Loren Bergh v. State of Washington

535 F.2d 505 11 Empl. Prac. Dec. P 10,913 Loren BERGH, Plaintiff-Appellant, v. STATE OF WASHINGTON et al., Defendants-Appellees. No. 75-1511. United States Court of Appeals, Ninth Circuit. May 3, 1976. As Amended of Rehearing on Denial May 27, 1976. Anthony Schwab (argued), Seattle, Wash., for plaintiff-appellant. James M. Johnson, Asst. Atty. Gen. (argued), Olympia, Wash., for defendants-appellees. OPINION Before CHAMBERS and KENNEDY, Circuit Judges, and JAMESON, * District Judge. KENNEDY, Circuit Judge: 1 Appellant Loren Bergh is a commercial fisherman, duly licensed by the State of Washington. He brought suit seeking injunctive and declaratory relief against the following: the Honorable George Boldt, United States District Judge; Edgar Scofield, Clerk of the District Court for the Western District of Washington; the State of Washington and its Department of Fisheries; and Thor Tollefson, the department director. Appellant challenges certain regulations, promulgated by the State of Washington in response to Judge Boldt's decision in United States v. State of Washington, 384 F.Supp. 312 (W.Dist.Wash.), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, --- U.S. ----, 96 S.Ct. 877…

Appellant Loren Bergh is a commercial fisherman, duly licensed by the State of Washington. He brought suit seeking injunctive and declaratory relief against the following: the Honorable George Boldt, United States District Judge; Edgar Scofield, Clerk of the District Court for the Western District of Washington; the State of Washington and its Department of Fisheries; and Thor Tollefson, the department director. Appellant challenges certain regulations, promulgated by the State of Washington in response to Judge Boldt’s decision in United States v. State of Washington, 384 F.Supp. 312 (W.Dist.Wash.), aff’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 , 96 S.Ct. 877 , 47 L.Ed.2d 97 , 44 U.S.L.W. 3428 (1976). Appellant claims that the regulations give Indian fishermen greater fishing rights than non-Indian fishermen and that this constitutes unlawful discrimination on the basis of race, in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1983 , and the fourth article and fourteenth amendment of the Constitution. Specifically appellant sought to enjoin (1) Judge Boldt from ordering the State of Washington to promulgate regulations favoring Indian…

(concurring):

I concur in Judge Kennedy’s opinion.

He has said all that is necessary to dispose of the case.

However, there are other problems with the case. Without arguing them or listing all of them, I suggest a couple:

1. How on earth could the clerk of the district court be a proper party?

2. How could Judge Boldt be a proper party? (Counsel in oral argument seemed to suggest it could be done by simply calling Judge Boldt by the name of “Mr. Boldt.”)

In a proper case, mandamus might lie, but that is not available for a collateral attack.