Comenout et al V Pierce County Superior Court et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Wash.August 4, 2016

1 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Honorable Judge Robert J. Bryan UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ROBERT REGINALD COMENOUT SR., et al., Plaintiffs, v. PIERCE COUNTY SUPERIOR COURT, et al., Defendants. NO. 3:16-CV-05464-RJB JUDICIAL AND PROSECUTORIAL DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(1) AND (b)(6)) NOTE FOR MOTION CALENDAR: August 26, 2016 I. RELIEF REQUESTED Plaintiffs broadly challenge the State of Washington’s tax laws regarding the sale of cigarettes on non-reservation Indian allotments. Specifically as to Defendants Pierce County Superior Court and Judges John and Jane Doe 1 through 10 (the “Judicial Defendants”) and Assistant Attorneys General Joshua Choate and Michael Pellicciotti (the “Prosecutorial Defendants”), Plaintiffs seek declaratory and injunctive relief stating that the State of Washington was and is without jurisdiction to criminally prosecute or convict Plaintiffs for tax-related crimes occurring on allotted land existing outside the boundaries of established Indian reservations. They also seek the Court’s review of an earlier Washington Supreme Court decision upon which the United States Supreme Court has already denied certiorari. The Judicial and Prosecutorial Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 1 of 21 2 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants request that all of the claims against them be dismissed with prejudice based on Plaintiffs’ failure to state a claim upon which relief may be granted, Younger abstention, the Anti- Injunction Act, the Rooker-Feldman doctrine, res judicata, collateral estoppel, ripeness, and the existence of an adequate remedy at law. See Fed. R. Civ. P. 12(b)(1) and (6). 1 II. STATEMENT OF FACTS As do most states, Washington imposes a cigarette excise tax on the sale, use, consumption, possession, and distribution of cigarettes in the state. See Wash. Rev. Code § 82.24.020. The State’s retail sales tax is also imposed on consumers purchasing cigarettes. Wash. Rev. Code § 82.08.020. The Plaintiffs, the Comenouts, operated a retail business selling various tobacco products on allotted Indian land, including cigarettes. Complaint ¶ 38. This suit is another installment in a series of lawsuits by the Comenout family convenience store to resist Washington State cigarette taxation laws. See Complaint ¶¶ 47-56 (discussing recent State court cases); see also, e.g., Comenout v. Washington, 722 F.2d 574, 576, 577 n.2 (1983) (discussing 1977 and 1981 confiscations at Comenout’s store as part of a “recent installment in an ongoing struggle by Edward Comenout to resist payment of state cigarette taxes”); Matheson v. Kinnear, 393 F. Supp. 1025, 1026 (1974) (rejecting Edward Comenout’s request for immunization from cigarette excise taxes for his convenience store). 2 Most recently, in May 2016, four of the Plaintiffs entered Alford guilty pleas and were sentenced in Pierce County Superior Court for charges related to violations of Washington’s cigarette tax laws. Complaint ¶ 26. Their convictions are currently pending on appeal with the Washington State Court of Appeals. Id. Plaintiffs’ Complaint as it relates to the Judicial and 1 Plaintiffs name the Judicial and Prosecutorial Defendants in their official capacities only and do not seek damages from them. Complaint ¶¶ 27, 29, 32. 2 A District Court may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue. United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007); Burbank–Glendale–Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998). Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 2 of 21 3 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Prosecutorial Defendants seeks to undo these convictions and prevent future prosecutions because, according to Plaintiffs, the State lacked jurisdiction under federal preemption principles to prosecute and convict Indians who violate tax laws on allotted land. Complaint ¶¶ 3, 7, 8, 27, 29, 32, 36, 47, 50, 60-61, 63, 64. Plaintiffs also seek to invalidate an earlier Washington Supreme Court case which held that the state courts had jurisdiction to convict Plaintiffs for prior violations of Washington State cigarette tax laws on allotted land. Complaint ¶¶ 51-55 (citing State v. Comenout, 173 Wash. 2d 235, 267 P.3d 355 (2011), cert. denied, 132 S. Ct. 2402 (2012)). III. AUTHORITY As set forth below, Plaintiffs fail to state a claim on the merits of their Complaint against the Judicial and Prosecutorial Defendants. Moreover, the relief requested is barred by statutory and common law doctrines that delay or preclude federal intervention into state court proceedings. A. Legal Standards. This Court should dismiss the Complaint if the Court lacks jurisdiction over the subject matter of the dispute, or if Plaintiffs fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(1), (6). In considering either basis for dismissal, the Court must accept as true all material factual allegations in the complaint. Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983). In deciding whether a complaint states a claim, the Court must additionally draw all reasonable inferences in favor of the plaintiff. Id. at 1300. The Court is not, however, required to accept as true Plaintiffs’ legal or conclusory allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, when the question to be considered is one involving the jurisdiction of a federal court, the plaintiff must affirmatively establish jurisdiction, and that showing is not made by drawing inferences from the pleadings. Norton v. Larney, 266 U.S. 511, 515 (1925); Shipping Financial Services Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 3 of 21 4 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 B. The Complaint Fails To State A Claim Because Washington’s Criminal Jurisdiction Is Authorized By Federal And State Law. At the outset, Plaintiffs fail to state a claim upon which relief can be granted. Plaintiffs’ claims against the Judicial and Prosecutorial Defendants boil down to an assertion that Washington State lacks criminal jurisdiction over the Comenouts for events occurring on allotment property existing outside the borders of an established Indian reservation. This claim is defeated by Public Law 83-280, Washington Revised Code § 37.12.010, and the Supreme Court’s decision in Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463 (1979). 1. Public Law 280 and Washington Revised Code § 37.12.010 provide the State with criminal jurisdiction over the non-reservation allotment at issue in this case. While criminal offenses by or against Indians in Indian Country are generally subject only to federal or tribal laws, Congress may “‘expressly provide[] that State laws shall apply.’” Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. at 470-71 (quoting McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 170-71 (1973)). Through Public Law 280, Congress gave States “an option to assume jurisdiction over criminal offenses … in Indian Country without consulting with or securing the consent of the tribes that would be effected.” Id. at 472-74 (citing Act of Aug. 15, 1953, 67 Stat. 588-590 (Pub. L. 83-280) (codified in 18 U.S.C. § 1162; 28 U.S. § 1360, and 25 U.S.C. §§ 1321-1326)). Specifically as it applies to this case, Section 6 of the Act granted states permission to “amend ‘where necessary’ their state constitutions or existing statutes to remove any legal impediment to the assumption of jurisdiction under the Act.” Id. (quoting Pub. L. 83-280 § 6 (codified in 25 U.S.C. § 1324)). And Section 7 authorized states to assume jurisdiction with respect to criminal offenses “at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 4 of 21 5 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 State to assumption thereof.” Id. (quoting Pub. L. 83-280 § 7 (repealed by PL 90-284 § 403(b), 82 Stat. 79 (1968) (codified in 25 U.S.C. § 1323(b))). 3 In 1963, pursuant to Public Law 83-280, the Washington Legislature passed a law asserting certain state jurisdiction over Indian lands within the State, regardless of whether the affected tribe gave its consent. 1963 Wash. Sess. Laws, ch. 36, § 1 (codified as Wash. Rev. Code § 37.12.010). 4 State law now provides that Washington has full criminal jurisdiction over Indians and Indian territory, reservations, country, and lands within except as against “Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States….” Wash. Rev. Code § 37.12.010. The Supreme Court specifically upheld this law in Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. at 484, 501 (“In enacting Chapter 36, Washington 3 Although § 7 of Public Law 280 was repealed in 1968, the law repealing § 7 provided any cessions of jurisdiction made prior to its repeal were not affected. (Pub. L. 90–284, title IV, § 403, Apr. 11, 1968, 82 Stat. 79 (codified in 25 U.S.C. § 1323(b))). Washington’s assumption of criminal jurisdiction pursuant to Public Law 280 occurred in 1963, and thus was unaffected by the 1968 repeal of § 7. 1963 Wash. Sess. Laws, ch. 36, § 1 (codified as Wash. Rev. Code § 37.12.010). 4 The full text of Wash. Rev. Code § 37.12.010 provides: The state of Washington hereby obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands within this state in accordance with the consent of the United States given by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of RCW 37.12.021 have been invoked, except for the following: (1) Compulsory school attendance; (2) Public assistance; (3) Domestic relations; (4) Mental illness; (5) Juvenile delinquency; (6) Adoption proceedings; (7) Dependent children; and (8) Operation of motor vehicles upon the public streets, alleys, roads and highways: PROVIDED FURTHER, That Indian tribes that petitioned for, were granted and became subject to state jurisdiction pursuant to this chapter on or before March 13, 1963 shall remain subject to state civil and criminal jurisdiction as if *chapter 36, Laws of 1963 had not been enacted. Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 5 of 21 6 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 was legislating under explicit authority granted by Congress in the exercise of that federal power.”). The Comenouts allege, contrary to the plain language of Wash. Rev. Code § 37.12.010, that the Washington statute excepts all Indian allotments, not just those existing on established Indian reservations. Complaint ¶ 8. This contention of Washington law has already been decided and rejected by at least two Washington Supreme Court decisions. Comenout, 173 Wash. 2d at 238-40 (interpreting Wash. Rev. Code § 37.12.010 to have “asserted full criminal jurisdiction, with a few exceptions not relevant to this case, over all Indian Country outside established Indian reservations”); State v. Cooper, 130 Wash. 2d 770, 776, 928 P.2d 406 (1996) (concluding that “[a]llotted or trust lands are not excluded from full nonconsensual state jurisdiction unless they are ‘within an established Indian reservation’” (quoting Wash. Rev. Code § 37.12.010)). The Washington Supreme Court’s interpretation of Washington state law is binding on this Court. Garmon v. County of Los Angeles, __F.3d __, 2016 WL 3606745, at *7 (9th Cir. 2016). Pursuant to Public Law 280 and Washington Revised Code § 37.12.010, the State has criminal jurisdiction over all crimes occurring on non-reservation allotment property. 2. The 2012 State Law Authorizing a New Method for Retrocession Has No Impact on this Case. The Comenouts also argue that even if Public Law 280 and Washington Revised Code § 37.12.010 previously authorized the State to assume criminal jurisdiction over non-reservation allotments, a 2012 state law authorizing the State to retrocede criminal jurisdiction back to the federal government eliminated the State’s criminal jurisdiction. See Complaint ¶ 8 (“[T]he state cases are not binding on this Court, …and are superseded by prospective changes in the state law, Wash. Rev. Code §§ 37.12.16-.180….”), ¶ 50. The Comenouts are incorrect. As a starting point, retrocession under the 2012 law does not happen automatically, as Plaintiffs appear to assume. Under Washington Revised Code § 37.12.160, the process begins with a request from the tribe to the governor. The governor considers it and issues a Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 6 of 21 7 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 proclamation with his or her decision. Retrocession is complete when the U.S. Secretary of the Interior accepts it under 25 U.S.C. § 1323(a) and publishes a notice in the Federal Register. See Executive Order 11435, 33 Fed. Reg. 17339 (Nov. 23, 1968) (set out as a note to 25 U.S.C. § 1323) (upon accepting retrocession, U.S. Secretary of the Interior must publish a notice in the Federal Register). The Comenouts appear to argue that the allotment property at issue is either Yakama or Tulalip Indian Country. Complaint ¶ 50. Although the truthfulness of their assertion is questionable, even assuming it is true, the State has not retroceded criminal jurisdiction over non-reservation allotments with respect to either tribe under Washington Revised Code § 37.12.160. To date, in fact, the Yakama Nation is the only tribe that has submitted a request under the 2012 law. The resulting retrocession from that request specifically excludes Indian Country existing outside the bounds of the Yakama Reservation. Washington State Governor Proclamation 14-1 ¶ 5 (“Outside the exterior boundaries of the Yakama Reservation, the State does not retrocede jurisdiction. The State shall retain all jurisdiction it assumed pursuant to RCW 37.12.010 in 1963 over the Yakama Nation’s Indian Country outside the Yakama Reservation.”).5 The Tulalip tribe has not submitted any request under Washington Revised Code § 37.12.160. Therefore, the current jurisdictional situation within Tulalip Indian Country is the status quo under RCW 37.12.010. 6 5 A copy of the signed, sealed proclamation is attached to this Motion as Appendix 1. The Proclamation is also available online: http://www.governor.wa.gov/sites/default/files/proclamations/proc_14-01.pdf (last visited Aug. 1, 2016). 6 Within the Indian Country of the Tulalip Tribes, the State once had full Public Law 280 jurisdiction over criminal offenses by or against Indians under RCW 37.12.021. Pursuant to a 1995 law (1995 Wash. Sess. Laws, ch. 202, codified at Wash. Rev. Code §§ 37.12.100-.120), the Tulalip Tribes requested, and the governor granted, partial retrocession of state criminal jurisdiction. Pursuant to 25 U.S.C. § 1323(a), the U.S. Secretary of the Interior accepted the partial retrocession in 2000. 65 Fed. Reg. 75948 (Dec. 5, 2000); 65 Fed. Reg. 77905 (Dec. 13, 2000). What the Comenouts fail to appreciate is that retrocession was only partial. After retrocession, the State continues to have jurisdiction under Washington Revised Code § 37.12.010 within Tulalip Indian Country. See Wash. Rev. Code § 37.12.120 (“However, the state of Washington shall retain jurisdiction as provided in RCW 37.12.010.”); State v. Abrahamson, 157 Wash. App. 672, 674, 238 P.3d 533 (2010). Under Wash. Rev. Code § 37.12.010, the State continues to have full criminal jurisdiction over offenses committed by or Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 7 of 21 8 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In summary, Washington law, as explicitly authorized by federal law and upheld by the United States Supreme Court, provides that the State may assert criminal jurisdiction over Indians in Indian Country outside of established Indian reservations. It is undisputed that the allotment at issue in this case exists outside of an established Indian reservation, Complaint ¶ 38, and, as explained above, the 2012 law authorizing a process for retrocession has no relevance to the Comenouts’ lawsuit. Accordingly, the Comenouts’ claims against the Prosecutorial and Judicial Defendants, which are entirely based on Plaintiffs’ contention that the State lacks criminal jurisdiction over them, should be dismissed for failure to state a claim. FRCP 12(b)(6). C. The Anti-Injunction Act, Younger Abstention, And Comity And Equity Principles Preclude Immediate District Court Intervention Into The Pending State Court Proceedings. Plaintiffs’ attempts to have this Court intervene in their state court criminal proceedings should also be rejected under the Anti-Injunction Act, Younger Abstention, and the underlying principles of comity and equity. 1. The Anti-Injunction Act generally prohibits federal court injunctions against state court proceedings. The Anti-Injunction Act, 28 U.S.C. § 2283, is an “absolute prohibition against any injunction of any state-court proceedings, unless the injunction falls within one of the three specifically defined exceptions in the Act.” Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630 (1977). In particular, a court of the United States may not grant an injunction to stay proceedings in a state court except (1) as expressly authorized by an act of Congress, or (2) where necessary in aid of its jurisdiction, or (3) to protect or effectuate its judgments. 28 U.S.C. §2283. “‘[A]ny doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy.’” Vendo Co., 433 U.S. at 630 (quoting Atlantic against Indians within off-reservation allotments such as the Comenouts’. State v. Comenout, 173 Wash, 2d 235, 238-40, 267 P.3d 355 (2011); State v. Cooper, 130 Wash. 2d 770, 928 P.2d 406 (1996). Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 8 of 21 9 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 297 (1970)). “This cautious approach is mandated by the ‘explicit wording of s 2283’ and the ‘fundamental principle of a dual system of courts.’” Id. (quoting Atlantic Coast Line R. Co., 398 U.S. at 297)). Even Plaintiffs’ allegations of preemption are insufficient to warrant federal court intervention while the state court proceeding is pending: [A] federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear. Rather, when a state proceeding presents a federal issue, even a preemption issue, the proper course is to seek resolution of that issue by the state court. Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149-50 (1988) (internal quotation marks and citations omitted). Where an injunction is precluded, a declaratory judgment is also generally barred under the same principles of comity. Samuels v. Mackell, 401 U.S. 66, 73 (1971). The Comenouts have not specifically pled any set of facts showing any of the narrow Anti-Injunction Act exceptions apply. With respect to the first exception, they point to no act of Congress specifically authorizing an injunction of their state criminal prosecutions. To the contrary, as set forth above, Public Law 280 specifically authorized Washington State to assume criminal jurisdiction over Indian Country. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. at 472-74. The second exception, “where necessary in aid of [the federal court’s] jurisdiction,” 28 U.S.C. § 2283, typically applies “in cases where the federal court has obtained jurisdiction over the res, prior to the state-court action.” Vendo Co., 433 U.S. at 641. This case is not an in rem action, so the second exception should not apply. The Ninth Circuit has taken a broader view of the second exception, applying it where tribes have sought injunctions to prevent extreme hardship and irreparable harm and injury brought on by state court assertion of jurisdiction over matters exclusively within the jurisdiction Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 9 of 21 10 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 of the tribal court or federal court. See, e.g., White Mountain Apache Tribe v. Smith Plumbing Co., Inc., 856 F.2d 1301, 1304 (9th Cir. 1988) (adjudication of Tribe’s liability); Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 540 (9th Cir. 1994) (Indian Gaming Regulatory Act). However, those cases are distinguishable from this case. First, they were commenced by Indian tribes rather than individual Indians, as is the case here, so the same tribal immunity considerations do not apply. See Bess v. Spitzer, 459 F. Supp. 2d 191, 202-03 (E.D.N.Y. 2006) (distinguishing Ninth Circuit cases). Second, the Ninth Circuit cases dealt with areas such as the Indian Gaming Regulatory Act, where Congress set forth the explicit intent to create exclusive jurisdiction. Here, as detailed above, the federal government has explicitly done the opposite, authorizing states to assume criminal jurisdiction over Indian Country. Pub. L. 280. Finally, the controlling principle from the Supreme Court is that “a federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear.” Choo, 486 U.S. at 149-50. Because any doubts as to whether an injunction should issue should be resolved against issuing the injunction, the Ninth Circuit’s decisions should be confined to their unique facts and not apply to this case. Vendo Co., 433 U.S. at 630. The third of the Anti-Injunction Act’s exceptions is known as the “relitigation exception.” Smith v. Bayer Corp., 564 U.S. 299, 306 (2011). It applies only where a specific claim or issue with respect to the same party was previously “decided by the federal court.” Id. Plaintiffs do not allege that the State’s criminal jurisdiction over them with respect to their retail cigarette activities has already been litigated in federal court prior to their convictions. 2. This Court should abstain from exercising jurisdiction under Younger v. Harris. Plaintiffs’ Complaint should also be dismissed under the Younger abstention doctrine. See Younger v. Harris, 401 U.S. 37, 43-46 (1971). Younger abstention “is appropriate if, first, Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 10 of 21 11 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 there are ongoing state judicial proceedings; second, the proceedings implicate an important state interest; and third, there is an adequate opportunity in the state proceedings to raise federal questions.” Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 541 (9th Cir. 1994), as amended on denial of reh'g (Apr. 28, 1995). With respect to the first prong, Plaintiffs allege they have appealed their criminal convictions, rendering them “ongoing.” Complaint ¶ 26; Gilbertson v. Albright, 381 F.3d 965, 983 (9th Cir. 2004) (“A pending appeal in the Oregon Court of Appeals is an ongoing state judicial proceeding.”) (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 608-09 (1975)). 7 Second, the proceedings against the Comenouts for criminal violation of Washington tax laws undoubtedly implicate important state interests. See Younger, 401 U.S. at 751 (recognizing a “fundamental policy against federal interference with state criminal prosecutions”). Sycuan Band of Mission Indians and similar cases have found that “readily apparent” federal preemption can negate the availability of an otherwise important state interest. See, e.g., Sycuan Band of Mission Indians, 54 F.3d at 540. But these cases do not control the outcome of this case. Preemption is “readily apparent” only when the Supreme Court has previously decided the issue or where preemption is expressly stated in law. Woodfeathers, Inc. v. Washington County, Or., 180 F.3d 1017, 1021 (9th Cir. 1999). Here, while the Comenouts claim that federal law preempts the State’s assertion of criminal jurisdiction over them, any such preemption is not readily apparent. See Pub. L. 280; Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. at 484, 501. Cf. Woodfeathers, Inc., 180 F.3d at 1021-22 (finding County’s enforcement of solid waste ordinance implicated an important state interest, and such interest was not negated by argument 7 Even if Plaintiffs did not properly appeal their convictions, “a necessary concomitant of Younger is that a party … must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself within one of the exceptions specified in Younger.” Huffman, 420 U.S. at 608. Further, “considerations of comity and federalism which underlie Younger permit no truncation of the exhaustion requirement merely because the losing party in the state court of general jurisdiction believes that his chances of success on appeal are not auspicious.” Id. at 610. Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 11 of 21 12 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 that it was preempted by federal law where such preemption had not yet been decided by a court, and, therefore, was not “readily apparent”). Finally, there is sufficient opportunity in the state criminal proceedings to raise the federal challenges the Comenouts have to the State’s jurisdiction. “Art. VI of the United States Constitution declares that ‘the Judges in every State shall be bound’ by the Federal Constitution, laws, and treaties.” Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975). Plaintiffs cannot overcome the presumption that state court judges would consider and apply federal law simply by expressing a belief that the state courts would not find in their favor. Huffman, 420 U.S. at 610. Younger abstention is based on principles of both equity and comity. 401 U.S. at 43. The equitable principle at play is that courts should refrain from exercising their equitable powers when a movant has an adequate remedy at law, and “particularly should not act to restrain a criminal prosecution.” Id. at 43. But even more importantly, notions of comity require the federal government to let states be “free to perform their separate functions in their separate ways.” Id. at 44. Although a court may be anxious to protect federal rights and interests, the federal court should “always endeavor[] to do so in ways that will not unduly interfere with the legitimate activities of the States.” Id. To that end, Plaintiffs must present “extraordinary circumstances” to justify federal injunctive relief against pending state criminal prosecutions. Huffman, 420 U.S. at 601. A movant must not only show “irreparable injury,” but must also show that the injury would be “great and immediate.” Id. (quoting Younger, 401 U.S. at 46). The threat of criminal prosecution is not enough to constitute “great and immediate” irreparable injury. Id. at 43. Neither is “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution.” Id. Moreover, the alleged facial invalidity of a statute is also insufficient to constitute an “exceptional circumstance justifying federal interference with state criminal proceedings,” unless the statute is so “‘flagrantly and patently violative of express Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 12 of 21 13 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.’” Huffman, 420 U.S. 602 (quoting Younger, 401 U.S. at 53-54). Here, the state statute was explicitly upheld by the Supreme Court, and, accordingly, cannot be flagrantly violative of the constitution as advanced by Plaintiffs. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. at 484, 501. In sum, even if the Court does not conclude on the merits that Plaintiffs fail to state a claim, it should dismiss this action for lack of subject matter jurisdiction under principles of comity and equity as reflected in the Anti-Injunction Act, Younger, and related cases cited herein. D. 28 U.S.C. § 1257, The Rooker-Feldman Doctrine, And Collateral Estoppel Preclude This Court From Exercising Appellate Jurisdiction Over The Washington State Supreme Court’s Decision In State v. Comenout. Plaintiffs spend large portions of their complaint explaining that the Washington Supreme Court’s 2011 decision in State v. Comenout, 173 Wash. 2d 235, was wrongly decided, and they appear to seek a ruling that alters the final adjudication of that case. Complaint ¶¶ 8, 47-52. Despite Plaintiffs’ allegations to the contrary, 8 28 U.S.C. § 1257, the Rooker-Feldman doctrine, and collateral estoppel bar this Court from exercising subject matter jurisdiction over Plaintiffs’ attempt to invalidate the state Supreme Court’s decision. Under 28 U.S.C. § 1257, only the United States Supreme Court has jurisdiction over appeals from final state court judgments. “Accordingly, under what has come to be known as the Rooker-Feldman doctrine, lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459, 463 (2006); see also Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983). When issues presented in a federal suit are “inextricably 8 Plaintiffs allege in their Complaint that the Rooker-Feldman doctrine does not apply. Complaint ¶ 51. Because this is a legal conclusion rather than a factual allegation, the Court is not required to assume that the allegation is true. See Iqbal, 556 U.S. at 678. Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 13 of 21 14 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 intertwined” with the issues in a de facto appeal from a state court decision, Rooker-Feldman dictates that those intertwined issues “may not be litigated.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1142 (9th Cir. 2004). “Rooker-Feldman bars subject matter jurisdiction in federal district court” where “a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision.” Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). Here, the Comenouts seek a ruling that the state supreme court’s decision in Comenout, 173 Wash. 2d 235, and similar cases are wrongly decided. Complaint ¶¶ 8, 47, 49-55. Plaintiffs also complain of injuries caused by application of State v. Comenout by the Pierce County Superior Court. See Complaint ¶ 51. Final state court decisions can be reviewed only by the United States Supreme Court. 28 U.S.C. § 1257; Lance v. Dennis, 546 U.S. 459, 463 (2006). In this case, the United States Supreme Court has already denied review, and Plaintiffs’ attempt to collaterally attack the state court’s decision should be rejected. 132 S. Ct. 2402. 9 Plaintiffs’ claims are similarly barred by res judicata and collateral estoppel, to the extent they seek relitigation of issues or claims already adjudicated by the Washington Supreme Court in Comenout. “A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). “Parties cannot relitigate the same claims even if they believe ‘the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.’” Grant v. Alperovich, __F.3d __, 2016 WL 2690089 (W.D. Wash. May 9, 2016) (quoting Moitie, 452 U.S. at 398). The proper remedy for a party believing that a court has made an incorrect decision is to directly appeal that decision. Id. (quoting Moitie, 452 U.S. at 398). 9 Additionally, Plaintiffs’ theory that Comenout is not consistent with current law, such as the Yakima case, hold little merit. See Complaint ¶49 (citing Confederated Tribes and Bands of the Yakima Indian Nation v. Gregoire, 658 F.3d 1078 (9th Cir. 2011)). The United States Supreme Court specifically denied Comenout’s request for certiorari after Yakima was decided by the Ninth Circuit. See Comenout v. Washington, 132 S. Ct. 2402 (2012) (denying Comenout’s petition for certiorari). Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 14 of 21 15 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Pursuant to 28 U.S.C. § 1257, Rooker-Feldman, res judicata, and collateral estoppel, this Court should dismiss any and all claims which seek to invalidate or otherwise alter the Washington Supreme Court’s decision in State v. Comenout. E. Comenout’s Requests For Relief As To Future Criminal Charges Are Unripe. Federal courts established pursuant to Article III of the Constitution do not render advisory opinions. This is true of declaratory judgments as any other field. See United Public Workers of America v. Mitchell, 330 U.S. 75, 89 (1947). The basic rationale of ripeness doctrine “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies and to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). To the extent Plaintiffs seek relief as to any future state court proceedings, their claims are not ripe and should additionally be dismissed for that reason. F. Plaintiffs’ Appeal Rights Render Equitable Relief Unavailable. A completely independent basis to dismiss Plaintiffs’ claims against the Prosecutorial and Judicial Defendants is that Plaintiffs have an adequate means to challenge whether the State has criminal jurisdiction over them without resorting to equitable relief against the individual judges or prosecutors. “[E]quitable relief is not appropriate where an adequate remedy exists at law.” Schroeder v. United States, 569 F.3d 956, 963 (9th Cir. 2009). To obtain judicial review of whether the State had or has criminal jurisdiction to prosecute and convict them, Plaintiffs need only appeal their convictions, as they allege they have. They can present their federal preemption claims to the state Court of Appeals, and later to the Washington Supreme Court and the United States Supreme Court. See Washington Rules of Appellate Procedure 2.1-2.5, 4.1-4.4, 6.1, 12.1-13.7; 28 U.S.C. § 1257. Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 15 of 21 16 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiffs cannot show that they will suffer irreparable harm from their existing convictions when they have adequate means to challenge those convictions through the normal judicial appeal process. IV. CONCLUSION For the foregoing reasons, the Judicial and Prosecutorial Defendants request that this Court enter an order dismissing all claims asserted against them with prejudice. DATED this 4th day of August, 2016. ROBERT W. FERGUSON Attorney General s/ Alicia O. Young ALICIA O. YOUNG, WSBA No. 35553 Assistant Attorney General Attorneys for Judicial and Prosecutorial Defendants OID No. 91027 Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 16 of 21 17 Attorney General of Washington Revenue and Finance Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PROOF OF SERVICE I hereby certify that on August 4, 2016, I electronically filed the foregoing Motion to Dismiss with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: David M. Hankins Andrew Krawczyk Attorney General’s Office Revenue and Finance Division PO Box 40123 Olympia, WA 98504-0123 Randal Brown Randal Brown Law Office 25913 163 rd Avenue S.E. Covington, WA 98042 Aaron L. Lowe Aaron L. Lowe & Associates PS 1403 W. Broadway Avenue Spokane, WA 99201 Robert E. Kovacevich 818 West Riverside Avenue, Suite 525 Spokane, WA 99201-1914 I certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DATED this 4th day of August, 2016, at Tumwater, WA. s/ Julie Johnson Julie Johnson, Legal Assistant Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 17 of 21 APPENDIX 1 Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 18 of 21 PROCLAMATION BY THE GOVERNOR 14-01 WHEREAS, on March 19, 2012, Governor Christine Gregoire signed Engrossed Substitute House Bill 2233, “Creating a procedure for the state’s retrocession of civil and criminal jurisdiction over Indian tribes and Indian country”; and WHEREAS, Engrossed Substitute House Bill 2233, which became Chapter 48, Laws of 2012, creates a process by which the state of Washington (hereafter, “the State”) may retrocede to the United States all or part of the civil and criminal jurisdiction previously acquired by the State over a federally recognized Indian tribe, and the Indian country of such tribe, under federal Public Law 280, Act of August 15, 1953; and WHEREAS, on March 13, 1963, in accordance with federal Public Law 280, Act of August 15, 1953, the State assumed partial civil and criminal jurisdiction, subject to the limitations in RCW 37,12,021 and RCW 37.12.060, within the Indian country of the Confederated Tribes and Bands of the Yakama Nation (hereafter, “Yakama Nation”) pursuant to Chapter 36, Laws of 1963; and WHEREAS, after March 13, 1963, the Yakama Nation did not invoke with the State the provision of RCW 37.12.021 but chose to rely upon the rights and remedies of its Treaty of 1855 with the United States, 12 Stat. 951and federal laws; and WHEREAS, on January 11, 1980, the Assistant Secretary-Indian Affairs, United States Department of the Interior, approved the Yakama Nation’s petition for re-assumption of jurisdiction over Indian child custody proceedings under the Indian Child Welfare Act of 1978. Effective March 28, 1980, the Yakama Nation reassumed jurisdiction over Yakama Indian child custody proceedings; and WHEREAS, on July 17, 2012, the Yakama Nation filed a retrocession petition with the Office of the Governor. The retrocession petition by the Yakama Nation requests full retrocession of civil and criminal jurisdiction on all of Yakama Nation Indian country and in five areas of RCW 37.12.010, including: Compulsory School Attendance; Public Assistance; Domestic Relations; Juvenile Delinquency; and Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways; and Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 19 of 21 WHEREAS, Governor Gregoire convened government-to-government meetings with the Yakama Nation to discuss the Nation’s retrocession petition. In the course of those meetings, the Yakama Nation and Governor Gregoire confirmed that the Yakama Nation asks the State to retrocede all jurisdiction assumed pursuant to RCW 37.12.010 in 1963 over the Indian country of the Yakama Nation, both within and without the external boundaries of the Yakama Reservation. However, the Yakama Nation requests that the State retain jurisdiction over mental illness as provided in RCW 37.12.010(4), and jurisdiction over civil commitment of sexually violent predators under RCW 71.09, and acknowledges that the State would retain criminal jurisdiction over non-Indian defendants; and WHEREAS, Governor Jay Inslee convened further government-to-government meetings between the State and Yakama Nation. The Governor’s Office has also consulted with elected officials from the jurisdictions proximately located to the Yakama Nation’s Indian country; and WHEREAS, on July 9, 2013, Governor Inslee exercised the six-month extension provision for issuing a proclamation, pursuant to RCW 37.12.160; and WHEREAS, strengthening the sovereignty and independence of the federally recognized Indian tribes within Washington State is an important priority for the State; and NOW, THEREFORE, I, Jay Inslee, Governor of the state of Washington, by virtue of the authority vested in me by Section 37.12.160 of the Revised Code of Washington, do hereby grant in part, and deny in part, the retrocession petition submitted by the Confederated Tribes and Bands of the Yakama Nation, according to the following provisions: 1. Within the exterior boundaries of the Yakama Reservation, the State shall retrocede full civil and criminal jurisdiction in the following subject areas of RCW 37.12.010: Compulsory School Attendance; Public Assistance; Domestic Relations; and Juvenile Delinquency. 2. Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, civil and criminal jurisdiction in Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways cases in the following manner: Pursuant to RCW 37.12.010(8), the State shall retain jurisdiction over civil causes of action involving non-Indian plaintiffs, non-Indian defendants, and non-Indian victims; the State shall retain jurisdiction over criminal offenses involving non-Indian defendants and non- Indian victims. 3. Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, criminal jurisdiction over all offenses not addressed by Paragraphs 1 and 2. The State retains jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims. Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 20 of 21 Case 3:16-cv-05464-RJB Document 10 Filed 08/04/16 Page 21 of 21 ORDER GRANTING JUDICIAL AND PROSECUTORIAL DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(1) AND (6) 1 Attorney General of Washington Revenue Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Honorable Judge Robert J. Bryan UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ROBERT REGINALD COMENOUT SR., et al., Plaintiffs, v. PIERCE COUNTY SUPERIOR COURT, et al., Defendants. NO. 3:16-CV-05464-RJB ORDER GRANTING JUDICIAL AND PROSECUTORIAL DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(1) AND (b)(6) PROPOSED BEFORE THE COURT is the Judicial and Prosecutorial Defendants’ Motion to Dismiss under FRCP 12(b)(1) and (6). Upon review of the motion and other records and pleadings with which the Court is familiar, IT IS HEREBY ORDERED that the Judicial and Prosecutorial Defendants’ Motion to Dismiss is GRANTED, and all claims asserted against Defendants Pierce County Superior Court, Judges John and Jane Doe 1 through 10, and Assistant Attorneys General Joshua Choate and Michael Pellicciotti are hereby DISMISSED with prejudice. DATED this ___day of August, 2016. _____________________________ The Honorable Robert J. Bryan Case 3:16-cv-05464-RJB Document 10-1 Filed 08/04/16 Page 1 of 2 ORDER GRANTING JUDICIAL AND PROSECUTORIAL DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(1) AND (6) 1 Attorney General of Washington Revenue Division 7141 Cleanwater Drive SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PROOF OF SERVICE I hereby certify that on August 4, 2016, I electronically filed the foregoing Motion to Dismiss and Proposed Order with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: David M. Hankins Andrew Krawczyk Attorney General’s Office Revenue and Finance Division PO Box 40123 Olympia, WA 98504-0123 Randal Brown Randal Brown Law Office 25913 163rd Avenue S.E. Covington, WA 98042 Aaron L. Lowe Aaron L. Lowe & Associates PS 1403 W. Broadway Avenue Spokane, WA 99201 Robert E. Kovacevich 818 West Riverside Avenue, Suite 525 Spokane, WA 99201-1914 I certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DATED this 4th day of August, 2016, at Tumwater, WA. s/ Julie Johnson Julie Johnson, Legal Assistant Case 3:16-cv-05464-RJB Document 10-1 Filed 08/04/16 Page 2 of 2