Knight v. Mercer Island Motion for Preliminary Injunction

Comes now ROGER W. KNIGHT, the plaintiff, to move for a preliminary injunction prohibiting the defendants from any further prosecution in City of Mercer Island v. Knight, King County District Court, Nos. MIC 84199 and MIC 84268, requiring the defendants to restore his license to operate a motor vehicle without requiring any payment of a reissue fee, and prohibiting the defendants from any further application or enforcement of Laws of Washington 1997 chapter 58, the WorkFirst Act, §§801 et seq. and RCW 74.20A.320 et seq. and other provisions of the Revised Code of Washington as modified by the WorkFirst Act §§801 et seq. to or against the plaintiff pending the outcome of this case.

This motion is based on the pleadings herein and upon the following Memorandum of Law.

MEMORANDUM OF LAW

A preliminary injunction is allowable if the court finds that the moving party demonstrates either 1) probable success on the merits and the possibility of irreparable injury, or 2) that serious questions are raised and the balance of hardships sharply favors the moving party. Colorado River Indian Tribes v. Town of Parker, (9th Cir. 1985) 776 F. 2d. 846, 849. Gilder v. PGA Tour, Inc., (9th Cir. 1991) 936 F. 2d. 417, 422 found:

In seeking a preliminary injunction, Karsten and the professional player plaintiffs must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in their favor. Diamontiney, 918 F.2d at 795. ‘The critical element in determining the test to be applied is the relative hardship to the parties. If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly.” Benda v. Grand Lodge of Int’l Ass’n of Machinists & Aerospace Workers. 584 F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937, 99 S. Ct. 2065, 60 L.Ed.2d 667 (1979).

For purposes of injunctive relief "' serious questions’ refers to questions which cannot be resolved one way or the other at the hearing on the injunction and as to which the court perceives a need to preserve the status quo lest one side prevent resolution of the questions or execution of any judgment by altering the status quo.” Republic of the Philippines, 862 F.2d at 1362. ‘Serious questions are ‘substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation.’ “ Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2nd Cir. 1953)). ‘Serious questions need not promise a certainty of success, nor even present a probability of success, but must involve a ‘fair chance of success on the merits.’” Id. (quoting National Wildlife Fed’n v. Coston, 773 F.2d 1513, 1517 (9th Cir. 1985)).

Diamontiney is Diamontiney v. Borg, (9th Cir. 1990) 918 F. 2d. 793. Republic of the Philippines is Republic of the Philippines v. Marcos, (9th Cir. 1988) (en banc) 862 F. 2d. 1355 cert den. 490 U.S. 1035.

Mr. Knight faces trial for two counts of Driving While License Suspended, Third Degree in City of Mercer Island, v. Knight, King County District Court, Bellevue Division, Nos. MIC 84199 and MIC 84268. Exhibits A, A-1, E, and F to the Declaration of Roger W. Knight (Knight Declaration). This combined case is currently set for jury call at 9:05 am, May 17, 2002. Exhibit A-1 Knight Declaration. The most likely event will be the scheduling of the trial for jury during the following week.

The state court found that it does not have jurisdiction to determine the validity of the statutes under which the license suspension was imposed in the criminal case for driving while license suspended. Knight Declaration pages 3-4, Declaration of Judith Calhoun. Absent these statutes, Mr. Knight’s license would never have been suspended, his driving record is clean. Exhibit D to the Knight Declaration, attached Abstract of Complete Driving Record.

The right to challenge the validity of any statute under which a person is prosecuted for a crime, or under which a legal disability was imposed the violation of which is prosecuted as a crime, is so fundamental to the right to due process, that no good faith argument can be made that the Fourteenth Amendment does not require a state to provide adequate remedy at law to decide the validity of the statute necessary to the criminal prosecution in the very same forum and the very same action in which the criminal charge is filed. This is why criminal cases cannot be litigated by administrative proceedings where the administrative agency, as part of the executive branch and not part of the judicial branch, and through separation of powers, cannot decide a constitutional challenge to the statute or to the application of the statute in question. Federalist Paper No. 78 made the point that the bill of attainder, ex post facto, and other clauses of the then proposed United States Constitution

can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the tenor of the Constitution void. Without this, the reservations of particular rights or privileges would amount to nothing.

Marbury v. Madison, (1803) 5 U.S. (1 Cranch) 137, 177-178, 2 L. Ed. 60 found that the courts have the authority to determine whether legislative acts are repugnant to the constitution of the jurisdiction and therefore void. Marbury specifically found that a federal court has the power to declare an Act of Congress void as repugnant to the Constitution. Similarly the courts of every state have declared and exercised the power to declare acts of its legislature void as repugnant to its state constitution and also, to declare acts of its legislature void as repugnant to the United States Constitution. The exception being City of Mercer Island v. Knight, King County District Court, Bellevue Division, Nos. MIC 84199 and MIC 84268, order of April 19, 2002.

Ex parte Royall, (1886) 117 U.S. 241, 248, 29 L. Ed. 868, 6 S. Ct. 734 in reviewing a criminal conviction in a state court under a state statute found:

. . . it is clear that if the local statute under which Royall was indicted be repugnant to the constitution, the prosecution against him has nothing upon which to rest, and the entire proceeding against him is a nullity. As was said in Ex parte Siebold, 100 U.S. 376: “An unconstitutional law is void, and is as no law. An offense created by it is no crime. A conviction under it is not merely erroneous, but is illegal void, and cannot be a legal cause of imprisonment.” So in Ex parte Yarbrough, 110 U.S. 654, S. C. 4 Sup. Ct. Rep. 152. it was said that if the statute prescribing the offense for which Yarborough and his associates were convicted was void, the court which tried them was without jurisdiction, and they were entitled to be discharged.

Ex parte Yarbrough, (1884) 110 U.S. 651, 654, 28 L. Ed. 274, 4 S. Ct. 152 found:

This, however, leaves for consideration the more important question -- the one mainly relied on by counsel for petitioners -- whether the law of congress, as found in the Revised Statutes of the United States, under which the prisoners are held, is warranted by the constitution, or being without such warrant, is null and void. If the law which defines the offense and prescribes its punishment is void, the court was without jurisdiction, and the prisoners must be discharged.

Ex parte Siebold, (1880) 100 U.S. 371, 376-377, 25 L. Ed. 717 found:

An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. . . . if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes. its authority to indict and try the petitioners arose solely upon these laws.

Therefore, the King County District Court’s determination that it lacked jurisdiction to consider a Constitutional challenge to the WorkFirst Act on its face or as applied to Mr. Knight is inconsistent with its assumption of jurisdiction over the criminal charge which can exist only by virtue of the WorkFirst Act and its scheduling the case for jury call and trial.

Martin v. Hunter’s Lessee, (1816) 14 U.S. (1 Wheat.) 304, 351-355, 4 L. Ed. 694 found that the federal courts may review the actions of the states to determine their Constitutional validity. It is the only way that Article I Section 10 of the Constitution can be enforced if a state and its courts refuses to abide by it or misinterprets it. Similarly it is the only way that subsequently ratified Amendments to the Constitution that limit the power of the states can be enforced where a state and its courts refuse to abide by them or misinterpret them, which is why these Amendments have Appropriate Legislation Clauses. It is why the predecessor to 42 U.S.C. §1983 was passed in 1871, 17 Stat 13, and has been modified but not repealed since.

To preserve the sovereignty of the state courts while meeting the obvious need for ultimate supervision by a federal forum, Congress enacted 28 U.S.C. §1257 and its predecessors to allow appellate review by the United States Supreme Court of final decisions by the state supreme courts. While 28 U.S.C. §1257 does not contain the word “exclusive” and appears to allow for any statute that Congress may enact to provide other means of federal appellate review of state court decisions, and while 28 U.S.C. §2254 provides the Supreme Court, the courts of appeals, and the district courts habeas corpus jurisdiction over state criminal proceedings, the Supreme Court established the Rooker-Feldman doctrine[1] which is that 28 U.S.C. §1257 is the only Act of Congress that presently provides the federal courts with appellate jurisdiction over decisions of state courts.

While the decision of the Bellevue Division of the King County District Court that it lacks jurisdiction to determine the validity of the WorkFirst Act on its face or as applied to Mr. Knight may be wrong, Rooker-Feldman doctrine prohibits this Court from reviewing it in this original action under 42 U.S.C. §1983. Having made that decision, the state court now exposes Mr. Knight to a possible criminal conviction without the due process right to present and have decided the issue of whether the statute under which his license was suspended is valid. With jury call currently scheduled for May 17, 2002, Mr. Knight is now in danger of a criminal conviction which this Court cannot review in this 42 U.S.C. §1983 action under Rooker-Feldman.

But Rooker-Feldman does not prohibit a federal injunction against a prosecution in a state court before such state court makes its decision. Therefore the Fourteenth Amendment issue of the due process right to have decided the validity of the statute in a criminal proceeding in this case meets both prongs of one of the Gilder tests for preliminary injunction: probable success on the merits and the possibility of an irreparable injury, including imprisonment, that cannot be cured by an order of this Court in this action.

So important is the fundamental right to adequate remedy at law to have heard and decided challenges to the validity of the applicable statutes in the same proceeding in the same forum in which a civil or criminal case is brought that the abstention doctrine set forth in Younger v. Harris, (1971) 401 U.S. 37, 45-54, 27 L. Ed. 2d. 669, 91 S. Ct. 746 specifically requires it for the federal court to abstain in a 42 U.S.C. §1983 where the cause of action involves an on going state court proceeding. At 401 U.S. 45-46, Younger found:

In Fenner v. Boykin, 271 U.S. 240, 70 L. Ed. 927, 46 S. Ct. 492 (1926), suit had been brought in the Federal District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interstate commerce. The Court, in a unanimous opinion made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances:

"Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908) and following cases have established the doctrine that when absolutely necessary for protection of constitutional rights courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection." Id., at 243-244.

These principles, made clear in the Fenner case, have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions. See, e. g., Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 79 L. Ed. 1322, 55 S. Ct. 678 (1935); Beal v. Missouri Pac. R. Co., 312 U.S. 45, 85 L. Ed. 577, 61 S. Ct. 418 (1941); Watson v. Buck, 313 U.S. 387, 85 L. Ed. 1416, 61 S. Ct. 962 (1941); Williams v. Miller, 317 U.S. 599, 87 L. Ed. 489, 63 S. Ct. 258 (1942); Douglas v. City of Jeannette, 319 U.S. 157, 87 L. Ed. 1324, 63 S. Ct. 877 (1943).

Bold faced emphasis added. In Ex parte Young, the key finding cited and preserved by Younger, is the need for adequate remedy at law in the state court proceeding. Adequate protection cannot be afforded where the state court judge rules that she lacks jurisdiction to determine the validity of the state statute in question.

See also Moore v. Sims, (1979) 442 U.S. 415, 425-426, 60 L. Ed. 2d. 994, 99 S. Ct. 2371 “Certainly, abstention is appropriate unless state law clearly bars the interposition of the constitutional claims.” Moore at 442 U.S. 432, “federal plaintiff must have an opportunity to press his claim in the state courts.” And see Pennzoil Co. v. Texaco, Inc., (1987) 481 U.S. 1, 14-15, 95 L. Ed. 2d. 1, 107 S. Ct. 1519.

Moore at 442 U.S. 433:

The most extensive explanation of those "extraordinary circumstances" that might constitute great, immediate, and irreparable harm is that in Kugler v. Helfant, 421 U.S. 117, 44 L. Ed. 2d 15, 95 S. Ct. 1524 (1975). Although its discussion is with reference to state criminal proceedings, it is fully applicable in this context as well.

"Only if `extraordinary circumstances' render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process. The very nature of `extraordinary circumstances,' of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be `extraordinary' in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation." Id., at 124-125.

If the state court itself finds that it cannot fairly and fully adjudicate the federal issues before it, such as a challenge to the state statute which provides for a legal disability the violation of which is being prosecuted as a crime, as a bill of attainder or an ex post facto law, because it lacks the necessary jurisdiction to do so even though it claims the jurisdiction to hear the criminal charge, that is an “extraordinary circumstance” under which this federal court may not abstain and can grant the necessary injunctive relief.

Mitchum v. Foster, (1972) 407 U.S. 225, 32 L. Ed. 2d. 705, 92 S. Ct. 2151 found that the federal courts have jurisdiction to review and enjoin litigation taking place in the state courts under circumstances that meet the exceptions set forth in Younger. It found that 42 U.S.C. §1983 creates a statutory exception to the Anti-Injunction Act, 28 U.S.C. §2283.

A preliminary injunction should also be granted requiring defendants GARY LOCKE, DENNIS BRADDOCK, and FRED STEPHENS to restore Mr. Knight’s license to operate a motor vehicle without a reissue fee to ease the hardship imposed upon Mr. Knight by the suspension. This fits within the Gilder criteria. Mr. Knight’s driving record indicates no more danger to public safety on the roads and highways than that presented by the issuance of any other driver’s license to any other person, thus no hardship upon the nonmoving parties.

CONCLUSION

For the reasons stated herein, the Motion to Shorten Time should be granted and this Motion for Preliminary Injunction should be granted.

RESPECTFULLY SUBMITTED, April 23, 2002.

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Roger W. Knight, plaintiff