Knight v Maleng Reply in Support of Motion for Preliminary Injunction

ROGER W. KNIGHT, )

) No. C00-151Z

plaintiff, )

v. ) REPLY TO KING COUNTY

) DEFENDANTS’ RESPONSE TO

NORM MALENG. King County ) MOTION FOR PRELIMINARY

Prosecuting Attorney, and CALVIN G. ) INJUNCTION

RAPADA, Deputy Prosecuting Attorney, )

) Noted for hearing: February 25, 2000

defendants. ) Unless it is for February 18, 2000

____________________________________)

Comes now ROGER W. KNIGHT, plaintiff, to reply to the King County Defendants’ Response to Motion for Preliminary Injunction (Defendants’ Response).

Special Circumstance of this Action

The defendants do not deny that their prosecution of the plaintiff in state court is an attempt to use legal process to coerce his employment to provide child support payments pursuant to a state court decree. Indeed, they assert that they have the right and the duty to use legal process for such purpose. The plaintiff is not only asserting a civil right guaranteed by the Thirteenth Amendment. He is asserting that Congress in passing the Antipeonage Act, 42 U.S.C. §1994, provided for a civil right that goes beyond the Thirteenth Amendment in that no debt or obligation or otherwise shall be enforced by any means that amounts to involuntary servitude. In other words, mere fact that “child support awards fall within that narrow class of obligations that may be enforced without violating the constitutional prohibition against slavery”, even if true, which plaintiff does not concede, does not mean that Congress does not have the power within Section 2 of the Thirteenth Amendment to enforce the Amendment by excluding child support awards and other debts and obligations from the narrow class of obligations that can be enforced by legally coerced labor. Given that the Antipeonage Act also provides for criminal penalties, 18 U.S.C. §1581, the defendants from their standpoint, had better be right. For if this Court, the Ninth Circuit, or the Supreme Court finds for the plaintiff on this issue, then it is the duty of this Court to present to the grand jury the facts of this case for investigation and consideration of indictment of the defendants and other persons so liable, for the crime defined by 18 U.S.C. §1581.

When it comes to criminal statutes, no one is above the law, as Mr. Maleng’s deputies so often argue to juries. No interest of government is so legitimate or compelling as to justify the nonenforcement and unpunished violation of a criminal statute, if such statute is constitutional as appropriate legislation authorized by Section 2 of the Thirteenth Amendment.

If this Court should allow the defendants effective immunity to prosecution for the crime defined by 18 U.S.C. §1581, then this Court should also enter an order providing the plaintiff with similar immunity. For if the defendants are enforcing a state interest in the support of his children, then certainly Mr. Knight, as the father, can claim at least as much interest in the welfare of his children. The order should provide that so long as such crimes as he may commit are nonviolent and have as their primary motive the obtaining of money, and that such ill gotten gains are used to comply with the plaintiff’s support order, then Mr. Knight should be immune to all criminal prosecutions in state and federal courts and to all arrests upon presentation of a copy of such order to any law enforcement officer. Such makes as much sense and is just as absurd as the position taken by the defendants.

It is true that the plaintiff can present his arguments in the state court, but given the state court judges’ personal interest in the outcome of Mr. Knight’s assertion, due to their participation in enforcing support orders by coercive means, there is zero chance that Mr. Knight could get a fair hearing in the Washington courts as to his assertion of the Antipeonage Act. Indeed, Mr. Brent Moss did not get a fair hearing in California’s Supreme Court, they were too busy shielding California judges and officials from liability for the crime defined by 18 U.S.C. §1581. They kept Mr. Moss out of federal court by affirming the annulment of his contempt order and refusing to apply ex post facto their creation of the exception for child support. Brent Moss v. Superior Court, (1998) 71 Cal. Rptr. 2d. 215, 950 P. 2d. 59.

Younger Abstention Fails, Mitchum v. Foster Rules

That is why Younger abstention doctrine, by its own terms, does not preclude this Court’s jurisdiction. This Court correctly accepted jurisdiction in Knight v. Knight et al, W.D. Wash. No. C91-949Z (herein after referred to as No. C91-949Z). It should not find differently as to accepting jurisdiction in this case.

Plaintiff Need Only Show that he is Denied a Right Protected by an Act of Congress Passed Pursuant to an Appropriate Legislation Clause

Defendants assert that:

To succeed on his §1983 claims, plaintiff must show among other things that he has been denied a right that is protected by the Constitution. See Parrett v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-32 (1986).

Defendants’ Response page 3 lines 19-21. The rights protected by the Thirteenth Amendment are certainly included. However, in Parrett, 451 U.S. 527, 535, 68 L. Ed. 2d. 420, 101 S. Ct. 1908. the Supreme Court also found that 42 U.S.C. §1983 also contemplated claims of:

. . . whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution and laws of the United States.

Thus the plaintiff can argue that 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 the more restrictive interpretation, such as prohibiting states and state officers from legally requiring citizens to perform roadwork.

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.

Ballek Does not Bind this Court as to this Action, it is Irrelevant

The defendants cite United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, cert. den. 145 L. Ed. 2d. 114, to support their claim that the Ninth Circuit has precluded the relief sought by the plaintiff. Ballek arose from a prosecution for violation of 18 U.S.C. §228, the Child Support Recovery Act (CSRA), a statute that Mr. Knight STILL does not have standing to challenge. In Knight v. United States, W.D. Wash. No C93-13WD (herein after referred to as No. C93-13WD), this Court found that the plaintiff had standing to challenge the validity of the CSRA and then ruled on his claim, based upon this Court’s finding as to standing in No. C91-949Z. Upon appeal, the Ninth Circuit, in unpublished opinion, vacated this Court’s Order. Knight v. United States, (9th Cir. 1993) 12 F. 3d. 1107, unpublished decision noted on table. Available on-line at 1993 U.S. App. LEXIS 32210. The Ninth Circuit found:

This Act imposes criminal penalties on noncustodial parents who willfully fail to pay past due child support obligations with respect to a child who resides in another state. See 18 U.S.C. §228. Knight has never been prosecuted under the Act. Because Knight and his children all reside in the State of Washington, he does not face a threat of prosecution under the Act. Knight does not allege in his complaint that he intends to engage in conduct proscribed by the Act. Accordingly, Knight lacks standing to challenge the constitutionality of the Act. We vacate the district court’s judgment and remand with instructions to dismiss this action for lack of standing.

The facts as determined by the Ninth Circuit have not changed, Second Declaration of Roger W. Knight, pages 1-2. The children reside in Maple Valley, Washington and the plaintiff resides in Federal Way, Washington.

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.

Res Judicata and Claim Preclusion Do Not Apply

In No. C91-949Z, Mr. Knight had never been prosecuted for contempt for nonpayment of support, yet this Court found he had standing to challenge the threat implied by his support order. This finding was not challenged by his ex-wife or by Assistant Attorney General Kathryn Kafka on appeal to the Ninth Circuit. Thus, the Ninth Circuit did not rule upon standing in this case. Knight v. Knight, (9th Cir. 1993) 996 F. 2d. 1125, unpublished opinion. But given their ruling on the appeal of No. C93-13WD, Mr. Knight arguably did not have standing in No. C91-949Z either and this Court was in error as to standing.

The contempt prosecution paperwork attached to the Declaration of Roger W. Knight filed with the Complaint and this Motion represent the absolute first time that the plaintiff has ever been prosecuted for contempt for nonpayment of support. See Second Declaration of Roger W. Knight, page 2. Therefore, standing is now firmly established. Res judicata and claim preclusion do not apply.

Congress Intended to Prohibit Involuntary Servitude to Enforce the Obligation to Support a Family With the Passage of the Antipeonage Act, and is Authorized to Enact Such Prohibition Under Section 2 of the Thirteenth Amendment.

The plaintiff has proven this Congressional intent beyond reasonable doubt with his citation of Senator Lane’s statement in the 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. As this was Congress’s intent, the defendants do not provide any evidence whatsoever to the contrary, then the Antipeonage Act prohibits coercion of employment to pay child support, regardless of how the Ninth Circuit interpreted the Thirteenth Amendment in Ballek, supra.

Even if coercion of employment to pay child support is within the narrow exceptions to the Thirteenth Amendment’s protection, Congress most certainly 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.

If the CSRA amounts to a partial repeal of the Antipeonage Act, it does not apply noncustodial parents who reside within the same state as their children, as found by the Ninth Circuit in the case of the plaintiff.

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.

Standards are Met for Preliminary Injunction

Moving party will suffer irreparable injury if the relief is denied. Casim v. Bowen, (9th Cir. 1987) 824 F. 2d. 791, 795. Mr. Knight will most likely be imprisoned either on March 2, 2000, or at a later date, because he has no intention to aid and abet the felony of peonage committed against him by caving in to coercion. While duress is a defense to any charge under 18 U.S.C. §2, the person with a gun held to his head nevertheless has the option of telling the gunman that he will not aid and abet his felony. The gunman may pull the trigger or not, his choice, and face the consequences of his decision. That is essentially what Mr. Knight intends to tell Family Court Commissioner Bonnie Canada-Thurston. She may order the plaintiff to prison or not, and face the consequences of her decision. Second Declaration of Roger W. Knight, page 3. Mohandas Ghandi is famous for inspiring this kind of resistance. Martin Luther King, Jr. made use of Ghandi’s ideas.

But it is not Mr. Ghandi or Mr. King who inspire this kind of resistance. It is those who try to control or treat other people in ways that no self-respecting person would wish to be controlled or treated. However compelling an interest the government may claim in the support of children, it is counterproductive to try to obtain such support contrary to the fundamental principles of our nation. The best interests of our children are best served by maintaining good will with those parents who love their children. One could not design a system better suited to destroying that good will and inspiring Ghandian nonviolent resistance than the system currently in place. Add in hateful comments made by politicians, judges, newspaper editorials, and talk radio hosts, along with the cone of silence they have placed around the noncustodial parents’ assertion of civil rights, and the destruction of good will could not be more complete. Demand unreasonable levels of support, deny deduction of support paid from income tax, and what do we have: proof that when a body politic does not recognize a group of persons to have the legal right to say “No, I won’t”, then the body politic does not have any incentive to listen to the concerns of the persons affected. As long as the noncustodial parents pay, why should anyone listen to them? Thus refusal and civil disobedience.

That is why slavery and peonage were outlawed.

The moving party will probably prevail on the merits. In a fair court, Mr. Knight will prevail on the merits. With Senator Lane’s comments, how could the evidence be stronger?

The balance of potential harm favors the moving party. No harm will come to Mr. Knight’s children, he is not complying with the support order anyway and does not intend to be coerced. The nonpayment of support is inspired by the utter lack of respect for his rights under constitutional provisions and the English language in which they are written. Not to mention the blood that was shed to establish and protect these rights. Had there been respect for Mr. Knight’s rights all along, there might not be this sad situation.

The public interest favors granting relief. If restoring the good will of parents who love their children and believe in their rights as citizens of the United States is in the public interest, well, then of course! Not to mention the sanctity of criminal statutes, including 18 U.S.C. §1581. Furthermore, the reasoning of Ballek, supra strips custodial parents as well as noncustodial parents of the protection of the Thirteenth Amendment. If that be the case, let Congress repeal or alter the Antipeonage Act before stripping any parent of its protection.

In the alternative, probable success and the possibility of irreparable harm. United States v. Odessa Union Warehouse Co-op., (9th Cir. 1987) 833 F. 2d. 172, 174. Yes.

Or that serious questions are raised and the balance of hardships tips sharply in it favor. In Brent Moss, supra, and Ballek, supra, we now have two published opinions on the table that were not present when No. C91-949Z was litigated. Ballek is the absolute first published opinion of any federal court on the issue of whether the Thirteenth Amendment prohibits legal process to coerce employment or to punish willful unemployment where the party is ordered to pay child support. It is now imperative that we have a published opinion on the issue of whether the Antipeonage Act prohibits legal process to coerce employment or to punish willful unemployment where the party is ordered to pay child support. No. C91-949Z did not result in such a published opinion.

If Preliminary Injunction is Granted, then it Should Apply to All Noncustodial Parents in King County, Washington.

If this Court grants the Motion for Preliminary Injunction, then there is recognition of a possibility of success on the merits. If the plaintiff is right about his claim to violation of 42 U.S.C. §1994, then he is right that there is a violation of 18 U.S.C. §1581. This Court has an affirmative duty to enjoin all activity it has the power to enjoin that may be in violation of a criminal statute. King County Prosecutor Norm Maleng is a proper party to this action. If he is enjoined from prosecuting the plaintiff for contempt for nonpayment of support pending final decision in this action, then he should be enjoined from prosecuting any other person for contempt for nonpayment of support pending this action. He should be required to seek the immediate release of all persons imprisoned for nonpayment of support where his office is involved and the immediate quashing of all bench warrants for arrest arising from such prosecutions. The plaintiff should be granted the power to seek contempt relief in this Court if the defendants drag their feet in obtaining these releases.

CONCLUSION

For the reasons stated herein, this Motion for Preliminary Injunction should be granted.

RESPECTFULLY SUBMITTED, February 16, 2000.

____________________________________

Roger W. Knight, plaintiff

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