WESTERN DISTRICT OF
WASHINGTON AT SEATTLE
ROGER W. KNIGHT, )
) No.
C00-151Z
plaintiff, )
v. ) REPLY TO
KING COUNTY
NORM MALENG. King County )
MOTION FOR SUMMARY
Prosecuting Attorney, and
CALVIN G. )
JUDGMENT
RAPADA, Deputy Prosecuting
Attorney, )
) Noted for hearing: April 28, 2000
defendants. )
____________________________________)
Comes
now ROGER W. KNIGHT, plaintiff, to reply to the
King County Defendants’
Response to Motion for Summary Judgment (Defendants’ Response II).
The
relief requested by the defendants appears to include a cross motion for
summary judgment dismissing this action, in addition to denying the plaintiff’s
Motion for Summary Judgment. If so, it
should be denied for the following reasons.
BALLEK DOES NOT CONTROL CONSTRUCTION OF ANTIPEONAGE ACT, IT IS A STATUTE, NOT A CONSTITUTIONAL PROVISION, RULES OF STATUTORY CONSTRUCTION MANDATE THAT ANTIPEONAGE ACT COVERS CHILD SUPPORT OBLIGATIONS
The
defendants argue, without foundation based upon published opinion, that the
Antipeonage Act of 1867 does not prohibit the use of contempt proceedings to
enforce child support for the same reasons that the
Thirteenth Amendment was
found to not prohibit such use of contempt proceedings,
United States v. Ballek, (9th Cir. 1999)
This flies
in the face of the well established law that Congress has the authority under
the Appropriate Legislation Clauses to go beyond the protections contemplated
by the Civil War Amendments to implement these Amendments,
Jones v. Alfred H. Mayer, Co., (1968) 392 U.S. 409, 413, 437-444,
20 L. Ed. 2d. 1189, 88 S. Ct. 2186,
Thirteenth Amendment;
Katzenbach v. Morgan, (1966) 384 U.S. 641, 648-651, 16 L. Ed. 2d.
828, 86 S. Ct. 1717,
Fourteenth Amendment;
South
Carolina v. Katzenbach, (1966) 383 U.S. 301, 15 L. Ed. 2d. 769, 86 S. Ct.
803,
Fifteenth Amendment. This flies in
the face of the Ninth Circuit’s recent finding that remedial statutes and
statutes intended to protect individual rights are to be interpreted broadly,
not narrowly and grudgingly,
Lambert v.
Ackerley, (9th Cir. 1999) 180 F. 3d. 997, 1003, to enforce the rights
Congress specifically legislated to protect.
This flies in the face of Senator Lane’s remarks that one of his
objections to the peonage system then practiced in New Mexico Territory was its
effect “on the peon with a family to support”,
Congressional Globe, 39th Cong. 2d. Ed. p. 1571. There is no question that New Mexico
Territory used its peonage system to enforce the duty to support spouse and
children as it used it to enforce any and all other types of debt and
obligation. There is no question that
Congress was reacting to this system and intended to outlaw it forever.
If
Congress intended to exclude the duty to support a child from the phrase “debt
or obligation, or otherwise” and therefore allow the use of contempt
proceedings or other types of legal process that may include imprisonment or
license suspension, or other sanctions, to coerce employment to pay child
support or to punish willful unemployment, it could have simply added a phrase
to its Antipeonage Act so that it could read: “. . . any debt or obligation, or
otherwise, except the duty of a parent to provide for his children, . . .”.
BUT THEY DID NOT!
Nevertheless,
the defendants assert that:
For the same reasons that the use of contempt proceedings to enforce child support obligations do not violate the Thirteenth Amendment, those proceedings do not violate the Anti-Peonage Act.
Defendants’
Response II pages 6-7.
The
Supreme
Court uses different rules to construct and interpret statutes than it uses to
construct and interpret Constitutional provisions. It found that:
“Our
task is to give effect to the will of Congress, and where its will has been
expressed in reasonably plain terms, that language must ordinarily be regarded
as conclusive.”
Negronsott v. Samuels, (1993) 507 U.S.
99, 104, 122 L. Ed. 2d. 457, 113 S. Ct. 1119, (internal quotation marks
omitted) quoting
Griffin v. Oceanic
Contractors, Inc., (1982) 458 U.S. 564, 570, 73 L. Ed. 2d. 973, 102 S. Ct.
3245.
Griffin in turn quoted
Consumer
Product Safety Commission v. GTE Sylvania, (1980) 447 U.S. 102, 108, 64 L.
Ed. 2d. 766, 100 S. Ct. 2051. The
GTE Sylvania court specifically found
that:
We
begin with the familiar canon of statutory construction that the starting point
for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative
intention to the contrary, that language must ordinarily be regarded as
conclusive.
The civil provision of the Antipeonage Act, 42 U.S.C. §1994, is based upon the language of the first clause of the original 1867 Act, 14 Stat 547, and the criminal provision, 18 U.S.C. §1581(a), is based upon the second clause. The obstruction of justice provision, 18 U.S.C. §1581(b), is based upon Section 2 of the 1867 Act. The original statute read:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the holding of any person to service or labor under the system known as peonage is hereby declared to be unlawful, and the same is hereby abolished and forever prohibited in the Territory of New Mexico, or in any other Territory or State of the United States and all acts, laws, resolutions, orders, regulations, or usages of the Territory of New Mexico, or of any other Territory or State of the United States, 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, be, and the same are hereby, declared null and void; and any person or persons who shall hold, arrest, or return, or cause to be held, arrested, or returned, or in any manner aid in the arrest or return of any person or persons to a condition of peonage, shall, upon conviction, be punished by fine not less than one thousand nor more than five thousand dollars, or by imprisonment not less than one nor more than five years, or both, at the discretion of the court.
Sec. 2. And be it further enacted, That it shall be the duty of all persons in the military or civil service in the Territory of New Mexico to aid in the enforcement of the foregoing section of this act; and any person or persons who shall obstruct or attempt to obstruct, or in any way interfere with, or prevent the enforcement of this act, shall be liable to the pains and penalties hereby provided; and any officer or other person in the military service of the United States who shall so offend, directly or indirectly, shall on conviction before a court-martial, be dishonorably dismissed the service of the United States, and shall thereafter be ineligible to reappointment to any office of trust, honor, or profit under the government.
Since
1867, the changes to the Antipeonage Act consist of changes to the criminal
provision as to sentencing and punishment, but there has been no change as to
what it prohibits and what it declares null and void.
18 U.S.C. §2 takes in the language “cause to
be held, arrested, or returned, or in any manner aid in the arrest or
return”.
18 U.S.C. §1581(a) takes in
most of the criminal statute minus the mandatory minimum fine and imprisonment.
18 U.S.C. §1581(b) takes in the obstruction
of justice provision minus the provisions concerning military personnel who
violate the Peonage Law. No doubt there
are general provisions in the Code of Military Justice that pertain to military
personnel who violate federal statutes that would cover violations of the
Antipeonage Act. In 1994 Congress
altered the maximum fine provision of
18 U.S.C. §1581(a) to change from $5000
per violation to “fined under this title.
18 U.S.C. §3571 provides a maximum fine of $250,000 per violation by an
individual where the statute does not provide a lower limit. In 1996, Congress altered
18 U.S.C. §1581(a)
to increase the maximum term of imprisonment for each violation from five years
to ten years.
That
the language “any debt or obligation, or otherwise” must necessarily include
the duty to support one’s family, is because Congress knew about the
obligation, commented upon how peonage affected the peon with a family to
support, and the fact that the New Mexican system was used to enforce the duty
to support the family, by parents with and without custody of their children,
whether married to each other or not.
The 1867 Congress knew, that for the then new
Thirteenth Amendment to
have any value at all, its protection shall not be denied to the majority of
the adult population that has children to support, and what remainder of the
adult population that has debts and obligations other than children. These Congressmen would have been utterly
appalled by the
Ballek decision. Stripping Constitutional protections from
noncustodial parents endangers all parents.
The
language of 42 U.S.C. §1994 is expressed in plain terms, clearly designed to
cover loopholes and to not allow exceptions, and must be considered
conclusive. It has not been
significantly altered since 1867. There
is just no clearly expressed legislative intention to the contrary. At least not in the legislative history of
the 1860’s, the legislative history that is relevant to the statute. SUBSEQUENT legislative history is of little
value in the construction of a statute.
In
GTE Sylvania, supra, at 447
U.S. 108, the Supreme Court found:
Although there is some support for petitioners’ interpretations of §6(b)(1) in legislative history contained in a Conference Report four years after the enactment of that section, . . . we agree with the Court of Appeals’ determination that “legislative history” of this sort cannot be viewed as controlling.
That means that subsequent Acts of Congress that
pertain to child support or the fact that we have had a substantial bureaucracy
build up in every state where the Antipeonage Act was simply ignored,
forgotten, or otherwise not considered in the making of family law policy, is
simply not relevant of the meaning and the Congressional intent of this statute. To allow such numerous officials to avoid
responsibility for violating a bona fide, Constitutional and never repealed
criminal statute is an extremely poor reason to refuse to enforce such statute.
The
Antipeonage Act is the first in a long series of Acts of Congress intended to
protect the rights of working people.
This 1867 Act for the first time provided that every employee can simply
tell his employer, “I quit. I’ll try to
pay my debts to you, but if I am unable, then you will just have to write them
off.” The immediate improvement in labor
relations is that employers learned to pay their workers as they earned their
money. That way, if an employee quit,
had to be fired, or died, the employer is not left with an uncollectable
debt. They also learned to treat their
workers somewhat better, to keep them from quitting, to get them to accept
offers of employment. No longer could an
employer legally go to the county courthouse and purchase his labor from
convicted vagrants. The next improvement
is the rise of unions and collective bargaining. The right to strike originated in the
Antipeonage Act. Peons did not have that
right!
A
striking worker could fall behind in a child support obligation. It is thus astounding that the unions
tolerate contempt proceedings as much as they do.
To
prevent American capitalism from the degenerating to the condition of
exploitation of labor at the lowest possible wages and worst possible
conditions, subsequent remedial Acts of Congress have been passed to make American
capitalism work. The
Fair Labor
Standards Act, (FLSA) 29 U.S.C. §§201-219.
The Rehabilitation Act, 29 U.S.C. §§701 et seq. The
Americans with Disabilities Act, (ADA) 42 U.S.C. §12101 et seq. The
Civil Rights
Act of 1964, 42 U.S.C. §2000. The
Family
Medical Leave Act, (FMLA) 29 U.S.C. §§2601-2654. The
Employee Retirement Income Security Act,
(ERISA) 29 U.S.C. §§1001-1461. To name a
few. Every one of these laws is
construed in a manner to best protect the interests of the working people they
are intended to protect. Even so, what
Congress specifically left in and what Congress specifically left out guides
how the courts interpret these laws and what rights the courts enforce.
With
the FMLA, Brown v. JC Penney Corp.,
(S.D. Fla. 1996)
Put simply, if Congress wanted to ensure that employees
on FMLA leave could take additional time off after a family member died from a
serious health condition, it could easily have said so in the statute.
If Congress wanted to exclude child support from the
Antipeonage Act, it could have easily said so in the statute.
With
the FLSA,
Arnold v. Kanowski, Inc.
(1960) 361 U.S. 388, 4 L. Ed. 2d. 79, 117 S. Ct. 905, found that the then
existing (since repealed)
29 U.S.C. §213(a)(2) and (4) which defined retail or
service establishments exempt from the requirements of the wage and hour law,
an aircraft parts manufacturer could not qualify for the exemption because it
could not prove that at least 75% of its aircraft parts were sold retail, as
required by the plain language of the statute.
Douglas and Boeing were not then considered retail customers. The parts were built into aircraft which were
then sold to other customers.
Mitchell v. Kentucky Finance Co., (1959)
359 U.S. 290, 293 3 L. Ed. 2d. 815, 79 S. Ct. 756 found that debates and
reports by Congress are explicit. Had
bearing on construction of statue. Thus
Senator Lane’s remarks on peons with a families to support has bearing on
construction of Antipeonage Act.
Powell v. United States Cartridge Co.,
(1950) 339 U.S. 497, 506-511, 94 L. Ed. 1017, 70 S. Ct. 755 found that a
defense contractor was an employer and its workers employees within the meaning
of the FLSA, and that both engaged in production of goods for commerce within
the meaning of the FLSA. Mere
transportation of munitions outside the originating state, even if not for sale
or exchange, but only for prosecution of war, was commerce. Reason: statutory definition of commerce
includes “transportation, . . . or, . . . among the several States or from any
State to any place outside thereof.” 52
Stat 1060, 29 U.S.C. §203(d).
What
Congress actually writes into a statute is what guides the construction and
interpretation and meaning of the statute.
For
the Rule of Law to prevail, for this to be a nation of laws, not of men, then
this Court should thus find that the Antipeonage Act prohibits coerced labor to
enforce any parent’s duty or obligation to support a child, or any debt defined
as unpaid child support.
Even
if these doctrines were to preclude this action, the plaintiff is not the only
person who can raise this claim and issue as to whether the Antipeonage Act
prohibits the use of legal process such as contempt proceedings to coerce
employment to pay child support. At any
given time there are several hundred noncustodial parents subject to such
proceedings in King County alone.
Approximately 150 in Pierce County and perhaps between 50 and 100 in
Snohomish County. Numbers proportionate
with population in each of the other counties of Washington. And that is just one State. There are 49 other States.
Numerous
attorneys have expressed an interest to Mr. Knight in his quest for the
enforcement of the Antipeonage Act. It
is amazing how these pleadings could be copied on to 3.5 inch computer disks
and handed to each and every one of these attorneys.
So if
the purpose of res judicata is to protect adversaries from the expense and
duplicitous litigation and to conserve judicial resources, it is not going to
happen here. Different plaintiffs can
raise the same issue. To bar them
without chance to litigate denies due process of law.
Blonder-Tongue
Laboratories v. University of Illinois, (1971) 402 U.S. 313, 329, 28 L. Ed.
2d. 788, 91 S. Ct. 1434 citing
Hansberry
v. Lee, (1940) 311 U.S. 32, 40, 85 L. Ed. 22, 61 S. Ct. 115.
Western Systems, Inc. v. Ulloa, (9th Cir.
1992)
The
test for whether a subsequent action is barred is whether it arises from the
same “transaction, or series of transactions” as the original action. Restatement (Second) Judgments § 24(1) (cited
with approval in Nevada, 463 U.S. at
130-31 n. 12). Whether two events are
part of the same transaction or series depends on whether they are related to
the same set of facts and whether they could conveniently be tried together. Restatement § 24(2)
Nevada is
Nevada v. United States, (1983) 463 U.S.
110, 77 L. Ed. 2d. 509, 103 S. Ct. 2906.
In the Restatement, Judgments §24(2), there is part d, Successive acts
or events as transaction, or connected series; considerations of business
practice, and there is part f, Change of circumstances. Part f reads:
Material operative facts occurring after the decision of
an action with respect to the same subject matter may in themselves, or taken
in conjunction with the antecedent facts, comprise a transaction which may be
made the basis of a second action not precluded by the first. See illustrations 10-12. Where important human values - such as the
lawfulness of a continuing personal disability or restraint - are at stake,
even a slight change of circumstances may afford a sufficient basis for
concluding that a second action may be brought.
Illustration 11 is a case where custody of a child is
awarded to the wife when she is found suitable as a mother. Upon subsequent experience, she is found to
be unsuitable, custody may be awarded to the husband. An example of this might be a drug addiction
or a felony conviction that previously did not exist or was not known.
In
the present action, the clear change in circumstances is that in No. C91-949Z,
the plaintiff had not yet been prosecuted for contempt, and was still employed
by The Boeing Company and therefore not in immediate danger of a contempt
prosecution. In No. C00-151Z we have an
actual contempt prosecution with the plaintiff actually imprisoned upon an
order that clearly seeks to coerce his employment. More than the slight change that the
Restatements considers to be sufficient to beat res judicata. Subsequent published opinions relevant to the
issues raised also form such a change in circumstances.
Part
d, deals with successive acts. The key
consideration is the passage of time between successive events. A daily trespass upon property on successive
days is actionable as one transaction. A
suit involving one trespass could bar action on the other trespasses because
all of the trespasses could easily have been litigated in one action. But when one year or more passes between
transactions, a suit on the first does not bar a suit on the second. Illustration 8 considers that an employee may
sue for wrongful termination when fired from a job. Such a suit does not bar an action for
defamation if the former employer tells the new employer that the employee is an
alcoholic, or some other embarrassing untruth, and a year has passed. Illustration 9 concerns taxes that are paid each
year, are separate transactions, for which separate suits for refund of each
year’s taxes can be had without one suit barring another suit.
More
than one year has passed between the transaction that gave rise to No. C91-949Z
and the contempt prosecution that gave rise to No. C00-151Z. Because of the passage of time, and because
of statute of limitation considerations, these successive events cannot be
properly considered one transaction.
Thus
on two considerations: change in circumstances, and passage of time, the
defendants’ claim of res judicata must fail.
YOUNGER ABSTENTION DOES NOT APPLY BECAUSE PLAINTIFF DOES NOT HAVE ADEQUATE REMEDY IN THE STATE COURTS
Clyatt v. United States, (1905) 197 U.S.
207, 218 49 L. Ed. 726, 15 S. Ct. 429 found that:
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 United States extends. We entertain
no doubt of the validity of this legislation, or its applicability to the case
of any person holding another in a state of peonage, and this whether there be
a municipal ordinance or state law sanctioning such holding.
18 U.S.C. §1581(a) in its present form reads:
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 ten years, or both.
For
the reasons stated herein, this
Motion for Summary Judgment should be granted
and the defendant’s cross motion should be denied.
RESPECTFULLY SUBMITTED, April 25, 2000.
____________________________________
Roger W. Knight, plaintiff
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