Judge Robert S. Lasnik

 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

 

ROGER W. KNIGHT,                                    )

                                                                        )           No. C02-879L

                                    plaintiff,                        )

            v.                                                         )           REPLY BRIEF IN SUPPORT OF

                                                                        )           MOTION FOR PRELIMINARY

CITY OF MERCER ISLAND, ALAN            )           INJUNCTION, FRCP 65

MERKLE, Mayor of Mercer Island, RON       )

ELSOE, Chief of Mercer Island Police,             )           Noted for May 17, 2002

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.                   )

____________________________________)

 

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

            Comes now ROGER W. KNIGHT, the plaintiff, to reply to Defendants City of Mercer Island, Alan Merkle, Ron Elsoe, Londi Lindell, and Wayne Stewart’s Opposition to Plaintiff’s Motion for Preliminary Injunction (Mercer Island Opposition) and to the Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Preliminary Injunction (State Opposition) filed by defendants GARY LOCKE, FRED STEPHENS, and DENNIS BRADDOCK.  Defendants CITY OF MERCER ISLAND, ALAN MERKLE, RON ELSOE[1], LONDI K. LINDELL, and WAYNE STEWART are herein after collectively referred to as MERCER ISLAND, unless referred to individually.  Defendants GARY LOCKE, FRED STEPHENS, and DENNIS BRADDOCK are herein after referred to as STATE OFFICERS.

DEFENDANTS DO NOT DISPUTE THE ESSENTIAL FACT: THE STATE COURT RULED THAT IT LACKED JURISDICTION TO DETERMINE THE VALIDITY OF THE WORKFIRST ACT

            This is an extraordinary case.  Usually a criminal defendant files a motion to dismiss the charge if he alleges that the statute under which he is prosecuted, whether for violation of the statute, or for violating a legal disability established by or pursuant to the statute, is invalid, either on its face or as applied to him.  Prosecution may appeal a dismissal upon such a motion, it is not a trial verdict of not guilty.  Washington Rules for Appeal Limited Jurisdiction (RALJ) 2.2(c)(1) and Washington Rules of Appellate Procedure (RAP) 2.2(b)(1).

            In almost every hearing on such a motion to dismiss in a criminal case, the trial court rules on whether the challenged statute is valid.  What is extraordinary is that in this case, the trial court ruled that it lacked the jurisdiction to determine whether the statute is valid.

            This essential fact is undisputed.  Mercer Island Opposition page 2 lines 10-11.  The Declaration of Wayne Stewart in Support of Mercer Island Defendants’ Opposition to Plaintiff’s Motion for Preliminary Injunction (Stewart Declaration) does not declare any facts with respect to the motion hearing in King County District Court, Bellevue Division on April 19, 2002.  He was there representing the CITY OF MERCER ISLAND.  Declaration of Roger W. Knight (Knight Declaration) page 4 lines 6-8 and Declaration of Judith Calhoun (Calhoun Declaration) page 2 lines 2-3.  Defendant WAYNE STEWART has personal knowledge of the facts declared by Mr. KNIGHT and by Mrs. Calhoun.  He did not declare that the Bellevue District Court ruled that it had jurisdiction to consider the validity of the WorkFirst Act.  He therefore does not dispute the declaration testimony of the plaintiff and of Mrs. Calhoun.

APPEAL DOES NOT PROVIDE ADEQUATE REMEDY AT LAW

            Should the jury convict, Article I Section 22 of the Washington Constitution guarantees to every criminal defendant the right to appeal in all cases.  A misdemeanor conviction in a court of limited jurisdiction can be appealed to the superior court of the county in which the trial court is located.  Washington Criminal Rules Limited Jurisdiction (CrRLJ) 9.1(b) for de novo appeals, Washington RALJ 2.3(a) for final decision appeals.  The decision of the superior court in such an appeal is subject to discretionary review, Washington RAP 2.3(d), only if:

(1) If the decision of the superior court is in conflict with a decision of the Court of Appeals or the Supreme Court; or

(2) If a significant question of law under the Constitution of the State of Washington or of the United States is involved; or

(3) If the decision involves an issue of public interest which should be determined by an appellate court; or

 (4) If the superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by the court of limited jurisdiction, as to call for review by the appellate court.

 

 Even if the Court of Appeals for the State of Washington finds that one or more of these conditions are met in a motion for discretionary review, it may deny the review.  The Supreme Court of Washington may deny or grant review.  Washington RAP 4.2(e), 4.3(e), 13.1(a).

            MERCER ISLAND argues that this appeal procedure provides the plaintiff adequate remedy even though the court of limited jurisdiction found it lacks jurisdiction to determine the validity of the WorkFirst Act.  Without the WorkFirst Act, the STATE OFFICERS lack legal authority to suspend the plaintiff’s license.  The appeal procedure does not provide adequate remedy because King County District Court, Bellevue Division and King County Superior Court are bound by City of Bellevue v. Montgomery, (1987) 49 Wash. App. 479, 743 P. 2d. 1257.  Montgomery at 49 Wash. App. 480-481 found:

            On appeal, Bellevue contends that the trial court's and the superior court's reliance upon Ponce is misplaced and that, in fact, the decision conflicts both with Ponce and Upward v. Department of Licensing, 38 Wn. App. 747, 689 P.2d 415 (1984). We agree that the decision here conflicts with Upward, thus warranting review pursuant to RAP 2.3(d), and we reverse.

            In Ponce the defendants Ponce and Ozuna were separately charged with being habitual traffic offenders.  The Supreme Court, reversing the Court of Appeals, held that the defendants could collaterally attack the underlying convictions in the habitual traffic offender action.  Ponce did not address the precise issue presented here.

            (1) Upward presented a different procedural setting. As here, the defendant in Upward had previously been determined to be a habitual traffic offender by the DOL and had chosen not to attack or appeal the use of his underlying convictions. Upward was subsequently charged with unlawful operation of a motor vehicle by a habitual offender. Upward moved to dismiss the criminal charge and filed a petition for writ of mandamus against the DOL, challenging the constitutionality of the previous traffic convictions. The court held that Upward, having failed to challenge the prior convictions at the habitual traffic offender hearing or to appeal the habitual offender finding, could not challenge them by extraordinary writ. The court also held that in a criminal proceeding the prosecution need only establish the defendant's operation of a motor vehicle during the efficacy of habitual offender determination and revocation; the prosecution need not prove the validity of offenses upon which the status of habitual traffic offender was based. Upward, at 752-53.

            Thus, the charges against Montgomery here should not have been dismissed.  Montgomery failed to avail himself of the opportunity to appeal the habitual traffic offender status following the DOL determination.  Under the ruling of Upward, Montgomery may not collaterally attack prior convictions in the subsequent criminal proceeding for driving while a habitual traffic offender, and the prosecution need not prove the validity of the underlying convictions in the subsequent proceeding.

Ponce is State v. Ponce, (1980) 93 Wash. 2d. 533, 611 P. 2d. 407.  At 93 Wash. 2d. 540, Ponce found that when a defendant is not afforded his right to counsel in a traffic misdemeanor case, any resulting conviction was void and cannot be used in a subsequent habitual traffic offender proceeding.  But where the party was afforded the right to counsel or waived such right, Ponce did not reverse State v. Peterson, (1976) 16 Wash. App. 77, 79, 553 P. 2d. 1110 which found:

In urging the invalidity of their license suspensions as grounds for reversal of the traffic convictions underlying the habitual offender charges, the defendants are attempting a collateral attack upon those convictions, Batey v. Batey, 35 Wn.2d 791, 215 P.2d 694 (1950), unlike the successful direct attack on the suspension in Bell v. Burson, supra. A collateral attack may be maintained only against a final order or judgment which is absolutely void, not merely erroneous or voidable, Bresolin v. Morris, 86 Wn.2d 241, 543 P.2d 325 (1975), Peyton v. Peyton, 28 Wash. 278, 68 P. 757 (1902), and then only on the basis of fraud going to the very jurisdiction of the court. Anderson v. Anderson 52 Wn.2d 757, 328 P.2d 888 (1958). A judgment is void only where the court lacks jurisdiction of the parties or the subject matter or lacks the inherent power to enter the order involved. Bresolin v. Morris, supra; Anderson v. Anderson, supra; see National Bank v. McCrillis, 15 Wn.2d 345, 130 P.2d 901, 144 A.L.R. 1197 (1942).

 

Bell v. Burson is Bell v. Burson, (1971) 402 U.S. 535, 29 L. Ed. 2d. 90, 91 S. Ct. 1586.

            State v. Swindell, (1979) 22 Wash. App. 626, 629-630, 590 P. 2d. 1292 affirmed (1980) 93 Wash. 2d. 192, 196, 607 P. 2d. 852 found that a defendant charged with unlawful possession of a firearm, which requires proof of a predicate conviction disqualifying subsequent possession of the firearm, the defendant may challenge the constitutionality of the underlying conviction, even though the defendant never appealed the original conviction nor brought any petition for habeas corpus relief or filed a personal restraint petition.  The Supreme Court of Washington, at 93 Wash. 2d. 196 citing State v. Holsworth, (1980) 93 Wash. 2d. 148, 607 P. 2d. 845 found that in a criminal proceeding, whether for unlawful possession of firearm as in Swindell or for habitual criminal as in Holsworth, where prior convictions are a necessary part of the criminal charge, the defendant may challenge the present use of prior convictions on the grounds that the prior convictions were unconstitutional.

            However, the Court of Appeals in Swindell at 22 Wash. App. 629 drew a distinction between criminal proceedings and civil proceedings citing Petersen, supra, and Ponce, supra.  Habitual traffic offender cases were civil proceedings and the civil nature of such proceedings precluded collateral attack on the underlying driving convictions, Swindell at 22 Wash. App. 629 and Ponce.  The state Supreme Court did not disturb this finding in its opinion, and therefore, collateral attack of a license suspension is prohibited in a mandamus action, Upward, and in any criminal proceeding for DWLS, Montgomery.

            Given this case law, Mr. KNIGHT was making the best of a very bad situation.  The Bellevue District Court found that he received “notice reasonably calculated” that met the requirements of statute and constitutional due process as found by Bell v. Burson, State v. Baker, (1987) 49 Wash. App. 778, 745 P. 2d. 1335; and State v. Dolson, (1999) 138 Wash. 2d. 773, 779-780, 982 P. 2d. 100.  Knight Declaration page 3 lines 6-24 and Calhoun Declaration page 2 line 26 through page 3 line 17.  The plaintiff does not ask this Court to rule that these facts do not prove adequate notice, because of Rooker-Feldman considerations.

            Unless the finding by the Bellevue District Court is reversed or vacated on appeal, the plaintiff has no remedy at law in the state courts as to the validity of the WorkFirst Act.  Because he did not receive actual notice of the license suspension, or even of any service by certified mail or by personal service, of any paperwork by the DSHS threatening any actual notification to the DOL, he was not afforded any opportunity for the hearing provided by RCW 74.20A.320(2) and (3).  Such an adjudicative proceeding must be requested within 20 days, a requirement that can only be met by a noncustodial parent with actual notice.[2]  The administrative agency has jurisdiction only to consider 1) whether the person is the responsible parent in the support order, 2) whether the responsible parent is required to pay child support in the support order, and 3) whether the responsible parent is out of compliance with the support order.  No jurisdiction is granted to the administrative agency to consider whether the parent is able to comply with the support order nor does the administrative agency have jurisdiction to consider the validity of the WorkFirst Act.  Therefore consideration of the validity of the WorkFirst Act is not prohibited to this Court by Rooker-Feldman by virtue of the administrative license suspension.  RCW 74.20A.320(13) provides that the WorkFirst Act is the exclusive administrative remedy for this type of license suspension.  The administrative provisions of WAC 388-14-510 to 570 are not available if the 20 days provided by RCW 74.20A.320 have elapsed.  Next time Mr. KNIGHT has an extra $60,000 available, hasn’t happened yet, he might try obtaining release of the suspension by paying the support debt in full.  As Mr. KNIGHT lacks wealth sufficient to comply with the order without employment, the use of the license suspension procedure to obtain his signature on a repayment agreement is an attempt to coerce his employment in liquidation of a debt or obligation, declared null and void by 42 U.S.C. §1994.  The STATE OFFICERS thereby commit the crime defined by 18 U.S.C. §1581.  If the state’s interest in the support of his children justify this felony, then there is no rule of law.[3]  Because the plaintiff was not allowed the opportunity to obtain an administrative hearing because of the lack of actual notice, he lost all opportunity to challenge the WorkFirst Act in a petition for judicial review of administrative decision in a state superior court under chapter 34.05 RCW.

            Upward, supra cuts off any challenge the license suspension more than 20 days after the fact in a civil action in a state superior court.  The application of Younger abstention to a state administrative proceeding appealable to a state court proceeding where the validity of the state statute under federal law can be heard, Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., (1986) 477 U.S. 619, 625-629, 91 L. Ed. 2d. 512, 106 S. Ct. 2718 does not apply where a party is denied the opportunity to be heard in either state administrative proceeding or in any state court proceeding by lack of actual notice.  The Bellevue District Court had no choice given Upward and Montgomery and the distinction drawn in Swindell, but to find that it can only invalidate the license suspension on the grounds that the notice was inadequate, it cannot find the license suspension itself invalid or find the WorkFirst Act invalid.

            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”, and that such decision is grounded on binding state appellate court opinions, the opportunity required for Younger abstention as found by Gibson for timely decision is not met with the requirement that the plaintiff fight for reversal of the state appellate court opinions before he can be heard on the federal issues concerning the validity of the WorkFirst Act.  The parties in the Huffman case did not allege that the Ohio court found itself to lack jurisdiction to decide any federal issues the parties might raise.  Huffman does not apply to the situation here.  Therefore, the plaintiff lacks adequate remedy at law in the state courts and this Court should not abstain from exercising its jurisdiction.

OTHER ISSUES RAISED BY DEFENDANTS MERCER ISLAND

            Mercer Island Opposition page 3 asserts in a heading title that this Court lacks subject matter jurisdiction.  Not true.  42 U.S.C. §1983 grants this Court original jurisdiction and creates a statutory exception to the Anti-Injunction Act 28 U.S.C. §2283, Mitchum v. Foster, (1972) 407 U.S. 225, 32 L. Ed. 2d. 705, 92 S. Ct. 2151.  What Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 746 found was that the federal courts must abstain from the exercise of such jurisdiction where the party has adequate remedy at law in the on going state court proceeding unless certain other extraordinary circumstances exist.

            In footnote 2 on page 3 of the Mercer Island Opposition, MERCER ISLAND asserts that this Court lacks personal jurisdiction over defendants LONDI LINDELL, WAYNE STEWART, and ALAN MERKLE.  Plaintiff respectfully directs this Court’s attention to the Declarations of Service filed by Registered Process Server Robert Hoyden on May 1, 2002.  Mr. Hoyden declares under penalty of perjury that he delivered copies of the Summons and Complaint and the other pleadings filed by the plaintiff to initiate this action to Allison Spietz, Deputy City Clerk for defendant CITY OF MERCER ISLAND, authorized to accept on behalf of defendants WAYNE STEWART, LONDI K. LINDELL, and ALAN MERKLE.  MERCER ISLAND does not assert how or whether Ms. Spietz is not authorized to accept on behalf of her CITY’s Mayor, City Attorney or Assistant City Attorney, where sued in their official capacities.

            As to liability of the individual MERCER ISLAND defendants, none of the immunity doctrines preclude prospective injunctive relief.

POSSIBILITY OF IRREPARABLE INJURY

            It appears that defendant WAYNE STEWART is promising that he would not request any penalty to be imposed beyond a fine of perhaps $250.00 in the event of conviction of DWLS, Third Degree.  Stewart Declaration.  The first problem with this is that upon conviction, the court is not bound to follow the prosecutor’s recommendations.  The Bellevue District Court may impose a sentence of imprisonment of up to 90 days for each conviction of DWLS, Third Degree under RCW 46.20.342(1)(c), which defines it as a misdemeanor, and RCW 9.92.030, which provides for a sentence of imprisonment for up to 90 days for each misdemeanor conviction.  Imprisonment is an irreparable injury.  Furthermore, if the Bellevue District Court imposes a suspended sentence, it can use it to enforce a probation or other order imposing certain conditions for perhaps one or two years.  Such an order necessarily imposes a loss of freedom, which is an irreparable injury.

            United States v. Robinson, (9th Cir. 1971) 449 F. 2d. 925, 928 concerned an action for contempt for violating a preliminary injunction.  The preliminary injunction was granted upon a finding that strikers withholding their services resulted in an immediate and irreparable injury to the United States and its citizens.  In addition to the immediate possibility of imprisonment is the ongoing suspension of the plaintiff’s driver’s license, which requires that he either forego the use of his motor vehicle or risk arrest, impoundment of his car, and prosecution for DWLS, for the rest of his life.  If he is unable to comply with the support order, RCW 74.20A.320 is a Nuremburg law: a permanent suspension of licenses of a group of politically incorrect people.  Those Jews of Germany who survived the Nazi era had their licenses restored only by the Allied Victory of 1945.  The victorious troops could not, however, make good the time during which these Jews lost their freedom.  Loss of freedom is an irreparable injury, even when restored.

            Irreparable injury need not be proven if plaintiff establishes that he raises serious questions going to the merits and that the balance of hardships tips in his favor, Gilder v. PGA Tour, Inc., (9th Cir. 1991) 936 F. 2d. 417, 422.

ISSUES RAISED BY DEFENDANTS STATE OFFICERS

            This is the first time the plaintiff has raised any challenge to the validity of the WorkFirst Act in a federal forum.  Previous federal cases do not bar this action on res judicata.  Plaintiff need not challenge the support order to challenge the WorkFirst Act, the support order does not contain a provision for license suspension and it has not been modified subsequent to the passage of the WorkFirst Act.  RCW 26.09.170(1) prohibits such modification even for months subsequent to the passage of the WorkFirst Act.  In re Marriage of Shoemaker, (1995) 128 Wash. 2d. 116, 121-123, 904 P. 2d. 1150.  Therefore the WorkFirst Act is a bill of attainder when applied to the plaintiff, in that it is imposed without a judicial trial and by legislative fiat, based solely upon a pre-existing support order.  The previous state court actions only challenged the validity of the WorkFirst Act as violation of Article II Section 19 of the Washington Constitution.  Therefore, Rooker-Feldman does not bar this Court from considering whether the WorkFirst Act offends the United States Constitution or the Antipeonage Act.  This Court can certify the state law issues to the Supreme Court of Washington and allow it to sort out the issue of whether under Washington law, it is barred by res judicata by virtue of the 1997 King County Superior Court decision that it did not allow Mr. KNIGHT to appeal without paying the then impossible filing fee of $250.00, notwithstanding the subsequent Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142 Wash. 2d. 183, 11 P. 3d. 762 which struck down Initiative 695 as a void two subject bill prohibited by Article II Section 19 of the Washington Constitution.

CONCLUSION

            For the reasons stated herein, the Motion for Preliminary Injunction should be granted.

            RESPECTFULLY SUBMITTED, May 14, 2002,

                                                            ____________________________________

                                                            Roger W. Knight, plaintiff