City of Mercer Island v. Knight,

King County District Court, Bellevue Division

No. 84199 and No. 84268

  

TRANSCRIPT OF EXCERPTS OF THE TRIAL: PRETRIAL MOTIONS AND EXCEPTIONS TO JURY INSTRUCTIONS, MAY 21, 2002

 

Prepared by Roger W. Knight

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Start time:         8:42:40 on the electronic record.

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 Washington decision and as such it can be said to

                        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 Bell v Burson notice reasonably

                        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:      8:52:37 on the electronic recording.

 

Restarting time: 11:21:20 on the electronic recording

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 January 21, 2002 and license

                        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 February 2, 2002 and license was not restored

                        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 Washington State

                        Department of Social and Health Services lawfully sent to the Washington State

                        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:      11:30:40 on the electronic recording.

 

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