Knight v Serpas Motion for new Trial

ROGER W. KNIGHT, )

)

plaintiff, ) No. C02-1641C

v. )

) PLAINTIFF’S MOTION TO

RONAL W. SERPAS, Chief of the ) AMEND JUDGMENT, FRCP 59

Washington State Patrol, NESSAN ) OR FOR NEW TRIAL, FRCP 59

MITCHELL, Trooper of the Washington )

State Patrol, FRED STEPHENS, Director ) Noted for hearing: December 13, 2002

of Department of Licensing, DENNIS )

BRADDOCK, Secretary of Department )

of Social and Health Services, )

GARY LOCKE, Governor of Washington, )

and BETHEL G. & LOUISE CLARK, d.b.a. )

CLARK’S TOWING, a sole proprietor )

doing business in the State of Washington, )

)

defendants. )

____________________________________)

MOTION

Comes now the plaintiff, ROGER W. KNIGHT, and moves to amend the Judgment and Order of Dismissal entered on November 14 and 15, 2002, or for vacation of these orders and a new status conference date should be scheduled.

JUDGE LASNIK’S FINDING THAT STATE COURT FOUND ITSELF TO LACK JURISDICTION TO CONSIDER CHALLENGE TO VALIDITY OF WORKFIRST ACT IS NOT CONSISTENT WITH HIS FINDING THAT YOUNGER ABSTENTION AND ROOKER-FELDMAN APPLIES TO BAR FEDERAL COURT CONSIDERATION OF CHALLENGE TO VALIDITY OF WORKFIRST ACT

This Court entered an Order to Show Cause, Document No. 5, why it should not dismiss the Complaint on Younger[1] abstention doctrine. It did not issue any such order with respect to Rooker-Feldman doctrine[2], Full Faith and Credit doctrine, or any res judicata, collateral estoppel, issue preclusion, or claim preclusion doctrine under either Washington or federal law. Mr. Knight responded with his Plaintiff’s Response to Order to Show Cause, Document No. 9 and a Declaration, Document No. 10, (Knight Declaration I). The plaintiff supplemented his response, Document No. 13, and Declaration, Document No. 14, (Knight Declaration II) to enter into evidence the Order by King County Superior Court in No. 02-1-01137-0 SEA reversing the two convictions for Driving While License Suspended (DWLS) in City of Mercer Island v. Knight, King County District Court, Bellevue Division, Nos. 84199 and 84268.

There are two reasons Mr. Knight filed the Supplement to Response to Order to Show Cause: 1) He believed that he was under a continuing obligation pursuant to the Order to Show Cause to apprise this Court of new developments in the state court system and to provide argument as to how these developments affect, or not affect, the Younger abstention analysis of this case. And 2) He believed that he had both the right and the duty to supplement his response to show cause.

On page 1 of the Order of Dismissal, this Court wrote that it considered the plaintiff’s initial Response to Show Cause but did not state that it considered the plaintiff’s Supplement. This Court did, however, state that it carefully reviewed “United States District Judge Robert S. Lasnik’s September 25, 2002 order regarding motions for summary judgment in case number C02-0879L, Roger W. Knight v. City of Mercer Island, et al. (Dkt. No. 65).” Order of Dismissal page 1 lines 20-24. This Court then found:

On September 25, 2002, the Honorable Robert S. Lasnik granted the motions for summary judgment by defendants in case number C02-879L on numerous grounds, including the Younger abstention and . . .

Attached as Exhibit K to the Declaration of Roger W. Knight in Support of Motion to Amend Judgment (Knight Declaration III) is a true and correct copy of this Order by Judge Lasnik (Lasnik Order). On page 2 at lines 12-13 of the Lasnik Order are set forth the following facts:

During the underlying criminal prosecution, plaintiff challenged the constitutionality of the statute under which his license was suspended, RCW 74.20A.320, the WorkFirst Act.” The district court determined that it did not have jurisdiction to hear such a challenge, prompting plaintiff to file this action in federal court.

As explained in the plaintiff initial Response to Order to Show Cause, pages 4-7, 9-14, this sets up the well recognized exception to Younger abstention: where the party lacks an adequate opportunity to raise and have timely decided his constitutional challenge to the statute being applied against him. See also Canatella v. California, (9th Cir. 2002) 293 F. 3d. 1099, 1104-1105 and Middlesex County Ethics Comm. v. Garden State Bar Ass’n, (1982) 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116. And yet Judge Lasnik found on page 8 of his Order:

To the extent he is seeking a review of his convictions and/or and injunctions against their enforcement, the Court must abstain under Rooker-Feldman and Younger v.Harris, 401 U.S. 37, 54 (1971)

As the finding on page 2 of the Lasnik Order that the state court found itself to lack jurisdiction to consider a challenge to the validity of the WorkFirst Act, one of the Middlesex requirements for Younger abstention is missing. Younger abstention does not apply and Green v. City of Tucson, (9th Cir. 2001) 255 F. 3d. 1086 mandates federal court exercises its jurisdiction. Because Mr. Knight presented his challenge to the validity of the WorkFirst Act in the state court proceeding and the state court found that it lacked jurisdiction to consider it, Rooker-Feldman does not apply either. Olson Farms, Inc. v. Barbosa, (9th Cir. 1998) 134 F. 3d. 933, 937 paraphrasing Robinson v. Ariyoshi, (9th Cir. 1985) 753 F. 2d. 1468, 1472, found as to Rooker-Feldman doctrine:

(Where state court refused to decide federal issue, our decision of that issue will not be review of state court decision and will not be barred on jurisdiction or res judicata grounds.)

Another example of an inconsistent finding would be a finding that a glass of milk contains a lethal dose of strychnine but is safe to drink. In perjury law, inconsistent statements as to fact would include where a witness testifies that he saw a UFO and that he knew it was an alien spacecraft. To know what it is, is to identify it. A classic inconsistent ruling is found at State v. Swan, (1990) 114 Wash. 2d. 613, 646-647, 790 P. 2d. 610. A three year old girl, R.T., a friend of the Swans’ daughter, is found incompetent to give testimony because: 1) She was unable to understand the obligation to tell the truth, and 2) she was unable to remember accurately past events. Yet in this same case, testimony by day care owner Cindy Bratvold as to what R.T. described to her was admitted on the grounds that it was reliable, Swan at 114 Wash. 2d. 652-658. Indeed, the Swan Court found that a child’s incompetency as a witness is not determinative of the reliability of his or her hearsay statements, at 114 Wash. 2d. 652 and note 61 citing other Washington cases. This celebrated case set the stage for Wenatchee.

That is a lot like saying that imprisonment for child support is not imprisonment for debt. President Clinton famously engaged in this type of logic in discussing his adulterous relationship with Monica Lewinsky. At the very least, inconsistent rulings make for vary bad law, damage the rule of law, and the public’s trust of the system. The Lasnik Order is inconsistent with Supreme Court and Ninth Circuit precedents cited herein.

JUDGE LASNIK CITED UNPUBLISHED MEMORANDUM AS PRECEDENT IN VIOLATION OF NINTH CIRCUIT RULE 36-3(b) AND HART V. MASSANARI

Page 6 lines 7-13 of the Lasnik Order reads:

In his suit before Judge Zilly, plaintiff argued that the enforcement of the state’s child support orders “constitutes involuntary servitude prohibited by the Thirteenth Amendment, and violates the Anti-Peonage State, 42 U.S.C. § 1994.” Knight v. Knight, 1993 WL 210667 (9th Cir., June 15, 1993), cert denied, 510 U.S. 979 (1993). Although that action challenged the state’s use of contempt proceedings to enforce the child support order and did not involve the later-enacted license suspension provision, the Ninth Circuit’s analysis is equally applicable to plaintiff’s present argument.

The case Judge Lasnik cites therein is an unpublished memorandum. He cited this memorandum not for law of the case, res judicata, or collateral estoppel purposes, he could not precisely because the WorkFirst act was passed subsequent to this decision and Mr. Knight cannot challenge a statute before the statute is enacted, but he cited it as precedent. Ninth Circuit Rule 36-3 currently reads (at least until December 31, 2002):

(a) Not Precedent. Unpublished dispositions and orders of this Court are not binding precedent, except when relevant under the doctrines of law of the case, res judicata, and collateral estoppel.

(b) Citation. Unpublished dispositions and orders of this Court may not be cited to or by the courts of this circuit except in the following circumstances.

(i) They may be cited to this Court or to or by any other court in this cirduit when relevant under the doctrine of law of the case, res judicata, or collateral estoppel.

(ii) They may be cited to this Court or by this or by any other court in this circuit fro factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorney’s fees, or the existence of a related case.

(iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders.

(c) Attach Copy. A copy of any cited unpublished disposition or order must be attached to the document in which it is cited, as an appendix.

The rule specifically includes the language “or by the courts of this circuit”. The United States District Court for the Western District of Washington is most certainly a court of the Ninth Circuit, as 28 U.S.C. §41 assigns Washington to the territorial jurisdiction of the Ninth Circuit.

Another Circuit found that a similar rule went beyond the jurisdiction granted to the federal courts by Article III of the Constitution. Anastasoff v. United States, (8th Cir. 2000) 223 F. 3d. 898, vacated as moot on other grounds, 235 F. 3d. 1054, but cited as binding precedent, United States v. Goldman, (8th Cir. 2000) 228 F. 3d. 942, 944, cert. den. 121 S. Ct. 1149. The Ninth Circuit split with this decision in Hart v. Massanari, (9th Cir. 2001) 266 F. 3d. 1155, upholding the validity of Ninth Circuit Rule 36-3.

In the event the Supreme Court resolves this circuit split in favor of the Eighth Circuit, the effect may by that the decision cited by Judge Lasnik shall be void, in that the Ninth Circuit rendered it in the belief that this circuit would not have to live with it as a binding precedent. By prohibiting attorneys and litigants from citing it, the embarrassing issue of whether child support enforcement that necessarily coerces employment or punishes unemployment is declared null and void by 42 U.S.C. §1994, which includes the word “orders”, and that the imposition and enforcement of such orders is criminal bad faith in violation of 18 U.S.C. §1581, is swept under the rug. Void decisions do not have res judicata, collateral estoppel, or law of the case effect. If the California Court of Appeals was aware of this unpublished memorandum, it apparently respected Ninth Circuit Rule 36-3 when it decided Brent Moss v. Superior Court, (1996) 56 Cal. Rptr. 2d. 864, 868-870, affirmed as to annulment of contempt, (1998) 71 Cal. Rptr. 2d. 215, 950 P. 2d. 59.

RELIANCE BY JUDGE LASNIK ON PRECLUSIVE EFFECT OF STATE COURT CRIMINAL CONVICTIONS FOR DWLS INVALIDATED BY STATE COURT’S REVERSAL OF DWLS CONVICTIONS ON APPEAL

Attached as a Exhibit J to the Knight Declaration II is a true and correct copy of the October 31, 2002 Order by Judge Michael Trickey of the King County Superior Court reversing the King County District Court’s convictions for DWLS.

Page 2 lines 9-12 of the Lasnik Order lists the convictions for DWLS and that they were on appeal to King County Superior Court. Pages 7-8 of the Lasnik Order relies upon these DWLS convictions to support preclusion under the Rooker-Feldman doctrine. As pleaded herein above, Rooker-Feldman does not apply to issue the state refused to decide or found that it could not decide. Mr. Knight never claimed that this Court could review the convictions in a 42 U.S.C. §1983 action, although he did plead that 42 U.S.C. §1994 creates a statutory exception to the Rooker-Feldman doctrine in that it declares the orders of a state or territory to be null and void if they are used to establish, maintain, or enforce the service or labor of a person as a peon in liquidation of a debt or obligation.

But King County Superior Court is under no such restriction: it CAN review the convictions on appeal, it DID review the convictions on appeal, and it REVERSED the convictions on appeal. Reliance upon the convictions by this Court is thus invalidated.

There is a touchy situation for Mr. Knight here. Judge Trickey stated orally that he did not believe that a Washington court in a criminal DWLS case could entertain a challenge to the validity of the WorkFirst Act. He only found that it could entertain a challenge to the sufficiency of notice and opportunity to be heard by one of two forms of service set forth by RCW 74.20A.320(1) and that if the service required by this statutory provision was found unmet, then the charges of DWLS should be dismissed. However, he crossed out language providing the King County District Court with the power to grant equitable relief, meaning an order to the Washington Department of Licensing to restore the license.

Appellants in criminal limited jurisdiction cases who prevail in the Washington superior courts do not prudently petition the Washington Court of Appeals or the Supreme Court of Washington for review. Cross petition, yes. Direct petition, no. That ball is presently in the City of Mercer Island’s court. The City may elect not to petition, leaving only the issue of notice required by statute to be determined on remand. The City may decide its chances are slim to none and drop the prosecution.

This would solve Mr. Knight’s problem with respect to criminal liability for two incidents on Mercer Island. But it does not afford him equitable relief, which should be available under 42 U.S.C. §1983 to enforce his Fourteenth Amendment right to rely upon the actual language of a state statute, and where the statute’s requirements for any deprivation of a liberty or property interest are found unmet. If the state court finds itself unable to grant equitable relief to restore the liberty or property interest, then how does any abstention doctrine preclude this Court from granting the equitable relief, i.e, requiring the state officer defendants to restore the license?

As Rooker-Feldman and 28 U.S.C. §1738 work to preserve state court decisions against Mr. Knight (unless declared null and void by 42 U.S.C. §1994), so they work to preserve those state court decisions in his favor.

TIMELY MOTION TO AMEND JUDGMENT STAYED FINALITY OF JUDGE LASNIK’S ORDER

Attached as Exhibit L to Knight Declaration III is a true and correct copy of the Plaintiff’s Motion to Amend Judgment, FRCP 59, timely filed in Knight v. City of Mercer Island, W.D. Wash. No. C02-879L. To the best of the plaintiff’s knowledge, Judge Lasnik has not entered a decision on this Motion. Pursuant to FRCP 59 and FRAP 4(a)(4), the finality of a judgment is stayed pending decision on such a motion.

During the pendency of this Motion before Judge Lasnik, Mr. Knight presented a Declaration to enter into the evidence the King County Superior Court Order reversing the DWLS convictions.

PLAINTIFF IS ENTITLED TO AN OPPORTUNITY TO FULLY PLEAD HIS ARGUMENTS ON SUMMARY JUDGMENT MOTIONS OR AT TRIAL

Therefore, the Order of Dismissal and Judgment should be vacated and new date for a status conference should be scheduled.

Any finding that a challenge to child support enforcement as offensive to the Antipeonage Act is frivolous is precluded by Brent Moss v. Superior Court, (1996) 56 Cal. Rptr. 2d. 864, 868-870, affirmed as to annulment of contempt, (1998) 71 Cal. Rptr. 2d. 215, 950 P. 2d. 59. As pled in the Motion to Amend Judgment in No. C02-879L, a finding of frivolousness must require a finding that a claim lacks an arguable basis in law or fact. O’Loughlin v. Doe, (1990) 920 F. 2d. 614, 618 found that:

An in forma pauperis complaint is frivolous if it has “no arguable basis in fact or law.” Frankliin v. Murphy, 745 F. 2d. 1221, 1228 (9th Cir. 1984).

Subsequently the Supreme Court found that a complaint is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, (1989) 490 U.S. 319, 325, 104 L. Ed. 2d. 338, 109 S. Ct. 1827, citing Anders v. California, (1967) 386 U.S. 738, 18 L. Ed. 2d. 493, 87 S. Ct. 1396, which defined frivolousness standard for state court criminal appeals. A case is frivolous only if it is baseless and without reasonable and competent inquiry. Sprewell v. Golden State Warriors, (9th Cir. 2000) 231 F. 3d. 520, 530 citing Buster v. Greison, (9th Cir. 1997) 104 F. 3d. 1186, 1190. An “appeal is frivolous if the result is obvious or the arguments are wholly without merit.” Smith v. Ricks, (9th Cir. 1994) 31 F. 3d. 1478, 1489 citing McConnell v. Critchlow, (9th Cir. 1981) 661 F. 2d. 116, 118. In United States v. Tucor International, Inc., (9th Cir. 2001) 238 F. 3d. 1171 the government’s position was not so obviously wrong as to be frivolous.

As a California court has at least once found that a claim that contempt proceedings that necessarily punish for failure to maintain employment offend the Antipeonage Act is meritorious, the standards for frivolousless are simply not met. Mr. Knight has since acted in the good faith belief that a California court decision construing 42 U.S.C. §1994 does not bind the federal courts, who have the primary duty to construe Acts of Congress, and that the California Supreme Court’s construction of 42 U.S.C. §1994 conflicts with the rules of statutory construction for Acts of Congress set forth by numerous Supreme Court decisions including the decisions summarized in United States v. Romo-Romo, (9th Cir. 2001) 246 F. 3d. 1272, 1274-1275.

Therefore, the claim has an arguable basis in law and fact.

Lack of subject matter jurisdiction or preclusion does not render a claim frivolous. DeLong v. Hennesey, (1990) 912 F. 2d. 1144, 1148 found:

Next we find that before a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make “substantive findings as to the frivolous or harassing nature of the litigant’s actions.” Powell, 851 F. 2d at 431; see also Sires v. Gabriel, 748 F. 2d. 49, 51 (1st Cir. 1984) (pre-filing injunction could not stand because magistrate stated that “petitioner has been a constant litigator” but failed to state that petitioner’s claims were frivolous or brought in bad faith). To make such a finding, the district court needs to look at “both the number and content of the filings as indicia” of the frivolousness of the litigant’s claims. Powell, 851 F. 2d at 431. See also Moy, 906 F. 2d at 470 (A pre-filing “injunction cannot issue merely upon a showing of litigiousness.”)

In the instant case, the district court held in its dismissal of the habeas petitions, and the subsequent denial of motions, that De Long lacked jurisdiction. However, the district judge made no finding that De Long’s claims were frivolous. Merely because a claim lacks jurisdiction does not make the claim per se frivolous. Moreover, even if De Long’s habeas petition is frivolous, the court did not make a finding that the number of complaints was inordinate.

An alternative to the finding of frivolousness is the finding that De Long’s claims show a pattern of harassment. See Powell, 851 F. 2d at 431. The district judge made no finding that De Long’s claims were harassing.

Absent findings of harassment or frivolousness, we cannot uphold the district court’s order.

Moy is Moy v. United States, (9th Cir. 1990) 906 F. 2d. 467.

CONCLUSION

For the reasons stated herein, this Motion to Revise Judgment or for New Trial should be granted.

RESPECTFULLY SUBMITTED, November 21, 2002,

____________________________________

Roger W. Knight, plaintiff