Judge Robert S. Lasnik

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

 

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 CROSS MOTION FOR

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

LONDI K. LINDELL, Mercer Island City       )           SUGGESTION FOR CERTIFICATION

Attorney, WAYNE STEWART, Assistant        )           OF STATE LAW QUESTIONS TO THE

Mercer Island City Attorney, FRED                  )           SUPREME COURT OF WASHINGTON

STEPHENS, Director of Department of            )

Licensing, DENNIS BRADDOCK, Secretary)

of Department of Social and Health Services,)

GARY LOCKE, Governor of Washington,       )           Plaintiff’s Cross Motion Noted for:

and SUPERIOR TOWING, a corporation        )                                               August 2, 2002

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 Cross Motion for Summary Judgment With Suggestion for Certification of State Law Questions to the Supreme Court of Washington (Mercer Island Opposition to X Motion).

STATE OFFICERS DID NOT TIMELY SERVE AN OPPOSITION BRIEF UPON THE PLAINTIFF

             As of 6:00 pm, Monday, July 29, 2002, defendants FRED STEPHENS, DENNIS BRADDOCK, and GARY LOCKE, referred herein after and previously as the STATE OFFICERS, have not served upon the plaintiff, by mail or personally, any brief in opposition to the Plaintiff’s X Motion 4SJ.  This Court’s Local Civil Rule 7(b)(2) requires that any such brief opposing a motion is to be filed with the Clerk of this Court by the Monday preceding the Friday the motion is noted for, and serve a copy upon the moving party.  Local Civil Rule 7(b)(4) provides that this Court may deem such a failure to file such an opposition brief to be an admission that an opposition to the motion is without merit.

ABBREVIATION CONVENTION

            To save space, the plaintiff elects to continue his abbreviations of state court proceedings listed on page 2 of his Plaintiff’s Cross Motion for Summary Judgment with Suggestion for Certification of State Law Questions to Supreme Court of Washington (Plaintiff’s X Motion 4SJ).  These abbreviations are: 1) For the criminal Driving While License Suspended (DWLS) proceedings and appeal collectively: MI v Knight.  2) For the civil actions brought to challenge the WorkFirst Act as contrary to the Washington Constitution: Knight v. DSHS I and Knight v. DSHS II or collectively as Knight v. DSHS I and II. and 3) The divorce case in which the current child support order was imposed: In re Marriage of Knight.

ARGUMENT

            Plaintiff hereby incorporates by reference the facts, standards for summary judgment, arguments, and legal authorities set forth and cited in his Motion for Preliminary Injunction, (Motion 4PI), Reply Brief in Support of Motion for Preliminary Injunction (Reply re Motion 4PI), Plaintiff’s Motion for Partial Summary Judgment (Plaintiff’s Motion 4PSJ), Reply to Mercer Island Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment and to State Officers’ Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment (Reply re Plaintiff’s Motion 4PSJ), Plaintiff’s X Motion 4SJ, and the Plaintiff’s Response in Opposition to State Officers’ Motion for Summary Judgment and to Mercer Island Motion for Summary Judgment (Plaintiff’s Response to Motions).

REPLY TO MERCER ISLAND’S OPPOSITION

MR. KNIGHT NEVER PREVIOUSLY RAISED ANY CHALLENGE TO THE VALIDITY OF THE WORKFIRST ACT IN FEDERAL COURT

    Mercer Island Opposition to X Motion page 2 at lines 15-18, reads in part:

Knight also raised Federal Constitutional challenges to the enforcement of the WorkFirst Act in this Court.  In 2001, United States District Judge Barbara J. Rothstein rejected his challenge under the principles of the Rooker-Feldman doctrine.

 

The case that defendants MERCER ISLAND is referring to is Knight v. Schmitz et al, W.D. Wash. No. C00-1874R.  In this case, Mr. KNIGHT asserted that the then new decision in Troxel v. Granville, (2000) 530 U.S. 57, 147 L. Ed. 2d. 49, 120 S. Ct. 2054, 2060 found that the Fourteenth Amendment Due Process Clause protects parents in their fundamental rights to make their own decisions concerning the custody, care, and education of their children so long as they can adequately provide for their children.  As a result the State of Washington and those who act under color of the laws of this State have no interest in imposing or enforcing any child support order that goes beyond the amount necessary to allow the custodial parent to adequately care for her child, and that the State and those who act under color of the laws of this State have no interest in imposing or enforcing any support order where the custodial parent has sufficient resources of his or her own or the ability to earn a sufficient income to allow him or her to adequately care for his or her children.  He alleged that the support order in In re Marriage of Knight imposed an obligation that went beyond the state’s interest as defined in Troxel and therefore offended his rights under the Fourteenth Amendment as found by Troxel.  Mr. Knight also alleged that chapter 26.19 RCW, pursuant to which the monthly rate of child support was determined in In re Marriage of Knight, is unconstitutional on its face to the extent that it went beyond that state’s interest as defined by Troxel by its Legislative intent “to provide additional child support commensurate with the parents’ income, resources, and standard of living.” RCW 26.19.001.

            Judge Rothstein did not base her ruling on Younger abstention doctrine, perhaps because Mr. KNIGHT asserted that RCW 26.09.170(1) prohibited the state courts from granting him effective relief for a major portion of his claim and that federal practice, including in cases where part of the claim may be within Younger abstention, counsels against splitting a case by partial abstention when abstention does not apply to a part of the claim.  Moore v. Sims, (1979) 442 U.S. 415, 426 n. 10, 60 L. Ed. 2d. 994, 99 S. Ct. 2371.

            Judge Rothstein found Mr. KNIGHT’s claim barred by Rooker-Feldman in spite of Mr. KNIGHT’s assertion that the Washington courts could not have considered Troxel in 1990 and that Rooker-Feldman does not apply to a claim that could not have been raised in the state court proceeding.  In that the case was essentially a Rule 60 motion to vacate an old judgment based on subsequent change in the law filed as a 42 U.S.C. §1983 action in federal court, Mr. KNIGHT asserted that Polites v. United States, (1960) 364 U.S. 426, 437, 5 L. Ed. 2d. 173, 81 S. Ct. 202 found that a motion to vacate a judgment is not a direct review of the judgment.  Nevertheless, Judge Rothstein found that his 42 U.S.C. §1983 claim against an old child support order based upon a new Supreme Court decision was barred by Rooker-Feldman and the Ninth Circuit affirmed in an unpublished decision.  The Supreme Court denied certiorari.

            However, neither Judge Rothstein nor the Ninth Circuit found that Mr. KNIGHT’s claim in No. C00-1874R to be frivolous or brought in bad faith, and awarded no terms, sanctions, or costs against Mr. KNIGHT.

            If under Allen and Migra preclusion, Knight v. DSHS I and II precluded this Court from considering any challenge to the validity of the WorkFirst Act, then Mr. KNIGHT was correct in not challenging the validity of the WorkFirst Act in the federal court actions he initiated in 2000.  Mr. KNIGHT certainly had a reasonable concern that Allen preclusion, if not Migra preclusion, would bar a 42 U.S.C. §1983 claim[1] if the only injury in fact he can point to were the threatening letters sent to him in 1997 and 1999 that were the basis of his case or controversy standing in Knight v. DSHS I and II.  Therefore, it was reasonable for Mr. KNIGHT to wait until a new injury in fact arose from any operation of the WorkFirst Act against him before filing any new challenge to its validity.  Until the state court in the criminal DWLS proceeding found that it lacked jurisdiction to consider the validity of the statute under which Mr. KNIGHT’s license was suspended, but not on the basis of preclusion by Knight v. DSHS I and II, it was reasonable for Mr. KNIGHT to assert his federal law as well as state law claims against the validity of the WorkFirst Act in that forum.

            But as the state court found it lacked jurisdiction to consider the validity of WorkFirst act in the ongoing state court action, Mr. KNIGHT lacked adequate remedy at law in the on going state court proceeding at the time he filed this present federal lawsuit, and that creates an exception to Younger abstention.  This Court lacks the discretion to abstain under these circumstances, and must therefore exercise its jurisdiction, Green v. City of Tucson, (9th Cir. 2001) 255 F. 3d. 1086, 1093.  While King County Superior Court may reverse the King County District Court’s finding as to its lack of jurisdiction, and while the Court of Appeals of the State of Washington and the Supreme Court of Washington may grant discretionary review of any decision by King County Superior Court, reviewable by the United States Supreme Court upon a writ of certiorari under 28 U.S.C. §1257, this Court is barred by Rooker-Feldman from any determination that the King County District Court, Bellevue Division had jurisdiction to consider the validity of the WorkFirst Act.

            As previously argued by the plaintiff in his Cross Motion, pages 14-17, and in his Plaintiff’s Response to Motions, pages 2-7, Allen and Migra preclusion does not apply to bar this case, because the Washington courts do not consider such claims as raised in this case to be barred due to Knight v DSHS I and II in subsequent license suspension and criminal DWLS proceedings.  Norco Construction v. King County, (1986) 106 Wash. 2d. 290, 294-295, 721 P. 2d. 511, and other cases previously cited herein.

            The other issues raised by MERCER ISLAND in its Mercer Island Opposition to X Motion have already been briefed by the plaintiff in his previous briefings, which are incorporated herein by reference.  If this Court determines that it needs or desires clarification from the Supreme Court of Washington on the issues of state law relevant to this case, particularly to Allen and Migra preclusion which are dependent upon how state law applies or does not apply its preclusion doctrines, the plaintiff has made that suggestion.

OFFICER BRIAN NOEL ADMITTED IN HIS DECLARATION THAT HE FOLLOWED AN OFFICIAL POLICY OF THE CITY OF MERCER ISLAND, THEREFORE THE CITY IS LIABLE UNDER MONELL

            On page 3 of the Declaration of Officer Brian Noel in Support of Mercer Island Defendants’ Motion for Summary Judgment (Noel Declaration) Paragraph 8 reads in part:

8.         After I placed Knight under arrest, I briefly searched the passenger compartment of the vehicle incident to arrest.  Based on my training and experience, I am aware that there is legal justification for such a search when I make a custodial arrest of a driver from a vehicle.

             This Court recently found that:

            In order to hold a municipality liable under 42 U.S.C. §1983, plaintiffs must show that, “through its deliberate conduct, the municipality was the ‘moving factor’ behind the injury alleged.”  Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original).  A negligent failure to train or failure to supervise is insufficient: plaintiffs must show that the municipality’s failure reflects a deliberate indifference to plaintiffs’ constitutional rights.  City of Canton v. Harris, 489 U.S. 378, 388 (1989).  In particular, plaintiffs must show that (1) the existing training or supervision was inadequate, (2) the program constitutes a municipal policy, (3) the program manifests deliberate indifference, and (4) the program “actually caused” the constitutional deprivation.  Merritt v. City of Los Angeles, 875 F.2d 765, 769-70 (9th Cir. 1989).

 

Order Granting Defendants’ Motion for Summary Judgment and Denying Plaintiff’s Motion to Compel and for Continuance, Irwin v City of Seattle, W.D. Wash. No. C01-1309L.

            Defendant CITY OF MERCER ISLAND has a clear duty to update its training of its officers to enlighten them of Knowles v. Iowa, (1998) 525 U.S. 113, 142 L. Ed. 2d. 492, 119 S. Ct. 484.  If Officer Noel did not know that Knowles disallowed searches of automobiles incident to arrest for traffic infractions and misdemeanors which are not dependent upon any evidence that could be found in a search, then there is a clear failure of supervision on the part of the defendant CITY.  In light of the interest that a municipality with a police department would have to have in new United States Supreme Court decisions delineating the restrictions on police searches and impoundments of automobiles incident to arrest for traffic infractions and misdemeanors, this failure indicates a deliberate indifference to the constitutional rights of those arrested for such traffic offenses.

            There are five factors to consider when determining whether a governmental agency is acting as an arm of the state: 1) whether a money judgment would be satisfied out of state funds, 2) whether the entity performs central governmental functions, 3) whether the entity may sue or be sued, 4) whether the entity has the power to take property in its own name or only in the name of the state, and 5) corporate status of the entity.  Streit v. County of Los Angeles, (9th Cir. 2001) 236 F. 3d. 552, 566 citing Durning v. Citibank, (9th Cir. 1991) 950 F. 2d. 1419, 1423, which quoted Mitchell v. Los Angeles Community College Dist., (9th Cir. 1988) 861 F. 2d. 198, 201.  All five factors break in favor of municipal liability:  The CITY OF MERCER ISLAND is responsible for its own funds, its own expenditures, and it has its own taxing, fining, and other revenue collection authority.  Funds it may receive from the federal government or from the State of Washington are nevertheless its own funds if deposited into its general treasury, otherwise, such funds may not be used to pay money judgments.  Money judgments assessed against the CITY are paid out of the CITY’s own treasury.  Enforcing traffic laws and impounding vehicles is not performing central government functions, just as a county sheriff is not acting as an arm of the state when he sets policy in administering the county jail.  The CITY OF MERCER ISLAND may sue in both civil and criminal cases, and is regularly sued in civil cases, in both state and federal court.  The CITY OF MERCER ISLAND may take property in its own name, and regular does so: taxes and fines.  Its corporate status is that of a municipality with local government functions that do not extend beyond its boundaries.

            Therefore it is liable for monetary damages for the unreasonable seizure of the plaintiff’s legally and safely parked automobile.

CONCLUSION

            For the reasons stated herein, the Plaintiff’s Motion for Partial Summary Judgment and the Plaintiff’s Cross Motion for Summary Judgment should be granted and the defendants’ motions for summary judgment should be denied.

            RESPECTFULLY SUBMITTED, July 30, 2002,

 

                                                            ____________________________________

                                                            Roger W. Knight, plaintiff