Rynearson v. Ferguson

• Decision Date: 07 September 2018
• Docket Number: No. 17-35853,17-35853
• Citation: 903 F.3d 920
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

903 F.3d 920

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.

No. 17-35853

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2018—Seattle, Washington

Filed September 7, 2018

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.

CLIFTON, Circuit Judge

This appeal calls on us to consider the scope of federal court abstention under Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (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 h a r a s s m e n t, m a k e s a n e l e c t r o n i c 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 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 of state criminal statutes when parallel criminal proceedings are ongoing in state court. 401 U.S. at 41, 91 S.Ct. 746. 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, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger abstention to a federal suit that interfered with an ongoing state nuisance proceeding); Juidice v. Vail , 430 U.S. 327, 335, 97 S.Ct. 1211, 51 L.Ed.2d 376 (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, 102 S.Ct. 2515, 73 L.Ed.2d 116 (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...