WESTERN DISTRICT OF
WASHINGTON AT SEATTLE
ROGER W. KNIGHT, )
)
plaintiff, ) No. C02-1641C
v. )
) PLAINTIFF’S RESPONSE TO
RONAL W. SERPAS, Chief of the ) ORDER TO SHOW CAUSE
Washington State Patrol, NESSAN )
MITCHELL, Trooper of the Washington )
State Patrol, FRED STEPHENS, Director )
of Department of Licensing, DENNIS )
BRADDOCK, Secretary of Department )
of Social and Health Services, )
GARY LOCKE, Governor of Washington, )
and UNKNOWN CORPORATION, d.b.a. )
CLARK’S TOWING, a corporation )
doing business in the State of Washington, )
)
defendants. )
____________________________________)
ORDER TO
SHOW CAUSE
On
August 23, 2002, this Court entered the Order to Show Cause. It reads in part:
Plaintiff’s
claims appear to arise exclusively from his child support obligations. Accordingly, the
Court hereby ORDERS the
parties to SHOW CAUSE by September 12, 2002 at 4:30 pm why the
Court should not
dismiss plaintiff’s action pursuant to the
Younger[1]
abstention doctrine.
RESPONSE TO
ORDER TO SHOW CAUSE
AS THE CHILD SUPPORT ORDER
DOES NOT AUTHORIZE SUSPENSION OF LICENSES FOR NONPAYMENT AND HAS NEVER BEEN
MODIFIED TO AUTHORIZE SUSPENSION OF LICENSES FOR NONPAYMENT, AND NO MOTIONS TO
MODIFY THE CHILD SUPPORT ORDER TO AUTHORIZE SUCH SUSPENSION ARE PENDING, THIS
ACTION DOES NOT ARISE FROM THE PLAINTIFF’S CHILD SUPPORT OBLIGATIONS
Attached
as Exhibit B to the Declaration of Roger W. Knight in Support of Plaintiff’s
Response to the Order to Show Cause (Knight Declaration) is the Findings of
Fact, Conclusions of Law and Decree of Dissolution entered in In re Marriage of Knight,
King County
Superior Court No. 90-3-04471-1 on July 11, 1991. Nothing in this decree authorizes, threatens,
or provides for the suspension of licenses for nonpayment of child
support. Page 11 warns of enforcement
action under chapters
26.18 RCW and
74.20A RCW, but at the time these chapters
did not have any provision to suspend licenses.
RCW 74.20A.320 was not added until July 1, 1997, therefore, the decree
does not include it. With the exhaustion
of remedies at the time of the decree and with
RCW 26.09.170(1), the state’s
version of the Bradley Amendment, prohibiting modification of a child support order
for months prior to such a motion, and that such a motion has never been
presented, the suspension of the plaintiff’s driver’s license is not authorized
by the divorce decree.
To
comply with
RCW 26.09.170(1) as well as with
Article I Section 23 of the
Washington Constitution and
Article I Section 10 clause 1 of the United States
Constitution which prohibit bills of attainder, the modification would have to
apply only to the support obligation for months subsequent to the date such
motion is presented. Any money paid by
Mr. Knight toward the support obligation would have to be credited to the post
motion support obligation before being credited to any pre-motion arrearage,
otherwise it is a modification for months gone by prohibited by
RCW
26.09.170(1).
In re Marriage of Shoemaker, (1995) 128 Wash. 2d. 116, 121-123, 904
P. 2d. 1150, noncustodial parent may not be ordered to pay more support for
previous months than required by a previous order.
Therefore,
the child support order does not authorize any license suspension for
nonpayment and any enforcement of such suspension, including by a seizure of
the automobile where the automobile is not sold where the proceeds are applied
to such support obligation.
NO CRIMINAL CHARGE FOR
DRIVING WHILE LICENSE SUSPENDED HAS YET BEEN FILED ARISING FROM THE INCIDENT OF
AUGUST 4, 2002, THUS NO ON-GOING STATE COURT PROCEEDING ARISING FROM THIS
INCIDENT
Attached
as Exhibit A to the Knight Declaration is the letter dated August 15, 2002 sent
to Mr. Knight by Norm Maleng, King County Prosecuting Attorney and by Margaret
E. Nave, Senior Deputy Prosecutor, District Court Unit. The plaintiff is invited to attend a
“Re-Licensing Program” in the King County Courthouse on October 21, 2002 at
9:00 AM. Should Mr. Knight not take
advantage of this “entirely voluntary program” the
King County Prosecutor may
file a criminal charge for Driving While License Suspended (DWLS), but they HAVE NOT YET DONE SO.
There
are several obvious problems with this letter:
Mr. Knight has no traffic offenses on his record that the suspension is
based upon. Exhibit D to the Knight
Declaration, package sent by Lawna M. Knight, Custodian of Records for the
Washington State Department of Licensing (DOL) to the plaintiff. These records include a cover sheet where she
certifies the attached documents, a License Suspension Certification signed by
G. Grosvenor-Nyreen of the Department of Social and Health Services (DSHS)
Division
of Child Support (DCS) on September 5, 2001 and an Abstract of Complete Driving
Record printed out on February 27, 2002.
The Abstract does not list any violations, all violations that the
plaintiff knows he has been convicted of are too old to be listed. Therefore, there are no traffic tickets to
pay.
RCW 26.09.170(1) prohibits
reduction of child support arrears,
RCW 74.20A320(13) prohibits any
administrative proceeding on the child support arrears and the license
suspension other than the one authorized by
RCW 74.20A.320, and the Antipeonage
Act, 42 U.S.C. §1994 and
18 U.S.C. §1581, prohibits community service and work
programs under the threat of legal process.
Extortion, which includes obtaining money, even money legally due and
owing, by threat of a criminal prosecution, is defined as a crime,
RCW
9A.56.130, where threat is defined by
RCW 9A.04.110(25)(d) through (j).
RCW 9A.04.110(25)(d) lists as a “threat” a
threat to report a person for crime or to have such person prosecuted for the
crime. Extortion in this sense is the
conditioning of no criminal prosecution or no report of a crime upon the
payment of money or other valuable consideration. State
v. Richards, (1917) 97 Wash. 587, 589, 167 P. 47, predecessor to the
extortion statute can be violated if the object of the threat of criminal
prosecution was monetary gain, even where the party making the threat believed
himself owed the money.
STATE COURT IN MERCER ISLAND V. KNIGHT FOUND IT LACKED
JURISDICTION TO DETERMINE WHETHER THE WORKFIRST ACT WAS CONSTITUTIONAL, WHETHER
THE ACT’S STATUTORY REQUIREMENTS FOR NOTICE WERE MET, OR WHETHER APPLICATION OF
THE ACT TO MR. KNIGHT IS DECLARED NULL AND VOID BY THE ANTIPEONAGE ACT
Prior
to the incident of August 4, 2002, Mr. Knight was charged with DWLS by the
City
of Mercer Island for incidents occurring on January 21, 2002 and February 2,
2002. This gave rise to two actions
filed in the King County District Court, Bellevue Division: City of Mercer Island v. Knight,
Nos.
84199 and 84268. Believing himself to
have standing to challenge the validity of the WorkFirst Act, Laws of Washington
1997 chapter 58, §§801 et seq., which added
RCW 74.20A.320 et seq., Mr. Knight
moved for dismissal of the charges on several different grounds, including that
the WorkFirst Act is invalid as a multi-subject bill prohibited by the
Washington Constitution, and that application of its provisions to a
pre-existing child support order and to a pre-existing child support arrearage
is a bill of attainder and an ex post facto law, that no legitimate interest of
government is served by suspending licenses for non-payment of child support,
not to enforce the obligation, and not rationally related to the state interest
in the safety of the roads and highways.
Mr. Knight also challenged it as an attempt to coerce employment in
liquidation of a debt or obligation declared null and void by
42 U.S.C. §1994,
the Antipeonage Act.
On
April 19, 2002, a hearing was held by
Bellevue District Court on the
motions. Exhibit G to the Knight
Declaration is the
transcript of this hearing prepared by the plaintiff. On page 9 at lines 22-27 of this
transcript
is the ruling by the state court:
Knight: Are you gonna decide the other issues having
decided the issue of fact?
Court: Well the issue before me was whether or not
the case should be dismissed based upon lack of notice. This court does not have jurisdiction to hear
collateral issues of whether or not the
Legislature is empowered to adopt the WorkFirst law. That’s a collateral attack on the licensing
scheme that I don’t have jurisdiction to hear that issue. So I’m not going to hear it.
“Court” is Judge Janet Garrow. The two causes of action were combined at
this hearing. Subsequent to this ruling,
Mr. Knight filed Knight v. City of Mercer
Island et al, W.D. Wash. No. C02-879L and moved for preliminary injunction
on the grounds that he lacked adequate remedy at law in the state court, i.e.
to have heard and TIMELY decided,
meaning before trial, not after conviction without such opportunity on appeal,
his claims that the statute as applied is a bill of attainder and an ex post
facto law, and declared null and void by the Antipeonage Act. While Judge Lasnik denied the preliminary
injunction, he acknowledged that the state court found it lacked jurisdiction
to hear the challenge to the validity of the WorkFirst Act.
Order Denying Preliminary Injunction page 2,
lines 9-13, Document No. 34, W.D. Wash. No. C02-879L.
On
May 20, 2002, a trial commenced in
Bellevue District Court. Exhibit F to the Knight Declaration is
documentation that the City of Mercer Island for the first time shared with Mr.
Knight. It was not entered into evidence
because Judge Linda Jacke found that a challenge to the in personum
jurisdiction of the DSHS based upon lack of notice specifically required by
RCW
74.20A.320(1) to be barred as a collateral attack. Because a family emergency required one of
the jurors to leave, Mr. Knight moved for and was granted mistrial.
On
May 21, 2002, a second trial commenced in
Bellevue District Court, this time
before Judge Janet Garrow. Exhibit H to
the Knight Declaration is the
transcript prepared by Mr. Knight of excerpts of
these proceedings. These excerpts
include argument and decision on last minute pretrial motions and on exceptions
to the jury instructions. On pages 5-6,
Judge Garrow made the following ruling:
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?
Judge Jacke’s ruling was that her court in a criminal
DWLS trial, lacked the jurisdiction to consider whether the
DSHS had perfected
the notice requirements of
RCW 74.20A.320(1) to obtain in personum jurisdiction
over Mr. Knight to suspend his license for nonpayment of child support. Exhibit F to the Knight Declaration was thus
never entered into evidence in the
Bellevue District Court. These issues are
briefed by Mr. Knight on
appeal, City of Mercer Island v. Knight,
King County Superior Court No. 02-1-01137-0 SEA. Exhibit F is not presently before the
Superior Court in this appeal because it is not a part of the record on appeal.
DSHS LACKED IN PERSONUM
JURISDICTION TO CERTIFY NONCOMPLIANCE WITH A SUPPORT ORDER TO THE
DOL
RCW
74.20A.320(1) reads:
(1) The department may serve upon a
responsible parent a notice informing the responsible parent of the
department's intent to submit the parent's name to the department of licensing
and any appropriate licensing entity as a licensee who is not in compliance
with a child support order. The department shall attach a copy of the
responsible parent's child support order to the notice. Service of the notice
must be by certified mail, return receipt requested. If service by certified
mail is not successful, service shall be by personal service.
Not only did defendant DENNIS BRADDOCK, through his
agency DSHS fail to successfully complete notice by certified mail, he failed
to accomplish personal service.
United Pacific Insurance v. Discount Co.,
(1976) 15 Wash. App. 559, 561-562, 550 P. 2d. 699, which reads:
The facts in this case at bench
demonstrate a clear attempt by the process server to yield possession and
control of the documents to Mrs. Norelius while he was positioned in a manner
to accomplish that act. Normal “delivery”
thereof would have been effected upon Mrs. Norelius except for her obvious
attempt to evade service by slamming the door after the papers had been held
out to her. The summons need not
actually be placed in the defendant’s hand.
We find, as did the trial court, that facts in the record support a
conclusion that “delivery” occurred and service was effected.
is in
conflict with and therefore has been overruled by
Weiss v. Glemp, (1995) 127 Wash. 2d. 726, 903 P. 2d. 455. The facts as found in
Weiss at 127 Wash. 2d. 729 read in part:
The
next morning, a legal messenger went to the rectory where Glemp was staying to
serve the summons and complaint. The
messenger and a Polish interpreter knocked on the door and told the woman who
answered that they were looking for Glemp.
The woman went into a neighboring room and returned with a priest. The priest informed them that Glemp was
having breakfast and asked them to return later. The messenger responded that he had
“important legal documents . . . and it would only take a second to make the
delivery.” Clerk’s Papers at 33. The
priest asked them to wait and returned with a second priest who identified
himself in English as Glemp’s secretary.
The messenger told him they had legal documents for Glemp and would like
to see him. The secretary said Glemp was
not available, was not a citizen, and was not subject to this country’s
laws. The messenger responded that was
irrelevant and that he just wanted to deliver the documents to Glemp. The secretary asked the messenger and
interpreter to leave, and they left.
If the
rectory meets the definition in
RCW 4.28.080(15) of “house of his or her usual
place of abode” of Cardinal Glemp, however short his sojourn there, not decided
in
Weiss, 127 Wash. 2d. 731 n. 2, and
the priests were persons “of suitable age and discretion then resident
therein”, then the priests’ refusal to take the papers and demand that the
messengers leave, is as much a refusal of “delivery” as Mrs. Norelius’. Nevertheless,
Weiss found at 127 Wash. 2d. 731-732 that the summons was not left
with anyone, with either Cardinal Glemp
or a person of suitable age
and discretion, such as Glemp’s secretary who came to the door. That is noncompliance with the statute, an
essential objective of the statute is the requirement that process be actually
delivered to a responsible person.
That
RCW
74.20A.320(1) requires personal service within meaning of
RCW 4.28.080 absent a
successful service by certified mail is evident from the statute’s language,
which does not qualify the definition of the phrase “personal service”.
State
ex rel Coughlin v. Jenkins, (2000) 102 Wash. App. 60, 64-65, 7 P. 3d. 818
found that an unqualified statutory reference to “personal service” means
personal service within meaning of
RCW 4.28.080.
Weiss,
not
United Pacific Ins., is the
appropriate standard of law to evaluate this evidence.
The
declaration of service by C. Legge on the first page of Exhibit F to the Knight
Declaration reads in significant part:
Then
presenting to and leaving the same with JANE DOE, RESIDENT WHO REFUSED TO GIVE HER
NAME 67 125 5’6C/F GRAY HAIR.
C. Legge goes into somewhat more detail on the second
page:
SERVED
JANE DOE RESIDENT, WHO REFUSED TO ACCEPT THE DOCUMENTS, SIGN OR GIVE HER
NAME. SHE SAID SHE WOULD NOT ANSWER ANY
QUESTIONS.
There is no more information available from C.
Legge. Based upon the standards for
personal service set forth in
Weiss,
there is no personal service accomplished by defendant DENNIS BRADDOCK and the
DSHS never had in personum jurisdiction to certify noncompliance with the
support order to the DOL.
CANATELLA,
GREEN, AND BELTRAN DEFINE
AND DELIMIT
YOUNGER ABSTENTION
PRACTICE IN THE NINTH CIRCUIT
Canatella v. California, (9th Cir. 2002)
This
court reviews de novo whether abstention is required.
Green
v. City of Tucson,
Of course the
Green interference inquiry presumes the existence of an ongoing
state proceeding to be interfered with, which is precisely what the first prong
of the
Middlesex test requires the
district court to consider. We consider
whether the state court proceedings were ongoing as of the time the federal
action was filed. See Beltran v. State of California,
Beltran v. California, (9th Cir. 1988)
Thus
the first prong for
Younger
abstention under
Middlesex requires that a state court proceeding must be
ongoing AT THE TIME the plaintiff
files his federal complaint. Therefore,
if Mr. Knight anticipates that a prosecutor may file a criminal information BUT HAS NOT YET DONE SO, it is
reasonable for him to draft his federal complaint FAST and file it. Under Beltran, the
King County Prosecutor may
not require this Court’s abstention by filing his criminal information AFTER the plaintiff has filed his
federal complaint.
In re
Marriage of Knight is not interfered with because the support order was entered
in 1991 and is not being challenged in this action. It did not authorize license suspension for
nonpayment and has not been modified to authorize such license suspension, and
there is no modification pending at the time the
Complaint was filed.
If
the DSHS administrative action is considered a state court proceeding for
Younger abstention analysis, as the
DSHS never acquired in personum
jurisdiction to certify noncompliance with a support order to the
DOL, there is
no on going state court proceeding arising from that state administrative
action either. Even if the proceeding
may be considered “ongoing”, there is the matter of the third prong of the
Middlesex test, adequate opportunity to
litigate federal claims in the state proceedings. Without notice sufficient to acquire in
personum jurisdiction as required by
RCW 74.20A.320(1), the plaintiff was
deprived by defendant DENNIS BRADDOCK of adequate opportunity by means of a
petition for redetermination of administrative decision filed in
King County
Superior Court,
chapter 34.05 RCW subsequent to the hearing provided by
RCW
74.20A.320, wherein he may challenge the validity of the WorkFirst Act. Where Mr. Knight raised these issues in the
criminal DWLS proceeding that arose from the
Mercer Island incidents, the state
court found it lacked jurisdiction to consider these issues during the hearing
on April 19, 2002, and again during argument on pretrial motions and exceptions
to jury instructions on May 21, 2002.
Therefore, the third prong of the
Middlesex
test is not met by these proceedings. At
the TIME, Beltran, supra, that Mr. Knight filed the
Complaint in this action,
he lacked adequate opportunity to raise and to have timely decided, his federal
issues as to the validity of the WorkFirst Act and even of the in personum
jurisdiction of the DSHS to certify noncompliance to the
DOL.
True,
Mr, Knight has filed his
brief where he argues these federal issues before the
King County Superior Court on appeal, No. 02-1-01137-0 SEA, but he has to win
the jurisdictional argument before he be heard and have decided his claims
against the validity of the WorkFirst Act and its application to him. Ordinarily,
Younger abstention applies where a losing litigant has not
exhausted his state appellate remedies, Dubinka
v. Judges of Superior Court, (9th Cir. 1994) 23 F. 3d. 218, 223 citing
Huffman v. Pursue, Ltd., (1975) 420 U.S.
592, 607-611, 43 L. Ed. 2d. 482, 95 S. Ct. 1200. Neither Dubinka
nor
Huffman considered the case where
the state court found itself lacking in jurisdiction to consider the validity
of the applicable state statute. What
Huffman did find at 420 U.S. 594 was:
A
similar issue was raised in
Gibson v.
Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), but we were
not required to decide it because there the enjoined state proceedings were
before a biased administrative body which could not provide a necessary
predicate for a
Younger dismissal,
that is, 'the opportunity to raise and have timely decided by a competent state
tribunal the federal issues involved.'
Id.,
at 577, 93 S.Ct., at 1697.
Where the state court finds itself unable to “timely
decide” “the federal issues involved”, which can only mean before the trial in
a criminal case, not on appeal after a trial wherein the party cannot present a
defense based upon the federal issues, the opportunity required for
Younger abstention as found by
Gibson for timely decision is not
met. The parties in
Huffman did not allege that the Ohio court found itself to lack
jurisdiction to decide any federal issues the parties might raise; it does not
apply to the situation here. In
addition:
Green v. City of Tucson, (9th Cir. 2001)
The
Supreme Court has stressed, on the one hand, that federal courts are obliged to
exercise the jurisdiction given to them,
Colorado
River, 424 U.S. at 817, 96 S. Ct. 1236, and on the other, that when a case
meets the narrow
Younger exception to
that general principle “there is no discretion to grant injunctive
relief.”
Id. at 816 n. 22. So in
addressing
Younger abstention issues,
district courts must exercise jurisdiction except when specific legal standards
are met, and may not exercise jurisdiction when those standards are met; there
is no discretion vested in the district courts to do otherwise.
Colorado River is
Colorado River Water Conservation Dist. v.
United States, (1976) 424 U.S. 800, 47 L. Ed. 2d. 483, 96 S. Ct. 1236. Having thus established that there is no
discretion to abuse on the question of whether Younger applies,
Green
went on to find, at 255 F. 3d. 1094:
Younger doctrine only applies when
there is an additional element absent here: that the federal relief sought would
interfere in some manner in the state court litigation. That requirement is ordinarily (although not
always, see
Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1, 107 S. Ct. 1519, 95 L. Ed. 2d. 1, (1987)) restricts application of
the
Younger doctrine to circumstances
in which the state court proceeding is an enforcement action against the
federal court plaintiff, and is not met simply by the prospect that the federal
court decision may, through claim or issue preclusion, influence the result in
state court.
After reviewing
Younger
v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 746 and
Middlesex County Ethics Comm. v. Garden
State Bar Ass’n, (1982) 457 U.S. 423, 73 L. Ed. 2d. 116, 102 S. Ct. 2515,
Green went on to find that a conflicting
federal court decision on a point of law does not “interfere” with an ongoing
state court proceeding, at 255 F. 3d. 1096-1098, and that the federal case in
question does not so interfere, at 1098-1099.
Green cited and analyzed
New Orleans Public Service Inc. v. Council
of the City of New Orleans, (NOPSI)
(1989) 491 U.S. 350, 105 L. Ed. 2d. 298, 109 S. Ct. 2506. NOPSI, the electric utility for New Orleans,
challenged a New Orleans City Council utility rate order in both Louisiana and
federal courts.
NOPSI found that
Younger
does not extend to where the plaintiff in the federal action is the plaintiff
in the state court action, even if “important state interests” are at stake in
the state court proceeding, and that the party has full and fair opportunity to
litigate his federal law claims in the state court proceeding he himself
commenced.
NOPSI specifically found at 491 U.S. 368 that:
it
has never been suggested that
Younger
requires abstention in deference to a state judicial proceeding reviewing
legislative or executive action.
quoted by
Green
at
Therefore,
because the necessary elements for
Younger abstention are not present, this
Court is thus required to exercise its jurisdiction to determine all of the
issues raised by the plaintiff in this case, and any issues the defendants may
raise.
The
plaintiff takes the position that the claims in this action dependent upon
42 U.S.C. §1983 are not precluded by the Full Faith and Credit Act,
28 U.S.C.
§1738, as constructed by
Allen v. McCurry,
(1980) 449 U.S. 90, 94. 66 L. Ed. 2d. 308, 101 S. Ct. 411 and
Migra v. Warren City School Board of
Education, (1984) 465 U.S. 75, 80-85, 79 L. Ed. 2d. 56, 104 S. Ct. 892, or
any other res judicata, collateral estoppel, issue or claim preclusion
doctrine. The plaintiff takes the
position that jurisdiction is not barred by
Rooker-Feldman
doctrine for any claim raised in his
Complaint.
The plaintiff takes the position that
42 U.S.C. §1994 creates a
statutory exception to the Full Faith and Credit Act, to preclusion doctrines
based on state court proceedings, and to
Rooker-Feldman
by its inclusion of the word “orders”.
Congress is authorized to pass the Antipeonage Act with such powers by
Section 2 of the
Thirteenth Amendment, and that Congress intended it to be, and
it is, an Alexander’s Sword that cuts through the Gordian Knot of law that
builds up to hold people in servitude for their debts and obligations.
However,
the Order to Show Cause only requested argument that this
Court not abstain
under the
Younger doctrine. If this
Court finds that Mr. Knight has met
the requirements of the Order to Show Cause, he respectfully requests an
adequate opportunity to respond before any dismissal based on grounds other
than
Younger v. Harris.
CONCLUSION
The
plaintiff has met the requirements of the Order to Show Cause and this case
should not be dismissed on
Younger
abstention grounds.
RESPECTFULLY SUBMITTED, September 3,
2002.
____________________________________
Roger
W. Knight, plaintiff
If the back button does not take you there,
click Home to go
to the Index page of this Antipeonage Act Website,
click Enemies
for the main Enemies
page, click
Letters for the
Letters page, and click
Allies for the
Allies page.
Click C02-1641C
to get to the main
page for this case.
Or you can use the
Antipeonage Act Site Map.