I. ASSIGNMENTS OF ERROR
A. Superior court erred in failing to grant a writ of prohibition where it is shown that service of papers were made upon the appellant while he was in the King County Courthouse for the sole purpose of attending a hearing in a criminal case where he was required to attend as a defendant.
B. Superior court erred in failing to grant a writ of prohibition where it is shown that respondent prosecutors show intent to punish for exercising free speech rights under the First Amendment and Article I Section 5 of the Washington Constitution, to punish for previous success in defeating a previous contempt action, and to prejudice the family court commissioners with evidence of free speech exercise so as to render impossible a fair hearing in a child support contempt claim.
II. ISSUES PERTAINING TO ASSIGNMENTS OF ERROR
For Assignment of Error A:
1) Where improper service is alleged, does the question go to a court's jurisdiction and therefore relief is available in an action for a writ of prohibition under the Writs Act, chapter 7.16 RCW?
2) There is a recognized immunity or privilege from service where an out of custody defendant voluntarily attends hearings in a criminal case, and for litigants in civil cases. However, this privilege is recognized in cases where such persons live in counties other than the county where the court is located. Does the privilege exist for an out of custody criminal defendant who lives in the same county as the court?
3) Does a distinction between out of county defendants and in-county defendants as to the privilege from service deny equal protection of the laws without serving any legitimate interest of government in violation of the Fourteenth Amendment and Article I Sections 3 and 12 of the Washington Constitution?
For Assignment of Error B:
1) Where attempt to punish for protected speech and previous litigation success is alleged, does the question go to a court abusing or exceeding its jurisdiction and therefore relief is available in an action for a writ of prohibition under the Writs Act, chapter 7.16 RCW?
2) Is punishment of protected speech and previous litigation success an appropriate use of contempt powers?
3) Where a prosecutor bringing a contempt action displays a prohibited animus, should the contempt action be prohibited under the Writs Act?
4) By submitting evidence of speech, specifically Internet web sites wherein the alleged contemnor is challenging the enforcement of child support as violation of the federal Antipeonage Act, which includes severe criminal sanctions for peonage, 18 U.S.C. §1581, though such speech is protected, does the prosecutor prejudice the family court commissioners so as to render a fair hearing on the contempt action impossible?
III. STATEMENT OF THE CASE
On April 7, 2004, Mr. Knight was served a State’s Motion and Order to Show Cause pertaining to State ex rel Schmitz v. Knight, King County Superior Court No. 90-3-04471-1 SEA while he was leaving a hearing in King County Courthouse in State v. Knight, King County District Court, West Division No. C438381, a criminal case.
On May 10, 2004 Mr. Knight filed the Application for Statutory Writ of Prohibition, Sub No. 1, CP 1-8 and the Declaration of Roger W. Knight in Support of Application for Statutory Writ of Prohibition (Knight Declaration I), Sub. No. 3, CP 9-12.
On July 6, 2004 Mr. Knight filed a Motion for Order to Show Cause Why Statutory Writ of Prohibition Should Not Be Granted, Sub. No. 6, CP 16-34.
On July 7, 2004, Chief Civil Judge James Doerty entered the Order Denying Order to Show Cause, Sub No. 8, CP 215-216.
On July 7, 2004, Mr. Knight filed the Notice of Appeal to the Court of Appeals, Division One, Sub No. 9, CP 217-218.
IV. ARGUMENT
A. Defendant Attending Hearing in Criminal Case Privileged Under the Common Law From Service of Process.
1) Introduction, Facts
On April 7, 2004, a process server served paperwork commencing a new contempt prosecution on Mr. Knight as he left a hearing in a criminal case in Courtroom E-326, as declared by Mr. J. Bradford. Knight Declaration I, Sub No. 3, CP 9-12, and part of Exhibit A attached to Supplemental Declaration of Roger W. Knight in Support of Application for Statutory Writ of Prohibition (Knight Declaration II), Sub No. 7, CP 99-100. The case, State v. Knight, King County District Court, West Division No. C438381, a charge of Driving While License Suspended, 3rd Degree, was subsequently dismissed by the State in light of City of Redmond v. Moore, (June 3, 2004) ____ Wash. 2d. ____, 91 P. 3d. 875.
These facts as to the service are undisputed.
2) Statutory Writ of Prohibition is Appropriate Remedy. Issue 1 to Assignment of Error A
A statutory writ is an appropriate remedy where the court lacks jurisdiction in the case to be restrained. State v. Epler, (1999) 93 Wash. App. 520, 524-525, 969 P. 2d. 448 found:
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 the superior court to acquire in personam jurisdiction over any party in such a contempt proceeding, the Order to Show Cause must be personally served under circumstances where there is no immunity to service.
3) Common Law Immunity to Service Applies to Defendant Required to Appear in Criminal Hearing. Issue 2 to Assignment of Error A
Immunities to service of summonses are recognized in State ex rel Gunn v. Superior Court, (1920) 111 Wash. 187, 189, 189 P. 186:
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.
This is a case of first impression, as there are no Washington decisions concerning immunity to service of a criminal defendant who attends a court hearing without having been taken into custody. The purpose of immunity to service is to avoid deterring persons from attending hearings in court cases. Persons concerned about being served process may not attend the hearings. Thus cases may not be decided, or decided without evidence otherwise available. The inconvenience to the courts and to society is greater in criminal cases than in civil cases.
Where a defendant does not appear as directed on a summons, a warrant must to be issued to compel his attendance. The defendant must post a bond to avoid arrest, or be arrested and jailed, then brought to the courtroom. If the warrant is not served, the criminal case may eventually be dismissed without being resolved.[1] If the defendant can obtain dismissal or acquittal of the charge by appearing and defending, then it serves the interests of the court and of justice that he appear and defend.
An arrest warrant involves paperwork, police resources, and jail expenses. The warrant must be filed with the clerk of the court, served upon the sheriff of every county in Washington, who then communicates the warrant to the municipal police agencies. A defendant named in the warrant is subject to arrest wherever he is found in the State of Washington whether he resides within the same county as the court wherein the criminal charge is filed, or a different county.
Mr. Knight voluntarily attended a hearing in a criminal case, preventing the issuance of an arrest warrant. 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 found in Goldsberry v. Lewis, (1976) 220 Kan 69, 551 P. 2d. 862, 864:
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 in Turnbow v. Powers, (Ok. 1980) 620 P. 2d. 403, 405-406:
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.
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 than 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.
With several hundred thousand non-custodial parents in Washington ordered to pay child support, it is not surprising that many are charged with crimes and summoned to appear in court. Given RCW 74.20A.320, it is not surprising that some are charged with Driving While License Suspended, 3rd Degree. This happened to Mr. Knight several times, and he successfully defended these charges obtaining dismissals, but only because he appeared in court to represent his interests.
If noncustodial parents are concerned that process servers might serve them when in a courthouse to attend a criminal hearing, particularly as to misdemeanor charges, then the courts of limited jurisdiction may be frustrated in their performance of the orderly administration of justice. Such orderly administration of justice includes entertaining motions to suppress evidence, to enforce discovery, and to dismiss, which can only be brought by defendants who appear and defend. A finding in this case adverse to Mr. Knight could cause this result.
Mr. Knight may report such decision on the Internet, State v. Coe, (1984) 101 Wash. 2d. 364, 679 P. 2d. 353, and as argued herein below.
4. Distinction Between In-County and Out of County Defendants Would Deny Equal Protection of the Laws Without Rational Basis. Issue 3 to Assignment of Error A
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.
Zablocki v. Redhail, (1978) 434 U.S. 374, 54 L. Ed. 2d. 618, 98 S. Ct. 673 found permanent denial of the right to marry to noncustodial parents unable to comply with their support orders deprived fundamental rights without serving the claimed state interest. While Zablocki considered fundamental rights, marriage and procreation, Medina v. Public Utility Dist. No. 1 of Benton County, (2002) 147 Wash. 2d. 303, 313, 53 P. 3d. 993 reaffirmed that even where no fundamental right is involved, there has to be a rational basis for any distinction between groups of citizens, including where the groups are not suspect classes, to be constitutional.
While there is a legitimate concern about distance and transport of persons arrested on out of county warrants to county of court that issued warrant, this concern exists equally for the out of county resident who fails to appear at a criminal hearing, and for the in-county resident who leaves the county subsequent to being given notice of the hearing. A defendant in a King County case who does not wish to be served a child support show cause order might decide to live in Spokane County or perhaps British Columbia. Problems thus caused are the same regardless of county of original residence of such defendant.
B. Punishment for Exercise of Freedom of Speech and Previous Litigation Success Are Inappropriate Uses of Contempt Powers, Submission of Such Evidence by Prosecutors that Mr. Knight Publishes a Web Site Wherein He Asserts to the Planet Earth that Contempt Prosecutions and Other Sanctions to Enforce Child Support Violate the Federal Antipeonage Act Prejudices Family Court Commissioners Preventing Fair Hearing on Contempt Motion
1) Introduction: Facts
After the Application for Writ of Prohibition, Sub No. 1, CP 1-8, was filed, Mr. John Scannell represented Mr. Knight in State ex rel Schmitz v. Knight, King County Superior Court No. 90-3-04471-1 SEA. He appeared, objected to the service, and cited the Application. He thus initially avoided the bench warrant. Declaration of John R. Scannell in Support of Application for Statutory Writ of Prohibition (Scannell Declaration), Sub No. 5, CP 13-15. On June 11, 2004, he received the documents attached as Exhibit A to Knight Declaration II, Sub No. 7, CP 49-174; Scannell Declaration page 2, CP 14. Over the weekend of July 3-4, 2004, he received the package attached as Exhibit B to Knight Declaration II, CP 175-214; Scannell Declaration page 2, CP 14.
Thus the Motion for Order to Show Cause, Sub No. 6, pages 3-18, CP 18-33, raised the issues of the State submitting evidence of a web site asserting that child support orders as presently enforced violate the Antipeonage Act, was improper, and prejudices family court commissioners against him. Mr. Knight also therein asserted that the state changed its approach from Track A to Track B subsequent to May 12, 2004,[2] and evidenced motivation by the Application below, CP 1-8, Mr. Scannell’s success in obtaining dismissal of a previous contempt action,[3] and Mr. Knight’s challenge to the validity of the driver’s license suspension for child support.[4]
2) Statutory Writ of Prohibition is Appropriate Remedy. Issue 1 to Assignment of Error B
State ex rel Snohomish County v. Sperry, (1971) 79 Wash. 2d. 69, 74-78, 485 P. 2d. 608 found that the collateral bar rule does not bar challenge to court order imposing prior restraint on speech. Oklahoma news media collaterally attacked a court order restraining their speech with an application for writ of mandamus and prohibition. Oklahoma Pub’g Co. v. District Court, (1977) 430 U.S. 308, 51 L. Ed. 2d. 355, 97 S. Ct. 1045 reversed the Oklahoma Supreme Court's denial of this application, reported at 555 P. 2d. 1286 (1976), finding that a court order prohibiting publishing information observed by reporters in the courtroom is a prior restraint prohibited by the First and Fourteenth Amendments.
The Oklahoma Supreme Court assumed original jurisdiction in the publishers' application for mandamus and prohibition, Oklahoma Pub'g., at 555 P. 2d. 1288, and granted the writ in part: no such court order where evidence is insufficient to support a prior restraint, Id., at 1289-1290; and denied it in part in cases of a juvenile defendants, Id., at 1290-1294.
12 OSA §§1451-1462 sets forth a statutory scheme for writs similar to chapter 7.16 RCW. In Oklahoma writs of prohibition and mandamus are available under the same statutes. Mandamus and prohibition may be resorted to only in cases where trial court was without jurisdiction or has clearly abused judicial discretion. Exxon, Co. v. District Court of Kingfisher County, (Ok. 1977) 571 P. 2d. 1228. Same as Epler rule pleaded herein above at pages 3-4. 12 OSA §1451 reads:
The writ of mandamus may be issued by the Supreme Court or the district court, or any justice or judge thereof, during term, or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or stations; but though it may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its function, it cannot control judicial discretion.
Compare with RCW 7.16.300, which reads as to prohibition:
It may be issued by any court, except district or municipal courts, to an inferior tribunal, or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application of the person beneficially interested.
The second part of RCW 7.16.300 is reflected in 12 OSA §1452:
This writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. It may be issued on the information of the party beneficially interested.
The rest of this chapter of Oklahoma statutes includes provisions similar or identical with provisions in chapter 7.16 RCW.
As such a writ is available in Oklahoma to prohibit a court from imposing a prior restraint on protected speech, it follows that a writ of prohibition is available in Washington to prohibit the use of contempt proceedings to punish protected speech or previous litigation success.
Where prosecutors submit evidence of such speech, that while constitutionally protected, seriously prejudices the judicial officers against the defendant in a contempt action, and then ask the court to deal harshly based on such materials, they render impossible a fair hearing. A writ of prohibition is an appropriate remedy. Gibson v. Berryhill, (1973) 411 U.S. 564, 577, 36 L. Ed. 2d. 488, 93 S. Ct. 1689 found an exception to the abstention doctrine set forth in Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 746[5] where it can be demonstrated that the state tribunal is incompetent by reason of bias.
3) Government May Not Punish Protected Speech and
Previous Litigation Success. Issues 2 and 3 to Assignment of
Error B
It is NOT appropriate to use contempt proceedings to punish protected speech and previous litigation success. Perry v. Sindermann, (1972) 408 U.S. 593, 597, 33 L. Ed. 2d. 570, 92 S. Ct. 2694, found:
“For if a government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Speiser v. Randall, (1958) 357 U.S. 513, 526, 2 L. Ed. 2d. 1460, 78 S. Ct. 1332. Such interference with constitutional rights is impermissible.
We have applied this general principle to denials of tax exemptions, Speiser v. Randall, supra, unemployment benefits, Sherbert v. Verner, (1963) 374 U.S. 398, 404-405, 10 L. Ed. 2d. 965, 83 S. Ct. 1790, and welfare payments, Shapiro v. Thompson, (1969) 394 U.S. 618, 627 n. 7, 22 L. Ed. 2d. 600, 89 S. Ct. 1322; Graham v. Richardson, (1971) 403 U.S. 365, 374, 29 L. Ed. 2d. 534, 91 S. Ct. 1848. But most often we have applied the principle to denials of public employment. United Public Workers v. Mitchell, (1947) 330 U.S. 75, 100, 91 L. Ed. 754, 67 S. Ct. 556; Wieman v. Updergraff, (1952) 344 U.S. 183, 192, 97 L. Ed. 216, 73 S. Ct. 215; Shelton v. Tucker, (1960) 364 U.S. 479, 485-486, 5 L. Ed. 2d. 231, 81 S. Ct. 247; Torcaso v. Watkins, (1961) 367 U. S. 488, 495-496, 6 L. Ed. 2d. 982, 81 S. Ct. 1680; Cafeteria Workers v. McElroy, (1961) 367 U. S. 886, 894, 6 L. Ed. 2d. 1230, 81 S. Ct. 1743; Cramp v. Board of Public Instruction, (1961) 368 U. S. 278, 288, 7 L. Ed. 2d. 285, 82 S. Ct. 275; Baggett v. Bullitt, (1964) 377 U. S. 360, 12 L. Ed. 2d. 377, 84 S. Ct. 1316; Elfbrandt v. Russell, (1966) 384 U.S. 11, 17, 16 L. Ed. 2d. 321, 86 S. Ct. 1238; Keyeshian v. Board of Regents, (1967) 385 U. S. 589, 605-606, 17 L. Ed. 2d. 629, 87 S. Ct. 675; Whitehill v. Elkins, (1967) 389 U. S. 54, 19 L. Ed. 2d. 228, 88 S. Ct. 184; United States v. Robel, (1967) 389 U. S. 258, 19 L. Ed. 2d. 508, 88 S. Ct. 419; Pickering v. Board of Education, (1968) 391 U.S. 563, 568, 20 L. Ed. 2d. 811, 88 S. Ct. 1731.
O'Hare Truck Service, Inc. v. City of Northlake, (1996) 518 U.S. 712, 717, 135 L. Ed. 2d. 874, 116 S. Ct. 2353 reaffirmed that a State may not condition public employment on an exercise of his First Amendment rights citing Keyeshian, Pickering, and Perry. O’Hare repeated the Perry quotation of Speiser that if a government can deny a benefit because of protected speech and associations, the exercise of such freedoms would be penalized and inhibited, and that such interference with Constitutional rights is impermissible. O'Hare concluded, at 518 U.S. 725-726:
Government officials may indeed terminate at-will relationships, unmodified by any legal restraints, without cause; but it does not follow that this discretion can be exercised to impose conditions on expressing, or not expressing, specific political views, see Perry v. Sindermann, 408 U.S. 597.
While a prosecutor may bring a contempt action for violating a court order, she may not do it to punish the exercise of a Constitutional right.
Recognizing that "constitutional violations may arise from the deterrent, or 'chilling' effect of governmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights," Laird v. Tatum, 408 U.S. 1, 11, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972), our modern "unconstitutional conditions" doctrine holds that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech" even if he has no entitlement to that benefit, Perry v. Sinderman, 408 U. S. 593, 597 (1972). We have held that government workers are constitutionally protected from dismissal for refusing to take an oath regarding their political affiliation, see, e.g.., Wiemann v. Updergraff, . . . Keyeshian v. Board of Regents, . . . , for publicly or privately criticizing their employer's policies, Perry, supra, Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274, 97 S. Ct. 568, 50 L. Ed. 2d. 471 (1977); Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d. 619 (1979), for expressing hostility to prominent political figures, see Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 97 L. Ed. 2d. 315 (1987), or, except where political affiliation may reasonably be considered an appropriate job qualification, for supporting or affiliating with a particular political party, see, e.g., Branti v. Finkel, 445 U. S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d. 574 (1980). See also United States v. Treasury Employees, 513 U.S. 454, 115 S. Ct. 1003, 130 L. Ed. 2d. 964 (1995) (Government employees are protected from undue burdens on their expressive activities created by prohibition against accepting honoraria); Abood v. Detroit Board of Education, 431 U. S. 209, 234, 97 S. Ct. 1782, 52 L. Ed. 2d. 261 (1977) (government employment cannot be conditioned on making or not making financial contributions to particular political causes).
Umbehr concluded at 518 U.S. 680:
Our unconstitutional conditions precedents span a spectrum from government employees, whose close relationship with the government requires a balancing of important free speech and government interests, to claimants for tax exemptions, Speiser v. Randall, . . . users of public facilities, e.g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 390-394, 113 S. Ct. 2141, 124 L. Ed. 2d. 352 (1993); Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d. 266 (1972), and recipients of small government subsidies, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364, 104 S. Ct. 3106, 82 L. Ed. 2d. 278 (1984), who are much less dependent on the government but more like ordinary citizens whose viewpoints on matters of public concern the government has no legitimate interest in repressing. The First Amendment permits neither the firing of janitors nor the discriminatory pricing of state lottery tickets based on government's disagreement with certain political expression. Independent contractors appear to us to lie somewhere between the case of government employees, who have the closest relationship with government, and our other unconstitutional conditions precedents, which involve persons with less close relationships with the government.
See also
Hyland v. Wonder,
(9th Cir. 1997)
It follows that this general principle applies to the exercise of a court's contempt power and to a prosecutor’s motion for contempt, as such denies the significant benefit of being left alone. It is not permissible to punish protected speech. Where a deputy prosecutor criticized judges, Garrison v. Louisiana, (1964) 379 U.S. 64, 13 L. Ed. 2d. 125, 85 S. Ct. 209 found that the First Amendment limits the power of a state to impose criminal sanctions for non-defamatory speech against public officials under the tests set forth in New York Times Co. v. Sullivan, (1964) 376 U.S. 254, 11 L. Ed. 2d. 686, 84 S. Ct. 710.
By submitting evidence of protected speech, Part of Exhibit A to Knight Declaration II, CP 130-143, materials from the website, and part of Exhibit B: State’s Reply page 4, CP 178, at lines 3-9[6], citing Exhibit 7 attached thereto to, CP 196-203, more materials from the website, the prosecutors reveal an impermissible animus for their prosecution.
The rights to free speech and freedom of the press set forth in the First Amendment are incorporated upon the states through substantive due process guaranteed by the Fourteenth Amendment: Gitlow v. New York, (1925) 268 U.S. 652, 663, 69 L. Ed. 1138, 45 S. Ct. 625; Fiske v. Kansas, (1927) 274 U.S. 380, 71 L. Ed. 1108, 47 S. Ct. 655; Near v. Minnesota, (1931) 283 U.S. 697, 707, 75 L. Ed. 1357, 51 S. Ct. 255; De Jonge v. Oregon, (1937) 299 U.S. 353, 81 L. Ed. 278, 57 S. Ct. 255; Schneider v. New Jersey, (1939) 308 U.S. 147, 160, 84 L. Ed. 155, 60 S. Ct. 146; and Thornhill v. Alabama, (1940) 310 U.S. 88, 95, 84 L. Ed. 1093, 60 S. Ct. 736. Article I Section 5 of the Washington Constitution protects freedom of speech and press. City of Seattle v. Mighty Movers, (2002) 112 Wash. App. 904, 910, 51 P. 3d. 152 found that while all of the protections of the First Amendment are available under the Washington Constitution, Article I Section 5 goes further and prohibits restrictions that are overbroad and affects protected expression, whether the overbreadth is substantial or not, citing O'Day v. King County, (1988) 109 Wash. 2d 796, 803-04, 749 P.2d 142 and City of Seattle v. McConahy, (1997) 86 Wash. App. 557, 569, 937 P.2d 1133. Please see also Collier v. City of Tacoma, (1993) 121 Wash. 2d. 737, 745-746, 854 P. 2d. 1046 and the six criteria set forth in State v. Gunwall, (1986) 106 Wash. 2d. 54, 61-62, 720 P. 2d. 808.
State v. Bassett, (1996) 128 Wash. 2d. 612, 911 P. 2d. 385 vacated an order restricting the speech of attorneys representing a criminal defendant awaiting trial on the grounds that the trial court failed to explore alternative remedies and was not narrowly tailored to serve the interest of a defendant’s right to a fair trial and to serve the fair administration of justice. Such concerns, of course, cannot be served where a prosecution for contempt seeks to punish the alleged contemnor for speech, as in the case of Mr. Knight, that has never been restricted by a court order.
Gentile v. State Bar of Nevada, (1991) 501 U.S. 1030, 115 L. Ed. 2d. 888, 111 S. Ct. 2720 struck down a Bar Rule that imposed a blanket speech restriction on all attorneys practicing in Nevada. Such a blanket speech restriction is problematical for it does not allow the individualized consideration of circumstances in each case before being imposed.
Wood v. Georgia, (1962) 370 U.S. 375, 383-385, 8 L. Ed. 2d. 569, 82 S. Ct. 1364 considered imprisoning a person under a court’s contempt powers for an out of court utterance and found:
Here it is asserted that the exercise of the contempt power, to commit a person to jail for an utterance out of the presence of the court, has abridged the accused's liberty of free expression. In this situation the burden upon this Court is to define the limitations upon the contempt power according to the terms of the Federal Constitution.
In Bridges v. California, 314 U.S. 252, 86 L. Ed. 192, 62 S. Ct. 190, this Court for the first time had occasion to review a State's exercise of the contempt power utilized to punish the publisher of an out-of-court statement. The accused contended that the exercise abridged his right of free speech guaranteed against state infringement by the Fourteenth Amendment. To determine the scope of this constitutional protection, the Court reviewed the history of the contempt power, both in England and in this country. It held that "the only conclusion supported by [that] history is that the unqualified prohibitions laid down by the framers were intended to give to liberty of the press, as to the other liberties, the broadest scope that could be countenanced in an orderly society." Id., at 265. Thus clarifying the exercise of this judicial power in the context of the protections assured by the First Amendment, the Court held that out-of-court publications were to be governed by the clear and present danger standard, described as "a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished." Id., at 263. Subsequently, in Pennekamp v. Florida, 328 U.S. 331, 90 L. Ed. 1295, 66 S. Ct. 1029, after noting that "[f]ree discussion of the problems of society is a cardinal principle of Americanism - a principle which all are zealous to preserve" (id., at 346), the Court reaffirmed its belief that the "essential right of the courts to be free of intimidation and coercion . . . [is] consonant with a recognition that freedom of the press must be allowed in the broadest scope compatible with the supremacy of order." Id., at 334. The Court's last occasion to consider the application of the clear and present danger principle to a case of the type under review was in Craig v. Harney, 331 U.S. 367, 91 L. Ed. 1546, 67 S. Ct. 1249. There the Court held that to warrant a sanction "[t]he fires which [the expression] kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil." Id., at 376.
Thus, if Mr. Knight, in a public forum outside of any courtroom, makes statements critical of the Child Support Crusade, no sanction is permissible for such speech, unless there is imminent danger. Please see also Hess v Indiana, (1973) 414 U. S. 105, 108, 38 L. Ed. 2d. 303, 94 S. Ct. 326 citing Brandenburg v. Ohio, (1969) 395 U.S. 444, 447, 23 L. Ed. 2d. 430, 89 S. Ct. 1827. State v. E.J.Y., (2002) 113 Wash. App. 940, 949-950, 55 P. 3d. 673 reaffirmed the definition of "true threat" as the serious expression of intention to inflict bodily harm or to take the life of another individual unmitigated by the context in which such speech is made. Mr. Knight does not advocate a violent solution to the problem, immediate or in the future. Wood, at 370 U.S. 385-388 went on to find:
It is with these principles in mind that we consider the case before us. Initially, however, it should be noted that the Georgia courts have determined that the power to punish for contempt of court is inherent in its state judiciary and the Court of Appeals thus ignored the express limitations imposed by the Georgia Legislature in punishing out-of-court statements. This holding thus deprives the judgment of coming to this Court "encased in the armor wrought by prior legislative deliberation," Bridges v. California, supra, at 261, and it is upon this basis that we proceed.
This case differs from Bridges and Pennekamp, first, in that the court below has upheld petitioner's conviction on the basis that his conduct presented a clear and present danger to the proceedings of the court and grand jury, a standard this Court has held to warrant punishment for alleged contemptuous conduct. But state courts may not preclude us from our responsibility to examine "the evidence to see whether it furnishes a rational basis for the characterization put on it" (In re Sawyer, 360 U.S. 622, 628, 3 L. Ed. 2d. 1473, 79 S. Ct. 1376) by the enunciation of a constitutionally acceptable standard in describing the effect of the conduct. The ultimate responsibility to define the limits of state power regarding freedom of speech and expression rests with this Court, Pennekamp v. Florida, supra, at 335; see Chambers v. Florida, 309 U.S. 227, 228-229, 84 L. Ed. 716, 60 S. Ct. 472; Fiske v. Kansas, 274 U.S. 380, 385-386, 71 L. Ed. 1108, 47 S. Ct. 655; and when it is claimed that such liberties have been abridged, we cannot allow a presumption of validity of the exercise of state power to interfere with our close examination of the substantive claim presented.
Despite its conclusion that the petitioner's conduct created a serious evil to the fair administration of justice, the Court of Appeals did not cite or discuss the Bridges, Pennekamp or Harney cases, nor did it display an awareness of the standards enunciated in those cases to support a finding of clear and present danger. It simply adopted as conclusions of law the allegations made in the contempt citation. The court did not indicate in any manner how the publications interfered with the grand jury's investigation, or with the administration of justice. Unlike those cases in which elaborate findings have been made to support such a conclusion, this record is barren of such findings. The prosecution called no witnesses to show that the functioning of the jury was in any way disturbed; no showing was made that the members of the grand jury, upon reading the petitioner's comments in the newspapers, felt unable or unwilling to complete their assigned task because petitioner "interfered" with its completion. There is nothing in the record to indicate that the investigation was not ultimately successful or, if it was not, that the petitioner's conduct was responsible for its failure. And to the extent that the conviction on the third count was upheld because petitioner's last statement presented a clear and present danger to the contempt hearing, it is indeed novel that under the circumstances of this case the petitioner might be responsible for a substantial interference with his contempt hearing because he had made public his defense to the charges made against him. What interference to petitioner's hearing or what harm this assertion might inflict on the administration of justice is not stated in the opinion. Nor is there any evidence of either in the record.
The State likewise does not offer any evidence that making public defenses that Mr. Knight has or may present to the courts and administrative agencies somehow interferes with the proceedings. Wood, at 370 U.S. 388-389, found:
Thus we have simply been told, as a matter of law without factual support, that if a State is unable to punish persons for expressing their views on matters of great public importance when those matters are being considered in an investigation by the grand jury, a clear and present danger to the administration of justice will be created. We find no such danger in the record before us. The type of "danger" evidenced by the record is precisely one of the types of activity envisioned by the Founders in presenting the First Amendment for ratification. "Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political . . . truth." Thornhill v. Alabama, 310 U.S. 88, 95, 84 L. Ed. 1093, 60 S. Ct. 736. In Thornhill the Court also reiterated the thinking of the Founders when it said that a broad conception of the First Amendment is necessary
"to supply the public need for information and education with respect to the significant issues of the times. [Footnote omitted.] . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Id., at 102.
Men are entitled to speak as they please on matters vital to them; errors in judgment or unsubstantiated opinions may be exposed, of course, but not through punishment for contempt for the expression. Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech and assembly. Cf. Mr. Justice Brandeis, concurring in Whitney v. California, 274 U.S. 357, 378, 71 L. Ed. 1095, 47 S. Ct. 641. Hence, in the absence of some other showing of a substantive evil actually designed to impede the course of justice in justification of the exercise of the contempt power to silence the petitioner, his utterances are entitled to be protected.
The enforcement of child support is most certainly "a significant issue of the times". As the State is attempting to imprison Mr. Knight for failure to pay the child support demanded, and has suspended his driver's license for such failure,[7] this is a matter vital to him. He is certainly entitled to speak as he pleases on this matter. He chooses counterargument and education as the weapons to expose these matters. As this State's courts have repeatedly declared imprisonment for child support to be an exception to the prohibition of imprisonment for debt set forth in Article I Section 17, Article I Section 5 and the First Amendment protects Mr. Knight's assertions against the wisdom of such policy.
Wood, at 370 U.S. 391-393, 395 concludes:
The administration of the law is not the problem of the judge or prosecuting attorney alone, but necessitates the active cooperation of an enlightened public. Nothing is to be gained by an attitude on the part of the citizenry of civic irresponsibility and apathy in voicing their sentiments on community problems. The petitioner's attack on the charge to the grand jury would have been likely to have an impeding influence on the outcome of the investigation only if the charge was so manifestly unjust that it could not stand inspection. In this sense discussion serves as a corrective force to political, economic and other influences which are inevitably present in matters of grave importance. The charge given to the jury indicated that the motivation for it was founded on rumor, but that the situation had existed for several years. Yet the charge was directed primarily against one group in the community and was given at the height of the highly important Democratic primary, in which, because of their elected positions, both the judges and the petitioner were interested personally and apart from their official status. The First Amendment envisions that persons be given the opportunity to inform the community of both sides of the issue under such circumstances. That this privilege should not lightly be curtailed is ably expressed in a passage from Judge Cooley's 2 Constitutional Limitations (8th ed. 1927) 885, where he stated that the purpose of the First Amendment includes the need:
". . . to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them."
Moreover, it is difficult to imagine how the voting problem may be alleviated by an abridgment of talk and comment regarding its solution. This problem is important not only to an individual or some isolated group or to individual litigants in a particular lawsuit, but affects the entire Nation. When the grand jury is performing its investigatory function into a general problem area, without specific regard to indicting a particular individual, society's interest is best served by a thorough and extensive investigation, and a greater degree of disinterestedness and impartiality is assured by allowing free expression of contrary opinion. Consistent suppression of discussion likely to affect pending investigations would mean that some continuing public grievances could never be discussed at all, or at least not at the moment when public discussion is most needed. The conviction here produces its "restrictive results at the precise time when public interest in the matters discussed would naturally be at its height," and "[n]o suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression." Bridges v. California, supra, at 268, 269. Thus, in the absence of any showing of an actual interference with the undertakings of the grand jury, this record lacks persuasion in illustrating the serious degree of harm to the administration of law necessary to justify exercise of the contempt power. Compare Craig v. Harney, 331 U.S. 367, 376, 378, 91 L. Ed. 1546 , 67 S. Ct. 1249; Pennekamp v. Florida, 328 U.S. 331, 349-350.
. . .
Our examination of the content of petitioner's statements and the circumstances under which they were published leads us to conclude that they did not present a danger to the administration of justice that should vitiate his freedom to express his opinions in the manner chosen.
The State specifically cites Mr. Knight's web sites: Part of Exhibit A to Knight Declaration II, CP 130-143, and part of Exhibit B: State’s Reply page 4, CP 178, at lines 3-9, citing Exhibit 7 attached thereto to, CP 196-203. These posters cite www.antipeonage.0catch.com.
The Internet is a public forum where speech is protected by the First Amendment on the basis that it is a public forum. Reno v. ACLU, (1997) 521 U.S. 844, 870, 138 L. Ed. 2d. 874, 117 S. Ct. 2329 found:
Finally, unlike the conditions that prevailed when Congress
first authorized regulation of the broadcast spectrum, the Internet can hardly
be considered a "scarce" expressive commodity. It provides relatively
unlimited, low cost capacity for communication of all kinds. The Government
estimates that "[a]s many as 40 million people use the Internet today, and
that figure is expected to grow to 200 million by 1999." This
dynamic, multifaceted category of communication includes not only traditional
print and news services, but also audio, video, and still images, as well as
interactive, real time dialogue. Through the use of chat rooms, any person with
a phone line can become a town crier with a voice that resonates farther than
it could from any soapbox. Through the use of Web pages, mail exploders, and
newsgroups, the same individual can become a pamphleteer. As the
District Court
found, "the content on the Internet is as diverse as human thought." .
. . We agree with its conclusion that our cases provide no basis for qualifying
the level of
First Amendment scrutiny that should be applied to this medium.
Mighty Movers, supra, at 112 Wash. App 910-911 found:
The amount of government regulation
of speech allowed by the federal and state constitutions depends, in part, on
the location and the method used for communicating. The government's ability to
regulate speech in a public forum is much more restricted. The test, however,
for regulating speech in a nonpublic forum is less
stringent. "The Government's decision to restrict access to a nonpublic
forum need only be reasonable; it need not be the most reasonable or the only
reasonable limitation."
Cornelius v. NAACP Legal Defense & Educ.
Fund, Inc., 473
Public forums are (1) those places
which "by long tradition or by government fiat have been devoted to
assembly and debate," . . . or (2) channels of communication used by the
public at large for assembly and speech, used by certain speakers, or the
discussion of certain topics.
City of Seattle v. Huff, 111 Wn.2d 923,
927, 767 P.2d 572 (1989) (quoting
Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460
There is no question and can be no question that the Internet is a "channel of communication used by the public at large for assembly and speech". Ashcroft v. ACLU, (2002) 535 U.S. 564, 152 L. Ed. 2d. 771, 122 S. Ct. 1700, 1703 found that:
"The Internet ... offer[s] a forum for a
true diversity of political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual activity . . . individuals can access material about topics
ranging from aardvarks to Zoroastrianism. One can use the Web to read thousands
of newspapers published around the globe, purchase tickets for a matinee at the
neighborhood movie theater, or follow the progress of any Major League Baseball
team on a pitch-by-pitch basis.
When posted, a website becomes immediately available to any user of any computer attached to the Internet wherever such technology is available on the Planet Earth. In Dow Jones & Co. v. Gutnick, [2002] HCA 56 the High Court of Australia considered liability of an American posting material on the Internet that can be downloaded in Australia.
The State's Reply, Exhibit 7, CP 196-203 includes posters Mr. Knight has published at www.antipeonage.0catch.com/warposters.htm as jpeg images that can be downloaded and readily printed out on 8.5 X 11 inch paper. Also at CP 207 is a website poster featuring Smokey the Bear and two bear cubs.[8]
The caption of the poster at CP 196, reads:
Given In re Cave, (1901) 26 Wash. 213, 216, 66 P. 425 and United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871 this assertion is not only reasonable, as a comment on public policy, it is constitutionally protected. Another poster, at CP 197 reads:
Let Me Get This Straight. We Can Deny Noncustodial Parents Equal Protection of State Constitutions that Prohibit Imprisonment for Debt. And Deny Them the Protections From Involuntary Servitude, Excessive Bails And Bills of Attainder. And Still Expect the Constitution to Protect You and Me. RIGHT.
Another constitutionally protected comment on public policy. The poster at CP 198 reads:
The Social Security Administration provides benefits for the children of disabled and dead parents. To provide for his ex-wife and his children, Mr. Knight need only commit suicide. The federal treasury would provide over $2,000 per month, considerably more than he was ordered to pay. However, widows of soldiers killed in battle do not always receive the benefits provided by law. This poster is a constitutionally protected plea to consider the value of the noncustodial parent as a human being.
The poster at CP 199 reads:
I Need My Mom More Than I Need Her Money. The Kitsap County Sheriff's SWAT TEAM Threw Her in Jail, Like They Did With Dawn Case. My Teachers Cannot Explain This.
For further details, please
see
Case v. Kitsap County, (9th Cir. 2001)
The poster at CP 201 features soldiers in Revolutionary War and World War II uniforms and reads:
That is the problem with trying to trade essential liberties for security, as Ben Franklin warned, we get neither.
4. Submitting Evidence of Protected Speech that Prejudices Judicial Officers Serves Two Prohibited Animi: Punishment of Protected Speech and Denial of Due Process. Issues 2, 3, and 4 to Assignment of Error B.
It is one thing for the respondent prosecutors to attempt to punish Mr. Knight for constitutionally protected activities with contempt proceedings, it is another thing for them to submit evidence of Mr. Knight's speech that, while protected, seriously prejudices the judicial officers against him and make them more likely to impose sanctions.
The poster at CP 200 shows a World War II drawing of Uncle Sam with his finger over his mouth indicating his wish for silence. The original caption on war propaganda posters with this image usually had a message to the effect: "Loose lips sink ships." In this version, the image is accompanied by the callouts "18 U.S.C. §1581" and "42 U.S.C. §1994" with the word "CENSORED” superimposed at a slant. The caption reads:
This statement is constitutionally protected as a comment on public policy. It is reasonable to submit to the marketplace of ideas because the Antipeonage Act addresses enslavement for debt or obligation, declaring the use of state law, including orders, that impose or enforce peonage to be null and void, and that such practice is a crime against the United States punishable by up to 20 years of imprisonment. Child support orders are routinely based on some formulae or tables based on the admitted or proved monthly income of each parent, or such income as can be imputed by a judge or commissioner. Chapter 26.19 RCW.
In re Marriage of Glass, (1992) 67 Wash. App. 378, 387, 835 P.2d 1054, upheld a support order even though parent was required to pay child support that exceeded 50 percent of his current monthly earnings. Mr. Glass cannot deduct child support paid from his taxable income, 26 U.S.C. §152(e), the way a taxpayer can deduct alimony, 26 U.S.C. §§71 and 215. Where a taxpayer is obliged to pay more than 50% of his income in child support, and cannot deduct such payments from his taxable income, specifically prohibited by 26 U.S.C. §71(c), the support order does not financially strain him, it destroys him.
A noncustodial parent without resources sufficient to cover the child support obligation without employment can be prosecuted for contempt for failure to comply with a child support order if he quits or refuses employment, or otherwise lacks employment. RCW 26.18.050(4) actually requires that if a support obligor asserts inability to comply with the support order, "the obligor shall establish that he or she exercised due diligence in seeking employment".
Therefore, at first glance, a child support order enforceable by this means looks as much like the thing addressed by the Antipeonage Act as the Cathlamet looks like a Washington State Ferry. Upon closer inspection it looks even more like enslavement for debt: In State v. Dominique Allen Davis, King County Superior Court No. 01-3-08366-3 SEA Mr. Davis has been repeatedly prosecuted for contempt, was ordered to make 5 job contacts per week and provide the court with proof of such contacts. This was increased to 10 job contacts per week and there are findings that he has not provided the court with the required proof of job contacts. He has been arrested and imprisoned at least once. The forms upon which these orders are written have the job contact requirement typed in with a box for the court to check. Such preprinted forms indicate a routine practice.
