State v. Knight, King County District Court, South Division, No. CQ54646KC, King County District Court, West Division No. C438381, and Knight v. State, King County Superior Court No. 04-2-07991-8 SEA Web Page
See also www.antipeonage.0catch.com
Some practical advice for support contemnors in the State of Washington
A Way to Walk a Mile in a Noncustodial Parent's Moccasins.
This is the Web Page upon which I list the internal links to the pleadings I filed in response to the NEW criminal charges of Driving While License Suspended, in spite of my previous VICTORY in the Mercer Island Case.
Motion to Dismiss Complaint, Collateral Estoppel
In spite of this, Leonard Stephen Rochon, judge pro tem, (also a judge of Pacific Municipal Court, Pacific being a small city between Auburn and Sumner, Washington, and practices law, mostly criminal defense) tentatively denied my motion finding that the City of Mercer Island is not in privity with the State of Washington as represented by the King County Prosecutor's Office.
Really!
So I had to file this Motion to Reconsider and Supplement to Motion to Dismiss Complaint, Collateral Estoppel
I filed almost identical motion and supplement in KCDC, West Division No. C438381.
One would think that this is a slam dunk and I should not have to go through this.
On January 9, 2004, the King County Prosecutor's Office agreed and moved to dismiss the charge in the South Division. They admitted that they could not establish their theory of the case: if the letter by certified mail was sent and received, they could somehow get around the collateral estoppel that arises from Mercer Island dropping the previous case. But they discovered that the Departments of Social and Health Services and of Licensing could not establish that. So this charge is dismissed with prejudice and I have asked them to drop the charge in the West Division because now collateral estoppel is complete and airtight: Second Supplement to Motion to Dismiss in West Division No. C438381. The full and fair opportunity to present evidence is frustrated by the lack of evidence.
Even so, it is my position that Mercer Island had the full and fair opportunity to present evidence of either certified mail or personal service. Therefore, even if the DOL came up with the evidence to support this prosecutor's theory of the case, I was confident that the Superior Court would have reversed on grounds of collateral estoppel in the event the District Court continued to not get a clue and the jury actually convicted. I had prepared further motions and a set of jury instructions, and as the case was dropped, I left the Kent courthouse with a bag of unfired ammunition. It will wait for a client who needs it. I believe that the King County District Court, in its practice of not allowing the parties to know which judge or judge pro tem is hearing a case before the hearing, for arraignment, pre-trial and readiness hearing, jury call, motion hearing, and trial, it is vulnerable to the kind of motion I prepared.
It may be presented in another case.
However, Deputy Prosecutor Kathryn Kim was a determined Captain Ahab and she must think of me as the Great White Whale. She cannot stand having me continue to swim in her ocean! On March 2, 2004, she filed a State's Response to my Motion to Dismiss in No. C438381 actually claiming that a very questionable finding by the Ninth Circuit Court of Appeals in my federal challenges to the WorkFirst Act collateral estops me from requiring proof of the notice required by RCW 74.20A.320(1)! Thus negating my previous victory in the Mercer Island case establishing that this must be proven.
With only 23 hours to prepare a reply to this insane argument and present it at the hearing on March 3, 2004, I drafted my Defendant's Reply to State's Response to Motion to Dismiss. And with some additional time, on March 4, 2004 I presented my Defendant's Supplemental Reply to State's Response to Motion to Dismiss.
At the hearing on March 11, 2004, Judge Barbara Linde denied my motion to dismiss on grounds of collateral estoppel. But she went further, as in BEYOND THE PALE. In spite of my plea that under the Confrontation Clause of the Sixth Amendment that the prosecution must either produce the process server to give live testimony or explain why they cannot, even that with the new United States Supreme Court decision in Crawford v. Washington which greatly narrowed the exceptions for unavailable witnesses, Judge Linde found that a few documents bearing the signature of the process server was sufficient to PROVE the element of service!!! This is the element that Judge Michael Trickey found needed to be proved in Mercer Island v. Knight. Therefore, she found that the jury only needed to decide whether a State Patrol officer is telling the truth when he testifies about pulling me over and finding that I was driving the car.
That is CONVICTION of a CRIME by SUMMARY JUDGMENT. The PRECISE THING the Sixth Amendment PROHIBITS and was INTENDED TO PROHIBIT. Read Crawford, and what you find is that the First Congress considered the case of Crown v. Sir Walter Raleigh. Raleigh was tried for treason. (An English knight's disloyalty to a Scottish King!) He and his lawyers demanded that one of his accusers be produced for trial so his defense team can examine him in front of the jury. The Crown refused and the court thereby allowed him to be convicted on such deposition testimony. In short, conviction of a crime by summary judgment. King James I (James VI of Scotland) commuted the death sentence to imprisonment in the Tower of London. After Raleigh returned from a failed expedition in Guyana, King James invoked the death sentence and Raleigh was executed.
The Sixth Amendment was written with the Confrontation Clause to prevent what happened to Sir Walter Raleigh from ever happening in any American trial. It insures that every element necessary for the conviction of any crime must be proven by live testimony subject to cross examination. That Judge Linde is willing to violate this very principle, even in the face of a defendant's presentation of a copy of the new Crawford v Washington decision, should OUTRAGE all Americans concerned about our Constitutional rights.
Fortunately, under chapter 7.16 RCW, a writ of prohibition is available to prohibit a criminal trial where a court exceeds its jurisdiction by allowing trial or even finding by summary judgment, an element of the crime that was at issue in previous criminal cases where the prosecution had full and fair opportunity to present proof of such element, needed to present such proof, and declined after being required to present such proof. Once such a dismissal with prejudice (meaning that collateral estoppel and res judicata can be invoked) happens, a court lacks jurisdiction to consider the same issue of fact in a subsequent criminal case.
Therefore, I filed in King County Superior Court No. 04-2-07991-8 SEA my Application for Statutory Writ of Prohibition to restrain Judge Barbara Linde and the King County District Court from trying me for a crime where a necessary element is barred by collateral estoppel.
Then I had to work fast.
I filed my
Motion for Order to Show Cause Why Application for Writ of Prohibition Should
Not be Granted. Not only did Judge James Doerty, the Chief Civil Judge
in downtown Seattle, grant the
Order, he stayed the District Court proceedings. The
Order is noted for hearing at 1:30 pm Tuesday May 18, 2004. The State
filed their Response, and I filed my
Reply. Judge Doerty
denied my Application and lifted the stay of the
District Court proceedings.
He found that I "misapprehended"
Shuman v. Dept. of Licensing, (2001) 108
But in looking at the State's Response with its volume of attachments I discovered an interesting set of facts! The violation date alleged in KCDC, West Division No. C438381 for the DWLS 3rd degree, RCW 46.20.342(1)(c), is August 4, 2002. According to the docket sheet of the case attached as an Exhibit to the State's Response, the Complaint was filed on April 17, 2003. I did not receive notice of it until December 5, 2003.
More than 105 days.
On that basis, I filed another Motion for Order to Show Cause in the Statutory Writ Case.
And it was granted! The prosecutors were required to show cause why a writ of prohibition shall not be granted on the basis of unreasonable delay in notice of the charge. Hearing was set for Wednesday, June 16, 2004 at 1:30 pm. They filed their State's Response and Opposition to Petitioner's Petition and Application for Writ of Prohibition arguing that it is improper for me to ask for a writ of prohibition on the basis of speedy trial without first bringing such motion in the District Court. However:
On June 4, 2004, I had to appear in the District Court, this time before Judge Mariane Spearman. I pointed out that there was a new order out of the Superior Court staying the trial in District Court until June 16, 2004. So Judge Spearman set the trial date for June 17, 2004! Fine. If the Writ of Prohibition is granted, then it matters not when the trial is scheduled, it ain't gonna happen! Then Deputy Prosecutor Kathryn Kim did another cute thing:
She submitted to the Court and served a copy on me, a photocopy of a page of the Rules of Professional Conduct (for lawyers) focusing on RPC 3.6 and alleges that as a pro se representing myself, I am bound by the same standards of behavior that bind attorneys, and a printout of THIS web page! Washington's RPC 3.6 is the rule about trial publicity where a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or should reasonably know that it will have a substantial likelihood of materially prejudicing the adjudicative proceeding.
In other words, no talking in public!
However, (there are them howevers!) RPC 3.6 comes with Guidelines for Applying RPC 3.6. Part I of these guidelines is Criminal, and they are apparently detailed. The kind of statement considered would relate to the character, credibility, reputation, or criminal record of a suspect or defendant (He's always been bad news), possibility of a plea, results of investigative examination (example: polygraph, which as we all know is a kind of tea leaves gizmo with wires that uses electricity, and is no better than astrology charts, palm reading, and crystal ball gazing for determining whether the subject is telling the truth or lying, about anything!), opinion as to guilt or innocence of any subject or defendant (My client is innocent and we will prove that in court!), the credibility or anticipated testimony of a prospective witness (He is such an accomplished salesman, he can sell sand to Saudi Arabia!), or even info that a lawyer knows or reasonably should know is inadmissible as evidence in a trial (He has a juvenile record a mile long).
Before we go further, perhaps you can all log onto www.seattle-pi.com and run a search with the keywords: "Norm Maleng". Not every listing will be a story quoting him as to some pending case his office is prosecuting, but I will bet you can find a few such stories where he is! In March 2004 he was quoted in this article:
"These defendants left their First Amendment rights behind them on the sidewalk when they cut through the fence and entered the construction site," Maleng said. "They chose to break the law to attract more attention to their protest."
I wonder if he was motivated by the Fathers4Justice protests in Britain?
And more recently in April 2004 he was quoted as saying:
"As a community, we shared the horror of last week's kidnapping, for abductions don't always have good endings," Prosecutor Norm Maleng said.
What could be wrong with this last statement, you might ask? In this case the hostage was unharmed.
Nevertheless, I am prepared to argue that Norm Maleng should not and cannot be disciplined for making these statements, and neither can any other lawyer. And therefore, neither can me!
You see, the RPC 3.6 guidelines also has a Part I (B), the exceptions to Part I (A). Lawyers involved in the litigation of criminal matters may state without elaboration the general nature of the charge or defense, the information contained in the public record, and the scheduling of any step in the litigation.
What does "without elaboration" mean? As for the three things a lawyer can talk about, all are present on this web page!
Now you might argue that for me to comment on Judge Linde's rulings is "elaboration", but is it not also free speech? As her position is elected, does not the public have the right to know what kind of rulings she makes and what people might think of these rulings? Just as in a court of law where an attorney or pro se litigant has the right to give opening and closing arguments as to what the evidence indicates and how it shows a reasonable doubt or lack of reasonable doubt, why would not the same people have the right to make such arguments as to whether a judge should be re-elected? I mean, I can argue that if you want a judiciary that believes in the Constitution it is sworn to support, protect, and defend, either because you are a patriotic American who believes in the values our nation is based upon, or are merely motivated by the practical possibility that you or someone you love might be hauled before the courts to answer a criminal charge or civil complaint, then perhaps you ought not vote for Barbara Linde next time you see her name on a ballot. Not if you believe that every criminal defendant should be allowed to cross-examine each living witness against him before the trier of fact, which is what the Sixth Amendment Confrontation Clause is all about! I can also argue that if you think affidavits of service are sufficient to prove fact of service without live testimony by the process server, and are not too concerned about such "technicalities" getting in the way of tough law enforcement, then Barbara Linde is your woman! (Geov Parrish loved her!)
One would think that this is core political speech, the precise speech most protected by the First Amendment.
But, you might argue, that where a trial is pending, public statements might prejudice the jurors. That is, in fact, the justification for lawyer gag rules such as RPC 3.6. However, such a rule would have to be narrowly tailored to serve the specific purpose, AND
It cannot be void for vagueness.
Gentile v. State Bar of Nevada, (1991) 501 U.S. 1030, 115 L. Ed. 2d. 888, 111 S. Ct. 2720
The Nevada Bar Rule in question is identical in essential language to Washington's RPC 3.6 and the Guidelines for Applying RPC 3.6!!! The Supreme Court found that "without elaboration" had no legal definition that would inform any lawyer what speech is or is not permitted. Therefore, Norm Maleng can lawfully say that a bunch of protesters left their First Amendment rights behind when they climbed a crane and that we are all horrified by a kidnapping because so many hostages are harmed.
And I can object on the Internet to the way judges handle cases involving me and my Constitutional rights.
I suspect our lawyers actually enjoy their freedom of speech, for the Washington State Bar Association has yet to get around to changing RPC 3.6 so as to comply with Gentile v State Bar of Nevada.
Since then, Ms. Jennifer Worley sent me an e-mail with an attached letter telling me that she intends to move for dismissal without prejudice of the criminal DWLS charge. Her reason is City of Redmond v. Moore, (June 3, 2004) ____ Wash. 2d. ____. She wanted me to stipulate to dismissing the writ of prohibition case. I responded that I will do that if she agrees to dismiss the criminal charge with prejudice. She would not do that.
So I filed my Reply to State's Response and Opposition to Petition and Application for Writ of Prohibition.
And the State filed its State's Motion to Strike Show Cause Hearing with Attachment A: Motion and Order of Dismissal Without Prejudice of the criminal charge of DWLS signed by a judge !!!!!!! Adobe Acrobat pdf file.
Even though the dismissal was without prior notice to me and is without prejudice, any re-filing is now barred by the one year statute of limitations for simple misdemeanors. We are thus done with these criminal cases!!
On that basis, Judge Doerty signed the State's Motion on the grounds that the matter is moot at the hearing on June 16, 2004.
That, folks, is how it is done. Bring every motion to dismiss that the case offers, including filing civil applications for writs of prohibition where such writs are available and even federal lawsuits for 42 U.S.C. §1983 relief where you can claim Younger abstention exception. They did not even wait for me to analyze Redmond v. Moore, they knew I will and raise it as a defense. Therefore, I did not need to.
But gosh! Redmond v. Moore came just in time for my Brief of Appellant in my civil case challenging the license suspension!
All right! All right! Enough of the applause, already. You are embarrassing me!
I can be forgiven for believing taxpayers ought to stop blaming us noncustodial parents for our high tax rates! Our prosecutor did not have to file such foreseeably futile cases.
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