Noted for
STATE OF
) No.
petitioner, )
) REPLY TO STATE’S RESPONSE TO
v. ) RESPONDENT
KNIGHT’S PRO SE
)
MOTION TO MODIFY THE
Roger William Knight. )
respondent. )
____________________________________)
Comes
now, ROGER W. KNIGHT, the respondent, and responds to the
State’s Response to
Respondent Knight’s Pro Se Motion to Modify the
1.
STATE’S RESPONSE UNTIMELY
SERVED, SHOULD BE STRICKEN
Local Civil Rule 7(b)(2)(A) provides that LR 7 shall apply to motions to revise commissioner’s rulings. LR 7(b)(3)(C) provides that:
Any party opposing a
motion shall file the original responsive papers in opposition to a motion,
serve copies on parties and deliver copies to the hearing Judge via the Judges’
mailroom in the courthouse in which the Judge is located, no later than 12:00
noon two court days before the date the motion is to be considered.
This
includes “serves copies on parties”. Mr.
Knight, please see Declaration of Roger W. Knight in Support of Reply to
State’s Response to Motion to Modify Commissioner’s Ruling (Knight
Declaration), received his copy of the
State’s Response on Thursday, December
8, 2005. The hearing on this Motion is
currently scheduled for
Pursuant to LR 7(b)(3)(E), the State’s Reply should be stricken. Opposing counsel hereby objects.
2. NO DISPUTE THAT
ORDER REQUIRES EMPLOYMENT OR
THE SEEKING OF EMPLOYMENT
On
page 1 of the
State’s Response the
Order is quoted as follows:
“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.
Thus, this fact is a verity.
3. ISSUE
THAT ORDER REQUIRING EMPLOYMENT OR THE SEEKING OF EMPLOYMENT IS DECLARED NULL AND
VOID BY THE ANTIPEONAGE ACT NOT PRECLUDED, STATE HAS NOT MET BURDEN OF PROOF TO
ESTABLISH PRECLUSION
The State 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 by this other litigation. 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 contempt proceeding imposing
any requirement to be employed or to seek employment. The Ninth Circuit decisions were unpublished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 (Western District of Washington) findings that it lacked jurisdiction
under
Rooker-Feldman[1]
doctrine and had to abstain under
Younger
v. Harris[2],
and therefore did not overturn these findings.
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
The federal cases were in response
to criminal prosecutions for Driving While License Suspended (DWLS) brought by
The
burden of proof is on the party asserting preclusion,
Shuman v. Dep’t of Licensing, (2001) 108
The employment and employment seeking requirements of the Order constitute a fact that has never previously existed with respect to Mr. Knight, even though it is a fact that exists for numerous other noncustodial parents. The impoundment of an automobile and restriction on the privilege to operate a motor vehicle under the WorkFirst Act is not this fact. While the potential of such fact resulting from these matters might have been available for the other courts in the other litigation to consider, the actual fact of a court ordered requirement to be employed or to seek employment has never been available for the other courts’ considerations in the other litigation cited by the State.
4. IMPORTANT ISSUES OF LAW ARE NOT PRECLUDED
In
matters of important public policy, any assertion of preclusion is futile. 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
Metcalf’s specific findings are
particularly applicable here. At
92
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.
This case differs greatly from
Even so,
Metcalf
concluded at 92
Metcalf
is correct that
And
Kennedy v. City
of
There
are a number of requirements for the application of the doctrine of collateral estoppel.
See
Beagles v.
Likewise, it would be manifestly unjust not only to Mr.
Knight but to other noncustodial parents prosecuted for contempt and 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 federal Antipeonage
Act, 42 U.S.C. §1994; given the large numbers of non-custodial parents
affected, and the gravity of these challenges.
Any State’s claim 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 deny noncustodial parents equal protection of
Article I Section 17,
5. COURT OF APPEALS RECOGNIZED MR. KNIGHT’S
RIGHT TO APPEAL A COMMISSIONER’S DECISION
On
If the order was issued in error or because the superior court was biased against him, Knight could have appealed the order.
Knight has not shown that an appeal of that order was not a plain, speedy, and adequate remedy. The lower court, therefore,
properly denied his request for a writ of prohibition.
Emphasis added. Who is right? A three judge panel of the Court of Appeals or King County Superior Court Judge Dean Lum? While an unpublished decision of a Court of Appeals is generally non-citable as an authority, RAP 10.4(h), Mr. Knight in this present action and in the Court of Appeals case is the SAME person. He is entitled to rely on a court decision in a case involving himself.
Should this Court find that Mr. Knight is somehow prohibited from appealing a Commissioner’s decision, then Mr. Knight could use the Writs Act, consistent with the recent findings of the Court of Appeals. Such would increase the burden of litigation in this case.
6. MR. KNIGHT’S RIGHT TO FULLY AND FAIRLY PRESENT
HIS ARGUMENTS WITHOUT INTIMIDATION AND TO CONSIDERATION OF SUCH ARGUMENTS
WITHOUT BIAS OR
Apparently, Commissioner Bonnie Jean Canada-Thurston has an imposing presence in the courtroom with a loud booming voice. However, it is not appropriate for a judicial officer to intimidate litigants out of presenting their arguments. The findings by the Commission in In re Canada-Thurston, CJC Proceeding No. 4389-F-120, attached as an Exhibit herein, include:
By her conduct, the Respondent created
conditions such that the parties may have at times have been inhibited from
fully and fairly presenting their positions.
What purpose can there be for any request to impose sanctions and any entertainment of such request by a court other than to inhibit parties “from fully and fairly presenting their positions”?
To impose sanctions for challenging an order requiring employment or the seeking of employment as declared null and void by 42 U.S.C. §1994 is as offensive to the rights of litigants to fully and fairly present such position. Indeed, to say that such requirement is not peonage is like saying that a fathom is not six feet, even in the face of evidence that the National Bureau of Standards seems to think it is.
For these and many other reasons State’s request for sanctions should be denied.
7. ANY AGREEMENT BY MR. KNIGHT TO THE ORDER, AND WHETHER SUCH AGREEMENT IS UNDER DURESS, IS IRRELEVANT TO WHETHER THE ORDER IS DECLARED NULL AND VOID BY 42 U.S.C. §1994
The Antipeonage Act of 1867, 42 U.S.C. §1994. It 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.
Emphasis added. The
Antipeonage Act, as present and as originally passed,
14 STAT 546, is the
product of a legislative process. Why
include such language “voluntary or involuntary”? Because in New Mexico Territory, referenced
by the statute at 14 STAT 546, and in similar systems as practiced elsewhere, most
instances of peonage were imposed by CONTRACT,
not by court order. It was the way an
unemployed person obtained a job. An
employer would loan a sum of money that could support the peon and any family
he had for a month or two, and the peon agreed to be bound as the servant to
the creditor until such loan is paid off.
Each month, the master would advance an additional sum of money to
replace the 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
where the peon has a family to support
and the creditor supports him, amounts to servitude for life.
The employer was free to forgive such debts whenever he felt the need to lay people off.
This was a clear imbalance of power that the 1867 Congress felt was unfair and inconsistent with our post-Civil War institutions.
Therefore it matters not whether Mr. Knight agreed to the Order, many New Mexican peons had agreed to be peons and Congress clearly intended to include such contracts in its statutory prohibition.
8. THE ANTIPEONAGE ACT APPLIES TO COURT ORDERS
The Antipeonage Act of 1867, 42 U.S.C. §1994. It 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.
The Civil Rights Act of 1871, 42 U.S.C. §1983, does not include the word “orders”. This is a deliberate decision made by Congress. That Congress has never deleted the word “orders” from the Antipeonage Act is also a deliberate decision.
When
unemployed people did not go along with this program, the courts were there,
armed with vagrancy statutes, to impose peonage on the unemployed. 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.
This is
what Congress abolished with the Antipeonage Act of 1867. Congress is authorized to pass this provision
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. Had Congress intended to make an exception
for alimony and child support, it could have easily written in such language. Any subsequent Congress may alter the
Antipeonage Act, as subsequent Congresses are not bound by the Acts of previous
Congresses.
Lockhart v.
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.
9. UNTIL CONGRESS CHANGES OR REPEALS THE ANTIPEONAGE
ACT, NO STATE CAN LAWFULLY AUTHORIZE ANY VIOLATION THEREOF
The Antipeonage Act of 1867, 42 U.S.C. §1994. It 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.
Emphasis added. Any
provision of the Revised Code of Washington, or any act of the Washington
Legislature or the Legislature of the Territory of Washington would be included
in the words “acts, laws, resolutions” in the Antipeonage Act. Any provision of the
Washington
Administrative Code would fall under the words “regulations” in the Antipeonage
Act. Any decision setting precedent by
the Supreme Court of Washington or the
Court of Appeals of the State of
The Antipeonage Act’s Criminal Provision, 18 U.S.C. §1981 currently reads:
(a) Whoever holds or returns any person to a condition of
peonage, or arrests any person with the intent of placing him in or returning
him to a condition of peonage, shall be fined under this title or imprisoned
not more than 20 years, or both. If death results from the violation of this
section, or if the violation includes kidnapping or an attempt to kidnap,
aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an
attempt to kill, the defendant shall be fined under this title or imprisoned
for any term of years or life, or both.
(b) Whoever obstructs, or attempts to obstruct, or in any way
interferes with or prevents the enforcement of this section, shall be liable to
the penalties prescribed in subsection (a).
Little argument is necessary to
establish that no state can authorize any of its agents, be he or she a
prosecutor, a deputy sheriff, or a judicial officer, to commit a federal felony
where Congress is duly authorized by the Constitution to pass such statute and
such statute is not offensive to any provision of the Constitution. The number of court opinions finding the
Antipeonage Act to be unconstitutional is precisely zero. Mr. Alzanki was convicted of this crime and
the conviction upheld, United States v.
Alzanki, (1st Cir. 1995) 54 F. 3d. 994.
Clyatt v. United States, (1905)
197
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. This legislation is not limited
to the territories or other parts of the strictly national domain, but is
operative in the states and wherever the sovereignty of the
Emphasis added. “In the exercise of that power” refers to
Section 2 of the
Thirteenth Amendment, “these sections denouncing peonage”
refers to the Antipeonage Act. While it
is true that the conviction of Mr. Clyatt for peonage was reversed, that was
because of the language of the indictment which only charged the defendants of
“returning” the persons in question to a condition of peonage, which required
proof that such persons were previously in such condition to which they were
returned. Had the indictment accused
such defendants of attempting to place or hold any persons in a condition of
peonage, then there would have been no such evidentiary requirement as these
acts are also defined by the statute to be crimes.
A United States Grand Jury could in good faith, with only
the evidence of the
Order in question, indict Ms.
Jeske and Commissioner
Sellers each of the crime defined by
18 U.S.C. §1581. With some additional evidence, because the
use of the Order to Show Cause and the bench warrants to repeatedly arrest Mr.
Knight until Mr. Knight and Mr. King, his employer, and Mr. Scannell, his
attorney for a while, tired of such arrests, and forced his attendance at
proceedings where Ms.
Jeske can present the
Order in question with a take it or
leave it attitude, the Grand Jury could indict all persons involved with
18 U.S.C. §1581 crimes, provided they carefully write the indictment to cover the
acts in question.
Another reason a state cannot lawfully authorize its
agents or citizens to commit a federal felony is that it can expose such
persons to this criminal liability.
On pages 6 and 7, the State finally
addresses the issue of peonage. The
State asserts:
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 . . .
This issue was addressed dead on
point in
United States v. Reynolds,
(1914) 235
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. 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 easily
be a manufacturing concern, a restaurant, or an engineering firm, if interested
in hiring someone with appropriate skills who happens to be in trouble with the
law.
11. AN
ATTEMPT TO ESTABLISH PEONAGE NEED NOT BE SUCCESSFUL TO BE DECLARED NULL AND
VOID
The Antipeonage Act of 1867, 42 U.S.C. §1994. It 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.
Emphasis added. The State throughout its entire Response
expresses frustration that Mr. Knight has not directed his skills toward
complying with the support order.
United States v. Gaskin, (1944) 320
Pollock v. Williams, (1944) 322
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.”
And why compel men to earn their
living? To support any children they may
have? 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. Ms.
Jeske never even attempted such effort.
Pollock,
at 322 U.S. 18 further 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.
12. THE ANTIPEONAGE ACT DECLARES ORDERS IMPOSING
PEONAGE TO BE NULL AND VOID; SUCH IS AUTHORIZED BY THE
THIRTEENTH AMENDMENT; IF
SUCH REQUIRES A COLLATERAL ATTACK AGAINST SUCH ORDERS, SUCH IS AUTHORIZED BY
42 U.S.C. §1994
On page 7 of the State’s Response is the following assertion:
The
Anti-Peonage Act simply does not apply to this instance and even if it did,
this would constitute a collateral attack upon the support order which has been
in effect since 1991.
The Antipeonage Act of 1867, 42 U.S.C. §1994. It 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.
On
Some of these orders were as much as 30 years old and still being enforced. The new statute was a collateral attack on these pre-existing court orders and contracts. Mr. Knight has never found, and the State does not cite, any court decisions finding that this was not within the power granted to Congress by Section 2 of the Thirteenth Amendment.
Because such orders are declared null and void, they cannot bear any preclusive value, and are subject to direct, collateral, or any other kind of attack on the grounds that they are declared null and void by the Antipeonage Act.
13. CONCLUSION
For the reasons stated herein, this Motion for Revision of Commissioner’s Order should be granted and the Order entered on November 10, 2005 should be modified to eliminate the requirement to seek or maintain employment and bring proof of such employment efforts on the grounds that such an order is declared null and void by the Antipeonage Act, 42 U.S.C. §1994.
14. PROPOSED ORDER
A copy of the proposed Order will be supplied.
Respectfully submitted,
____________________________________
Roger
W. Knight, pro se
[1]
Rooker v. Fidelity
Trust Co., (1923) 263
[2]
Younger v.
Harris, (1971) 401
[3]
Vagrancy Act of 1860,