I. RESPONSE
TO MOTION
A. No
Misrepresentations Specifically Identified
Identified
by David J. Browne’s (herein after referred as the State Officers) CR Tab 41
and attached as an Exhibit to the Motion to Dismiss is the
Order entered by the
district court on November 27, 2007
finding this appeal to be frivolous. The
district court refers to Mr. Knight’s “misrepresentations” but does not
identify any specific “misrepresentation”.
The State Officers do not identify any specific “misrepresentation” in
their Motion to Dismiss.
Identified
by the State Officers’ CR Tab 14 and attached as an Exhibit to the Motion to
Dismiss is the Order Denying Plaintiff’s Motion for Preliminary
Injunction. On page 6 of this
Order
Judge Pechman wrote:
In this
case, the parties do not dispute any relevant facts,
to support her finding that no
evidentiary hearing is warranted for a decision to be entered on the
Motion for
Preliminary Injunction. It is highly
unlikely that opposing parties would intentionally stipulate to a false
fact. Any factual misrepresentation by a
plaintiff is usually challenged by a defendant and where there is no dispute as
to facts, there usually is no intentional misrepresentation.
There
is no evidence that any facts alleged herein below are false or
“misrepresented”.
Identified
by the State Officers’ CR Tab 14 and attached as an Exhibit to the Motion to
Dismiss is the Order Granting Defendants’ Browne, Luce, and Gregoire’s Motion
to Dismiss for Failure to State a Claim.
On page 4 of this
Order Judge Pechman wrote:
In
this case, the Court considers Plaintiff Knight’s
complaint along with his
declaration and attached exhibits, because those documents were filed
contemporaneously with the
complaint, were referred to in the
complaint, no
party disputes their authenticity, and they contain public records that are
subject to judicial notice.
to support her finding that a
dismissal for failure to state a claim may be entered. Undisputed documents containing public
records supporting alleged facts render even more unlikely that such facts are
false or misrepresented.
The
Order entered on November 27, 2007 is inconsistent with the Orders entered
prior to this appeal.
As
to the legal question of whether the statutory scheme is unconstitutional, a reasonable
difference of opinion between parties and court is not a “misrepresentation” on
the part of any party.
B.
District
Court Never Indicated Belief that Mr. Knight’s Claims Were
Frivolous
Before he Filed His Notice of Appeal
The
Order Denying Plaintiff’s Motion for Preliminary Injunction and the
Order
Granting Defendants’ Browne, Luce, and Gregoire’s Motion to Dismiss for Failure
to State a Claim contain no findings that the claims presented by Mr. Knight
are frivolous or brought in bad faith.
These
Orders contain no warnings or other indications to such effect either.
C. Mr.
Knight’s Claims
Identified
by the State Officers’ CR Tab 5 and attached as an Exhibit to the Motion to
Dismiss is the
Declaration of Roger W. Knight in Support of Complaint and its
attached Exhibits.
Identified
by the State Officers’ CR Tab 4 and attached as an Exhibit to the Motion to
Dismiss is the Complaint for Enforcement of Civil Rights, 42 U.S.C. §1983.
The
case is a straightforward
First Amendment challenge to a statutory scheme Mr.
Knight alleges is overbroad and can chill the exercise of protected
speech. Mr. Knight placed in a public
record file kept by the City of Kenmore, Washington
comments on a proposed land
use action. In these
comments, Mr.
Knight truthfully stated his credentials as having a Bachelor of Science degree
in Mechanical Engineering awarded by the University of Washington in
Seattle. However, Mr. Knight did not
state he was licensed as a Professional Engineer in the State of Washington and
he did not place the letters “P.E.” after his name and he never authorized any
other person to so designate him.
These
facts are undisputed.
While
the state’s Engineering Board ultimately dismissed the
complaint against Mr.
Knight on the grounds he did not actually “practice engineering”, its decision
left open the possibility that should Mr. Knight or other resident of
Washington without a Professional Engineer license make a public comment that
involves “too much” engineering and scientific analysis, they may attempt to
discipline such person for constitutionally protected speech.
It
is Mr. Knight’s contention that no license can be constitutionally required for
otherwise protected speech. This is the
case whether the speech involves matters of human health and sickness which
would be within the purview of those with Registered Nurse and Medical Doctor
licenses, or mechanical or structural engineering matters within the purview of
those with Professional Engineer licenses.
The
speech Mr. Knight is contending is protected is speech made for the public, not
psychoanalysis speech performed behind a closed door with traditional laws and rules
of medical and psychological privacy applying.
Engineering
speech is speech that can be made in comments on public works projects, power
plants, petroleum exploration, space travel, aircraft, environmental pollution,
carbon dioxide, climate change, unidentified flying objects, and many other
matters that concern the public.
If
the engineering drawings for a proposed public works project were declared open
for public inspection and comment, a resident of Washington could perform as
detailed analysis as he might want and has the capability to perform, and
publish such analysis in a public forum.
Public fora include the comment file maintained by the government
agency, letters and articles as may be published by periodicals such as daily
newspapers, and the Internet. The person
might want to warn of a design flaw that could lead to loss of life. As licensed Professional Engineers are free
to review such comments and make their own determination of the concern
expressed, there is no public safety justification for restricting such speech
based on the absence of a Professional Engineer license.
There
is no question that the two letters submitted by Mr. Knight, included as part
of Exhibit D to the
Declaration of Roger W. Knight in Support of Complaint, is
speech. This speech is clearly
non-threatening, and as written documents filed as public records, where a
decision will be made months later after a hearing, incapable of leading to an
imminent danger. This speech is clearly
intended for a public audience, which included Mr. Bruce Dodds, P.E.
D. Arguments
Presented by Mr. Knight in Support of his
Motion for
It
is well settled law that the
First Amendment is incorporated upon the states by
substantive due process guaranteed by the
Fourteenth Amendment and several
decisions are cited on page 3 of the
Motion for Preliminary Injunction,
attached as Exhibit A herein.
Article I
Section 5 of the Washington Constitution goes further and prohibits
restrictions that are overbroad and affects protected expression whether the overbreadth is substantial or not.
It
is clear that the State Officers are attempting to intimidate or discipline Mr.
Knight for constitutionally protected comments submitted to the
City of Kenmore
in a matter it designated as a public forum and the file as a public
record. To prepare a comment in a
proposed land use action it is reasonable for a citizen to cite the comments
therein made by licensed Professional Engineers, the drawings and maps
submitted by the applicant and as drafted by professional engineering firms,
and relevant reports by government agencies and private parties, scientists and
engineers as may be involved. To
investigate such comments submitted to such a public forum be a person not
licensed as a Professional Engineer is to effectively condition the exercise
the right to free speech on a license, and chill the exercise thereof. Any such restriction can only be justified by
a standard of clear and present danger involving imminent danger, which is
simply lacking in a comment submitted to a land use proposal public record
file.
It
is well known that in science, the merits of a theory or proposition do not
depend upon the educational or license status of the theorist. The success of an engineering design likewise
operates independently of the qualifications of the designer.
The
enforcement of chapter 18.43 RCW against Mr. Knight will chill the free
exercise of all persons without Professional Engineer licenses to make public
comments in public fora on public works projects, power plants, and many other
matters of the public’s interest where such necessarily involve engineering
concepts.
In
reply:
The
relevant facts are undisputed. A motion
for preliminary injunction can be converted to a motion for summary
judgment. A decision upholding a statute
restricting the practice of abortions to physicians defines a burden that this
case meets. Statutes and regulations
prohibiting picketing, airport terminal speech, political speech activities
intended to affect legislation, and a barratry statute were found substantially
overbroad.
Where
a statute is alleged to be substantially overbroad, the courts must weigh
heavily in favor of early injunction without forcing speakers to risk
protracted litigation, as this is precisely what can lead to the chilling
effect.
Chapter
18.43 RCW is clearly overbroad, its provisions, and the actual application of
its provisions, have a chilling effect on such protected speech as the truthful
declaration of the educational achievements of a person who has a degree in
mechanical engineering but no Professional Engineer license.
There
is no doubt that
RCW 18.43.020(5) contains language that includes drafting technical papers on subjects
such as potentials and probabilities for catastrophic failure of a system such
as a retaining wall, and submitting such papers to a public forum for an
audience that can include public officials, other engineers, and the public
within its definition of “practice of engineering”.
To
render an intelligent comment on a land use proposal requires the practice of
engineering as defined by the statute.
While one need not perform the practice of engineering to discuss
engineering, performing the practice improves the discussion. Where the discussion is in a public forum,
limiting such informed discussion to those with Professional Engineer licenses
is a substantial and broad restraint on clearly protected speech.
But
the government interest in the public safety is clearly met by the freedom of
speech of licensed Professional Engineers to evaluate and comment on any matter
raised by any member of the public in the public forum. As it turned out, Mr. Knight’s comments in
the Shannon Ridge land use proposal resulted in a substantial improvement in
the requirements for the proposed retaining wall.
Which
clearly served the public’s interest in the safety of the structure.
The
speech in question concerned a matter of public policy, the approval of a land
use proposal with necessary changes and requirements, is core political speech
entitled to a higher degree of constitutional protection than commercial
speech.
E.
District
Court’s Reliance on Psychoanalysis
Decision Inapplicable to this
Case
National Association for Advancement of
Psychoanalysis v. California Board of Psychology, (9th Cir. 2000) 228 F.
3d. 1043 is an apple. The speech at
issue in Psychoanalysis is conducted
behind a CLOSED DOOR and NOT intended for a PUBLIC audience.
This appeal is
an orange. Speech submitted to a PUBLIC
FORUM with the intent to influence a PUBLIC DECISION MAKER. To the extent that Mr. Knight was actually
successful influencing the PUBLIC official, the PUBLIC’s interest was served.
Please see
pages 2-3 of
Exhibit D attached herein, where Mr. Knight made an argument
against the district court’s inapplicable and inappropriate reliance on Psychoanalysis.
Indeed,
this is precisely why this appeal is NOT frivolous. This Court can use this appeal to draw a
distinction between Psychoanalysis and speech submitted to public fora
for a public audience in a published opinion.
F.
Ohralik Upheld
Narrowly Drawn Bar Rule and Should be Considered With
In
re Primus and
Bates v. State
Bar of Arizona
Please see
pages 6-7 of
Exhibit E attached herein, where Mr. Knight made an argument
against the State Officer’s reliance upon and the
district court’s application
of
Ohralik v. Ohio State Bar Association, (May 30, 1978) 436 U.S. 447, 449,
56 L. Ed. 2d. 444, 98 S. Ct. 1912.
Ohralik upheld a bar rule prohibiting an
attorney from advertising his services for personal financial gain, ONLY “in circumstances likely to pose dangers the state has the right to
prevent”.
Ohralik cites but does not overrule
Bates v. State Bar of Arizona, (1977) 430 U.S. 350, 53 L. Ed. 2d.
810, 97 S. Ct. 2691 which held that truthful advertising of routine legal
services was protected by the
First and
Fourteenth Amendments against a blanket
prohibition by the state. The
Bates Court relied on the public’s right
to know about attorneys’ fee rates and specializations to make an informed
decision as to which attorney to hire. What
was reserved in
Bates at 433 U.S. 366
was consideration of a narrowly drawn state bar restriction concerning
in-person solicitation of clients, in hospital rooms or accident sites, what is
sometimes known as ambulance chasing. It
was such a narrowly drawn bar rule that
Ohralik
found permissible.
In re Primus, (May 30, 1978) 436 U.S. 412, 56 L. Ed. 2d. 417, 98 S.
Ct. 1893 decided the same day, drew a distinction with
Ohralik in that where the purpose of the solicitation is to engage
in litigation as a form of political expression, it is protected by the
First
and
Fourteenth Amendments.
RCW 18.43.020(5) and the rest of
chapter 18.43 RCW does not make any distinction between whether an engineer
with an engineering degree who truthfully states such fact but is not licensed
as a Professional Engineer and does not claim such, is doing it for personal
financial gain in circumstances likely to pose dangers the state has the right
to prevent or for the political purpose of promoting the proposition that soil
retention walls should be designed to be hold the soil under reasonably
foreseeable conditions.
Primus,
Ohralik, and
Bates
indicate that this statute is facially overbroad and impermissibly allows for
the punishment of Mr. Knight when he acted with the political motive of
preventing such potential disaster.
G. Distinction Between Practice and Discussion of Engineering Renders
Discussion
Dependent Upon Practice Impossible Except by Licensed
Persons,
Thus Impermissibly Conditioning Otherwise Protected Speech on a
License
On page 4 of the
Order Denying
Plaintiff’s Motion for Preliminary Injunction, the
district court invents out
of whole cloth the fiction that
chapter 18.43 RCW prohibits the unauthorized practice of engineering but not the discussion of engineering.
But if the discussion is dependent
upon the practice, then otherwise constitutionally protected speech is not only
not protected, but IMPOSSIBLE.
On August 1, 2007 the bridge carrying
Interstate 35W over the Mississippi River in Minneapolis, Minnesota suddenly
collapsed during the evening rush hour killing 13 people. As this bridge was completed in 1967, it is
possible that the collapse was caused by metal fatigue and corrosion, perhaps
due to a design flaw.
In the State of Washington there is a
new bridge built across the Tacoma Narrows, completed on July 16, 2007
immediately south of the span built in 1950.
The roadways on these bridges are about 200 feet above the water of the
Tacoma Narrows. Interestingly, the first
Tacoma Narrows Bridge famously fell apart in the wind in 1940 due to a design
flaw. If as-built drawings of the new
span are available to the public, a citizen can use these drawings to perform
his own fatigue analysis of the structure.
It is possible that a person can
become competent in the mathematical analysis of a bridge structure for
stresses resulting from estimated loads due to traffic, the variations and
cycling of these loads, and then the analysis of whether the fatigue limit of
the steel alloys used is exceeded anywhere in the structure. Upon such determination the person can then
predict the consequences of a fatigue failure of the part.
There are numerous persons within
Washington who have high degrees of competency in structural and metal fatigue
analysis without ever obtaining Washington’s Professional Engineer
license.
RCW 18.43.130 provides a number
of exceptions allowing those without Professional Engineer licenses to engage
in such analysis provided that their employer has at least one licensed Professional
Engineer on its payroll and/or who either supervises the non-licensed
engineering personnel or makes the final decisions on the design output, or
works for the federal government, and other exceptions. The chapter also contains provisions for the
suspension of license for actions the Washington Legislature or the
Board of
Registration deems worthy of such suspension, including “unprofessional
conduct”, default on educational loans and
noncompliance with support orders.
Most of these reasons for license
suspension, such as the support orders, have nothing to do with the competence
that an engineer may perform structural and metal fatigue analysis.
Where the person without a Professional
Engineer license, or with a suspended Professional Engineer license, performs
his analysis on the new bridge structure from the as built drawings in the
privacy of his home and as a hobby, he is guilty of the unlicensed practice of
engineering as defined by
RCW 18.43.020(5) and prohibited by the statutory
scheme.
Regardless of how well he performed
the analysis.
It is possible that such a highly
competent but unlicensed person will discover that the fatigue stress limit for
the steel alloy used in major structural members of the new bridge is exceeded
during rush hours when semi-tractor-trailer combinations exceeding 60,000
pounds in weight are on the bridge. This
can happen where the licensed Professional Engineers who designed the bridge
made an error, failed to adequately check the work of other engineering
personnel, or somebody decided to save money with a cheaper steel alloy than what
the Professional Engineer specified.
There are numerous ways such a circumstance can happen.
Here is the punch line: The unlicensed citizen can post his analysis
in a public forum to warn the public that the bridge may collapse within ten
years due to metal fatigue because of the design flaw with the intent to get it
corrected before human life is lost. He
can also supply the drawings and the mathematics by which he drew this alarming
conclusion. Thus other members of the
public, including licensed Professional Engineers, can review his analysis and
draw their own conclusions and communicate such conclusions with the public.
Such speech is clearly protected by
the
First Amendment and by
Article I Section 5 of the
Washington
Constitution. The BASIS of such speech
is what is prohibited by the statutory scheme.
Without allowing the unlicensed practice of engineering, the protected
communication of the results of such practice become IMPOSSIBLE by all except
those with Professional Engineer licenses.
That is because everyone else who
performs such analysis had better keep their mouths shut about what they find
out or risk the consequences of violating
chapter 18.43 RCW.
H. Assertion
that the Case Below and this Appeal is Frivolous is Irrational
The result may
be obvious. Mr. Knight should have been
granted the preliminary injunction. To
say that non-threatening written documents submitted to a public forum under
circumstances where any threat is simply not imminent, are so obviously not
protected by the
First Amendment and by
Article I Section 5 of the
Washington
Constitution that such assertion is wholly without merit, is an invitation to
ridicule. It is patently irrational.
For
the reasons stated herein, this appeal should not be dismissed, as it is
clearly not frivolous and is meritorious.
Respectfully submitted this 21st
day of December, 2007,
_________________________________
Roger
W. Knight, appellant pro se
DECLARATION OF ROGER W. KNIGHT
I,
Roger W. Knight declare that:
I
am the plaintiff in Knight v. Browne, et
al, W.D. Washington No. C07-738P and the appellant in this case,
Ninth
Circuit No. 07-35899.
Attached
as Exhibit A is a true and correct copy of the
Motion for Preliminary
Injunction, FRCP 65 I filed with the
Complaint in the action below.
Attached
as Exhibit B is a true and correct copy of the
Reply to Response in Opposition
to Plaintiff’s Motion for Preliminary Injunction.
Attached
as Exhibit C is a true and correct copy of the
Declaration of Roger W. Knight
in Support of Motion for Preliminary Injunction and its attached
Exhibit the
Findings, Conclusions, and Decision
by the Hearing Examiner for the City of Kenmore in In the Matter of the Application of Michael Seigwarth, No. PLP
2005-145. It is referenced therein as
the Shannon Ridge Decision.
Attached
as Exhibit D is a true and correct copy of the
Reply to Response in Opposition
to Plaintiff’s Motion for Clarification of Order Denying Plaintiff’s Motion for
Preliminary Injunction.
Attached
as Exhibit E is a true and correct copy of the
Response in Opposition to
Defendants’ Browne, Luce, and Gregoire’s Motion to Dismiss Under Civil Rules 4,
12(b)(5) and 12(b)(6).
I
certify under penalty of perjury under the laws of the State of Washington and
of the United States that the foregoing is true and correct.
Signed in Seattle, Washington this
21st day of December 2007,
_____________________________
Roger W. Knight, appellant
If the back button does not take you there, click C07-738P to get to the Knight v. Browne page, Home to go to the Index page of this Antipeonage Act Website, click Enemies for the main Enemies page, click Letters for the Letters page, and click Allies for the Allies page. Or you can use the Antipeonage Act Site Map.