I.          ASSIGNMENTS OF ERROR

A.        Superior court erred in failing to grant the Motion to Modify Commissioner’s Order, Sub No. 203, CP 6-13, where the appellant, Mr. Knight, asked that the employment requirements in the Order on Contempt, Sub No. 199, CP 1-5, be vacated on the grounds that such requirements in a court order, whether agreed or not, are declared null and void by 42 U.S.C. §1994, the Antipeonage Act.

B.        Superior court erred in finding the appeal of an “agreed” order to be “by definition” frivolous and imposing sanctions.

II.        ISSUES PERTAINING TO ASSIGNMENTS OF ERROR

            For Assignment of Error A:

            1) Where a court order, agreed or not, imposes a requirement to work at least 30 hours per week for an employer, or to make at least 3 job contacts each week, with imprisonment deferred, is such court order declared null and void by 42 U.S.C. §1994, the Antipeonage Act?

            2) As Antipeonage Act applies to contracts, does it apply to agreed orders and therefore fact of agreement irrelevant to whether such order is declared null and void?

            3) As Antipeonage Act applies to court orders, is a court order imposing peonage declared null and void?

            4) Can a claim of peonage or involuntary servitude be defeated merely by allowing a debtor choice of employer or profession while under plausible compulsion otherwise sufficient to establish such condition?

            5) Can allowing an exception to peonage or involuntary servitude for those debtors allowed to choose employer or profession grant an unintended loophole to human traffickers and pimps to avoid criminal liability under 18 U.S.C. §§1581 and 1584?

            6) Need an attempt to establish peonage be successful to be declared null and void?

            7) Do the courts have a duty to implement the will of Congress as expressed in the language of the Antipeonage Act?

            8)  Does the language of the Antipeonage Act, 42 U.S.C. §1994, “debt or obligation, or otherwise” cover family obligations?

            9) Is challenge to order requiring employment precluded and did State meet its burden of proof of preclusive litigation?

            10) Is claim that Antipeonage Act declares order requiring employment or the seeking of employment an important issue of law that is not precluded?

            For Assignment of Error B:

            1) Under the facts and circumstances of November 10, 2005, does the Order on Contempt, Sub No. 199, CP 1-5 meet the very essence of a consent decree or judgment by consent, as it was obtained by duress and abuse of process?

            2) Must a waiver of right to appeal be made intelligently, voluntarily, and with understanding of the consequences?

            3) Does a claim of peonage create an exception to rule that agreed orders, consent decrees, and judgments by consent are not reviewable on appeal?  Case of first impression.

            4) As a good faith and meritorious appeal is not subject to sanctions under Civil Rule 11 or RCW 4.84.185, should the award for sanctions be reversed?

III.       STATEMENT OF THE CASE

            On November 10, 2005, the Order on Contempt, Sub No. 199, CP 1-5, was signed by Commissioner Marilyn R. S. Sellers.

            On November 18, 2005 Mr. Knight filed the Motion to Modify Commissioner’s Order, Sub No. 203, CP 6-13.

            On December 9, 2005, Judge Steven C. Gonzalez heard the Motion, Sub No. 203, CP 6-13, and the Notes on Motion Hearing, Sub No. 208, CP 17-18, were recorded.  The Order on Civil Motion, CP 126-128, was not filed with the superior court clerk as of February 16, 2006.

            On January 5, 2006, Mr. Knight filed the Notice of Appeal to the Court of Appeals, Division One, Sub No. 215, CP 125-133.

IV.       ARGUMENT

A.        Order on Contempt, Sub No. 199, CP 1-5 and Order on Civil

            Motion, CP 126-128 Are Appealable Under RAP 2.2(1)

 

            The Order on Contempt, Sub No. 199, page 2, CP 2, Paragraph 2.1 finds Mr. Knight is not in compliance with a court order.  On page 3, CP 3, Paragraphs 2.4 and 2.5 finds that he had ability and has present ability to comply.  Its Section III on pages 3-4, CP 3-4, provides sanctions for purpose of compulsion.  The Order on Civil Motion, CP 126-128 affirmed this Order on a timely Motion to Modify, Sub No. 203, CP 6-13.  It is a final order appealable under RAP 2.2(1).  Seattle Northwest Securities Corp. v. SDG Holding Co., (1991) 61 Wash App. 725, 733, 812 P. 2d. 488 citing Arnold v. National Union of Marine Cooks & Stewards Ass’n, (1952) 41 Wash. 2d. 22, 26, 246 P. 2d. 1107.

B.        Employment Requirements of Court Order Are Declared Null

            And Void by the Antipeonage Act, 42 U.S.C. §1994

 

            1) Introduction

            The Order on Contempt, Sub No. 199, page 4, CP 4, reads in part:

“providing proof that at any time he was not employed at lest 30 hours per week with Mr. King or any other employer, he shall seek/do 3 job contacts per week.”  See Page 4, requirement 5 of Agreed Order of Contempt.

 

Page 3 of the Order on Contempt, Sub No. 199, CP 3 sets forth that Mr. Knight has “failed to establish the exercise of due diligence, as required by RCW 26.18.050(4).”  RCW 26.18.050(4) reads:

(4) If the obligor contends at the hearing that he or she lacked the means to comply with the support or spousal maintenance order, the obligor shall establish that he or she exercised due diligence in seeking employment, in conserving assets, or otherwise in rendering himself or herself able to comply with the court's order.

 

Emphasis added.  On that same page, CP 3, Part 3.2 of the Order, Sub No. 199, provides for imprisonment as a sanction.

            The Antipeonage Act of 1867, 42 U.S.C. §1994, reads:

The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in any Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.

 

            Authorized by Section 2 of the Thirteenth Amendment.  Civil Rights Cases, (1883) 109 U.S. 3, 20-23, 27 L. Ed. 835, 3 S. Ct. 18.

            2) Whether Order is Agreed is Irrelevant to Whether it is

Declared Null and Void; Antipeonage Act Applies to Contracts

 

            U.S. v. Shackney, (2d Cir. 1964) 333 F. 2d. 475, 484 n. 13 found:

This is attested by the passage of the anti-peonage statute in 1867 – peonage being a condition generally assumed by voluntary contract.

 

            Peonage Cases, (M.D. Ala. 1903) 123 F. 671 described historical peonage as involving voluntary contracts leading to involuntary servitude.

            United States v. Reynolds, (1914) 235 U.S. 133, 146, 59 L. Ed. 162, 35 S. Ct. 86 found:

When thus at labor, the convict is working under a contract which he has made with his surety.  He is to work until the amount which the surety has paid for him -- the sum of the fine and the costs -- is paid.  The surety has paid the state and the service is rendered to reimburse him.  That is the real substance of the transaction.  The terms of that contract are agreed upon by the contracting parties, as the result of their own negotiations.  The statute of the state does not prescribe them.  It leaves the making of the contract to the parties concerned, and this fact is not changed because of the requirement that the judge shall approve the contract.

 

Emphasis added.  By this ruling, the dismissal of the peonage indictments was reversed.  If the Order on Contempt, Sub No. 199, CP 1-5, is an Agreed Order, then it is precisely like the contract referenced in Reynolds:  The parties made the contract, written in the hand of State Counsel Jacqueline Jeske, and Commissioner Sellers approved the contract.

            Pollock v. Williams, (1944) 322 U.S. 4, 16, 88 L. Ed. 1095, 64 S. Ct. 792; Taylor v. Georgia, (1942) 315 U.S. 25, 86 L. Ed. 615, 62 S. Ct. 415; Bailey v. Alabama, (1911) 219 U.S. 219, 55 L. Ed. 191, 31 S. Ct. 145; and Ex parte Hollman, (South Carolina 1908) 79 S.C. 9, 60 S.E. 19 each arose from criminal prosecutions for failure to perform labor required by written contracts.  Pollock, Taylor, Bailey, and Hollman reversed these prosecutions as contrary to the Antipeonage Act.  Pollock, at 322 U.S. 6, observed that Mr. Pollock pled guilty to the charge.  The conviction was reversed notwithstanding the plea.  Taylor, at 315 U.S. 29 found:

      We think the conviction must be reversed. There is no material distinction between the Georgia statutes challenged here and the Alabama statute which was held to violate the Thirteenth Amendment in Bailey v. Alabama, 219 U.S. 219 , 31 S.Ct. 145.  It is argued here, just as it was in the Bailey case, that the purpose of 7408 is nothing more than the punishment of a species of fraud, namely, the obtaining of money by a promise to perform services with intent never to perform them. And the presumption created by 7409 is said to be merely a rule of evidence for the trial of cases arising under 7408. Actually, however, 7409 embodies a substantive prohibition which squarely contravenes the Thirteenth Amendment and the Act of Congress of March 2, 1867.  Its effect is to authorize the jury to convict upon proof that an agreement has been reached, that money has been advanced on the strength of it, that the money has not been returned, that the appellant has failed or refused to perform the services 'without good and sufficient cause,' and nothing more. The necessary consequence is that one who has received an advance on a contract for services which he is unable to repay is bound by the threat of penal sanction to remain at his employment until the debt has been discharged. Such coerced labor is peonage. And it is no less so because a presumed initial fraud rather than a subsequent breach of the employment contract is the asserted target of the statute. It is of course clear that peonage is a form of involuntary servitude within the meaning of the Thirteenth Amendment and that the Act of 1867 is an 'appropriate' implementation of that Amendment. Clyatt v. United States, 197 U.S. 207.

 

The Order on Contempt, Sub No. 199, CP 1-5, precisely imposes “[T]he necessary consequence is that one who” is indebted for child support “which he is unable to” pay “is bound by the threat of penal sanction to remain at his employment until the debt has been discharged.”

            Bailey, at 219 U.S. 242 found:

The fact that the debtor contracted to perform the labor which is sought to be compelled does not withdraw the attempted enforcement from the condemnation of the statute. The full intent of the constitutional provision could be defeated with obvious facility if, through the guise of contracts under which advances had been made, debtors could be held to compulsory service. It is the compulsion of the service that the statute inhibits, for when that occurs, the condition of servitude is created, which would be not less involuntary because of the original agreement to work out the indebtedness. The contract exposes the debtor to liability for the loss due to the breach, but not to enforced labor. This has been so clearly stated by this court in the case of Clyatt, supra, that discussion is unnecessary. The court there said:

 

The quote from Clyatt v. United States, (1905) 197 U.S. 207, 215-216, 49 L. Ed. 726, 15 S. Ct. 429 cited in Bailey:

      The constitutionality and scope of 1990 and 5526 present the first questions for our consideration. They prohibit peonage. What is peonage? It may be defined as a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness. As said by Judge Benedict, delivering the opinion in Jaremillo v. Romero, 1 N. M. 190,[1] 194: 'One fact existed universally: all were indebted to their masters. This was the cord by which they seemed bound to their master's service.' Upon this is based a condition of compulsory service. Peonage is sometimes classified as voluntary or involuntary; but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage, however created, is compulsory service,-involuntary servitude. The peon can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labor or rendering of services in payment of a debt. In the latter case the debtor, though contracting to pay his indebtedness by labor or service, and subject, like any other contractor, to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service. We need not stop to consider any possible limits or exceptional cases, such as the service of a sailor (Robertson v. Baldwin, 165 U.S. 275, 41 L. ed. 715, 17 Sup. Ct. Rep. 326[2]), or the obligations of a child to its parents, or of an apprentice to his master, or the power of the legislature to make unlawful, and punish criminally, an abandonment by an employee of his post of labor in any extreme cases. That which is contemplated by the statute is compulsory service to secure the payment of a debt.

 

And Bailey therefore concluded at 219 U.S. 243-244:

The act of Congress, nullifying all state laws by which it should be attempted to enforce the 'service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise,' necessarily embraces all legislation which seeks to compel the service or labor by making it a crime to refuse or fail to perform it. Such laws would furnish the readiest means of compulsion. The 13th Amendment prohibits involuntary servitude except as punishment for crime. But the exception, allowing full latitude for the enforcement of penal laws, does not destroy the prohibition. It does not permit slavery or involuntary servitude to be established or maintained through the operation of the criminal law by making it a crime to refuse to submit to the one or to render the service which would constitute the other. The state may impose involuntary servitude as a punishment for crime, but it may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the service or pay the debt.

 

Quoted by Bailey at 219 U.S. 244, Ex parte Hollman at 60 S.E. 24 found:

In contemplation of the law, the compulsion to such service by the fear of punishment under a criminal statute is more powerful than any guard which the employer could station.

 

Immediately preceding this quote, the South Carolina court wrote:

It is no answer to say the laborer originally entered into the contract of service and contracted the debt voluntarily.  The peonage statute is directed against maintaining as well as establishing involuntary servitude in liquidation of any debt or obligation.  It is nothing in support of the statute now attacked that it enforces involuntary servitude on account of a debt by the compulsion of a statute providing for indictment and imprisonment for quitting such service, rather than allowing the employer to compel it under a guard.

 

This element of plausible compulsion for peonage and involuntary servitude was further defined by United States v. Kozminski, (1988) 487 U.S. 931, 952, 101 L. Ed. 2d. 788, 108 S. Ct. 2751 and by United States v. Veerapol, (9th Cir. 2002) 312 F. 3d. 1128, 1132.

            Compelling service with civil contempt under RCW 26.18.050 and chapter 7.21 RCW can be more coercive than threatening criminal prosecution.  Many protections available to criminal defendants are lacking in civil contempt proceedings.  Laws 1989 chapter 373 §22 deleted the limit of 180 days of imprisonment in RCW 26.18.050.  Mark Durbin was imprisoned for 17 months[3].  A criminal defendant is fully advised about the consequences of pleading guilty as to rights on appeal.  No similar warning was provided Mr. Knight concerning consequences as to rights on appeal of an “agreed” order in this civil contempt case.[4]

            The clear purpose is to coerce Mr. Knight’s service or labor as a peon in liquidation of a debt or obligation.  That such is designated “child support” in no way changes the clear intent to compel one private citizen to labor for another private citizen in payment of a monetary obligation.

            The Antipeonage Act, as present, 42 U.S.C. §1994, and as originally passed, 14 STAT 546, includes the language “voluntary or involuntary”.  In New Mexico Territory, referenced at 14 STAT 546, most instances of peonage were imposed by contract, Jaremillo v. Romero, (1857) 1 N.M. (Gildersleeve) 190, 194-199, while a minority of instances of peonage were imposed by court order.  An employer would loan money limited by the peon’s annual pay, Id., at 198, and the peon agreed to be bound as a servant until such loan is paid off.  Id., at 194.  More money would be periodically advanced to replace funds the peon spent to support himself and his family.  Thus the peon would never be able to buy his way out of bondage.  This was specifically addressed by one of the two Senator Lanes then serving, recorded at Congressional Globe 39th Congress 2d. Sess. p. 1571 attached as an Exhibit to Mr. Knight’s Reply, Sub No. 209, CP 41, Exhibit attached herein:

where the peon has a family to support and the creditor supports him, amounts to servitude for life. 

            Therefore it matters not whether Mr. Knight agreed to the Order, Congress intended to include such contracts in its statutory prohibition.

            3) Antipeonage Act Applies to Court Orders

            42 U.S.C. §1994 reads in significant part:

. . . and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, . . . service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.

 

            When unemployed people did not go along with this program, the courts were there, armed with vagrancy statutes, to impose peonage on the unemployed.[5].  Whenever an employer needed more help, the local sheriff would round up the unemployed and the courts would fine them for vagrancy.  The employer would then pay the fines creating the debt which bound the vagrancy defendants to the employer as peons.  Peonage can also be imposed for any court judgment that a defendant could not pay, including judgments for breach of contract, tort, awards for attorney’s fees, and for alimony and child support.

            New Mexico’s Vagrancy Act of 1860[6] had two primary and traditional definitions of vagrancy:  1) Unemployed and without funds or property sufficient to support oneself without employment.  And 2) Abandoning family without leaving them the means for their support.  A man could be convicted of vagrancy if he has no money and no job and he is separated from his family by any distance for any length of time.

            Clyatt, supra, at 197 U.S. 215 found that peonage includes:

Peonage is sometimes classified as voluntary or involuntary; but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage, however created, is compulsory service,-involuntary servitude. The peon can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced.

 

Emphasis added.  The most common way any condition is “forced upon the debtor by some provision of law” is a court order.

            Reynolds, supra, considered peonage contracts that were approved by a court.  Upon conviction of a crime, a defendant would be sentenced to imprisonment and hard labor.  However, such defendant could avoid such punishment if a “surety” confessed judgment for the fine and court costs.  The surety would be an employer who paid the judgment and the defendant worked for him to pay off the resulting debt.  The surety could request a bench warrant should the defendant abscond before finishing this indenture.  Two examples are set forth in Reynolds at 235 U.S. 139-140:

      In No. 478, one Ed Rivers, having been convicted in a court of Alabama of the offense of petit larceny, was fined $15, and costs, $43.75. The defendant Reynolds appeared as surety for Rivers, and a judgment by confession was entered up against him for the amount of the fine and costs, which Reynolds afterwards paid to the state. On May 4, 1910, Rivers, the convict, entered into a written contract with Reynolds to work for him as a farmhand for the term of nine months and twenty-four days, at the rate of $6 per month, to pay the amount of fine and costs. The indictment charges that he entered into the service of Reynolds, and under threats of arrest and imprisonment if he ceased to perform such work and labor, he worked until the 6th day of June, when he refused to labor. Thereupon he was arrested upon a warrant issued at the instance of Reynolds from the county court of Alabama, on the charge of violating the contract of service. He was convicted and fined the sum of 1 cent for violating this contract, and additional costs in the amount of $87.05, for which he again confessed judgment with G. W. Broughton as surety, and entered into a similar contract with Broughton to work for him as a farm hand at the same rate, for a term of fourteen months and fifteen days.

      In No. 479, the case against Broughton, E. W. Fields, having been convicted in an Alabama state court, at the July, 1910, term, of the offense of selling mortgaged property, was fined $50 and costs in the additional sum of $69.70. Thereupon Broughton, as surety for Fields, confessed judgment for the sum of fine and costs, and afterwards paid the same to the state. On the 8th day of July, 1910, a contract was entered into, by which Fields agreed to work for Broughton as a farm and logging hand for the term of nineteen months and twenty-nine days, at the rate of $6 per month, to pay the fine and costs. He entered into the service of Broughton, and, it was alleged, under threats of arrest and imprisonment if he ceased to labor, he continued so to do until the 14th day of September, 1910, when he refused to labor further. Thereupon Broughton caused the arrest of Fields upon a charge of violating his contract, and upon a warrant issued upon this charge, Fields was again arrested.

 

            4) That a Debtor May Choose Employer or Profession Does

            Not Defeat Claim of Peonage

 

            Page 7 of State’s Response to Respondent Knight’s Pro Se Motion to Modify the November 10, 2005 Order of Commissioner Sellers (State’s Response), Sub No. 209A, CP 57, addresses the issue of peonage:

      In sum, the Respondent is not required to work or labor to pay a debt in any specific job or to any specific master or service.  He has worked in the past as an engineer for many years for the Boeing Company and has worked in the recent past for several years as a contract paralegal for a number of different local and (sic) attorneys.  He is more than capable of providing support for his children.  He simply prefers to file and present legal argument after legal argument rather than to meet the most basic needs of his children.  The Anti-Peonage Act simply does not apply to this instance . . . 

            Addressed on point in Reynolds, supra, at 235 U.S. 146:

When thus at labor, the convict is working under a contract which he has made with his surety.  He is to work until the amount which the surety has paid for him -- the sum of the fine and the costs -- is paid.  The surety has paid the state and the service is rendered to reimburse him.  That is the real substance of the transaction.  The terms of that contract are agreed upon by the contracting parties, as the result of their own negotiations.  The statute of the state does not prescribe them.  It leaves the making of the contract to the parties concerned, and this fact is not changed because of the requirement that the judge shall approve the contract.

 

Emphasis added.  Peonage Cases, supra, at 123 F. 674 found:

If the peon wished to change the masters or service, he could find a new employer who would advance enough to pay the peon’s debts to his then master, and the peon would then become bound in the new employer’s service.

 

Same, Jaremillo, supra, at 1 N.M. 194, and:

If the servant does not wish to continue in service for any cause, such as the ill-treatment of the master, and receiving better pay from another;

 

Id., at 199, quoting New Mexico Territory’s Master and Servant Act of 1851.  Thus, it is not fatal to a claim of peonage that the peon may choose his employer or even his profession.  The surety as contemplated in Reynolds could be a manufacturing concern, a restaurant, or an engineering firm.  Mr. Knight is in the same position as the peon who wishes to change masters or profession, he need only find an employer willing to pay such funds as the State demands.

            5) Allowing Debtor’s Choice of Employer or Profession to

            Defeat Claim of Peonage or Involuntary Servitude Will Allow

            Human Traffickers and Pimps an Unintended Loophole

 

            To allow a debtor’s freedom to choose employer and profession to defeat a claim of peonage, when all other elements necessary to prove the claim, including sufficient level of plausible compulsion, are present, would render virtually unenforceable the Thirteenth Amendment, the Antipeonage Act, and the Peonage and Slavery Chapter.

            A poor person agrees to pay with labor thousands of dollars to be smuggled into the United States illegally.  Such indentures enforced with extortionate threats.  An employer may threaten to rat an alien employee to the immigration authorities.  Forced service as prostitutes.  Wealthy foreigners may bring house servants to the United States and hold them in involuntary servitude.  Federal authorities have obtained convictions for peonage or involuntary servitude under 18 U.S.C. §§1581 and 1584 and the predecessor statutes.

            Bernal v. United States, (5th Cir. 1917) 241 F. 339 upheld a conviction of peonage where the defendant threatened a Mexican woman with telegraphing the immigration authorities and claimed that they would imprison her for five years.  Bernal at 241 F. 341.  Ms. Bernal wanted the Mexican woman work as a prostitute, who refused.  She was then allowed to run errands around town under Ms. Bernal’s observation.  Therefore, she had a choice as to how to earn her way out of this situation.

            Cases involving women forced to labor include United States v. Harris, (10th Cir. 1976) 534 F. 2d. 207 affirming convictions of involuntary servitude and interstate transport of women for prostitution, and Pierce v. United States, (5th Cir. 1944) 146 F. 2d. 84 affirming convictions of peonage.  United States v. Carter, (9th Cir. 2001) 266 F. 3d. 1089, 1090, restated these facts:

In June 1999, Carter took Jane Doe, aged 14, against her will from the State of Washington to the State of California intending to force her to work for him as a prostitute.  Carter forced Doe to perform as a prostitute in Oakland, Los Angeles, and San Diego, beating her if she did not earn money to please him and physically punishing her for disobedience to him.

      Carter brought Doe back to Seattle where he forced her to continue to work as a prostitute.  He also forced her to aid him in recruiting her friend, Juvenile #1, also aged 14.  Carter brought both juveniles to Portland, Oregon and then to Los Angeles to engage in prostitution.  The two children ultimately escaped.

 

The sentence on conviction of violation 18 U.S.C. §2423, the Mann Act, was affirmed with enhancement as a crime of violence, Carter at 1091.  These facts in Carter should easily have met the element of plausible compulsion for any charge of peonage or involuntary servitude.

            United States v. Alzanki, (1st Cir. 1995) 54 F. 3d. 994 affirmed a conviction of involuntary servitude where the Kuwaiti defendant brought his Sri Lankan maid into Massachusetts and held her in bondage.  Veerapol, supra, affirmed a conviction of involuntary servitude where the defendant held the passport of a citizen of Thailand and:

She maintained control over them through verbal abuse and threats of legal action and physical force.  Veerapol refused Saeico’s frequent entreaties to allow her to return to Thailand, at one point telling her if she left, Veerapol would kill her.  One night at her restaurant, Veerapol was particularly abusive to Saeico and pinched her arm, causing a large fist sized bruise.  Veerapol also told her that the police in the United States would arrest her as an illegal alien were she to seek their help.

 

Veerapol at 312 F. 3d. 1131.  Veerapol at 1132 adopted the level of “plausible compulsion” set forth in Kozminski, supra, at 487 U.S. 952.

            If a human trafficker tells the smuggled persons they are free to choose their job as long as they make payments on their smuggling debt, he can avoid a conviction of a §1581 or §1584 crime if the State can avoid a finding that the Order on Contempt, Sub No. 199, CP 1-5, is declared null and void by 42 U.S.C. §1994 because Mr. Knight is free to choose employer and profession.  Even if the human trafficker also told his passage debtors that they can earn the money fastest by prostitution, and credibly threatened their lives if they failed to make the payments.  Such is a level of plausible compulsion sufficient to otherwise prove the element of involuntary servitude under Kozminski and Veerapol.

            Congress certainly did not intend such a loophole for human traffickers, pimps, or other such criminals.

            6) An Attempt to Establish Peonage Need Not be Successful to

            be Declared Null and Void

 

            42 U.S.C. §1994 reads in significant part:

. . . and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.

 

Emphasis added.  The State’s Response, Sub No. 209A, p. 6, CP 56, expresses frustration that Mr. Knight has not directed his skills toward complying with the support order.  United States v. Gaskin, (1944) 320 U.S. 527, 527-528, 88 L. Ed. 287, 64 S. Ct. 318, “There was no allegation that Johnson rendered any labor or service in consequence of the arrest.”  Not necessary to prove a crime of arresting with intent to hold or return to a condition of peonage, Gaskin, at 320 U.S. 528-530.

            Pollock, supra at 322 U.S. 16 found:

We can conceive reasons, even if unconstitutional ones, which might lead well-intentioned persons to apply this Act as a means to make otherwise shiftless men work,

 

And note 26 referenced therein reads:

      Dr. Albert Bushnell Hart in The Southern South, after reviewing and unsparingly condemning evidences of peonage in some regions, says, “Much of the peonage is simply a desperate attempt to make men earn their living.  The trouble is that nobody is wise enough to invent a method of compelling specific performance of a labor contract which shall not carry with it the principle of bondage.”

 

The trouble is that nobody is wise enough to invent a method of compelling specific performance of a support order which shall not carry with it the principle of bondage.  Pollock, at 322 U.S. 18 found:

Whatever of social value there may be, and of course it is great, in enforcing contracts and collection of debts, Congress has put it beyond debate that no indebtedness warrants the suspension of the right to be free from compulsory service.  This congressional policy means that no state can make quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor.

 

Or to otherwise enforce with the threat of imprisonment, which is contained in the Order on Contempt, Sub No. 199, at page 3, CP 3.

            7)  The Courts Have the Duty to Implement the Will of

            Congress as Set Forth in the Language of the Antipeonage Act

 

            Congress may alter the Antipeonage Act, Lockhart v. United States, (2005) 126 S. Ct. 699, 702-704, Scalia’s concurring opinion.  But until altered, an Act of Congress is entitled to its plain meaning, Lockhart, at 126 S. Ct. 702, majority opinion, quoting Union Bank v. Wolas, (1991) 502 U.S. 151, 158, 115 L. Ed. 2d. 145, 112 S. Ct. 527:

The fact that Congress may not have foreseen all of the consequences of a statutory enactment is not sufficient reason for refusing to give effect to its plain meaning.

 

Negonsott v. Samuels, (1993) 507 U.S. 99, 104, 122 L. Ed. 2d. 457, 113 S. Ct. 1119, found:

“Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.”

 

quoting Griffin v. Oceanic Contractors, Inc., (1982) 458 U.S. 564, 570, 73 L. Ed. 2d. 973, 102 S. Ct. 3245.  Please see also Consumer Product Safety Commission v. GTE Sylvania, (1980) 447 U.S. 102, 108, 64 L. Ed. 2d. 766, 100 S. Ct. 2051.  These rules are further summarized in United States v. Romo-Romo, (9th Cir. 2001) 246 F. 3d. 1272, 1274-1275 citing Hartford Underwriters Ins. Co. v. Union Planters Bank, NA, (2000) 530 U.S. 1, 6, 147 L. Ed. 2d. 1, 120 S. Ct. 1942; United States v. Sun-Diamond Growers, (1999) 526 U.S. 398, 407, 143 L. Ed. 2d. 576, 119 S. Ct. 1402; and Harris Trust & Savings Bank v. Salomon Smith Barney, Inc., (2000) 530 U.S. 238, 254, 147 L. Ed. 2d. 187, 120 S. Ct. 2180.

            Sun-Diamond Growers at 526 U.S. 406-8 found that statutory definition of “illegal gratuity” requires that a gift made to a public official must be linked to a specific “official act” within the meaning of the statute.

            Hartford Underwriters at 530 U.S. 6 found:

       . . . we begin with the understanding that Congress “says in a statute what it means and means in a statute what it says there,” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254, 112 S. Ct. 1146, 117 L. Ed. 2d. 391 (1992).  As we have previously noted . . . when “the statute’s language is plain, ‘the sole function of the courts’” - at least where the disposition required by the text is not absurd - “is to enforce it according to its terms.’”  United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 103 L. Ed. 2d. 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 61 L. Ed. 442 (1917)).

 

Harris Trust at 530 U.S. 254 quoted Hughes Aircraft Co. v. Jacobson, (1999) 525 U.S. 432, 438, 142 L. Ed. 2d. 881, 119 S. Ct. 755, which quoted Estate of Cowart v. Nicklos Drilling, (1992) 505 U.S. 469, 475, 120 L. Ed. 2d. 379, 112 S. Ct. 2589 which quoted Connecticut Nat. Bank at 503 U.S. 254: “where the statutory language provides clear answer, it ends there as well”.

            Clyatt, supra at 197 U.S. 218 found that:

In the exercise of that power Congress has enacted these sections denouncing peonage, and punishing one who holds another in that condition of involuntary servitude. . . .  We entertain no doubt of the validity of this legislation, or its applicability to the case of any person holding another in a state of peonage, and this whether there be a municipal ordinance or state law sanctioning such holding.

 

“In the exercise of that power” refers to Section 2 of the Thirteenth Amendment, “these sections denouncing peonage” refers to the Antipeonage Act.  That 18 U.S.C. §1581 is valid is evident from:

Federal crimes are defined by Congress, and so long as Congress acts within its Constitutional power in enacting criminal statute, this Court must give effect to Congress expressed intention concerning the scope of conduct prohibited.

 

Kozminski, supra, at 487 U.S. 939 citing Dowling v. United States (1985) 473 U.S. 207, 213-4, 87 L. Ed. 2d. 152, 105 S. Ct. 3127 and United States v. Wiltberger, (1820) 18 U.S. (5 Wheat.) 76, 95, 5 L. Ed. 37.

            8)  The Antipeonage Act Covers Family Obligations

 

            42 U.S.C. §1994 includes the phrase: “debt or obligation, or otherwise”.  There is no language limiting the application to debts arising from contract or excepting child support.  State v. Lenz, (Ct. App. 1999) 230 Wis. 529, 602 N.W. 2d. 172 found that as child support is not a debt arising from contract, the language of Article I Section 16 of the Wisconsin Constitution, “debts arising from contract”, does not prohibit contempt proceedings for child support.  Congress’ choice to not so limit the application of 42 U.S.C. §1994 should be respected by the courts.

            Had the 1867 Congress intended to make an exception for alimony and child support, it could have easily written in such language.[7]

            If the language of 42 U.S.C. §1994 does not express the will of Congress in reasonably plain terms, then Senator Lane’s comments recorded in the Congressional Globe, 39th Cong. 2d. Sess. at p. 1571, attached as an Exhibit to Mr. Knight’s Reply, Sub No. 209, CP 41,  Exhibit attached herein, about the effects of New Mexico’s system on the peon with a family to support answers the question:

By the laws of Mexico which were existing in New Mexico at the time of the conquest peonage was established.  The system was simply this, as I understand it: that where a Mexican owed a debt his creditor had a right to his labor and services until that debt was paid.  The debtor became a domestic servant, and he and his family were supported by the creditor, and the peonage never ended until the debt was discharged.  It was a kind of servitude for debt, which the committee thought was inconsistent with our institutions.  We simply say by this bill that peonage shall be abolished, and the creditor shall be left to all his legal means of collecting his debt, but he shall not hold the peon in slavery.  I understand also that by this system the creditor not only had a right by an involuntary process to the labor of the peon, but the debtor if he chose might become the servant of the creditor and serve until the debt is paid.  A very small debt with the interest, where the peon has a family to support and the creditor supports him, amounts to servitude for life.  We now simply say that the creditor in New Mexico shall have all the means of collecting their debts known to law, but that peonage or servitude for debt shall cease.  That is the whole of it.

 

Emphasis added.  This statement was based in part on Jaremillo, supra.  Exhibit attached herein.  At 1 N.M. 191 Jaremillo started with:

It has become our duty for the first time in this tribunal to examine and construe the laws of this territory, declaring the rights and defining the relations of masters and servants.  Like all questions arising out of a domestic relation, the present involves interests important and delicate.

 

Peonage was thus considered a domestic relationship by those who practiced it.  Jaremillo, at 1 N.M. 199, quoting New Mexico’s Master and Servant Act of 1851, found:

Fathers of families are permitted to bind out their children to serve only when their poverty demands it, devoting what they draw on account of their salaries to the support of their own legal families.  . . .  All persons having servants may advance them on account, when they demand it, two thirds of their salary in order to support their families.

 

But other than certain specified cases, parents cannot contract away the services of their children, Id., at 206,[8] and that “if a servant is a parent and dies, the children are not compelled to serve in his stead,” Id., at 207.

            Thus the regulation of peonage in New Mexico Territory was intimately related to family relationships and obligations.  The 1867 Congress intended to abolish this, including any circumstance where family obligations are used to justify the peonage of either parent or child.

            9)  Issue is Not Precluded; State Failed to Meet its Burden of

            Proof of Preclusive Litigation

 

            The State’s Response, Sub No. 209A, pages 4-6, CP 54-56, cites other litigation involving Mr. Knight, and asserts that the issue raised by Mr. Knight, that the terms of the Order in question are declared null and void by 42 U.S.C. §1994, the Antipeonage Act of 1867, is precluded.  The cases cited were in response to the WorkFirst Act, Laws 1997 chapter 58 creating RCW 74.20A.320, providing for the suspension of licenses, and not in response to any court order imposing a requirement to be employed or to seek employment.  The Ninth Circuit decisions[9] were unpublished memoranda which do not create precedent and are barred from citation with a few exceptions by Ninth Circuit Rule 36-3.  These Ninth Circuit decisions did not address the United States District Court’s findings that it lacked jurisdiction under Rooker-Feldman[10] doctrine and had to abstain under Younger v. Harris[11], and therefore did not overturn these findings.  Dismissal by federal court for lack of jurisdiction or improper venue is not an adjudication on the merits with preclusive effect, Deja Vu, Inc. v City of Federal Way, (1999) 96 Wash. App. 255, 263, 979 P. 2d. 464; Elk Grove Unified School Dist. v. Newdow, (2004) 542 U.S. 1, 159 L. Ed. 2d. 98, 124 S. Ct. 2301; and Rumsfeld v. Padilla, (2004) 542 U.S. 426, 451, 159 L. Ed. 2d. 513, 124 S. Ct. 2711, 2727.

            The federal cases were in response to criminal prosecutions for Driving While License Suspended (DWLS) after the state court found itself barred from considering the validity of the license suspension in a criminal case.  Mr. Knight prevailed in the criminal DWLS cases after Judge Michael Trickey reversed the DWLS convictions on the basis that service required by RCW 74.20A.320(1) had to be proved.  City of Mercer Island v. Knight, King Co. Superior Ct. No. 02-1-01137-0 SEA.[12]

            The burden of proof is on the party asserting preclusion, Shuman v. Dep’t of Licensing, (2001) 108 Wash. App. 673, 681-682, 32 P. 2d. 1011 citing Thompson v. Dep’t of Licensing, (1999), 138 Wash. 2d. 783, 790, 982 P. 2d. 601.  The State did not submit evidence establishing preclusion.  Mr. Knight thus does not need to submit evidence to the contrary.

            Having failed to submit sufficient evidence in the trial court the State cannot attempt to cure this deficiency on appeal by submitting additional evidence, In re Marriage of Litowitz, (2002) 146 Wash. 2d. 514, 531-532, 48 P. 3d. 261, unless the requirements of RAP 9.11(a) are met.  It is not equitable to excuse such failure to submit such evidence.

            The employment and employment seeking requirements of the Order, Sub No. 199 pages 3-4, CP 3-4 constitute a fact that never previously existed with respect to Mr. Knight, and thus not considered in previous actions involving Mr. Knight.  The suspension of the driver’s license under the WorkFirst Act is not this fact.

            10)  Important Issues of Law Are Not Precluded

 

            Res judicata and collateral estoppel are equitable doctrines with equitable exceptions.  Preclusion should not be applied where it works injustice, Henderson v. Bardahl International Corp., (1967) 72 Wash. 2d. 109, 119, 431 P. 2d. 961 for res judicata and In re Personal Restraint of Metcalf, (1998) 92 Wash. App. 165, 174, 963 P. 2d. 911 citing State v. Williams, (1997) 132 Wash. 2d. 248, 254, 937 P. 2d. 1052 for collateral estoppel.  Res judicata is not intended to deny a litigant his day in court, Schoeman v. New York Life Ins. Co., (1986) 106 Wash. 2d. 855, 860, 726 P. 2d. 1, citing Luisi Truck Lines, Inc. v. Utilities and Transportation Commission, (1967) 72 Wash. 2d. 887, 894-7, 435 P. 2d. 654.  Res judicata and collateral estoppel are not applied so rigidly as to deny litigant his day in court, primary purpose of the courts is to administer justice.

            Metcalf’s findings at 92 Wash. App. 174-176:

Metcalf concedes that the analogous state constitutional provisions upon which he relies receive an interpretation identical to the analogous federal ones. Several of Metcalf's constitutional issues are thus identical to issues resolved in Wright.

      The adjudication in Wright ended in a final judgment on the merits, and as a member of the certified class, Metcalf was a party to the prior litigation. Collateral estoppel thus bars Metcalf's federal (and analogous state) constitutional claims unless application of the doctrine would work an injustice.

      We reject Metcalf's claim that the federal magistrate and the district judge did not give full consideration to the inmates' claims. Metcalf relies on State v. Frederick, 100 Wn.2d 550, 559, 674 P.2d 136 (1983), wherein our Supreme Court declined to apply collateral estoppel where the prior adjudication failed to fully consider the evidence and apply the appropriate law. In that case, the asserted "prior adjudication" was a single-sentence order refusing to consider a petitioner's personal restraint petition, concluding that it had "no basis either in fact or law and appear[ed] frivolous on its face." The Supreme Court proceeded to consider the merits. Id. at 559.

      This case differs greatly from Frederick, because here the federal court did not issue a perfunctory order. To the contrary, the claims were carefully considered and discussed.

Wright is Wright v. Riveland, W.D. Wash. No. C95-5381 FDB.  Even so, Metcalf concluded at 92 Wash. App. 176:

Metcalf is correct that Washington follows the rule that "an important issue of law should not be foreclosed by collateral estoppel." Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wn.2d 413, 418-19, 780 P.2d 1282 (1989) (citing Kennedy v. City of Seattle, 94 Wn.2d 376, 379, 617 P.2d 713 (1980)). There can be little question as to the importance of the issues raised here, given the large numbers of inmates affected and the gravity of the challenges asserted. We therefore elect to consider the merits of Metcalf's claims.

 

Kennedy v. City of Seattle, (1980) 94 Wash. 2d. 376, 379, found:

There are a number of requirements for the application of the doctrine of collateral estoppel. See Beagles v. Seattle First Nat’l Bank, 25 Wn. App. 925, 610 P.2d 962 (1980). We need consider only one: that application of the doctrine must not work an injustice. Henderson v. Bardahl Int'l Corp., 72 Wn.2d 109, 119, 431 P.2d 961 (1967). It would be manifestly unjust not only to litigants Kennedy and McGuire but to other houseboat and moorage owners for the constitutionality of the houseboat ordinance to be determined by a municipal court ruling unappealed by the City.  Furthermore, the relitigation of an important public question of law such as the validity of the houseboat ordinance should not be foreclosed by collateral estoppel. Los Angeles v. San Fernando, 14 Cal. 3d 199, 230, 537 P.2d 1250, 123 Cal. Rptr. 1 (1975).

 

Likewise, it would be manifestly unjust to Mr. Knight and to other noncustodial parents subject to orders requiring employment and the seeking of employment for the validity of such orders under the Antipeonage Act to not be considered.  There can be little question as to the importance of the issues raised here in matters of child support enforcement through contempt proceedings, and Mr. Knight’s claims under the Antipeonage Act, 42 U.S.C. §1994; given the large numbers of noncustodial parents affected, and the gravity of these challenges.[13]

C.        Appeal of “Agreed” Order is Not “By Definition” Frivolous

 

            1) Introduction: Facts

                In the Declaration of Roger W. Knight as to Service of State’s Response to Respondent Knight’s Pro Se Motion to Modify the November 10, 2005 Order of Commissioner Sellers (Knight Declaration) Sub No. 207 CP 15-16, Mr. Knight declared:

      On November 10, 2005 I met with Mr. Paul King and Ms. Jacqueline Jeske in the hallway on the second floor of the King County Courthouse, outside the courtroom where contempt proceedings are held in family law cases.  After Mr. King told her that we had not been working that much recently, she stated that she had expectations.  She expected me to work at least 30 hours each week and if not, to make at least three job contacts each week.  I objected to this requirement and cited the Antipeonage Act and the 13th Amendment.  I signed her paperwork because the alternative was to refuse signature and to walk out of the Courthouse and be subject to another bench warrant for my arrest.

 

            Ms. Jeske did not serve her proposed “Agreed” Orders to Mr. Knight or to Paul H. King by any means prior to 1:00 p.m. November 10.

            The Order on Civil Motion, its pages 2-3, CP 127-128, finds that “Mr. Knight’s appeal of an agreed order is by definition frivolous” and imposed sanctions of $900.00.

            2) The Order Does Not Meet Very Essence of a Consent Decree

            or Judgment by Consent, as it was Obtained by Duress and

            Abuse of Process

 

            Harter v. King County, (1941) 11 Wash. 2d. 583, 591, 110 P. 2d. 919 found:

We think the very essence of a consent decree is that the parties thereto have entered voluntarily into a contract settling the dispute at rest.

 

Because Mr. Knight and his counsel were not provided copies of the State’s proposed orders prior to 1:00 pm November 10, there was no opportunity to review them, and no opportunity to draft and file written oppositions to such proposed orders.  In King County hearings before superior court commissioners are not recorded.  The intimidating factor in such hearings includes the power of the commissioner to order a party immediately imprisoned.  Yet, based on the superior court’s findings on motion to modify, CP 126-128, Mr. Knight’s only option to preserve his right to be heard on review is to present his Antipeonage Act argument to a court commissioner who has signed numerous similar orders without opportunity to prepare and to present such argument in writing.

            Had Mr. Knight been served with the proposed order that became Sub No. 199, CP 1-5, at least 14 days before November 10, a written opposition could have been filed pleading that 42 U.S.C. §1994 declares such court order null and void.  Because any order declared null and void is arguably the crime defined by 18 U.S.C. §1581, and because all of the commissioners who hear contempt actions in family law have signed similar orders, Mr. Knight could have simultaneously brought a motion to recuse for cause under RCW 4.12.040.[14]

            Perhaps this is why Ms. Jeske decided to present her proposed orders at the last minute before the hearing.  Because she did, she was threatening an abuse of process as hereinabove described.  She gave no warning to Mr. Knight or his counsel that by signing, he was giving up any right to appeal or to move to modify.

            Mr. Knight’s only other alternative was to refuse signature, walk out of the courthouse, and be subject to another bench warrant for his arrest.  This alone is sufficient to meet the element of “plausible compulsion” under Kozminski, supra.  Threat of imprisonment is classic duress, Black’s Law 6th Ed. p. 504, 7th Ed. p. 520, 8th Ed. p. 542[15]

            Harter clearly finds consent decrees to be contracts.  Therefore, the principles of contract formation apply.  Duress voids a contract unless subsequently ratified by the coerced party.  Duke v. Force, (1922) 120 Wash. 599, 623, 208 P. 67 found:

A contract obtained by duress is not ordinarily void but merely voidable, and it may be subsequently ratified and confirmed.

 

A timely motion to modify an agreed order obtained by duress is certainly not a ratification and confirmation.  Weitzman v. Bergstrom, (1969) 75 Wash. 2d. 693, 707, 453 P. 2d. 860 found:

Business compulsion is a modern species of duress which will, like common law duress, vitiate a contract induced thereby. See Marrazzo v. Orino, 194 Wash. 364, 78 P.2d 181 (1938); 25 Am. Jur. 2d Duress and Undue Influence § 7 (1966). However, a threat of litigation made in a good faith belief that a cause of action exists will not constitute duress even though no cause of action exists. Doernbecher v. Mutual Life Ins. Co., 16 Wn.2d 64, 132 P.2d 751 (1943). In order for such a threat to constitute duress it must threaten an abuse of process.

 

Presenting an order at the time of the hearing in a contempt action, on a take or leave it basis, without affording party opportunity to review and to prepare a response is a classic abuse of process.  Sea Pac Co. v. United Food Workers, (1985) 103 Wash. 2d. 800, 806-7, 699 P. 2d. 217 found:

      For the tort of abuse of process, "the crucial inquiry is whether the judicial system's process, made available to insure the presence of the defendant or his property in court, has been misused to achieve another, inappropriate end." Gem Trading Co. v. Cudahy Corp., 92 Wn.2d 956, 963 n.2, 603 P.2d 828 (1979).

      In Fite v. Lee, 11 Wn.App. 21, 27, 521 P.2d 964 (1974), the court characterized the "essential elements" as

"(1) the existence of an ulterior purpose - to accomplish an object not within the proper scope of the process - and (2) an act in the use of legal process not proper in the regular prosecution of the proceedings.

Similarly, the Restatement describes the tort as follows:

            One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.

Restatement (Second) of Torts 682, at 474 (1977).

An element which is implicit in both of these definitions is that the defendant must have employed some "process," in the technical sense of the term. As the Court of Appeals has noted, "[t]he mere institution of a legal proceeding even with a malicious motive does not constitute an abuse of process." Fite v. Lee, Supra at 27-28. "Thus, there must be an act after filing suit using legal process empowered by that suit to accomplish an end not within the purview of the suit." Batten v. Abrams, 28 Wn.App. 737, 748, 626 P.2d 984 (1981).

 

Affirmed by Helenius v. Chelius, (2005) 120 P. 3d. 954.

RCW 26.18.050(1) reads:

(1) If an obligor fails to comply with a support or spousal maintenance order, a petition or motion may be filed without notice under RCW 26.18.040 to initiate a contempt action as provided in chapter 7.21 RCW. If the court finds there is reasonable cause to believe the obligor has failed to comply with a support or spousal maintenance order, the court may issue an order to show cause requiring the obligor to appear at a certain time and place for a hearing, at which time the obligor may appear to show cause why the relief requested should not be granted. A copy of the petition or motion shall be served on the obligor along with the order to show cause.

 

Emphasis added. It is axiomatic that in this scheme, the obligor may submit a written opposition as the prophylactic to the circumstance that no sound recording is required of such hearings.  As chapter 7.21 RCW is referenced, RCW 7.21.030(1) reads:

(1) The court may initiate a proceeding to impose a remedial sanction on its own motion or on the motion of a person aggrieved by a contempt of court in the proceeding to which the contempt is related. Except as provided in RCW 7.21.050 the court, after notice and hearing, may impose a remedial sanction authorized by this chapter.

 

Emphasis added. RCW 7.21.050 addresses contempts in the courtroom, which are not at issue here.  King County Superior Court’s Local Family Law Rule (LFLR) 17(a)(1) reads in significant part:

The hearing on the contempt proceeding shall be scheduled on the Family Law Motions Calendar in accordance with LFLR 6.

 

LFLR 6(b)(2) reads:

(2)  The original of the motion together with all supporting documents (including briefs, affidavits and/or declarations pursuant to RCW 9A.72.085) must be filed with the Clerk and copies served on all parties at least fourteen (14) calendar days before the date of the hearing.  Response documents including briefs, if any, must be filed with the Clerk and copies served on all parties no later than by noon four (4) court days prior to the hearing time; and documents in strict reply thereto shall be similarly filed and served no later than 12:00 noon two (2) court days prior to the hearing. 

 

Emphasis added.  The Order re Contempt, Sub No. 199, page 2, CP 2 Paragraph 2.1 accuses Mr. Knight of not being in compliance with a court order.  Thus it is a remedial sanction within the meaning of RCW 7.21.030.  Paragraph 2.2 does not list “Seek employment diligently” as a condition of the violated order.  The entire Section III on pages 3-4, CP 3-4, adds NEW conditions.  Paragraph 3.2 on page 3, CP 3, adds suspended imprisonment.  Paragraph 3.3 on page 4, CP 4, adds the conditions that Mr. Knight asserts are declared null and void by 42 U.S.C. §1994.

            These changes were presented to Mr. Knight and his counsel Mr. King on the day of the hearing, and not 14 days before the hearing which would have afforded Mr. Knight and any attorney he may retain for the purpose an opportunity to present a WRITTEN response before noon 4 days before such scheduled hearing.  This is done with the clear ulterior motive to obtain an “agreed” order without affording Mr. Knight’s written response to such change, contrary to design of the contempt process.

            That is abuse of process, the Order, Sub No. 199, CP 1-5, is not a valid contract, because Mr. Knight’s and Mr. King’s consent was brought under duress and rather than ratifying such contract, Mr. Knight brought a timely Motion to Modify, Sub No. 203, CP 6-13.

            3) Waiver of Appeal Must be Intelligent and Voluntary

 

            Neither Mr. Knight nor his counsel were given any warning that by signing the Order, Sub No. 199, CP 1-5, he was giving up any right to appeal or to move to modify.

            State v. Lee, (1997) 132 Wash. 2d. 498, 506, 939 P. 2d. 1223: Waiver of right to appeal must be made intelligently, voluntarily, and with understanding of the consequences, citing State v. Perkins, (1987) 108 Wash. 2d. 212, 217-218, 757 P. 2d. 250.

            Because this is a well known rule of contract formation, established in numerous civil cases in all 50 states, and the federal courts, it clearly applies to determine whether a waiver of the right to appeal or to bring a motion to modify resulted from the signing of an “agreed” order in a domestic relations case.  There can be no substantive difference in how the principles of contract formation apply to plea agreements, consent decrees, agreed orders, judgments by consent, and settlement contracts reached in criminal, civil, and domestic relations cases.

            Necessity of assent and mutual meeting of the minds to form a contract are established in the cases cited in Washington Digest, 2d. Ed. Volume 8A Contracts §§ 15 and 16; Decennial Digest, all editions, Contracts §§ 15 and 16; Pacific Digest Volume 10 Contracts §§ 15 and 16; and the Federal Digest, 4th Ed. Volume 25, Contracts §§ 15 and 16.  Keystone Land & Development Co. v. Xerox Corp., (2004) 152 Wash. 2d. 171, 177-178, 94 P. 3d. 945 found:

      Washington follows the objective manifestation test for contracts. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 699, 952 P.2d 590 (1998). Accordingly, for a contract to form, the parties must objectively manifest their mutual assent. Yakima County Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 388, 858 P.2d 245 (1993). Moreover, the terms assented to must be sufficiently definite. Sandeman, 50 Wn.2d at 541 (observing if a term is so "indefinite that a court cannot decide just what it means, and fix exactly the legal liability of the parties," there cannot be an enforceable agreement). Additionally, the contract must be supported by consideration to be enforceable. King v. Riveland, 125 Wn.2d 500, 505, 886 P.2d 160 (1994). Washington's requirements for valid contract formation adequately address the primary concern of other courts that have considered the enforceability of contracts to negotiate. As stated by one federal court, the primary concern is to "avoid trapping parties in surprise contractual obligations." Teachers Ins. & Annuity Ass'n v. Tribune Co., 670 F. Supp. 491, 497 (S.D.N.Y. 1987).

      In order to answer the certified questions, we must first determine whether a contract to negotiate was formed under the circumstances of this case. Xerox claims that there was no manifestation of mutual assent to be bound to specific standards of negotiating conduct.  Generally, manifestations of mutual assent will be expressed by an offer and acceptance. City of Yakima, 122 Wn.2d at 388.  Keystone identifies letters between the parties' brokers that it contends are an offer, counter-offers, and acceptance. However, Keystone fails to identify an offer and acceptance to be bound to specific standards of negotiating conduct for the formation of a separate substantive contract.

 

Emphasis added.  Sandeman is Sandeman v. Sayres, (1957) 50 Wash. 2d. 539, 314 P. 2d. 428.  Keystone concluded at 152 Wash. 2d. 179-180:

The exchange of letters with which we are presented does not constitute a contract to negotiate. The parties did not exchange promises to conform to a specific course of conduct during negotiations, such as negotiating in good faith, exclusively with each other, or for a specific period of time. Instead, the parties began negotiations to enter into a purchase and sale agreement. In the absence of objective manifestations of mutual assent to definite terms supported by consideration, no contract was formed. See King, 125 Wn.2d at 505; City of Yakima, 122 Wn.2d at 388; Sandeman, 50 Wn.2d at 541. There was never an agreement as to how the parties were required to proceed.

 

Emphasis added.  There is no objective manifestation of any intent by Mr. Knight to waive his right to appeal as he was not given any warning that signing the Order as presented on the day of the hearing had such consequence.

            4) Because the Antipeonage Act Applies to Contracts and

            Court Orders, Claim of Peonage Creates Exception to Rule

            That Agreed Orders, Consent Decrees, and Judgments by

            Consent are Not Reviewable on Appeal, Case of First

            Impression

 

            The arguments set forth on pages 5-16 herein above are incorporated by reference.  Winton Motor Carriage Co. v. Blomberg, (1915) 84 Wash. 451, 147 P. 21 found:

Judgments by consent are valid as between the parties, and in the absence of fraud or mistake, will not be reviewed on appeal.

 

Same Seely v. Gilbert, (1943) 16 Wash. 2d. 611, 615, 134 P. 2d. 710.  Washington Asphalt Co. v. Harold Kaeser Co., (1957) 51 Wash. 2d. 89, 91, 316 P. 2d. 126 included “want of jurisdiction” as a basis for validly appealing a judgment by consent.

            None of the cases in Washington considered such agreed orders, consent decrees, or judgments by consent challenged as declared null and void by 42 U.S.C. §1994.  This is a case of first impression as to this issue.  Because the Antipeonage Act clearly applies to both contracts and court orders, it therefore creates an exception to this rule.  If a court on appeal or in Civil Rule 60 motion, or by other means of direct or collateral attack, determines that such agreed order, consent decree, or judgment by consent imposes peonage or is an attempt to impose peonage, then pursuant to 42 U.S.C. §1994, such court can reverse, vacate, or otherwise invalidate such agreed order, consent decree, or judgment by consent.

            5) A Good Faith or Meritorious Appeal or Motion to Modify is

            Not Subject to Sanctions Under Civil Rule 11 or RCW 4.84.185

            Because the Motion to Modify Was Brought in Eminent Good

            Faith, the Award for Sanctions Should be Reversed

 

            The standard for sanctions under CR 11 and RCW 4.84.185 is whether the action or motion is frivolous or brought in bad faith.  Forster v. Pierce County, (2000) 99 Wash. App. 168, 183, 991 P. 2d. 687, rev. den. 141 Wash. 2d. 1010, 10 P. 3d. 407 found:

A lawsuit is frivolous when it cannot be supported by an rational argument on the law or facts.  The statute also requires the action be frivolous in its entirety, i.e., if any of the claims asserted are not frivolous, then the action is not frivolous.  Given the welter of statutes involved here, we cannot say the action is utterly frivolous. We reverse the order granting reasonable attorney fees.

 

As the Antipeonage Act clearly applies to both contracts and court orders, a challenge to an order imposing a requirement to work at least 30 hours or make 3 job contacts each week cannot be utterly frivolous.  As the order was presented by the State on the day of a hearing without 14 days notice and opportunity to present a written response by noon on the 4th day before a scheduled hearing, the challenge to the order cannot be utterly frivolous.

V.        CONCLUSION

            For the reasons stated herein, the decision by the superior court should be reversed: the Order on Contempt, Sub No. 199, CP 1-5 imposing employment and employment seeking requirements be declared null and void by 42 U.S.C. §1994, the Antipeonage Act, and the sanctions imposed by the Order on Civil Motion, CP 126-128 be vacated or reversed.

Respectfully submitted this 16th day of February, 2006,

 

                                                ____________________________________

                                                            Roger W. Knight, pro se