# Prologue — Wilbur v. Locke

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0574%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1173

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0574%3A0. Public record. Not legal advice.