) No. 415256
plaintiff, ) No. C 100069707
)
v. ) MOTION TO DISMISS COMPLAINT
)
ROGER W. KNIGHT, )
)
defendant. )
____________________________________)
Comes now ROGER W. KNIGHT, defendant, to move for dismissal of the Complaint.
The Complaint should be dismissed on the following three grounds: 1) Lack of notice to defendant that license to operate a motor vehicle is suspended, 2) the statute that provided for the suspension of licenses in this case, Laws of Washington 1997 Chapter 58, the Washington WorkFirst Temporary Assistance for Needy Families Act of 1997 (WorkFirst Act), is unconstitutional on the grounds that it covers more than one subject in violation of Article II Section 19 of the Washington Constitution, 3) application of City of Seattle DWLS statute to the defendant in this case in unconstitutional because it does not serve any legitimate interest of government, either for public safety because non-custodial parents behind in compliance with child support orders are no more likely to cause traffic accidents than other persons and Mr. Knight’s driving record does not indicate a danger to the public, and it does not support any state interest in the collection of child support because license suspension does not improve noncustodial parents’ ability to comply with such orders, and absent a showing that the children in question are not adequately cared for absent the payment of child support as ordered, there is no state interest that overcomes the non-custodial parent’s Fourteenth Amendment rights to make decisions concerning the custody, care, and control of his children, at least with respect to how his money is spent in the care of his children, and 4) the support order and this attempt to enforce the support order is declared null and void by 42 U.S.C. §1994.
LACK OF NOTICE INVALIDATES CRIMINAL CHARGE OF DRIVING WHILE LICENSE SUSPENDED
In State v. Baker, (1987) 49 Wash. App. 778, 745 P. 2d. 1335 found that because Mr. Baker lacked notice of the suspension of his driver's license required by due process, prosecution for driving with a suspended license was in error. Baker at 49 Wash. App. 780 cites Bell v. Burson, (1971) 402 U.S. 535, 29 L. Ed. 2d. 90, 91 S. Ct. 1586, 1591. The United States Supreme Court held that except in emergency situations, due process requires that when a state seeks to terminate a driver's license, it must afford notice and opportunity to a hearing appropriate to the nature of the case before termination becomes effective.
Baker and Bell v. Burson are part of a long line of cases that define notice to be required by due process. These cases include but are not limited to: Baldwin v. Hale,(1864) 68 U.S.(1 Wall.) 223, 233, 17 L. Ed. 531; Grannis v. Ordean, (1914) 234 U.S. 385, 394, 58 L. Ed. 1363, 34 S. Ct. 779; Mullane v. Central Hanover Bank & Trust Co., (1950) 339 U.S. 306, 313-314, 94 L. Ed. 865, 70 S. Ct. 652; Armstrong v. Manzo, (1965) 380 U.S. 545, 552, 14 L. Ed. 2d. 62, 85 S. Ct. 1187; Boddie v. Connecticut, (1971) 401 U.S. 371, 28 L. Ed. 2d. 113, 91 S. Ct. 780, Dusenbery v. United States, (January 8, 2002) 122 S. Ct. _____; Olympic Prod. v. Chausee Corp., (1973) 82 Wash. 2d. 418, 422-424, 511 P. 2d. 1002; and State v. Thomas, (1980) 25 Wash. App. 770, 774, 610 P. 2d. 937.
Since Baker, State v. Dolson, (1999) 138 Wash. 2d. 773, 982 P. 2d. 100 and State v. Perry, (1999) 96 Wash. App. 1, 975 P. 2d. 6 invalidated convictions of driving while license suspended and invalidated the suspensions on the grounds that the defendant-appellants showed that they lacked notice and opportunity to be heard and that they were prejudiced by the lack of notice in that they were denied opportunity to be heard before their licenses were suspended.
In the present instance, Mr. Knight received two “License Suspension Warning Letters” (Letters) from the Department of Social and Health Services (DSHS), on August 15, 1997 and on September 28, 1999. See Exhibits attached to the Declaration of Roger W. Knight in Support of Motion to Dismiss Complaint (Knight Declaration). He responded to these Letters by filing two actions in King County Superior Court: Knight v. DSHS, No. 97-2--21231-6 KNT in response to the first letter and Knight v. DSHS, No. 99-2--22195-8 KNT in response to the second Letter. In the first case, litigated before Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142 Wash. 2d. 183, 11 P. 3d. 762 which struck down Initiative 695 as violating Article II Section 19 of the Washington Constitution, Judge Suzanne Barnett found that the WorkFirst Act did not violate Article II Section 19. In spite of Judge Barnett signing an order finding that Mr. Knight was indigent, and that King County Superior Court allowed him to proceed in forma pauperis, the Supreme Court of Washington denied Mr. Knight’s leave to proceed on appeal without payment of the $250 filing fee with a one sentence order with no explanation. Mr. Knight could not pay this filing fee and his appeal thus dismissed. In the second case the Superior Court found that the first case barred this argument as res judicata in spite of Amalgamated Transit. The Court of Appeals upheld this decision with an unpublished decision that is not to be cited as setting precedent.[1] The Supreme Court of Washington denied review.
The Letters only informed Mr. Knight that the DSHS may send a “formal notice telling you that we will ask the licensing authorities to suspend or not renew your licensee.” Neither Letter met the requirement set forth in RCW 46.20.322 and RCW 46.20.323 that Mr. Knight be informed that he appear for a driver improvement interview within 10 days. Both Letters specifically state that they are “only a warning”. Mr. Knight exercised the only right to be heard that he could derive from these Letters, which is to challenge the validity of the underlying statute in King County Superior Court. As the second Letter followed the first Letter by over two years, and that no effort to actually suspend Mr. Knight’s licenses appears to have been commenced during those two years, Mr. Knight reasonably presumed that he would be afforded a notice of impending or actual license suspension that went beyond the terms of these Letters. Mr. Knight is currently unaware of any such notice, Knight Declaration.
Therefore, charging the defendant with driving while license suspended with notice and opportunity to be heard insufficient to meet the requirements of RCW 46.20.322 and RCW 46.20.323, violates those statutes, Article I Section 3 of the Washington Constitution, and the Due Process Clause of the Fourteenth Amendment.
LACK OF NOTICE THAT LICENSE IS ACTUALLY SUSPENDED OR WILL ACTUALLY BE SUSPENDED DISPROVES ONE ELEMENT OF CRIME DEFINED BY SMC 11.56.320 AND SMC 11.56.340
SMC 11.56.320 and SMC 11.56.340 each provide that it is unlawful for any person to drive a motor vehicle within the City while that person is in a suspended or revoked status or when his or her privilege to drive is suspended or revoked in this or any other state. The equivalent state statute, RCW 46.20.342(1) specifically provides that “Any person who has a valid Washington driver's license is not guilty of a violation of this section.”
Because Mr. Knight never received notice from the Department of Motor Vehicles required by RCW 46.20.322 and RCW 46.20.323 to report within ten days for driver improvement hearing, he has a valid Washington driver’s license. Therefore, Mr. Knight cannot be convicted of a violation of RCW 46.20.342, SMC 11.56.320 or SMC 11.56.340 by any rational trier of fact. Fiore v. White, (2001) 531 U.S. 225, 148 L. Ed. 2d. 629, 121 S. Ct. 712, 713-714, (Fiore II); Jackson v. Virginia, (1979) 443 U.S. 307, 316, 61 L. Ed. 2d. 560, 99 S. Ct. 2781; and In re Winship, (1970) 397 U.S. 358, 364, 25 L. Ed. 2d. 368, 90 S. Ct. 1068. In Fiore, the Commonwealth of Pennsylvania conceded that Mr. Fiore possessed a permit, the Pennsylvania statute required the lack of possession of a permit to be an element of the crime, and the United States Supreme Court found that Mr. Fiore had a Fourteenth Amendment right to not be convicted of a crime when one of the elements cannot be proven.
If the WorkFirst Act is unconstitutional for having more than one subject in violation of Article II Section 19, Mr. Knight has a valid Washington driver’s license. If the prosecution cannot provide any evidence that Mr. Knight’s children would not be adequately cared for absent the payment of any portion of the child support ordered against him, then the child support order is a violation of the Fourteenth Amendment and Mr. Knight has a valid Washington driver’s license. If the child support order and this prosecution constitute an attempt under state law to establish, maintain, and enforce Mr. Knight’s service or labor as a peon in liquidation of a debt or obligation or otherwise which is declared null and void by 42 U.S.C. §1994, Mr. Knight has a valid Washington driver’s license. Any attempt to enforce or any enforcement of an order that is declared null and void by 42 U.S.C. §1994 is the crime defined by 18 U.S.C. §1581. As amended in 1994, 1996, and again in 2000,[2] 18 U.S.C. §1581 provides for imprisonment not exceeding 20 years for each conviction.
WORKFIRST ACT IS UNCONSTITUTIONAL, MORE THAN ONE SUBJECT
The “Rules of statutory construction apply to initiatives.” as it applies to acts of the Legislature. Id., at 205. And:
It is not the prerogative nor the function of the judiciary to substitute what they may deem to be their better judgment for that of the electorate in enacting initiatives . . . unless the errors in judgment clearly contravene state or federal constitutional provisions.” Fritz v. Gorton, 83 Wn. 2d 275, 287, 517 P. 2d 911 (1974). Nor is it the province of the courts to declare laws passed in violation of the constitution valid based upon considerations of public policy.
Id., at 206. The same applies to bills passed by the Legislature and signed by the Governor. “Art. II § 19 applies to initiatives.” Id.
The Supreme Court of Washington has eliminated all distinctions between how Article II Section 19 applies to initiatives and how it applies acts of the Legislature. Thus all standards applied in Amalgamated Transit to Initiative 695 apply equally to the WorkFirst Act.
One consideration used to determine how liberally to construe Article II Section 19 in favor of the legislative act is whether the title was “general” or “restrictive”. A bill or initiative with a general title that encompasses all of its provisions is given the rational unity test for determining if its provisions cover a single subject or separate subjects. Amalgamated Transit at 142 Wash. 2d. 209.[3]
Initiative 695 had a general title. Id. at 217. But the finding is:
However, there is no rational unity between the subjects of I-695. Similar to the act in Wash. Toll Bridge Auth. v. State[4], I-695 also has two purposes: to specifically set license tab fees at $30 and to provide a continuing method of approving all future tax increases. Further, neither subject is necessary to implement the other. I-695 violates the single-subject requirement of art. II, § 19 because both its title and the body of the act include two subjects: repeal of the MVET and a voter approval requirement for taxes.
The WorkFirst Act contemplates at least seven different subjects for which there is no rational unity: 1) Immigrant Protection, 2) Washington WorkFirst, 3) Child Care, 4) Teen Parents, 5) Illegitimacy Prevention and Abstinence, 6) DSHS Accountability, and 7) License Suspension, Child Support Enforcement.
The provisions concerning child care are not necessary to implement child support enforcement through license suspension. The provisions concerning Washington WorkFirst, which reforms public assistance and provides for helping recipients of public assistance into the job market and off of public assistance and imposes time limits for receiving public assistance, are not necessary for illegitimacy prevention and for promoting abstinence. Under the tests applied to Initiative 695 by Amalgamated Transit, the WorkFirst Act is clearly in violation of the Single Subject Clause. Subsequent to Amalgamated Transit, City of Burien v. Kiga, (2001) 144 Wash. 2d. 819, 31 P. 3d. 659 invalidated Initiative 722. If the same standards are applied to the WorkFirst Act that are applied to Tim Eyman Initiatives, the WorkFirst Act is clearly unconstitutional and Mr. Knight possesses a valid Washington driver’s license.
ANY SUSPENSION OF MR. KNIGHT’S LICENSE AND ANY PROSECUTION IN THIS CASE IS UNCONSTITUTIONAL BECAUSE IT IS NOT RATIONALLY RELATED TO ANY LEGITIMATE INTEREST OF GOVERNMENT.
State’s Interest in Public Safety on the Roads and Highways
The state laws for suspending licenses of drivers and for impounding their automobiles has been defended in the newspapers and talk radio on the grounds that those who have their licenses suspended are more likely to be involved in accidents and to be at fault for such accidents. This argument can be made where the drivers have had their licenses suspended for driving while under the influence, failure to pay or otherwise deal with notices of infractions, and for being habitual traffic offenders. None of these grounds apply to Mr. Knight. The most recent moving violation for which Mr. Knight was convicted was speeding, 80 mph in a 70 mph zone on Interstate 5 near Kelso during 1997. Mr. Knight was convicted by a jury of reckless driving in Renton Municipal Court in 1991. Mr. Knight completed all terms of that sentence and has had his license restored at that time. Mr. Knight paid any and all fines for any and all convictions of traffic and parking infractions. Mr. Knight has had no moving violations or misdemeanor charges or convictions since 1997. Mr. Knight has never been charged with nor convicted of any felony. Knight Declaration.
Therefore, the Department of Motor Vehicles does not have any lawful authority to suspend Mr. Knight’s driver’s license for traffic violations. The authority that the Department of Motor Vehicles may claim is in RCW 74.20A.320, RCW 46.20.291(8), and RCW 46.20.311(1)(a) which provide for suspension of driver’s licenses for failure to comply with a child support order. These statutory provisions are part of WorkFirst Act, and if the WorkFirst Act contains more than one subject, than these are not valid statutes and Mr. Knight possesses a valid Washington driver’s license.
No evidence can be set forth that noncustodial parents who have not fully complied with support orders are more likely cause traffic accidents than noncustodial parents who are in compliance with such orders, or with persons who are not under such support orders. It is no more rationally related to the interest that the state has in public safety of the roads than would qualifying drivers based upon race, religion, blood type, gender, sexual orientation, political party affiliation, or which astrological sign they were born under.
Therefore, the suspension of driver’s licenses is not rationally related to any legitimate interest the state may claim for the safety of the roads.
State’s Interest in the Collection of Child Support
The State may claim that suspension of driver’s licenses for failure to pay child support is rationally related to its interest in the enforcement of child support. However, Bell v. Burson, supra, at 402 U.S. 542, found that “[o}nce licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood.” Quoted by Baker, supra at 49 Wash. App. 780. If that is the case, suspending a person’s license for failure to pay child support does not improve his ability to comply with the order. It is like telling a starving man to continue not eating, and then expect him to perform labor. If the purpose is to coerce compliance with the order, then such purpose is not served if he is unable to comply. Might as well order an engineer to devise a way to violate the Second Law of Thermodynamics and then build a working model. The first part he can do, with a good imagination that ignores flaws, the second part has yet to be done.
If the purpose is to coerce him to seek a livelihood that is sufficient to enable him to comply with the support order, whether it is possible for him to do so or not, it is declared null and void by 42 U.S.C. §1994 and constitutes the crime defined by 18 U.S.C. §1581.
The State may claim that it has a legitimate interest in the support of its children. However, in Troxel v. Granville, (2000) 530 U.S. 57, 147 L. Ed. 2d. 49, 120 S. Ct. 2054, 2060 found:
In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
And struck down RCW 26.10.160(3) which provided that nonparents may bring action in the state’s Superior Courts to establish visitation orders. The extensive precedent she cited: Meyer v. Nebraska, (1925) 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625; Pierce v. Society of Sisters, (1925) 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571; Prince v. Massachusetts, (1944) 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438; Stanley v. Illinois, (1972) 405 U.S. 645, 31 L. Ed. 2d. 551, 92 S. Ct. 1208, which found that such rights belonged to an unwed father; Wisconsin v. Yoder, (1972) 406 U.S. 205, 32 L. Ed. 2d. 15, 92 S. Ct. 1526; Quillon v. Walcott, (1978) 434 U.S. 246, 54 L. Ed. 2d. 511, 98 S. Ct. 549; Parham v. J.R., (1979) 442 U.S. 584, 61 L. Ed. 2d. 101, 99 S. Ct. 2493; Santosky v. Kramer, (1982) 455 U.S. 745, 71 L. Ed. 2d. 599, 102 S. Ct. 1388; and Washington v. Glucksberg, (1997) 521 U.S. 702, 138 L. Ed. 2d. 772, 117 S. Ct. 2258.
Justice O’Connor also found at 120 S. Ct. 2061:
Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.
To the extent that “adequately cares for his or her children” can be reduced to the monetary expense of supporting her children, then what the parent does with the rest of her money is none of the government’s business. The Supreme Court has recognized that noncustodial parents are also protected by substantive due process in their fundamental rights, Zablocki v. Redhail, (1978) 434 U.S. 374, 384-386, 54 L. Ed. 2d. 618, 98 S. Ct. 673.
Under Troxel, there is no legitimate or compelling interest of government beyond the minimum level of support necessary to “adequately care for his or her children” that can justify the modification of a Constitutional right. Chapter 26.19 RCW, upon which the child support order is based, is unconstitutional on its face to the extent that it is based upon the Legislative intent not only to provide the minimum level of support necessary to adequately care for the child, but “to provide additional child support commensurate with the parents’ income, resources, and standard of living.” RCW 26.19.001.
In addition to invalidating the statute, Troxel mandates that the State or the custodial parent prove that the child will not be adequately supported absent the payment of child support, or the payment of any portion of the support order and that the noncustodial parent is unwilling to accept custody of the child to support it directly or that he is an unfit parent, in order to establish, maintain, or continue the enforcement of any support order. It must be established that every dollar required by the support order is necessary to enable the custodial parent to adequately support the child and that the custodial is spending every dollar collected or will spend every dollar collected for the basic needs of the children.
Mr. Knight asserts that it cannot be done because Royanne Schmitz is employed or has been employed at (redacted for this website). She is married to Charles Schmitz, he is employed. They qualified to purchase a home, located at (redacted for this website), after Mr. Knight was laid off by The Boeing Company in May 1995 and before contempt proceedings were commenced in January 2000. Mr. Knight did not pay child support during that time except for a seizure of about $500 from a bank account in 1999. Yet Royanne Schmitz and her husband adequately cared for six children and purchased a home.
Therefore, pursuant to Troxel, the support order and any enforcement of the support order does not serve legitimate interest of government and it violates Mr. Knight’s fundamental right under the Fourteenth Amendment to make decisions as to the care of his children, particularly how his money beyond what is necessary to adequately care for his children is to be spent for their benefit.
THE SUPPORT ORDER AND THIS PROSECUTION ARE DECLARED NULL AND VOID BY THE ANTIPEONAGE ACT
Mr. Knight hereby incorporates by reference the arguments he has previously submitted in challenging the imposition and enforcement of child support orders as violation of the Antipeonage Act. These previous court actions do not bar this argument as res judicata because they are declared null and void by 42 U.S.C. §1994 and void orders do not have res judicata effect. Rulings were not made on the question of whether the Antipeonage Act is violated by the imposition and enforcement of child support orders because the federal courts abstained pursuant to the doctrine set forth in Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 745 or by the Rooker-Feldman doctrine.[5]
The pleadings and other arguments in these cases are available on the Internet at www.geocities.com/rogerwknight/. The index page titled: “Antipeonage Act Website”.
CONCLUSION
For the reasons stated herein, this Motion should be granted and the Complaint should be dismissed.
Respectfully submitted this 9th day of January 2002.
__________________________
Roger W. Knight, pro se
[1] However, Anastasoff v. United States, (8th Cir. 2000) 223 F. 3d. 898 found that such practice exceeds the authority granted to the courts by Article III of the United States Constitution. While this case was later vacated as moot, at 235 F. 3d. 1054, the Eighth Circuit found it binding in a subsequent decision, United States v. Goldman, (8th Cir. 2000) 228 F. 3d. 942, cert den 120 S. Ct. 318. An argument can be made that reliance upon the grants and limitations of judicial power set forth in Article III is a necessary part of the exercise of the right to due process of law, and thus Anastasoff, if the United States Supreme Court eventually agrees with its finding, would be incorporated upon the States by the Fourteenth Amendment, thus rendering this state’s appellate court findings with respect to Mr. Knight null and void. Mr. Knight reserves the right to bring a Civil Rule 60 motion to vacate on these grounds in the event of such a Supreme Court decision.
[2] P.L. 106-386, 114 Stat 1486.
[3] “Where a general title is used, all that is required is rational unity between the general subject and the incidental subjects.”