Stephen Kerr Eugster v. Washington State Bar Association , 198 Wash. App. 758 ( 2017 )

FILED
MAY 2, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
I
I
I
i IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STEPHEN KERR EUGSTER, )
) No. 34345-6-111
I Appellant, )
)
l V. )
I )
PUBLISHED OPINION
WASHINGTON STATE BAR )
1 ASSOCIATION, a legislatively created )
I
Washington association (WSBA); and )
PAULA LITTLEWOOD, Executive )
Director, WSBA, in her official capacity; )
I and
)
)
)
I DOUGLAS J. ENDE, Director of the
WSBA Office of Disciplinary Counsel, in
)
)
his official capacity; FRANCESCA )
D' ANGELO, Disciplinary Counsel, )
II WSBA Office of Disciplinary Counsel, in
her official capacity,
)
)
I )
! Respondents. )
I
FEARING, C.J. -
I Endless litigation leads to chaos. Schroeder v. 171. 74 Acres of
l Land, More or Less, 318 F.2d 311, 314 (8th Cir. 1963) (emphasis added).
lI
•
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No. 34345-6-III
Eugster v. WSBA
Stephen Eugster initiated this suit, the sixth proceeding involving the Washington
State Bar Association (WSBA) and himself. Eugster sues the WSBA, the entity that
administers Washington State's lawyer disciplinary system on behalf of the state
Supreme Court, and some of WSBA's officials. Eugster claims that the discipline system
violates his due process and First Amendment rights to the United States Constitution and
that the WSBA retaliated against him for an earlier lawsuit. WSBA and its officials
moved to dismiss the suit on five grounds: lack of subject matter jurisdiction, res judicata,
failure to state a claim, immunity, and lack of justiciability. The trial court granted the
motion on all grounds. On appeal, we hold that the trial court possessed subject matter
jurisdiction, but that res judicata bars this lawsuit because Eugster could have asserted his
!
due process arguments in at least one earlier proceeding.
I
I FACTS
I
i Since the trial court dismissed the complaint pursuant to a motion to dismiss, we
I borrow from Stephen Eugster's complaint to prepare this statement of facts. The WSBA,
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I like most other state bar associations, functions as an integrated bar. All active lawyers
i
I in the state of Washington are members of and must pay dues to the WSBA. The WSBA,
by direction of the Washington Supreme Court, administers the system to discipline
lawyers who violate the attorney professional code of ethics. The Supreme Court
reserves the final say in disciplining a member of the Washington State bar.
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Eugster v. WSBA
In 2005, the WSBA investigated a lawyer disciplinary grievance filed against
Stephen Eugster by a former elderly client, Marion Stead. After Stead terminated
Eugster's services, Eugster filed a guardianship petition against Stead without any
investigation as to her alleged incompetency. Eugster sought to appoint Stead's son as
the guardian despite Stead having directed Eugster to remove her son from control over
her affairs. In the process, Eugster disclosed to the son and others confidential
communications between Eugster and Stead. Eugster refused to surrender papers and
property to Stead and refused to deliver Stead's file to her new counsel. The WSBA
Disciplinary Board recommended disbarment. The Washington Supreme Court, in a 5-4
decision, reversed the disbarment and instead suspended Eugster from the practice of law
for eighteen months. In re Disciplinary Proceeding Against Eugster, 166 Wash. 2d 293,
209 P.3d 435 (2009). During the proceeding, Stephen Eugster never challenged the
constitutionality of the WSBA attorney disciplinary system. Because of the many
proceedings involving Stephen Eugster and the WSBA, we refer to the grievance filed by
Marion Stead and the eventual Supreme Court decision as Eugster I.
During his eighteen-month suspension, the WSBA commenced Eugster II, an
investigation of a grievance against Stephen Eugster filed by Mattie Kivett. In response
to the second grievance, the WSBA eventually sent a letter to Eugster instructing him to
analyze cases more thoroughly and concurrently dismissed the grievance. The WSBA
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Eugster v. WSBA
gave notice to Eugster that he must avoid the grieved conduct and the WSBA would
retain file documents concerning the complaint for five years.
On January 21, 2010, Stephen Eugster filed Eugster III, in the United States
District Court for the Eastern District of Washington, a complaint under 42 U.S.C. § 1983
alleging that Washington's attorney discipline system violated his due process rights
under the Fifth and Fourteenth Amendments to the United States Constitution. Eugster v.
Washington State Bar Association, No. CV 09-357-SMM, 2010 WL 2926237 (E.D.
Wash. July 23, 2010), ajf'd, 474 Fed. App'x 624 (9th Cir. 2012). He named, as
defendants, members of the Washington State Supreme Court, the WSBA, and members
of the WSBA Board of Governors. Eugster requested that the court enjoin the defendants
from continuing to operate Washington's attorney discipline system. He initially further
requested that the court declare void the suspension imposed on him in Eugster I, but he
withdrew the request before the defendants filed a motion to dismiss. The United States
District Court dismissed Eugster III, without prejudice, for lack of standing because
Eugster failed to demonstrate that he suffered an actual or imminent injury in fact since
he provided no evidence of any pending disciplinary proceeding against him.
Stephen Eugster appealed Eugster III to the United States Ninth Circuit Court of
Appeals. In an opinion shorter than our opinion, the federal appeals court affirmed the
dismissal since Eugster did not allege he would ever again be subject to disciplinary
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Eugster v. WSBA
proceedings. Eugster v. Washington State Bar Association, 474 Fed. App'x 624 (9th Cir.
2012).
On September 23, 2014, Cheryl Rampley filed Eugster IV, a lawyer disciplinary
grievance with the WSBA against Stephen Eugster, the third grievance against Eugster.
Rampley is the niece-in-law ofVerdelle G. O'Neill, a client ofEugster. The WSBA sent
notice of the grievance to Eugster on October 1, 2014. In response, Eugster sent
voluminous records to the WSBA concerning his representation of O'Neill. He also
wrote letters to respond to Rampley's allegations. On November 21, 2014, Kevin Bank,
WSBA managing disciplinary counsel, relayed a letter to Eugster to inform him that the
WSBA assigned Bank to complete the investigation. Eugster responded to further letters
from Bank. A Christmas day 2014 letter from Eugster asked Bank to identify for Eugster
his deficiencies so that Eugster could correct the wrongs.
On March 12, 2015, Stephen Eugster filed Eugster V, Eugster v. Washington State
Bar Association, No. Cl5-0375-JLR, 2015 WL 5175722 (W.D. Wash. Sept. 3, 2015),
aff'd, _ F. App'x _ (9th Cir. 2017), in the United States District Court for the
Western District of Washington. He joined as defendants in the suit WSBA officials and
all justices of the Washington Supreme Court. In the federal suit, Eugster challenged the
constitutionality, under the First and Fourteenth Amendments to the United States
Constitution, of compulsory membership in and payment of dues to Washington's
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No. 34345-6-III
Eugster v. WSBA
integrated bar association. Eugster asked for judicial declarations permitting him to
practice law without membership in the WSBA, freeing him from mandatory bar dues,
and declaring the WSBA unconstitutional.
In our case on appeal, Stephen Eugster alleges that, despite being notified of the
grievance filed by Cheryl Rampley in October 2014, the WSBA did not decide to
commence an investigation based on the grievance until after his filing of Eugster V, his
second federal lawsuit. According to Eugster, WSBA disciplinary counsel Vanessa
Norman informed him of the investigation shortly after he filed the federal lawsuit. On
April 3, 2015, Norman informed Eugster that the WSBA assigned her to conduct the
investigation on Rampley's grievance. Then on April 21, 2015, defendant Francesca
D' Angelo wrote to Eugster to inform him that the WSBA assigned her to investigate the
grievance. Thereafter, Eugster responded to more requests for information from the
WSBA. Verdelle G. O'Neill died on August 18, 2015.
On September 3, 2015, the United States District Court for the Western District of
Washington entered an order ~ismissing Eugster V. The court ruled that Stephen Eugster
failed to state a claim under which he could receive relief because federal courts uphold
the constitutionality of compulsory membership in and dues to bar associations. He also
failed to state a claim on which he could receive relief with regard to the expenditure of
funds by the WSBA, since the bar association allowed a Keller deduction. The district
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Eugster v. WSBA
court dismissed the latter claim without prejudice to allow Eugster to amend the
complaint to specifically allege misallocation of charges not permitted to be compulsory
assessed. The court gave ten days for the amendment or else the court would also
dismiss the claim with prejudice. The entire complaint against the WSBA was dismissed
on the ground of Eleventh Amendment immunity, since a bar association is an arm of the
state. Eugster v. Washington State Bar Association, No. C15-0375-JLR, 2015 WL
5175722 (W.D. Wash. Sept. 3, 2015). We suspect that Eugster did not amend the
complaint. He filed an appeal with the Ninth Circuit Court of Appeals on September 21,
2015. The Ninth Circuit has yet to issue a decision in Eugster V.
In his complaint on appeal, Stephen Eugster alleges that the WSBA, on November
3, 2015, sent him a letter informing him that disciplinary counsel intended to request a
Disciplinary Board review committee to order review of Cheryl Rampley's complaint by
a hearing officer. According to Eugster, the WSBA letter contained false statements
concerning his conduct and failed to inform the Disciplinary Board of conflicting
material statements. When Stephen Eugster filed this appeal, the WSBA had yet to
commence formal disciplinary action against Eugster as a result of Cheryl Rampley's
grievance.
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Eugster v. WSBA
PROCEDURE
On November 9, 2015, Stephen Eugster initiated this lawsuit, Eugster VI, in state
superior court, against the WSBA and three WSBA officials, Executive Director Paula
Littlewood, Director of Office of Disciplinary Counsel Douglas Ende, and disciplinary
counsel Francesca D' Angelo. Eugster alleges that the superior court has jurisdiction of
Eugster VI under 42 U.S.C. § 1983, Washington Constitution article IV, section 6, RCW
2.08.010, and chapter 7.24 RCW. The WSBA and its officials raise the same defenses
and arguments. Therefore, we will collectively refer to the defendants as the WSBA.
Because of the extensive and complicated claims and requests for relief asserted by
Stephen Eugster, we supply many details ofEugster's causes of action and demands for
relief.
Stephen Eugster's superior court complaint thoroughly outlines the structure and
function of the WSBA and its disciplinary process. Eugster contends that the
organizational structure creates inherent conflicts. According to Eugster, the WSBA's
duties include advocating for him, yet it seeks to discipline him. Supreme Court
members help to choose WSBA officials, and WSBA officials provide recommendations
for appointments to the Supreme Court. WSBA officials vet disciplinary hearing officers
and members of the WSBA Disciplinary Board, and then the hearing officers and
Disciplinary Board review disciplinary grievances filed by the WSBA. Eugster
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complains that the WSBA principally handles grievances lodged against sole
practitioners or members of small law firms. Hearing officers vary significantly in
competence and some officers violate the rights of the accused lawyers. The Washington
Rules of Professional Conduct (RPC) violate procedural due process because in many
instances the rules do not define what is permitted and not permitted. The Supreme Court
unlawfully defers to decisions of the Disciplinary Board. In his complaint, Stephen
Eugster alleges that the conduct of the Disciplinary Board lacks impartiality. He
complains that the WSBA vets all members of the board before each member's
appointment.
In the complaint in Eugster VI, Stephen Eugster alleges deprivation of his civil
rights, intentional infliction of emotional distress, and negligence. Eugster identifies the
civil rights violations as deprivation of procedural due process, both state and federal. He
also claims that the WSBA unconstitutionally employed the discipline system to retaliate
against him for bringing a federal lawsuit against it, and, thus, the WSBA violates his
federal First Amendment rights. Finally, Eugster contends that the disciplinary system
denies him of his right to petition the government for redress of violations of his state and
United States constitutional rights. Eugster seeks a declaration that the WSBA
disciplinary system is unconstitutional, an injunction against the WSBA disciplining him,
damages, punitive damages, and reasonable attorney fees and costs.
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Eugster v. WSBA
On December 23, 2015, Stephen Eugster filed a motion for voluntary dismissal of
his complaint pursuant to CR 4l(a)(l)(B). Presumably, the trial court never addressed
the motion.
On January 22, 2016, the WSBA filed a motion, pursuant to CR 12(b), to dismiss
Stephen Eugster's complaint. In the motion, WSBA argued that the superior court lacked
jurisdiction, Eugster's claims are not justiciable because he lacks standing and the claims
are not ripe, Eugster failed to state a claim on which relief can be granted, res judicata
bars the claims, and the WSBA enjoys immunity.
On February 3, 2016, Stephen Eugster filed an amended complaint for declaratory
judgment, injunction, and damages. The amended complaint repeated the description of
Washington State's integrated bar association and the alleged constitutional defects of the
structure and processes of the bar and its disciplinary system. The amendment removed
Eugster's intentional infliction of emotional distress claim, but reserved his negligence
claim. A section of the amended complaint reads:
This action seeks damages from Defendants for negligence as a
result of Defendants['] use of the Washington Lawyer Discipline System as
applied to Plaintiff as retaliation against Plaintiff for bringing an action in
Federal Court to asserting that Plaintiffs compelled membership and that
such actions violates Eugster's right of petition of the government for a
redress of grievances under the First and Fourteenth Amendment Rights to
the United States Constitution, and Washington State Constitution Art. 1,
Section 4.
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CP at 86-87 (emphasis added). The word "negligence" fits awkwardly in this paragraph,
and we question if Stephen Eugster meant to allege a claim under common law
negligence.
The gist of the amended complaint lies in its introduction:
This case concerns the civil rights of Plaintiff protected by 42 U.S.C.
§ 1983, the First and Fifth Amendments to the United States Constitution,
and Washington State Constitution Art. I, Section 1 and Section 2. Plaintiff
seeks declaratory judgments by the court declaring the WSBA Washington
Lawyer Discipline System unconstitutional because (l) the Discipline
System does not pass strict scrutiny and because (2) the Discipline System
violates a lawyer's right to due process oflaw.
Eugster seeks an injunction enjoining the Defendants or some of
them, from application of the WSBA Washington Lawyer Discipline
System to him, and in furtherance of the court's determinations that the
Discipline System is unconstitutional.
As to the foregoing, Eugster does not seek damages, or monetary
relief from Defendants or any of them.
However, Plaintiff does seek damages from some or all of the
Defendants for compensatory or nominal damages under 42 U.S.C. § 1983
for injuries to Plaintiff as a result of violations of Plaintiffs rights by
Defendants or some of them under 42 U.S.C. § 1983 concerning the use by
Defendants or some of them of the Discipline System to intimidate, harass
and retaliate against Plaintiff for bringing an action in United States District
Court, Western District of Washington in which Plaintiff asserts that under
First and Fourteenth Amendments and 42 U.S.C. § 1983 his fundamental
right not to associate with the WSBA is violated.
CP at 85. The amended complaint's prayer seeks the same relief as sought in the first
complaint.
The trial court dismissed all claims of Stephen Eugster with prejudice. The court
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dismissed all claims for damages based on GR 12.3 's grant of immunity to the WSBA
and its employees. The court dismissed all constitutional claims and claims for
declaratory judgment for lack of subject matter jurisdiction. The court ruled that the
Washington Supreme Court, under Rules for Enforcement of Lawyer Conduct (ELC) 2.1,
possessed exclusive jurisdiction over the lawyer discipline system. The trial court
reasoned that Eugster could have litigated his constitutional arguments before the state
Supreme Court during his earlier discipline proceeding. Stephen Eugster appeals.
On September 23, 2016, after filing his opening and reply brief in this appeal,
Stephen Eugster filed a statement of additional authorities. This court rejected the filing
because of the statement's noncompliance with RAP 10.8. The additional authorities
constituted copies of pleadings from the WSBA Office of Disciplinary Counsel's
complaint against Eugster in Eugster IV for his conduct with regard to Verdelle O'Neill,
including a formal complaint filed on June 16, 2016, after Eugster commenced this suit.
RAP 10.8 serves to allow parties an opportunity to cite case authority decided after the
completion of briefing. O'Neill v. City of Shoreline, 183 Wash. App. 15, 23,332 P.3d 1099
(2014). The rule does not grantpermission to file additional documents.
This court scheduled the decisional conference of the reviewing panel for
December 6, 2016. On December 14, 2016, Stephen Eugster filed a motion requesting
that this court take judicial notice of documents, and he attached the same documents to
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Eugster v. WSBA
his motion that he sought to bring to this court's attention by his statement of additional
authorities. The documents include the WSBA's June 16, 2016 formal complaint in
Eugster IV concerning Eugster's conduct toward Verdelle O'Neill; Eugster's answer,
affirmative defenses, counterclaims and third-party claims; the WSBA's motion to strike
Eugster's counterclaims and third-party complaint; Eugster's response to the WSBA's
motion to strike; order on motion to strike; and discovery pleadings. In the order on
motion to strike, the WSBA hearing examiner dismissed affirmative defenses,
counterclaims, and third-party claims asserted by Eugster on the basis of alleged due
process rights deprivations.
On January 9, 2017, Stephen Eugster filed with this court a second motion
requesting that this court take judicial notice. Eugster's motion contends that the WSBA
ended and a new association was born during the WSBA Board of Governors meeting, on
September 29-30, 2016, when the board added limited practice officers and limited
license legal technicians as members to the association. We address Eugster's motions
seeking judicial notice at the conclusion of our opinion.
LAW AND ANALYSIS
We initially note uncertainty as to whether we examine Stephen Eugster's first
complaint or his amended complaint. The trial court did not enter any order explicitly
dismissing the original complaint or granting Eugster leave to file an amended complaint.
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Eugster v. WSBA
I
I The court's dismissal order expressly dismisses the "complaint," not the amended
I complaint, but the order also references review of the amended complaint, not the first
I
complaint. We need not resolve this uncertainty since the result remains the same under
I
I either complaint.
I! Before addressing issues such as subject matter jurisdiction and res judicata, we
I identify the substantive claims asserted by Stephen Eugster. With his amended
complaint, Eugster seeks damages, an injunction, and declaratory relief under the
I Washington Constitution and the federal statute, 42 U.S.C. § 1983. He may seek
I damages for negligence. On appeal, Eugster only assigns error to rulings with regard to
his civil rights claims under the state and federal constitutions. Therefore, we do not
address any claim for negligence. We temporarily focus on 42 U.S.C. § 1983.
42 U.S.C. § 1983, an often employed, but rarely quoted, statute reads:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
Section 1983 is not itself a source of substantive rights. Graham v. Connor, 490 U.S.
386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Section 1983 only fulfills the
procedural ot remedial role of authorizing the assertion of a claim for relief. Graham v.
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Connor, 490 U.S. at 393-94. The pleader must also allege an independent substantive
basis for his claim, whether grounded in a federal constitutional or a statutory right.
Nabozny v. NCS Pearson, Inc., 270 F. Supp. 2d 1201, 1205 (D. Nev. 2003).
In his complaint, Stephen Eugster claims the WSBA violated his right to file a
grievance and his right to free speech under the First Amendment to the United States
Constitution. Nevertheless, he forwards no argument on behalf of the First Amendment
in his appellate brief, so we deem this cause of action abandoned. This court does not
review issues not argued, briefed, or supported with citation to authority. RAP 10.3(a);
Valente v. Bailey, 74 Wash. 2d 857, 858, 447 P.2d 589 (1968); Avellaneda v. State, 167 Wn.
App. 474, 485 n.5, 273 P.3d 477 (2012). Eugster asserts in his amended complaint and
argues on appeal that the WSBA breached the due process clause found in the Fourteenth
Amendment to the United States Constitution. We focus on this claim.
Subject Matter Jurisdiction
We are compelled to first decide if the trial court, and, in turn, this reviewing
court, holds subject matter jurisdiction over Stephen Eugster's complaint. We lack
authority to address the other defenses of the WSBA ifwe lack subject matter
jurisdiction. A court must have subject matter jurisdiction in order to decide a case. In re
T.R.P., 360 N.C. 588,636 S.E.2d 787, 790 (2006); Texas Association ofBusiness v.
Texas Air Control Board, 852 S.W.2d 440, 443 (Tex. 1993). Subject matter jurisdiction
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is the indispensable foundation on which valid judicial decisions rest, and, in its absence,
a court has no power to act. State v. Sellers,_ N.C. App._, 789 S.E.2d 459, 465
(2016). Nevertheless, a court always has jurisdiction to determine whether it has
jurisdiction over a particular case. Schwartz v. State, 136 Haw. 258, 262-63, 361 P.3d
1161 (2015).
Stephen Eugster argues that the superior court has subject matter jurisdiction over
his claims because a superior court possesses general jurisdiction and no constitutional
provision or statute has exclusively vested jurisdiction elsewhere. The WSBA responds
that article IV, section 1 of the Washington Constitution and state rule ELC 2.1 vest
exclusive jurisdiction in the Washington Supreme Court for challenges to the lawyer
disciplinary system.
A court possesses subject matter jurisdiction when it holds authority to adjudicate
the type of controversy involved in the action. In re Marriage of McDermott, 175 Wn.
App. 467, 480-81, 307 P.3d 717 (2013). Stephen Eugster bears the burden of proving the
court has jurisdiction. Outsource Services Management, LLC v. Nooksack Business
Corp., 172 Wash. App. 799, 807, 292 P.3d 147 (2013), ajf'd, 181 Wash. 2d 272, 333 P.3d 380
(2014).
Since Stephen Eugster limited his suit to civil rights claims under 42 U.S.C. §
1983, we limit our review to determining if a state court of general jurisdiction holds
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subject matter jurisdiction over a § 1983 claim. We specifically review the issue of
whether the Washington superior court holds subject matter jurisdiction to entertain due
process challenges to the structure of, process of, and actions by the WSBA from an
attorney previously subjected to the grievance process or presently scrutinized by the
lawyer discipline process. This review demands distinguishing between challenging a
II ruling by the WSBA or Supreme Court, challenging a pending proceeding, and
I forwarding a general, as opposed to an applied, challenge to the attorney disciplinary
!
I
Ii rules.
The trial court's ruling failed to observe Stephen Eugster's complaint and
I amended complaint included claims under 42 U.S.C. § 1983. In other words, the
I
I complaint asserted claims under federal law, which enjoys supremacy over state law. U.
I S. CONS. art. VI, cl. 2. A state rule such as ELC 2.1, which vests exclusive jurisdiction in
I
II the Washington Supreme Court for challenges to the lawyer disciplinary system, does not
I necessarily survive federal law dictates.
! Under the Washington Constitution:
II The judicial power of the state shall be vested in the supreme court,
superior courts, justices of the peace, and such inferior courts as the
legislature may provide.
WASH. CONST. art. IV,§ 1. ELC 2.1, a section of the rules for enforcement oflawyer
conduct, declares:
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The Washington Supreme Court has exclusive responsibility in the
state to administer the lawyer discipline and disability system and has
inherent power to maintain appropriate standards of professional conduct
and to dispose of individual cases oflawyer discipline and disability.
Persons carrying out the functions set forth in these rules act under the
Supreme Court's authority.
Under these provisions, the power of the Washington Supreme Court, under state law, to
regulate the practice of law is inviolate. Kommavongsa v. Haskell, 149 Wash. 2d 288, 311,
67 P.3d 1068 (2003). The state Supreme Court holds the ultimate authority for attorney
discipline in Washington. In re Disciplinary Proceedings Against Blanchard, 158 Wash. 2d
317, 328, 144 P.3d 286 (2006). The court exercises plenary authority in attorney
discipline matters. In re Disciplinary Proceedings Against VanDerbeek, 153 Wash. 2d 64,
80, 101 P.3d 88 (2004). In tum, by state Supreme Court rule, the Washington high court
has delegated to the WSBA disciplinary counsel and Disciplinary Board duties with
regard to investigation and review of disciplinary grievances. ELC 2.3, 2.8. The
Supreme Court has delegated no duties to the superior courts. Hahn v. Boeing Co., 95
Wash. 2d 28, 34, 621 P.2d 1263 (1980).
The Washington Constitution also addresses the jurisdiction of our superior courts,
found in each county. WASH. CONST. art. IV,§ 6 proclaims:
The superior court shall ... have original jurisdiction in all cases and
of all proceedings in which jurisdiction shall not have been by law vested
exclusively in some other court.
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Based on the state constitution, superior courts maintain general jurisdiction. Bour v.
Johnson, 80 Wash. App. 643, 647, 910 P.2d 548 (1996). Exceptions to the superior court's
broad jurisdictional grant must be narrowly construed. In re Marriage of McDermott,
17 5 Wash. App. at 481 (2013 ). Stephen Eugster seeks declaratory relief. Pursuant to RCW
7.24.010, a portion of the declaratory judgment chapter, superior courts "have power to
declare rights, status and other legal relations whether or not further relief is or could be
~laimed." As previously mentioned, Eugster also sues for federal civil rights violations
under 42 U.S.C. § 1983. State courts have concurrent jurisdiction with federal courts in
actions brought under 42 U.S.C. § 1983. Haywood v. Drown, 556 U.S. 729, 731, 129 S.
Ct. 2108, 173 L. Ed. 2d 920 (2009); Robinson v. City of Seattle, 119 Wash. 2d 34, 57, 830
P.2d 318 (1992).
If Stephen Eugster limited his challenge to Washington law or to the previous
implementation of attorney discipline against him, we would hold that the superior court
lacked subject matter jurisdiction over Eugster's complaint. But since he asserts federal
law and does not simply challenge past orders against him, we hold to the contrary. Two
United States Supreme Court decisions, District of Columbia Court ofAppeals v.
Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983) and Haywood v.
Drown, 556 U.S. 729, compel our conclusion that the superior court and, in turn, this
reviewing court possess subject matter jurisdiction.
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In those states where the Supreme Court possesses exclusive jurisdiction over
attorney discipline and the court appoints a Disciplinary Board as its agent, decisions of
the board to discipline an accused attorney function as a state court judgment. Mosby v.
Ligon, 418 F.3d 927, 932 (8th Cir. 2005); Mothershed v. Justices of the Supreme Court,
410 FJd 602, 607-08 (9th Cir. 2005). As already outlined, Washington operates such a
disciplinary system. Therefore, when a bar disciplinary arm of a state Supreme Court
issues an order against an attorney, a federal district or state trial court may not sit in
review of the order even if the attorney challenges the order on federal constitutional
grounds. District of Columbia Court ofAppeals v. Feldman, 460 U.S. 462 (1983);
Anderson v. Charter Township of Ypsilanti, 266 FJd 487, 492-93 (6th Cir. 2001).
Nevertheless, a party may bring a general challenge in lower courts to state bar rules
promulgated by state courts in nonjudicial proceedings. District of Columbia Court of
Appeals v. Feldman, 460 U.S. at 486; Schneider v. Colegio de Abogados de Puerto Rico,
917 F.2d 620,628 (1st Cir. 1990).
District of Columbia Court ofAppeals v. Feldman, 460 U.S. 462 (1983) informs
our decision. Feldman was actually two lawsuits, each started by attorneys seeking
admission to the District of Columbia bar. By act of congress, the District of Columbia
Court of Appeals held the authority to make rules respecting the admission and discipline
of District of Columbia attorneys. The Court of Appeals, being the highest court with
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respect to District of Columbia local law, serves the function of a state Supreme Court.
Marc Feldman, despite never attending law school, sought admission to the District of
Columbia bar on the basis that he studied law in the office of a practicing attorney and
had gained entrance to the Maryland and Virginia bars after having passed each state's
bar examination. The District of Columbia Court of Appeals issued an order denying
Feldman's application for admission based on a Court of Appeals rule requiring
applicants to have graduated from an American Bar Association (ABA) accredited law
school. Edward Hickey attended an unaccredited law school after serving in the Navy
with distinction for twenty years. The District of Columbia Court of Appeals entered an
order denying Hickey's application for entrance into the District of Columbia bar on the
basis of a rule requiring an applicant to have graduated from an ABA accredited law
school. Evidence, however, showed that the Court of Appeals had waived this rule in the
past.
Marc Feldman sued the District of Columbia Court of Appeals in the United States
District Court for the District of Columbia. He alleged that the Court of Appeals, by
denying him admission, deprived him of liberty and property without due process of law.
He further alleged that the Court of Appeals arbitrarily discriminated against him in
violation of equal protection of the laws. He sought a declaration that the Court of
Appeals and its rule, either on its face or as applied to him, violated his federal
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Eugster v. WSBA
constitutional rights. Edward Hickey also sued the District of Columbia Court of
Appeals in the United States District Court. The allegations of and relief sought by
Hickey echoed the allegations and prayer for relief of Marc Feldman.
The United States District Court dismissed both Marc Feldman's and Edward
Hickey's suits on the basis that it lacked subject matter jurisdiction since only the United
States Supreme Court, within the federal judiciary, may entertain an appeal from a state
court judicial order. The United States Court of Appeals for the District of Columbia
Circuit, a federal court as opposed to the Court of Appeals for the District of Columbia,
reversed and remanded the cases to the district court for review on their merits. The
United States Court of Appeals ruled that the proceedings before the District of Columbia
Court of Appeals were not judicial in the federal sense and thus did not foreclose
litigation of the constitutional claims in the lower federal court.
In District of Columbia Court ofAppeals v. Feldman, the United States Supreme
Court affirmed in part and reversed in part. The Court ruled that, to the extent Hickey
and Feldman sought review in the federal district court of the District of Columbia Court
of Appeals' denial of their petitions, the federal lower court lacked subject matter
jurisdiction over the complaints. 28 U.S.C. § 1257. To challenge those denials, even on
constitutional grounds, before the federal courts, Hickey and Feldman should have sought
certiorari from the United States Supreme Court after issuance of the District of
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No. 34345-6-III
Eugster v. WSBA
Columbia Court of Appeals' respective orders. But there was more to the Supreme Court
decision. To the extent Hickey and Feldman mounted a general challenge to the
constitutionality of the rule requiring graduation from an accredited law school, the
United States District Court held subject matter jurisdiction over the complaints.
In District of Columbia Court ofAppeals v. Feldman, the United States Supreme
Court undertook a nuanced analysis, and the outcome was not all or nothing. The Court
considered the key question to be whether the District of Columbia Court of Appeals'
orders denying Marc Feldman's and Edward Hickey's respective requests for
applications to the bar were judicial in nature or legislative, administrative, or ministerial
in nature. The proceedings surrounding the denial of the waivers by the local Court of
Appeals were judicial in nature since the orders did not look to the future or change
existing conditions, but instead applied present facts to a previously existing rule. In
contrast, when issuing its general rules controlling the admission and discipline of
attorneys, the District of Columbia Court of Appeals acted in a legislative manner.
Therefore, challenges to the constitutionality of state bar rules did not necessarily ask the
lower court to review a final state court judgment in a judicial proceeding. The Supreme
Court qualified its ruling by noting it did not reach the question of whether the doctrine of
res judicata foreclosed any portions of the litigation.
We may ponder the practical effect of the United States Supreme Court's rulings
23
No. 34345-6-111
Eugster v. WSBA
in District of Columbia Court ofAppeals v. Feldman. Assume that, on remand, the
United States District Court agreed with Marc Feldman and Edward Hickey and in
general held unconstitutional the District of Columbia rule requiring graduation from an
accredited law school. Would Feldman and Hickey automatically be entitled to
admission to the D.C. bar, despite being unable to challenge their prior denial to
admission? Must Feldman and Hickey undergo the application process again? Could the
District of Columbia Court of Appeals deny the application the second time on the basis
that the first denial remained binding? The United States Supreme Court decision might
indirectly allow Feldman and Hickey the goal directly unobtainable.
Feldman of course has the distinction of initially being filed in federal, not state
court. We conclude, however, that its rules apply equally to state court litigation, since
state courts hold concurrent jurisdiction with federal courts over claims under the federal
constitution and 42 U.S.C. § 1983. Haywood v. Drown, 556 U.S. 729 (2009) discussed
later confirms this conclusion.
Feldman also fails to address the outcome if a state bar has commenced
disciplinary proceedings against an attorney, but neither the Disciplinary Board nor the
state Supreme Court has issued a formal order of discipline. When the lawyer sues in
federal court, the federal court will abstain and stay the court action under the doctrine
formulated in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).
24
No. 34345-6-111
Eugster v. WSBA
Leaf v. Supreme Court, 979 F.2d 589 (7th Cir. 1992). A state superior court has no such
obligation to abstain.
Stephen Eugster alleged in both complaints that WSBA's disciplinary counsel
asked the Disciplinary Board to refer Cheryl Rampley's grievance for formal process.
Nevertheless, he did not allege that the Disciplinary Board made the referral. At the time
Eugster filed suit, no formal proceedings pended against Eugster. Regardless, the WSBA
does not contend that, because of any pending proceeding against Stephen Eugster within
the state bar disciplinary system, the courts should as a matter of comity or restraint defer
to the disciplinary process even if jurisdiction exists.
Haywood v. Drown, 556 U.S. 729 (2009) also controls our review of subject
matter jurisdiction. In order to stem increasing civil rights litigation filed by state
prisoners against prison officials, the New York Legislature adopted legislation divesting
state supreme courts of jurisdiction over § 1983 suits seeking money damages against
correction officers. New York supreme courts are the state's trial courts of general
jurisdiction. The United States Supreme Court held the New York legislation
unconstitutional because the exceptional treatment of a limited category of§ 1983 claims
was inconsistent with the supremacy clause of the United States Constitution. Although
States retain substantial leeway to establish the contours of their judicial systems, they
lack authority to nullify a federal right or cause of action deemed inconsistent with their
25
No. 34345-6-III
Eugster v. WSBA
local policies. The state of New York impermissibly thwarted Congress' judgment that
all persons who violate federal rights under color of state law be held liable for damages.
A state may not employ a jurisdictional rule to undermine federal law.
We must parse the allegations and requests for relief sought by Stephen Eugster.
In both of his complaints, Eugster complains about compulsory membership in and dues
payment to the WSBA. Nevertheless, his prayer for relief seeks no declaration or
injunction with regard to membership or dues payment. His prayer for relief seeks only a
declaration that the structure and process of the state bar disciplinary system violates due
process and equal protection, and he abandoned his equal protection claim on appeal. He
seeks an injunction against the WSBA from disciplinary proceedings against him. These
requests do not challenge any earlier disciplinary order entered against Eugster. Instead,
he seeks a ruling based on the general rules adopted by the Supreme Court concerning the
organization and function of the WSBA disciplinary system. Therefore, we hold that the
superior court possessed subject matter jurisdiction over Eugster's complaint or amended
complaint.
The WSBA cites three out-of-state cases to support its contention that the superior
court lacks subject matter jurisdiction: Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005),
Barnard v. Sutliff, 846 P .2d 1229 (Utah 1992), Jacobs v. State Bar of California, 20 Cal.
3d 191,570 P.2d 1230, 141 Cal. Rptr. 812 (1977). All cases support the WSBA's
26
No. 34345-6-III
Eugster v. WSBA
position that superior courts lack jurisdiction to review state bar disciplinary proceedings.
Nevertheless, as state court decisions, the trio of opinions lack value in the face of United
States Supreme Court decisions addressing federal law.
In Jacobs v. State Bar, the California state bar, and, in Smith v. Mullarkey, the
Colorado state bar, had already initiated disciplinary proceedings against the attorney
when he filed suit in the trial court for relief. In Barnard v. Sutliff, the attorney
challenged, in the state trial court, the state bar's disciplinary procedure on due process
grounds, although the opinion does hot mention if the attorney relied on the state
constitution, federal constitution, or both. The Utah high court ruled that the attorney
could not challenge the bar's procedures in the lower court, since the high court
maintained exclusive jurisdiction over the disciplinary process. The Sutliff, Jacobs, and
Smith courts, however, did not address the federal law's requirement that state courts of
general jurisdiction remain open for civil rights suit.
The WSBA notes that an attorney may raise and adjudicate constitutional
challenges within the scope of the lawyer discipline system with ultimate and
independent review by the state Supreme Court. In re Disciplinary Proceeding Against
Smith, 170 Wn.2d 721,729,246 P.3d 1224 (2011); see In re Disciplinary Proceeding
Against Blanchard, 158 Wash. 2d at 330-31 (2006). We recognize this feature of the
disciplinary process, but the feature does not wrest jurisdiction from the superior court
27
No. 34345-6-111
Eugster v. WSBA
over federal civil rights claims. Marc Feldman and Edward Hickey also argued
constitutional claims before the District of Columbia Court of Appeals.
In his amended complaint, Stephen Eugster forwards the state constitution, in
addition to the United States Constitution, as a basis for relief. He inconsistently
mentions and omits Washington's Constitution in various sections of his appeal brief. On
appeal, he assigns no error to dismissal of his state law claims. Assuming Eugster to still
assert a claim under the Washington Constitution, we hold, based on Washington
Constitution art. IV,§ 1 and ELC 2.1, that the superior court and this reviewing court
lack subject matter jurisdiction to address any claim based on the state constitution. 42
U.S.C. § 1983 extends only to claims based on the United States Constitution and federal
statute. Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980).
When a party raises a constitutional claim under both the Washington and United
States Constitutions, the Washington courts require the party to discuss the Gunwall
factors if the party deems the Washington Constitution grants greater protections than the
federal constitution. State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986); State v.
Johnson, 128 Wash. 2d 431, 444-45, 909 P.2d 293 (1996); State v. Olivas, 122 Wash. 2d 73,
82, 856 P .2d 107 6 ( 1993 ). Stephen Eugster failed to discuss the Gunwall factors in his
brief. Nevertheless, we lack authority to dismiss any state claim on this basis, since we
lack subject matter jurisdiction to hear the merits of a claim under Washington law.
28
No. 34345-6-III
Eugster v. WSBA
Res Judicata
The WSBA argues that Stephen Eugster's due process claim in this lawsuit
substantively relates to Eugster's prior disciplinary proceedings culminating in Eugster I,
166 Wash. 2d 293 (2009), and the suit Eugster brought against the WSBA and its officers in
the United States District Court for the Western District of Washington, Eugster V, No.
C15-0375-JLR, 2015 WL 5175722. The WSBA does not rely on Eugster III, the suit
brought in the United States District Court for the Eastern District of Washington,
presumably because the district court dismissed that action without prejudice. The
WSBA argues that, because of the relationship between this suit on appeal and Eugster I
or V, res judicata bars this suit. Since we hold that the res judicata effects of Eugster I
compel dismissal of Eugster VI, this case on appeal, we do not address the import of
Eugster V.
In Eugster I, the Washington Supreme Court, through its disciplinary arm, the
WSBA, and by its own reported decision, imposed disciplinary sanctions on Stephen
Eugster. During Eugster I, the WSBA and the Supreme Court implemented the process
that Eugster now complains violates his due process rights. Nevertheless, the
Washington Supreme Court decision, 166 Wash. 2d 293, mentions no argument by Eugster
that the disciplinary proceeding breached his constitutional entitlements. The WSBA
presents none of the records of the disciplinary process to show that, at any time during
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No. 34345-6-III
Eugster v. WSBA
the proceeding, Eugster raised a constitutional defense or sought to thwart the
disciplinary process on due process grounds. Nonetheless, the WSBA disciplinary rules
did not prevent any constitutional challenges during Eugster's disciplinary process. The
Washington Supreme Court has entertained constitutional challenges, within disciplinary
hearings, to the state disciplinary process as a whole and to discrete practices within the
process. In re Disciplinary Proceeding Against Pfefer., 182 Wn.2d 716,344 P.3d 1200
(2015); In re Disciplinary Proceeding Against Jackson, 180 Wash. 2d 201, 322 P.3d 795
(2014); In re Disciplinary Proceeding against Starczewski, 177 Wash. 2d 771, 306 P.3d 905
(2013); In re Disciplinary Proceeding Against Smith, 170 Wn.2d 721,246 P.3d 1224
(2011); In re Disciplinary Proceeding Against King, 168 Wash. 2d 888, 232 P.3d 1095
(2010); In re Disciplinary Proceeding Against Sanai, 167 Wash. 2d 740, 225 P.3d 203
(2009); In re Disciplinary Proceeding Against Marshall, 167 Wash. 2d 51, 217 P .3d 291
(2009); In re Disciplinary Proceeding Against Poole, 164 Wash. 2d 710, 193 P.3d 1064
(2008); In re Disciplinary Proceeding Against Blanchard, 15 8 Wash. 2d 317, 144 P .3d 286
(2006); In re Disability Proceeding Against Diamondstone, 153 Wash. 2d 430, 105 P.3d 1
(2005); In re Disciplinary Proceeding Against Romero, 152 Wash. 2d 124, 94 P.3d 939
(2004); In re Disciplinary Proceedings Against Miller, 99 Wash. 2d 695, 663 P.2d 1342
(1983); In re Disciplinary Proceedings Against of Hawkins, 91 Wn.2d 497,589 P.2d 247
(1979); In re Proceedings for Disbarment of Beakley, 6 Wash. 2d 410, 107 P.2d 1097
30
No. 34345-6-111
Eugster v. WSBA
(1940); In re Proceedings for Disbarment of Ward, 106 Wash. 147, 179 P. 76 (1919); In
re Proceedings for Disbarment ofBruen, 102 Wash. 472, 172 P. 1152 (1918).
Stephen Eugster does not contend that the WSBA has changed the disciplinary
process since his suspension in 2009. Therefore, we ask if res judicata bars a lawsuit, in
which an attorney challenges the constitutionality of the attorney disciplinary process,
when the attorney could have, but did not, challenge the same process during any earlier
disciplinary proceeding that resulted in a Supreme Court decision. We hold that res
judicata stops the second suit.
Stephen Eugster asserts a federal claim in state court. Thus, we must decide
whether we apply res judicata principles emanating from Washington law or federal law.
Resjudicata may bar constitutional claims brought under 42 U.S.C. § 1983. Migra v.
Warren City School District Board of Education, 465 U.S. 75, 81, 104 S. Ct. 892, 79 L.
Ed. 2d 56 (1984); Allen v. McCurry, 449 U.S. 90, 94 n.5, 101 S. Ct. 411, 66 L. Ed. 2d
308 (1980); Preiser v. Rodriguez, 411 U.S. 475,497, 93 S. Ct. 1827, 36 L. Ed. 2d 439
(1973). 28 U.S.C. § 1738 requires all federal courts to give preclusive effect to state
court judgments whenever the courts of the state from which the judgments emerged
would do so. Therefore, under federal law, state preclusion rules govern whether a
plaintiffs § 1983 claim is barred by a state court judgment. Sunrise Corp. of Myrtle
Beach v. City of Myrtle Beach, 420 F.3d 322,327 (4th Cir. 2005). Although this suit
31
No. 34345-6-111
Eugster v. WSBA
landed in state court, additional reason would support application of the court's own
home rules. We therefore apply Washington law of claims preclusion.
Under Washington law, res judicata, or claim preclusion, prohibits the relitigation
of claims and issues that were litigated or could have been litigated in a prior action.
Loveridge v. Fred Meyer, Inc., 125 Wash. 2d 759, 763, 887 P.2d 898 (1995); Pederson v.
Potter, 103 Wash. App. 62, 67, 11 P.3d 833 (2000). The doctrine curtails multiplicity of
actions and harassment in the courts. Bordeaux v. Ingersoll Rand Co., 71 Wash. 2d 392,
395,429 P.2d 207 (1967).
The broad general rule of res judicata suggests that a party is always prohibited
from litigating a claim or issue that could have been raised in any earlier suit.
Nevertheless, limits constrain the doctrine. Under Washington law, for the doctrine of
res judicata to apply, a prior judgment must have a concurrence of identity with a
subsequent action in ( 1) subject matter, (2) cause of action, (3) persons and parties, and
(4) the quality of the persons for or against whom the claim is made. Rains v. State, 100
Wash. 2d 660, 663, 674 P.2d 165 (1983); Berschauer Phillips Construction Co. v. Mutual of
Enumclaw Insurance Co., 175 Wash. App. 222, 227-28, 308 P.3d 681 (2013). Resjudicata
also requires that the prior judgment be final. Leija v. Materne Brothers, Inc., 34 Wn.
App. 825, 827, 664 P.2d 527 (1983).
32
No. 34345-6-111
Eugster v. WSBA
Washington law does not specify how precise the subject matter in the first and
second suit must coincide. We observe, however, that the subject of both Eugster I and
Eugster VI, the case on appeal, includes the WSBA disciplinary process. In his appeal
brief, Stephen Eugster addresses the res judicata impact of Eugster V, but not Eugster I.
Without an argument from Stephen Eugster to the contrary, we hold that the subject
matter in the two proceedings matches.
The WSBA was not a named party in Eugster I. Nevertheless, the WSBA
functioned as the plaintiff that prosecuted the ethical charges against Stephen Eugster.
The rule of identity of parties does not demand that each party be a named party in both
proceedings. The rule may benefit one in control of the litigation. Stevens County v.
Futurewise, 146 Wash. App. 493, 504, 192 P.3d 1 (2008). Absent an argument from
Stephen Eugster to the contrary, we hold that Eugster I and Eugster VI possess the same
parties. Since Stephen Eugster and the WSBA litigate in their respective individual and
official capacities in both procedures, we further hold that the quality of the parties
corresponds in each suit.
Remember that WSBA is not the only defendant on appeal. In Eugster VI,
Stephen Eugster also sues three employees of WSBA, Paula Littlewood, Francesca
D' Angelo, and Douglas Ende. These employees, however, garner the same res judicata
protections as their employer. Different defendants in separate suits are the same party
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No. 34345-6-111
Eugster v. WSBA
for res judicata purposes as long as they are in privity. Ensley v. Pitcher, 152 Wash. App.
891, 902-03, 222 P.3d 99 (2009). The employer and employee relationship suffices to
establish privity. Kuhlman v. Thomas, 78 Wash. App. 115, 121-22, 897 P.2d 365 (1995).
The problematic res judicata factor for this appeal is the second factor of an
identity of the cause of action. Ifwe took this requirement literally, we would hold that
the proceedings lack this identity. Washington law does not necessarily define the term
"cause of action" for purposes of res judicata. In other contexts, the Washington courts
have referred to a "cause of action" as the act that occasioned the injury, McFarling v.
Evaneski, 141 Wn. App. 400,405, 171 P.3d 497 (2007), and a legal right of the plaintiff
invaded by the defendant. Cowley v. Northern Pacific Railway Co., 68 Wash. 558, 563,
123 P. 998 (1912). Black's Law Dictionary defines the term as "a group of operative
facts giving rise to one or more bases for suing; a factual situation that entitles one person
to obtain a remedy in court from another person; claim." BLACK'S LAW DICTIONARY
266 (10th ed. 2014). These definitions fit awkwardly into the relationship between
Eugster I and Eugster VI. The operative facts of Eugster I was Stephen Eugster's
conduct toward his client, Marion Stead. The WSBA initiated the proceeding in order to
enforce the attorney's code of professional conduct, to protect the public, and to sanction
Eugster. The operative facts that initiated Eugster VI was Cheryl Rampley's grievance
filed with the WSBA against Eugster on behalf of her aunt, Verdelle G. O'Neill. Eugster,
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No. 34345-6-III
Eugster v. WSBA
not the WSBA, seeks a remedy in Eugster VI. Eugster I started as an administrative
proceeding before an arm of the Supreme Court. Eugster VI is a civil rights action
starting in superior court.
The res judicata doctrine either redefines or undefines the term "cause of action"
as found in other settings. Washington utilizes no specific test for determining identity of
causes of action. Rains v. State, 100 Wash. 2d at 663-64 (1983). Consideration of four
factors provide an analytical tool for determining whether two causes of action are
identical for purposes of res judicata: ( 1) whether rights or interests established in the
prior judgment would be destroyed or impaired by prosecution of the second action; (2)
whether substantially the same evidence is presented in the two actions; (3) whether the
two suits involve infringement of the same right; and (4) whether the two suits arise out
of the same transactional nucleus of facts. Berschauer Phillips Construction Co. v.
Mutual of Enumclaw Insurance Co., 175 Wash. App. at 230 (2013). All four elements need
not be present to bar the second legal action. See Rains v. State, 100 Wash. 2d at 664.
In Berschauer Phillips Construction Co. v. Mutual ofEnumclaw Insurance Co.,
17 5 Wash. App. 222 (2013 ), this court held that res judicata barred a second suit brought by
the construction company against the insurance company. The central issue in both
lawsuits were the same: whether the insurance company had a duty under its policy to
indemnify its insured. The evidence necessary to each lawsuit was also the same.
35
No. 34345-6-111
Eugster v. WSBA
The Washington Supreme Court's decision in Eugster I upheld the WSBA's and
the Supreme Court's authority to discipline lawyers in general and Stephen Eugster in
particular. The Supreme Court's opinion confirmed the validity of the Washington State
attorney disciplinary process. Eugster's current challenge to that process would impair
the express and implied rulings in Eugster I. The disciplinary process challenged by
Eugster today remains the same from the process employed by the WSBA during Eugster
I. Thus, Eugster asserts the same facts and arguments in Eugster VI that he could have
raised in Eugster I. Eugster I and VI possess the same nucleus of facts relevant to the
constitutionality of the Washington attorney disciplinary process. The same rights and
disabilities were or are at stake in Eugster I and Eugster VI. Thus, we hold Eugster I and
Eugster VI to involve the same cause of action.
Stephen Eugster's failure to assert a due process argument in Eugster I does not
impede enforcement of res judicata. Res judicata applies to § 1983 actions with respect
to the issues actually litigated and also issues that could have been but were not litigated
in the state court proceedings. Migra v. Warren City School District Board of Education,
465 U.S. 75 (1984); Berschauer Phillips Construction Co. v. Mutual of Enumclaw
Insurance Co., 175 Wash. App. at 227-28 (2013). Res judicata applies not only to points
on which the court was actually required by the parties to form an opinion and pronounce
a judgment, but to every point that properly belonged to the subject of the litigation, and
36
No. 34345-6-III
Eugster v. WSBA
which the parties, exercising reasonable diligence, might have brought forward at that
time. Sound Built Homes, Inc. v. Windermere Real Estate/South, Inc., 118 Wash. App. 617,
631 n.28, 72 P.3d 788 (2003).
Although many tests have been suggested for determining whether a matter should
have been litigated in a prior proceeding, there is no simple or all-inclusive test. Kelly-
Hansen v. Kelly-Hansen, 87 Wash. App. 320, 330, 941 P.2d 1108 (1997). The controlling
factors actually echo the factors reviewed when determining if the two suits entail the
same cause of action. When determining if an argument should have been raised before,
courts consider a variety of factors, including, whether the present and prior proceedings
arise out of the same facts, whether they involve substantially the same evidence, and
whether rights or interests established in the first proceeding would be destroyed or
impaired by completing the second proceeding. Kelly-Hansen v. Kelly-Hansen, 87 Wn.
App. at 330. A matter should have been raised and decided earlier if it is merely an
alternate theory of recovery or an alternate remedy. Kelly-Hansen v. Kelly-Hansen, 87
Wash. App. at 331. A plaintiff may not reinstitute, against the same parties, the same cause
of action based on the same array of facts merely by changing legal theories and
sovereignties. Howe v. Brouse, 422 F.2d 347, 348 (8th Cir. 1970).
When a party should reasonably foresee that an adverse state court judgment will
create a constitutional issue, that issue should be argued before the state court. Roy v.
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No. 34345-6-111
Eugster v. WSBA
City ofAugusta, 712 F.2d 1517, 1521 (1st Cir. 1983). Otherwise the principles of res
judicata will bar a party from later raising the constitutional claim against the same
parties in an action under§ 1983. Roy v. City ofAugusta, 712 F.2d at 1521. The
principle of res judicata that bars claims that might have been raised extends to a
defendant in an earlier civil suit who failed to raise a defense based on the constitution.
Lovely v. Laliberte, 498 F.2d 1261, 1263 (1st Cir. 1974). This principle even extends to
defenses that a party could have raised in an administrative proceeding. Krison v. Nehls,
767 F .2d 344, 348 (7th Cir. 1985).
Although other jurisdictions' decisions do not bind us, federal courts have
addressed the circumstances when a disciplined attorney sues the disciplinary authority
for violation of constitutional rights after imposition of discipline. In Martinez Rivera v.
Trias Monge, 587 F.2d 539 (1st Cir. 1978), the federal Court of Appeals held that res
judicata barred an attorney's suit for violation of his constitutional rights against the
Puerto Rico Supreme Court that suspended him from law practice. The attorney actually
raised the constitutional claims during the disciplinary proceeding, but remember res
judicata applies also to claims that a litigant could have asserted in the first proceeding.
Martinez Rivera v. Trias Monge necessarily implies that a disciplinary proceeding can be
the same cause of action as a later suit challenging the process employed during the
proceeding.
38
No. 34345-6-111
Eugster v. WSBA
Leaf v. Supreme Court, 979 F.2d 589 resulted in the same outcome. The
Wisconsin Supreme Court's investigation of a complaint against an attorney resulted in a
six-month suspension of the attorney's license to practice. The federal court dismissed
the attorney's later civil rights action on the ground of res judicata, because the attorney
sought to attack the state judicial decision in which she attempted to raise a constitutional
challenge to the state disciplinary procedures. Wisconsin's disciplinary procedures
echoed Washington's procedures.
In Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970), the
Supreme Court of Ohio suspended James Coogan from the practice of law. Coogan filed
suit in federal court to enjoin the suspension on the ground that the state disciplinary
proceeding violated his constitutional right to confront witnesses. The federal court
refused to entertain the suit for lack of subject matter jurisdiction and on the ground of res
judicata. If Coogan disagreed with the Ohio Supreme Court's decision on constitutional
grounds, Coogan could have asked the United States Supreme Court for review of the
suspension.
Finally, in Czura v. Supreme Court, 632 F. Supp. 267 (D.S.C. 1986), ajf'd, 813
F.2d 644 (4th Cir. 1987). Walter Czura filed suit to gain readmission to the South
Carolina bar years after disbarment for committing a crime. The federal district court
dismissed the suit because the attorney could have raised. his constitutional challenge
39
No. 34345-6-III
Eugster v. · WSBA
before the state Supreme Court before disbarment.
In our case on appeal, Stephen Eugster does not challenge the discipline imposed
on him during Eugster I. He seeks, in part, to preclude the prosecution of Eugster IV.
Nevertheless, we discern no reason to distinguish our appeal from the other attorney
disciplinary suits. Eugster could have raised his constitutional challenge in Eugster I.
The policy against harassment by multiple suits applies with equal force when Eugster
files an independent action to raise a defense to a second disciplinary proceeding that he
could have raised in the first proceeding.
Stephen Eugster could not have recovered damages for constitutional
infringements during the disciplinary process arrayed against him in Eugster I.
Nevertheless, the same would have been true for the attorney plaintiffs in Leaf v.
Supreme Court, 979 F.2d 589; Martinez Rivera v. Trias Monge, 587 F.2d 539; Coogan v.
Cincinnati Bar Association, 431 F .2d 1209; Czura v. Supreme Court, 632 F. Supp. 267,
but in each case the court bestowed res judicata effect on bar disciplinary proceedings.
In Vandenplas v. City of Muskego, 753 F.2d 555 (7th Cir. 1985), the city obtained
a state court order authorizing the razing of Lawrence Vandenplas' farm buildings. After
the razing, Vandenplas sued the city and alleged that the destruction of his buildings
resulted from his criticism of the city and thus breached his due process, equal protection,
and First Amendment rights. The federal court summarily dismissed Vandenplas' suit on
40
No. 34345-6-111
Eugster v. WSBA
the basis of res judicata. Vandenplas could have raised his constitutional arguments as
defenses in the state court action. Although the state court could not have awarded
Vandenplas damages for the constitutional violations, if Vandenplas had prevailed on the
constitutional issues, the city would have been precluded from razing the buildings and
thereby Vandenplas would have averted damage.
We recognize that at least one court has held that the inability to recover damages
in a first proceeding precludes application of res judicata in a second proceeding brought
to gamer damages. Thaler v. Casella, 960 F. Supp. 691 (S.D.N.Y. 1997). Nevertheless,
we adopt the analysis by the Seventh Circuit Court of Appeals in Vandenplas v. City of
Muskego. Stephen Eugster could have litigated the constitutionality of the Washington
disciplinary process in Eugster I and sought damages in a later suit. Any ruling in
Eugster I affirming any alleged violation of Eugster's due process rights would likely
collaterally estop the WSBA from denying liability in a later suit. Any ruling in Eugster
I voiding the WSBA disciplinary process may have prevented the damages now claimed
by Stephen Eugster as a result of later disciplinary proceedings. The purposes of res
judicata apply regardless of whether Eugster could seek damages in Eugster I. The
WSBA should not be faced with litigation over issues Eugster could have litigated before.
By way of his first motion for this court to take judicial notice, Stephen Eugster
observes that the WSBA hearing examiner, in Eugster IV, recently dismissed his
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No. 34345-6-111
Eugster v. WSBA
affirmative defenses, counterclaim and third-party complaint, by which he complains
about violation of his due process rights. We note that dismissal of a counterclaim and
third-party complaint do not necessarily prevent Eugster from arguing constitutional
defenses against the current disciplinary proceeding. Dismissal of affirmative defenses
may be more problematic. Nevertheless, dismissal may have been proper under res
judicata principles. Also, Eugster remains free to challenge the hearing examiner's
decision before the WSBA Disciplinary Board and the state Supreme Court.
Stephen Eugster argues that, during the Eugster I proceedings, he lacked an
opportunity for a United States District Court to review Washington's disciplinary
process due to the Younger abstention doctrine and the Feldman doctrine. We already
discussed the rule from Feldman. The Younger abstention doctrine derives from Younger
v. Harris, 401 U.S. 37 (1971). Under the Younger doctrine, federal courts do not grant
relief that interferes with pending state criminal prosecutions or with pending state civil
proceedings that implicate important state interests. Eugster's argument fails to
recognize that he had the right to seek review of the Washington Supreme Court's
decision in Eugster I before the United States Supreme Court. Eugster cites no case that
holds that the inability to challenge a state proceeding in the United States District Court
does not preclude the application of res judicata.
Because we hold that res judicata bars this suit we do not address the WSBA's
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Eugster v. WSBA
other arguments of lack of justiciability, immunity, and failure to state a claim.
Judicial Notice
After this court conferenced in December 2016, Stephen Eugster filed two motions
respectively requesting this court take judicial notice of a June 2016 disciplinary action
filed by the WSBA against Stephen Eugster with regard to his conduct toward his client
Verdelle O'Neill and of a September 2016 vote by the WSBA Board of Governors to
admit limited practice officers and limited license legal technicians as members of the
WSBA. We deny the motions.
ER 201 governs judicial notice and declares:
(a) Scope of Rule. This rule governs only judicial notice of
adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably
be questioned.
(c) When Discretionary. A court may take judicial notice, whether
requested or not.
(d) When Mandatory. A court shall take judicial notice if
requested by a party and supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely
request to an opportunity to be heard as to the propriety of taking judicial
notice and the tenor of the matter noticed. In the absence of prior
notification, the request may be made after judicial notice has been taken.
(t) Time of Taking Notice. Judicial notice may be taken at any
stage of the proceeding.
Judicial notice may be taken on appeal if the following standard is met:
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No. 34345-6-111
Eugster v. WSBA
We may take judicial notice of the record in the case presently
before us or "in proceedings engrafted, ancillary, or supplementary to it."
However, we cannot, while deciding one case, take judicial notice of
records of other independent and separate judicial proceedings even though
they are between the same parties.
Spokane Research & Defense Fund v. City of Spokane, 155 Wash. 2d 89, 98, 117 P.3d 1117
(2005) (quoting In re Adoption ofE.T., 150 Wn.2d 409,415, 78 P.3d 634 (2003)). In
addressing the concept of "proceedings engrafted, ancillary, or supplementary," the
Washington Supreme Court has declined to take judicial notice of the legal conclusions
in a dependency action in a subsequent adoption proceeding because the dependency
action constituted a separate proceeding. In re Adoption of B. T., 150 Wash. 2d at 415. In
Spokane Research & Defense Fund, the high court again refused to take notice of
documents from a separate proceeding. Spokane Research & Defense Fund v. City of
Spokane, 155 Wash. 2d at 98-99. We follow suit and decline to take judicial notice ofa
related, but separate, proceeding.
We also rule Stephen Eugster's motions for judicial notice to be untimely. Under
ER 201 (e), a party is entitled "upon timely request" to an opportunity to be heard as to
the propriety of taking judicial notice and the tenor of the matter noticed. Eugster
erroneously attempted to introduce the disciplinary proceeding pleadings by a statement
of additional authorities in September 2016. He then waited until late December 2016,
after the court conferenced, before bringing his motions.
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No. 34345-6-111
Eugster v. WSBA
CONCLUSION
On the ground ofresjudicata, we affirm the trial court's dismissal of Stephen
Eugster's complaint.
Fear!~)~
WE CONCUR:
Pennell, J.
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