WESTERN DISTRICT OF
WASHINGTON AT SEATTLE
ROGER W. KNIGHT, )
)
plaintiff, ) No. C00-151Z
v. )
) MEMORANDUM IN
NORM MALENG. King County ) SUPPORT OF
MOTION FOR
Prosecuting Attorney, and
CALVIN G. )
SUMMARY JUDGMENT
RAPADA, Deputy Prosecuting
Attorney, )
)
defendants. ) Noted for hearing: April 28, 2000
____________________________________)
STANDARD OF DETERMINATION FOR SUMMARY
JUDGMENT
The
presence or absence of a genuine issue as to material fact is the first issue
that must be decided by the court in any summary judgment motion.
Anderson
v. Liberty Lobby, Inc., (1986) 477 U.S. 242, 91 L. Ed. 2d. 202, 106 S. Ct.
2505 and
Celotex Corp. v. Catrett,
(1985) 477 U.S. 317, 322-323, 91 L. Ed. 2d. 265, 106 S. Ct. 2548 provide the
ground rules for making this determination.
These ground rules are that the facts must be seen in the light most
favorable to the non-moving party,
Anderson,
477 U.S. at 255, citing
Adickes v. S.H.
Kress & Co., (1970) 398 U.S. 144, 158-159, 26 L. Ed. 2d. 142, 90 S. Ct.
1598, but the non-moving party may not rest on her allegations, but must by her
own affidavits, depositions, answers to interrogatories, and admissions on file
set forth specific facts showing that there is a genuine issue of material fact
for determination at trial,
Celotex Corp.,
477 U.S. at 324. The
Ninth Circuit
adopted these same grounds rules in their essence in Retail Clerks Union Local 648, AFL-CIO v. Hub Pharmacy, Inc., (9th
Cir 1983) 707 F. 2d. 1030. The opposing
party may not rest on conclusory allegations, but must set forth specific facts
showing genuine issue of material fact. Berg v. Kincheloe, (9th Cir. 1986) 794
F. 2d. 457, 459; Lake Nacimiento Ranch
Co. v. County of San Luis Obispo, (9th Cir. 1987) 841 F. 2d. 872, 876.
NO GENUINE
ISSUE OF MATERIAL FACT EXISTS IN THIS CASE
The
facts of this case are adequately pled in the four Declarations of Roger W.
Knight and their attached exhibits. In
the one pleading filed by the defendants, the
King County Defendant’s Response
to Motion for Preliminary Injunction, the defendant did not deny any of the
facts set forth by the plaintiff. Therefore, this action is ripe for a summary
judgment based upon the law. If this
Motion
is granted, the issue of damages due to the imprisonment of the plaintiff on
March 28-29, 2000 will remain for determination in subsequent proceedings.
YOUNGER ABSTENTION DOES NOT APPLY,
THIS COURT SHOULD ACCEPT JURISDICTION
This
Court’s authority to enforce civil rights under
42 U.S.C. §1983 has been
qualified where the actions under color of state law involve state court
proceedings, by the abstention doctrine defined by
Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct.
746. But
Younger at 401 U.S.C. 46-54 defined exceptions to its doctrine of
abstention, including lack of adequate remedy in state courts, particularly
where conflict of interest arises. In
this case, the conflict of interest arises from possible criminal liability of
court personnel for violating or aiding and abetting the violation of
18 U.S.C.
§1581 in the enforcement of support orders.
Any violation of
42 U.S.C. §1994 is arguably a violation of
18 U.S.C.
§1581.
Child
support orders are widely enforced in the State of Washington with contempt
proceedings. Except in the exceedingly
few cases where the noncustodial parent is sufficiently wealthy to allow
compliance with support order without employment, the clear purpose is to
coerce employment to allow compliance or to punish willful unemployment to
escape compliance. If this is a
violation of 42 U.S.C. §1994, it is a violation of
18 U.S.C. §1581.
Plaintiff
has and will continue to raise his federal question in state proceedings, but
he is asking state court judges to find themselves guilty of repeated felonies
of peonage. The doctrine of judicial
immunity does not apply to criminal liability.
Judges can be prosecuted for enforcing peonage. So can other state officers, regardless of
any authorization or requirement of state law,
Clyatt v. United States, (1905) 197 U.S. 207, 49 L. Ed. 726, 15 S.
Ct. 429. In
Calder v. Bull, (1798) 3 U.S. (3 Dall.) 386, 388, 1 L. Ed. 648,
Justice Chase listed “law that makes a man a
Judge in his own cause;” as among the laws that is against all reason and
justice for a people to empower a Legislature to enact. Therefore, it cannot be presumed that they
have. If the plaintiff is asking state
court judges to find themselves guilty of numerous felonies of peonage, then
Younger abstention does not apply due to
lack of adequate opportunity to raise such a federal question in state court.
Therefore,
this Court has the authority where appropriate to enjoin state court
proceedings under 42 U.S.C. §1983, which creates a statutory exception to the
Anti-Injunction Act, 28 U.S.C. §2283.
Mitchum v. Foster, (1972) 407 U.S. 225,
32 L. Ed. 2d. 669, 91 S. Ct. 746.
RES
JUDICATA DOES NOT BAR THIS ACTION
There
are significant differences in this action and in the previous action before
this Court, Knight v. Knight, et al,
W.D. Wash. No. C91-949Z.
In
the previous action, the plaintiff had not yet been prosecuted for contempt for
nonpayment of support and he was not in any danger of such prosecution. At that time he was still employed by
The
Boeing Company and 50% of his net income was withheld and remitted to the
Washington State Support Registry. This
present action is in response to contempt proceedings that have not happened. Please See Declaration of Roger W. Knight,
Third Declaration of Roger W. Knight, and Fourth Declaration of Roger W. Knight
and attached Exhibits. This alone is a
new transaction that precludes res judicata.
Subsequent
to the previous action, four published opinions that have bearing on this case
have come out that were not available when the previous action was
litigated. These published opinions are:
Brent Moss v. Superior Court, (1996)
56 Cal. Rptr. 2d. 864, 868-870, affirmed in part and reversed in part,
(1998)
71 Cal. Rptr. 2d. 215, 950 P. 2d. 59;
United
States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, cert. den. 145 L. Ed. 2d.
114, 120 S. Ct. 318; and
Lambert v.
Ackerley, (9th Cir. 1999) 180 F. 3d. 997, 1003, which defined the standard
by which remedial statutes intended to protect individual rights are to be
interpreted. The existence of these
published opinions represent a change of circumstances that precludes res
judicata.
BALLEK DOES NOT BIND THIS COURT AS TO THIS ACTION, IT IS IRRELEVANT
Ballek, supra arose from a prosecution
for violation of 18 U.S.C. §228, the Child Support Recovery Act (CSRA), a
statute that does not affect Mr. Knight, Knight
v. United States, W.D. Wash. No C93-13WD, vacated
Ballek only contemplated whether the
Thirteenth Amendment was violated by the CSRA,
18 U.S.C. §228. It did not rule on whether any state court
prosecution for nonpayment of support violates the Antipeonage Act. Therefore, it does not apply to the claim the
plaintiff makes for the protection of the Antipeonage Act.
CONGRESS PROHIBITED LEGALLY
COERCED LABOR TO ENFORCE THE OBLIGATION TO SUPPORT A FAMILY WITH THE
ANTIPEONAGE ACT, AND IS AUTHORIZED TO ENACT SUCH PROHIBITION UNDER SECTION 2 OF
THE
THIRTEENTH AMENDMENT
The
Antipeonage Act, passed in 1867 as appropriate legislation to enforce the
Thirteenth Amendment, survives in
18 U.S.C. §1581 and
42 U.S.C. §1994.
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.
That
Congress very clearly intended to prohibit the involuntary service or labor of
any peon in liquidation of any obligation to provide support for his family is
proved beyond reasonable doubt by Senator Lane’s speech on the Peonage Bill:
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.
Congressional Globe, 39th Cong. 2d. Ed.
p. 1571, attached to the
Memorandum in Support of Motion for Preliminary
Injunction and authenticated by the Second Declaration of Roger W. Knight.
“where
the peon has a family to support and the creditor supports him, amounts to
servitude for life.” That is an accurate
description of a child support order. A
father is deprived of custody of his child, the child is supported by someone
else, either the mother or a state agency foolishly spending the taxpayer’s
money, and he is thus held in servitude for life.
The Vagrancy Act of 1860, then in force in New Mexico Territory, included within its definitions of vagrants “Persons who shall have abandoned their families, leaving them without the means of their support”.[1] When a person was convicted of vagrancy in a New Mexican court, the sentence usually included a stiff fine that was paid by a wealthy person, who then owned the labor of the convicted vagrant. This is what is meant by the phrase: “and in case he shall be sold as hereinafter provided.” The convicted vagrant became a peon to the master who paid the fine. It was used as a means to enforce child support obligations of parents with and without custody of their children.
As
this was Congress’s intent, the defendants have yet to provide any evidence or
argument whatsoever to the contrary, the Antipeonage Act prohibits coercion of
employment to pay child support. Once
the Antipeonage Act is passed by Congress, it does not change unless Congress
specifically changes it. Courts and
prosecutors do not have the authority to change it by means of nonenforcement
and unpunished violation. Such usurps
that democratic process that went into its passage.
The
Antipeonage Act is appropriate legislation authorized by Section 2 of the
Thirteenth Amendment. It is a remedial
statute, one designed by Congress to protect individual rights, particularly
the right of those who toil to cease toiling.
As found by the Supreme Court in
Pollack
v. Williams, (1944) 322 U.S. 4, 18, 64 S. Ct. 792, 799, 88 L. Ed. 1095:
The
Antipeonage Act is a dual purpose statute.
Because this statute defined any attempt by virtue of state law 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 to be null and void and denounced as a crime
any such attempt, Congress thus raised both a shield and a sword against forced
labor because of debt.
Pollack at 322 U.S. 8.
Thus
it matters not that the criminal provision,
18 U.S.C. §1581, the sword, does
not by itself provide a civil right that may be enforced in an action under
42 U.S.C. §1983, see
United States v.
Kozminsky, (1988) 487 U.S. 931, 101 L. Ed. 2d. 788, 108 S. Ct. 2751, 2758-9
(finding criminal sanction of
18 U.S.C. §1584 did not provide a civil right
enforceable through prosecution of conspiracy to violate civil rights under
18 U.S.C. §241, but not fatal to prosecution for conspiracy to violate
Thirteenth
Amendment itself which does provide a civil right).
42 U.S.C. §1994, the shield, provides the
civil right.
The
purpose of the
Thirteenth Amendment as implemented by the Antipeonage Act is to
provide a system of universal free and voluntary labor.
Pollack
at 322 U.S. 6. If the duty to provide
for a child is an exception to this rule, then such universally free and
voluntary labor will not exist because the majority of the adult population has
children. With few exceptions, all
parents have a common law duty to provide for their children. There is no way that this duty can be used to
create an exception to the prohibition of coerced labor that applies to
noncustodial parents, without also depriving custodial parents, including
parents who were married at time of birth of their children and have never
divorced or sought public assistance.
Should any state endeavor to legally coerce the employment of custodial
parents, the
Ballek decision would
stand in the way of any such parent’s attempt to assert their rights in the
courts. However, Ballek did not contemplate the Antipeonage Act.
An en
banc panel of Ninth Circuit judges provided the standard by which remedial
statutes passed to enforce individual rights are to be interpreted in deciding
a case arising from another remedial statute designed by Congress to protect
the rights of those who toil, the
Fair Labor Standards Act (FLSA), 29 U.S.C.
§§201-219. In
Lambert v. Ackerley, (9th Cir. 1999) 180 F. 3d. 997, 1003, the en
banc panel found:
Over fifty years ago, the Supreme Court determined the approach that must be followed in construing the provisions of the Fair Labor Standards Act. A number of the other circuits have explicitly followed that approach. It is a simple one, often used in construing statutes designed to protect individual rights. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S. Ct. 698, 88 L. Ed. 949 (1944), the Court explained that because the FLSA is a remedial statute, it must be interpreted broadly. As the Tennessee Coal Court wrote:
[The
FLSA is] remedial and humanitarian in purpose. We are
not here dealing with mere chattels or articles of trade but with the rights of
those who toil. . . Those are rights that Congress has specifically legislated
to protect. Such a statute must not be
interpreted or applied in a narrow, grudging manner
As the FLSA must be interpreted broadly, so must the Antipeonage Act, which is a remedial statute designed by Congress to protect individual rights.
Parents ordered to pay child support must be included in the group of those who toil. The child support orders are based directly upon the income that such parents can earn with their toil. The right to be free from involuntary servitude based upon a debt or obligation or otherwise is a right Congress has specifically legislated to protect. There is no doubt that the Congress of 1867 knew about alimony and child support obligations, and knew about the general duty to support children that the common law imposed upon parents with and without custody of their children.
The
Ninth Circuit has recently
recognized that the duty to support a child predates the
Thirteenth Amendment
and was well known.
Ballek, supra at
While
the
Ballek court has chosen to
interpret and apply the
Thirteenth Amendment in a narrow, grudging manner, the
Lambert court found that remedial
statutes designed to protect individual rights are to be interpreted broadly to
effect the protection Congress intended.
That can only mean that child support is included in the statutory phrase
“debt or obligation, or otherwise” within the Antipeoange Act.
Even
if coercion of employment to pay child support is within the narrow exceptions
to the
Thirteenth Amendment’s protection, Congress has the authority under
Section 2 of the
Thirteenth Amendment to enforce the prohibition of involuntary
servitude with appropriate legislation when it finds child support to not justify
coercion of employment. The Antipeonage
Act provides a protection that goes beyond the protection of the
Thirteenth
Amendment, specifically that it prohibits the use of any debt or obligation to
impose involuntary servitude, even some debts and obligations that have been
found to not offend the
Thirteenth Amendment.
If the reason is because a more restrictive interpretation of the
constitutional provision prevents “liberty under the protection of effective
government, not the destruction of the latter by depriving it of essential
powers”,
Butler v. Perry, (1916) 240
U.S. 328, 333, 60 L. Ed. 328, 36 S. Ct. 258, this does not preclude Congress
from nevertheless legislating a more restrictive interpretation. Examples would be a statute prohibiting
states and state officers from legally requiring citizens to perform roadwork,
or from legally coercing employment to pay taxes, child support, or other debts
and obligations.
Congress
can within such essential powers repeal or modify the Antipeonage Act to
exclude child support from its definition of “debt or obligation, or
otherwise,” if such exclusion is found by the
Supreme Court to not offend the
Thirteenth Amendment, but such obligation found to be included in the Antipeonage Act as it presently exists.
All it takes is individual senators and representatives risking the
wrath of noncustodial parents who vote (keeping in mind that custodial parents
who vote also have a duty to support their children, and can thus be endangered
by any such alteration of the Antipeonage Act).
Should noncustodial parents take the same attitude toward the
Thirteenth
Amendment that gun owners have taken toward the
Second Amendment, and that
women outside the Christian right have taken toward the right to an abortion,
that might prove difficult. But that is
the democratic process, and neither courts nor prosecutors should alter or
repeal the Antipeonage Act by nonenforcement and unpunished violation, thus
usurping the democratic process that occurred in 1867.
The
Supreme Court has found that Section 5 of the
Fourteenth Amendment authorizes
Congress to extend equal protection doctrine beyond what it found to be
contemplated by the
Amendment itself.
Congress may do this as long as its legislation is rationally related to
the positive grant of power authorizing Congress as to its discretion as to
what legislation is needed to secure the guarantees of the
Fourteenth
Amendment.
Katzenbach v. Morgan, (1966) 384 U.S. 641, 648-651, 16 L. Ed. 2d.
828, 86 S. Ct. 1717. Same doctrine
applies to Section 2 of the
Fifteenth Amendment,
South Carolina v. Katzenbach, (1966) 383 U.S. 301, 15 L. Ed. 2d.
769, 86 S. Ct. 803. Congress may not use
Section 5 of the
Fourteenth Amendment to restrict protections found to be
guaranteed by the
Amendment itself,
Morgan
at 384 U.S. 651 note 10.
The
same doctrine applies to Section 2 of the
Thirteenth Amendment. Jones
v. Alfred H. Mayer, Co., (1968) 392 U.S. 409, 413, 437-444, 20 L. Ed. 2d.
1189, 88 S. Ct. 2186 finding
42 U.S.C. §1982, originally passed in 1866, was a
valid exercise of Section 2 power.
Congress has the power under Section 2 to do much more than simply
abolish slavery and establish universal freedom.
Jones
at 392 U.S. 439.
Thus
Congress intended to prohibit legally coerced labor to support a family with
passage of the Antipeonage Act, has prohibited such legally coerced labor, and
has the authority under Section 2 of the
Thirteenth Amendment to prohibit such
legally coerced labor.
CONCLUSION
For
the reasons stated herein, this
Motion for Summary Judgment should be granted.
RESPECTFULLY SUBMITTED, April 6, 2000.
____________________________________
Roger
W. Knight, plaintiff
[1] Vagrancy Act of 1860, New Mexico Territory, official English language version (Laws of New Mexico Territory were officially enacted in both Spanish and English): Section 11: The following described persons shall be considered vagrants: (2)(d) Persons who shall have abandoned their families, leaving them without the means of support. Section 14: . . . and in the case the accused shall be found guilty of vagrancy, it shall be the duty of the probate judge to confine him or her, as the case may be, in jail for the term of twenty days, unless he shall give bond to the Territory, with one or more securities, to be approved by the probate judge, in the sum of at least one hundred dollars, conditioned for his or her good conduct for the term of one year; and if during the year the accused shall commit any act of vagrancy or any crime or misdemeanor, the person under bond shall be subject to a fine; and if he shall have a family, such fine shall, when collected, be applied to the support thereof, or the support of any other person who by law he is compelled to maintain; and in case he shall be sold as hereinafter provided.