Petition for Writ of Certiorari — Knight v. Maleng

Supreme Court, U.S.

FILED

001808 JUN - 4 2001

No. 00- OFPIOE OF THE CLERK

Supreme Court of the Anited States

Term October 2000

Roger W. Knight, petitioner

Vv.

Norm Maleng, King County Prosecuting

Attorney, and Calvin G. Rapada, Deputy

Prosecuting Attorney, respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER W. KNIGHT, pro se

c/o Law Office of Paul H. King

318 6th Avenue South, #117

Seattle, Washington 98104

206-624-3685 voice

206-343-0929 facsimile

rogerwknight@hotmail.com

Counsel for Petitioner

34 pF

I. Questions Presented For Review

A. Does Younger abstention doctrine apply to

require federal courts to abstain from a 42 U.S.C.

§1983 complaint that state court contempt

proceedings to enforce child support orders violate

the Antipeonage Act, 42 U.S.C. §1994, if state court

judges are incompetent to hear such a claim based

upon substantial personal interest in the outcome of

such question due to 18 U.S.C. §1581, the criminal

provision of the Antipeonage Act?

B. Does the Antipeonage Act, 42 U.S.C. §1994,

cover child support as a “debt or obligation, or

otherwise”?

C. Does practice by the courts of appeals of not

treating their unpublished decisions as setting

precedent exceed the grant of judicial power in

Article III of the Constitution? Anastasoff v. United

States, (8th Cir. 2000) 223 F. 3d. 898, found that it

does.

II. Table of Contents

I. Questions Presented For Review.......... i

li. ‘Tale OF COORG 6 si Ae ii

Hl. . Tavle al Ames nt. . eo See li

lV. Dactsion Dee 4.042.065. Ae l

V. Statement of Grounds For

Jurisdiction of this Court ............... l

VI. Laws Involved in this Case............. l

Vil. Statement of the Case is icc ee cs 6

VIII. Argument for the Allowance of the Writ. . . 7

A. Younger Abstention.............. 7

B. Antipeonage Act, Child Support... 11

C. #s@eheG..i.3-. 235 eee 14

IX. ConchWiee .. <3. 6.i5552 See 18

Ill. Table of Authorities

Table of Cases

Anastasoff v. United States,(8th Cir. 2000)

223 F. 36: ORR 6 vo vadicaesa ee i, 14, 15, 16, 17

Anastasoff v. United States,(8th Cir. 2000)

295: F. 3d. FOGG ok kc eea e ee 14

Calder v. Bull,(1798) 3 U.S. (3 Dall.) 386, |

ere Se eer er epee 9

Caminetti v. United States,(1917) 242 U.S. 470,

61 L. Bd. O62, 373 Ga BR ec oc eos 13

Clyatt v. United States,(1905) 197 U. S. 207,

49 L. Ed. 726, 15S. CX, SRR ass ck ee eaeeneee 9,10

Cohens v. Virginia,(1821) 19 U.S. (6 Wheat.)

204, $3 L. BG 23? nk ee coe eceneens 16

Connecticut Nat. Bank v. Germain,(1992)503

ili

U. S. 249, 117 L. Ed. 2d. 391, 112 S. Ct. 1146....... i2, 13

Consumer Product Safety Commission v.

GTE Sylvania,(1980) 447 U.S. 102,

64 L. Ed. 2d. 766, 100 S. Ce. 2081... 0.2.2... ce ee 11, t2

Dombrowski v. Pfister,(1965) 380 U. S. 479,

ee My Os ag OP iv Gk. HOOD cin va dda Sdocduabuhcte 7

_ Dowling v. United States,(1985) 473 U.S. 207,

OE Ga Ms: BU, Raley HOS Oe GO BEAT co dacs cdcccecsbaben 10

Estate of Cowart v. Niklos Drilling,(1992) 505

U. S. 469, 120 L. Ed. 2d. 379, 112 S. Ct. 2589.......... 13

Gibson v. Berryhill,(1973) 411 U.S. 564,

36 L. Ed. 2d. 488, 93 S. Ct. 1689............. 8,9, 11,14

Griffin v. Oceanic Contractors, Inc,(1976)

426 U.S. 88, 48 L. Ed. 2d. 495, 96 S. Ct. 1895 .......... 11

Harris Trust & Savings Bank v. Salomon

Smith Barney, Inc.,(2000) 530 U.S. 238,

fe ay | a) ee 12, 13

Hartford Underwriters Ins. Co. v. Union

Planters Bank, NA,,(2000) 530 U.S. 1,

ee & Bey | he Sy ere rrr 12, 13

Hughes Aircraft Co. v. Jacobson,(1999) 525

U.S. 432, 142 L. Ed. 2d. 881, 119°S. Ct. 755........... 13

James B. Distilling Co. v. Georgia,(1991) 501

U. S. 529, 115 L. Ed. 2d. 481, 111 S. Ct. 2439.......... 16

Knight v. Knight, (9th Cir. 1993)

Table 996 F. 2d. 1125, cert. den. 510 U.S. 979.......... 15

Marbury v. Madison,(1803) 5 U. S. (1 Cranch)

ee mee MMe Lae gd AGU Eie bb's 0's elev’ Hark 16

Mitchum v. Foster,(1972) 407 U. S. 225,

ee SP Oe ES £6 WEARS ek aH WE Ke wee 8

Moss v. Superior Court,(1998) 71 Cal. Rptr.

ED PO 0.8 Fd nd a wk how os alb we 0's 14, 15

Negronsott v. Samuels,(1972) 407 U. S. 225,

Se hes SE A PE I MADE Oe eG h cd dedecncenaas 1]

Ohio Civil Rights Commission v. Dayton

Christian Schools, Inc., (1986) 477 U.S.

a ge > By es es, nr 9

Payne v. Tennessee,(1991) 501 U.S. 808,

peepee & BF to. | See mer ees a 17

Peonage Cases,(D.C. Ala. 1903)

Ss Sct abs a cers eek de oe bteuaaed 10, 11

Sibbach v. Wilson & Co.,(1941) 312 U.S. 1,

ee hs Ss PG Oe Os ec > o'0 on 00S vido been e nb ae 18

Skelly v. Heidemann, (9th Cir. 1994)

Table 26 F. 3d. 132, cert. den. 513 U.S. 1024........... 15

Stanton v. Willson,Conn. 1803) 3 Day 37............. 13

Ternes v. Berchard, 9th Cir. No. 93-35913,

cut. Got: SUL Ga: Bee a 08 sos ee 2 Ske he vs Voss be 15

United States v. Ballek,(9th Cir. 1999)

170 F. 3d. 871, cert. den. 120 S. Ct. 318 ............ 13,15

United States v. Goldman,(8th Cir. 2000)

228 F. 3d. 942, cert. den. 121 S. Ct. 1149.............. 15

United States v. International Business Machines,(1996)

517 U.S. 843, 135 L. Ed. 2d. 124, 116 S. Ct. 1793 ....... 17

United States v. Kozminski,(1988) 487 U.S. 931,

101 L. Be. 2G. TOR, TOD DG Bose ss ch ecb eesics 10, 12

United States v. Romo-Romo,

CO COs: Fen) eer. ee Be os See is 12

United States v. Ron Pair Enterprises, Inc. (1989)

489 U.S. 235, 103 L. Ed. 2d. 290, 109 S. Ct. 1026....... 13

United States v. Sun-Diamond Growers,(1999)

526 U.S. 398, 143 L. Ed. 2d. 576, 119 S. Ct. 1402....... 12

United States v. Wiltberger,(1820) 18 U.S.

(> Wee.) Fee FS Bi es Oa 6 6 ooo oe kSS oe HS 10

Willy v. Coastal Corp.,(1992) 503 U.S. 131,

eee | & Fiore Coe. eee 16, 17, 18

iV

Younger v. Harris,(1971) 401 U.S. 37,

AE te A A ee a Pi a hh eek veeawean ee ae

Table of Laws

Constitution of the United States

EE io vet acess i, 1,2, 14, 16, 17, 18

Fite AMONG go ccc kak sseecaivisnie 18

Thirteenth Amendment............. 2, 10, 14, 15

Laws of the United States

IS UBL GIIe) eas (ashe i, 2, 3, 9, 10

po OR 2 ee: Sr ret ee

FOU GNSS? on hc ki eee 18

yogis Se ly | Perr rr rer mere ET ht 7,18

28 USE ERAS has ihe ae ee 3,8

GEG GA Bites fo isch eea i, 3,4, 7,8

aS Flt | | Cero reer re i, 4, 9, 10, 11

Laws of the State of Washington

CE Cad EE 8 bic ea is doen cawese ce 5

Wer Or RR og hvac ever eels 5,6

Wee Rs isd a rok ee ee 5, 6, 10

Rules of Court |

Eighth Circuit Rule 28(A)(i).............. 16, 17

Ninth Circuit Rule 36-3 ............ 4, 16, 17, 18

Other Authorities

Congressional Globe,

SOG ts I I REE i be tadaxesrents 13

www.geocities.com/rogerwknight/............ 14

Vv

IV. Decision Below

The memorandum below, 2001 WL 66261, is

not yet noted on a Table in the Federal Reporter.

V. Statement of Grounds For Jurisdiction

of this Court

The memorandum below was filed by the

court of appeals on January 25, 2001. The Petition

for Rehearing was denied on May 1, 2001. This

Petition for Writ of Certiorari is presented within 90

days of the denial of the Petition for Rehearing.

This Court has jurisdiction to review this

decision provided by 28 U.S.C. §1254(1).

VI. Laws Involved in this Case

Provisions of the United States Constitution

Article III Section 1

The judicial power of the United States, shall

be vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time

ordain and establish. The Judges, both of the

supreme and inferior Courts, shall hold their Offices

during good Behaviour, and shall, at stated Times,

receive for their Services, a Compensation, which

shall not be diminished during their Continuance in

Office.

Article III Section 2 clause |

The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties made, or

which shall be made, under their Authority; - to all

Cases affecting Ambassadors, other public

Ministers and Consuls; - to all Cases of admiralty

and maritime Jurisdiction; - to Controversies to

which the United States shall be a party; - to

Controversies between two or more States; -

between a State and Citizens of another State; -

between Citizens of different States, and between a

State, or the Citizens thereof, and foreign States,

Citizens or Subjects.

Thirteenth Article of Amendment

Section 1. Neither slavery nor involuntary

servitude, except as punishment for crime whereof

the party shall have been duly convicted, shall exist

in the United States, or anyplace subject to their

jurisdiction.

Section 2. Congress shall have power to

enforce this article by appropriate legislation.

Laws of the United States

18 U.S.C. §1581

(a) 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

2

condition of peonage, shall be fined under this title

or imprisoned not more than 10 years, or both.

(b) Whoever obstructs, or attempts to

obstruct, or in any way interferes with or prevents |

the enforcement of this section, shall be liable to the

penalties prescribed in subsection (a).

28 U.S.C. §2283

A court of the United States may not grant an

injunction to stay proceedings in a State court

except as expressly authorized by Act of Congress,

or where necessary in aid of its jurisdiction, or to

protect or effectuate its judgments.

42 U.S.C. §1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress, except that in any action brought against a

judicial officer for an act or omission taken in such

officer's judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated

or declaratory relief was unavailable. For the

purposes of this section, any Act of Congress

3

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

42 U.S.C. §1994

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.

Ninth Circuit Rule 36-3

Any disposition that is not an opinion or an

order designated for publication under Circuit Rule

36-5 shall not be regarded as precedent and shall not

be cited to or by this Court or any district court of

the Ninth Circuit, either in briefs, oral argument,

Opinions, memoranda, or orders, except when

relevant under the doctrines of law of the case, res

judicata, or collateral estoppel.

Revised Code of Washington

RCW 26.18.050

(1) If an obligor fails to comply with .a

support or spousal maintenance order, a petition or

motion may be filed without notice under RCW

26.18.040 to initiate a contempt action as provided

in chapter 7.21 RCW. If the court finds there is

reasonable cause to believe the obligor has failed to

comply with a support or spousal maintenance

order, the court may issue an order to show cause

requiring the obligor to appear at a certain time and

place for a hearing, at which time the obligor may

appear to show cause why the relief requested

should not be granted. A copy of the petition or

motion shall be served on the obligor along with the

order to show cause.

(2) Service of the order to show cause shall be

by personal service, or in the manner provided in the

civil rules of superior court or applicable statute.

(3) If the order to show cause served upon the

obligor included a warning that an arrest warrant

could be issued for failure to appear, the court may

issue a bench warrant for the arrest of the obligor if

the obligor fails to appear on the return date

provided in the order.

(4) If the obligor contends at the hearing that

he or she lacked the means to comply with the

support or spousal maintenance order, the obligor

shall establish that he or she exercised due diligence

5

in seeking employment, in conserving assets, or

otherwise in rendering himself or herself able to

comply with the court's order. |

(5) As provided in RCW 26.18.040, the court

retains continuing jurisdiction under this chapter

and may use a contempt action to enforce a support

Or maintenance order until the obligor satisfies all

duties of support, including arrearages, that accrued

pursuant to the support or maintenance order.

VII. Statement of the Case

On January 30, 2000 papers related to the

respondents’ prosecution of Roger W. Knight for

contempt for nonpayment of child support were

served upon Mr. Knight. It is the first time that Mr.

Knight has ever been prosecuted for contempt.

On February 1, 2000, Roger W. Knight filed

the Complaint in the District Court for the Western

District of Washington, No. C00-151Z.

On April 6, 2000 Mr. Knight filed his Motion

for Summary Judgment.

On April 21, 2000 Norm Maleng and Calvin

G. Rapada filed their King County Defendants’

Response to Motion for Summary Judgment. On

page | of this Response, is a request “that plaintiff's

motion for summary judgment be denied and that

this entire action be dismissed with prejudice.” This

was accepted by Mr. Knight and by the district court

as a cross motion for summary judgment.

6

On May 24, 2000 Magistrate Judge Martinez

filed his Report and Recommendation with respect

to the summary judgment motions. App. pp. 6-10

On July 7, 2000 Judge Zilly entered his Order

adopting the Report and Recommendation, denying

Mr. Knight’s Motion for Summary Judgment and

granting the respondents’ cross motion for summary

judgment dismissing the case. App. pp. 4-5. On

that same day, the district. court entered the

Judgment.

On July 17, 2000, Mr. Knight appealed to the

Ninth Circuit Court of Appeals, No. 00-35625. The

court of appeals had jurisdiction under 28 U.S.C.

§1291.

On January 25, 2001, the court of appeals

filed the memorandum affirming the district court’s

decision. App. pp. 2-3, 2001 WL 66261.

On May 1, 2001, Mr. Knight’s Petition for

Rehearing was denied. App. p. 1.

VIII. Argument for Allowance of the Writ

A. Younger Abstention Does Not Apply

When prosecutors act in criminal bad faith,

Dombrowski v. Pfister, (1965) 380 U.S. 479, 482,

14 L. Ed. 2d. 22, 85 S. Ct. 1116 found that federal

courts do not abstain from hearing a 42 U.S.C.

§1983 action arising from such action. Younger v.

Harris, (1971) 401 U.S. 37, 46-54, 27 L. Ed. 2d.

7

669, 91 S. Ct. 746 established the doctrine that

federal courts ordinarily abstain where there are on

going state court proceedings with some exceptions,

including where a plaintiff can show that he lacks

adequate remedy in the state’s courts.

Where an exception to Younger abstention

doctrine applies, Mitchum v. Foster, (1972) 407

U.S. 225, 32 L. Ed. 2d. 705, 92 S. Ct. 2151 found

that 42 U.S.C. §1983 creates a ry exception to

28 U.S.C. §2283.

Justice White wrote in Gibson v. Berryhill,

(1973) 411 U.S. 564, 577, 36 L. Ed. 2d. 488, 93 S.

Ct. 1689:

Younger v. Harris contemplates the

outright dismissal of the federal suit, and the

presentation of all claims, both state and

federal, to the state courts. Such a course

naturally presupposes the opportunity to raise

and have timely decided by a competent state

tribunal the federal issues involved. Here the

predicate for a Younger v. Harris dismissal

was lacking, for the appellees alleged, and the

District Court concluded, that the State Board

of Optometry was incompetent by reason of

bias to adjudicate the issues pending before it.

If the District Court's conclusion was correct

in this regard, it was also correct that it need

not defer to the Board.

The Optometry Board was biased because its

members each had a substantial personal interest in

the outcome of the case.

This finding is based upon a doctrine that was

ancient when Justice Chase listed in Calder v. Bull,

(1798) 3 U.S. (3 Dall.) 386, 388, 1 L. Ed. 648 “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.

The Gibson doctrine has not been limited in

subsequent cases, including Ohio Civil Rights

Commission v. Dayton Christian Schools, Inc.,

(1986) 477 U.S. 619, 629, 91 L. Ed. 2d. 512, 106 S.

Ct. 2718, to the exent that would affect Mr. Knight’s

claim to exception to Younger abstention.

Mr. Knight charges that contempt

proceedings to coerce employment to pay child

support violate the Antipeonage Act. The problem

in presenting this argument in state court is that any

violation of the civil right defined by 42 U.S.C.

§1994 is the crime defined by 18 U.S.C. §1581.

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.... 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

9

such holding.

“In the exercise of that power” refers to Section 2 of

the Thirteenth Amendment, “these sections

denouncing peonage” refers to the Antipeonage Act.

Federal crimes are defined by Congress, and

so long as Congress acts within its

Constitutional power in enacting criminal

statute, this Court must give effect to

Congress expressed intention concerning the

scope of conduct prohibited.

United States v. Kozminski, (1988) 487 U.S. 931,

939, 101 L. Ed. 2d. 788, 108 S. Ct. 2751 citing

Dowling v. United States (1985) 473 U.S. 207, 213-

4, 87 L. Ed. 2d. 152, 105 S. Ct. 3127 and United

States v. Wiltberger, —_ 18 U.S. (S Wheat.) 76,

95, $1. Sor.

However sanctioned by RCW 26.18.050, if

child support is included in the phrase “debt or

obligation, or otherwise” in 42 U.S.C. §1994, then

those who enforce such obligation with contempt

proceedings to coerce employment are liable for the

crime defined by 18 U.S.C. §158i. Judicial

immunity does not apply to criminal liability. The

Peonage Cases, (D.C. Ala. 1903) 123 F. 671, 684

found that a judicial official who corruptly exercised

his duties to unlawfully convict defendant of crime

and thus sell him into involuntary servitude for

benefit of another, could not escape liability for

peonage, because of the official character of his

acts. It matters not whether condition of peonage

10

exists by virtue of a local law or in violation of such

law, Jd. at 676. |

Due to the use of contempt proceedings in the

Washington courts to coerce employment of support

obligors, the judges of these courts have a

substantial personal interest in exposure to criminal

liability should Mr. Knight prevail. Mr. Knight set

forth specific facts in declarations under penalty of

perjury that the family court commissioners before

whom he may present his argument regularly hear

numerous contempt cases involving child support.

This fact was not controverted or denied by the

respondents. The judges and commissioners in the

Washington courts are thus not competent to

adjudicate the claim and Mr. Knight lacks adequate

remedy in the state courts.

This case is clearly within the Gibson

exception to Younger abstention.

B. Antipeonage Act Covers Child Support

This is an issue of statutory construction: Is

child support included in the phrase “debt or

obligation, or otherwise” in 42 U.S.C. §1994? In

the briefing before the district court and the court of

appeals, Mr. Knight cited Negronsott v. Samuels,

(1993) 507 U.S. 99, 104, 122 L. Ed. 2d. 457, 113 S.

Ct. 1119; Griffin v. Oceanic Contractors, Inc.,

(1982) 458 U.S. 564, 570, 73 L. Ed. 2d. 973, 102 S.

Ct. 3245; and Consumer Product Safety

11

Commission v. GTE Sylvania, (1980) 447 U.S. 102,

108, 64 L. Ed. 2d. 766, 100 S. Ct. 2051.

These rules of statutory construction were

applied in United States v. Romo-Romo, (9th Cir.

2001) 246 F. 3d. 1272, 1274-5 citing Hartford

Underwriters Ins. Co. v. Union Planters Bank, NA,

(2000) 530 U.S. 1, 147 L. Ed. 2d. 1, 120 S. Ct.

1942, 1947; United States v. Sun-Diamond

Growers, (1999) 526 U.S. 398, 407, 143 L. Ed. 2d.

576, 119 S. Ct. 1402; and Harris Trust & Savings

Bank v. Salomon Smith Barney, Inc., (2000) 530

U.S. 238, 147 L. Ed. 2d. 187, 120 S. Ct. 2180, 2191.

In Sun-Diamond Growers at 526 U.S. 406-8,

Justice Scalia found that statutory definition of

“illegal gratuity” requires that a gift made to a

public official must be linked to a specific “official

act” within the meaning of the statute. This is an

affirmation of Kozminski, supra with respect to

criminal statutes. It follows that these same rules of

statutory construction apply to 18 U.S.C. §1581.

In Hartford Underwriters at 120 S. Ct. 1947,

Justice Scalia wrote:

. . . we begin with the understanding that

Congress “says in a statute what it means and

means in a statute what it says there,”

Connecticut Nat. Bank v. Germain, 503 U.S.

249, 254, 112 S. Ct. 1146, 117 L. Ed. 2d. 391

(1992). As we have previously noted...

when “the statute’s language is plain, ‘the

sole function of the courts’” - at least where

12

the disposition required by the text is not

absurd - “is to enforce it according to its

terms.”” United States v. Ron Pair

Enterprises, Inc., 489 U.S. 235, 241, 109 S.

Ct. 1026, 103 L. Ed. 2d. 290 (1989) (quoting

Caminetti v. United States, 242 U.S. 470, 485,

37 S. Ct. 192, 61 L. Ed. 442 (1917)).

In Harris Trust at 120 §. Ct. 2191, Justice Scalia

quoted Hughes Aircraft Co. v. Jacobson, (1999) 525

U.S. 432, 438, 142 L. Ed. 2d. 881, 119 S. Ct. 755,

which in turn quoted Estate of Cowart v. Nicklos

Drilling, (1992) 505 U.S. 469, 475, 120 L. Ed. 2d.

379, 112 S. Ct. 2589 that in statutory construction,

analysis begins with language of statute and quoted

Connecticut Nat. Bank at 503 U.S. 254 “where the

Statutory language provides clear answer, it ends

there as well”.

By that rule, “debt or obligation, or

otherwise” includes child support. If that is not a

clear answer, Senator Lane in remarks on the

Peonage Bill discussed the effect of New Mexican

peonage on the “peon with a family to support”.

Congressional Globe, 39th Cong. 2d. Sess. p. 1571.

The 1867 Congress intended to prohibit coercion of

labor in liquidation of family support obligations.

Congress was aware of such obligations and their

enforcement in cases similar to Stanton v. Willson,

(Conn. 1808) 3 Day 37, cited in United States v.

Ballek, (9th Cir. 1999) 170 F. 3d. 871, 874 n. 2, cert.

den., 120 S. Ct. 318.

13

Therefore, the California Supreme Court’s

findings in Moss v. Superior Court, (1998) 71 Cal.

Rptr. 2d. 215, 223, 950 P. 2d. 59, 67 that legally

requiring employment to enforce child support is

not peonage is contrary to these above cited

decisions regarding statutory construction.

At www.geocities.com/rogerwknight/ is an

explanation of the history behind the Antipeonage

Act and an argument that if the Thirteenth

Amendment does not protect noncustodial parents,

it does not protect any parent.

C. Practice of Not Treating Unpublished

Opinions as Precedent Exceeds Judicial

Power Granted by Article III

The court of appeals deviated from Gibson,

supra without concern for creating precedent.

Anastasoff v. United States, (8th Cir. 2000)

223 F. 3d. 898 was released on August 22, 2000.

Unaware of this decision, Mr. Knight filed his Brief

of Appellant. On September 14, 2000, two weeks

before the Brief of Appellee was due, Mr. Knight

wrote a letter to Jeffrey Richard informing him that

he intended to plead Anastasoff in his Reply Brief.

The respondents elected not to address Anastasoff

and Mr. Knight plead it in his Reply Brief.

Anastasoff was vacated as moot on rehearing en

banc, (8th Cir. 2000) 235 F. 3d. 1054, the federal

government refunded the disputed tax. However,

14

United States v. Goldman, (8th Cir. 2000) 228 F. 3d.

942, 944, cert. den. 121 S. Ct. 1149 found that

Anastasoff required unpublished decisions to be

followed as precedent. This is a clear split with the

practice of the other circuits.

Mr. Knight plead Anastasoff in the court of

appeals because several previous cases alleging

child support enforcement to violate the

Antipeonage Act resulted in unpublished decisions

that did not establish precedent. Some of these

unpublished decisions were absurd: Ternes v.

Berchard, 9th Cir. No. 93-35913, cert. den., 511

U.S. 1127, was dismissed on summary affirmance

because “the questions on which the cause depends

are so insubstantial as not need further argument.”

The California courts did not agree with this finding

in Moss, supra. As to the. Thirteenth Amendment,

also raised by Mr. Ternes, Ballek, supra overruled

that. Skelly v. Heidemann, (9th Cir. 1994), Table,

26 F. 3d. 132, cert. den., 513 U.S. 1024, found that

“There was no requirement to work.” This again is

overruled by Bailek.

Mr. Knight himself challenged the threat of

contempt proceedings before the court of appeals,

Knight v. Knight, (9th Cir. 1993) Table 996 F. 2d.

1125, cert. den., 510 U.S. 979. This previous case

started about 9 years before the present case and at

that time there was no contempt prosecution against

Mr. Knight. Therefore, neither res judicata nor

collateral estoppel apply to this present litigation

15

because the facts are different.

The consequence of 9th Circuit Rule 36-3 and

similar rules in the other circuits is that it frees them

from the discipline of precedent. This is what

Anastasoff found objectionable. These rules allow

an appellate court to make a rule of law that applies

only to the parties in a case. The appellate courts

are free to deviate from precedent without setting

precedent. Thus no consistent application of the

law. The appellate courts are also free to avoid an

issue by ruling on it without establishing precedent.

Parties therefore cannot rely upon precedent.

“Inherent in every judicial decision is a

declaration and interpretation of a general principle

or rule of law.” Anastasoff at 223 F. 3d. 899 citing

Marbury v. Madison, (1803) 5 U.S. (1 Cranch) 137,

177-8, 2 L. Ed. 60. “This declaration of law is

authoritative to the extent necessary for the

decision, and must be applied in subsequent cases to

similarly situated parties.” Anastasoff at 223 F. 3d.

900 citing James B. Distilling Co. v. Georgia,

(1991) 501 U.S. 529, 544, 115 L. Ed. 2d. 481, 111

S. Ct. 2439 and Cohens v. Virginia, (1821) 19 U.S.

(6 Wheat.) 264, 399, 5 L. Ed. 257. Anastasoff thus

found 8th Circuit Rule 28A(i), which is similar to

9th Circuit Rule 36-3, to expand the judicial power

beyond the grant of Article III.

Federal courts are not free to extend judicial

power beyond the grant of Article III, Anastasoff at

223 F. 3d. 905 citing Willy v. Coastal Corp., (1992)

16

503 U.S. 131, 135, 117 L. Ed. 2d. 280, 112 S. Ct.

1076. Willy found that rules adopted by the courts

can only apply if they do not expand judicial

authority beyond the grant of Article III. Anastasoff

at 223 F. 3d. 905 further found:

Rule 28A(i) allows us to depart from the law

set out in such prior decisions, without any

reason to differentiate the cases. This

discretion is completely inconsistent with the

doctrine of precedent; even in constitutional

cases, courts “have always required a

departure from precedent to be supported by

some ‘special justification” United States v.

International Business Machines Corp., 517

U.S. 843, 856, 116 S. Ct. 1793, 135 L. Ed. 2d

124 (1996) quoting Payne v. Tennessee, 501

U.S. 808, 842, 111 S. Ct. 2597, 115 L. Ed. 2d

720 (1991) (Souter, J., concurring).

In JBM, at 517 U.S. 856, Justice Thomas wrote:

. . we frequently have declined to overrule

cases in appropriate circumstances because

stere decises “promotes the evenhanded,

predictable, and consistent development of

legal principles, fosters reliance on judicial

decisions, and contributes to the actual and

percieved integrity of the judicial process.”

quoting Payne at 501 U.S. 827.

9th Circuit Rule 36-3 extends the judicial

power beyond the grant of Article III and thereby

denies the parties due process of law required in

17

federal courts by the Fifth Amendment. Reliance

upon the grants and limitations of judicial power in

Article III is a necessary part of the right to due

"process.

While Congress granted this Court discretion

upon writ of certiorari as to whether to exercise its

appellate jurisdiction in cases out of the courts of

appeals, 28 U.S.C. §1254 and out of the state

supreme courts, 28 U.S.C. §1257, it did not grant

the same discretion to the courts of appeals with 28

U.S.C. §1291. Therefore, the use of 9th Circuit

Rule 36-3 to avoid creating a _ precedent

impermissibly extends or restricts jurisdiction

conferred by statute. Willy at 503 U.S. 135 citing

Sibbach v. Wilson & Co., (1941) 312 U.S. 1, 10, 85

L. Ed. 479, 61 S. Ct. 422.

IX. Conclusion

For the reasons stated herein, this Petition for Writ

of Certiorari should be granted.

Respectfully submitted,

ROGER W. KNIGHT, pro se

c/o The Law Office of Paul H. King

318 6th Avenue South, #117

Seattle, Washington 98104

206-624-3685 voice

206-343-0929 facsimile

rogerwknight@hotmail.com

18

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER W. KNIGHT, )

Plaintiff-Appellant, ) No. 00-35625

v. ) D.C.4#CV-00-151-TSZ

NORM MALENG, King __) Western Washington

County Prosecuting ) (Seattle)

Attorney; et al., )

) ORDER

Defendants-Appellees.)

Before: BEEZER, O’SCANNLAIN and

KLEINFELD, Circuit Judges.

Appellant’s petition for panel rehearing is

denied. No further filings will be accepted in this

closed appeal.

App. - 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER W. KNIGHT, )

Plaintiff-Appellant, ) No. 00-35625

V. ) D.C.#CV-00-151-TSZ

‘NORM MALENG,King __) Western Washington

County Prosecuting ) (Seattle)

Attorney; CALVIN G. )

RAPADA. Deputy ) MEMORANDUM!

Prosecuting Attorney, )

Defendants-Appellees. )

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, District Judge, Presiding

Submitted January 8, 20017

Before: BEEZER, O’SCANNLAIN, and

KLEINFELD, Circuit Judges.

This disposition is not appropriate for publication and

may not be cited to or by the courts of this Circuit except as

may be provided by 9th Cir. R. 36-3.

q The panel unanimously finds this case suitable for

decision without oral argument. See Fed. R. App. P.

34(a)(2). Accordingly, appellant’s request for oral argument

is denied.

App. - 2

Roger W. Knight appeals pro se the district

court’s summary judgment for defendants

dismissing his 42 U.S.C. §1983 action, which

sought to enjoin a state court contempt proceeding

to enforce a court order the Knight make child

support payments. We have jurisdiction pursuant to

28 U.S.C. §1291. We review de novo a denial of an

injunction based on Younger v. Harris, 401 U.S. 37

(1971). See Kenneally v. Lungren, 967 F2d 329,

331 (9th Cir. 1992). We affirm.

The district court properly dismissed Knight’s

action pursuant to the Younger abstention doctrine

because the state court proceedings were ongoing,

implicated important state interests, and provided an

adequate opportunity for Knight to litigate his

federal claims. See Delta Dental Plan of Cal., Inc.

v. Mendoza, 139 F.3d 1289, 1294 (9th Cir. 1998).

Because the district court properly dismissed the

action pursuant to the Younger abstention doctrine,

we do not address Knight’s remaining contentions

concerning the district court’s alternative grounds

for dismissal. See id.

AFFIRMED.

App. - 3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ROGER W. KNIGHT, )

Plaintiff, ) CASE NO. C00-151Z

V. )

NORM MALENG, King )

County Prosecuting )

Attorney; CALVIN G. )

RAPADA. Deputy )

Prosecuting Attorney, )

Defendants-Appellees. )

The Court, having reviewed plaintiff's

Motion for Summary Judgment the defendant’s

response, the Report and Recommendation of

Magistrate Judge Ricardo S. Martinez, and the

balance of the record, does hereby find and

ORDER:

(1) The Report and Recommendation is

approved and adopted;

(2) Plaintiff's Motion for Summary judgment

is DENIED;

(3) Defendant’s cross-motion for Summary

judgment is GRANTED, and the complaint and

action are DISMISSED; and,

(3) The Clerk is directed to send copies of

this Order to plaintiff, to counsel of record, and to

_ the Hon. Ricardo S. Martinez.

App.- 4

DATED this 6th day of July, 2000. -

/s/

THOMAS S. ZILLY .

UNITED STATES DISTRICT JUDGE

App.- 5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ROGER W. KNIGHT, )

Plaintiff, ) CASE NO. C00-151Z

V. )

NORM MALENG, King ) REPORT AND

County Prosecuting ) RECOMMENDATION

Attorney; CALVIN G. )

RAPADA. Deputy )

Prosecuting Attorney, )

Defendants-Appellees.)

Plaintiff Roger W. Knight, appearing pro se

filed this civil rights complaint pursuant to 42

U.S.C. §1983, alleging that his constitutional rights

are being violated by defendants in their efforts to

enforce a child support order. Together with the

complaint, plaintiff filed a motion for a preliminary

injunction, seeking to enjoin the state court from

holding a contempt hearing. Plaintiff's motion was

denied, the contempt hearing went forward, and

plaintiff was held in contempt for his willful and

intentional refusal obey the lawful child support

orders of the state court. See, Dkt. # 21, attachment.

Now plaintiff has moved for summary judgment,

contending that the use of contempt proceedings to

enforce child support orders violates the Anti-

Peonage Act, 42 U.S.C. §1994. Defendants have

App.- 6

opposed the motion, and ask that the action be

dismissed without prejudice. Although not formally

noted as a cross-motion for summary judgment,

defendants’ response has been acknowledged as

such by plaintiff in his reply, and should be so

treated by the court. Thus, after careful

consideration of the record and the parties’

memoranda, as well as plaintiff's litigation history, I

conclude that plaintiff's motion for summary

judgment should be denied, defendants’ cross-

motion should be granted, and the complaint and

action dismissed.

DISCUSSION

As noted in the prior Report and

Recommendation (Dkt. # 17), this case represents

yet 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, C929-1659R, affirmed

33 F. 3d 58 (9th Cir. 1994); Knight v. United States,

C93-13WD, vacated and remanded, 12 F. 3d 1107

(9th Cir. 1993). The argument advanced by plaintiff

here, namely that the state’s use of contempt

proceedings to enforce child support obligations

violates the Thirteenth Amendment and the Anti-

Peonage Act, 42 U.S.C. §1994, was summarily

rejected by the Ninth Circuit Court of Appeals in

one of plaintiff's prior cases. Knight, 996 F. 2d

1225 (unpublished disposition). As the court there

stated, “Contempt proceedings for voluntary failure

App.- 7

to comply with court orders are a proper exercise of

state power.” Knight, 996 F. 2d at 1225, citing

Hicks v. Feiock, 485 U.S. 624 (1987). The state

statute specifies that “an obligor will not be held in

contempt if he lacks the means to comply with the

support order and has exercised due diligence trying

to comply.” Id. The state court’s order makes it

clear that plaintiff was held in contempt not for

failing to pay child support, but for his intentional

refusal to comply with a court order. Plaintiff could

have avoided the contempt by a showing of an

effort to comply with the order, but he declined to

do so. Dkt. # 21, attachment. The court specifically

found that plaintiff had the ability to comply with

the support order. Id. Plaintiff's confinement on

contempt charges thus does not amount to servitude

for debt as contemplated by the Anti-Peonage Act,

42 U.S.C. §1994.

As a further basis for denial of plaintiff's

motion and dismissal of the case, the court notes

that this action presents a classic case for

application of the abstention doctrine. Younger v.

Harris, 401 U.S. 37 (1971). All of the necessary

elements are present: (1) an ongoing state

proceeding; (2) implication of important state

interests; and (3) an adequate opportunity for the

plaintiff to raise his federal questions in the state

proceedings. Fresh International Corporation v.

Agricultural Labor Relations Board, 805 F. 2d

1353, 1357-58 (9th Cir. 1986) (citing Middlesex

App.- 8

County Ethics Commission v. Garden State Bar

Association, 457 U.S. 423, 432 (1982). Abstention

is particularly appropriate in cases concerning

domestic relations, where the primary issue

concerns the status of parent,and child. Thompson

v. Thompson, 798 F. 2d 1547, 1558 (9th Cir. 1986);

affd, 484 U.S. 174 (1988); citing Buchold v. Ortiz,

401 F. 2d 371, 372 (9th Cir. 1968). “[T]he whole

subject of the domestic relations of husband and

wife, parent and child, belongs to the laws of the

States, and not to the laws of the United States.”

Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383

(1930). Even when a federal question is presented,

federal courts decline to hear disputes which would

deeply involve them in adjudicating domestic

matters. Thompson, 798 F. 2d at 1558. The strong

state interest in domestic relations matters, the

superior competence of state courts in settling

family disputes, and the possibility of incompatible

federal and state court decrees all make federal

abstention in custody and support cases appropriate.

Robbins _v. Robb, 638 F. Supp. 1320, 1323 (D.

Montana 1986); citing Peterson v. Babbitt, 708 F.

2d 465, 466 (9th Cir. 1983).

Accordingly, plaintiff's Motion for Summary

Judgment should be denied. Defendants’ cross-

motion, raised in the response to plaintiff's motion,

should be granted, and the complaint and action

dismissed. Proposed forms of Order and Judgment

reflecting this recommendation are attached.

App.- 9

DATED this 23, day of May, 2000.

/s/

RICARDO S. MARTINEZ

United States Magistrate Judge

App. - 10