Unpublished Disposition, 851 F.2d 361 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 361 (9th Cir. 1988)

Jerrold W. SMITH, Mary Van Laanen, Plaintiffs-Appellants,v.Larry MOUNT, Sheriff of Whatcom County, Washington; WhatcomCounty, a subdivision of the State of Washington; andKenneth Eikenberry, Attorney General of the State ofWashington, Defendants-Appellees.

No. 87-3900.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1988.Decided June 23, 1988.

Before EUGENE A. WRIGHT, FERGUSON and BRUNETTI, Circuit Judges.


MEMORANDUM* 

* Jerrold W. Smith and his wife, Mary Van Laanen, appeal the district court's dismissal of their action which challenges the constitutionality of the State of Washington's Uniform Controlled Substances Act forfeiture hearing provision, Wash.Rev.Code Sec. 69.50.505(e). The action also challenges the constitutionality of appellants' particular hearing, which related to their narcotics conviction and resulted in the forfeiture of their jointly owned pole building. The district court determined that, because Jerrold had previously and unsuccessfully litigated these claims in the courts of the State of Washington, Jerrold was barred as a plaintiff by the doctrine of res judicata, and Mary was barred as a plaintiff by the doctrine of collateral estoppel. We affirm.

II

Federal courts generally have given preclusive effect to judgments of state courts. Allen v. McCurry, 449 U.S. 90, 95 (1980); Americana Fabrics, Inc. v. L & L Textiles, Inc., 754 F.2d 1524, 1529 (9th Cir. 1985). Actions brought under Sec. 1983 are no exception to this general rule. See Allen, 449 U.S. at 103-05; Sewer Alert Committee v. Pierce County, 791 F.2d 796, 798 (9th Cir. 1986). This federal court practice will "not only reduce unnecessary litigation and foster reliance on adjudication, but also promote the comity between state and federal courts that has been recognized as a bulwark of the federal system." Allen, 449 U.S. at 95-96 (citing Younger v. Harris, 401 U.S. 37, 43-45 (1971)). As the Allen court recognized, "Congress has specifically required federal courts to give preclusive effect to state-court judgments whenever the courts of the state from which the judgments emerge would do so." 449 U.S. at 96 (referring to 28 U.S.C. § 1738). Thus, in this case, because the judgment in question is that of the State of Washington, the res judicata and collateral estoppel principles of Washington should be applied.

III

This court has recognized that under Washington law, " [r]es judicata occurs when a prior judgment has a concurrence of identity in four respects with a subsequent action. There must be identity of (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." Sewer Alert Committee, 791 F.2d at 798-99 (quoting Rains v. State, 100 Wash. 2d 660, 674 P.2d 165, 168 (1983)). In addition, it is generally accepted that res judicata will not be applied if the party against whom the doctrine would be applied did not have a full and fair opportunity to litigate the matter in the state court. See Montana v. United States, 440 U.S. 147, 153 (1979).

There is no question that the "four identities" discussed in Rains are present in this action. The subject matter of the state court and district court actions was the pole building. The cause of action in both fora was based on claims that the forfeiture statute and hearing were violative of due process rights. Jerrold and Mount were party to both actions. And notwithstanding the addition of two defendants in the district court, Jerrold and Mount were primary parties, similarly situated in both actions.

Moreover, this is not a case in which Jerrold was not afforded a full and fair opportunity to litigate the matter in state court. When we read the opinion of the Washington Court of Appeals, Smith v. Mount, 45 Wash. App. 623, 726 P.2d 474 (1986), in connection with that court's denial of Jerrold's motion to recall its mandate and modify its ruling, it is evident that each of Jerrold's present claims was addressed on the merits. We are directed to no circumstances indicating that the Washington courts were not competent to address these claims, or that the procedures employed were somehow deficient. Consequently, in the interests of repose and comity, we agree that Jerrold's claims are barred by the doctrine of res judicata.

IV

In Washington, collateral estoppel will only apply if the following questions can be answered affirmatively:

(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with the party to the prior adjudication? (4) Will the application of the doctrine not work an injustice on the party against whom the doctrine is to be applied?

Rains, 674 P.2d at 169. The fourth requirement, above, embodies the consideration of whether there was a full and fair opportunity to litigate the issue in the original action. Id.; cf Allen, 449 U.S. at 101.

Based on our discussion of res judicata, above, it is clear that Mary cannot distinguish the issues presented in the two actions, contest the finality of the state court's judgment on the merits, or establish any injustice from the application of collateral estoppel. Her strongest position is that she was neither a party to the state court action nor in privity with Jerrold, who was a party to that action. However, her position must fail. Whereas husbands and wives are not in privity by virtue of their marital status, and co-owners of property are not in privity by virtue of their commercial relationship, the facts of this case counsel in favor of issue preclusion.

Appellees accurately note that under Wash.Rev.Code Sec. 26.16.030, one spouse can bind the community by litigation involving community property. See Oil Heat Company of Port Angeles, Inc. v. Sweeney, 26 Wash. App. 351, 613 P.2d 169, 172 (1980). Because Mary's due process arguments arise directly out of the forfeiture of property she held in community with Jerrold, non-party preclusion seems appropriate. See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, Sec. 4461 at 545-46. Moreover, the record does not reveal any conflict of interest between Jerrold and Mary. Rather, it reveals a close nonlitigating relationship, participation, apparent acquiescence, and perhaps deliberate maneuvering to avoid the effects of the state action. See id. Sec. 4461 at 547-48; 1987 Supp. Sec. 4457 at 178. Thus, we agree that Mary was legitimately represented in the state court action, and should be precluded from relitigating the same issues in the district court.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3