I.          PARTY ASSERTING PRECLUSION BEARS THE BURDEN OF PROOF; STATE FAILED TO PRESENT

            EVIDENCE THAT FEDERAL COURTS DID NOT FIND THEMSELVES REQUIRED TO ABSTAIN

            UNDER  YOUNGER AND LACKING JURISDICTION UNDER ROOKER-FELDMAN.

 

            Where the State asserts the preclusive effect of a previous court proceeding, it has the burden of proof.  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.  To meet this burden it would have had to present to the superior court the record of Knight v. Serpas et al, W.D. Wash. No. C02-1641C and the record of 9th Circuit No. 03-35016.  The State only submitted the unpublished memorandum in this case, as an Exhibit to its DSHS Trial Brief, Sub No. 27, CP 123-124.  This unsubmitted record would show:

            Upon receiving his copy of the Complaint, Judge John C. Coughenour filed and served an Order to Show Cause why the case should not be dismissed under Younger[1] abstention doctrine.  Mr. Knight responded to this Order and supplemented his response after Judge Michael Trickey in City of Mercer Island v. Knight, King County Superior Court No. 02-1-01137-0 SEA reversed the Mercer Island DWLS convictions.  Nevertheless, Judge Coughenour dismissed on the basis of Younger and Rooker-Feldman[2] doctrines citing Judge Lasnik's analysis in his findings in Knight v. City of Mercer Island et al, W.D. Wash. No. C02-879L.  The State did not submit any of the pleadings or findings in the federal Mercer Island case except the unpublished memorandum in 9th Cir. No. 03-35116, at CP 119-121.

            The evidence that the State submitted as part of it DSHS Trial Brief, Sub No. 6, CP 119-124 does not controvert Mr. Knight contention in his Brief of Appellant, Sub No. 25 at page 23, CP 58:

      The State has indicated that it will claim res judicata and collateral estoppel bars these claims.  No court proceeding prior to July 1, 1997 provides a basis for such bar.  The federal courts in proceedings subsequent to that date found themselves lacking jurisdiction under Rooker-Feldman doctrine or required to abstain under Younger v. Harris.  In such cases, no other determination by the federal court can have any preclusive effect.

 

            This is an eminently simple and obvious concept.  The Ninth Circuit did not address and therefore did not overrule the Western District of Washington's findings that it lacked jurisdiction under Rooker-Feldman and that it had to abstain under Younger v. Harris.  Therefore, no findings by the federal courts as to the matters over which they found themselves to lack jurisdiction, or from which they were required to abstain, can, consistent with such findings, have a preclusive effect.

            This doctrine is illustrated perfectly in Elk Grove Unified School Dist. v. Newdow, (2004) 542 U.S. 1, 159 L. Ed. 2d. 98, 124 S. Ct. 2301, rehearing denied, 125 S. Ct. 21.  The majority at 124 S. Ct. 2305-2312 found that Mr. Newdow, as the noncustodial parent not allowed the authority to represent his child's interests in the courts pursuant to a state court order, lacked standing to challenge the validity of statutes requiring the public schools to conduct a Pledge of Allegiance ceremony.  Having so found, the Supreme Court did not rule on the issue and vacated the Ninth Circuit's findings.  The concurrences, written by Justice Rehnquist, at 124 S. Ct. 2312-2320, Justice O'Connor at 124 S. Ct. 2321-2327, and Justice Thomas at 124 S. Ct. 2327-2333, each found that he had such standing, and then ruled on the merits finding the statutes constitutional.

            Rumsfeld v. Padilla, (2004) 124 S. Ct. 2711, 2717-2727, 159 L. Ed. 2d. 513 found that where a habeas corpus petition is filed in a different judicial district than where the prisoner is held, commander of the brig the only proper respondent, the federal court lacks jurisdiction to consider the habeas corpus petition.  Padilla vacated all decisions resulting from this petition and remanded for entry of an order of dismissal without prejudice, at 124 S. Ct. 2727.  This is a specific finding prohibiting preclusion as to the merits of Jose Padilla’s claims for a writ of habeas corpus.

            Our state’s courts have found that dismissal by federal court for lack of jurisdiction or improper venue does not operate as 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.

            Either a court has jurisdiction to rule on the matters presented or it does not.  If it does not, then the findings are appropriately vacated and have no preclusive effect under res judicata or collateral estoppel.  Where a court has jurisdiction and must abstain, as where Younger v. Harris applies and Rooker-Feldman does not, any decision on the merits of the underlying issue must necessarily be void and having no preclusive effect.

            Therefore, the findings by the Court of Appeals and by the superior court as to the preclusion effects of the federal court cases are in error.  All claims brought in this action in the superior court by Mr. Knight are live issues fairly presented that this Court may decide.

            The failure of the State to present evidence sufficient to establish preclusion in the superior court may not be cured by submission of such evidence as addition on appeal absent a motion under RAP 9.11.  In re Marriage of Litowitz, (2002) 146 Wash. 2d. 514, 531-532, 48 P. 3d. 261.

II.        IMPORTANT ISSUES OF LAW NOT FORECLOSED BY  PRECLUSION DOCTRINES

 

            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 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 to be applied so rigidly as to deny litigant his day in court, primary purpose of the courts is to administer justice.

            Metcalf’s specific findings are particularly applicable here.  At 92 Wash. App. 174-176 Metcalf found:

      The federal action was a challenge to the received funds statute, and advanced ex post facto, double jeopardy, due process, bill of attainder, and excessive fine claims identical to those asserted by Metcalf.  While the federal action did not directly address the wage deduction statute, the received funds statute explicitly incorporates the proportioning methodology of the wage deduction statute. See RCW 72.09.480 (adopting deduction arm of RCW 72.09.111(1)(a)). The analysis of constitutional issues raised by both statutes is therefore the same, except that any issues raised solely under the wage statute would be less compelling; inmates have no constitutional property interest in receiving prison wages, see Hrbek v. Farrier, 787 F.2d 414, 416 (8th Cir. 1986), whereas they do in receiving money from outside sources, see Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1985). 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.

 

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.

 

Likewise, there can be little question as to the importance of the issues raised here in matters of child support, license suspension, and Mr. Knight’s claims under the United States Constitution, the Washington Constitution, and the federal Anti-Peonage Act, 42 U.S.C. §1994 and 18 U.S.C. §1581; given the large numbers of non-custodial parents affected, and the gravity of these challenges.  The State’s claims of important interest of government support consideration on the merits of Mr. Knight’s claims under the Metcalf, Southcenter, and Kennedy doctrine.  If it is not important, then why suspend licenses for child support, deny noncustodial parents equal protection of Article I Section 17, Washington’s prohibition of imprisonment for debt, and use such procedures to attempt to coerce employment to pay child support?

III        APPLICATION OF REDMOND V. MOORE, MATTHEWS V. ELDRIDGE, AND ZABLOCKI V. REDHAIL WHERE SUPPORT DEBTOR IS UNABLE TO PAY SUPPORT ARREARAGE

             The State, in its Answer to Petition for Review makes the argument that Amunrud v. Dep’t of Social and Health Services, (2004) 124 Wash. App. 884, 103 P. 3d. 257[3] and the decision below do not conflict with City of Redmond v. Moore, (2004) 151 Wash. 2d. 664, 91 P. 3d. 875 because under the Matthews v. Eldridge, (1976) 424 U.S. 319, 47 L. Ed. 2d. 18, 96 S. Ct. 893 balancing of interests analysis as used in these decisions, the different interests being pursued by the government mandates different results.  State’s Answer pages 10-14.

            One flaw in the State’s analysis is the State’s false assertion that:

Unlike the criminal defendants in Moore, Mr. Knight has an opportunity for an administrative hearing before his driver’s license was suspended.

 

This is simply not true.  Mr. Knight DID NOT have any opportunity for any hearing before the Department of Social and Health Services (DSHS) certified the license to be suspended for failure to comply with a support order on September 11, 2001 (yes, THAT day) and the Department of Licensing (DOL) suspended the license on September 16, 2001.  This is why Mr. Knight was able to defeat five criminal prosecutions for Driving While License Suspended (DWLS).  Judge Trickey of King County Superior Court found that the City of Mercer Island had to prove that the State complied with the service requirements of RCW 74.20A.320(1) to obtain such a criminal conviction and Mercer Island gave up on remand.  Petition for Review pages 10-11.

            Mr. Knight’s opportunity for hearing did not happen until the State served the paperwork on March 11, 2003, 18 months after the day the DSHS suspended Mr. Knight’s license without proper service.  Thus in Mr. Knight’s case, facts exist similar to facts hypothetically considered in Redmond v. Moore.  Aside from this factual consideration, the State’s analysis breaks down upon at least three considerations.

            1)  Redmond v. Moore analysis is based on the procedural requirements of due process of law, i.e. notice and opportunity to be heard by a tribunal of competent jurisdiction authorized to provide effective relief.  Such analysis is not based on any balancing of interests or any interest the State may have in public safety of the roads and highways.  It is based on the opportunity of the licensee to be heard before losing his property and liberty interest in the license.  That the State may claim a child support interest in the case of a WorkFirst Act suspension, changes not the procedural due process requirements found by this Court in Moore.

            2)  Whatever interests the State may claim for the enforcement of child support, there is no nexus between this interest and the activities licensed.  Where a license suspension is based on failure to respond to notices of traffic infraction, as contemplated in Redmond v. Moore, it at least is based on the alleged misuse of the license, i.e. infractions committed while driving a car.  Running a stop sign or speeding endangers the public safety and where a driver has committed such infractions, the public safety interest is rationally related to any suspension of that driver’s license.  Noncompliance with a child support order has no more relationship with the public safety interest in license suspension than Saudi Arabia prohibiting women from driving automobiles, or on the basis of race, color, national origin, religion, sexual orientation, or political beliefs.  In licensing the practice of law Schware v. Board of Bar Examiners, (1957) 353 U.S. 232, 239, 1 L. Ed. 2d. 796, 77 S. Ct. 752 found:

      A state can require high standards for qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must be have a rational connection with the applicant’s fitness or capacity to practice law.

. . .

      Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church.

 

City of Seattle v. Bittner, (1973) 81 Wash. 2d. 747, 754, 654, 505 P. 2d. 126 found in licensing movie theater operators:

But even where the character of an applicant is subject to evaluation by the licensing officer, the matters taken into account must be relevant to the activity licensed.

 

There is no relevancy between compliance or noncompliance with a support order and the activity of driving an automobile, and with other licensed activities such as practicing medicine, hunting Roosevelt elk, drilling water wells, or selling liquor by the drink.

            3) Where the noncustodial parent is unable to pay off an arrearage, the state interest in enforcing the child support order is not served by a license suspension.  Zablocki v. Redhail, (1978) 434 U.S. 374, 387, 54 L. Ed. 2d. 618, 98 S. Ct. 673 found:

      Under the challenged statute, no Wisconsin resident in the affected class may marry in Wisconsin or elsewhere without a court order, and marriages contracted in violation of the statute are both void and punishable as criminal offenses.  Some of those in the affected class, like appellee, will never be able to obtain the necessary court order, because they either lack the financial means to meet their support obligations or cannot prove that their children will not become public charges.  These persons are absolutely prevented from getting married.

 

Emphasis added.  This is exactly the situation faced by those noncustodial parents unable to EVER comply with their support orders, particularly in light of the RCW 26.09.170(1) prohibition of forgiveness of pre-existing support debt.  A noncustodial parent whose license is suspended under the WorkFirst Act and is unable to comply with the support order by paying the arrearage AND the current monthly support is absolutely prevented from acquiring restoration of the license, RCW 74.20A.320(2)(f):

(f) If the department certifies the responsible parent to the department of licensing and a licensing entity for noncompliance with a child support order, the licensing entity will suspend or not renew the parent's license and the department of licensing will suspend or not renew any driver's license that the parent holds until the parent provides the department of licensing and the licensing entity with a release from the department stating that the responsible parent is in compliance with the child support order;

Emphasis added.  The license suspension is therefore PERMANENT.  The Supreme Court of the United States found that noncustodial parents sometimes do lack the financial means to meet their support obligations, and therefore, a prohibition of marriage based on such was offensive to their fundamental rights.

            Zablocki at 434 U.S. 387 further found:

Many others, able in theory to satisfy the statute’s requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry.

 

Why should Mr. Knight endeavor to qualify for a professional engineering license or a license to practice law, to hunt Roosevelt elk, to carry a concealed weapon, to drill water wells, etc. if he cannot obtain restoration of his driver’s license, in spite of his clean driving record?

            Zablocki at 434 U.S. 389 found:

      With regard to safeguarding the welfare of the out-of-custody children, appellant’s brief does not make clear the connection between the State’s interest and the statute’s requirements.  At argument, appellant’s counsel suggested that, since permission to marry cannot be granted unless the applicant shows that he has satisfied his court-determined support obligations to the prior children and that those children will not become public charges, the statute provides incentive for the applicant to make support payments to the children. . . . This “collection device” rationale cannot justify the statute’s broad infringement on the right to marry.

      First, with respect to individuals who are unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant’s prior children.

 

Emphasis added.  Exactly what has happened in this present case!

            Zablocki at 434 U.S. 390 found:

Given the possibility that the new spouse will actually better the applicant’s financial situation, by contributing income from a job or otherwise, the statute in many cases may prevent affected individuals from improving their ability to satisfy their prior support obligations.

 

Exactly what license suspensions do!  Many professions require licenses, Mr. Amunrud was a taxi driver, including driver’s licenses, if only to allow commuting to employment.  Prohibiting a noncustodial parent from ever obtaining a license required by a profession closes off numerous possibilities that would improve his ability to meet his support obligations as well as ruining any current ability dependent upon an existing license.

            Because license suspension for those unable to comply with their support orders is so clearly counterproductive to the claimed state interest, it is offensive to the Fourteenth Amendment under Zablocki, Schware, Bell v. Burson, (1971) 402 U.S. 535, 539, 29 L. Ed. 2d. 90, 91 S. Ct. 1586, and to Article I Sections 3 and 12 of the Washington Constitution under Bittner.  Justice O’Connor’s concurrence in Lawrence v. Texas, (2003) 156 L. Ed. 2d. 508, 123 S. Ct. 2472, 2485 found (citations omitted):

We have consistently held, however, that some objectives, such as “a bare . . . desire to harm a politically unpopular group,” are not legitimate state interests.  . . .  When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

 

The WorkFirst Act, Laws 1997 chapter 58 and the federal statute referenced in its title, the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which is P.L. 104-193, 110 Stat 2105, where it added 42 U.S.C. §666(a)(16), clearly exhibit a “desire to harm a politically unpopular group.”  Without consideration of ability to comply, this desire to harm is bare and therefore not a legitimate interest of either state or federal government.

III.       CONCLUSION

            For the reasons stated herein, this Court should grant review.

Respectfully submitted, this 18th day of May, 2005.

 

                                                ____________________________________

                                                            Roger W. Knight, pro se