Knight v. Mercer Island Response to Defendant's Motion for Summary Judgment

Comes now the plaintiff, ROGER W. KNIGHT, to respond in opposition to the cross motions contained within the STATE OFFICERS’ Defendant’s (sic) Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment and Motion and Memorandum in Support of Defendant’s (sic) Motion for Summary Judgment (State Officers’ X Motion) and the Mercer Island Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment and Motion and Memorandum in Support of Defendants’ Motion for Summary Judgment (Mercer Island X Motion).

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 Cosntitution: 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 Injunctions, (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), and Plaintiff’s X Motion 4SJ.

In these previous briefs, the plaintiff covered most of the issues in this case. While a start was made in the Plaintiff’s X Motion 4SJ, pages 14-17, in addressing Allen and Migra preclusion and the consideration of res judicata, collateral estoppel, issue and claim preclusion under Washington law mandated by Allen and Migra, at least for civil rights claims dependent upon 42 U.S.C. §1983 for federal court jurisdiction, and given the page limitations and the need to address the other issues in the previous briefs, it is appropriate for the plaintiff to more fully address this issue herein. As they say in basketball, he “gets a new 24” pages. Fortunately, he does not need all of them this time.

The STATE OFFICERS cite Norco Construction v. King County, (1986) 106 Wash. 2d. 290, 721 P. 2d. 511 and Bordeaux v. Ingersoll Rand Co., (1967) 71 Wash. 2d. 392, 429 P. 2d. 207. State Officers’ X Motion pages 8-9. Norco at 106 Wash. 2d. 294-295 found:

The only interest established in the first action was King County’s freedom from liability for damages due to its failure to act on or approve Norco’s application. This interest would not be impaired by the superseding enforcement of the writ of mandamus. Second, different evidence would be presented in the two actions, because in this action Norco would have to prove that damages were proximately caused by King County’s stay rather than its failure to act on Norco’s application. As for the third criterion, the two suits involve infringement of different rights. In the federal action, Norco claimed a right to compensation for King County’s failure to act, while in the present action it claims a right to compensation for King County’s stay of enforcement of the writ of mandamus. Finally, the two suits do not arise out of the same transactional nucleus of facts since Norco sought damages resulting from different conduct by King County in the first action than in the present action.

In sum, none of the criteria for identical causes of action are satisfied in this case. Because the causes of action in the federal suit and the present action differ, this action is not barred by res judicata.

Norco finds that difference in the rights asserted is a criterion for establishing res judicata, and that Washington courts do not consider res judicata necessarily barring litigation of claims of rights not previously litigated, even if they could have been. Exhibits B and C to State Officers’ X Motion are documents related to Knight v. DSHS I and II. As shown by Exhibit B, plaintiff was unable to pay the $250.00 filing fee after the Supreme Court of Washington denied his application to proceed in forma pauperis on appeal from Knight v. DSHS I. Exhibit C is the unpublished opinion issued by the Washington Court of Appeals Division I in the appeal that the plaintiff was able to litigate upon paying the filing fee, in Knight v. DSHS II. On page 2 of this unpublished opinion, the state court found:

In 1997 the Division of Child Support (DCS), part of the Department of Social and Health Services (DSHS), sent Knight a letter warning him of the possibility that his driver’s license could be suspended for non-payment of support. Knight responded by filing suit in King County superior court. He argued that the legislation authorizing license suspensions embraced more than one subject and therefore offended article II, section 19 of the Washington Constitution.

Under three of the criteria that Norco finds are necessary for res judicata analysis, there are differences between Knight v. DSHS I and this present action that argue against res judicata.

The state agency sent the plaintiff a threatening letter. No notice and opportunity to be heard as required by RCW 74.20A.320, and no actual suspension as authorized by this statute occurred at that time. While the plaintiff takes the position that the actual notice required by RCW 74.20A.320(1) was not accomplished before the suspension of September 2001, 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) and its Exhibit A, there is certainly a different transactional nucleus of facts in this present case than in Knight v. DSHS I.

The only claim made by the plaintiff in Knight v. DSHS I was that the WorkFirst Act violated the Single Subject Clause of the Washington Constitution, which sets forth a limitation on legislative action that the United States Constitution does not impose upon Congress. As such a limitation, the only “right” asserted by Mr. KNIGHT is the right of all citizens of Washington to be governed only by those state laws that are passed in accordance with the Washington Constitution, which requires that the elected legislators consider each subject in a separate bill. Unlike Article I Section 22, which sets forth rights analogous or even identical to the rights set forth in the Sixth Amendment, Article II Section 19 is not analogous to any provision of the federal Constitution. If the State waived Eleventh Amendment immunity and removed Knight v. DSHS I to federal court, the plaintiff could have in good faith moved for remand back to the state court for want of a federal cause of action.

In this present action, the plaintiff is asserting the right to not be the target of a bill of attainder or an ex post facto law under Article I Section 10 clause 1 of the Constitution. This is a different right than the right to not be governed by a multi-subject bill under the Washington Constitution. While the freedom from bills of attainder and ex post facto laws set forth in Article I Section 23 of the Washington Constitution is identical to the right set forth in Article I Section 10 clause 1, the plaintiff did not assert that right in Knight v. DSHS I.

Further down on page 2 of the unpublished opinion, the state appellate court found that Knight v. DSHS II arose out of a second license suspension warning letter and that the plaintiff asserted the same right to not be governed by a multi-subject bill as before. Again, Mr. KNIGHT did not assert the right to not be the target of a bill of attainder or an ex post facto law. The Court of Appeals ultimately found that the first and second warning letters were so similar, that in spite of being two years apart, they constituted the “same transactional nucleus of facts”. Unpublished opinion page 5, sixth line.

Even so, the state appellate court hinted on page 7 of its unpublished opinion that if Amalgamated Transit v. State of Washington, (2000) 142 Wash. 2d. 183, 11 P. 3d. 762 changed the law, specifically how Article II Section 19 applies, then Knight v. DSHS II would not have been precluded by Knight v. DSHS I, which was litigated before Initiative 695 was famously struck down as a two subject bill.

Another criterion of Norco, that different evidence is clearly presented in this action than in Knight v DSHS I and II. The only evidence in the previous civil cases was the threatening letters and the existence of the support order and arrearage.

Bordeaux at 71 Wash. 2d 397-398 found:

Finally, there is a lack of identity of quality between the persons and parties to the two proceedings as prescribed in the fourth concurrence of identity. The industrial insurance claim, as we have said, started as a friendly notice to an agency of the state acting in the role of protector; later, on rejection, the claim lost its friendly quality and became adversary in a very limited way but without any procedural necessity to amend or enlarge the original claim. Contrarily, defendant Ingersoll Rand, as manufacturer and seller of the tamping machine, is brought into the present case as an avowed adversary. Defendant here participated in no way in the labor and industry proceeding - neither directly nor vicariously - nor had it any standing to do so. As a third person, having no privity with plaintiff or the department in any proceeding involving plaintiff’s industrial injury, defendant was a complete stranger to plaintiff’s litigation before the Board of Industrial Insurance Appeals.

The adverse decision of the supervisor, rejecting plaintiff’s claim, and the subsequent dismissal of the appeal by the board was not, therefore, res judicata of an action against defendant here for the same injuries.

In Knight v DSHS I and II, the party sued by the plaintiff was the State of Washington and its agency, the Department of Social and Health Services, (DSHS). The plaintiff brings no action against the State of Washington or its agency in this present federal court action. He simply has no reason to believe that Washington would waive Eleventh Amendment or common law sovereign immunity and 42 U.S.C. §1983 is not considered to include any explicit Congressional abrogation of such immunity, even though such abrogation is allowed under the Appropriate Legislation Clauses of the post Civil War Amendments.

Defendants GARY LOCKE and DENNIS BRADDOCK could claim privity as agents of the State and of DSHS. While defendant FRED STEPHENS could claim privity as an agent of the State, he is not an agent of DSHS, the agency that sent the warning letters in 1997 and 1999. The State’s Department of Licensing would not have had standing to intervene in Knight v. DSHS I and II. Under Bordeaux, Defendant STEPHENS’s claim to privity would necessarily fail.

As would such claims of privity by defendants LOCKE and BRADDOCK. Under Ex parte Young, (1908) 209 U.S. 123, 157-168, 52 L. Ed. 714, 28 S. Ct. 441, these defendants and their successors in office can be sued for prospective injunctive relief under the Civil Rights Act of 1871, or 42 U.S.C. §1983. The State of Washington, however, cannot unless it waives Eleventh Amendment immunity.

Therefore, the defendants’ claim of preclusion by reason of previous state court litigation must fail.

The defendants’ claim of preclusion by reason of previous federal court litigation must also fail. Contempt proceedings, arrest, and imprisonment for failure to pay child support or the threat thereof is not the same transactional nucleus of facts as is a suspension of license and a criminal prosecution for DWLS subsequent to the suspension of license. Where a federal court abstained under Younger or found itself to lack jurisdiction under Rooker-Feldman, it made no other ruling that would have a preclusion effect.

Prior to 1997, the plaintiff did not have standing to challenge any threat of license suspension for nonpayment of child support because no such threat was contained in the support order, Exhibit B to the Declaration by Roger W. Knight (Knight Declaration I), and the WorkFirst Act had not yet been passed. Even after 18 U.S.C. §228 was enacted, the Ninth Circuit in unpublished decision vacated Judge William Dwyer’s finding in Knight v. United States, No. C93-13WD that he had standing to challenge it in a civil lawsuit under 28 U.S.C. §1331. The Ninth Circuit determined that because Mr. KNIGHT and his children live in the same state, he lacked standing to challenge a statute that only applies where the noncustodial parent and the children live in different states.

If a plaintiff lacks standing to challenge a statute after it is passed if he is unable to establish enough facts to establish standing, he certainly lacks standing to challenge a statute before it is enacted.

Defendants MERCER ISLAND suggestion that Mr. Knight be prohibited from bringing lawsuits in this Court without approval of this Court must fail because the impoundment of his legally parked automobile for DWLS is clearly an unreasonable seizure under Knowles v. Iowa, (1998) 525 U.S. 113, 142 L. Ed. 2d. 492, 119 S. Ct. 484. This lawsuit is not frivolous on that basis alone.

CONCLUSION

For the reasons stated herein, the Defendants’ Motions for Summary Judgment should be denied and the Plaintiff’s Motions for Summary Judgment should be granted.

RESPECTFULLY SUBMITTED, July 11, 2002.

____________________________________

Roger W. Knight, plaintiff

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