Prologue — Wilbur v. Locke

| Supreme Court, U.S.

FILE

No. 05-740 DEC 6 ~ 2005

OFFICE OF THE CiEcHK

In The

Supreme Court of the Anited States

S

MARVIN WILBUR, JR.,

MARVIN WILBUR, SR., and JOAN WILBUR,

Petitioners,

V.

GARY LOCKE, Governor of the State of Washington;

FREDERICK KIGA, Director, Revenue Department

of the State of Washington; GARY O’NEIL, Assistant

Director, Revenue-Department of the State of

Washington; and REVENUE DEPARTMENT

OF THE STATE OF WASHINGTON,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

4

PETITION FOR WRIT OF CERTIORARI

¢

JAMES E. LOBSENZ*

JOHN C. DIPPOLD

OF CARNEY BADLEY

SPELLMAN, P.S.

701 Fifth Avenue, Suite 3600

Seattle, WA 98104

(206) 622-8020

*Counsel of Record

December 6, 2005

COCKLE LAW BRI®F PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does the First Amendment Petition Clause

guarantee of the right to seek judicial redress of griev-

ances require that FRCP 19(b) be construed and applied in

a manner that will avoid dismissal of a suit for failure to

join an indispensable party if the effect of such a dismissal

would be to deprive the plaintiff, and every member of the

public, of a judicial forum where asserted constitutional or

statutory violations could be litigated?

2. The I-.nth Circuit adheres to the rule that, in all

cases where the plaintiff is challenging the validity of a

contract, every party to that contract is an indispensable

party whose absence requires dismissal of the suit pursu-

ant to FRCP 19(b). Is this inflexibie rule in conflict with

this Court’s decisions in Provident Tradesmens Bank and

National Licorice v. NLRB?

3. Is it error to grant a Rule 19(b) dismissal of a

plaintiff’s suit against state officials on the grounds that

an Indian tribe is an indispensable party when the follow-

ing circumstances exist: (a) the tribe knows that the

lawsuit is pending; (b) the interests of the tnbe and the

state officials are identical; (c) the tribe refuses to waive

sovereign immunity and to consent to being a party

defendant, and thus cannot be joined as a party; and (d)

the tribe files pleadings in the lawsuit in support of the

positions taken by the state officials, and urges the Court

to dismiss the lawsuit because the tribe is an indispensa-

ble party?

ii

PARTIES TO THE PROCEEDINGS

The Petitioners are Marvin Wilbur, Jr., Marvin

Wilbur, Sr., and Joan Wilbur. They are members of the

Swinomish Tribe, and they operate a smoke shop located

on trust land within the borders of the Swinomish Indian

Reservation in northwestern Washington.

Respondents are Gary Locke, the Governor of the

State of Washington; and Frederick Kiga and Gary O’Neil,

the Director and Assistant Director of the Revenue De-

partment of the State of Washington. The Revenue De-

partment of the State of Washington was a named party

defendant but was dismissed as a defendant by the Court

of Appeals and is no longer a party to the case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......... .....scccccccccereeevecreees i

OT ia 1

IIE cists sidncticindicsibbuceninidadionsapecabon iiwlanlediiaiacee 1

CONSTITUTIONAL PROVISIONS AND COURT

RULE PROVISIONS INVOLVED ........................0005

STATEMENT OF TEA CAB Bi ccccccccscccesessevcccescssesseceveses 2

REASONS FOR GRANTING THE WRIT .................... 10

Be EMT MIT Sonics cabsssstninaiuiactsboibspecideastivadebianie 10

2. THE DECISION BELOW CONFLICTS WITH

THIS COURT'S PETITION CLAUSE JURIS-

PI eas ecehiiekainticinanasoseiabinsctoneieateaiaes

a. Conflict With this Court’s Noerr-Pennington

a Or HN sesh tecassssieesvcsvcsdinispoainwiiectelens

b. Conflict With Avery, Gilmore, Wolff and

IOI scaitstnactiestndnbvistiubietniditantnabaseneciaibauadie

THE NINTH CIRCUIT’S DECISION CON-

FLICTS WITH THE DECISIONS OF THE

HIGHEST COURTS OF NEW YORK AND

WISCONSIN. THESE COURTS HAVE RE-

CENTLY HELD THAT A TRIBE’S UNWILL-

INGNESS TO PARTICIPATE IN A LAWSU'T

CANNOT BE PERMITTED TO FUNCTION

AS A VETO OVER A PLAINTIFF'S RIGHT

TO SEEK JUDICIAL REDRESS AGAINST

STATE GOVERNMENT ACTORS ......0.0. ee.

THE NINTH CIRCUITS DECISION CON-

FLICTS WITH TWO DECISIONS OF THE

RE IES feb seritietatpdenetnintensianencnsis

18

iv

TABLE OF CONTENTS -— Continued

Page

5. THE NINTH CIRCUITS ADHERENCE TO

AN INFLEXIBLE RULE OF DISMISSAL IN

ALL CASES INVOLVING A CHALLENGE TO

A CONTRACT WHERE AN ABSENT PARTY

HAS AN INTEREST IN SEEING THE CON-

TRACT UPHELD, IS IN CONFLICT WITH

THIS COURT'S DECISION IN PROVIDENT

TRADESMENS BANK & TRUST, WHICH

HOLDS THAT RULE 19b) IS TO BE AP-

PLIED ON A CASE-BY-CASE BASISG................

THE NINTH CIRCUITS DECISION IS IN

CONFLICT WITH THIS COURT'S DECISION

IN NATIONAL LICORICE ............cseccessessseveseees

a ee NII is phspviss ditraodisdavasddciaparesiysopaapil davgubdcahants

24

TABLE OF AUTHORITIES

" Page

FEDERAL CASES

American Greyhound Racing, Inc. v. Hull, 305 F.3d

I aa 6, 8

BE & K Construction Company v. NLRB, 536 U.S.

| ROR aes Sa eon ncaa AA ERO 12, 13, 14, 15

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 US.

BE CE iicniclictidecitabibtnsibaeinedicedsupieds damian 9, 13, 14, 15

Bounds v. Smith, 430 U.S. 817 (1977) ............ccceeesseceeeeeees 16

Brotherhood of Railroad Trainmen v. Virginia State

(eg 2 Bis BC) | SERRA otatnaee mer aca eens 13

Cal. Motor Transport Co. v. Trucking Unlimited,

Ne ee Se GIT $i. dhi Recicaccrisninteanchanbuevaaacewmcsinns 10, 13, 16

Cree Gi Se Tay a Ca Faint vicscocccckaakecscteconssevasescons 16

Dawavendewa v. Salt River Project, 276 F.3d 1150

SI GD ic cciccesovntaveicaenin AUSIALEMATELE LIES oossnteeeeceens 6, 25

Eastern Railroad Presidents Conference v. Noerr

Motor Freight, 365 U.S. 127 (1961)... eeeeeeeeees 14

Hudson v. Palmer, 468 U.S. 517 (1984)................... 9,17, 18

Ex Parte Hull, 312 U.S. 546 (1941)......0...00000000.. PUL LES 15

Jeffries v. Georgia Residential Finance Authority,

Oe a re Ce ly Rs winnie haersesccseevcitcnicnsesenenentons 28

Johnson v. Avery, 393 U.S. 483 (1969)..............00. ee 15, 17

Kansas v. United States, 249 F.3d 1213 (10th Cir.

SIE ad. cociescteotestnic ascenncisvnnvncin nkcocsicenialciaasios eeiseumncatocMicasiacadntlsstn 22; 24

Kirkland v. New York State Department of Correc-

tional Services, 520 F.2d 420 (2d Cir. 1975)............0..... 28

Lewis v. Casey, 518 U.S. 343 (1996)................csceccereesseseees 16

TABLE OF AUTHORITIES — Continued

Page

Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th Cir.

DIE ins cishpcictbacheesilaiiecnweneeideleileicailihiaadaamaenintss-shaseadiidacitas 6, 7, 25, 26

Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir.

CRETE OR tee OARS R EAN PARR RIE RT SUDA NT es RPE ONTO 8

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).......... 29

McDonald v. Smith, 472 U.S. 479 (1985)............cccceeceseeees 13

NAACP v. Button, 371 U.S. 415 (1963)....... 0c eccceee eee 13

National Licorice Co. v. NLRB, 309 U.S. 350

Pails dL datn ncasbaaidandadiaaiiisienaclabeda abuts isabel denies 11, 27, 28

Natural Resources Defense Council, Inc. v. Berk-

lund, 458 F. Supp. 925 (D..D.C. 1978), aff’d 609

i I CRs RN: UTE sectdidccdenisiiatteiouitnsatinpabiorenabiucitibannin 28

Professional Real Estate Investors v. Columbia

Peebaaae, BEG Cie. Ge Ce wictvcccitiinvavnssinttivicestnctnceesevens 13

Provident Tradesmens Bank & Trust v. Patterson,

a Bee I icon ncerntvedncevedincsevaccdies 11, 24, 25, 26, 27

Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr.

OE ae Be CO ae Be wrt hinemesncciccnccdvenateestcnse 23

Sac & Fox Nation v. Norton, 240 F.3d 1250 (10th

RI, SI icici tsceeiciccssivndcnasicn date rielba eed taasseeacanslaniaienecns 22, 23

Shields v. Barrow, 58 U.S. 130 (1854) ...........c cece eeeee teers 26

Thomas v. Collins, 323 U.S. 516 (1945)... eee eee 13

United Mine Workers v. Illinois Bar Association,

a ee eR iv kcdteeiiccecesdcisisaeaccsavedadadinds vacowieen 12, 13

United States v. Cruikshank, 92 S. Ct. 542 (1876)........... 13

United Transportation Union v. State Bar, 401 U.S.

2, 2b. s | es hse ubnasubseelsilapaduedamocaancatimrideanah 12,13

vii

TABLE OF AUTHORITIES - Continued

Page

Washington v. United States, 187 F.2d 421 (9th Cir.

DUE ivinichnsinesstacinineciiipcndttpemnis tamales iin ase ie 25

Wilbur v. Locke, 423 F.3d 1101 (9th Cir. 2005).......... passim

Wolff v. McDonnell, 418 U.S. 539 (1974)... cceeeeeeeeeees 16

Younger v. Gilmore, 404 U.S. 15 (1971) ........ cece eeeeeeeeees 16

STATE CASES

Dairyland Greyhound Park, Inc. v. McCallum, 258

Wis. 2d 210, 655 N.W.2d 474 (2002)... ccccceeeeeeees 22

Panzer v. Doyle, 680 N.W.2d 666 (Wis. 2004) ......... 8, 20, 21

Saratoga County Chamber of Commerce v. Pataki,

100 N.Y.S.2d 801, 798 N.E.2d 1047, 766 N.Y.S.2d

EN SOE ws chrscivcchanvincsaiessiat nsusendenasatielse meas passim

FEDERAL STATUTES & RULES

SE UIE. ST ivinetdcicksivicettennteuaniounaaae 1

PE Pee PRU BIND sir piccsccecsenctrsceeacneel passim

Indian Trader Act, 25 U.S.C. §§ 261 et seq ..0.......:::cceeseeeeeee 3

Sherman Anti-Trust Act, 15 U.S.C. §§ 1,2 & 14...000.000000.. 3

Treaty of Poini Elliott, 12 Stat. 927 (Jan. 22, 1855) ........... 3

STATE STATUTES

Wramds, Bev, Coin SD 4G GO rw esviivcverscssscssrventivecsindinonnan 2

Wisconsin Statute $ 803.03(3)............c-sccccccccosscccceseccvecevere 22

viii

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment 1 ................ passim

United States Constitution, art. I, § 8, cl. 3 ...................00ee 3

United States Constitution, art. I, § 10............. TE Re 3

Washington Constitution, art. 26, § 2 ......cccccceeeees Ebeiehanens 3

MISCELLANEOUS

The Federalist, No. 80 (C. Rossiter ed. 1961) .............000 29

Wright & Miller, 7 Federal Practice and Procedure

ESE Sn ee

PETITION FOR WRIT OF CERTIORARI

Petitioners, Marvin Wilbur, Jr., Marvin Wilbur, Sr.,

and Joan Wilbur (“the Wilburs”), respectfully pray that a

writ of certiorari issue to review the decision of the United

States Court of Appeals for the Ninth Circuit affirming the

dismissal of their suit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported at 423 F.3d 1101 (9th Cir.

2005), and is reproduced as Petition Appendix A. The

decision of the District Court granting respondents’ motion

to dismiss was not reported, and is reproduced as Petition

Appendix B.

JURISDICTION

This Court has jurisdiction over this case pursuant to

28 U.S.C. § 1254(1). : ?

CONSTITUTIONAL PROVISIONS AND

COURT RULE PROVISIONS INVOLVED

Federal Rule of Civil Procedure 19(b) provides:

If a person as described in subdivision (a)(1)-(2)

hereof cannot be made a party, the court shall

determine whether in equity and good conscience

the action should proceed among the parties be-

fore it, or should be dismissed, the absent person

being thus regarded as indispensable. The fac-

tors to be considered by the court include: first, to

what extent a judgment rendered in the person’s

absence might be prejudicial to the person or

those already parties; second, the extent to

which, by protective provisions in the judgment,

by the shaping of relief, or other measures, the

prejudice can be lessened or avoided; third,

whether a judgment rendered in the person’s ab-

sence will be adequate; fourth, whether the

2

plaintiff will have an adequate remedy if the ac-

tion is dismissed for nonjoinder.

The First Amendment to the United States Constitu-

tion provides in pertinent part:

Congress shall make no law . .. abridging... the

right of the people . . . to petition the government

for a redress of grievances.

STATEMENT OF THE CASE

Marvin Wilbur, Jr., Marvin Wilbur, Sr, and Joan

Wilbur, are enrolled members of the Swinomish Tribe, and

the operators of a retail store located on trust land within

the Swinomish Indian Reservation. On April 17, 2003, the

Wilburs filed an action against the Governor of Washing-

ton and two officials of the Washington State Department

of Revenue (hereafter “the Governor”). Their suit sought

relief from an anticipated contract, authorized by Wash.

Rev. Code § 43.06.450, between the State of Washington

and the Swinomish Indian Tribe regarding the taxation of

cigarette sales by Indian retailers. Wilbur v. Locke, 423

F.3d 1101, 1104 (9th Cir. 2005).

The decision below succinctly describes the statutory

requirements that such contracts must meet.

Such contracts must “provide for a tribal ciga-

rette tax in lieu of all state cigarette taxes and

state and local sales and use taxes on sales of

cigarettes in Indian country by Indian retailers,”

but the tribe may “allow an exemption for sales

to tribal members.” Id. § 43.06.455(3) ... Tax

revenue retained by a tribe must be used for cer-

tain statutorily defined “essential government

services.” Id. § 43.06.455(8), (14)(a). Thus, ciga-

rette contracts must provide that the state will

not impose any tax, and must require a tribe to

collect taxes effectively equal to the previously

imposed state taxes, and use the revenue for es-

sential government services.

Wilbur, 423 F.3d at 1104.

3

The Wilburs brought suit while the Governor and the

Tribe were negotiating such a cigarette tax contract. They

alleged that the state statutes authorizing such contracts,

and the specific proposed tax compact between the Tribe

and the State, violated the Indian Commerce Clause, U.S.

Constitution, art. I, § 8, cl. 3; the treaty clause, art. I, § 10;

the Sherman Anti-Trust Act, 15 U.S.C. §§ 1, 2 & 14; the

Indian Trader Act, 25 U.S.C. §§ 261 et seq.; the Treaty of

Point Elliott, 12 Stat. 927 (Jan. 22, 1855), and several

other statutory and state constitutional provisions. Jd. at

1105. Recognizing that the Tribe had sovereign immunity

and could not be sued without its consent, the Wilburs did

not name the Tribe as a party defendant to their suit.

The essence of the Wilburs’ claims was that the State

of Washington was effectively purchasing the legislative

power of the Tribe by inducing the Tribe to enact and

impose a tax upon tribal member Indians which the State

itself had no power to impose. They argued the’ Washing-

ton State was indirectly regulating commerce among the

Indian tribes, even though that power is restricted to

Congress by article 1, § 8, cl. 3, and that the State was

effectively entering into a treaty with an Indian tribe,

contrary to the prohibition against such treaty making

which is set forth in article 1, § 10. Similarly, the Wilburs

claimed that Washington was evading the state constitu-

tional prohibition set forth in Washington Constitution,

art. 26, §2Z, against the imposition of any taxes upon

property located on Indian lands. By creating a contrac-

tual obligation to impose a tribal tax upon property which

the State itself was powerless to tax, the Wilburs further

alleged that the State was violating the Treaty of Point

Elliott, 12 Stat. 927 (1855). In their complaint they sought

“prospective, declaratory and injunctive relief against the

Governor of Washington State to prevent him from forcing

the Swinomish Tribe to tax Plaintiffs.” Complaint, Intro-

duction, at p.2. They also sought damages for anti-trust

violations under the Sherman Act. Id. at [J 37-40.

Before the merits of any of these claims could be

addressed, the State defendants filed a motion to dismiss the

complaint alleging: (1) that the Wilburs lacked standing