State v Knight Supplemental Reply

KING COUNTY DISTRICT COURT, WEST DIVISION

STATE OF WASHINGTON, )

) No. C438381

plaintiff, )

) DEFENDANT’S SUPPLEMENTAL

v. ) REPLY TO STATE’S RESPONSE TO

) MOTION TO DISMISS COMPLAINT

ROGER W. KNIGHT, )

)

defendant. )

____________________________________)

SUPPLEMENTAL REPLY

Comes now ROGER W. KNIGHT, defendant, and with some more time, to supplement his reply to the State’s Response to Motion to Dismiss the Complaint.

SUPPLEMENTAL ARGUMENT IN REPLY

State v. Williams, (1997) 132 Wash. 2d. 248, 254, 937 P. 2d. 1052 found that Washington’s courts have yet (as of 1997) to apply the doctrine with respect to a finding of fact in a previous civil or administrative case to bar a subsequent criminal prosecution. At 132 Wash. 2d. 257-258, Williams found:

While some foreign jurisdictions have barred prosecution under the doctrine of collateral estoppel, both Dupard and Cleveland require us to closely examine public policy. We conclude that public policy simply does not allow a DSHS administrative hearing to prevent the State from prosecuting Williams.

First, the purposes underlying the administrative hearing and the criminal trial in the present case are wholly distinct. The purpose of the hearing was to determine whether Williams received overpayments of public assistance and the rate at which she would repay DSHS. The purpose of the criminal prosecution was to determine whether Williams had committed a crime. It is already established that the latter inquiry “is more appropriately addressed to the criminal justice system.” Dupard, 93 Wn. 2d at 276.

State v. Dupard, (1980) 93 Wash. 2d. 268, 276-277, 609 P. 2d. 961 found:

We believe public policy dictates rejection of collateral estoppel in this instance. Parole revocation is not part of a new criminal prosecution. Standlee v. Smith, 83 Wn. 2d 405, 518 P. 2d. 721 (1974). See also Standlee v. Rhay, 403 F. Supp. 1247 (E.D. Wash. 1975), rev’d 557 F. 2d. 1303 (9th Cir. 1977). Rather, it is a “continuing consequence” of the original conviction.

The parole revocation process has been described as a twofold inquiry. The first involves “a wholly retrospective factual question”; has the parolee in fact violated a condition of parole? Assuming an affirmative answer, the second step addresses the appropriate disposition of the matter. . . . In the instant case, the basic factual question to be answered is whether the parolee in fact committed a new crime. As a general proposition, we believe this inquiry is more appropriately addressed to the criminal justice system. See United States ex rel. Burgess v. Lindsay, 395 F. Supp. 404, 410 (E.D. Pa. 1975).

We believe the legislature contemplated that new crimes would be processed initially in the criminal justice system rather than by a parole revocation hearing. It may be noted that RCW 9.95.120 provides for a hearing within 30 days for one accused of violating his parole “other than the commission of, and conviction for, a felony or misdemeanor . . .” At another point in the same section reference may be found that “a parole is suspended pending the disposition of a new criminal charge, . . .”

Practical public policy requires that new criminal matters, when charged in the criminal justice system, must be permitted to be there decided, unhampered by any parallel proceedings of the Board of Prison Terms and Paroles. Consequently we hold that the board’s revocation hearing decision regarding Dupard may not be interposed as a basis for collateral estoppel in his prosecution on new criminal charges.

State v. Cleveland, (1990) 58 Wash. App. 634, 639-640, 794 P. 2d. 546 found:

Applying the four requirements of collateral estoppel to the facts of the case before us, we conclude that the first three are here satisfied. It is undisputed that the issue resolved in Cleveland’s favor in the dependency hearing was identical to the issue on which he was convicted in the criminal proceeding. That issue was sexual abuse of his stepdaughter K. There is also no question but that the dependency proceeding ended in a final judgment on the merits. The party against whom the estoppel is asserted is the State of Washington in both cases. It is immaterial that in the dependency proceeding, the State was represented by the Attorney General and in the criminal prosecution was represented by the county prosecuting attorney. State v. Dupard, 93 Wn. 2d 268, 609 P. 2d. 961 (1980).

The last requirement for the application of collateral estoppel is one of public policy: whether the doctrine’s application would work an injustice.

After consideration of Dupard and of Harris v. Washington, (1971) 404 U.S. 55, 56, 30 L. Ed. 2d. 212, 92 S. Ct. 183, finding that Harris held that mere failure to litigate, without something more, is insufficient to reject application of collateral estoppel on policy grounds, Cleveland at 58 Wash. App. 642, Cleveland at 58 Wash. App. 643-644 found:

It may be a fair question as to whether nonmutual collateral estoppel should be applied to the case before us, given that, as K.’s stepfather, Cleveland was not a party to the dependency proceeding. Because our decision here is based on separate policy considerations, we do not decide that issue. However, we note that the unusual circumstances here differ from those present in Standefer, because although Cleveland was not a party to the dependency proceeding, the only issue there concerned Cleveland’s conduct - whether he had sexually abused K. Therefore, unlike Standefer, which dealt with another party’s activities, the case before us concerned only Cleveland in both proceedings.

As noted above, we find overall considerations of public policy are determinative of the question before us. Dependency proceedings are often attended with a sense of urgency, are held as promptly as reasonably possible, and the entire focus of the proceeding is the welfare of the child. The focus being more narrow than in a typical felony trial, the state normally does not need, nor does it perform, the extensive preparation typically required for felony trials.

Furthermore, the prosecutor uses many more resources in developing a felony prosecution than those available and used in the typical dependency hearing. Dependency is decided by a judge, while felony trials are usually tried to a jury. In addition, if the State was faced with application of the doctrine of collateral estoppel to findings in dependency proceedings, there could well be a reluctance to conduct dependency proceedings in cases where one or more of the same issues would arise in subsequent criminal prosecutions. While the welfare of the minor children is undeniably important, we are influenced by the desireability of not impeding enforcement of the criminal law when no overriding consideration requires it.

Standefer is Standefer v. United States, (1980) 447 U.S. 10, 64 L. Ed. 2d. 689, 100 S. Ct. 1999.

Similarly, these public policy considerations counsel against the application of collateral estoppel to prohibit Mr. Knight from requiring the State to prove the fact of notice required by RCW 74.20A.320(1). The federal cases cited by the State are civil actions brought under 28 U.S.C. §§1331 and 1343 and under 42 U.S.C. §1994. 28 U.S.C. §§1331 and 1343 provide the federal district courts with original jurisdiction over matters of federal law, including where actions of those acting under color of state law deprive the plaintiff of civil rights guaranteed by the Constitution and laws of the United States. However, these statutes do not provide the federal courts with any appellate jurisdiction to review any state court determination of law or fact, as found by Rooker v. Fidelity Trust Co., (1923) 263 U.S. 413, 68 L. Ed. 362, 44 S. Ct. 149 and District of Columbia Court of Appeals v. Feldman, (1983) 460 U.S. 462, 75 L. Ed. 2d. 206, 103 S. Ct. 1303. Because this doctrine is statutory, a statutory exception to this doctrine must be pled and found for a federal court to review the determination of a state court. Example of such statutory exceptions include 28 U.S.C. §1257, which provides for United States Supreme Court review of final decisions by the state supreme courts, and 28 U.S.C. §2254, which provides for habeas corpus review of state court determinations in the federal courts under circumstances presently limited by the Anti-Terrorism and Effective Death Penalty Act. Mr. Knight did plead that the Antipeonage Act, 42 U.S.C. §1994, with its inclusion of the word “orders” and declaring that such orders and other attempts to enforce peonage under state law were declared null and void, created a statutory exception to Rooker-Feldman. Nevertheless, accomplishment of notice required by RCW 74.20A.320(1) is largely irrelevant to whether the statutory scheme and its implementation against Mr. Knight is declared null and void by 42 U.S.C. §1994 as a practice of peonage. While any violation of 42 U.S.C. §1994 is arguably the crime defined by 18 U.S.C. §1581, Mr. Knight certainly does not stand accused in this present state court case of any crime of peonage, involuntary servitude, or slavery.

Other limitations to 42 U.S.C. §1983 jurisdiction includes consideration of the Full Faith and Credit Act, 28 U.S.C. §1738, as found by Allen v. McCurry, (1980) 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d. 308 and Migra v. Warren City School Board of Education, (1984) 465 U.S. 75, 81, 79 L. Ed. 2d. 56, 104 S. Ct. 892, and the abstention doctrine set forth in Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 746. Most of the pleadings in the federal cases involved these issues of pure law, and Mr. Knight was not afforded any opportunity to conduct discovery as to any issue of fact. All decisions were made by judges, in the federal district court and on appeal, no decisions as to fact were made by any jury.

The primary public policy purpose of any civil action under 42 U.S.C. §1983 is not to determine whether any person acting under color of state law committed a crime, it is merely to determine whether such actions under color of state law violated a civil right guaranteed by federal law. Standard of proof as to any issue of fact is preponderance of evidence.

The primary public policy purpose of this present state court criminal prosecution is much simpler: Did Mr. Knight commit a crime of driving while license suspended? The superior court in City of Mercer Island v. Knight reversed the previous convictions because the Bellevue District Court did not require that accomplishment of notice required by RCW 74.20A.320(1) be proven. But the superior court affirmed the finding that in a criminal DWLS case, issues as to the validity of the statutory scheme, as a multi-subject bill, as a bill of attainder against noncustodial parents unable to comply with pre-existing support orders, as invidious discrimination against such noncustodial parents in violation of constitutional protections as to due process and equal protection, and even if it is an attempt by virtue of state law to enslave for debt or obligation declared null and void by the Antipeonage Act, were not within the jurisdiction of a criminal court to decide. Those considerations can be raised on appeal of the administrative hearing provided by RCW 74.20A.320 upon an adequately served notice.

Therefore, it matters not to this proceeding what the federal courts have decided with respect to such issues of validity of the statutory scheme.

Other public policy considerations in a criminal case include the far greater protections afforded defendants in criminal cases: Right to Jury, Right to Non-Self Incrimination, and Right to Proof of All Elements of Crime Beyond Reasonable Doubt. In addition the primary focus of a criminal case is necessarily the guilt or innocence of the defendant of the crime charged. This is more appropriately determined in a criminal trial, than in any civil proceeding in any forum.

Because the State, pursuant to the superior court’s finding in City of Mercer Island v. Knight, must prove beyond reasonable doubt that notice was accomplished as required by RCW 74.20A.320(1), whether the defendant is Mr. Knight or someone else, and because the previous federal court civil cases did not use such a high standard and operated under entirely different public policy considerations, it works an injustice to not require such proof in this case. Because the State admitted, through Deputy Prosecuting Attorney Kathryn Kim to this Court on March 3, 2004, that the only witness it plans to call is a Washington State Patrol Trooper whose duties do not ordinarily include sending notice as required by RCW 74.20A.320(1), the State has no evidence whatsoever to present as to this notice. This was admitted by Deputy Prosecuting Attorney Anderson in State v. Knight, No. CQ54646KC when he moved for dismissal.

Therefore the case should be dismissed with prejudice for want of the evidence necessary to prove all elements of the crime or for the collateral estoppel effect of the previously litigated criminal DWLS cases that are all dismissed with prejudice as to the key element required by the superior court to be proven.

CONCLUSION

For the reasons stated herein, the Motion to Dismiss should be granted and the Complaint should be dismissed with prejudice.

Respectfully submitted this 4th day of March, 2004.

__________________________

Roger W. Knight, pro se

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