Judge Thomas S. Zilly

Magistrate Judge Ricardo S. Martinez

  

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

 

ROGER W. KNIGHT,                                    )

                                                                        )           No.  C00-151Z

                                    plaintiff,                        )

            v.                                                         )           PLAINTIFF’S OBJECTIONS TO

                                                                        )           REPORT AND RECOMMENDATION

NORM MALENG. King County                     )

Prosecuting Attorney, and CALVIN G.            )

RAPADA, Deputy Prosecuting Attorney,          )           Objections noted for: March 24, 2000

                                                                        )

                                    defendants.                   )

____________________________________)

 

            Comes now ROGER W. KNIGHT, plaintiff, to object to the Report and Recommendation filed on March 1, 2000 by Magistrate Judge Ricardo S. Martinez (Magistrate’s Report).

            ARGUMENT

            As previously pled by the plaintiff in this case, this Court was correct in accepting jurisdiction in the plaintiff’s previous lawsuit, Knight v. Knight et al, No. C91-949Z, affirmed in unpublished opinion noted at 996 F. 2d. 1225.  In No. C91-949Z, he sought injunction against the use of contempt proceedings to enforce child support obligations on the grounds that such use of legal process could lead to coercion of employment in violation of the Thirteenth Amendment and of the Antipeonage Act.  This Court cited Mitchum v. Foster, (1972) 407 U.S. 225, 32 L. Ed. 2d. 669, 91 S. Ct. 746 which found that federal courts have 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.  While neither this Court nor the parties cited Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 746 in No. C91-949Z, Mitchum at 407 U.S. 243 cites Younger to inform that it does not reverse Younger, merely that it applies where the Younger Court found abstention to be not appropriate.

            Therefore, one reading of this Court’s findings in No. C91-949Z is that this Court believed that abstention was not appropriate.  One criterion cited by Magistrate Judge Martinez to support his contrary belief in his Report, page 2 lines 15-16, is “an adequate opportunity for plaintiff to raise his federal questions in state proceedings.”  As previously pled by the plaintiff in his Memorandum in Support of Motion for Preliminary Injunction, page 13:

But Younger defined exceptions to its doctrine of abstention: 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.  Danger of irreparable loss is great and immediate, in this case an imprisonment to coerce employment.  State law is flagrantly and patently violative of Constitutional prohibitions, in this case the prohibition of involuntary servitude by coercion of employment by legal process where such employment is not a punishment for any crime whereby the plaintiff was duly convicted.  All of these elements are present in this case and make abstention inappropriate, Younger at 401 U.S.C. 46-54.

 

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 can and will 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.  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.

            Magistrate Judge Martinez was recently a judge of King County Superior Court.  In this capacity, he at least stood by as noncustodial parents were forced into labor with contempt proceedings.  His rather short and intemperate Report, lacking in any detailed analysis of the Antipeonage Act and the intent of Congress in passing it, should be sufficient to prove that abstention is not appropriate in this case, as it was not in No. C91-949Z.  In his Report, the magistrate writes:

This case is but another in a series of attempts by plaintiff to avoid his child support obligation.  See, Knight v. Knight, C91-949Z, affirmed 996 F. 2d 1225 (9th Cir. 1993); Knight v. Knight, C92-1659R, affirmed 33 F.3d 58 (9th Cir. 1994); Knight v. United States, C93-13WD, vacated and remanded, 12 F.3d 1107 (9th Cir. 1993).

 

            First, No. C93-13WD was vacated and remanded precisely because the plaintiff was NOT trying to avoid his child support obligations.  As he lived in the same state as his children, he lacked standing to challenge the Child Support Recovery Act (CSRA), 18 U.S.C. §228.

            Second, No. C92-1659R was an attempt to remedy a divorce decree that was imposed after the case had been removed to federal court, remanded without sanctions, but before the plaintiff had been notified that the case had been remanded.  Apparently every person has the right to due process of law except fathers caught up in divorce litigation.  Fathers who assert such a right are acting frivolously and are thus sanctioned.[1]

            Third, No. C91-949Z was an attack against the child support laws and the enforcement of these laws as bills of attainder and as violation of the federal antislavery laws.  The key problem with that case is that because the plaintiff was still working for The Boeing Company, he was not avoiding his child support obligations, and had not been prosecuted for contempt for failure to pay child support, and was not in danger of such prosecution as long as he continued to work for Boeing.  Without a contempt prosecution or a failure to be employed on the part of the plaintiff, all the plaintiff could do is challenge the validity of the statute, RCW 26.18.050, as violation of the Antipeonage Act.  If a prosecutor can show that a noncustodial parent has the funds already in his possession to make a payment, he can argue that the noncustodial “has the key to his freedom” by simply arranging the payment, and thus no coerced labor can result. Since no one can predict the future, the plaintiff was arguing a hypothetical.

            Just as the plaintiff was arguing a hypothetical when he challenged the CSRA in No. C93-13WD, and the Ninth Circuit found that he did not have standing in unpublished opinion noted at 12 F. 3d. 1107.  The footnote on page 2 of the Magistrate’s Report noted that the unpublished disposition noted at 996 F. 2d. 1225 is relevant to the doctrines of res judicata, or collateral estoppel.  If that be the case, then the unpublished disposition noted at 12 F. 3d. 1107 should also be considered.  If the plaintiff did not have standing to challenge the federal child support law while still employed by Boeing and living in the State of Washington, neither did he have standing to challenge the state contempt statute.

            Thus no res judicata or collateral estoppel.

            The contempt prosecution now taking place is a new injury in fact that establishes standing.  As it did not exist previously, res judicata and collateral estoppel do not apply.

            Another argument against such claim preclusion comes from the opinions published since No. C91-949Z.  The California Court of Appeals agreed with the plaintiff’s position in Brent Moss v. Superior Court, (1996) 56 Cal. Rptr. 2d. 864, 868-870, and the California Supreme Court reversed as to involuntary servitude and peonage but affirmed the annulment of the contempt, (1998) 71 Cal. Rptr. 2d. 215, 950 P. 2d. 59.  These opinions were not available in 1991.  The plaintiff admits that United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, cert. den. 145 L. Ed. 2d. 114, 120 S. Ct. 318 precludes this Court from finding in favor of the plaintiff’s claim under the Thirteenth Amendment, but the plaintiff stated this claim to preserve his right to ask the Ninth Circuit to reverse its opinion and to ask the Supreme Court to consider reversing it.  Ballek nevertheless did not address the Antipeonage Act and is therefore irrelevant to the plaintiff’s Antipeonage Act claim.  But there is one recent Ninth Circuit decision that binds this Court to broadly interpret Acts of Congress designed to protect individual rights, and this decision is cited and argued below.

            Subsequent decisions should be an exception to res judicata.  Numerous mixed race couples challenged antimiscengenation laws before Loving v. Virginia, (1967) 388 U.S. 1, 18 L. Ed. 2d. 1010, 85 S. Ct. 181.  Did res judicata and collateral estoppel preclude these couples from asking the courts to implement Loving in their cases?

            Because the plaintiff’s Supplementary Reply to King County Defendants’ Response to Motion for Preliminary Injunction and Request for Temporary Restraining Order may not be allowed with respect to the Motion for Preliminary Injunction, the plaintiff hereby repeats the argument in this Objections to Report and Recommendation:

            The key issue in this case is the interpretation of the Antipeonage Act of 1867, specifically 42 U.S.C. §1994.  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:

                        Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free of compulsory service.  This Congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor.

 

            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.

            An argument can be made that Congress intended the civil right to be free from peonage to be enforceable in the federal courts under the federal courts’ federal question jurisdiction, under the long standing statute now codified as 28 U.S.C. §1331.  Thus 42 U.S.C. §1994 provides federal courts with jurisdiction independent of 42 U.S.C. §1983, passed a few years later in 1871.

            If that be the case, 42 U.S.C. §1994 creates a statutory exception to 28 U.S.C. §2283.  Due to the no uncertain terms applied to 42 U.S.C. §1994 by Congress declaring a certain use of state law null and void, the jurisdiction of this court to hear this action under 42 U.S.C. §1994 is arguably not qualified by the Younger abstention doctrine.  If a state court action is null and void, so is any Younger abstention, which is applied to state court actions that are not declared null and void by an Act of Congress.

            The question that remains:  By what standard is the Antipeonage Act to be interpreted?  The answer is provided by an en banc panel of Ninth Circuit judges 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, this answer is:

            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.  An en banc panel of judges of the Ninth Circuit is now on record declaring that this approach is commonly used in construing statutes 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.  Senator Lane specifically mentioned the effect of New Mexican peonage upon peons with this obligation, and declared his specific intent to outlaw such use of this obligation to impose involuntary servitude.  Congressional Globe, 39th Congress, 2d. Sess. p. 1571, Memorandum in Support of Motion for Preliminary Injunction, pages 9-10, a true and correct photocopy of which is attached to the Memorandum.  Second Declaration of Roger W. Knight pages 2-3.

            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”.[2]  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.

            The Ninth Circuit has recently recognized that the duty to support a child predates the Thirteenth Amendment and was well known.  Ballek, supra at 170 F. 3d. 871, 874 n. 2 citing Stanton v. Wilson (Connecticut 1808) 3 Day 37.  The 1867 Congress most certainly knew about it, it was included in their reports on New Mexican peonage.  If Congress intended to exclude child support from the phrase “debt or obligation, or otherwise” they had the option of simply writing into the statute a phrase such as “except the obligation of a parent to support his children”.  They did not.  Perhaps because they realized that it would effectively strip the protection of the Thirteenth Amendment from all those who have children, which is most of the adult population.

            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”.

            CONCLUSION

            For the reasons stated herein, the Report and Recommendation should be rejected and the plaintiff’s Motion for Preliminary Injunction should be granted.

            RESPECTFULLY SUBMITTED, March 6, 2000.

 

                                                            ____________________________________

                                                            Roger W. Knight, plaintiff