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Rynearson v. Ferguson

United States Court of Appeals, Ninth Circuit

September 7, 2018

Richard Lee Rynearson III, Plaintiff-Appellant,
v.
Robert Ferguson, Attorney General of the State of Washington; Tina R. Robinson, Prosecuting Attorney for Kitsap County, Defendants-Appellees.

          Argued and Submitted July 12, 2018 Seattle, Washington

          Appeal from the United States District Court D.C. No. 3:17-cv-05531-RBL for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

          Taylor de Laveaga (argued), Certified Law Student; Eugene Volokh (argued), Supervising Attorney; Scott and Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California; Venkat Balasubramani, Focal PLLC, Seattle, Washington; for Plaintiff-Appellant.

          Callie A. Castillo (argued), Deputy Solicitor General; Robert Ferguson, Attorney General; Office of the Attorney General, Olympia, Washington; for Defendants-Appellees.

          Before: Richard R. Clifton and Jacqueline H. Nguyen, Circuit Judges, and Jed S. Rakoff, [*] District Judge.

         SUMMARY [**]

         Civil Rights

         The panel reversed the district court's dismissal, on abstention grounds, of plaintiff's complaint seeking to enjoin enforcement of Washington's cyberstalking law and to obtain a declaratory judgment that the law is unconstitutional.

         Plaintiff was the respondent in a Washington state court protection order proceeding filed by a person who lived near plaintiff and who was the subject of plaintiff's multiple online postings. Based on the allegations of stalking, cyberstalking and harassment, the state court entered a temporary stalking protection order against plaintiff. While the state court proceedings were pending, plaintiff filed a federal action which sought to enjoin enforcement of Washington's cyberstalking statute, Wash. Rev. Code § 9.61.260(1)(b).

         The panel held that the Washington state stalking protection order proceedings against plaintiff did not fit into the narrow category of state cases in which federal abstention was appropriate under Younger v. Harris, 401 U.S. 37 (1971). The state proceedings were not quasi-criminal enforcement actions and did not involve the state's interest in enforcing the orders and judgments of its courts. Additionally, the panel held that Younger was not appropriate because plaintiff's federal constitutional challenge to the cyberstalking statute would not have the practical effect of enjoining the state proceedings. The panel noted that the state court protection order was not based solely on the crime of cyberstalking, but also on a finding that plaintiff had committed stalking and unlawful harassment. Therefore, the declaratory judgment and injunction that plaintiff sought in the federal proceedings would not have prevented the municipal court from issuing a stalking protection order. The panel further concluded that the stalking protection orders issued by the state court and the cyberstalking statute covered different conduct and that even if the state were enjoined from enforcing the criminal cyberstalking law, plaintiff could still have been charged with violating the protection order. The panel remanded for further proceedings.

          OPINION

          CLIFTON, CIRCUIT JUDGE.

         This appeal calls on us to consider the scope of federal court abstention under Younger v. Harris, 401 U.S. 37 (1971). In particular, we consider whether federal courts should abstain from exercising jurisdiction over a constitutional challenge to a state criminal statute while there are ongoing state court protection order proceedings arguably related to the challenge to the criminal statute. In the circumstances of this case, we conclude that abstention is not appropriate.

         Plaintiff-Appellant Richard Rynearson III was named as the respondent in a Washington state court protection order proceeding filed by someone who lived near Rynearson and who was the subject of multiple online postings by Rynearson. Based on allegations that Rynearson had stalked, cyberstalked, and harassed the person seeking the protection order, the state municipal court entered a temporary stalking protection order against Rynearson. While those proceedings were pending in state court, Rynearson filed an action in federal court which sought to enjoin enforcement of Washington's cyberstalking law and to obtain a declaratory judgment that the law is unconstitutional. The federal action named two defendants: the Attorney General of Washington, Robert Ferguson, and the Kitsap County Prosecuting Attorney, Tina R. Robinson, the Defendants-Appellees in this appeal.

         The district court dismissed Rynearson's complaint based on Younger abstention. In Younger and subsequent cases, the Supreme Court held that federal courts should abstain from exercising jurisdiction in exceptional circumstances when state proceedings are ongoing. Rynearson appeals the dismissal. Because we conclude that the state protection proceedings do not present the exceptional circumstances that warrant abstention, we reverse the district court's dismissal of Rynearson's complaint and remand for further proceedings.

         I. Background

         Rynearson, who sometimes uses the name Richard Lee, regularly posts online about civil liberties issues. In his words, he has "tried to raise awareness of the erosion of civil liberties, and the expansion of executive power, related to the war on terror." He began that effort while serving in the Air Force. Upon retiring from the service, Rynearson moved to Bainbridge Island, Washington, in 2016. He had already become interested in the role of Bainbridge Island in the internment of Japanese-Americans during World War II. Even before moving there, he began to follow the work of the Bainbridge Island Japanese-American Exclusion Memorial. Clarence Moriwaki, a private citizen, was the volunteer founder of the memorial and a member of its board. In November 2016, Rynearson became Facebook friends with Moriwaki.

         Rynearson believed that a provision in the National Defense Authorization Act of 2012 ("the NDAA") would permit indefinite detention of American citizens. Through regular posts on public Facebook pages, Rynearson began to criticize Moriwaki and other local leaders who failed to vocally condemn the NDAA. In January and February 2017, Rynearson posted numerous comments on Facebook and sent text messages to Moriwaki criticizing him for failing to express disapproval of public officials who supported the NDAA. Moriwaki told Rynearson that he felt harassed and asked Rynearson to stop communicating with him and posting about him. Moriwaki lived approximately 300 feet from Rynearson's residence. Despite Moriwaki's request, Rynearson continued posting his critical comments on Moriwaki's Facebook page. Moriwaki then blocked Rynearson from posting on his Facebook page. Rynearson responded by creating a Facebook group initially called "Clarence Moriwaki of Bainbridge Island," where he posted memes criticizing Moriwaki. Rynearson ultimately renamed the page "Not Clarence Moriwaki of Bainbridge Island."

         In March 2017, Moriwaki sought and obtained from the Bainbridge Island Municipal Court a temporary stalking protection order against Rynearson. This order compelled Rynearson to "remove public webpages/Facebook page with [Moriwaki's] name" and prohibited him from, among other things, having any contact with Moriwaki, keeping Moriwaki under surveillance, going within 100 feet of Moriwaki's residence or workplace, and attending events at which Moriwaki was present. In June 2017, in response to an inquiry by Rynearson's attorney, the state prosecutor said that he was not planning to file criminal charges against Rynearson at that time in the hope that Rynearson would comply with the protection order but that the prosecutor would revisit that decision if he received any future referrals.

         On July 10, 2017, Rynearson filed a response in the municipal court opposing Moriwaki's petition for a permanent protection order. In this response, Rynearson included a challenge to the constitutionality of Washington's cyberstalking statute, Wash. Rev. Code § 9.61.260(1)(b). In relevant part, the statute provides:

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic ...

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