Knight v. Mercer Island Motion to Amend Judgment

Comes now the plaintiff, ROGER W. KNIGHT, and moves to amend the Judgment and Order entered on September 25, 2002, to allow amendment of the Complaint if necessary to allow the plaintiff recovery of liability for the unreasonable seizure of his legally parked automobile on February 2, 2002 by defendants CITY OF MERCER ISLAND and SUPERIOR TOWING and to strike or vacate the part of the Order Part 8 pages 11-14, imposing a litigation bar upon the plaintiff prohibiting him from challenging pro se in a federal forum any future efforts to enforce a child support order.

STANDARDS FOR LITIGATION BAR OF PRO SE LITIGANT

The standards for barring a pro se litigant from filing actions in the federal courts are set forth in DeLong v. Hennesey, (1990) 912 F. 2d. 912 and O’Loughlin v. Doe, (1990) 920 F. 2d. 614. Such orders are reviewed for abuse of discretion, DeLong at 912 F. 2d. 1146. Error of law or erroneous assessment of the evidence is an abuse of discretion. Cooter & Gell v. Hartmarx Corp., (1990) 496 U.S. 384, 405, 110 L. Ed. 2d. 359, 110 S. Ct. 2447. Prefiling orders against vexatious litigant under the All Writs Act, 28 U.S.C. §1651(a), should rarely be filed, as it is an extreme remedy, and such order should “remain very much the exception to the general rule of free access to the courts”, DeLong at 912 F. 2d. 1144 citing In re Powell, (D.C. Cir. 1988) 851 F. 2d. 427, 431 which quoted Pavilonis v. King, (1st Cir. 1980) 626 F. 2d. 1075, 1079. Notice and opportunity to be heard is required before such an order is issued, litigant is entitled to an opportunity to oppose the entry of such an order. Id. The record needs to show in some manner that the litigant’s activities were numerous or abusive, Id. citing Wood v. Santa Barbara Chamber of Commerce, Inc., (9th Cir. 1983) 705 F. 2d. 1515, 1523, 1526, cert. den. 465 U.S. 1081 (35 related complaints filed); In re Oliver, (3d. Cir. 1982) 682 F. 2d. 443, 444 (over 50 frivolous cases filed), and In re Green, (D.C. Cir. 1981) (per curiam) 669 F. 2d. 779, 781 (over 600 complaints filed). There needs to be substantive findings of frivolous or harassing nature of the litigant’s actions. DeLong found at 912 F. 2d. 1148:

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 jursidiction. 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.

De Long further found at 912 F. 2d. 1148 that such orders must be narrowly tailored to fit the vice encountered and to avoid infringing on the litigator’s right of access to the courts. See also O’Loughlin at 920 F. 2d. 618, order overly broad.

STANDARDS FOR DETERMING FRIVOLOUS ACTION

O’Loughlin v. Doe, supra, 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. 2001) 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.

Under Washington law, A frivolous claim is one that cannot be supported by any rational argument in law or fact, Forster v. Pierce County, (2000) 99 Wash. App. 168, 183, 991 P. 2d. 687, rev. den. 141 Wash. 2d. 1010, 10 P. 3d. 407. Forster goes on to find:

The statute also requires the action be frivolous in its entirety, i.e., if any of the claims asserted are not frivolous, then the action is not frivolous. Given the welter of statutes involved here, we cannot say the action is utterly frivolous. We reverse the order granting reasonable attorney fees.

Forster thus found that a challenge to Pierce County’s denial of a concealed weapons permit to a person convicted of delivering illegal drugs in 1972 as being based on an ex post facto law, the Violence Reduction Act, Laws of Washington 1994 1st Sp. Sess., c. 7 §402 amending RCW 9.41.040, was not utterly frivolous.[1]

NONE OF MR. KNIGHT’S FEDERAL LAWSUITS CHALLENGING THE CHILD SUPPORT ORDER OR ENFORCEMENT OF SUCH ORDER AS DECLARED NULL AND VOID BY 42 U.S.C. §1994 MEET THE STANDARDS FOR FRIVOLOUSNESS. THEREFORE, THE STANDARD FOR LITIGATION BAR IS NOT MET

Mr. Knight’s construction of the Antipeonage Act is not only reasonable, Brent Moss v. Superior Court, (1996) 56 Cal. Rptr. 2d. 864, 868-870 found it to be meritorious. While the California Supreme Court reversed the findings as to the Thirteenth Amendment and the Antipeonage Act, it nevertheless affirmed the annulment of contempt of Mr. Moss on the grounds that he relied in good faith in the protection of the Thirteenth Amendment and the Antipeonage Act and cannot be expected to anticipate a future court decision finding that the antislavery protections in American law do not apply to child support orders. Moss v. Superior Court, (1998) 71 Cal. Rptr. 2d. 215, 950 P. 2d. 59.

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.

This Court construed 42 U.S.C. §1994 in a manner different than Mr. Knight’s construction, but as reasonable men can disagree on the construction of a statute, such disagreement does not give rise to a finding of no arguable basis in law and fact. That the federal child support criminal statute, 18 U.S.C. §228, where party was found to be in violation by failure to maintain gainful employment, implicates the Thirteenth Amendment was found in United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, 874 citing Pollack v. Williams, (1944) 322 U.S. 4, 88 L. Ed. 1095, 64 S. Ct. 792. Ballek judicially created a doctrine that a parent’s duty to provide for a child creates an exception to the Thirteenth Amendment. However, Ballek did not formally rule on whether this duty was outside the meaning of the phrase “debt or obligation, or otherwise” in 42 U.S.C. §1994. This question was left open and it is not wholly without merit that the 1867 Congress intended to prevent debts and obligations, including to the duty to provide for a spouse and children, to be reasons for imposing any coercion by legal process of a person’s service or labor in liquidation of a debt or obligation.

Neither is it wholly without merit to argue that the inclusion of the word “orders” in 42 U.S.C. §1994 creates a statutory exception to the Full Faith and Credit Act, 28 U.S.C. §1738, and to the Rooker-Feldman doctrine. These doctrines apply to claims under 42 U.S.C. §1983, which lacks the word “orders”, and has a legislative history that supports these doctrines. But there is no such legislative history with respect to the Antipeonage Act. Congress made a deliberate decision between 1867 and 1871 to delete the word “orders” from the subsequent civil rights legislation but they did not revise the Antipeonage Act to delete that word.

MR. KNIGHT’S CHALLENGE IN THE WASHINGTON COURTS TO THE WORKFIRST ACT AS A MULTI-SUBJECT BILL IS NOT AND CANNOT BE FRIVOLOUS IN THE WAKE OF INITIATIVE 695

The Washington Court of Appeals determined in Knight v. State of Washington, Department of Social and Health Services, No. 46753-1-I (Knight v. DSHS II), page 7 of Exhibit C to the State Officers’ Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment and Motion and Memorandum in Support of Defendant’s Motion for Summary Judgment (State Memo II), that Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142 Wash. 2d. 183, 191, 11 P. 3d. 762 did not “create any change in the law, the controlling principles or the legal climate.”

But this is just not true. In striking down Initiative 695 as a two subject bill prohibited by Article II Section 19 of the Washington Constitution, Amalgamated Transit reversed the essential logic of In re Boot, (1996) 130 Wash. 2d. 553, 925 P. 2d. 964 which upheld the Violence Reduction Act, Laws of Washington 1994 1st Sp. Sess., c. 7, as a single subject bill, and by reference affirmed three Washington Court of Appeals decisions upholding the Omnibus Alcohol and Controlled Substances Act, Laws of Washington Laws 1989 chapter 271. In re Boot at 130 Wash. 2d. 565-568 found:

Although the Act covers a number of issues, including public health, community networks, firearms and other weapons, public safety, education, employment, and media, the title of the bill is "AN ACT Relating to violence prevention.” Laws of 1994, 1st Sp. Sess., ch. 7, at 2196.

In our recent decision in Washington Fed’n of State Employees v. State, 127 Wn.2d 544, 901 P.2d 1028 (1995), we observed the constitutional provision "is to be liberally construed in favor of the legislation.” Id. at 555. With respect to the title of the law, "this court has long recognized that a general title consisting of a few well-chosen words, suggesting the general subject stated, is all that is necessary to comply with the constitutional provision.” Id. at 554. "Where the title is general, 'any subject reasonably germane to such title may be embraced within the body of the bill.’” Id. at 555-56 (citing De Cano v. State, 7 Wn.2d 613, 627, 110 P.2d 627 (1941)).

Although this omnibus law covers a variety of subjects, they are all related to its stated purposes, which are to:

(1) Prevent acts of violence by encouraging change in social norms and individual behaviors that have been shown to increase the risk of violence; (2) reduce the rate of at-risk children and youth, as defined in RCW 70.190.010; (3) increase the severity and certainty of punishment for youth and adults who commit violent acts; (4) reduce the severity of harm to individuals when violence occurs; (5) empower communities to focus their concerns and allow them to control the funds dedicated to empirically supported preventive efforts in their region; and (6) reduce the fiscal and social impact of violence on our society.

Laws of 1994, 1st Sp. Sess., ch. 7, § 101, at 2197-98. The title, "AN ACT Relating to violence prevention,” embraces all these purposes. "[A] title complies with the constitution if it gives notice that would lead to an inquiry into the body of the act, or indicate to an inquiring mind the scope and purpose of the law.” Young Men’s Christian Ass’n v. State, 62 Wn.2d 504, 506, 383 P.2d 497 (1963). The title of this bill meets the constitutional test.

Cornejo and Boot also argue that because the Act covers so many wide-ranging subjects, it violates the constitutional directive forbidding bills containing more than a "single subject.” Wash. Const. art. II, § 19. We have used the 'rational unity” test to determine if a bill contains a single subject. "All that is required is that there be some 'rational unity’ between the general subject and the incidental subdivision.” Washington Fed’n, 127 Wn.2d at 556 (citing State v. Grisby, 97 Wn.2d 493, 498, 647 P.2d 6 (1982), cert. denied sub nom. Frazier v. Washington, 459 U.S. 1211, 103 S. Ct. 1205, 75 L. Ed. 2d 446 (1983)). Although we have found only nine violations of the "single subject” rule since 1891, id. at 571-72 n.6 (Talmadge, J., concurring in part/dissenting in part), articulation of the elements of rational unity has often proved elusive.

The principal allegedly "non-germane” sections of the Act cited by Cornejo and Boot are sections other than the amendments to RCW 13.04.030(1)(e)(iv). Thus, even if Boot and Cornejo are correct about the other sections of the Act, the validity of RCW 13.04.030(1)(e)(iv) is unaffected. They do not contend RCW 13.04.030(1)(e)(iv) is itself outside the scope of the title. Moreover, a severability clause preserves the validity of the statute despite any invalidation of other sections of the Act. LAWS OF 1994, 1st Sp. Sess., ch. 7, § 913. State v. Anderson, 81 Wn.2d 234, 239-40, 501 P.2d 184 (1972).

The Legislature said in the intent section of the 1994 Act:

The legislature finds that violence is abhorrent to the aims of a free society and that it can not be tolerated. State efforts at reducing violence must include changes in criminal penalties, reducing the unlawful use of and access to firearms, increasing educational efforts to encourage nonviolent means for resolving conflicts, and allowing communities to design their prevention efforts.

The legislature finds that the problem of violence can be addressed with many of the same approaches that public health programs have used to control other problems such as infectious disease, tobacco use, and traffic fatalities.

Laws of 1994, 1st Sp. Sess., ch. 7, § 101, at 2197. The Legislature found it necessary to combine diverse provisions into a single omnibus act to address a single problem in a comprehensive way.

In rejecting a similar challenge to an analogous omnibus bill dealing with alcohol and controlled substances (the Omnibus Alcohol and Controlled Substances Act of 1989), the Court of Appeals said:

Although the civil and criminal provisions within the act cover a broad range of activities, each of those provisions furthers the legislative purpose of counteracting drug problems which are prevalent within our society. Thus, we conclude that the act does not violate the single subject requirement of the constitution.

State v. Jenkins, 68 Wn. App. 897, 901, 847 P.2d 488, review denied, 121 Wn.2d 1032, 856 P.2d 383 (1993). See also State v. Acevedo, 78 Wn. App. 886, 887-91, 899 P.2d 31 (1995), review denied, 128 Wn.2d 1014, 911 P.2d 1343 (1996); State v. Knight, 79 Wn. App. 670, 676-77, 904 P.2d 1159 (1995), review denied, 129 Wn.2d 1005 (1996). "[I]f the legislation is an omnibus bill designed by the Legislature or the people to address a larger subject area, the wishes of the Legislature or the people in addressing an issue comprehensively in a single bill may be respected.” Washington Fed’n, 127 Wn.2d at 575-76 (Talmadge, J., concurring in part / dissenting in part).

Here, the 1994 Act is an omnibus bill, the stated purpose of which is to address a single problem, violence prevention, in a comprehensive manner. The Act meets the rational unity test of article II, section 19 of our constitution as a legitimate expression of the legislative purpose.

Amalgamated Transit at 142 Wash. 2d. 183, 191 found that Article II Section 19 “is intended to prevent legislators, whether the people or the Legislature, from having to vote for a law they do not favor in order to obtain a law which they do.” The “Rules of statutory construction apply to initiatives.” as it applies to acts of the Legislature. Id., at 205. And:

It is not the prerogative nor the function of the judiciary to substitute what they may deem to be their better judgment for that of the electorate in enacting initiatives . . . unless the errors in judgment clearly contravene state or federal constitutional provisions.” Fritz v. Gorton, 83 Wn. 2d 275, 287, 517 P. 2d 911 (1974). Nor is it the province of the courts to declare laws passed in violation of the constitution valid based upon considerations of public policy.

Id., at 206. One consideration used to determine how liberally to construe Article II Section 19 in favor of the legislative act is whether the title was “general” or “restrictive”. A bill or initiative with a general title that encompasses all of its provisions is given the rational unity test for determining if its provisions cover a single subject or separate subjects. Amalgamated Transit at 142 Wash. 2d. 209.[2]

Initiative 695 had a general title. Id. at 216-217 (citing In re Boot and other cases). But the finding is:

However, there is no rational unity between the subjects of I-695. Similar to the act in Wash. Toll Bridge Auth. v. State[3], I-695 also has two purposes: to specifically set license tab fees at $30 and to provide a continuing method of approving all future tax increases. Further, neither subject is necessary to implement the other. I-695 violates the single-subject requirement of art. II, § 19 because both its title and the body of the act include two subjects: repeal of the MVET and a voter approval requirement for taxes.

Id. at 217. This completely reverses In re Boot and State v. Jenkins, (1993) 68 Wash. App. 897, 901, 847 P. 2d. 383 as to the construction and application of Article II Section 19. Many of the provisions of the Violence Reduction Act and the Omnibus Alcohol Act are not necessary to implement each other. Examples: An authorization to the Department of Health to perform a study is not necessary to implement a change in a firearms statute to prohibit convicted felons from owning long firearms, and neither is necessary to implement a tax on wine, beer, cigarettes, and soft drinks in the Violence Reduction Act. Non-criminal provisions for registration of kegs of malt liquor are not necessary to implement changes in controlled substance criminal statutes, and neither are necessary to implement drug and alcohol counseling in the public schools or to implement taxes on wine, beer, spirits, cigarettes, and carbonated beverage ingredients in the Omnibus Alcohol Act. Subsequent to Amalgamated Transit, City of Burien v. Kiga, (2001) 144 Wash. 2d. 819, 31 P. 3d. 659 invalidated Initiative 722. Because Amalgamated Transit and Kiga are the more recent constructions of Article II Section 19, they should control the analysis of bills challenged as multi-subject bills, including Mr. Knight’s challenge to the WorkFirst Act. Mr. Knight’s challenge can be supported by rational arguments in law or fact, and is therefore not frivolous within the standard set forth by Forster v. Pierce County, supra. And that, the Washington Court of Appeals did not find that Mr. Knight’s second challenge to the WorkFirst Act to be frivolous.

Amalgamated Transit has in addition to exposing the WorkFirst Act, the Violence Reduction Act, and Omnibus Alcohol Act to good faith attacks as multi-subject bills, endangered the state’s Uniform Controlled Substances Act, the Liquor Control Act, and numerous less comprehensive bills amending these laws. Even Title 12A of the City of Seattle’s Municipal Code arguably embraces two subjects and is therefore void.

Further details are set forth at www.antipeonage.com.

UNDER DELONG STANDARD, MR. KNIGHT’S CHALLENGE TO THE WORKFIRST ACT AS A BILL OF ATTAINDER AND AS AN EX POST FACTO LAW IS NOT PER SE FRIVOLOUS IF PRECLUDED BY FULL FAITH AND CREDIT ACT, 28 U.S.C. §1738, AND NEITHER IS HIS ORIGINAL COMPLAINT THAT TRYING HIM OF VIOLATING A STATUTE WITHOUT OPPORTUNITY TO CHALLENGE THE VALIDITY OF THE STATUTE AND HAVE SUCH CHALLENGE DECIDED ON ITS MERITS IN A CRIMINAL CASE OFFENDS THE FOURTEENTH AMENDMENT FRIVOLOUS EVEN IF PRECLUDED BY ROOKER-FELDMAN

The support order was imposed upon Mr. Knight in 1991. It has not been modified since. Due to his layoff from The Boeing Company in 1995, Mr. Knight was more than two years behind in compliance at the time the WorkFirst Act was passed in 1997. The license suspension is thus imposed solely on the basis of an Act of the Washington Legislature, not on any court order incorporating such legislation. Therefore, Mr. Knight’s challenge to the Act as a bill of attainder and as an ex post facto law is at least as reasonable as the challenge mounted by Mr. Forster in Pierce County Superior Court to the Violence Reduction Act and other bills amending chapter 9.41 RCW as ex post facto laws.

Pursuant to DeLong, supra, lack of jurisdiction to consider the claim does not make the claim per se frivolous. As to Mr. Knight’s claim that being denied opportunity to challenge the validity of a statute in a criminal case and to have such challenge timely decided on its merits offends his right to due process of law under the Fourteenth Amendment, it is the well recognized exception to Younger abstention. That the subsequent conviction precluded this Court from deciding such issue (at least until a habeas corpus petition can be filed under 28 U.S.C. §2254, if ever) by the Rooker-Feldman doctrine is why Mr. Knight moved for a preliminary injunction against the trial. While the state courts on appeal can repair the injury, it became irreparable by this Court when the trial was held without Mr. Knight being afforded an opportunity to challenge the validity of the license suspension under that terms of the statute as well as opportunity to challenge the validity of the statute itself. Pursuant to DeLong, lack of jurisdiction under Rooker-Feldman does not render a claim to be frivolous, particularly if the Rooker-Feldman bar did not come into effect until several weeks after the filing of the Complaint and a motion for preliminary injunction was filed along with the Complaint.

LITIGATION BAR IN THE ORDER IS OVERLY BROAD, IT PROHIBITS MR. KNIGHT FROM CHALLENGING ANY NEW LEGISLATION IN THIS COURT UNDER 42 U.S.C. §1983 IF IT INVOLVES CHILD SUPPORT

The Washington Legislature is prone to revisit child support and its enforcement. Many of its members are prone to design new and more Draconian remedies to enforce a fundamentally unworkable and unconstitutional system that inevitably leads to frustration. Excessive child support orders are unpaid child support orders, as long as child support orders are excessive, many will go unpaid. As long as layoffs happen every time the business cycle comes to a “correction”, child support orders will go unpaid. People will find a convenient scapegoat in the noncustodial parents laid off by the decisions of their bosses, the market, and the fact that we now have world wide free trade without a planetary minimum wage. Production tends to be relocated to nations where the local wage rates are in the pennies per hour. Part of this is due to exceptionally low standard of living and the desperation of the masses, and part of this is due to the mismatch in currency exchange rates. The peso has far more purchasing power within Mexico than the exchange rate gives it credit. Therefore, Mexican workers can support their families on the exchange rate equivalent of $9 per day they may earn producing parts for Boeing aircraft. The result is that Boeing machinists ordered to pay over $1,000 per month in child support will lose their jobs and will no longer be able to comply with their orders, even if the airlines recover and start buying large jet aircraft at a rate of 600 per year.

The political system being irrational as it is, and dependent upon scapegoats to deflect public anger from where it truly belongs, will blame the laid off Boeing machinist for not paying child support under these circumstances. If Mr. Knight is deprived by the litigation bar of the opportunity to challenge new legislation after it goes into effect, because he certainly cannot challenge it until it goes into effect, then the purpose of 42 U.S.C. §1983 will be defeated.

AS THIS COURT FOUND THAT THE CLAIM FOR UNREASONABLE SEIZURE OF THE AUTOMOBILE DOES NOT IMPLICATE THE CHILD SUPPORT ORDER OR THE WORKFIRST ACT, AND IS EXCLUDED FROM THE LITIGATION BAR, LEAVE TO AMEND THE COMPLAINT AND SUMMARY JUDGMENT SHOULD BE GRANTED

FRCP 15 provides that leave to amend pleadings should be liberally granted as justice requires. There is no dispute that the automobile was legally parked when the impoundment was ordered. There is no dispute that the search of the automobile occurred before the impoundment and yielded no evidence of any crime. There is no dispute that no search of the automobile was conducted after it was impounded, the impound was therefore not justified and cannot be justified by any need to secure any evidence or to facilitate a search. It is unreasonable under Knowles v. Iowa, (1998) 525 U.S. 113, 142 L. Ed. 2d. 492, 119 S. Ct. 484, not accounted for by this Court in the Order, pages 8-10.

Therefore, leave to amend the complaint should be granted to include a claim for unreasonable seizure in violation of the Fourth and Fourteenth Amendments, and a summary judgment should be entered against defendants CITY OF MERCER ISLAND and SUPERIOR TOWING for damages including $205.74 for the money Mr. Knight was forced to pay SUPERIOR TOWING to recover his automobile, and $50.00 in nominal damages for the tort of violation of civil rights established by the Constitution of the United States, as provided by 42 U.S.C. §1983.

CONCLUSION

For the reasons stated herein, this Motion to Revise Judgment should be granted.

RESPECTFULLY SUBMITTED, October 2, 2002.

____________________________________

Roger W. Knight, plaintiff

[1] The Supreme Court of Washington split 5-4 in State v. Schmidt, (2001) 143 Wash. 2d. 658, 23 P. 2d. 462. The Dissent, written by Justice Charles W. Johnson, 143 Wash. 2d. 681-687, strongly disagreed with the majority in that the right to keep and bear arms is a fundamental right, Constitutionally recognized in Article I Section 24 of the Washington Constitution and the Second Amendment.

[2] “Where a general title is used, all that is required is rational unity between the general subject and the incidental subjects.”