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# I FILED MAY 2, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STEPHEN KERREUGSTER, ) ) Appellant, ) ) V. ) ) WASHINGTON STATEBAR ) ASSOCIATION, a legislatively created ) Washington association (WSBA); and ) PAULALITTLEWOOD, Executive ) Director, WSBA, in her official capacity; ) ) and ) ) DOUGLAS J. ENDE, Directorofthe ) WSBA Office ofDisciplinary Counsel, in ) his official capacity; FRANCESCA ) D'ANGELO, Disciplinary Counsel, ) WSBA Office ofDisciplinary Counsel, in ) her official capacity, ) ) Respondents. ) FEARING, C.J.

- No. 34345-6-111

PUBLISHED OPINION

Endless litigation leads to chaos. Schroeder v. 171. 7 4Acres of Land, More orLess, 318 F.2d 311, 314 (8th Cir. 1963) (emphasis added).! 

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# i I No. 34345-6-III Eugster v. WSBA Stephen Eugster initiated this suit, the sixth proceeding involving the Washington State BarAssociation (WSBA) and himself. Eugster sues the WSBA, the entity that administers Washington State's lawyer disciplinary system onbehalfofthe state Supreme Court, and some ofWSBA's officials. Eugster claims thatthe discipline system violates his due process and FirstAmendmentrights 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 ofsubject matterjurisdiction, resjudicata, failure to state a claim, immunity, and lack of justiciability. The trial court grantedthe motion on all grounds. On appeal, we hold that the trial courtpossessed subject matter jurisdiction, butthat resjudicatabars this lawsuitbecause Eugster could have assertedhis due process arguments in at least one earlierproceeding. FACTS Since the trial court dismissed the complaintpursuantto a motion to dismiss, we borrow from Stephen Eugster's complaintto prepare this statement offacts. The WSBA, like most other state bar associations, functions as an integrated bar. All active lawyers in the state ofWashington are members ofand mustpay dues to the WSBA. The WSBA, by direction ofthe Washington Supreme Court, administers the system to discipline lawyers who violate the attorney professional code ofethics. The Supreme Court

reserves the final say in disciplining a member ofthe Washington State bar.
2No. 34345-6-III 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 soughtto appoint Stead's son as the guardian despite Stead having directed Eugsterto 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 surrenderpapers 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 thepractice oflaw for eighteen months. In re DisciplinaryProceedingAgainstEugster, 166 Wn.2d 293, 209 P.3d 435 (2009). During the proceeding, Stephen Eugsternever challenged the constitutionality ofthe WSBA attorney disciplinary system. Because ofthe many proceedings involving Stephen Eugster andthe 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 commencedEugster II, an investigation ofa 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
3No. 34345-6-III Eugster v. WSBA

gave notice to Eugsterthat he must avoid the grieved conduct and the WSBA would retain file documents concerningthe complaint for five years. On January 21, 2010, Stephen Eugster filed Eugster III, in the United States District Court for the Eastern District ofWashington, a complaint under42 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 BarAssociation, 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 ofthe Washington State Supreme Court, the WSBA, and members ofthe WSBABoard ofGovernors. Eugster requested that the court enjointhe defendants from continuing to operate Washington's attorney discipline system. He initially further requested that the court declare void the suspension imposed on him inEugster I, buthe withdrew the requestbefore the defendants filed a motion to dismiss. The United States District Court dismissedEugster III, withoutprejudice, for lack ofstanding because Eugster failed to demonstrate that he suffered an actual or imminent injury in fact since he provided no evidence ofany pending disciplinary proceeding againsthim. Stephen Eugster appealedEugster III to the United States Ninth Circuit Court of Appeals. In an opinion shorterthan our opinion, the federal appeals court affirmed the dismissal since Eugster did not allege he would ever again be subject to disciplinary
4No. 34345-6-III Eugster v. WSBA proceedings. Eugster v. Washington State BarAssociation, 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 ofthe grievance to Eugster on October 1, 2014. In response, Eugster sent voluminous records to the WSBA concerning his representation ofO'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 Eugsterto inform him that the WSBA assigned Bank to complete the investigation. Eugsterresponded to further letters from Bank. A Christmas day 2014 letter from Eugster asked Bankto 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 BarAssociation, 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 ofWashington. Hejoined as defendants in the suit WSBA officials and alljustices ofthe Washington Supreme Court. In the federal suit, Eugster challenged the constitutionality, under the First and FourteenthAmendments to the United States Constitution, ofcompulsory membership in and payment ofdues to Washington's
5No. 34345-6-III Eugster v. WSBA integrated bar association. Eugster asked forjudicial 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 ofthe 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 ofEugster V, his second federal lawsuit. According to Eugster, WSBA disciplinary counsel Vanessa Norman informed him ofthe 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 herto investigate the grievance. Thereafter, Eugsterresponded 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 courtruled that Stephen Eugster failed to state a claim under which he could receive reliefbecause federal courts uphold the constitutionality ofcompulsory membership in and dues to bar associations. He also failed to state a claim on which he could receive reliefwith regard to the expenditure of funds by the WSBA, since the bar association allowed aKeller deduction. The district
6No. 34345-6-III Eugster v. WSBA

court dismissed the latter claimwithoutprejudice to allow Eugsterto amend the complaintto specifically allege misallocation ofcharges notpermittedto be compulsory assessed. The court gave ten days for the amendment or else the courtwould also dismiss the claim with prejudice. The entire complaint againstthe WSBA was dismissed

on the ground ofEleventhAmendment immunity, since a bar association is an arm ofthe state. Eugster v. Washington State BarAssociation, No. C15-0375-JLR, 2015 WL 5175722 (W.D. Wash. Sept. 3, 2015). We suspectthat Eugster did not amend the complaint. He filed an appeal with the Ninth Circuit Court ofAppeals on September 21, 2015. The Ninth Circuithas yetto issue a decision in Eugster V. In his complaint on appeal, Stephen Eugster alleges thatthe WSBA, onNovember 3, 2015, sent him a letter informing him that disciplinary counsel intended to request a Disciplinary Boardreview committee to order review ofCheryl Rampley's complaintby

a hearing officer. According to Eugster, the WSBA letter contained false statements concerning his conduct and failed to informthe Disciplinary Board ofconflicting material statements. When Stephen Eugster filed this appeal, the WSBAhad yet to
commence formal disciplinary action against Eugster as a result ofCheryl Rampley's grievance.

7No. 34345-6-III Eugster v. WSBA
PROCEDURE On November 9, 2015, Stephen Eugster initiatedthis lawsuit, Eugster VI, in state superior court, against the WSBA and three WSBA officials, Executive DirectorPaula Littlewood, Director ofOffice ofDisciplinary Counsel Douglas Ende, and disciplinary counsel FrancescaD'Angelo. Eugster alleges that the superior court hasjurisdiction 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 referto the defendants as the WSBA. Because ofthe extensive and complicated claims and requests for reliefasserted by Stephen Eugster, we supply many details ofEugster's causes ofaction and demands for relief. Stephen Eugster's superior court complaint thoroughly outlines the structure and function ofthe 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 ofthe WSBA Disciplinary Board, and then the hearing officers and Disciplinary Board review disciplinary grievances filed by the WSBA. Eugster
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### No. 34345-6-111 Eugster v. WSBA complains thatthe WSBAprincipally handles grievances lodged against sole practitioners or members ofsmall law firms. Hearing officers vary significantly in competence and some officers violate the rights ofthe accused lawyers. The Washington Rules ofProfessional 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 ofthe Disciplinary Board. In his complaint, Stephen Eugster alleges that the conduct ofthe Disciplinary Board lacks impartiality. He complains that the WSBA vets all members ofthe board before each member's appointment. In the complaint in Eugster VI, Stephen Eugster alleges deprivation ofhis civil rights, intentional infliction ofemotional distress, and negligence. Eugster identifies the civil rights violations as deprivation ofprocedural due process, both state and federal. He also claims that the WSBA unconstitutionally employed the discipline systemto retaliate against him for bringing a federal lawsuit against it, and, thus, the WSBA violates his federal First Amendmentrights. Finally, Eugster contends that the disciplinary system denies him ofhis right to petition the government for redress ofviolations ofhis state and United States constitutional rights. Eugster seeks a declaration that the WSBA disciplinary system is unconstitutional, an injunction againstthe WSBA disciplining him, damages, punitive damages, and reasonable attorney fees and costs.
9No. 34345-6-III Eugster v. WSBA
On December 23, 2015, Stephen Eugster filed a motion for voluntary dismissal of his complaintpursuant to CR4l(a)(l)(B). Presumably, the trial court never addressed the motion. OnJanuary 22, 2016, the WSBA filed a motion, pursuantto CR 12(b), to dismiss Stephen Eugster's complaint. In the motion, WSBA argued that the superior court lacked jurisdiction, Eugster's claims are notjusticiablebecause he lacks standing and the claims

are not ripe, Eugster failed to state a claim on which reliefcan be granted, resjudicata 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 complaintrepeated the description of Washington State's integrated bar association and the alleged constitutional defects ofthe structure and processes ofthe bar and its disciplinary system. The amendmentremoved Eugster's intentional infliction ofemotional distress claim, butreserved his negligence claim. A section ofthe amended complaint reads: This action seeks damages from Defendants for negligence as a result ofDefendants['] use ofthe Washington LawyerDiscipline System as applied to Plaintiffas retaliation against Plaintifffor bringing an action in Federal Court to asserting that Plaintiffs compelled membership and that such actions violates Eugster's right ofpetition ofthe government for a redress ofgrievances underthe First and Fourteenth Amendment Rights to the United States Constitution, and Washington State Constitution Art. 1, Section 4.

10No. 34345-6-III Eugster v. WSBA
CP at 86-87 (emphasis added). The word "negligence" fits awkwardly in this paragraph, and we question ifStephen Eugster meant to allege a claim under common law negligence. The gist ofthe amended complaint lies in its introduction: This case concerns the civil rights ofPlaintiffprotectedby 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 declaratoryjudgments by the court declaring the WSBA Washington LawyerDiscipline 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 ofthe WSBA WashingtonLawyer Discipline Systemto him, and in furtherance ofthe court's determinations that the Discipline System is unconstitutional. As to the foregoing, Eugster does not seek damages, or monetary relieffrom Defendants or any ofthem. However, Plaintiffdoes seek damages from some or all ofthe Defendants for compensatory ornominal damages under 42 U.S.C. 

### § 1983 for injuries to Plaintiffas a result ofviolations ofPlaintiffsrights by Defendants or some ofthem under 42 U.S.C. 

### § 1983 concerning the use by Defendants or some ofthem ofthe Discipline Systemto intimidate, harass and retaliate against Plaintifffor bringing an action in United States District Court, Western District ofWashington in which Plaintiffasserts thatunder 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'sprayer seeks the same reliefas sought in the first complaint. The trial court dismissed all claims ofStephen Eugster with prejudice. The court

11No. 34345-6-III Eugster v. WSBA
dismissed all claims for damages based on GR 12.3's grant ofimmunity to the WSBA and its employees. The court dismissed all constitutional claims and claims for declaratoryjudgment for lack ofsubject matterjurisdiction. The courtruled that the Washington Supreme Court, under Rules for Enforcement ofLawyer Conduct (ELC) 2.1, possessed exclusivejurisdiction overthe 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 briefin this appeal, Stephen Eugster filed a statement ofadditional authorities. This court rejected the filing because ofthe statement's noncompliance with RAP 10.8. The additional authorities constituted copies ofpleadings from the WSBA Office ofDisciplinary Counsel's complaint against Eugster inEugster IV for his conduct with regard to Verdelle O'Neill, including a formal complaint filed on June 16, 2016, after Eugster commencedthis suit. RAP 10.8 serves to allow parties an opportunity to cite case authority decided afterthe completion ofbriefing. O'Neillv. City of Shoreline, 183 Wn. App. 15, 23,332 P.3d 1099 (2014). The rule does not grantpermissionto file additional documents. This court scheduledthe decisional conference ofthe reviewing panel for December 6, 2016. On December 14, 2016, Stephen Eugster filed a motion requesting that this court takejudicial notice ofdocuments, and he attached the same documents to 12No. 34345-6-III Eugster v. WSBA
his motion that he soughtto bring to this court's attention by his statement ofadditional 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 ofalleged due process rights deprivations. On January 9, 2017, Stephen Eugster filed with this court a second motion requesting that this courttakejudicial notice. Eugster's motion contends that the WSBA ended and a new association was born during the WSBA Board ofGovernors 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 seekingjudicial notice at the conclusion ofour opinion. LAWAND 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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The court's dismissal order expressly dismisses the "complaint," notthe amended complaint, butthe order also references review ofthe amended complaint, not the first complaint. We need notresolve this uncertainty sincethe result remains the same under either complaint. Before addressing issues such as subject matterjurisdiction and resjudicata, we identify the substantive claims asserted by Stephen Eugster. With his amended complaint, Eugster seeks damages, an injunction, and declaratory reliefunder the Washington Constitution and the federal statute, 42 U.S.C. § 1983. He may seek damages for negligence. On appeal, Eugster only assigns errorto rulings with regard to his civil rights claims underthe state and federal constitutions. Therefore, we do not address any claim for negligence. Wetemporarily 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 ofany statute, ordinance, regulation, custom, or usage, ofany State or Territory orthe District ofColumbia, subjects, or causes to be subjected, any citizen ofthe United States or other person within thejurisdictionthereofto the deprivation ofany 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 otherproper proceeding for redress. Section 1983 is not itselfa source ofsubstantive 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 otremedial role ofauthorizing the assertion ofa claim for relief. Graham v. 14No. 34345-6-111 Eugster v. WSBA Connor, 490 U.S. at 393-94. The pleadermust also allege an independent substantive basis for his claim, whether grounded in a federal constitutional or a statutory right. Nabozny v. NCSPearson, Inc., 270 F. Supp. 2d 1201, 1205 (D. Nev. 2003). In his complaint, Stephen Eugster claims the WSBA violatedhis right to file a grievance and his right to free speech under the First Amendmentto the United States Constitution. Nevertheless, he forwards no argument on behalfofthe FirstAmendment in his appellate brief, so we deem this cause ofaction abandoned. This court does not review issues not argued, briefed, or supported with citationto authority. RAP 10.3(a); Valente v. Bailey, 74 Wn.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. SubjectMatterJurisdiction We are compelledto first decide ifthe trial court, and, in turn, this reviewing court, holds subject matterjurisdiction over Stephen Eugster's complaint. We lack authority to address the other defenses ofthe WSBA ifwe lack subject matter jurisdiction. A court must have subject matterjurisdiction in orderto decide a case. In re T.R.P., 360 N.C. 588,636 S.E.2d 787, 790 (2006); TexasAssociation of Business v. TexasAir ControlBoard, 852 S.W.2d 440, 443 (Tex. 1993). Subject matterjurisdiction
15No. 34345-6-111 Eugster v. WSBA
is the indispensable foundation on which validjudicial decisions rest, and, in its absence,

a court has no powerto act. State v. Sellers,_N.C. App._, 789 S.E.2d 459, 465 (2016). Nevertheless, a court always hasjurisdictionto 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 matterjurisdiction over his claims because a superior courtpossesses generaljurisdiction and no constitutional provision or statute has exclusively vestedjurisdiction elsewhere. The WSBA responds that article IV, section 1ofthe Washington Constitution and state rule ELC 2.1 vest exclusivejurisdiction in the Washington Supreme Court for challenges to the lawyer disciplinary system. A courtpossesses subject matterjurisdiction when it holds authority to adjudicate the type ofcontroversy 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 ofprovingthe courthasjurisdiction. Outsource Services Management, LLCv. NooksackBusiness Corp., 172 Wn. App. 799, 807, 292 P.3d 147 (2013), ajf'd, 181 Wn.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 ifa state court ofgeneraljurisdiction holds
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# I I No. 34345-6-111 Eugster v. WSBA subject matterjurisdiction over a § 1983 claim. We specifically reviewthe issue of whetherthe Washington superior courtholds subject matterjurisdictionto entertain due process challenges to the structure of, process of, and actions bythe WSBA from an attorney previously subjectedto the grievance process or presently scrutinized by the lawyer discipline process. This review demands distinguishing between challenging a ruling by the WSBA or Supreme Court, challenging a pending proceeding, and forwarding a general, as opposedto an applied, challenge to the attorney disciplinary rules. The trial court's ruling failed to observe StephenEugster's complaint and amended complaint included claims under 42 U.S.C. § 1983. In otherwords, the complaint asserted claims under federal law, which enjoys supremacy over state law. U. S. CONS. art. VI, cl. 2. A state rule such as ELC 2.1, which vests exclusivejurisdiction in the Washington Supreme Court for challenges to the lawyer disciplinary system, does not necessarily survive federal law dictates. Underthe Washington Constitution: Thejudicialpower ofthe state shall be vested in the supreme court, superior courts,justices ofthe peace, and such inferior courts as the legislature may provide. WASH. CONST. art. IV,§ 1. ELC 2.1, a section ofthe rules for enforcement oflawyer conduct, declares:
17No. 34345-6-111 Eugster v. WSBA
The Washington Supreme Courthas exclusive responsibility in the state to administer the lawyer discipline and disability system and has inherent powerto maintain appropriate standards ofprofessional conduct and to dispose ofindividual cases oflawyer discipline and disability. Persons carrying out the functions set forth in these rules act under the Supreme Court's authority. Underthese provisions, the power ofthe Washington Supreme Court, under state law, to regulate the practice oflaw is inviolate. Kommavongsa v. Haskell, 149 Wn.2d 288, 311, 67 P.3d 1068 (2003). The state Supreme Courtholds the ultimate authority for attorney discipline in Washington. In re DisciplinaryProceedingsAgainstBlanchard, 158 Wn.2d 317, 328, 144 P.3d 286 (2006). The court exercises plenary authority in attorney discipline matters. In re DisciplinaryProceedingsAgainst VanDerbeek, 153 Wn.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 ofdisciplinary grievances. ELC 2.3, 2.8. The Supreme Court has delegated no duties to the superior courts. Hahn v. Boeing Co., 95 Wn.2d 28, 34, 621 P.2d 1263 (1980). The Washington Constitution also addresses thejurisdiction ofour superior courts, found in each county. WASH. CONST. art. IV,§ 6 proclaims: The superior court shall
...have originaljurisdiction in all cases and ofall proceedings in whichjurisdiction shall not have been by law vested exclusively in some other court.

18No. 34345-6-III Eugster v. WSBA
Based on the state constitution, superior courts maintain generaljurisdiction. Bour v. Johnson, 80 Wn. App. 643, 647, 910 P.2d 548 (1996). Exceptions to the superior court's broadjurisdictional grant must be narrowly construed. In re Marriage of McDermott, 175 Wn. App. at 481 (2013). Stephen Eugster seeks declaratory relief. Pursuantto RCW 7.24.010, a portion ofthe declaratoryjudgment chapter, superior courts "havepowerto declare rights, status and other legal relations whether or not further reliefis or could be ~laimed." As previously mentioned, Eugster also sues for federal civil rights violations under 42 U.S.C. 

### § 1983. State courts have concurrentjurisdictionwith federal courts in actions brought under 42 U.S.C. 

### § 1983. Haywoodv. Drown, 556 U.S. 729, 731, 129 S. Ct. 2108, 173 L. Ed. 2d 920 (2009); Robinson v. City of Seattle, 119 Wn.2d 34, 57, 830 P.2d 318 (1992). IfStephen Eugster limited his challenge to Washington law orto the previous implementation ofattorney discipline against him, we would hold thatthe superior court lacked subject matterjurisdiction overEugster's complaint. But since he asserts federal law and does not simply challenge past orders against him, wehold to the contrary. Two United States Supreme Court decisions, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983) and Haywoodv. Drown, 556 U.S. 729, compel our conclusion that the superior court and, in turn, this reviewing courtpossess subject matterjurisdiction.
19No. 34345-6-111 Eugster 

### v. WSBA
In those states where the Supreme Courtpossesses exclusivejurisdiction 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 courtjudgment. Mosby v. Ligon, 418 F.3d 927, 932 (8th Cir. 2005); Mothershedv. 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 ofa state Supreme Court issues an order against an attorney, a federal district or state trial courtmay not sit in review ofthe order even ifthe attorney challenges the order on federal constitutional grounds. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Anderson v. Charter Township of Ypsilanti, 266 FJd487, 492-93 (6th Cir. 2001). Nevertheless, aparty may bring a general challenge in lower courts to state barrules 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 PuertoRico, 917 F.2d 620,628 (1st Cir. 1990). District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) informs

our decision. Feldman was actually two lawsuits, each started by attorneys seeking admission to the District ofColumbia bar. By act ofcongress, the District ofColumbia Court ofAppeals held the authority to make rules respecting the admission and discipline ofDistrict ofColumbia attorneys. The Court ofAppeals, being the highest court with
20No. 34345-6-III Eugster v. WSBA respect to District ofColumbia local law, serves the function ofa state Supreme Court. Marc Feldman, despite never attending law school, sought admission to the District of Columbiabar on the basis that he studied law in the office ofapracticing attorney and had gained entrance to the Maryland and Virginia bars after having passed each state's bar examination. The District ofColumbia Court ofAppeals issued an order denying Feldman's application for admission based on a Court ofAppeals rule requiring applicants to have graduated from an American BarAssociation (ABA) accredited law school. Edward Hickey attended an unaccredited law school after serving in the Navy with distinction for twenty years. The District ofColumbia Court ofAppeals entered an order denying Hickey's application for entrance into the District ofColumbiabar on the basis ofa rule requiring an applicant to have graduated from an ABA accredited law school. Evidence, however, showed that the Court ofAppeals had waivedthis rule in the past. Marc Feldman sued the District ofColumbia Court ofAppeals in the United States District Court for the District ofColumbia. He alleged that the Court ofAppeals, by denying him admission, deprived him ofliberty and property without due process oflaw. He further alleged that the Court ofAppeals arbitrarily discriminated against him in violation ofequal protection ofthe 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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constitutional rights. Edward Hickey also sued the District ofColumbia Court of Appeals in the United States District Court. The allegations ofand reliefsought by Hickey echoed the allegations and prayer for reliefofMarc Feldman. The United States District Court dismissed both Marc Feldman's and Edward Hickey's suits on the basis that it lacked subject matterjurisdiction since only the United States Supreme Court, within the federaljudiciary, may entertain an appeal from a state courtjudicial order. The United States Court ofAppeals for the District ofColumbia Circuit, a federal court as opposed to the Court ofAppeals for the District ofColumbia, reversed and remanded the cases to the district court for review on their merits. The United States Court ofAppeals ruled that the proceedings before the District ofColumbia Court ofAppeals were notjudicial in the federal sense and thus did not foreclose litigation ofthe constitutional claims in the lower federal court. In District of Columbia Court of Appeals v. Feldman, the United States Supreme Court affirmed in part and reversed in part. The Courtruled that, to the extent Hickey and Feldman sought review in the federal district court ofthe District ofColumbia Court ofAppeals' denial oftheir 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 ofthe District of 

### 22No. 34345-6-III Eugster v. WSBA
Columbia Court ofAppeals' respective orders. Butthere was more to the Supreme Court decision. To the extent Hickey and Feldman mounted a general challenge to the constitutionality ofthe rule requiring graduation from an accredited law school, the United States District Courtheld subject matterjurisdiction over the complaints. InDistrict of Columbia Court of Appeals v. Feldman, the United States Supreme Court undertook a nuanced analysis, and the outcome was not all or nothing. The Court consideredthe key question to be whetherthe District ofColumbia Court ofAppeals' orders denying Marc Feldman's and Edward Hickey's respective requests for applications to the barwerejudicial in nature or legislative, administrative, or ministerial in nature. The proceedings surrounding the denial ofthe waivers by the local Court of Appeals werejudicial in nature since the orders did not look to the future or change existing conditions, but instead appliedpresent facts to a previously existingrule. In contrast, when issuing its general rules controlling the admission and discipline of attorneys, the District ofColumbia Court ofAppeals acted in a legislative manner. Therefore, challenges to the constitutionality ofstate barrules did notnecessarily ask the lower court to review a final state courtjudgmentin ajudicialproceeding. The Supreme Court qualified its ruling by noting it did not reach the question ofwhetherthe doctrine of

resjudicata foreclosed any portions ofthe litigation. We may ponderthe practical effect ofthe United States Supreme Court's rulings
23No. 34345-6-111 Eugster v. WSBA
in District of Columbia Court of Appeals v. Feldman. Assume that, onremand, the United States District Court agreed with Marc Feldman and Edward Hickey and in general held unconstitutional the District ofColumbiarule 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 theirprior denial to admission? Must Feldman and Hickey undergo the application process again? Could the District ofColumbia Court ofAppeals deny the application the secondtime 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 ofcourse has the distinction ofinitially being filed in federal, not state court. We conclude, however, that its rules apply equally to state court litigation, since state courts hold concurrentjurisdictionwith federal courts over claims under the federal constitution and 42 U.S.C. § 1983. Haywoodv. Drown, 556 U.S. 729 (2009) discussed later confirms this conclusion. Feldman also fails to address the outcome ifa state barhas commenced disciplinary proceedings against an attorney, butneither the Disciplinary Board northe state Supreme Court has issued a formal order ofdiscipline. 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).
24No. 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. Atthe time Eugster filed suit, no formal proceedings pended against Eugster. Regardless, the WSBA does not contend that, because ofany pendingproceeding against Stephen Eugsterwithin the state bar disciplinary system, the courts should as a matter ofcomity or restraint defer to the disciplinary process even if jurisdiction exists. Haywoodv. Drown, 556 U.S. 729 (2009) also controls ourreview ofsubject matterjurisdiction. In orderto stem increasing civil rights litigation filed by state prisoners againstprison 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'strial courts ofgeneral jurisdiction. The United States Supreme Courtheld the New York legislation unconstitutional because the exceptional treatment ofa limited category of§ 1983 claims
was inconsistent with the supremacy clause ofthe United States Constitution. Although States retain substantial leeway to establish the contours oftheirjudicial systems, they lack authority to nullify a federal right or cause ofaction deemed inconsistent with their
25No. 34345-6-III Eugster v. WSBA
local policies. The state ofNew York impermissiblythwarted Congress'judgmentthat all persons who violate federal rights under color ofstate law be held liable for damages. A state may not employ ajurisdictional rule to undermine federal law. We must parse the allegations and requests for reliefsoughtby StephenEugster. In both ofhis complaints, Eugster complains about compulsory membership in and dues paymentto the WSBA. Nevertheless, his prayer for reliefseeks no declaration or injunction with regard to membership or dues payment. His prayer for reliefseeks only a declaration that the structure and process ofthe state bar disciplinary system violates due process and equal protection, and he abandoned his equal protection claim on appeal. He seeks an injunction againstthe 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 bythe Supreme Court concerning the organization and function ofthe WSBA disciplinary system. Therefore, we hold that the superior courtpossessed subject matterjurisdiction overEugster's complaint or amended complaint. The WSBA cites three out-of-state cases to support its contentionthat the superior court lacks subject matterjurisdiction: Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005), Barnardv. Sutliff, 846 P.2d 1229 (Utah 1992), Jacobs v. State Bar of California, 20 Cal. 3d 191,570P.2d 1230, 141 Cal. Rptr. 812 (1977). All cases supportthe WSBA's
26No. 34345-6-III Eugster v. WSBA position that superior courts lackjurisdictionto review state bar disciplinary proceedings. Nevertheless, as state court decisions, the trio ofopinions lack value in the face ofUnited 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 Barnardv. 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 ifthe attorney relied on the state constitution, federal constitution, or both. The Utah high courtruled that the attorney could not challenge the bar's procedures in the lower court, since the high court maintained exclusivejurisdiction overthe disciplinary process. The Sutliff, Jacobs, and Smith courts, however, did not address the federal law's requirement that state courts of generaljurisdictionremain open for civil rights suit. The WSBA notes that an attorney may raise and adjudicate constitutional challenges within the scope ofthe lawyer discipline system with ultimate and independent review by the state Supreme Court. In re DisciplinaryProceedingAgainst Smith, 170 Wn.2d 721,729,246 P.3d 1224 (2011); see In re DisciplinaryProceeding AgainstBlanchard, 158 Wn.2d at 330-31 (2006). We recognize this feature ofthe disciplinary process, butthe feature does not wrestjurisdiction from the superior court 27No. 34345-6-111 Eugster v. WSBA

over federal civil rights claims. Marc Feldman and Edward Hickey also argued constitutional claims before the District ofColumbia Court ofAppeals. 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 ofhis appeal brief. On appeal, he assigns no error to dismissal ofhis state law claims. Assuming Eugsterto still assert a claim under the Washington Constitution, we hold, based on Washington Constitution art. IV,§ 1and ELC 2.1, that the superior court and this reviewing court lack subject matterjurisdictionto 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 boththe Washington and United States Constitutions, the Washington courts require the party to discuss the Gunwall factors ifthe party deems the Washington Constitution grants greaterprotections than the federal constitution. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986); State v. Johnson, 128 Wn.2d 431, 444-45, 909 P.2d 293 (1996); State v. Olivas, 122 Wn.2d 73, 82, 856 P.2d 1076 (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 matterjurisdictionto hearthe merits ofa claimunder Washington law.
28No. 34345-6-III Eugster v. WSBA

Res Judicata The WSBA argues that Stephen Eugster's due process claim inthis lawsuit substantively relates to Eugster'sprior disciplinary proceedings culminating in Eugster I, 166 Wn.2d 293 (2009), and the suitEugsterbrought against the WSBA and its officers in the United States District Court for the WesternDistrict ofWashington, Eugster V, No. C15-0375-JLR, 2015 WL 5175722. The WSBA does not rely onEugster III, the suit brought in the United States District Court for the Eastern District ofWashington, presumably because the district court dismissedthat action withoutprejudice. The WSBA argues that, because ofthe relationship between this suit on appeal andEugster I

orV, resjudicatabars this suit. Since we hold that the resjudicata effects ofEugster I compel dismissal ofEugster VI, this case on appeal, we do not address the import of Eugster V. InEugster I, the Washington Supreme Court, through its disciplinary arm, the WSBA, and by its ownreported decision, imposed disciplinary sanctions on Stephen Eugster. DuringEugster I, the WSBA and the Supreme Court implemented the process thatEugster now complains violates his due process rights. Nevertheless, the Washington Supreme Court decision, 166 Wn.2d 293, mentions no argument by Eugster that the disciplinary proceedingbreached his constitutional entitlements. The WSBA presents none ofthe records ofthe disciplinary process to show that, at any time during
29No. 34345-6-III Eugster v. WSBA
the proceeding, Eugsterraised 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 Courthas entertained constitutional challenges, within disciplinary hearings, to the state disciplinary process as a whole and to discrete practices within the process. In re Disciplinary ProceedingAgainstPfefer., 182 Wn.2d 716,344 P.3d 1200 (2015); In re Disciplinary ProceedingAgainstJackson, 180 Wn.2d 201, 322 P.3d 795 (2014); In re DisciplinaryProceedingagainstStarczewski, 177 Wn.2d 771, 306 P.3d 905 (2013); In re Disciplinary ProceedingAgainstSmith, 170 Wn.2d 721,246 P.3d 1224 (2011); In re DisciplinaryProceedingAgainstKing, 168 Wn.2d 888, 232 P.3d 1095 (2010); In re Disciplinary ProceedingAgainstSanai, 167 Wn.2d 740, 225 P.3d 203 (2009); In re DisciplinaryProceedingAgainstMarshall, 167 Wn.2d 51, 217 P.3d 291 (2009); In re Disciplinary ProceedingAgainstPoole, 164 Wn.2d 710, 193 P.3d 1064 (2008); In re DisciplinaryProceedingAgainstBlanchard, 158 Wn.2d 317, 144 P.3d 286 (2006); In re DisabilityProceedingAgainstDiamondstone, 153 Wn.2d 430, 105 P.3d 1 (2005); In re DisciplinaryProceedingAgainstRomero, 152 Wn.2d 124, 94 P.3d 939 (2004); In re DisciplinaryProceedingsAgainstMiller, 99 Wn.2d 695, 663 P.2d 1342 (1983); In re DisciplinaryProceedingsAgainstof Hawkins, 91 Wn.2d 497,589 P.2d 247 (1979); In re Proceedings for DisbarmentofBeakley, 6 Wn.2d 410, 107 P.2d 1097
30No. 34345-6-111 Eugster v. WSBA (1940); In re ProceedingsforDisbarment ofWard, 106 Wash. 147, 179 P. 76 (1919); In

re Proceedingsfor Disbarmentof Bruen, 102 Wash. 472, 172 P. 1152 (1918). StephenEugster does not contend that the WSBAhas changedthe disciplinary process since his suspension in 2009. Therefore, we ask ifresjudicatabars a lawsuit, in which an attorney challenges the constitutionality ofthe attorney disciplinaryprocess, whenthe attorney could have, but did not, challenge the same process during any earlier disciplinary proceeding that resulted in a Supreme Court decision. We hold thatres judicata stops the second suit. Stephen Eugster asserts a federal claim in state court. Thus, we must decide whetherwe apply resjudicataprinciples emanating from Washington law or federal law. Resjudicata may bar constitutional claims broughtunder 42 U.S.C. 

### § 1983. Migra v. Warren City SchoolDistrictBoardof 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. 2d439 (1973). 28 U.S.C. § 1738 requires all federal courts to give preclusive effectto state courtjudgments wheneverthe courts ofthe state from which thejudgments emerged would do so. Therefore, under federal law, state preclusion rules govern whether a plaintiffs § 1983 claim is barredby a state courtjudgment. Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322,327 (4th Cir. 2005). Althoughthis suit
31No. 34345-6-111 Eugster v. WSBA
landed in state court, additional reason would support application ofthe court's own home rules. We therefore apply Washington law ofclaims preclusion. Under Washington law, resjudicata, or claim preclusion, prohibits the relitigation ofclaims and issues that were litigated or could have been litigated in a prior action. Loveridge v. FredMeyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995); Pederson v. Potter, 103 Wn. App. 62, 67, 11 P.3d 833 (2000). The doctrine curtails multiplicity of actions and harassment in the courts. Bordeauxv. IngersollRand Co., 71 Wn.2d 392, 395,429 P.2d 207 (1967). The broad general rule ofresjudicata 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

resjudicatato apply, a priorjudgment must have a concurrence ofidentity with a subsequent action in (1) subject matter, (2) cause ofaction, (3) persons and parties, and (4) the quality ofthe persons for or against whom the claim is made. Rains v. State, 100 Wn.2d 660, 663, 674 P.2d 165 (1983); BerschauerPhillips Construction Co. v. Mutual of Enumclaw Insurance Co., 175 Wn. App. 222, 227-28, 308 P.3d 681 (2013). Resjudicata also requires that the priorjudgmentbe final. Leija v. Materne Brothers, Inc., 34 Wn. App. 825, 827, 664 P.2d 527 (1983).

32No. 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 ofbothEugster I and Eugster VI, the case on appeal, includes the WSBA disciplinary process. In his appeal brief, Stephen Eugster addresses the resjudicata impact ofEugster V, butnotEugster 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 plaintiffthatprosecuted the ethical charges against Stephen Eugster. The rule ofidentity ofparties does not demand that eachparty be a namedparty in both proceedings. The rule may benefit one in control ofthe litigation. Stevens County v. Futurewise, 146 Wn. App. 493, 504, 192 P.3d 1(2008). Absent an argument from Stephen Eugsterto the contrary, we hold that Eugster I andEugster VI possess the same parties. Since Stephen Eugster and the WSBA litigate in theirrespective individual and official capacities in both procedures, we further hold that the quality ofthe parties corresponds in each suit. Remember that WSBA is not the only defendant on appeal. In Eugster VI, Stephen Eugster also sues three employees ofWSBA, PaulaLittlewood, Francesca D'Angelo, and Douglas Ende. These employees, however, garner the same resjudicata protections as their employer. Different defendants in separate suits are the same party 33No. 34345-6-111 Eugster 

### v. WSBA
for resjudicatapurposes as long as they are in privity. Ensley v. Pitcher, 152 Wn. App. 891, 902-03, 222 P.3d 99 (2009). The employer and employee relationship suffices to establish privity. Kuhlman v. Thomas, 78 Wn. App. 115, 121-22, 897 P.2d 365 (1995). The problematic resjudicata factor for this appeal is the second factor ofan identity ofthe cause ofaction. Ifwetook this requirement literally, we would hold that the proceedings lack this identity. Washington law does not necessarily define the term "cause ofaction" for purposes ofresjudicata. In other contexts, the Washington courts have referred to a "cause ofaction" as the act that occasioned the injury, McFarling v. Evaneski, 141 Wn. App. 400,405, 171 P.3d 497 (2007), and a legal right ofthe plaintiff invaded by the defendant. Cowley v. Northern Pacific Railway Co., 68 Wash. 558, 563, 123 P. 998 (1912). Black'sLawDictionary defines the term as "agroup ofoperative facts giving rise to one ormore bases for suing; a factual situation that entitles oneperson to obtain a remedy in court from another person; claim." BLACK'S LAWDICTIONARY 266 (10th ed. 2014). These definitions fit awkwardly into the relationship between Eugster I and Eugster VI. The operative facts ofEugster I was Stephen Eugster's conduct toward his client, Marion Stead. The WSBA initiated the proceeding in orderto enforce the attorney's code ofprofessional conduct, to protectthe public, and to sanction Eugster. The operative facts that initiatedEugster VI was Cheryl Rampley's grievance filed with the WSBA against Eugster on behalfofher aunt, Verdelle G. O'Neill. Eugster, 34No. 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 ofthe Supreme Court. Eugster VI is a civil rights action starting in superior court. The resjudicatadoctrine eitherredefines or undefines the term "cause ofaction"
as found in other settings. Washington utilizes no specific test for determining identity of
causes ofaction. Rains v. State, 100 Wn.2d at 663-64 (1983). Consideration offour factors provide an analytical tool for determining whether two causes ofaction are identical for purposes ofresjudicata: (1) whetherrights or interests established in the priorjudgmentwould be destroyed or impaired byprosecution ofthe second action; (2) whether substantially the same evidence is presented in the two actions; (3) whetherthe two suits involve infringement ofthe same right; and (4) whether the two suits arise out ofthe same transactional nucleus offacts. BerschauerPhillips Construction Co. v. Mutual of EnumclawInsurance Co., 175 Wn. App. at 230 (2013). All four elements need not be presentto barthe second legal action. See Rains v. State, 100 Wn.2d at 664. In BerschauerPhillips Construction Co. v. Mutual of Enumclaw Insurance Co., 175 Wn. App. 222 (2013), this courtheld that resjudicatabarred a second suitbrought 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. 35No. 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 StephenEugster in particular. The Supreme Court's opinion confirmedthe validity ofthe Washington State attorney disciplinary process. Eugster's current challenge to thatprocess would impair the express and implied rulings in Eugster I. The disciplinary process challenged by Eugstertoday remains the same from theprocess employed by the WSBA duringEugster I. Thus, Eugster asserts the same facts and arguments in Eugster VI thathe could have raised in Eugster I. Eugster I and VI possess the same nucleus offacts relevant to the constitutionality ofthe Washington attorney disciplinary process. The same rights and disabilities were or are at stake in Eugster I andEugster VI. Thus, weholdEugster I and Eugster VI to involve the same cause ofaction. Stephen Eugster's failure to assert a due process argument inEugster I does not impede enforcement ofresjudicata. Resjudicata applies to § 1983 actions with respect to the issues actually litigated and also issues that could have beenbutwere not litigated in the state courtproceedings. Migra v. Warren City SchoolDistrictBoardof Education, 465 U.S. 75 (1984); BerschauerPhillips Construction Co. v. Mutual of Enumclaw Insurance Co., 175 Wn. App. at 227-28 (2013). Resjudicata applies not only to points

onwhich the court was actually requiredbythe parties to form an opinion andpronounce
ajudgment, butto every pointthatproperly belonged to the subject ofthe litigation, and
36No. 34345-6-III Eugster v. WSBA
which the parties, exercising reasonable diligence, might have brought forward at that time. SoundBuiltHomes, Inc. v. Windermere RealEstate/South, Inc., 118 Wn. 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 priorproceeding, there is no simple or all-inclusive test. KellyHansen v. Kelly-Hansen, 87 Wn. App. 320, 330, 941 P.2d 1108 (1997). The controlling factors actually echo the factors reviewed when determining ifthe two suits entail the
same cause ofaction. When determining ifan argument should have been raised before, courts consider a variety offactors, including, whether the present andpriorproceedings arise out ofthe same facts, whether they involve substantially the same evidence, and whether rights or interests established in the first proceeding wouldbe destroyed or impaired by completingthe secondproceeding. Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. at 330. A matter shouldhave been raised and decided earlier ifit is merely an alternate theory ofrecovery or an alternate remedy. Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. at 331. A plaintiffmay notreinstitute, against the sameparties, the same cause ofaction based on the same array offacts 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 courtjudgmentwill create a constitutional issue, that issue should be argued before the state court. Royv. 37No. 34345-6-111 Eugster v. WSBA City of Augusta, 712 F.2d 1517, 1521 (1st Cir. 1983). Otherwise the principles ofres judicatawill bar a party from later raising the constitutional claim against the same parties in an action under§ 1983. Roy v. City of Augusta, 712 F.2d at 1521. The principle ofresjudicatathat bars claims that might have been raised extends to a defendant in an earlier civil suit who failed to raise a defense based onthe constitution. Lovelyv. Laliberte, 498 F.2d 1261, 1263 (1st Cir. 1974). This principle even extends to defenses that aparty could have raised in an administrative proceeding. Krison v. Nehls, 767 F.2d 344, 348 (7th Cir. 1985). Although otherjurisdictions' decisions do not bind us, federal courts have addressed the circumstances when a disciplined attorney sues the disciplinary authority for violation ofconstitutional rights after imposition ofdiscipline. InMartinez Rivera v. Trias Monge, 587 F.2d 539 (1st Cir. 1978), the federal Court ofAppeals held that res judicatabarred an attorney's suit for violation ofhis 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 rememberres 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 ofaction as a later suit challenging the process employed during the proceeding.
38No. 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 ofa complaint against an attorney resulted in a six-month suspension ofthe attorney's license to practice. The federal court dismissed the attorney's later civil rights action onthe ground ofresjudicata, because the attorney sought to attack the statejudicial 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. CincinnatiBarAssociation, 431 F.2d 1209 (6th Cir. 1970), the Supreme Court ofOhio suspended James Coogan from the practice oflaw. Coogan filed suit in federal court to enjoin the suspension on the ground that the state disciplinary proceeding violated his constitutional right to confrontwitnesses. The federal court refused to entertain the suit for lack ofsubject matterjurisdiction and on the ground ofres judicata. IfCoogan disagreed with the Ohio Supreme Court's decision on constitutional grounds, Coogan could have asked the United States Supreme Court for review ofthe 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 baryears 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 Courtbefore 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 ofEugster 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 inEugster 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. CincinnatiBarAssociation, 431 F.2d 1209; Czura v. Supreme Court, 632 F. Supp. 267, but in each case the courtbestowed resjudicataeffect 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 ofLawrence Vandenplas' farm buildings. After the razing, Vandenplas sued the city and alleged that the destruction ofhis buildings resulted from his criticism ofthe city and thus breached his due process, equal protection, and First Amendmentrights. The federal court summarily dismissed Vandenplas' suit on 40No. 34345-6-111 Eugster v. WSBA
the basis ofresjudicata. 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, ifVandenplas 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 courthas held that the inability to recover damages in a first proceeding precludes application ofresjudicata 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 ofAppeals in Vandenplas v. City of Muskego. Stephen Eugster couldhave litigated the constitutionality ofthe Washington disciplinary process in Eugster I and sought damages in a later suit. Any ruling in Eugster I affirming any alleged violation ofEugster'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 oflater disciplinary proceedings. The purposes ofres judicata apply regardless ofwhether Eugster could seek damages in Eugster I. The WSBA should notbe faced with litigation over issues Eugster could have litigated before. By way ofhis first motion for this court to takejudicial notice, Stephen Eugster observes that the WSBA hearing examiner, in Eugster IV, recently dismissed his
41No. 34345-6-111 Eugster v. WSBA
affirmative defenses, counterclaim and third-party complaint, by which he complains about violation ofhis due process rights. We note that dismissal ofa counterclaim and third-party complaint do not necessarily preventEugster from arguing constitutional defenses against the current disciplinary proceeding. Dismissal ofaffirmative defenses may be more problematic. Nevertheless, dismissal may have been properunderres judicataprinciples. Also, Eugsterremains free to challenge the hearing examiner's decision before the WSBADisciplinary Board and the state Supreme Court. Stephen Eugster argues that, during the Eugster Iproceedings, he lacked an opportunity for a United States District Courtto 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). Underthe Younger doctrine, federal courts do not grant reliefthat interferes with pending state criminal prosecutions orwith pending state civil proceedings that implicate important state interests. Eugster's argument fails to recognize that he had the rightto seekreview ofthe Washington Supreme Court's decision in Eugster I before the United States Supreme Court. Eugster cites no casethat holds that the inability to challenge a state proceeding in the United States District Court does not preclude the application ofresjudicata. Because we hold that resjudicatabars this suit we do not address the WSBA's
42No. 34345-6-III Eugster v. WSBA
other arguments oflack 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 takejudicial notice ofa June 2016 disciplinary action filed by the WSBA against Stephen Eugster with regard to his conducttoward his client Verdelle O'Neill and ofa September 2016 vote by the WSBA Board ofGovernors to admit limited practice officers and limited license legal technicians as members ofthe WSBA. We deny the motions. ER201 governsjudicial notice and declares: (a) Scope ofRule. This rule governs onlyjudicial notice of adjudicative facts. (b) Kinds ofFacts. Ajudicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorialjurisdiction ofthe trial court or (2) capable ofaccurate and ready determination by resort to sources whose accuracy cannotreasonably be questioned. (c) When Discretionary. A court may takejudicial notice, whether requested or not. (d) When Mandatory. A court shall takejudicial 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 oftakingjudicial notice and the tenor ofthe matter noticed. In the absence ofprior notification, the request may be made afterjudicial notice has beentaken. (t) Time ofTaking Notice. Judicial notice may be taken at any stage ofthe proceeding. Judicial notice may be taken on appeal ifthe following standard is met: 43No. 34345-6-111 Eugster v. WSBA
We may takejudicial notice ofthe record in the case presently before us or "inproceedings engrafted, ancillary, or supplementary to it." However, we cannot, while deciding one case, takejudicial notice of records ofother independent and separatejudicialproceedings eventhough they are betweenthe same parties. Spokane Research & DefenseFundv. City of Spokane, 155 Wn.2d 89, 98, 117 P.3d 1117 (2005) (quoting In reAdoption of E.T., 150 Wn.2d 409,415, 78 P.3d 634 (2003)). In addressing the concept of"proceedings engrafted, ancillary, or supplementary," the Washington Supreme Courthas declined to takejudicial notice ofthe legal conclusions in a dependency action in a subsequent adoption proceeding because the dependency action constituted a separate proceeding. In reAdoption of B. T., 150 Wn.2d at 415. In Spokane Research & Defense Fund, the high court again refused to take notice of documents from a separateproceeding. Spokane Research & Defense Fundv. City of Spokane, 155 Wn.2d at 98-99. We follow suit and decline to takejudicial notice ofa related, but separate, proceeding. We also rule Stephen Eugster's motions forjudicial notice to be untimely. Under ER201( e), a party is entitled "upontimely request" to an opportunity to be heard as to the propriety oftakingjudicial notice and the tenor ofthe matter noticed. Eugster erroneously attempted to introduce the disciplinary proceedingpleadings by a statement ofadditional authorities in September 2016. He then waiteduntil late December 2016, after the court conferenced, before bringing his motions.
44

### No. 34345-6-111 Eugster v. WSBA
CONCLUSION On the ground ofresjudicata, we affirm the trial court's dismissal ofStephen Eugster's complaint. 

# Fear!~)~

WE CONCUR:

Pennell, J.



### 45 

# I