This
Court has an opportunity to determine if the common law immunity to service of
process exists where an out of custody defendant in a criminal case appears at
a scheduled hearing in that case, and to what extent and under what
circumstances such privilege exists.
We
impose remedies upon noncustodial parents ordered to pay child support that we
do not impose upon any other judgment debtor.
Those owing fines for crimes other than traffic offenses are not
deprived of the license to drive. Those
convicted of drunk driving are allowed to drive their cars with interlock
devices, noncustodial parents unable to pay child support are not allowed to
drive at all. For one unable to comply
with a support order, attendance at a contempt proceeding is a pointless and
needlessly abusive proceeding. Where
such proceeding results in an order to seek employment until success and to
bring evidence of such employment search or success to the next hearing, it
looks as much like peonage as the
Cathlamet
looks like a Washington State Ferry.
Where there is denial of equal protection of
Article I Section 17 of the
Washington Constitution, which prohibits, without qualification except in cases
of absconding debtors, imprisonment for debt, it is not surprising that support
debtors abscond.
Some
even commit suicide, the ultimate absconding.
Where
noncustodial parents are subject to service of process of such orders to show
cause, they have NO REASON TO APPEAR AT
COURT AT ALL.
Which
might make the ordinary day to day adjudication of criminal and civil causes of
action impossible except in the case of those arrested on warrants for failure
to appear. At a cost to the taxpayer of
perhaps $100 per day to arrest, book, house, and bring to court each such
arrestee, the enforcement of criminal statutes, particularly the misdemeanor
statutes, can become an even more expensive proposition to the taxpayer than it
is presently.
As
noncustodial parents conclude that they are not protected by the same
Constitution that protects everyone else, why then, should they not boycott all
court proceedings?
Everett
support enforcer
Tony Joseph Casuccio boycotted his criminal case in
Seattle
Municipal Court, quite successfully. He
only had to work in a state government office less than 30 miles away. Please see footnote on page 7 of the
Brief of
Appellant.
II. CHILLING
OF FREEDOM OF SPEECH OF
NONCUSTODIAL
PARENTS
Should
this Court determine that Mr. Knight had no privilege from immunity, it then
reaches the second issue, that there was direct evidence presented by the
State, through attorney
Jacqueline Jeske and the
King County Prosecutor's
Office, of their animus by Mr. Knight's previous litigation success and his
exercise of his right to freedom of speech.
The
State asserts that Mr. Knight's contention is premature. The State asserts that
Commissioner Gaddis
gave no weight to the Internet materials it presented and cites CP 294. Please see pages 13-14 of the Brief of
Respondent.
However,
it is well known in discrimination litigation that a person discriminating on
the basis of race (or gender, erroneously left out of filed reply brief), such as the police officer who stops motorists for
"driving while black" or the corporate president who slams the
"glass ceiling" on talented female executives, does not always state
that race or gender forms part of the basis of their determinations. Such persons often emphatically deny such
improper animus.
Batson v. Kentucky, (1986) 476 U.S. 79,
93-94, 90 L. Ed. 2d. 69, 106 S. Ct. 1712 found:
. . . we have recognized
that a black defendant alleging that members of his race have been
impermissibly excluded from the venire may make out a prima facie case of
purposeful discrimination by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.
Washington v. Davis, supra, at 239-242. Once the defendant makes
the requisite showing, the burden shifts to the State to explain adequately the
racial exclusion.
Alexander v. Louisiana,
405 U.S., at 632 . The State cannot meet this burden on mere general assertions
that its officials did not discriminate or that they properly performed their
official duties. See
Alexander v.
Louisiana, supra, at 632; Jones v.
Georgia, 389 U.S. 24, 25, 19 L. Ed. 2d. 25, 88 S. Ct. 4 (1967). Rather, the
State must demonstrate that "permissible racially neutral selection
criteria and procedures have produced the monochromatic result."
Alexander v. Louisiana, supra, at 632;
see
Washington v. Davis, supra, at
241
Washington
v. Davis is
Washington v. Davis,
(1976) 426 U.S. 229, 48 L. Ed. 2d. 597, 96 S. Ct. 2040.
Alexander
v. Louisiana is
Alexander v.
Louisiana, (1972) 405 U.S. 625, 31 L. Ed. 2d. 536, 92 S. Ct. 1221.
Footnote 18 on 476 U.S. 94 cites
McDonnell Douglas v. Green, (1973) 411
U.S. 792, 36 L. Ed. 2d. 688, 93 S. Ct. 1817;
Texas Dept. of Community Affairs v. Burdine, (1981) 450 U.S. 258,
67 L. Ed. 2d. 207, 101 S. Ct. 1089; and
United
States Postal Board of Governors v. Aikens, (1983) 460 U.S. 711, 75 L. Ed.
2d. 403, 103 S. Ct. 1478 as the source of this burden shifting test. Adjustments to this analysis have been made
in
St. Mary’s Honor Center v. Hicks,
(1993) 509 U.S. 502, 506-511, 125 L. Ed. 2d. 407, 113 S. Ct. 2742; and
Reeves v. Sanderson Plumbing Prod., Inc.,
(2000) 503 U.S. 133, 147 L. Ed. 2d. 105, 119-120, 120 S. Ct. 2097.
Similar
mixed-motives findings are found in
Mt.
Healthy City Board of Education v. Doyle, (1977) 429 U. S. 274, 97 S. Ct.
568, 50 L. Ed. 2d. 471 and
Givhan v.
Western Line Consolidated School Dist., (1979) 439 U.S. 410, 99 S. Ct. 693,
58 L. Ed. 2d. 619, involving personnel allegedly discharged from public
employment for protected speech.
Price Waterhouse v. Hopkins, (1989) 490
U.S. 228, 248-249, 104 L. Ed. 2d. 268, 109 S. Ct. 1775 cites these cases to
establish the "but for" standard in federal employment discrimination
practice. Party alleging impermissible
motive has the burden of proving that "but for" the impermissible
motive, the employer would not have made the same decision.
The
Washington courts adopted the
“substantial factor” test for mixed motives in employment discrimination
cases.
Mackay v. Acorn Custom Cabinetry, (1995) 127 Wash. 2d. 302, 898 P.
2d. 284;
Allison v. Housing Authority,
(1991) 118 Wash. 2d. 79, 821 P. 2d. 34; and
Wilmot
v. Kaiser Aluminum & Chemical Corp., (1991) 118 Wash. 2d. 46, 821 P.
2d. 18. The “determining factor” or “but
for” tests were rejected because they placed too high a burden of proof upon
the employee alleging discrimination or retaliation for asserting legal rights
or for complying with a legal requirement, to effect the public policy enacted
by the Legislature. The employer can
usually produce some evidence of another motive for the discharge, defeating
the discrimination claim even though the other motive had slight impact on the
adverse employment decision.
Wilmot at 118 Wash. 2d. 70;
Allison at 118 Wash. 2d. 85-87, 93-94;
Mackay at 127 Wash. 2d. 309-310.
While
Washington courts lowered the high standard of proof in employment
discrimination cases based on the need to carry out the policy enacted by the
Legislature in chapter 49.60 RCW, other considerations likewise lower the
standard of proof for the impermissible motive of punishing protected speech in
matters other than government employment.
As plead on pages 21-22 of the
Brief of Appellant,
Board of County Commissioners, Wabaunsee County v. Umbehr, (1996)
518 U.S. 668, 680, 135 L. Ed. 2d. 843, 116 S. Ct. 2342 concluded:
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.
Mr. Knight is not a government employee and his
relationship with the government is no closer than that of any other registered
voter.
Where
the government is acting in its capacity as a prosecutor, whether for civil
contempt or for a criminal charge, it becomes imperative that the protection
against such action when motivated by protected speech be adjusted in favor of
the speaker as much as is reasonable.
The classic means by which speech is suppressed in nations that lack a
tradition of freedom of speech is to imprison journalists and other speakers on
trumped-up or not so trumped-up charges.
Jesus Christ was nailed to a cross for speech disapproved by the
authorities.[1]
Applying
the burden shifting test of
McDonnell
Douglas to this case, Mr. Knight sets forth a prima facie case of
prosecution based on the improper motive of his exercise of free speech. He publishes a website on the Internet,
www.antipeonage.0catch.com, wherein he criticizes present policies on divorce
and child support as offensive to the United States Constitution, the
Washington Constitution, and the Antipeonage Act, and that the contempt prosecution
is motivated by this protected speech.
The State can respond that, presuming that contempt proceedings to
coerce employment to pay child support is not the thing addressed by the
Antipeonage Act, it has a legitimate motive in enforcing a support order for
which statutes (other than the Antipeonage Act) authorize such
prosecution. Mr. Knight can respond by
presenting evidence that this legitimate motive is a pretext. There are thousands of noncustodial parents
who are not complying with their support orders, the
King County Prosecutor
must select which ones to prosecute for contempt as it lacks the resources to
prosecute them all. Mr. Knight brings
himself to the top of the list with his website.
The
best argument is that if the website has nothing to do with the contempt
prosecution, then why did the State submit evidence of it to the
superior
court? The
McDonnell Douglas burden shifting test allows a plaintiff who lacks
direct evidence of improper motive to prove his case with indirect evidence. But where there is direct evidence, the
burden shifting test does not apply,
Trans
World Airlines, Inc. v. Thurston, (1985) 469 U.S. 111, 121, 83 L. Ed. 2d.
523, 105 S. Ct. 613, citing
International
Brotherhood of Teamsters v. United States, (1977) 431 U.S. 324, 358 n. 4,
52 L. Ed. 2d. 396, 97 S. Ct. 1843.
There
is and can be no dispute that the State submitted evidence of protected speech
to support a contempt prosecution, and that such speech has a strong potential
to prejudice the family court commissioners against Mr. Knight, rendering
impossible a fair hearing on the contempt.
The
State cannot successfully argue that this issue is premature. By submitting evidence of the speech, the
State is signaling to Mr. Knight, and all other noncustodial parents behind in
compliance with support orders, that it will crack down on those with the
temerity to try to communicate with the public their concerns with the Child
Support Crusade as it presently exists.
That is chilling effect.
For the
reasons stated herein, the decision by the
superior court should be reversed
and a writ of prohibition should be granted prohibiting further prosecution of
Mr. Knight for contempt.
Respectfully submitted this 18th day of January, 2005,
____________________________________
Roger W. Knight, pro se
[1] Matthew 26:65, the priest declared that he spoke blasphemy, and asked what further need was there for witnesses.