two distinct threats to his speech first the threat of criminal prosecution under washington state's cyberstalking statute last year the bainbridge island police department referred charges to the county prosecutor who told reiner soon that he would sit on those charges and watch his behavior before moving forward with the charging decision that threat of criminal prosecution is the one he seeks to challenge in federal court a second separate restriction on owners and speech was a civil protective order obtained in state court by mr m isn't seeking relief that would preclude or compel action by any of the parties in that case in the suit brainier soon challenges only the criminal cyberstalking statute and ask for an injunction against its prosecution the district court abstained from hearing this challenge under younger and we ask that this court find abstention improper for two reasons first if this court were to remand the case back to the district court and that court were to grant rainier's in his relief that relief could not have the practical effect of enjoining the state proceedings mr maher walkies order second those proceedings are not within either of the narrow categories of civil cases which can justify a younger abstention they are neither qualify criminal nor an effort to interfere with the state's ability to enforce the judgments of its court with respect to that first point your honor that the requested relief have the effect of practically enjoining the state proceedings a threat a challenge to potential criminal prosecution as distinct from a challenge to the protective order or an action challenge  go ahead i'm sorry but you restrictions cover different conduct writers and challenge in state court to mr maher walkies order lifted only that restriction but the restriction imposed by threat of prosecution under the cyber stalking statute remains in place and that's what he's asking to be able to challenge in federal court here when you're saying is that suing anyone involved in the state proceedings and not seeking relief that would require preclude action by either mr moore a walkie or the state court and i correct  in believing that there are no state proceedings alive at this moment that's correct your honor but i understand it's the case at the time that matters is the time when the lawsuit was filed so you're not objecting based on the fact there's no proceeding to conflict with no your honor under kitchens and go brits and the relevant date is when the case was filed and under hicks this court the court can consider events that transpired in the state case before any proceedings of merits on the federal case which is why we've asked this court to take judicial notice of the permanent protective order a challenge to the cyberstalking statute is distinct from a challenge to the order itself or the statute which authorizes protective orders as well as the statute which punish the isolation criminal in that it's closely related to criminals that let me ask you this what sort of findings does the state court have to make in order to issue a protective order like the one in this case the court have to find that there is evidence sufficient to believe that there was stalking cyberstalking and unlawful harassment violations yes your honor the order is predicated on a finding that mr morrow joakim at the standards for relief by preponderance of the evidence and those standards are laid out in the criminal stalking statute the cyberstalking statute and the civil harassment statute then why isn't that enough to be church if that if the state court had to basically make a finding albeit with a lower standard of proof that these criminal violations occurred is something more required is that the difference in the standard of proof no your honor we think there's a few things that that make the state court state proceedings not cause a criminal the state isn't a party to those proceedings the only role that the state plays is the municipal judge who educated a dispute between those two private parties protective orders again are based on a finding that the petitioner met a standard for relief by a preponderance of the evidence the stated purpose of protective orders isn't to punish respondents but to give the victims of stalking conduct  a civil right in civil court and injunctive protection basically violations of protective orders are punished the same way that violations of any civil injunction are punished in the state of washington and the fact that the only state actor in that case was the municipal judge we think it's relevant and it's a more general matter isn't it fair to say that most  in a criminal assault action yes your honor we argue that in our briefs as well in the facts of the standards for relief or laid out in some in some criminal statutes doesn't make the civil action itself criminal or  say under this court's younger jurisprudence that as i was discussing before the challenge of the cyberstalking statute is distinct from a challenge to the statute authorizes protective orders or that punishes violations of them and under this court's younger jurisprudence a challenge to a statute than the one used to prosecute the federal plaintiff in state court falls outside of the scope of younger additionally writers and couldn't have used a federal judgment in his favor for hypothetical proceedings for violating that order if he had violated the order because washington state follows the collateral bar rule even if the order had been predicated solely on the cyberstalking statute he would not have been able to do so and finally none of the parties in the state case  suing any of the parties in the state case and so neither more a walky nor the state court judges would be bind bound by an injunction against the prosecutors who are defendants  here the other type of civil case which can justify younger abstention that we do not believe is a political here is a challenge to the state's ability to enforce the judgments of its courts but again run your citizen challenging either the order itself or the state's process for issuing protective orders more generally i'm nearing my time so if your honour's have no more questions i'll conclude thank you this is a case about reindeer since ability to ask for protection from prosecution that he believes violates h constitutional rights we ask that this court find abstention improper and allow for a new cent to make his claim in federal court thank you gone so i would like if there are no further questions i'd just like to reserve three minutes for about thank you state municipal court this case does meet all of the five different factors that this court and the united states supreme court has recognized for younger abstention and therefore this court should affirm so why do you think  i'm looking at sprint versus jacobs five seventy one us sixty nine case out of the supreme court in two thousand and thirteen although of course we don't there says in cases of this yonder a staid actor is routinely a party to the state proceeding and often initiates the action that's not true here investigations are commonly involved that's not true here often culminating in the filing of a formal complaint or charges so it doesn't sound like this is the kind of criminal action they were concerned about it sounds like they were more thinking about like you might have or something like that but it would be filed simultaneously by the state along and on the same time that they filed the indictment that's not the situation here at all talking protection or proceedings are a unique procedure invoking the court's enforcement authority so yes it is true that the state is not the prosecutor for the civil in force or but it is a means for the private citizen to invoke the determine whether criminal laws have been violated albeit at a lower standard but it allows the private citizen to seek the court's help before a prosecutor has to get involved and would that mean that the tort action for assault the judge rakoff referred to amounts to a was i criminal proceeding no i would argue that that would be the standard garden type civil action the united states supreme court has recognized is not applicable but for exactly fits the description you gave us that it's an effort by a private citizen to enforce a state criminal law against assault albeit with a lower standard burden of proof biased why isn't that same thing here well first of all the remedy in terms of a tort action is for civil liability you know what why isn't that more like a career and that is a fact a damages but that is a punishment situation whereas here it's the court's authority of restraining criminal behavior and seeking protection for the citizen before criminal charges are brought to decide any point of the criminal charges because i'm going to decide to see what mr ryan nears than does with respecting the protective orders in place so it is certainly the court's authority that is that issue here backed to the cyberstalking law and the criminal behavior and maybe we're moving to the other of the five factors that issue but i don't really understand how granting relief two the plaintiffs here would have been joined the state court proceeding or had an impact on the order that was ultimately issued mr ryan your son was simply simply trying to use the federal court as both a sword and a shield for the cyberstalking conduct that was issued he specifically wished to engage in this criminal behavior and was seeking a means of the federal court to protect him from that so if it hypothetically but but how i mean my question is how would the order have been affected so if you would have a taint the relief that he was asking for in both injunctive injunction against the state from enforcing the cyberstalking law and a declaration that that law was unconstitutional that certainly would have had an impact on the municipal court's ability to apply that law in the ongoing protective order proceedings it is simply not reasonable look at the order that issued what changes mean because the municipal court order didn't rely simply upon the cyberstalking statute and didn't focus or limited it effect to that and there's nothing in the balance that would seem to be affected in the slightest i disagree your honor because the municipal court the three factors that the court was looking at was stalking cyber stalking and harassment and this it's a basically like a stool and by a federal court coming in and having mr right nears the end with authority to say i am free by the federal court to engage in this behavior and the state cannot force this law against me that has a direct impact on the municipal court's ability to apply that law and it's not the fact that it would have a direct injunction or in direct injunctive affect the united states supreme court and sprint has said that is merely the prospect of undue influence and here mr right near sin was attempting to knock out the third leg of the stool that the municipal court was applying unconstitutional so it certainly would have impacted the municipal court analysis and had an undue effect on that been a supreme court proceedings and i'd like to just turn back quickly to the problem with respect to the criminal and the other aspect of the type of civil case and preceeding was that have a directly interest in the enforcing the orders of its court applying and this the anti stalking statutes that are it at issue specifically rely on the cyberstalking law so for in order for mis for mr reiner sent to obtain his federal leaf that most certainly would have impacted the state courts ability to apply the laws at issue and issue the orders that one to enforce the temporary protective orders that were already in place as well as the permanent protective order proceedings that were going to be at place at the same time and briefly i'd like to just touch again upon the judicial in for authority this is not like a standard case between two private citizens this is invoking the court's power to restrain a citizen from criminal behavior and thus that is a quasi criminal proceeding it is also the type of civil proceeding that it washington has a specific interest in enforcing the orders of its courts and this the federal action would have directly impacted the ongoing state perceive things talk about enforcing the order of the court as i understand the position that might have just taken there's nothing that he could offer up as a defen to any violation of the order what would prevent the state from enforcing the order that was issued or what would have at the time the order was in place certainly it could been the the arguments that the law was unconstitutional and has been held unconstitutional but it's not again it's not the actual orders that the municipal court was issuing against mr rainier sa it is not the precludes of a fact of the state of and forcing the protective orders what this court is looking at under the united states supreme court and its own case law is the underlying law is at issue and what mr attempting to do is use the federal court authority to sweep out the state court's authority to issue the protective order proceedings because there's only three basis that these anti stalking orders can be issued and cyber lking is one of those so if you have if he had attained the federal relief the ultimate federally fit he was speaking in which the state cannot enforce this law not only with respect to the criminal but the civil because of him bringing in attorney general ferguson then he has it directly under coded the state court proceedings and that you are i think we're mixing up two things we've talked about and they talk again about interfering or interrupting the state court proceeding but the question i posed had to do with the state's ability to enforce the order and and plaintiffs taken the position that whatever was going on in the federal court wouldn't serve him as a defense to an enforcement action if he had in fact violated the order when it was outstanding and that's the question i'm looking for you to address and if it's true that what was going on in federal court wouldn't be a defense for him how would that interfere with the state's ability to enforce the order it's asking two separate questions your honor the with respect to the protective order if mr ryan your son had violated the protective order  he what the federal court did would not have any impact on the violation of the protective order and also so that state's ability to enforce that order wouldn't be effected correct but what is in at issue is the state's ability to bring the cyber stalking into harassment protective orders in the first place because they didn't bring it up but if the courts the power to enforce that i don't know if that wouldn't be affected either if the federal action doesn't provide him with a defense we're still i mean we have separately the question as to whether there'd be interference with the court proceeding which you've identified or taken the position is quite as i criminal but the other part the part about whether the federal action involved the state's interest in and forcing the orders in judgments of its courts i don't hear a basis for that if in fact it is true that the federal proceeding would not provide plaintiffs with the defense in state court that's only if he had violated the protective order but that's more than not there's nothing for the court doing for the state to enforce if he didn't but that's not but there is for you miss the full court's authority to have issued the permit that's going back to the other part i mean there are multiple justifications here and offered as one of them that this would interfere with the state's ability to enforce and i haven't heard that yet if it is true which you don't dispute that the federal action doesn't give him a defense to enforcement action in state court with respect to a violation of the protective order but that's not what was that is so much of the state's interest is i mean the question is does the state have an interest will this interfere with the state's interest in enforcing an order in judgment and for me the answer is no unless you provide something more than i've heard so far i'm not saying there is not an argument with regard to interfering with what the municipal court might issue although it was an ongoing proceeding but that's something different than whether the state can enforce  order what there's nothing i see that stops the state from forcing whatever order issued this mr right here stand brought the federal lawsuit at the moment in time between the issue of the temporary correct protective order but before the state court had issued its permanent protective order and that that temporary protective order is certainly at issue with the state's interest and the municipal court ability to then issued the permanent protective order based on that conduct if mr right near san had obtained his relief at the moment of time that he brought this federal lawsuit it would have directly had an impact on in state court authority to enforce its own temporary order because mr wright nurse and could not and so it's not your theory that isn't reliant on the fact that the state is going to be prevented from enforcing its order in the event of a violation it's just the in between period where the state may have been deprived of its power to issue a permanent order correct and that's what the united states supreme court was looking at in middlesex with the bar disciplinary proceedings it wasn't it was the process and the sea court's interest in those proceedings and the orders that were at issue for the type of civil case that is appropriate now yes what bar disciplinary proceedings are have been held to be quite as a criminal but it is also the state's argument here that this anti stalking proceedings are causing a criminal in the same aspect as those our type of person and so this case not only meets the two specific types of civil case that are specific or younger but it also would have had a direct impact and because none of the other elements of younger  let's look back at what was happening at the time the federal claim had been brought to the most important thing is the federal claim was brought against the prosecutors and i'm straight here soon was aware that all that he could do with that claim is to prevent a federal prosecution under this very broad statute which bars any repeated online communications that are and i'm just a federal prosecution a prosecution but presumably would be a prosecution by the state yes i am so sorry yes he wanted to ask the federal court  to enjoin the state prosecution into the state statute he was aware there was this temporary order that was likely to mature and ripen into a permanent order nothing in that proceeding would have enjoying the had the practical effect of been joining those proceedings i because the prosecutors who were the parties to his federal case were not parties to that case he didn't name mr morrow aki so mr murdoch you would not have been bound by the outcome of a federal injunction he did not try to name the state courts or anything like that in the middle sex case the lawsuit was brought against state enforcement authorities that's why would have had the practical effect of enjoining certain proceedings so he realized that he would have to proceed as he did ultimately successfully proceeded challenging the narrower state court order state temporary restraining order and any permanent order in state court but he wanted to in the meantime be assured that so long as he complying to comply with the state order he wouldn't also seen with a state order he wouldn't also be subject to the risk of prosecution under the criminal statute by the prosecutor and then we have with with regard to i guess the second factor as a done a fide in our case third of the alternatives of the  interfering with a quasi criminal and foresman action or involving the state's interest in enforcing an order and you're saying it's not going to have any impact on the state's interest but if we assume for the moment it is quite as i criminal it's not hard to understand the state's argument or the prosecutor's argument that the municipal court the court will be affected or impacted by what the federal court is doing and feel inhibited in relying upon the three legged stool if one of the legs seems to have been removed so if we assume for a moment it's caused by criminal isn't there interference with an ongoing and foresman action  or we don't think so because the state washington state courts take the view which they're entitled to take that they're not bound as a presidential matter by federal court decisions except from the u s supreme court there would be no collateral estoppel a factor there because the there is no identity of parties the only possible effect and we acknowledge it is in effect might be the persuasive force of the federal district court order the municipal court might look at and say well i'm not bound by this order but i look at it you know it sounds like it makes sense but that's not that's not the practical effective in joining nor is this a requirement of substantial interference which really does not weaken the requirement of practical effect of enjoining it's just one court taking seriously what another coordinator reason opinion says we were indeed hoping that that would happen but that would be the only effect and that would not be a sufficient effect a trigger younger one way of thinking about it is this persuasive effect would also occur even if the lawsuit have been brought by a completely different party let's say it was somebody else in the same county or in a different county you had the same time happened bring the same challenge against prosecutors again not mr murray walker you presumably if the federal district court hadn't joined in that separate proceeding had enjoined the  state the prosecutors from enforcing the statute likewise a few to hope that a municipal court would take that seriously but that wouldn't be occasion for younger abstention because that wouldn't have the practical effect of enjoining the state proceedings likewise here the federal law for the federal lawsuit had been successful would only have prevented the prosecution by the prosecutors would not have had the practical effect of in joining either the temporary were the permit your owners have no further question if you have no further questions  thank you very much both right thank you for supervising this case an accepting the case as well well done the matter submitted for decision