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:
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
