Date: 09-10-2018

Case Style:

Case Number: 17-35853

Judge: Richard R. Clifton

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington (King County)

Plaintiff's Attorney: Taylor de Laveaga, Eugene Volokh, Venkat Balasubramani

Defendant's Attorney: Callie A. Castillo, Robert Ferguson

Description: 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
RYNEARSON V. FERGUSON 5
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
RYNEARSON 6 V. FERGUSON
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:
RYNEARSON V. FERGUSON 7
(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
communication to such other person or a third
party: . . .
(b) Anonymously or repeatedly whether
or not conversation occurs . . . .
Wash. Rev. Code. § 9.61.260.
On July 17, 2017, the municipal court granted Moriwaki
a permanent protection order against Rynearson. The court
concluded that Moriwaki had shown by a preponderance of
the evidence that Rynearson had stalked, cyberstalked, and
unlawfully harassed him. The court rejected Rynearson’s
claim that his actions were protected by the First Amendment.
The permanent protection order prohibited Rynearson from
coming within 300 feet of Moriwaki’s residence or
workplace, forbade him from attending public events with
Moriwaki, and prohibited Rynearson “from creating or
maintaining internet websites, Facebook pages, blogs,
forums, or other online entities that use the name or personal
identifying information of [Moriwaki] in the title or domain
name. [Rynearson] may not use the photograph of
[Moriwaki] to create memes, posters, or other online uses.”
Rynearson appealed the protection order. In January 2018
the Kitsap County Superior Court vacated the permanent
protection order on the grounds that Rynearson’s speech was
protected by the First Amendment. The court did not rule on
RYNEARSON 8 V. FERGUSON
the constitutionality of the cyberstalking statute. Moriwaki
did not appeal this judgment.
In the meantime, while the permanent protection order
proceeding was pending before the municipal court,
Rynearson initiated the current federal action by filing his
complaint in the district court challenging the
constitutionality of Washington’s cyberstalking statute under
42 U.S.C. § 1983. The complaint was filed on July 11, 2017,
one day after Rynearson filed his opposition to the protection
order in the municipal court and six days before that court
held a hearing and issued the permanent protection order. In
the federal action Rynearson sought a permanent injunction
enjoining defendants from enforcing the statute and a
declaratory judgment that the statute is unconstitutional.
Defendants filed a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). The
district court granted the motion on the ground that the
federal court should abstain under Younger. Rynearson
appeals.
II. Discussion
We review a district court’s Younger abstention
determination de novo. ReadyLink Healthcare, Inc. v. State
Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014). We
conduct the Younger analysis “in light of the facts and
circumstances existing at the time the federal action was
filed.” Potrero Hills Landfill, Inc. v. County of Solano,
657 F.3d 876, 881 n.6 (9th Cir. 2011).
In Younger, the Supreme Court held that federal courts
should abstain from granting equitable relief as to the validity
RYNEARSON V. FERGUSON 9
of state criminal statutes when parallel criminal proceedings
are ongoing in state court. 401 U.S. at 41. To do otherwise,
the Court concluded, would be “a violation of the national
policy forbidding federal courts to stay or enjoin pending
state court proceedings except under special circumstances.”
Id. The Court subsequently extended Younger abstention to
a limited category of state civil cases. See, e.g., Huffman v.
Pursue, Ltd., 420 U.S. 592, 604 (1975) (applying Younger
abstention to a federal suit that interfered with an ongoing
state nuisance proceeding); Juidice v. Vail, 430 U.S. 327, 335
(1977) (applying Younger abstention to a federal suit that
interfered with state contempt procedures); Middlesex Cty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,
432–37 (1982) (applying Younger abstention to a federal suit
that interfered with state bar disciplinary proceedings). Both
the Supreme Court and our court have repeatedly
emphasized, however, that Younger abstention is “an
extraordinary and narrow exception to the general rule that
federal courts have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not
given.” Potrero Hills, 657 F.3d at 882 (internal quotation
marks omitted).
With that directive in mind, we have developed a fiveprong
test to determine when Younger abstention should
apply to a civil case. Specifically, “Younger abstention is
appropriate only when the state proceedings: (1) are ongoing,
(2) are quasi-criminal enforcement actions or involve a state’s
interest in enforcing the orders and judgments of its courts,
(3) implicate an important state interest, and (4) allow
litigants to raise federal challenges.” ReadyLink, 754 F.3d at
759. If these four threshold elements are established, we then
consider a fifth prong: (5) “whether the federal action would
have the practical effect of enjoining the state proceedings
RYNEARSON 10 V. FERGUSON
and whether an exception to Younger applies.” Id. Each
of these requirements must be “strictly met.”
AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1148
(9th Cir. 2007).
Only the second and fifth prongs of this test are at issue
in this case. We discuss each in turn.
A. Prong Two: The State Proceeding Is Not Quasi-
Criminal and Does Not Involve the State’s Interest in
Enforcing Court Orders
Rynearson argues that the district court erred in applying
Younger abstention because state protection order
proceedings are not quasi-criminal enforcement actions and
do not involve the state’s interest in enforcing the orders and
judgments of its courts. We agree.
In Sprint Communications, Inc. v. Jacobs, the Supreme
Court summarized much of its precedent on the nature of
quasi-criminal civil enforcement actions:
Such enfor c ement a ct ions ar e
characteristically initiated to sanction the
federal plaintiff, i.e., the party challenging the
state action, for some wrongful act. See, e.g.,
Middlesex, 457 U.S., at 433–34 (state-initiated
disciplinary proceedings against lawyer for
violation of state ethics rules). In cases of this
genre, a state actor is routinely a party to the
state proceeding and often initiates the action.
See, e.g., Ohio Civil Rights Comm’n v. Dayton
Christian Schools, Inc., 477 U.S. 619 (1986)
(state-initiated administrative proceedings to
RYNEARSON V. FERGUSON 11
enforce state civil rights laws); Moore v. Sims,
442 U.S. 415, 419–20 (1979) (state-initiated
proceeding to gain custody of children
allegedly abused by their parents); Trainor v.
Hernandez, 431 U.S. 434, 444 (1977) (civil
proceeding “brought by the State in its
sovereign capacity” to recover welfare
payments defendants had allegedly obtained
by fraud) . . . . Investigations are commonly
involved, often culminating in the filing of a
formal complaint or charges. See, e.g.,
Dayton, 477 U.S., at 624 (noting preliminary
investigation and complaint); Middlesex, 457
U.S., at 433 (same).
571 U.S. 69, 79–80 (2013) (parallel citations omitted).
The district court concluded that protection order
proceedings meet this standard because they are “akin to
criminal prosecutions.” But protection order proceedings in
Washington are different from the enforcement actions
discussed in Sprint. Under Washington law, a court may issue
a protection order if it “finds by a preponderance of the
evidence that the petitioner has been a victim of stalking
conduct by the respondent.” Wash. Rev. Code
§ 7.92.100(1)(a). This “petitioner” is a private party, not the
state or local government. In Rynearson’s case it was
Moriwaki. The law does not require state authorities to
conduct any investigation or file charges or a complaint in
connection with an application for a protection order, and
state actors are not party to the protection proceedings.
Indeed, the stalking protection order statute specifically
provides that a petitioner is not required to report the stalking
conduct to the police to obtain a protection order. See Wash.
RYNEARSON 12 V. FERGUSON
Rev. Code § 7.92.100(b) (“The petitioner shall not be denied
a stalking protection order . . . because the petitioner did not
report the stalking conduct to law enforcement.”). In
Rynearson’s case, the state prosecutor’s decision not to file
criminal charges against Rynearson for his conduct did not
bear on the municipal court’s decision to grant Moriwaki a
permanent protection order.
Furthermore, the purpose of Washington state stalking
protection orders is not to “sanction” a party “for some
wrongful act.” Sprint, 571 U.S. at 79. Although a petitioner
cannot receive a protection order unless the respondent has
engaged in a wrongful act, the primary purpose of the order
is to protect the petitioner, not punish the respondent. This is
clear from the introduction to Washington’s stalking
protection statute:
Victims who do not report the crime still
desire safety and protection from future
interactions with the offender. Some cases in
which the stalking is reported are not
prosecuted. In these situations, the victim
should be able to seek a civil remedy
requiring that the offender stay away from the
victim.
Wash. Rev. Code § 7.92.010.
To be sure, the stalking protection order statute makes
reference to state criminal statutes. “Stalking conduct” is
defined to include any act of stalking as defined under
Washington Revised Code section 9A.46.110 or any act of
cyberstalking as defined under Washington Revised Code
RYNEARSON V. FERGUSON 13
section 9.61.260. Wash. Rev. Code § 7.92.020(3).1 Conduct
in violation of those specified criminal statutes may be a basis
on which a state court may grant a protection order, but that
is not the only basis on which a protection order may be
granted. More broadly, the mere fact that the protection order
law refers to criminal statutes does not mean that protection
order proceedings are quasi-criminal. As the Supreme Court
noted in Sprint, “[a]bstention is not in order simply because
a pending state-court proceeding involves the same subject
matter.” 571 U.S. at 72.
1 “Stalking conduct” means any of the following:
(a) Any act of stalking as defined under [Wash. Rev.
Code] § 9A.46.110;
(b) Any act of cyberstalking as defined under [Wash.
Rev. Code] § 9.61.260;
(c) Any course of conduct involving repeated or
continuing contacts, attempts to contact, monitoring,
tracking, keeping under observation, or following of
another that:
(i) Would cause a reasonable person to feel intimidated,
frightened, or threatened and that actually causes such
a feeling;
(ii) Serves no lawful purpose; and
(iii) The stalker knows or reasonably should know
threatens, frightens, or intimidates the person, even if
the stalker did not intend to intimidate, frighten, or
threaten the person.
Wash. Rev. Code § 7.92.020(3).
RYNEARSON 14 V. FERGUSON
Washington stalking protection proceedings do not reflect
any of the characteristics described in Sprint. Those
proceedings are not quasi-criminal enforcement actions for
Younger purposes.
Nor do the protection proceedings “involve a state’s
interest in enforcing the orders and judgments of its courts.”
ReadyLink, 754 F.3d at 759. The Supreme Court and our
court have held that this standard is geared to ensuring that
federal courts do not interfere in the procedures by which
states administer their judicial system and ensure compliance
with their judgments. This standard derives primarily from
the Supreme Court’s decisions in Juidice and Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1 (1987). In Juidice, the Court held
that Younger abstention applied to a federal suit that sought
to enjoin the use of state statutory contempt procedures
because “[t]he contempt power lies at the core of the
administration of a State’s judicial system.” 430 U.S. at 335.
Similarly, in Pennzoil the Court held that Younger abstention
applied to a federal suit challenging the constitutionality of
state procedures that allowed judgment creditors to secure
liens on all of a judgment debtor’s real property. As the Court
explained, “[t]his Court repeatedly has recognized that the
States have important interests in administering certain
aspects of their judicial systems.” Pennzoil, 481 U.S. at
12–13. Further, “[b]oth Juidice and this case involve
challenges to the processes by which the State compels
compliance with the judgments of its courts. Not only would
federal injunctions in such cases interfere with the execution
of state judgments, but they would do so on grounds that
challenge the very process by which those judgments were
obtained.” Id. at 13–14 (footnote omitted).
RYNEARSON V. FERGUSON 15
We recently considered this standard in Cook v. Harding,
879 F.3d 1035 (9th Cir. 2018), petition for cert. filed (U.S.
April 30, 2018) (No. 17-1487). In Cook, the plaintiff filed a
federal suit challenging the constitutionality of a state statute,
California Family Code section 7962, that “authorizes the
judicial determination of legal parentage in accordance with
the terms of a gestational surrogacy agreement.” 879 F.3d at
1038. The plaintiff was party to a pending action in state
court to enforce a surrogacy agreement when she filed her
federal complaint. Id. We held that the state action did not
involve the state’s interest in enforcing the orders and
judgments of its courts because
Cook does not question the process by which
California courts compel compliance with
parentage determinations under state law.
Rather, she alleges that Section 7962 is
unconstitutional. Cook accordingly challenges
the legislative prescriptions of Section 7962.
As the Court held even before Sprint, Younger
does not “require[] abstention in deference to
a state judicial proceeding reviewing
legislative . . . action.”
Id. at 1041 (alterations in Cook) (quoting New Orleans Pub.
Serv., Inc. v. Council of the City of New Orleans, 491 U.S.
350, 368 (1989)).
Here, Rynearson’s challenge is solely to the
constitutionality of a criminal statute. Although conduct in
violation of that statute can be (and was, in Rynearson’s case)
a partial basis for issuing a protection order, the criminal
statute’s constitutionality does not bear on the validity of the
state’s protection orders or the procedures by which the state
RYNEARSON 16 V. FERGUSON
courts issue or enforce them. We therefore conclude that
Rynearson’s suit did not involve Washington’s interest in
enforcing the orders and judgments of its courts.
B. Prong Five: The Federal Suit Would Not Have the
Practical Effect of Enjoining the State Protection
Proceedings
Even if we were to decide that the state protection
proceedings met the first four prongs described above,
Younger abstention still would not be appropriate here
because Rynearson’s federal constitutional challenge to the
cyberstalking statute would not “have the practical effect of
enjoining the state proceedings.” ReadyLink, 754 F.3d at
759.
Defendants argue that declaring the cyberstalking statute
unconstitutional would have given Rynearson the means to
stop the municipal court from continuing to apply the
cyberstalking statute to Rynearson’s conduct. That is not true.
It would have been true that success in Rynearson’s federal
suit would have prevented state prosecutors from prosecuting
Rynearson specifically for the crime of cyberstalking (which
they ultimately decided not to do, anyway). But there is no
basis to conclude that Rynearson’s federal suit would have
prevented the municipal court from granting Moriwaki a
permanent protection order or prevented the state prosecutors
from prosecuting Rynearson if he had violated the protection
order.
Even if the cyberstalking statute were declared
unconstitutional in federal court, the protection order was not
based solely on the crime of cyberstalking. The stalking
protection order statute clearly provides that the crime of
RYNEARSON V. FERGUSON 17
stalking and other forms of “stalking conduct” can be the
basis for a protection order; cyberstalking is not required. See
Wash. Rev. Code §§ 7.92.020, 7.92.100. In Rynearson’s case,
the municipal court found by a preponderance of the evidence
that Rynearson had committed both stalking and unlawful
harassment in addition to cyberstalking. Therefore, the
declaratory judgment and injunction that Rynearson sought
in the federal proceedings would not have prevented the
municipal court from issuing a stalking protection order
against Rynearson.
Nor would Rynearson’s federal suit have blocked the
state’s ability to prosecute Rynearson had he violated the
protection order. The stalking protection orders issued by the
municipal court and the cyberstalking statute covered
different conduct. The cyberstalking statute criminalizes
repeated or anonymous electronic communications made
“with intent to harass, intimidate, torment, or embarrass.”
Wash. Rev. Code § 9.61.260(1). The protection orders issued
by the municipal court, on the other hand, prohibited
Rynearson from, among other things, attending events with
Moriwaki, contacting Moriwaki, and creating websites that
used Moriwaki’s name. Rynearson could have engaged in
conduct prohibited by the orders but not criminalized under
the challenged cyberstalking statute. Even if the state were
enjoined from enforcing the criminal cyberstalking law,
Rynearson could have been charged with violating the
protection order.
Moreover, even if the federal action did cast doubt on the
validity of the terms of the stalking protection order,
Rynearson still would not be able to use any federal
determination about the cyberstalking statute’s
constitutionality as a defense in a contempt proceeding. A
RYNEARSON 18 V. FERGUSON
party cannot use a challenge to the validity of a court order as
a defense in a proceeding for violation of that order under
Washington law. See City of Seattle v. May, 256 P.3d 1161,
1163–64 (Wash. 2011) (en banc).
Rynearson did not challenge the terms of the protection
orders issued against him in his federal suit. Nor did he
challenge the constitutionality of Washington’s protection
order statute or the statute under which he would be
prosecuted if he were to violate the order. See Wash. Rev.
Code § 26.50.110. Rynearson’s federal suit would not have
had the practical effect of enjoining the state protection order
proceedings.

Outcome: Younger abstention is a limited exception to the obligation
of federal courts to hear cases within the scope of their
jurisdiction. We conclude that the Washington state stalking
protection order proceedings against Rynearson did not fit
into the narrow category of state cases in which federal
abstention was appropriate. We reverse the district court’s
dismissal of Rynearson’s complaint and remand for further
proceedings.

REVERSED AND REMANDED.

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