# Petition — Bergh v. Washington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0482%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 921 ## Text Seprome Coert, ¥. & FILEQD AUG 19 1976 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1976 NO. 76-253 LOREN BERGH, Petitioner, Ve STATE OF WASHINGTON; THOR TOLLEFSON, DIRECTOR OF THE WASHINGTON STATE DEPARTMENT OF FISHERIES; WASHINGTON STATE DEPARTMENT OF FISHERIES; EDGAR SCOFIELD and GEORGE BOLDT, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANTHONY SCHWAB 4737 Shilshole Ave. N.W. Seattle, Washington 98107 1-206-789-4307 Counsel for Petiticner SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1976 NO. LOREN BERGH, Petitioner, Vv. STATE OF WASHINGTON; THOR TOLLEFSON, DIRECTOR OF THE WASHINGTON STATE DEPARTMENT OF FISHERIES; WASHINGTON STATE DEPARTMENT OF FISHERIES; EDGAR SCOFIELD and GEORGE BOLDT, Respondents. PETITION FOR WRIT OF CERTIORARI * TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANTHONY SCHWAB 4737 Shilshole Ave. N.W. Seattle, Washington 98107 1-206-789-4307 Counsel for Petitioner INDEX Opinion Below. ..... ++ « «© « « SUPLGGLCELOR « 6 ts te ee ee eee Questions Presented. .....-.. - Constitutional Provisions and Statutes Involved ...... . Statement of the Case. . ... e+. -« Nature of the Action. ..... Proceedings in the District COURE. « cs 6 8 ¢ © @ © @ @ Proceedings in the Court of Appeals. ..+.«-++«e«e. » Separate Proceedings in the Washington State Supreme Court. . ..-.+.+.« -« Reasons for Granting the Writ (1) Mutuality of Relief Sought on Which Final Judgment was Entered (2) Mutuality in the Parties and their Privies.. . (3) Mutuality in the Issues Litigated. . ..+.«. -» Gemelumiom . «se 6© 6 © 6 8 ee 6 Uh CU . oF Ut CITATIONS Cases: -» Cherokee. Tabacco Case, 78 U.S. 616 eevee s «4 @ © & 6 & @ a . * Department of Game v. Puyallup Tribe, Inc., 86 Wn.2d 664, 548 P.2d 1058 (1976). .... In re Ah Chong, 2 Fed. 733, at 737 [oats + oe oh ee Se Moses Lake Homes v. Grant County, 365 U.S. 744, 81 S. Ct. 870 [eeeese we ee wee ew ee ele Puyallup Tribe v. Department of Game, 391 U.S. 392, at 399 fe ae ee ee ee Strom v. Commission, 158 F.2d 520 [eet s « & « ee & & & Se 6 Takahashi v. Fish Commission, 334 U.S. 410, 98 L. Ed. 1498. .. . Toomer v. Whitsell, 334 U.S. 385, OR Gees 2© © ee ee ee ee el Truax v. Raich, 239 U.S. 33, at 41 . United States v. 111.2 Acres of Land in Ferry County, Washington, 293 F. Supp. 1042 (1968), OG BOOP «© ec eee eee eo 8 United States v. United Airlines, 216 F. Supp. 709, at 725-726 (D.C. WA NA, 1962) (1962) .. . olia 20 16 ll 18 19 14 13 13 1l CITATIONS (Continued) Page IN THE United States v. Washington : (Mo. 9223). «ee eses 6 ae Oe SUPREME COURT OF THE UNITED STATES Yick Wo v. Hopkins, 118 U.S. 356, OCTOBER TERM, 1976 at 369. « « «©» 6 «© 6 6 * 5 eee STATUTES NO. 28 U.S.C., § 1254(1) « - ess seee om 42 U.8.C., § 1983. « «© ee + © + » ee eee o + © e es s 6 eee LOREN BERGH, Petitioner, Ve 43 Stat. 233 . « « * « + =) 6 eee ; ; 59 Stat. 1035, at 1045-1046. ..... 18 STATZ OF WASHINGTON; THOR TOLLEFSON, CONSTITUTIONAL PROVISIONS : DIRECTOR OF THE WASHINGTON STATE DEPARTMENT OF FISHERIES; WASHINGTON United States Constitution, STATE DEPARTMENT OF FISHERIES; Fourteenth Amendment. .... - 8, 13 EDGAR SCOFIELD and GEORGE BOLDT, Respondents. United States Constitution, Article Vv ..s«+eeest « » =e Petition for Writ of Certiorari TO THE UNiTED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Petitioner, Loren Bergh, prays that a writ of certiorari issue to review the , . judgment of the United States Court of Appeals for the Ninth Circuit entered in this cause on May 3, 1976, and upon which rehearing was denied May 27, 1976. OPINION BELOW The opinion of the Court of Appeais presently unreported is reproduced in the appendix to the petition at pages 25 to -iii- 28- The order of the Court of Appeals denying rehearing is reproduced at page 24 of the appendix. The District Court Gid not file an opinion but, rather, entered an order and summary judgment reproduced in the appendix at page 23- A conflicting Washington State Supreme Court opinion, in a case in which petitioner was not a party, Department of Game v. Puyailup Tribe, Inc., is reproduced in the appendix, pages 33 to 68, as reported, 86 Wn.2d 664, 548 P.2d 1952 (1976). JURISDICTION Jurisdiction for this court to review, by writ of certiorari, the judgment of the Court of Appeals entered May 3, 1976, and made final by the denial of the petition for rehearing per an order dated May 27, 1976, is conferred and pursuant to 28 U.S.C., § 1254(1). QUESTIONS PRESENTED 1. Does collateral estoppel from United States v. Washington (NO. 9213) bar petitioner from seeking and obtaining injunctive relief in this action against the selective adoption and enforcement of fishing regulations by the State of Washington and the Washington State Depart- ment of Fisheries which discriminate aginst petitioner as a commercial fisher- man solely because he lacks a requisite race, creed, color or ancestry? 2. Does the Fourth Article, the Fourteenth Amendment to the United States Constitution or 42 U.S.C., § 1933 prohibit a policy of selective adoption and enforcement of state commercial fishing regulations against petitioner but not against other citizens, when the dis- criminatory basis is solely that petitioner lacks a requisite race, creed, color or ancestry? CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED United States Constitution, Article IVs Section 2. The Citizens of each State shall be entitled to all privileges and Immunities of Citi- zens in the several states. United States Constitution, Amendment XIV: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or en- force any law which shall abridge the privileges or immunities or citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any per- son within its jurisdiction the equal protection of the laws. 42 U.S.C., § 1983: Civil action for deprivation of Rights. Every person who under color of any statute, ordinance, regulation, custom, or usage, Of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the depriva~ tion of any rights, privileges, or immunities secured by the Constitu- tion and laws, shall be liable to the party injured in an action at law, suit in equity, or other pro ver proceeding for redress. STATEMENT OF THE CASE Nature of the Action Petitioner, a commercial gillnet fisher- man for nineteen years, sought to enjoin the application of fishing regulations against him by the State of Washington when that application was discriminatory solely upon the basis that he lacked a requisite Indian race, creed or ancestry. The State of Washington responded that they were compelled to do so by orders of the Honorable George Boldt, United States District Court Judge, which orders were filed by Edgar Scofield, Clerk of the United States District Court for the Western District of Washington in cause No. 9213. Petitioner Bergh was not a party, nor privie to a party, involved in cause No. 9213 and argued that the State of Washington was violating his Fourth Article and Fourteenth Amendment rights under the United States Constitution and, also, 42 U.S.C., § 1983. Proceedings in the District Court Petitioner filed a verified complaint and moved for summary judgment supported by various affidavits. The State of Washing- ton, George Boldt and Edgar Scofield moved to dismiss on the record at that point. The petitioner's factual record is un- challenged and shows that the State of Washington was obeying George Boldt's orders and was discriminating against petitioner Bergh in adopting and enforc- ing fishing regulations solely on a basis that Bergh lacked a requisite Indian race, creed or ancestry. The record also shows Bergh was not a privie or party to cause No. 9213 and that in that cause Judge Boldt denied intervention to other fisher- men similarly situated and that the equal protection argument had not been raised and decided there. The District Court, the Honorable Donald Voorhees, granted summarv judgment against petitioner dismissing his case without opinion, but in order indicated the basis was collateral estoppel from cause No. 9213. Proceedings in the Court of Appeals The Court of Appeals also refused to reach the merits holding that Judge Voorhees was within his discretion, because Judge Boldt's case was one of continuing jurisdiction. Nothing in the Opinion mentioned that Judge Boldt had in all instances denied intervention to persons similarly situated to petitioner and that no party in Judge Boldt's court had or would raise the “equal protection" argument. Separate Proceedings in the Washington State Supreme Court On remand from the United States Supreme Court, the Supreme Court of the : State of Washington in Department of Game v. Puyallup Tribe, Inc., 86 Wn.2d 664, 548 P.2d 1058 (1976), ruled that the equal protection argument is applicable to a person who is in petitioner Bergh's situa- tion and held as law what petitioner Bergh urges here and urged to both the Ninth Circuit and the District Court. That opinion, reproduced in the appendix at pages 33 to 68, was held in abeyance pending review in this court upon that case. Reasons for Granting the Writ . This case is the focus of a dispute between the federal court system which ‘ refuses to reach the "equal protection" theory on Indian fishing rights and the Washington state court system, which has recently decided that the "equal protec- tion” argument is squarely applicable and proscribes fishing regulations which disfavor White fishermen solely because they lack a requisite race, creed or ancestry. This court should grant review, because this case clearly raised the issue unencumbered by competing questions or vagueness in the record and is the sole case which has traveled the federal side on the equal protection argument. : If the court wishes review, it can summarily consider the meritorious issue on equal protection, infra, at point 2. However, the collateral estoppel issue used by the federal courts to avoid the merits are presented as point l, infra. l. Does collateral estoppel from United States v. Washington (No. 9213) bar petitioner from seek- ing and obtaining injunctive relief in this action against the selective adop- tion and enforcement of fishing regula- tions by the State of Washington and the Washington State Department of Fisheries which discriminate against petitioner as a commercial fisherman solely because he lacks a requisite race, creed, color or ancestry? There is no collateral estoppel work- ing against petitioner Loren Bergh which’ precludes a decision upon the merits because: a. Mr. Bergh was not a party to, or associated with any party to the Boldt decision in No. 9213 and Judge Boldt consistently has denied intervention to persons Similarly situated; b. the issues raised here were not raised or adjudicated in fact in the Boldt decision; c. the issues raised here could not have been adjudicated in the Boldt decision because the prayer for declaratory decision did not seek such discriminatory use of state law and regulation and the cause of action arose subsequent to the Decision I therein; d. George Boldt himself is a parti- cipant and a named defendant, and it is prejudicial to allow him to decide his own case. However, the collateral estoppel point may be moot because the record is undisputed and sufficient that this court can make a decision upon the merits. On the merits commercial fishing is a constitu- tional protected common occupation of the community and all actions of the defendant are subject to constitutional prohibitions of Article IV and Amendment XIV and 42 U.S.C., § 1983. The state has plenary power to regulate all persons as to com- mercial fishing for the general society and must do so without discrimination or denial of the equal protection of the law to all citizens. Plaintiff and the Indians at issue here are citizens and distinguishable solely upon the basis of race, creed, color or ancestry. Any per- son who discriminates on this basis breaks the law and should be enjoined. Generally, for res judicata or collateral estoppel to occur, the federal textbook case of United States v. United Airlines, 216 F. Supp. 709, at 725-726 (D.C. WA NA, 1962) states that there must be a concurrent mutual identity in three areas: a. in the relief sought on which final judgment was entered and adjudicated; b. in the parties or their privies; c. in the issues litigated. (1) Mutuality of Relief Sought on Which Final Judgment was Entered Nothing in the case of United States v. State of Washington (No. 9213) contem- plated and no party prayed specifically prior to the entry of Final Decision No. l therein that the laws and regulations of the State of Washington be applied ina racially (supra-legislative) fiat. For @§- example, if Judae Boldt issued a mandamus to the Washington State Legislature and the governor is to appropriate monies to enforce these regulations, it would not be a collateral attack upon the decision to challenge this order by a direct independent suit. It wouldn't be fair to regulate them solely to an appeal process because no trial foundation exists as to test the act and, in addition, it would then be colored by the inherent prejudice of the actor deciding his own case. (2) Mutuality in the Parties and their Privies It is an undisputed fact in the record that Mr. Bergh was not a party to, repre- sented in, or associated with any party to United States v. State of Washington (No. 9213). He never had his day in court nor his right to appeal under that cause of action; nor did he seek it, because dis- criminatory use of state laws and regula- tions was not within the contemplation of that suit. In addition, it is doubt- ful that Judge Boldt would have granted intervention, as he denied it to several commercial and sports fishing groups. Thus, when the District Court judge refused to issue a decision upon the merits of Mr. Bergh's cause of action, it precluded Mr. Bergh from having his day in court on the merits. The very essence of the mutuality of parties criteria in estoppel is to assure due process for every citizen seeking redress for acts against him which he alleges are illegal; the very meaning of the word estoppel refers to past acts of the asserting actor. Mr. Bergh had no past acts contradicting his instant allegation. (3) Mutuality in che Issues Litigated The record in this case conceded that the issue of subsequent discriminatory supra-legislative use of state law and regulation was not litigated in United States v. Washington (No. 9213). In addition, precedent indicates that unconstituticnal enforcement of a prior court decision creates a subsequent separate and independent cause of action not barred Sy collateral estoppel even among the same and identical litigants: Nor is there any verit in the respondent's contention that the opinion and judgment of the Supreme Court of Washington in the Moses Lake Case, 51 W2d 285, 317 P2d 1069, supra, is res judicata of the County's tax claims against the Moses Lake lease- hold for at least the years 1955 and 1956. This is so because no tax whatever had then been assessed and levied against the Moses Lake leasehold, and hence no issue of discrimination was or could have been presented and adjudicated in that case Inasmuch as the taxes, presently assessed and levied, discriminate unconstitutionally against the -10 2 of di sere! ‘ ionury powcr, [G] Civit Rights—Aflirinative Action—Public Employmecni—Use of Gea's—Validity. The use of goals in implementing an affirmative action program in public onatieyment is constitutionally pcermissi- ble. A goal, unlike an absolute quota or preference, is a realistic numerical objective which is bascd on expected job vacancies and qualified applicants available and which docs not require displacc- ment of existing cmployces, crcation of unnecded positions, or the hiring of unqualified persons. 17] Acmiristrative Law and Proecdure—Administvative Rules—Valid- ity—Determination. Rules adopted by un aclministrative agency pur- suant to a spvecilic legislative dclegaiion of such authority are presumed to be valid; a person who asserts their invalidity has the burden of proving that the agency abuscd its diserction in adopting the rules in question. Appeal from a judgment of the Superior Court for King County, No. 757364, Solie M. Ringold, J., entered October 5 1973. Affirmed. Action challenging a civil service affirmative action pro- gram. One of the plaintif’s appeals from a summary judg- ment in favor of the defendants. C. R. Lonergan, Jr. (of Siderius, Lonergan & Crowle), for appellant. John P. Harris, Corporation Counsel, and Gordon F. Cran- dall, Assistant, for respondents City of Seattle, et al. James E. Fearn, Jr., and Peter Greenfield of Legal Ser- vices Center (Seattle), for respondents Green, et al. This opinion was prepared by the late Justice Robert C. Finley. It is adopted by the undersigned Justices as the opinion of this Court The central issue raised in this case is whether the City of Seattle may udopt a system or program for the employ- ment of civil service workers that gives special employ- -68- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0482%3A1. Public record. Not legal advice.