UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

 

ROGER W. KNIGHT,                                    )

                                                                        )

                                    plaintiff,                        )           No.

            v.                                                         )

                                                                        )           DECLARATION BY

CITY OF MERCER ISLAND, ALAN            )           JUDITH CALHOUN

MERKLE, Mayor of Mercer Island, RON       )

ELSON, Chief of Mercer Island Police,            )

LONDI K. LINDELL, Mercer Island City       )

Attorney, WAYNE STEWART, Assistant        )

Mercer Island City Attorney, FRED                  )

STEPHENS, Director of Department of            )

Licensing, DENNIS BRADDOCK, Secretary  )

of Department of Social and Health Services,    )

GARY LOCKE, Governor of Washington,       )

and SUPERIOR TOWING, a corporation        )

doing business in the State of Washington,         )

                                                                        )

                                    defendants.                   )

____________________________________)

 

            I JUDITH CALHOUN, declare that:

            Since plaintiff ROGER W. KNIGHT has been charged with Driving While License Suspended on Mercer Island, I have been driving him to his court appointments on Mercer Island and in Bellevue.  I attended the hearing in his case on Mercer Island on April 19, 2002.  I was in the courtroom sitting next to him in the audience chairs when Wayne Stewart, the prosecutor, told Judge Janet Garrow that he was taking up the case of Mr. Knight next.

            During the hearing, Judge Garrow asked Mr. Knight to present his oral argument on his Motion to Dismiss the Complaint.  He started out telling her that as much as he would like her to invalidate the WorkFirst Act as a multi-subject bill contrary to the Washington Constitution, there were several other findings that had to be made first.  A more limited approach would be to consider whether the WorkFirst Act as applied to a child support order and arrearage that pre-existed the effective date of the Act, July 1, 1997, is a bill of attainder.  To the extent that nonpayment of child support has been considered a criminal matter, though this state has not had a criminal nonsupport statute since the Supreme Court of Washington invalidated it as void for vagueness in 1984, then such application of the WorkFirst Act is an ex post facto law.  But before we consider that, we will have to consider whether the Legislature even declared its intent that the WorkFirst Act applied to old child support orders and arrearages under the Smith and Cruz test.

            But before that, there was his defense based upon the State v. Dolson case, that the Department of Licensing (DOL) failed to update his address pursuant to a form that he filled out and that they failed to comply with statutory and due process notice requirements for a valid license suspension.  Consideration of this issue did not require any ruling on the validity of the WorkFirst Act.  Judge Garrow said that she read State v. Dolson.

            They discussed the State v. Dolson issue.  The judge found that because Mr. Knight could not produce a copy of the form that he filled out, she presumed that the DOL mailed the license suspension notice to the correct address and that he thus had sufficient notice and opportunity to be heard.  She further cited the Seattle case as a “constructive notice” and that he had to have understood that there might be a problem with his license.  He argued that first, the Seattle case was dismissed with prejudice and therefore, how is he supposed to know exactly what the paperwork looked like.  He did not receive it until after he requested discovery in the Mercer Island case.  He also argued that “constructive notice” was considered insufficient in Dolson.  It was the denial of opportunity for a hearing that Dolson found to be offensive to the statute, and to due process under the State v. Baker and Bell v. Burson cases.  Judge Garrow rejected that argument.  She then found that as she found that the DOL complied with the notice requirements, she did not have jurisdiction to consider a “collateral attack” on the license suspension itself.  Mr. Knight argued that the Supreme Court of Washington in Dolson invalidated three DWLS convictions and the underlying license suspension.  If they had jurisdiction to do that, so did the trial court whose decision they were reviewing.  Judge Garrow rejected that argument.

            Thus ended the State v. Dolson phase of the argument.

            Then something truly remarkable happened.

            Mr. Knight said “Okay.  We can now consider the validity of the WorkFirst Act.”

            “No we cannot.” declared Judge Garrow.  She stated clearly in words similar to “Because I do not have jurisdiction to entertain a collateral attack on the license suspension, I do not have jurisdiction to consider the validity of the WorkFirst Act.  Therefore I cannot rule on that and the Motion to Dismiss is denied.”

            I certify under penalty of perjury under the laws of the United States that the foregoing is true and correct.

 

Dated this 23d day of April, 2002, in Seattle, Washington, respectfully submitted and certified,

 

                                                            ____________________________________

                                                                        Judith Calhoun

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