ROGER W. KNIGHT, )
) No.
plaintiff, )
)
v. ) APPLICATION FOR STATUTORY
) WRIT OF PROHIBITION,
STATE OF
ROYANNE M. SCHMITZ, NORM )
MALENG, King County Prosecutor, )
KATHLEEN ANN O’BRIEN, Chief of )
Family Support Division of
Prosecutor,
LLOYD PATRICK CORGAN, )
Deputy Prosecuting Attorney, and )
Deputy Prosecuting Attorney, )
)
defendants. )
____________________________________)
APPLICATION
Comes
now ROGER W. KNIGHT, plaintiff, to apply for a writ of prohibition,
RCW
7.16.290-320, prohibiting the defendants from proceeding upon the Order to Show
Case served upon the plaintiff on
INTRODUCTION
AND FACTS
The
facts as declared in the Declaration of Roger W. Knight in Support of
Application for Statutory Writ of Prohibition,
Chapter 7.16 RCW:
I am the defendant in State v. Knight,
King County District
Court, West Division No. C438381. This
is a criminal case, wherein a defendant must attend all scheduled hearings or a
bench warrant may be issued for his arrest.
The consequences of such a bench warrant are either the defendant has to
somehow obtain an order quashing the bench warrant or post a sum of money as an
appearance bond to avoid arrest. Absent
such action, the defendant is subject to arrest by any peace officer within the
State of
I attended a hearing in Room E-326
of the King County Courthouse, at
FAILURE
TO APPEAR AS ABOVE DIRECTED WILL RESULT IN THE ISSUANCE OF A WARRANT
Before I could leave the King County
Courthouse after this hearing, a process server handed me a set of
documents. The front page of these
documents, Exhibit B, bore the caption: STATE OF
IF
YOU FAIL TO APPEAR IN PERSON AND DEFEND AT THESE PROCEEDINGS, THE COURT MAY
ISSUE A BENCH WARRANT FOR YOUR ARREST WITHOUT FURTHER NOTICE TO YOU.
These are the facts that give rise
to this Application for Statutory Writ.
STATUTORY WRIT IS THE APPROPRIATE
REMEDY
A statutory writ is an appropriate
remedy where the court lacks jurisdiction in the case to be restrained. State v.
Epler, (1999) 93
The threshold for a
discretionary writ is not whether the district court committed error of law,
but whether the court had jurisdiction to decide the motion.
State ex rel. New York Cos. Co. v. Superior
Court, 31 Wn.2d 834, 837-38, 199 P.2d 581 (1948). . . .
Some circumstances
deprive a court of jurisdiction to deny a motion to dismiss a criminal trial.
City of Seattle v. Hesler, 98 Wn.2d 73,
75, 653 P.2d 631 (1982) (denial of a jury in a criminal trial);
Butts v. Heller, 69 Wn. App. 263, 848
P.2d 213 (1993) (clear violation of the speedy trial rule);
State v. Harris, 2 Wn. App. 272, 469
P.2d 937 (1970) (unequivocal double jeopardy), rev'd on other grounds,
78 Wn.2d
894, 480 P.2d 484, reinstated,
404 U.S. 55, 92 S. Ct. 183, 30 L. Ed. 2d 212
(1971). But none of these cases involves discretionary rulings. They address
clear violations of mandatory constitutional
provisions or court rules that unequivocally prohibit trial.
King County Local Civil Rule
94.04(i)(4) reads in significant part:
Contempt proceedings shall be
initiated by an Order to Show Cause which shall be served in the same manner
as original service of a summons.
Original service of a summons where the defendant is
an individual is defined by
RCW 4.28.080(15):
In all other cases, to the defendant
personally, or by leaving a copy of the summons at the house of his or her
usual abode with some person of suitable age and discretion then resident
therein.
Therefore,
for this Court to acquire in personam jurisdiction over any party in such a
contempt proceeding, the Order to Show Cause must be personally served. It follows, that where there is an immunity
to personal service, it applies equally to service of summonses as it does to
Orders to Show Cause.
Immunities
to service of summonses are recognized in
State
ex rel Gunn v. Superior Court, (1920) 111
We
are not concerned here with the privilege existing in criminal actions, nor the
privilege of witnesses, nor the privilege of parties to civil actions who are
residents of this state. The majority rule
is that a nonresident of a state is privileged from the service of process in a
new suit while he is temporarily in the state defending a suit then
pending. This rule is founded upon the
common law rule which granted the privilege to witnesses and parties in
attendance upon the courts. This rule
was, as the authorities state, primarily adopted for the purpose of preventing
inconvenience to the courts and to facilitate the orderly and unhampered trial
of causes.
The
problem here is that there is no case law in
In
criminal cases, the inconvenience to the courts and to the society served by
the courts is more obvious. Where a
defendant does not appear as directed on a summons, a warrant needs to be
issued to compel the defendant's attendance.
The defendant must necessarily post a bond to avoid arrest, or be
arrested and jailed, then brought from the jail to the courtroom. If the warrant is not served, the criminal
case may eventually be dismissed without being resolved. If the defendant can obtain dismissal or
acquittal of the charge by appearing and defending, then it serves the
interests of the court, of justice, of society, and the rule of law that he
appear and defend.
The
inconvenience and expense incurred by an arrest warrant include the paperwork,
police resources, and jail expenses, all borne by the taxpayers. The warrant must be filed with the clerk of
the court, served upon the county sheriff of every county in
In
this case, the plaintiff was voluntarily attending a hearing in a criminal
case, and by attending such hearing, he prevented the issuance and necessity of
an arrest warrant. This saved the
inconvenience of such a warrant for himself and for the courts. The Order to Show Cause was served on him
before he could leave the King County Courthouse after the hearing. If the privilege or immunity to the service
of process exists in the courtroom, it exists in the hallways, stairs, and
elevators of the Courthouse that Mr. Knight must necessarily travel through to
get to and from the courtroom in which he is ordered to appear. Any limitation of the privilege or immunity
to service existing in the courtroom would not serve any purpose if a process
server can wait in the hallway outside the courtroom and serve the party upon
leaving the courtroom.
The
Supreme Court of Kansas has found that when an out of state resident is in
A
nonresident of this state who is here solely to appear in a criminal action
against him is immune from service of process in a civil action; Such immunity
has its origin in public policy and the common law, and not in any statutory
provision
The
Supreme Court of Oklahoma found that a defendant attending a criminal hearing
in an adjoining county to the county of his residence was immune to service of
process in a civil case, regardless of the voluntariness of his
appearance. Turnbow v. Powers, (Ok. 1980) 620 P. 2d. 403, 405-406 found:
Under the facts of this case, where it is shown the
petitioner responded to the warrant, does this place him within the exception
created by Hixon v. Chamberlin, supra?
We think not. There are many jurisdictions that hold that a nonresident who
makes appearance in connection with a criminal charge is immune from service of
civil process. Indeed the public policy argument would support immunity for the
person making an appearance of his own accord as opposed to one making an
appearance after an arrest, on the basis of approval of appearance without
requiring public expenditure for an arrest.
In Church v. Church,
50 App.D.C. 239,
A decision of
this court deemed supportive of the
determination we reach in this case, although it concerns immunity for a
witness from Arizona appearing to testify in an Oklahoma County Children’s
Court proceeding in response to notice from that court is the case of Bingham v. Bingham, 366 P.2d 396 (1961).
This court there recognized the importance of disallowing interference with
obedience to civil process commanding attendance at judicial proceedings. We
there referred to Thomas v. Blackwell,
supra, and our opinion states:
“[W]e have stated that nonresident witnesses who voluntarily
come into the jurisdiction for the purpose of assisting our courts in the
ascertainment of truth should be able to come with an implied understanding
that they will be free from any possibility of becoming involved in other
litigation here.” Lonsdale Grain Co. v.
Neil, 73 Okl. 221, 175 P. 823.
Today we adopt a position hopefully avoiding problems
associated with requiring a determination as to the voluntariness of
appearance, for defendant to be immune from service of civil process. We hold
that immunity attaches regardless of the voluntariness of the appearance. As
said by the court in Church v. Church,
supra:
“[W]hether we view his appearance as voluntary or involuntary
we think the privilege attached to him, and that the service should have been
quashed. It would border on an abuse of process to force a person to come
within the jurisdiction for one purpose, say that he may be prosecuted for a
crime, and then subject him to other litigation, for which he could not have
been compelled to leave the state of his home.”
The analogy between state and county is, in this
instance, applicable.
Likewise, we do not agree with respondent that
withholding the claimed immunity would strengthen the authority of the courts
of this state. To the contrary, should this exception be allowed there would be
a great temptation to file criminal charges alleging criminal acts occurring
while attempting to elude service, against a prospective defendant to enable
the obtaining of service of summons on him in order to bring him into a county
believed more favorable to the plaintiff.
We are aware of no provision of law which requires a
person to make himself available to service of process. Although we do not
condone this petitioner’s actions, the possibility for greater harm would exist
should we decide otherwise. Presumptively, the petitioner still must face the
criminal charges pending against him.
Hixon v.
Chamberlin is Hixon v. Chamberlin,
(1923) 116 Ok. 77, 243 P. 183. Thomas v. Blackwell is Thomas v. Blackwell, (1935) 172 Ok. 467,
46 P. 2d. 509.
In
consideration of the public policy concerning the common law immunity to
service of process while attending a criminal hearing, it matters not whether
the defendant lives within the county of the court where the hearing is held or
another county, as argued herein above.
Neither Gunn, Goldsberry, nor Turnbow cited herein above creates a
precedent against the privilege existing for criminal defendants residing
within the county of the court where their cases are filed, for none of the
parties involved in these cases were such persons. They had the standing that attaches to one
who lives in a different county that the one in which the hearing they attended
was held, but not the standing that attaches to Mr. Knight for the purpose of
immunity to attending a criminal hearing in the county of his residence.
To grant a privilege to those
appearing in criminal hearings in any county other than the county of their
residence while denying such privilege to those appearing in criminal hearings
in their county of residence denies equal protection of the laws in violation
of the
Fourteenth Amendment and of
Article I Sections 3 and 12 of the
Washington Constitution without serving any legitimate interests of government.
Therefore, a significant question of
public policy is herein raised that should be heard and decided by the courts.
CONCLUSION
For
the reasons stated herein, this Application should be granted and a writ prohibiting
the State and the King County Prosecutor’s Office from continuing in any
proceedings upon the Order to Show Cause served upon the plaintiff on
Respectfully
submitted this 10th day of May, 2004.
__________________________
Roger W. Knight, pro se
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