KING COUNTY DISTRICT COURT, WEST DIVISION
STATE OF
) No. C438381
plaintiff, )
) DEFENDANT’S REPLY TO STATE’S
v. ) RESPONSE TO MOTION TO
) DISMISS COMPLAINT
ROGER W. KNIGHT, )
)
defendant. )
____________________________________)
REPLY
Comes now ROGER W. KNIGHT, defendant, to reply to the State’s Response to Motion to Dismiss the Complaint.
ARGUMENT
IN REPLY
If Mr. Knight was to move for dismissal on the basis that this Court lacks jurisdiction because displayed within the courtroom is a United States flag with a gold fringe, not only would this Court deny such a motion, it might impose a sanction against him for presenting a patently frivolous argument. The State’s contention that the federal Ninth Circuit’s findings where there was no opportunity to conduct the discovery process under the Federal Rules of Civil Procedure and the Local Rules for the Western District of Washington in the district court, as to the factual issue of whether a letter by certified mail was sent and that such service was SUCCESSFUL, is that bad.
Perhaps the simplest argument to
make is that where a previous court proceeding made a finding of fact under the
preponderance of evidence standard, there is no issue preclusion in a
subsequent court proceeding where the standard of proof is reasonable
doubt. The federal circuits recognize
this in federal cases:
United States v. Bostian, (4th Cir. 1978)
As a general rule, evidence of a determination made in a civil action where the party with the burden of persuasion must establish facts only by a preponderance of evidence is not admissible to prove an element of a criminal prosecution where the government must establish elements of the charged offense beyond a reasonable doubt. See Charles A. Wright et al., 18 FEDERAL PRACTICE AND PROCEDURE § 4422 (1981). A matter established in an action requiring a lower burden of proof is not conclusive if the same issue is raised in action requiring a higher burden.
Please find
attached to this brief a copy of 18 Federal Practice and Procedure § 4422 that
is more recent than 1981 with citations of federal court published opinions
subsequent to that date. This basic rule
has not been changed by the federal courts and if this is a case of first
impression, this Washington Court can reasonably incorporate this federal rule
of practice as consistent with the
Fifth and
Fourteenth Amendments as to due
process and double jeopardy,
Article I Sections 3 and 22 of the
Washington
Constitution, and as to collateral estoppel and issue
preclusion. If this is not a case of
first impression under
A somewhat more complicated, but no
less compelling argument has to do with whether there was a full and fair
opportunity to litigate the issue of fact in the prior court proceeding.
State
v. Tili, (2003) 148
It
is Mr. Knight’s contention that the City of Mercer Island had a full and fair
opportunity to present evidence on remand that notice required by
RCW
74.20A.320(1) was accomplished and that this issue is conclusively decided by
Mercer Island’s decision not to continue the case. Mr. Knight meets his burden of proof for
collateral estoppel purposes with his pleading herein
and with his Declarations presented today authenticating the record of the
Where
the State now asserts the preclusive effect of a previous federal court
proceeding, it has the same burden of proof.
It will have to present to this Court the entire record of
Knight v. Serpas
et al, W.D. Wash. No. C02-1641C and the entire record of the appeal, 9th
Circuit No. 03-35016, including Briefs and the Excerpts of Record. What will this record show?
Upon
receiving his copy of the
Complaint, Judge John C. Coughenour
filed and served an Order to Show Cause why the case should not be dismissed
under
Younger abstention
doctrine. Mr. Knight
responded to this
Order and
supplemented his response after Judge Michael Trickey
in King County Superior Court
reversed the Mercer Island DWLS convictions. Nevertheless, Judge Coughenour
dismissed on the basis of
Younger,
Rooker-Feldman,
Allen and
Migra preclusion and the general
idea that a noncustodial parent ordered to pay child
support has no rights to assert anyway.
Judge Trickey’s finding to the contrary
notwithstanding. What Judge Coughenour did NOT determine, is the factual issue
of whether the State accomplished notice required by
RCW 74.20A.320(1). There was no opportunity by Mr. Knight to use
the discovery process of the Federal Rules of Civil Procedure to determine this
issue of fact. Under
Shuman,
the Ninth Circuit’s
finding on appeal
is not a “final judgment on the merits” because there was no full and
fair opportunity by Mr. Knight litigate it in the federal courts.
When
the State provides the entire record of
Knight
v. City of Mercer Island et al, W.D. Wash. No. C02-879L and the entire
record of the appeal, 9th Circuit No. 03-35116, including Briefs and the
Excerpts of Record, it can readily be shown that Judge Lasnik
equally did not make any finding as to the factual issue of whether the State
accomplished notice required by
RCW 74.20A.320(1), and that Mr. Knight was not
afforded the opportunity to engage in the discovery process under the Federal
Rules of Civil Procedure.
In
both cases, Mr. Knight not only presented the
evidence of Judge Trickey’s determination, he also filed
declarations that on
remand the City of
This
finding by Judge Lasnik is thus patently absurd. As absurd the argument that a civilian court
lacks jurisdiction to make any determination of law or fact because the flag
displayed in the courtroom has a gold fringe.
It is that bad.
One
final argument against the validity and therefore preclusiveness
of the Ninth Circuit’s finding is that it lacked jurisdiction to make any
finding that notice was accomplished by certified mail as required by
RCW
74.20A.320(1). The Bellevue Division of
this Court dismissed with prejudice the two charges of DWLS brought my
Because
Tili
did not affect
Shuman, and because Deputy Prosecuting Attorney Anderson was
acting on behalf of the same party, the State of
THAT is a final determination of fact.
CONCLUSION
For the reasons stated herein, the Motion to Dismiss should be granted and the Complaint should be dismissed with prejudice.
Respectfully submitted this 3d day of March, 2004.
__________________________
Roger W. Knight, pro se
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