Knight v. Mercer Island Reply re Plaintiff's Motion for Partial Summary Judgment

ROGER W. KNIGHT, )

)

plaintiff, ) No. C02-879L

v. )

) REPLY TO MERCER ISLAND

CITY OF MERCER ISLAND, ALAN ) ISLAND DEFENDANTS’ OPPOSITION

MERKLE, Mayor of Mercer Island, RON ) TO PLAINTIFF’S MOTION FOR

ELSOE, Chief of Mercer Island Police, ) PARTIAL SUMMARY JUDGMENT

LONDI K. LINDELL, Mercer Island City ) AND TO STATE OFFICERS’

Attorney, WAYNE STEWART, Assistant ) DEFENDANT’S (SIC) MEMORANDUM

Mercer Island City Attorney, FRED ) IN OPPOSITION TO PLAINTIFF’S

STEPHENS, Director of Department of ) MOTION FOR PARTIAL SUMMARY

Licensing, DENNIS BRADDOCK, Secretary ) JUDGMENT

of Department of Social and Health Services, )

GARY LOCKE, Governor of Washington, ) Plaintiff’s Motion Noted for June 28, 2002

and SUPERIOR TOWING, a corporation )

doing business in the State of Washington, )

)

defendants. )

____________________________________)

REPLY BRIEF

Comes now the plaintiff, ROGER W. KNIGHT, and responds to the Mercer Island Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment and to the State Officers’ Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment. This reply is limited to the issues raised in the Plaintiff’s Motion for Partial Summary Judgment: 1) Whether the impoundment of Mr. Knight’s automobile on February 2, 2002 was an unreasonable seizure in violation of the Fourth and Fourteenth Amendments and 2) Whether the Antipeonage Act, 42 U.S.C. §1994, provides this Court with subject matter jurisdiction independent of any other statute and whether its listing of the word “orders” creates a statutory exception to the Rooker-Feldman doctrine.

The remaining issues will be addressed in the plaintiff’s response briefs to the cross motions for summary judgment presented by the defendants. Plaintiff reserves the right to submit his own cross motions for summary judgment as to the remaining issues in this case.

SUPERIOR TOWING IS IN DEFAULT

SUPERIOR TOWING has not appeared in this case, has not filed an Answer to the Complaint nor a response to the Motion for Summary Judgment. As Robert Hoyden has properly served SUPERIOR TOWING, Document No. 8, who has had more than 20 days to respond, SUPERIOR TOWING is in default.

REPLY TO MERCER ISLAND’S RESPONSE WITH RESPECT TO THE IMPOUNDMENT OF MR. KNIGHT’S AUTOMOBILE

NO GENUINE ISSUE OF MATERIAL FACT

Defendants do not dispute any of the facts set forth in this action, including the essential facts that bear directly on the reasonableness of the impoundment: 1) the car was safely and legally parked where it was and 2) the owner of the car, the plaintiff, was present and could have authorized leaving the car where it was. Declaration of Officer Brian Noel in Support of Mercer Island Defendants’ Motion for Summary Judgment (Noel Declaration) and its attached Exhibits the other declarations and their attachments filed in this case. Officer Noel declares:

6. At the time, I was aware that Knight had been cited for DWLS in Mercer Island just 2 weeks prior, and yet he was still continuing to break the law. Thus, impounding the vehicle prevented him from returning to it and continuing to break the law, as he had already demonstrated a repeated willingness to do. If the car had been left where it was, Knight could have simply walked back to his car and driven it away upon his release from the Mercer Island Police Station.

Or he could have had someone else drive it away. Officer Noel lacks personal knowledge of the plaintiff’s intentions. The interest claimed for preventing Mr. KNIGHT from continuing to operate the motor vehicle was defeated by 1) releasing Mr. KNIGHT from custody and 2) allowing Mr. KNIGHT to recover his vehicle from SUPERIOR TOWING the next day. Officer Noel confirms in his declaration the punitive purpose of the impoundment.

Neither the absence of an impoundment on January 21, 2002 nor the impoundment on February 2, 2002 was an issue in the criminal Driving While License Suspended (DWLS) case, Mercer Island v. Knight, King County District Court, Bellevue Division Nos. MIC 84199 and MIC 84268, appealed, King County Superior Court No. 02-1-01137-0 SEA. Declaration by Roger W. Knight in Support of Plaintiff’s Reply to Mercer Island Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment (Knight Declaration IV) page 4.

YOUNGER ABSTENTION, ROOKER-FELDMAN, RES JUDICATA, COLLATERAL ESTOPPEL, CLAIM PRECLUSION, AND ISSUE PRECLUSION DO NOT PRECLUDE PARTIAL SUMMARY JUDGMENT IN FAVOR OF MR. KNIGHT AS TO THE IMPOUNDMENT OF HIS AUTOMOBILE

Defendants MERCER ISLAND assert that plaintiff’s Fourth and Fourteenth Amendment claims with respect to the impoundment of his automobile are precluded by the convictions for DWLS. But the impoundment was not based upon probable cause for DWLS. The search was conducted before the impoundment and no search was conducted after the impoundment. No evidence recovered in the search was presented to the state court and no motion to suppress could have been presented or argued. There is thus no res judicata, collateral estoppel, issue preclusion, claim preclusion, Younger abstention, or Rooker-Feldman bar to this Court considering the validity of the impoundment. Please consider Canatella v. California, (9th Cir. June 12, 2002) ____ F. 3d. ____ and its footnotes 6 and 7. Consideration of the validity of the impoundment does not require review of any state court proceeding, there is no “skillful attempt to reverse the decision of” the state court, Canatella note 6 citing Stern v. Nix, (3d. Cir. 1988) 840 F. 2d. 208, 212. Younger abstention requires that state court proceedings are ongoing and that plaintiff have an adequate opportunity to litigate the federal claim in the state court proceeding. Canatella, citing Middlesex County Ethics Commission v. Garden State Bar Association, (1982) 457 U.S. 423, 431, 73 L. Ed. 2d. 116, 102 S. Ct. 2515 and Green v. City of Tucson, (9th Cir. 2001) 255 F. 3d. 1086, 1097. Plaintiff had no opportunity to litigate his Fourth and Fourteenth Amendment claims with respect to the impoundment in the criminal DWLS proceeding and does not have any such opportunity in the state court system on appeal. Knight Declaration IV.

THE IMPOUND WAS AN UNREASONABLE SEIZURE IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS

State v. Greenway, (1976) 15 Wash. App. 216, 219 rev. den. 87 Wash. 2d. 1009, impound is unreasonable if alternatives exist. Mr. Greenway was arrested for a felony. Mr. KNIGHT was released several hours later after arrest for misdemeanor DWLS. State v. Simpson, (1980) 95 Wash. 2d. 170, 189, 622 P. 2d. 1199, impound was not lawful. State v. Peterson, (1998) 92 Wash. App. 899, 904-905 964 P.2d. 1231 dissent by Judge Schultheis found the impound was not reasonable.

State v. Stortroen, (1989) 53 Wash. App. 654, 769 P. 2d. 321, impound after arrest for DWLS is unlawful where the officer failed to consider alternatives and no reason for the driver to be taken into custody. Search was not upheld as incident to arrest for DWLS, Stortroen at 53 Wash. 660 citing United States v. Parr, (9th Cir. 1988) 843 F. 2d. 1228. State v. Barojas, (1990) 57 Wash. App. 556, 789 P. 2d. 321, where officer has discretion for custodial arrest and impound, it must be reasonable. In this case, defendants MERCER ISLAND can present no evidence that Mr. KNIGHT would not appear for any court hearing or is suspected of any crime other than DWLS. The search of his automobile, conducted BEFORE the impound, resulted in no evidence of any crime. State v. Coss, (1997) 87 Wash. App. 891, 989-900, 943 P. 2d. 1126, impound is unreasonable where another driver could have driven the vehicle. This is not even necessary where the car is safely and legally parked.

In their Opposition, defendants MERCER ISLAND cite State v. O’Neill, (2002) 110 Wash. App. 604. Officer observed possible drug paraphernalia. Id. at 606. Impound was thus requested to facilitate search. Id. at 607. This case is not relevant to where an impound was not necessary for the search as the search was conducted before the impound and no search was conducted after the impound. No drug paraphernalia was found in Mr. KNIGHT’S car.

O’Neill at 110 Wash. App. 609 cites Knowles v. Iowa, (1998) 525 U.S. 113, 142 L. Ed. 2d. 492, 119 S. Ct. 484. At 525 U.S. 116-117, Chief Justice Rehnquist noted that there two historical rationales for the “search incident to arrest” exception as set forth in United States v. Robinson, (1973) 414 U.S. 218, 234, 38 L. Ed. 2d. 427, 94 S. Ct. 467:

(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. . . . See also United States v. Edwards, 415 U.S. 800, 802-803, 94 S. Ct. 1234, 39 L. Ed. 2d. 771 (1974); Chimel v. California, 395 U.S. 752, 762-763, 89 S. Ct. 2034, 23 L. Ed. 2d. 685 (1969); Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 11 L. Ed. 2d. 777 (1964); Agnello v. United States, 269 U.S. 20, 30, 46 S. Ct. 4, 70 L. Ed. 145 (1925); Weeks v. United States, 232 U.S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652 (1914).

As Mr. KNIGHT was removed from the car to be taken into custody, the search conducted before the impound, no impound was necessary to meet the need to disarm Mr. KNIGHT so as to safely take him into custody. As to the need to preserve evidence for trial, Knowles at 525 U.S. 118 found:

Nor has Iowa shown the second justification for the authority to search incident to arrest - the need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.

Same is true for DWLS. Had the MERCER ISLAND police found evidence of a crime in the search, it could have been suppressed under Knowles. Officer Noel does not testify in his Noel Declaration that he was dissatisfied with the identification supplied by Mr. KNIGHT. His Exhibits 1 and 2 indicate his satisfaction with the plaintiff’s driver’s license. Knowles concludes at 525 U.S. 118-119:

Here we are asked to extend that “bright line rule” to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all. We decline to do so.

The assertion that defendants MERCER ISLAND had to impound the vehicle to prevent a driver whose license was suspended SOLELY for child support, and not for any reason rationally related to the state’s interest in the safety of the roads and highways, see Declaration by Roger W. Knight (Knight Declaration I) Exhibits D and F, and Noel Declaration Exhibits 1 and 2, to drive his vehicle from where it was safely and legally parked is patently absurd. On January 21, 2002, the plaintiff was stopped by Officer Robert D. Delashmutt of the Mercer Island Police Department for malfunctioning brake lights. Officer Delashmutt contacted the DOL and was informed of the license suspension. He cited the plaintiff for DWLS. However, he allowed the plaintiff to drive the vehicle to where it could be safely and legally parked. Knight Declaration I Exhibit F and Declaration by Roger W. Knight in Support of Plaintiff’s Motion for Summary Judgment (Knight Declaration III) pages 1-2.

In the first occasion, the plaintiff was allowed by MERCER ISLAND to park the vehicle in a safe and legal position and on the second occasion, the vehicle was safely and legally parked, but was impounded. The next day the plaintiff was allowed to recover his vehicle. The impoundment does not prevent the plaintiff from operating his motor vehicle.

By the standards set forth in the Supreme Court decisions cited herein above and in the Plaintiff’s Motion for Summary Judgment, the seizure of the automobile was unreasonable and therefore in violation of the Fourth Amendment and the Fourteenth Amendment. No authority cited by the defendants contradicts this.

CITY OF MERCER ISLAND’S MUNICIPAL LIABILITY

Defendant CITY OF MERCER ISLAND is liable for damages as well as injunctive relief under Monell v. Dept. of Social Services, (1978) 436 U.S. 658, 691-693, 56 L. Ed. 2d. 611, 98 S. Ct. 2018, as the CITY’s follows as an official policy the impoundment of automobiles where the driver is believed to be driving while license is suspended or revoked. While in this case, the CITY through its agent Officer Robert Delashmutt did not impound the automobile, the CITY is relying upon RCW 46.55.113, which authorizes municipalities to provide by local ordinance impoundment at the direction of a police officer for violation of RCW 46.20.342, the DWLS statute, but does not require such local ordinance for impoundment. The absence or enactment of such local ordinance is therefore the choice and the official policy of the municipality.

PERSONAL LIABILITY OF THE CITY OF MERCER ISLAND’S AGENTS

Defendant RON ELSOE is liable under Monroe v. Pape, (1961) 365 U.S. 167, 5 L. Ed. 2d. 492, 81 S. Ct. 473. Whether he is directly involved in the decision by Officer Noel to impound a legally parked automobile upon arrest for DWLS, no evidence of any disciplinary action against Officer Noel is presented in this case. Defendants MERKLE, ELSOE, LINDELL, and STEWART and their successors in their offices are all liable for prospective injunctive relief under 28 U.S.C. §1331 and 42 U.S.C. §1983. Ex parte Young, (1908) 209 U.S. 123, 157-168, 52 L. Ed. 714, 28 S. Ct. 441; Idaho v. Coeur d’Alene Tribe, (1997) 521 U.S. 261, 270-273, 296 (O’Connor’s concurrence), 138 L. Ed. 2d. 438, 117 S. Ct. 2028; and Verizon Maryland, Inc. v. Public Service Commission of Maryland, (2002) 122 S. Ct. 1753.

REPLY TO MERCER ISLAND’S AND STATE OFFICERS’ RESPONSES WITH RESPECT TO THE INDEPENDENT JURISDICTION PROVIDED TO THIS COURT BY THE ANTIPEONAGE ACT

Neither set of defendants who have responded to the Plaintiff’s Motion for Partial Summary Judgment directly respond to the specific issue raised by the plaintiff: Does this Court have jurisdiction to consider a claim for violation of the civil right provided by 42 U.S.C. §1994, and is this jurisdiction independent of any other statute? Upon such consideration, does 42 U.S.C. §1994 create a statutory exception to the Rooker-Feldman doctrine because as a practical matter, when peonage is imposed by persons acting under color of state law, they can only impose it with the orders of the state’s courts?

There is no dispute that the system known as peonage in New Mexico Territory was enforced by the Territory’s courts, both contractual peonage and peonage by court order upon judgment for civil or criminal liability, including liability for alimony and child support.

42 U.S.C. §1994, and the original statute, recorded at 14 Stat 546, both include the word “orders”. 42 U.S.C. §1983 and the original statute, recorded at 17 Stat 13, does not include the word “order”. This deliberate decision made by Congress between 1867 and 1871 to delete the word “order” from the later Civil Rights Act supports the Rooker-Feldman doctrine for civil rights claims dependent upon 42 U.S.C. §1983 for subject matter jurisdiction, but it simultaneously supports Mr. KNIGHT’s claim that 42 U.S.C. §1994 creates a statutory exception to Rooker-Feldman. All state court orders contrary to 42 U.S.C. §1994 are declared null void, whether entered prior to its passage on March 2, 1867 or subsequently, however “final” such orders may be.

“[I]t is familiar law that a federal court always has jurisdiction to determine its own jurisdiction.” United States v. Ruiz, (June 24, 2002) 122 S. Ct. ____ citing United States v. United Mine Workers, (1947) 330 U.S. 258, 291, 91 L. Ed. 884, 67 S. Ct. 677. Quoting Justice Oliver Wendell Holmes’ opinion in United States v. Shipp, (1906) 203 U.S. 563, 51 L. Ed. 319, 27 S. Ct. 165, UMW at 330 U.S. 291-292 found:

“We regard this argument as unsound. It has been held, it is true, that orders made by a court having no jurisdiction to make them may be disregarded without liability to process for contempt. In re Sawyer, [1888] 124 U.S. 200, 8 S. Ct. 482, 31 L. Ed. 402; Ex parte Fiske, [1885] 113 U.S. 713, 5 S. Ct. 724, 28 L. Ed. 1117; Ex parte Rowland, [1882] 104 U.S. 604, 26 L. Ed. 861. But even if the Circuit Court had no jurisdiction to entertain Johnson’s petition, and if this court had no jurisdiction to entertain Johnson’s petition, and if this court had no jurisdiction of the appeal, this court, and this court alone, could decide that such was the law. It and it alone necessarily had the jurisdiction to decide whether the case was properly before it. On that question, at least, it was its duty to permit argument, and to take the time required for such consideration as it might need. See Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, [1884] 111 U.S. 379, 387, 4 S. Ct. 510, [514], 28 L. Ed. 462, 465. Until its judgment declining jurisdiction should be announced, it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition, just as the state court was bound to refrain from further proceedings at the same time. Rev. Stat. §766, act of March 3, 1893, c. 226, 27 Stat. 751 [28 U.S.C.A. § 465]. The fact that petitioner was entitled to argue his case shows what needs no proof, that the law contemplates the possibility of a decision either way, and therefore must provide for it.” 203 U.S. 573, 27 S. Ct. 166, 51 L. Ed. 319, 8 Ann. Cas. 265.

If this Court did not have jurisdiction to hear the appeal in the Shipp case, its order would have had to be vacated. But it was ruled that only the Court itself could determine that question of law. Until it was found that the Court had no jurisdiction. “ * * * it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition * * *”

Application of the rule laid down in United States v. Shipp, supra, is apparent in Carter v. United States, 5 Cir. 1943, 135 F. 2d. 858. There a district court, after making the findings required by the Norris-Laguardia Act, issued a temporary restraining order. An injunction followed after a hearing in which the court affirmatively decided that it had jurisdiction and overruled the defendants’ objections based upon the absence of diversity and the absence of a case arising under a statute of the United States. These objections of the defendants prevailed on appeal, and the injunction was set aside. Brown v. Coumanis, 5 Cir. 1943, 135 F. 2d. 163, 146 A.L.R. 1241. But in Carter, a companion case, violations of the temporary restraining order were held punishable as criminal contempt. Pending a decision on a doubtful question of jurisdiction, the District Court was held to have power to maintain the status quo and violations as contempt.

Note 57 of UMW quotes Carter at 135 F. 2d. 861:

It cannot now be broadly asserted that a judgment is always a nullity if jurisdiction of some sort or other is wanting. It is now held that, except in case of plain usurpation, a court has jurisdiction to determine its own jurisdiction, and if it be contested and on due hearing it is upheld, the decision unreversed binds the parties as a thing adjudged. Treinies v. Sinshine Mining Co., [1939] 308 U.S. 66, 60 S. Ct. 4, 84 L. Ed. 85; Sunshine Anthracite Coal Co. v. Adkins, [1940] 310 U.S. 381, 403, 60 S. Ct. 907 [917], 84 L. Ed. 1263; Stoll v. Gottlieb, [1938] 305 U.S. 165, 59 S. Ct. 134, 83 L. Ed. 101. So is the matter of federal jurisdiction, the federal court may either have to determine the facts, as in contested citizenship, or the law, as whether the case alleged arises under a law of the United States.

The Antipeonage Act is a law of the United States.

This Court therefore has the jurisdiction to determine the jurisdiction granted to it by the Antipeonage Act. This determination must be made prior to any other ruling upon Mr. Knight’s claim for the protection of the Antipeonage Act with respect to the present attempt by defendants STATE OFFICERS to coerce Mr. KNIGHT into signing a repayment agreement of which compliance necessarily requires his employment. Jones v. Alfred H. Mayer, Co., (1968) 392 U.S. 409, 20 L. Ed. 2d. 1189, 88 S. Ct. 2186, for Civil Rights Act of 1866 or 42 U.S.C. §1981; Steel Co. v. Citizens for Better Environment, (1998) 523 U.S. 83, 89, 140 L. Ed. 2d. 210, 118 S. Ct. 1003 for the Emergency Planning and Community Right to Know Act of 1986 or 42 U.S.C. §11046; and Verizon Maryland, Inc. v. Public Service Commission of Maryland, (2002) 122 S. Ct. 1753, 1758-1759 for the Telecommunications Act of 1996 or 47 U.S.C. §252; each find that an Act of Congress grants subject matter jurisdiction to the federal courts as necessary to give effect to the rights it provides and if one construction of the statute provides an enforceable right and another construction of the statue denies the enforceable right.. If this Court finds that the word “orders” within 42 U.S.C. §1994 creates a statutory exception to Rooker-Feldman, Mr. KNIGHT has an enforceable right. If not, he does not.

As for the defendants’ assertion that operating a motor vehicle is a “privilege” Bell v. Burson, (1971) 402 U.S. 535, 540, 29 L. Ed. 2d. 90, 91 S. Ct. 1586 said no such thing:

Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a 'right' or a 'privilege.' Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (disqualification for unemployment compensation); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) (discharge from public employment); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of welfare benefits). See also Londoner v. Denver, 210 U.S. 373, 385--386, 28 S.Ct. 708, 713-714, 52 L.Ed. 1103 (1908); Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926); Opp Cotton Mills v. Administrator, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624 (1941).

The operation of the WorkFirst Act is clearly to deprive the plaintiff of his license to operate a motor vehicle solely on the basis of child support obligations;[1] it is an attempt to coerce employment by threat or fact of legal process within United States v. Kozminsky, (1988) 487 U.S. 931, 101 L. Ed. 2d. 788, 108 S. Ct. 2751. Therefore, it violates the Antipeonage Act. If amendment to the Complaint is necessary to assert the independent jurisdiction of the Antipeonage Act, it should be granted as justice so requires, FRCP 15(a).

CONCLUSION

For the reasons stated herein, the Plaintiff’s Motion for Partial Summary Judgment should be granted. Plaintiff will respond to the defendant’s cross motions for summary judgment (and res judicata issues, we’re out of pages) in his response briefs due July 15, 2002.

RESPECTFULLY SUBMITTED, June 27, 2002.

____________________________________

Roger W. Knight, plaintiff

[1] Congressional Globe, 39th Cong. 2d. Sess. p. 1571, Senator Lane’s comments about the effect New Mexican peonage had on the “peon with a family to support.” Exhibits B and C to Knight Declaration III. Congress thus intended the Antipeonage Act to cover support obligations.