Judge Thomas S. Zilly

Magistrate Judge Ricardo Martinez

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

 

ROGER W. KNIGHT,                                    )

                                                                        )           No.  C00-151Z

                                    plaintiff,                        )

            v.                                                         )           SUPPLEMENTAL REPLY TO KING

                                                                        )           COUNTY DEFENDANTS’ RESPONSE

NORM MALENG. King County                     )           TO MOTION FOR PRELIMINARY

Prosecuting Attorney, and CALVIN G.            )           INJUNCTION AND REQUEST FOR

RAPADA, Deputy Prosecuting Attorney,          )           TEMPORARY RESTRAINING

                                                                        )           ORDER

                                    defendants.                   )

____________________________________)

 

            Comes now ROGER W. KNIGHT, plaintiff, to supplement his reply to the King County Defendants’ Response to Motion for Preliminary Injunction (Defendants’ Response) and to request a temporary restraining order under FRCP 65(b) for ten days restraining the defendants from proceeding with their prosecution of the plaintiff in state court for contempt for nonpayment of support.

            SUPPLEMENTAL REPLY

            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 court 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 self-executing nature of the Thirteenth Amendment and 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 abstention doctrine set forth in Younger v. Harris, (1971) 401 U.S. 37, 27 L. Ed. 2d. 669, 91 S. Ct. 746.  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.

            As previously argued in this action, 42 U.S.C. §1983 provides that jurisdiction and the circumstances of this case fit within the exceptions to abstention that are also defined by Younger.  That being the case, 42 U.S.C. §1983 creates statutory exception to 28 U.S.C. §2283.  Mitchum v. Foster, (1972) 407 U.S. 225, 32 L. Ed. 2d. 669, 91 S. Ct. 746.

            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 the use of this obligation.  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”.[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 relatively wealthy person, who then owned the labor of the convicted vagrant.  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 both 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.  United States v. Ballek, (9th Cir. 1999) 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 it into the statute in plain English.  They did not.  Perhaps because they realized that it would effectively strip the protection of the Thirteenth Amendment from approximately 80% of the adult population, those who have children.

            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”.

            REQUEST FOR TEMPORARY RESTRAINING ORDER

            By coincidence, March 2, 2000 is the 133rd anniversary of the day President Andrew Johnson signed the Antipeonage Act into law.  It is also the day that the plaintiff is ordered to show cause why the relief sought by the defendants should not be granted.  If there is any recognition of any possibility of success on the merits, this Court should issue a Temporary Restraining Order under FRCP 65(b) prohibiting the defendant from prosecuting this Order for ten days.

            This case has been referenced to Magistrate Judge Ricardo Martinez.  Judge Martinez has the duty hear the Motion for Preliminary Injunction and to file a Report and Recommendation.  Under FRCP 72, either party shall have ten days to respond to such a Report and Recommendation.  After that the other party may respond to the response.  Then Judge Zilly will decide whether to adopt or modify the Report and Recommendation in a ruling upon the Motion.

            However, as of February 28. 2000, the plaintiff is unaware of any Report and Recommendation by Judge Martinez.  Immediate and irreparable loss and injury in the form of imprisonment of the plaintiff on March 2, 2000 is clearly apparent by specific facts shown by affidavit.  In this case the first Declaration of Roger W. Knight authenticating the Order to Show Cause attached therein.  The plaintiff intends to give notice to the defendants of this request by serving this pleading on Jeffrey Richard at the Fifth Floor of the King County Courthouse at Third and James, Seattle, Washington the same day he files this pleading with this Court.  Thus under FRCP 65(b) a Temporary Restraining Order is appropriate.

            A security under FRCP 65(c) is not necessary because the defendants would suffer no loss or injury by the simple granting of the Temporary Restraining Order.  They are free to prosecute other persons while the Order to Show Cause is continued.

            CONCLUSION

            For the reasons stated herein, the Temporary Restraining Order prohibiting prosecution of the Order to Show Cause against the plaintiff in King County Superior Court by the defendants should be granted before March 2, 2000.  The Motion for Preliminary Injunction should be granted in the proper time.

            RESPECTFULLY SUBMITTED, February 28, 2000.

 

                                                            ____________________________________

                                                            Roger W. Knight, plaintiff