That’s not the issue here. The
issue, as I understand your issue, is
whether or not the state scheme for
suspending licenses based upon nonpayment
of child support is Constitutional or whether
that statutory scheme as it does
exist was followed. That’s simply is not an issue that this Court
has jurisdiction
to hear.
Knight: Well.
Uh. Okay and let me argue. Well, okay the
State v Dolson
reached the
issue of adequacy of notice. The State Legislature in drafting and in
negotiating
the WorkFirst Act
which has provisions affecting welfare reform, it has
provisions about teen pregnancy, and it has
other provisions which was the basis
of my attack against this statute as a
multi-subject bill. But in that, number
of
Republican legislators and the few Democrats
who were on the side of the
noncustodial
parents, had previously opposed license suspension bills. And in
the compromise they wanted to go beyond the
calculated to assure some adequacy of notice
so that the noncustodial parent can
obtain the hearing. Given
Upward v Department of Licensing
I would argue that
I am just as prohibited from challenging the
validity of the license, uh, the
certification, you understand, the
certification to the Department of Licensing on
the basis of not having uh, exercised my
right to hearing, in a, uh, in a superior
court civil case. Because
Upward v
DOL
was essentially a mandamus action. In
other words, a civil action taken to disallow
a license suspension. And the ruling
by the Court of Appeals was that we can’t do
it that way. So your, your
suggestion that I take it up with the
superior court, is not quite in accordance
with what
Upward says. The only
Court: Sir,
Knight: opportunity that I have to challenge the WorkFirst Act is upon a petition for
redetermination,
uh, judicial redetermination of agency action, out of
a
WorkFirst Act
hearing which is before the
DSHS. Once they go and certify to
the Department of Licensing, I have lost that
right. Which brings us back to the
issue of adequacy of notice, which is
provided for in subsection one. And it
provides for two specific forms of
notice. One is certified mail that must
be
successful, with return receipt. The other, uh personal service. And they did not
qualify the term meaning personal service
under
RCW 4.28.080 which provides
for personal service in civil cases in
general.
Court: Mr. Knight, let me interrupt you because we need to
get started here, and I’m not
going to modify my ruling or Judge Jacke’s ruling from yesterday, and sounds
like you’re very well versed in the statute
and, also if you want to obtain legal
assistance as to what other remedies you may
have, for a collateral attack on the
scheme, you can certainly do that, but I’m,
we’re not going to hear that here at
this Court.
Okay?
Ending time:
Restarting time:
Court: Clerk has given both sides copies of the proposed
instructions, we’ll take any
exceptions to the instructions, um, either to
give an instruction or not give an
instruction.
First, from the City.
Prosecutor: No exceptions, Your Honor.
Court: All right, the
City has no exceptions to the
instructions. Mr. Knight, do you
have any exceptions?
Knight: I have an exception to a missing instruction.
Court: All right, you need to identify which instruction.
Knight: Okay.
The instructions are Instruction Number 4 and Number 5, the elements of
the crime.
Court: So you are objecting to the instructions that are
proposed, 4 and 5?
Knight: Well, uh, my exception is that there is not an
additional instruction as to Element
No. 2 in each,
Court: All right, go ahead.
Knight: It was my understanding that you made the
ruling that the City has the burden of
proof that the notice of license suspension
was sent to the appropriate address. I
do not see an instruction to that effect.
Court: All right.
Which of your proposed instructions, are you objecting to the court’s
lack of giving?
Knight: Well, I didn’t know when I was preparing
instructions that you would rule that
the
City had to prove that issue. I didn’t know that you were going to make
that
ruling.
You made that ruling today that they had to prove it was to the
appropriate address, therefore I had not
prepared one. Unfortunately, and uh,
Court: So you have not proposed another instruction?
Knight: Right, because I did not know that you were
going to make that exact ruling.
Court: Which exact ruling are you talking about?
Knight: The ruling that the
City has to prove that it
was mailed to the appropriate
address.
Court: The City has to show that notice was sent. Which is what I think is what they
attempted to show in Exhibit 1,
Knight: Okay that notice was sent. Okay, is there an instruction to that effect?
Court: Sir, the instructions that I’m proposing I’ve taken
from both the City’s proposed
instructions and yours. So what you have is right in front of
you. So that, I
mean, I didn’t make up some new instruction,
I took what the parties proposed
and prepared the instructions from them.
Knight: Okay, Your Honor, I know that you made ruling
as to the requirements that the
Department of Social and Health Services met
the notice requirements, but I
would like to for the record, take exceptions
to my proposed instructions to
establish those elements of suspension.
Court: Mr. Knight, what I’m trying to get you to do is tell
me in your packet of
instructions, specifically which instructions
are you objecting to the Court’s lack
of giving.
Knight: Okay.
Court: that
instruction.
Knight: The uh, well the instruction where I state that
the Washington State Department
of Licensing receive a certification of
noncompliance with a child support order,
uh
Court: Wait, now wait, uh, which one,
Knight: I didn’t number them,
Court: What’s the first sentence read, verbatim?
Knight: In this case, the prosecution alleges that
Court: In this case, all right. So it’s in this case instruction, the
prosecution alleges
Washington State
Department of Licensing
lawfully suspended the defendant’s
driver’s license upon certification of
noncompliance with a child support order
by the Washington State
Department of Social
and Health Services. To prove
this element of the crime, the prosecution
must prove beyond a reasonable doubt
each and every one of the following facts: 1)
That Washington State Department
of Licensing received a certification of
noncompliance with a child support order
from Washington State
Department of Social
and Health Services. That
Washington State
Department of Social and
Health Services lawfully sent the
certification of noncompliance with the child
support order. For Court One, that
certification of noncompliance with child
support order was lawfully sent and
the licenses was lawfully suspended on or
before
was not restored prior to that date. For Court Two, that certification of
noncompliance with child support order was
lawfully sent and the licenses was
lawfully suspended on or before
prior to that date. That’s the instruction?
Knight: Yes.
Court: All right. Have
you any other argument in support of why the Court should give
this instruction?
Knight: The argument is that the statute,
RCW 74.20A.320 requires that the
Department
of Social and Health Services undergo several
specific steps before it can
lawfully send a certification of
noncompliance with a support order to the
Department of Licensing. I understand that you already made the ruling
on that,
but I’m stating this exception for the
record.
Court: All right. Any
response?
Prosecutor: That sounds like a collateral attack. (Unintelligible)
Court: All right. I
will not give this proposed instruction.
Mr. Knight, I do believe that
that is a collateral issue. That’s between the process provided for in
the statute
between
DSHS and
the Department of Licensing. So I do not
believe it’s an
appropriate instruction in this case. Do you have any other exceptions?
Knight: Yes.
Court: Okay, go ahead.
Knight: Following one,
Court: To prove?
Knight: Yes, to prove and so on so forth,
Court: All right, so let me read the first paragraph. To prove that the
Department of Social and Health Services
lawfully sent to the
Department of Licensing the certification of
noncompliance with a child support
order the prosecution must prove beyond
reasonable doubt each of the following
facts:
All right. Any other argument you
wish to make in support of this?
Knight: The uh, statutory provision,
RCW 74.20A.320, specifically requires, subsection
one specifically requires that well, and
subsections 2 and 3, specifically requires
that if the Department of Social and Health
Services proposes to certify to the
Department of Licensing noncompliance with a
support order, that it will serve
upon the defendant a notice of such intent and
that attached to the notice is a
copy of the child support order, and that
subsequent the defendant of the notice
upon the defendant of the notice, service
upon the defendant of the notice, that
the defendant did not request the hearing
within 20 days and that on or
subsequent to the 21st day after notice was
served the
DSHS sent the
certification over.
Court: All right. Any
response?
Prosecutor: Your Honor, that again that is a
collateral issue.
Court: All right. This
is somewhat similar to the previous instruction. I do believe it
raises the collateral issue that the Court
previously ruled on, so I am not going to
submit this instruction to the jury.
Knight: Okay.
Court: Any other exceptions?
Knight: The following one.
Court: This is the same in argument?
Knight: This is to prove that the Washington State
Department of Social and Health
Services lawfully served upon the defendant a
notice informing him of its intent
to submit his name to the Washington State
Department of Licensing as a
licensee who is not in compliance with a
child support order. The prosecution
has to prove beyond reasonable doubt either:
Court: Okay.
Knight: That the notice and attached child support
order was sent by certified mail with
return receipt requested and that this
service was successful. To prove that
this
service was successful, the return receipt
must bear the true signature of the
defendant or the true signature of an agent
authorized by the defendant to pick
up certified mail addressed to him Or, that the notice and attached child
support
order was personally served upon the
defendant. Source of this is
RCW
74.20A.320(1).
Court: Okay, any response?
Prosecutor: Same response, Your Honor.
Court: All right. As I
said, I do believe this is sort of the same issue of the collateral
attack on the underlying procedure, or lack
thereof in Mr. Knight’s argument.
So I will not give this instruction. Any other exceptions?
Knight: the following one, that reads: To prove that notice and attached child
support
order was personally served upon the
defendant the prosecution must prove
beyond reasonable doubt that either: the
notice and attached child support order
was placed in the hands of the defendant, or
the notice and attached child
support order was placed in the hands of a
person of suitable age and discretion
then resident at the house of the defendant’s
usual abode. The statutory
provisions that I rely on are again, the
requirements of
RCW 74.20A.320(1),
where the Legislature used the specific words
“personal service”, without
qualification.
Court: Okay.
Knight: And that
RCW
4.28.080(15) and (16) provide the means by which an individual
may be served process within the definition of
the phrase “personal service”.
Court: Okay. And that
it looks like your following instructions are at definition of
suitable person, discretion, resident of the
house, the defendant’s usual abode.
So those sort of go along with this
instruction.
Knight: Those go along with RCW
4.28
Court: So those are packaged.
All right.
Knight: They go along with
RCW
4.28.080 and the case law on that including cases such
as
Weiss v Glemp.
Court: All right. Any
response?
Prosecutor: Same response, Your Honor.
Court: All right. I do
believe this is also related to the collateral issue along with the
definition instruction. So I will not be submitting those to the
jury. Do your
have any other exceptions?
Knight: No, thanks, Your Honor.
Ending time:
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