Knight v. Mercer Island Plaintiff's Cross Motion for Summary Judgment

Comes now the plaintiff, ROGER W. KNIGHT, in addition to his Plaintiff’s Motion for Partial Summary Judgment (Plaintiff’s Motion 4PSJ) and in response to 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 Response and X Motion) and to the State Officers’ Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment and Motion and Memorandum in Support of Defendants’ Motion for Summary Judgment (State Officers’ Response and X Motion); cross moves for a partial summary judgment:

1) Declaring that Younger abstention doctrine and Green v. City of Tucson, (9th Cir. 2001) 255 F. 3d. 1086, does not preclude relief, and that Canatella v. California, (9th Cir. June 12, 2002) ____ F. 3d. ____; Olson Farms, Inc. v. Barbosa, (9th Cir. 1998) 134 F. 3d. 933, 937; Dubinka v. Judges of Superior Court, (9th Cir. 1994) 23 F. 3d. 218; Robinson v. Ariyoshi, (9th Cir. 1985) 753 F. 2d. 1468, 1472; and District of Columbia Court of Appeals v. Feldman, (1983) 460 U.S. 462, 482-483, 75 L. Ed. 2d. 206, 103 S. Ct. 1303 set forth limitations on the application of Rooker-Feldman doctrine that allow this Court to grant the plaintiff relief with respect to Washington’s WorkFirst Act.; with respect to City of 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 (MI v. Knight); with respect to Knight v. State of Washington, King County Superior Court No. 97-2-21231-6 KNT (Knight v DSHS I), Exhibit 2 to the State Officers’ Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Injunctive Relief (State Memo) and to Knight v. State of Washington, King County Superior Court No. 99-2-22195-8 KNT appealed Washington Court of Appeals Div. 1 No. 46753-1-I (Knight v. DSHS II), Exhibit 3 to the State Memo. The child support order of In re Marriage of Knight, King County Superior Court No. 90-3-04471-1, Exhibit B to the first Declaration by Roger W. Knight (Knight Declaration I) was entered prior to the WorkFirst Act. No full and fair opportunity to litigate the validity of the WorkFirst Act existed during the contempt proceedings of 2000-2001.

2) Declaration that MI v. Knight, Knight v. DSHS I and II, and In re Marriage of Knight do not bar this Court from granting the plaintiff relief with respect to the WorkFirst Act under the issue and claim preclusion doctrine of Migra v. Warren City School Board of Education, (1984) 465 U.S. 75, 80-85, 79 L. Ed. 2d. 56, 104 S. Ct. 892 interpreting 28 U.S.C. §1728 and 42 U.S.C. §1983 because 1), plaintiff did not have full and fair opportunity to litigate any claim against the validity of the WorkFirst Act in In re Marriage of Knight and MI v. Knight, and 2) Washington courts do not give these proceedings such issue preclusion.

3) Declaring that no state or federal court proceeding prior to the passage of the WorkFirst Act in 1997 can have any res judicata, collateral estoppel, claim preclusion, issue preclusion, or Rooker-Feldman effect upon any challenge to the validity of the WorkFirst Act, either as applied to the party or on its face.

4) Pursuant to findings requested in 1), 2), and 3) the Court grants relief as follows:

This Court may decide Mr. Knight’s present challenge to the WorkFirst Act as applied to him as a bill of attainder, ex post facto law, or null and void as an attempt to establish, maintain, or enforce Mr. Knight’s service or labor as a peon in liquidation of a debt or obligation. Prospective injunctive relief restoring the driver’s license does not affect MI v. Knight, as the DWLS charges arising from incidents prior to such injunctive relief.

The WorkFirst Act is declared a bill of attainder and an ex post facto law when applied to a pre-existing child support order unmodified to incorporate license suspension for noncompliance and that the application to a noncustodial parent who lacks resources sufficient to comply without employment is declared null and void by 42 U.S.C. §1994. Prospective injunction shall issue requiring defendants GARY LOCKE, DENNIS BRADDOCK, and FRED STEPHENS, herein after referred to as STATE OFFICERS, to restore Mr. Knight’s driver’s license without requiring a reissue fee and they and their successors in their offices are enjoined from suspending any license held by Mr. Knight, refusing to renew any license held by Mr. Knight, or from issuing any new license to Mr. Knight, on the basis of noncompliance with the child support order.

SUGGESTION FOR CERTIFICATION OF STATE LAW QUESTIONS TO SUPREME COURT OF WASHINGTON

To address the concerns this Court expressed about the sovereignty of the State of Washington and its courts in its Order Denying Motion for a Preliminary Injunction, this Court can certify the questions of state law to the Supreme Court of Washington: 1) Whether the WorkFirst Act is a multi-subject bill contrary to Article II Section 19 of the Washington Constitution, 2) Whether the Supreme Court of Washington is barred by res judicata or collateral estoppel under Washington law from considering this issue upon certification from a federal court, and 3) Whether the Legislature expressed an intent to apply the WorkFirst Act to pre-existing support orders under the test recently developed in State v. Smith, (2001) 144 Wash. 2d. 665, 671-672, 30 P. 3d. 1245, 39 P. 3d. 294 and State v. Cruz, (1999) 139 Wash. 2d. 186, 191, 985 P. 2d. 384; subsequent to Knight v. DSHS I.

This Court cited Allen v. McCurry, (1980) 449 U.S. 90, 94. 66 L. Ed. 2d. 308, 101 S. Ct. 411 in its Order Denying Preliminary Injunction page 3 line 12. Migra better defines the issue preclusion doctrine this Court cited in the paragraph wherein it cited Allen. Allen res judicata and Migra issue and claim preclusion apply only to the extent that the Washington courts apply res judicata and issue and claim preclusion. As argued below, the trend is away from preclusion and in favor of allowing the issues to be presented and ruled upon, so much so that this Court can find that the Washington courts do not find themselves barred by Knight v. DSHS I and II from considering whether the WorkFirst Act is a bill of attainder without any certification of this question. Before this Court dismisses this case on the basis of Allen and Migra preclusion, it should certify this question to the Supreme Court of Washington: 4) Are the Washington courts precluded by Knight v. DSHS I and II from considering whether the WorkFirst Act is a bill of attainder, and ex post facto law, or declared null and void as peonage by 42 U.S.C. §1994? Upon receiving an answer from the state court, this Court can then rule on Migra preclusion. Certification to state court may be required by Pullman abstention[1] as found by Columbia Basin Apartment Ass’n v. City of Pasco, (9th Cir. 2001) 268 F. 3d. 791, 801-807 and by en banc in Parents Involved in Community Schools v. Seattle School District No. 1, (9th Cir. June 17, 2002) ___ F. 3d. ____ vacating three judge opinion, 285 F. 3d. 1236.

If upon such certification, the state court were to invalidate the WorkFirst Act as a multi-subject bill or find that the Legislature did not express a retrospective intent as required by the Smith and Cruz test, there would be no need for this Court to rule on the federal law issues. This Court can simply apply the state court findings: The Fourteenth Amendment prohibits deprivation of liberty and property based on a statute not validly passed in accordance with the state’s Constitution, or not intended by the state’s Legislature to apply to the party.

If, however, the Supreme Court of Washington declines to consider the questions as certified by this Court, or finds that the Legislature intended retrospective application under the Smith and Cruz test, and that either the WorkFirst Act is a single subject bill or that it is barred by res judicata from considering the question, while also finding that Washington courts are not barred by issue and claim preclusion from considering the plaintiff’s federal claims against the WorkFirst Act, then this Court is free under 42 U.S.C. §1983 to consider this Motion as to whether the WorkFirst Act is a bill of attainder, an ex post facto law, or declared null and void as an attempt by virtue of state law to establish, maintain or enforce the plaintiff’s service or labor as a peon in liquidation of a debt or obligation by 42 U.S.C. §1994.

This motion and suggestion for certification of state law questions to the Supreme Court of Washington are based on the pleadings herein and the following Memorandum of Law.

MEMORANDUM OF LAW

STANDARDS FOR SUMMARY JUDGMENT

The standards for summary judgment and other dispositive motions as set forth in the first Plaintiff’s Motion for Partial Summary Judgment (Plaintiff’s Motion 4PSJ), pages 4-5 are incorporated herein by reference. A ruling on Younger abstention is reviewed de novo, Green, supra, at 255 F. 3d. 1092-1093. A ruling on jurisdiction, including whether Rooker-Feldman barred jurisdiction, is reviewed de novo, Olson Farms, supra, at 134 F. 3d. 936.

NO GENUINE ISSUE OF MATERIAL FACT

Pages 2 and 3 of the Order Denying Motion for a Preliminary Injunction have a section titled: “BACKGROUND”. It finds that the material facts are undisputed and lists the material facts relevant to the Motion for Preliminary Injunction. These facts and the facts referenced by Plaintiff’s Motion 4PSJ pages 5-6 are incorporated herein by reference.

ROOKER-FELDMAN UNDER CANATELLA AND OLSON FARMS DOES NOT PRECLUDE SUMMARY JUDGMENT IN FAVOR OF MR. KNIGHT INVALIDATING THE WORKFIRST ACT UNDER 42 U.S.C. §1983

Canatella v. California, supra, found:

The district court determined that Canatella’s § 1983 suit was, in effect, an action to review the California Supreme Court’s final disciplinary order approving the settlement between Canatella and the State Bar. The court reasoned that because Canatella was still on probation, a grant of his requested injunctive and declaratory relief would effectively nullify the California Supreme Court’s approval of Canatella’s probationary status. The court was rightly concerned that asserting jurisdiction might require review of a final state court decision, particularly one potentially subject to revision in the state court system, cf. Richardson v. District of Columbia Court of Appeals, 83 F. 3d. 1513, 1515 (D.C. Cir. 1996), but this situation no longer obtains. On March 18, 2001, Canatella completed his probationary sentence under the stipulated discipline approved by the Supreme Court of California. He has done so without incurring further disciplinary sanction. Review of his First and Fourteenth Amendment claims no longer raises the specter of review of a final state court decision, and the question of whether Rooker-Feldman applies is moot.

And at the word “moot” is Footnote 6:

We note that even if Canatella were still under the probationary period, Rooker-Feldman would likely not bar Canatella’s claims. His complaint does not request review of the stayed suspension to which he stipulated with the State Bar, and seeks only prospective relief. Nor does the complaint request review of the probationary sentence. . . . Prospective injunction and declaratory relief in the current action thus does not appear to require review by the district court of the final California Supreme Court order approving Canatella’s discipline. We do not read Canatella’s complaint to be a “skillful attempt to mask the true purpose of the action, which essentially is to reverse the decision of the Supreme Court of [California].” Stern v. Nix, 840 F. 2d. 208, 212 (3d. Cir. 1988). We therefore do not believe that Canatella’s federal claim would have been “inextricably intertwined” with the state proceedings, as is required for dismissal on the basis of Rooker-Feldman. See Feldman, 460 U.S. at 482 n. 16.

Likewise, prospective injunctive relief requiring the STATE OFFICERS to restore the driver’s license would not invalidate the existing convictions for DWLS. It would not affect the previous status of the license. As the issues of whether the WorkFirst Act as applied to the plaintiff is a bill of attainder and an ex post facto law, and declared null and void by 42 U.S.C. §1994 were raised by the plaintiff in MI v. Knight, which the state court found that it lacked jurisdiction to consider, there is no appellate review of a decision not made by the state court. Olson Farms, supra, at 134 F. 3d. 937 paraphrasing Robinson, supra, at 753 F. 2d. 1472:

(Where state court refused to decide federal issue, our decision of that issue will not be review of state court decision and will not be barred on jurisdiction or res judicata grounds.)

Neither would prospective injunction require appellate review of Knight v. DSHS I and II wherein Mr. KNIGHT challenged the WorkFirst Act as a multi-subject bill prohibited by the Washington Constitution. While he could have litigated the federal issues in these prior state court proceedings, that would be true if he never filed those state court actions. There is no jurisdictional or bar to a federal court action under 28 U.S.C. §§ 1331 and 1343, and under 42 U.S.C. §1983 where there is no state court proceeding, merely because the plaintiff could have commenced such a proceeding. Mr. KNIGHT chose to litigate his Washington Constitution claim in the Washington courts without intending to waive his federal law claims. When confronted by an actual license suspension, instead of a threatened license suspension, he attempted to litigate all of his state law and federal law claims in the criminal DWLS case. When the state court found it lacked jurisdiction to consider such claims, the plaintiff elected to litigate his federal law claims against the WorkFirst Act in this Court.

Olson Farms at 134 F. 3d. 937, citing Dubinka, supra, at 23 F. 3d. 221 and MacKay v. Pfeil, (9th Cir. 1987) 827 F. 2d. 540, 543 and n. 4 consider Rooker-Feldman a jurisdictional doctrine, superseding Robinson, at 753 F. 2d. 1472, which found it a res judicata doctrine. This jurisdictional doctrine is a result of the “interplay” between 28 U.S.C. §1331, original jurisdiction over federal questions, and 28 U.S.C. §1257, appellate review on certiorari by the Supreme Court of final state supreme court decisions. Dubinka, at 23 F. 3d. 221.

28 U.S.C. §1343, used to assert federal court jurisdiction over 42 U.S.C. §1983 claims prior to the elimination of the amount in controversy requirement in 28 U.S.C. §1331, provides only original jurisdiction and is subject to Rooker-Feldman. The claim raised in the Plaintiff’s Motion 4PSJ pages 12-19, that 42 U.S.C. §1994 grants jurisdiction and creates a statutory exception to Rooker-Feldman, is a question of first impression. A search of the on-line databases[2] reveal no decisions, published or unpublished, finding Rooker-Feldman applies (or not applies) to the independent jurisdiction provided by the Civil Rights Act of 1866, 42 U.S.C. §1981. 42 U.S.C. §§1994 by its language referring to “orders” and 42 U.S.C. §1981 by establishing the right to “enforce contracts, to sue, be parties, give evidence, and to full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment”, which can only refer to the proceedings and decisions of the state courts, create exceptions to Rooker-Feldman. The jurisdictional doctrine still applies to federal claims outside of 42 U.S.C. §§1981 and 1994.

Rooker-Feldman, therefore does not apply as a claim or issue preclusion doctrine to a state court proceeding where the plaintiff could have raised the federal issues but elected not to. Dubinka, cited by this Court on page 4 line 6 of its Order Denying Preliminary Injunction, does not find, at 23 F. 3d. 222, Rooker-Feldman to have such broad application:

However, the district court did have jurisdiction to determine the general constitutionality of the district’s bar rule, because such review would not require reviewing “a final state-court judgment in a particular case.” Feldman, 460 U.S. at 486-488, 103 S. Ct. at 1317-18.

In the present case, appellants’ complaint does not require the district court to review a state court decision. In broad language it challenges the general constitutionality of Proposition 115. For example, it alleges that the discovery statutes are not fully reciprocal and that compelled disclosure of information regarding defense witnesses violates the Fifth and Sixth Amendments. A district court could easily analyze these claims without resorting to the state trial courts’ discovery orders in the pending cases. See Razatos, 746 F. 2d. at 1433-34 (district court may determine whether state rules violate due process without reviewing decision of state supreme court). Therefore, the district court did have subject matter jurisdiction to hear appellants’ facial challenges to the constitutionality of Proposition 115.

Razatos is Razatos v. Colorado Supreme Court, (10th Cir. 1984) 746 F. 2d. 1429 cert den, 471 U.S. 1016. Razatos at 746 F. 2d. 1434 found:

In the case at bar, Razatos contends that under the Colorado rules, the Colorado Supreme Court is the final arbiter of fact in disciplinary proceedings. He argues from the premise that Colo.R.Civ.P. 252 therefore violates the Due Process Clause because it fails to require the final arbiter of fact to observe the witnesses personally in cases where credibility is a critical factor. In order to evaluate this claim, the district court need not review the decision of the Colorado Supreme Court. It need only look at Rule 252 as promulgated, and as construed by state case law. Razatos framed his constitutional challenge in such a way as to allow district court subject matter jurisdiction.

Likewise, a consideration of whether the WorkFirst Act is a bill of attainder or an ex post facto law does not require any review of any of the state court proceedings cited herein. No state court has ruled on this issue.

YOUNGER ABSTENTION UNDER GREEN DOES NOT PRECLUDE SUMMARY JUDGMENT IN FAVOR OF MR. KNIGHT INVALIDATING THE WORKFIRST ACT UNDER 42 U.S.C. §1983

With respect to MI v. Knight, the plaintiff incorporates herein the argument he presented in his Reply Brief in Support of Motion for Preliminary Injunction (Reply re Motion 4PI) pages 8-9 specifically:

Ordinarily, Younger abstention applies where a losing litigant has not exhausted his state appellate remedies, Dubinka, supra at 23 F. 3d. 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”, which can only mean before the trial in a criminal case, not on appeal after a trial wherein the party cannot present a defense based upon the federal issues, the opportunity required for Younger abstention as found by Gibson for timely decision is not met. The parties in Huffman did not allege that the Ohio court found itself to lack jurisdiction to decide any federal issues the parties might raise; it does not apply to the situation here. In addition:

Green, supra, at 255 F. 3d. 1093 found:

The Supreme Court has stressed, on the one hand, that federal courts are obliged to exercise the jurisdiction given to them, Colorado River, 424 U.S. at 817, 96 S. Ct. 1236, and on the other, that when a case meets the narrow Younger exception to that general principle “there is no discretion to grant injunctive relief.” Id. at 816 n. 22. So in addressing Younger abstention issues, district courts must exercise jurisdiction except when specific legal standards are met, and may not exercise jurisdiction when those standards are met; there is no discretion vested in the district courts to do otherwise.

Colorado River is Colorado River Water Conservation Dist. v. United States, (1976) 424 U.S. 800, 47 L. Ed. 2d. 483, 96 S. Ct. 1236. Having thus established that there is no discretion to abuse on the question of whether Younger applies, Green went on to find, at 255 F. 3d. 1094:

Younger doctrine only applies when there is an additional element absent here: that the federal relief sought would interfere in some manner in the state court litigation. That requirement is ordinarily (although not always, see Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S. Ct. 1519, 95 L. Ed. 2d. 1, (1987)) restricts application of the Younger doctrine to circumstances in which the state court proceeding is an enforcement action against the federal court plaintiff, and is not met simply by the prospect that the federal court decision may, through claim or issue preclusion, influence the result in state court.

After reviewing Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 746 and Middlesex County Ethics Comm. v. Garden State Bar Ass’n, (1982) 457 U.S. 423, 73 L. Ed. 2d. 116, 102 S. Ct. 2515, Green went on to find that a conflicting federal court decision on a point of law does not “interfere” with an ongoing state court proceeding, at 255 F. 3d. 1096-1098, and that the federal case in question does not so interfere, at 1098-1099.

Green cited and analyzed New Orleans Public Service Inc. v. Council of the City of New Orleans, (NOPSI) (1989) 491 U.S. 350, 105 L. Ed. 2d. 298, 109 S. Ct. 2506. NOPSI, the electric utility for New Orleans, challenged a New Orleans City Council utility rate order in both Louisiana and federal courts. NOPSI found that Younger does not extend to where the plaintiff in the federal action is the plaintiff in the state court action, even if “important state interests” are at stake in the state court proceeding, and that the party has full and fair opportunity to litigate his federal law claims in the state court proceeding he himself commenced. NOPSI specifically found at 491 U.S. 368 that:

it has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action.

quoted by Green at 255 F. 3d. 1096. On that page Green found that Younger abstention requires “interference” in the state court proceeding.

The plaintiff initially requested a preliminary injunction against the prosecution in MI v. Knight because the state court refused to decide his challenge to the validity of the WorkFirst Act on the grounds that it lacked jurisdiction. The jury conviction that resulted only determined a set of facts: There was a license suspension, and the plaintiff was driving a motor vehicle during the suspension. While the suspension is under the WorkFirst Act, RCW 74.20A.320, the crime is defined by RCW 46.20.342, a statute not being challenged here except to the extent it is applied to a child support license suspension.

A finding by this Court would not “interfere”, in the NOPSI and Green sense, in the appeal currently being litigated in King County Superior Court. The superior court could decide that the Bellevue District Court wrongly determined that it lacked jurisdiction to decide whether notice was adequate to meet the requirement of RCW 74.20A.320(1), vacate the convictions, and remand for an evidentiary hearing on the notice issue. Mr. KNIGHT is certainly NOT challenging the validity of the notice requirement of RCW 74.20A.320(1) in this federal case, he is asserting to the state courts that it was not met. A finding that application of the WorkFirst Act to those with old child support orders and arrearages violates Article I Section 10 clause 1 of the Constitution only moots the notice requirement issue.

If King County Superior Court and the state appellate courts ultimately find that the Bellevue District Court lacked jurisdiction to consider the adequacy of notice required by RCW 74.20A.320(1), then the plaintiff lacks adequate remedy at law in the state courts in MI v. Knight. As neither Rooker-Feldman nor Younger abstention applies, this Court would be left with consideration of Migra and Allen preclusion, argued below.

The only way, under the present circumstances, for MI v. Knight to reach the issue of the validity of the WorkFirst Act is for the state appellate court system to vacate the convictions for want of consideration of adequacy of notice under the statute, and then the Bellevue District Court find that the notice was adequate and be upheld on such finding. Not likely given Exhibit A to the 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). If the state courts find that they have the jurisdiction to consider the validity of the WorkFirst Act and are not precluded by Knight v DSHS I and II, then and only then would Younger apply, but Migra and Allen preclusion clearly would not.

In the meantime, a finding by this Court that the WorkFirst Act is a bill of attainder as applied to a noncustodial parent with a pre-existing child support order does not “interfere” with the ongoing state court appeal and a prospective injunction against the STATE OFFICERS ordering the restoration of the license does not change the validity, if any such can exist under Washington law, of the license suspension in January and February and the DWLS convictions.

MIGRA AND ALLEN PRECLUSION DOES NOT PRECLUDE SUMMARY JUDGMENT IN FAVOR OF MR. KNIGHT INVALIDATING THE WORKFIRST ACT UNDER 42 U.S.C. §1983

Migra, at 465 U.S. 81, found:

It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered. In Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d. 308 (1980), this Court said:

"Indeed, though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so. . . ." Id., at 449 U.S. 96.

This principle was restated in Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982):

"Section 1738 requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged." Id., at 466.

See also Haring v. Prosise, 462 U.S. 306 (1983). Accordingly, in the absence of federal law modifying the operation of 1738, the preclusive effect in federal court of petitioner's state-court judgment is determined by Ohio law.

Migra went on to find, at 465 U.S. 83-87, that whether a state court proceeding wherein a 42 U.S.C. §1983 claim could have been raised but was not bars a subsequent proceeding in federal court, claim preclusion, is dependent upon whether the state’s courts consider such a claim barred. Because Ohio’s courts considered such claims barred, and because the trend in Ohio at the time was away from allowing parties to bring such unlitigated claims in subsequent proceedings and toward claim preclusion, the federal courts, at least in the districts of Ohio, were bound by Ohio’s claim preclusion doctrine.

By the same token, if Washington’s courts do NOT recognize such a claim preclusion doctrine, and/or if the trend in Washington is away from claim preclusion and toward allowing a litigant to assert unlitigated Constitutional issues in subsequent proceedings, then this Court is not barred by Migra and Allen preclusion in this case by Knight v. DSHS I and II.

City of Bremerton v. Widell, (June 6, 2002) ____ Wash. 2d. ____, found:

As an initial matter, the City argues that the validity of BHA's antitrespassing policy, as well as the validity of the orders excluding Petitioners from Westpark, cannot be raised in a criminal proceeding. Specifically, the City argues that Petitioners should be collaterally barred from questioning their initial exclusion from Westpark, which constitutes the underlying basis for their criminal charges. See State v. Coe, 101 Wn.2d 364, 679 P.2d 353 (1984). We reject this contention.

The City attempts to analogize this case to criminal contempt decisions, in which it is generally held that a court order 'cannot be collaterally attacked in contempt proceedings arising from its violation, since a contempt judgment will normally stand even if the order violated was erroneous or was later ruled invalid.' Id. at 370. This is true, unless the court issuing the underlying order lacked jurisdiction to issue the order. Id. The policy underlying the collateral bar rule is respect for independent judicial decision making. We see no reason to extend this deference to housing authority policies or exclusion orders issued by individual police officers.

The City further relies on City of Bremerton v. Spears, 134 Wn.2d 141, 164, 949 P.2d 347 (1998), in support of its argument that Petitioners should not be allowed to challenge the validity of BHA's antitrespassing policy. The defendant in Spears was charged with violation of a state statute requiring motorcycle riders to wear helmets approved by the state patrol. The defendant argued that the patrol violated the Administrative Procedure Act (chapter 34.05 RCW) requirements in promulgating the regulation defining approved helmets. This Court declined to consider that challenge, however, because the defendant had failed to make the patrol a party to the action. Id. at 164. Nevertheless, the defendant was permitted to challenge the state patrol's regulations as unconstitutionally vague. Id. at 161-64. Unlike the argument disallowed in Spears, Petitioners' challenge here does not involve the procedures followed by BHA in promulgating the antitrespass policy nor BHA's authority to do so. Instead, Petitioners' arguments are more similar to the constitutional challenges which were permitted in Spears.

Spears, is a civil case, arising from citations for traffic infractions. The collateral bar rule cited therein does not apply to where a penalty imposed for violating an order or law does not stand where the order or law is found invalid.

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 where the State is charging a defendant with unlawful possession of a firearm, where the State must prove the predicate conviction which render the subsequent possession of the firearm illegal, 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. Swindel, 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.

State v. Dolson, (1999) 138 Wash. 2d. 773, 781-782, 982 P. 2d. 100 found:

The State also asserts that Dolson was not prejudiced because Dolson had actual knowledge of his license revocation at the time of his 1996 arrest for driving with a revoked license. The State points out that Dolson had been convicted of driving without a license on three separate occasions since the 1990 revocation.

Emphasis added. Mr. Dolson could have raised the issue of the validity of notice required by statute and by due process during one of the three previous criminal trials for DWLS. Nevertheless, the Supreme Court of Washington went on to find that the license suspension was invalid and reversed the fourth DWLS conviction, Dolson at 138 Wash. 2d. 782-783.

Washington courts do not recognize claim preclusion in criminal cases and the trend is toward not recognizing claim preclusion in civil cases, particularly with respect to Constitutional claims. Therefore, Knight v. DSHS I and II do not have Allen and Migra claim preclusion effect over the plaintiff’s Constitutional claims not raised therein.

AS APPLIED TO MR. KNIGHT, THE WORKFIRST ACT IS A BILL OF ATTAINDER AND AN EX POST FACTO LAW

The WorkFirst Act was passed by the Washington Legislature in 1997, Laws 1997 Chapter 58. The child support order was imposed in its current form upon Mr. Knight in 1990. It does not contain any warning that failure to comply would result in any possible license suspension or revocation because there was no statute providing for such a license suspension or revocation. This support order has not been modified since. On May 29, 1995, Mr. Knight was laid off by The Boeing Company, which had been complying with a wage garnishment sent by the Department of Social and Health Services (DSHS). By the time the WorkFirst Act was passed, Mr. Knight was well over two years out of compliance with the support order, with little hope of ever complying with it. Exhibits B and C to Knight Declaration I, recognized as undisputed facts on pages 1-2 of its Order Denying Motion for a Preliminary Injunction.

Bills of attainder and ex post facto laws impose punishment upon an individual person or upon a group of persons by legislative action and without judicial trial. While bills of attainder are not restricted to criminal punishments, ex post facto laws add a quantum of punishment to previously committed crimes or define as criminal previous acts that were not criminal at the time committed.

Cummings v. Missouri, (1867) 71 U.S. 277, 18 L. Ed. 356 and Ex parte Garland, (1867) 71 U.S. 333, 18 L. Ed. 366 invalidated as bills of attainder and ex post facto laws measures requiring persons to swear an oath that they never aided the Confederate States of America during the Civil War as a condition to practice certain professions. Because Mr. Cummings performed religious services for all who came to him, be they Union or Confederate, he could not swear without committing perjury that he did not aid the Confederacy.

Such statutes do not escape the Constitutional prohibition by any assertion that they only punish future conduct, such as Mr. Cummings performing religious services after passage of the Test Oath Law, because the real conduct being punished is the previous aiding the Confederacy.

As found by Justice Story in Prigg v. Pennsylvania, (1842) 41 U.S. (16 Pet.) 539, 612, 10 L. Ed. 1060:

No Court of Justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them.

The Bill of Attainder and Ex Post Facto Clauses were in the Constitution at the time Justice Story made this ruling with respect to the Fugitive Slave Clause. These clauses, along with the Thirteenth and Fourteenth Amendments passed to render the Fugitive Slave Clause surplusage, are entitled to at least the consideration that Justice Story gave to the Fugitive Slave Clause. To pass a law prohibiting otherwise lawful conduct solely on the basis of past “bad acts” and to find that it is not a bill of attainder or ex post facto law because it only punishes future behavior, such as operating a motor vehicle when disqualified for not paying child support, where such “bad acts” occurred prior to the passage of the statute, is to defeat the obvious ends of the Constitutional provisions.

Justice Black’s concurring opinion in Aptheker v. Secretary of State, (1964) 378 U.S. 500, 518, 12 L. Ed. 2d. 992, 84 S. Ct. 1659 found that in addition to other Constitutional violations, the statute prohibiting members of the Communist Party of the United States from obtaining passports was a bill of attainder. It follows that any legislative act prohibiting noncustodial parents unable to comply with support orders from operating motor vehicles is also a bill of attainder. United States v. Brown, (1965) 381 U.S. 437, 14 L. Ed. 2d. 484, 85 S. Ct. 1707 found that the statute prohibiting Communist Party members employment by labor unions was a bill of attainder.

United States v. Lovett, (1946) 328 U.S. 303, 315, 90 L. Ed. 1252, 66 S. Ct. 1073 found a statutory provision that barred compensation to three named individuals for government employment except jury duty or military service was a bill of attainder.

As the Workfirst Act deprives Mr. Knight of any opportunity to practice any profession for which he might at present or at some time in the future qualify, then the WorkFirst Act is a bill of attainder and an ex post facto law.

As to operating a motor vehicle, the license in question is closely related to the fundamental right to travel that was at issue in Aptheker, and that it may be required for certain forms of employment, (commercial driver’s licenses and licenses to operate a business also directly impact the ability to earn a living and to comply with a support order).

The 1994 and 1996 amendments to the unlawful possession of firearms statute, RCW 9.41.040, were challenged as bills of attainder and ex post facto laws in that certain persons convicted of certain crimes prior to 1994 could legally own guns with barrels longer than 12 inches. The Supreme Court of Washington split 5-4 in State v. Schmidt, (2001) 143 Wash. 2d. 658, 23 P. 2d. 462. Justice Charles W. Johnson dissent, 143 Wash. 2d. 681-687, found that the right to keep and bear arms is a fundamental right, recognized in Article I Section 24 of the Washington Constitution and the Second Amendment. To enact a prohibition of possession of long firearms to a class of persons previously prohibited only from owning short firearms is to add a quantum of punishment and therefore pass an ex post facto law. Loss of a right, liberty or a privilege is a punishment, Schmidt Dissent at 143 Wash. 2d. 683.

The majority of the Court found that merely adding long firearms to a list of firearms already prohibited to the class was not a punishment for prior crimes, Schmidt at 143 Wash. 2d. 675-676, and Court of Appeals opinion at 100 Wash. App. 297, 307, 984 P. 2d. 453 quoting United States v. Huss, (9th Cir. 1993) 7 F. 3d. 1444, 1448:

the ‘marginal effect of adding long guns to the otherwise exhaustive list of restricted weapons does not amount to punishment for ex post facto purposes.’

However, the WorkFirst Act does not have any such “marginal effect” upon noncustodial parents who previously did not comply with support orders. The license suspension provisions of RCW 74.20A.320 apply to all licenses issued by the State of Washington by directing the DOL to suspend licenses upon a certification by the DSHS that the noncustodial parent is out of compliance with a support order. The administrative hearing provided by RCW 74.20A.320 allows no consideration of inability to comply with the support order. Previously no such threat existed in any support order, nor was one contemplated in any statute. There is no list of license restrictions to which the WorkFirst Act makes a “marginal” addition. To provide for the suspension of a driver’s license without regard to the motorist’s driving record solely on the basis of noncompliance with a pre 1997 support order where such noncompliance began prior to 1995 is to pass a bill of attainder and an ex post facto law.

FURTHER ARGUMENTS FOR ANTIPEONAGE ACT, MIGRA AND ALLEN PRECLUSION DOES NOT APPLY TO THE INDEPENDENT JURISDICTION OF THE ANTIPEONAGE ACT, 42 U.S.C. §1994 CREATES STATUTORY EXCEPTION TO 28 U.S.C. §§ 1728 AND 2283

The arguments set forth on pages 12-19 of Plaintiff’s Motion 4PSJ and his Reply are incorporated herein by reference. By way of further argument:

42 U.S.C. §1983 creates a statutory exception to 28 U.S.C. §2283. Mitchum v. Foster, (1972) 407 U.S. 225, 32 L. Ed. 2d. 705, 92 S. Ct. 2151. Therefore, 42 U.S.C. §1994, which includes the word “orders”, also creates a statutory exception to 28 U.S.C. §2283. As the federal courts have the jurisdiction to enforce the civil right defined by the Antipeonage Act, an injunction to stay state court proceedings, “orders”, that are declared null and void is certainly necessary in the aid of this jurisdiction.

Allen and Migra considered the legislative history of the Civil Rights Act of 1871, which became 42 U.S.C. §1983. However, the findings in Allen as to the concerns of Congress in deliberating on the Civil Rights Act of 1871 does not apply in any way to the deliberations of Congress in 1866 and 1867 on the Peonage Bill. There is nothing in this legislative history or in the language of 42 U.S.C. §1994, and the bill as originally passed, 14 Stat 546, to suggest that Congress was the least bit concerned about “full faith and credit” to a state court order that imposed or allowed peonage. They declared such a state court order null and void.

Therefore, Allen and Migra do not apply to the jurisdiction granted by 42 U.S.C. §1994 and the Antipeonage Act thus creates a statutory exception to 28 U.S.C. §1738.

To the extent that 42 U.S.C. §1994 overcomes the Full Faith and Credit Clause, Article IV Section 1 of the Constitution, Congress was authorized to do so by Section 2 of the Thirteenth Amendment, to enforce the prohibition of slavery and involuntary servitude. Congress is authorized to abrogate common law and Eleventh Amendment immunity of the States under Section 5 of the Fourteenth Amendment, which is copied from Section 2 of the Thirteenth Amendment. Alden v. Maine, (1999) 144 L. Ed. 2d. 636, 119 S. Ct. 2240; Seminole Tribe v. Florida, (1996) 517 U.S. 44, 134 L. Ed. 2d. 252, 116 S. Ct. 1114; and Atascadero State Hospital v. Scanlon, (1985) 473 U.S. 234, 240-241, 87 L. Ed. 2d. 17, 105 S. Ct. 3142.

The rules of statutory construction summarized in United States v. Romo-Romo, (9th Cir. 2001) 246 F. 3d. 1272, 1274-1275, citing Hartford Underwriters Ins. Co. v. Union Planters Bank, NA, (2000) 530 U.S. 1, 147 L. Ed. 2d. 1, 120 S. Ct. 1942, 1947; United States v. Sun-Diamond Growers, (1999) 526 U.S. 398, 407, 143 L. Ed. 2d. 576, 119 S. Ct. 1402; and Harris Trust & Savings Bank v. Salomon Smith Barney, Inc., (2000) 530 U.S. 238, 147 L. Ed. 2d. 187, 120 S. Ct. 2180, 2191, apply to the Antipeonage Act, 42 U.S.C. §1994.

In Sun-Diamond Growers at 526 U.S. 406-408, Justice Scalia found that statutory definition of “illegal gratuity” requires that a gift made to a public official must be linked to a specific “official act” within the meaning of the statute. This is an affirmation of United States v. Kozminski, (1988) 487 U.S. 931, 939, 101 L. Ed. 2d. 788, 108 S. Ct. 2751:

Federal crimes are defined by Congress, and so long as Congress acts within its Constitutional power in enacting criminal statute, this Court must give effect to Congress expressed intention concerning the scope of conduct prohibited.

citing Dowling v. United States (1985) 473 U.S. 207, 213-4, 87 L. Ed. 2d. 152, 105 S. Ct. 3127 and United States v. Wiltberger, (1820) 18 U.S. (5 Wheat.) 76, 95, 5 L. Ed. 37. It follows that these same rules of statutory construction apply to 18 U.S.C. §1581.

In Hartford Underwriters at 120 S. Ct. 1947, Justice Scalia wrote:

. . . we begin with the understanding that Congress “says in a statute what it means and means in a statute what it says there,” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254, 112 S. Ct. 1146, 117 L. Ed. 2d. 391 (1992). As we have previously noted . . . when “the statute’s language is plain, ‘the sole function of the courts’” - at least where the disposition required by the text is not absurd - “is to enforce it according to its terms.’” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 103 L. Ed. 2d. 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 61 L. Ed. 442 (1917)).

In Harris Trust at 120 S. Ct. 2191, Justice Scalia quoted Hughes Aircraft Co. v. Jacobson, (1999) 525 U.S. 432, 438, 142 L. Ed. 2d. 881, 119 S. Ct. 755, which in turn quoted Estate of Cowart v. Nicklos Drilling, (1992) 505 U.S. 469, 475, 120 L. Ed. 2d. 379, 112 S. Ct. 2589 that in statutory construction, analysis begins with language of statute and quoted Connecticut Nat. Bank at 503 U.S. 254 “where the statutory language provides clear answer, it ends there as well”.

By these rules, “debt or obligation, or otherwise” within 42 U.S.C. §1994 includes child support. If that is not a clear answer, Senator Lane in remarks on the Peonage Bill discussed the effect of New Mexican peonage on the “peon with a family to support”. Congressional Globe, 39th Cong. 2d. Sess. p. 1571. The 1867 Congress intended to prohibit coercion of labor in liquidation of family support obligations. Congress was aware of such obligations and their enforcement in cases similar to Stanton v. Willson, (Conn. 1808) 3 Day 37, cited in United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, 874 n. 2, cert. den., 120 S. Ct. 318.

In New Mexico’s system, peonage was used to enforce judgments for debt, tort damages, breach of contract, unpaid taxes or fines, awards for attorney’s fees, and awards for alimony and child support. A description of how New Mexican peonage worked is found in Jaremillo v. Romero, (1857) 1 N.M. (Gildersleeve) 190 and Peonage Cases, (M.D. Ala. 1903) 123 F. 671. New Mexico’s peonage era Vagrancy Act included abandoning family without leaving them with the means of support. It specifically provided that upon conviction, the party shall be imprisoned until “sold”. This means that an employer in need of additional peons can go to the courthouse and pay the fines of the convicted vagrants. Such payment created the debt upon which the convict is remanded to peonage.

This is what the Congress clearly intended to prohibit.

CONCLUSION

For the reasons stated herein, this Cross Motion for Summary Judgment should be granted.

RESPECTFULLY SUBMITTED, July 9, 2002.

____________________________________

Roger W. Knight, plaintiff

[2] Examples: Westlaw, Lexis-Nexis, Versus Law, and FindLaw. Those who have obtained passwords by contract may search these databases for published and unpublished decisions that include the words: “Jones”, “Mayer”, “Rooker”, and “Feldman”. Result: “No listings”.