No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. JESSICA MAE MATHESON, dba JESS S WHOLESALE;

Transcription

1 Case: /28/2012 ID: DktEntry: 18 Page: 1 of 47 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JESSICA MAE MATHESON, dba JESS S WHOLESALE; v. Plaintiff-Appellant, LEE SMITH and DOYLE McMINN, Agents or Employees of e Washington State Department of Revenue, JOHN OR JANE DOE, Supervisor to Doyle McMinn, DOES 2-6, Oer Unknown Agents or Employees of e Washington State Department of Revenue, and e Washington State Liquor Control Board; THE WASHINGTON STATE DEPARTMENT OF REVENUE; THE WASHINGTON STATE LIQUOR CONTROL BOARD, and THE STATE OF WASHINGTON; Defendants-Respondents. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NO. 3:11-cv RBL - THE HONORABLE RONALD B. LEIGHTON, UNITED STATES DISTRICT COURT JUDGE REPLY BRIEF OF APPELLANT Aaron L. Lowe, WSBA #15120 Attorney for Appellant 1403 W. Broadway Avenue Spokane, WA (509)

2 Case: /28/2012 ID: DktEntry: 18 Page: 2 of 47 TABLE OF CONTENTS TABLE OF AUTHORITIES iii I. OBJECTION TO APPELLEE S STATEMENT OF CASE II. OBJECTION TO STATEMENT OF FACTS III. ARGUMENT A. The Tax Injunction Act does not apply to penalties B. A State Remedy does not prevent Federal Jurisdiction for e reason at Federal Preemption, Discrimination and Personal liability is alleged ereby creating 1983 liability. It also involves violation of Federal Constitutional Principles of Indian and Interstate Commerce, State Employees acting beyond eir auority and oer issues. The Federal Court has Exclusive Jurisdiction C. Eleven Amendment Immunity does not apply D. This suit involves Federal Preemption, not inconsistent State Statutes E. This Case is brought under 28 U.S.C. 1343, 42 U.S.C for Gender and Racial Discrimination by State Employees acting beyond eir auority under color of State Law; for Immunity from Tax pursuant to Federal Preemption; for Systemic Discrimination, Harassment and Unlawful Collection. The Tax Injunction Act does not deny Federal Jurisdiction to a Female, Enrolled Tribal Indian who claims Discriminatory Treatment i-

3 Case: /28/2012 ID: DktEntry: 18 Page: 3 of 47 F. 28 U.S.C does not Bar Jurisdiction where State Cigarette Taxes on Indians is e Issue G. The Tax Injunction act does not apply where e collection of e tax is from Third Parties H. The Motion to file a Supplemental Complaint alleged facts at occurred after e Judgment was entered in is Case. It was an abuse of discretion to deny it CONCLUSION ii-

4 Case: /28/2012 ID: DktEntry: 18 Page: 4 of 47 Cases TABLE OF AUTHORITIES 281 Care Committee v. Arneson, 638 F.3d 621, 632 (8 Cir. 2011) Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1049 (9 Cir. 2000) , 21 Akhtar v. Mesa, 2012 WL , page 8 (9 Cir. 2012) , 34 American Trucking Associations v. Scheiner, 483 U.S. 266, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987) Arizona v. U.S., 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) Associated Grocers v. State, 787 P.2d 22, 25 (Wash. 1990) Benson v. JP Morgan Chase Bank N.A., 673 F.3d 1207,1218 (9 Cir. 2012) Bowman v. Chicago NW Ry Co., 125 U.S. 465, 8 S.Ct. 689, 31 L.Ed 700 (1888) Cabazon Band of Mission Indians v. Smi, 388 F.3d 691, 701 (9 Cir. 2004) Chudacoff v. University Medical Center of Souern Nevada, 649 F.3d 1143, 1152 (9 Cir. 2011) , 35 Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9 Cir. 2012) Coeur d Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 681 (9 Cir. 2004) iii-

5 Case: /28/2012 ID: DktEntry: 18 Page: 5 of 47 Comenout v. State, 722 F.2d 574 (9 Cir. 1983) Cree v. Flores, 157 F.3d 762, 774 (9 Cir. 1998) Crowe & Dunlevy P.C. v. Stidham, 640 F.3d 1150, (10 Cir. 2011) Dennis v. Higgins, 498 U.S. 439, 451, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991) Department of Taxation and Finance of New York v. Milhelm Attea & Bros., 512 U.S. 61, 64, 114 S.Ct. 2028, 129 L.Ed.2d 52 (1994)...5 Dillon v. Montana, 634 F.2d 463 (9 Cir. 1980) Dodds v. Richardson, 614 F.3d 1185, 1193 (10 Cir. 2010) Eid v. Alaska Airlines, 621 F.3d 858, 874 (9 Cir 2010) Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed 714 (1908)..13 Fair Assessment in Real Estate Ass n v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981) Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) Gilbertson v. Albright, 381 F.3d 965 (9 Cir. 2004) Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) Griffin v. School Bd. of Prince Edward County, 377 U.S. 218, 225, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) Grizzle v. Kemp, 634 F.3d 1314, 1319 (11 Cir. 2011) iv-

6 Case: /28/2012 ID: DktEntry: 18 Page: 6 of 47 Hart v. Massanari, 266 F.3d 1155 (9 Cir. 2001) HCI Distribution Inc. v. New York State Police, 948 N.Y.S.2d 542, 548 (S.C.N.Y. 2012) Hemi Group LLC v. City of New York, 130 S.Ct. 983, 990, 175 L.Ed.2d 943 (2010) Hibbs v. Winn, 542 U.S. 88, 108, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) Idaho v. Coeur d Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) Jefferson County v. Acker, 527 U.S. 423, 119 S.Ct. 2069, 144 L.Ed.2d 409 (1999) , 21, 29 Lindauer v. Rogers, 91 F.3d 1355 (9 Cir. 1996) Louisville N.R. Co. v. F.W. Coors Brewing Co., 223 U.S. 70, 32 S.Ct. 189, 56 L.Ed 355 (1912) Mahoney v. State Tax Commission, 524 P.2d 187 (Idaho 1973)....3 Mark v. Groff, 521 F.2d 1376, 1378 (9 Cir. 1975) Maxwell v. County of San Diego, 679 F.3d 941 (9 Cir. 2012) McClanahan v. State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973) Mescalero Apache Tribe v. Jones, 411 U.S. 145, 150, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1976) Miller Bros v. Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed 744 (1954) v-

7 Case: /28/2012 ID: DktEntry: 18 Page: 7 of 47 Moe v. Confederated Salish and Kootenai Tribes of Flaead Reservation, 425 U.S. 463, 480, 96 S.Ct 1634, 48 L.Ed.2d 96 (1976) , 8, 31 National Federation of Independent Businesses v. Sebelius, U.S.,132 S.Ct. 2566, 2583, 183 L.Ed.2d 450 (2012) , 19 Parker v. Franklin County Community School Corp., 667 F.3d 910, 972 (7 Cir. 2012) Paul v. Department of Revenue, 40 P.3d 1203 (2002) Pauline v. State of Hawaii Dept. of Public Safety, 773 F.Supp.2d 914 (D. Hawaii 2011) Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316, 327, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008) Pueblo of Santa Ana v. Nash, 854 F.Supp.2d 1128 (D.C.N.M. 2012) Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 719, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) nd Red Ear LLC v. U.S., 657 F.3d 138 (2 Cir. 2011) Rowe v. New Hampshire Motor Transport Ass n, 552 U.S. 364, 374, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008) Schware v. Board of Bar Examiners of e State of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) Seneca Tribe of Oklahoma v. Thompson, 874 F.2d 709, 714 (10 Cir. 1989) State v. Atcitty, 215 P.3d 90, 98 (N.M. 2009) vi-

8 Case: /28/2012 ID: DktEntry: 18 Page: 8 of 47 State v. Union Pacific Railroad Company, 823 P.2d 539 (Wyo. 1992) Ward v. New York, 291 F.Supp.2d 188, 206 (W.D.N.Y. 2003) Washington v. Confederated Tribes of e Colville Reservation, 447 U.S. 134, 142, fn.9, 100 S.Ct. 2069, 65 L.Ed.2d10 (1980) Washington State Bldg and Trades Council AFL-CIO v. Spellman, 684 F.2d 627, 631 (9 Cir. 1982) Weimerskirch v. C.I.R., 596 F.2d 358, 362 (9 Cir. 1979) Weste v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) Wolfson v. Brammer, 616 F.3d 1045, 1066 (9 Cir. 2010) Wright v. Riveland, 219 F.3d 905, 911 (9 Cir. 2000) Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed 220 (1886) Statutes 26 U.S.C , U.S.C , 29, 30, 31, U.S.C , 29, U.S.C , 33 -vii-

9 Case: /28/2012 ID: DktEntry: 18 Page: 9 of 47 Federal Constitution U.S.Const. Art I 8 cl U.S.Const. Art I State Statutes Wash.Rev.Code , 28 Wash.Rev.Code , 27 Wash.Rev.Code , 4, 6, 8, 18 Wash.Rev.Code , 6, 24 Wash.Rev.Code , 4,18, 26 Wash.Rev.Code , 3, 4, 15, 16, 17, 24, 26 Wash.Rev.Code , 3, 4 Wash.Rev.Code , 24, 26 Wash.Rev.Code Wash.Rev.Code , 30 Wash.Rev.Code , 18, 27, 30 Wash.Rev.Code , 27 Wash.Rev.Code Wash.Rev.Code 82.32A State Constitution Wash.Const. art I 2; art IV Wash.Const. art 26, Second State Regulations WAC (9) WAC (303) and 602(a) Oer Fed.R.Civ.P. 15(d) Fed.R.Civ.P. 60(b) viii-

10 Case: /28/2012 ID: DktEntry: 18 Page: 10 of 47 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JESSICA MAE MATHESON, dba JESS S WHOLESALE; v. Plaintiff-Appellant, LEE SMITH and DOYLE McMINN, Agents or Employees of e Washington State Department of Revenue, JOHN OR JANE DOE, Supervisor to Doyle McMinn, DOES 2-6, Oer Unknown Agents or Employees of e Washington State Department of Revenue, and e Washington State Liquor Control Board; THE WASHINGTON STATE DEPARTMENT OF REVENUE; THE WASHINGTON STATE LIQUOR CONTROL BOARD, and THE STATE OF WASHINGTON; Defendants-Respondents. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NO. 3:11-cv RBL, THE HONORABLE RONALD B. LEIGHTON, UNITED STATES DISTRICT COURT JUDGE I. OBJECTION TO APPELLEE S STATEMENT OF CASE Appellees, including e State of Washington, conclude in e first sentence of eir statement of e case at Maeson purchased e cigarettes and has been unable to account for how -1-

11 Case: /28/2012 ID: DktEntry: 18 Page: 11 of 47 1 she disposed of em. There is no proof in e record at she purchased any cigarettes and ere is no proof because she did not purchase any cigarettes. The Complaint (ER 179,191) states at she only transports tobacco products to her faer and broer. Maeson s witnesses testified in state court proceedings at e cigarettes were delivered to eier e business of her Native American faer or Native American broer, bo of whom are fully qualified as Indian tribal organization businesses on eir respective Indian reservations. Wash.Rev.Code (6) defines all ree Maesons as Indian tribal organizations. Jessica Maeson had dual exemptions from e State s cigarette tax bo as a wholesaler (Wash.Rev.Code (a)), and as an Indian transporting to qualified Indians. Wash.Rev.Code (c), (1)(a). Bo relatives were exempt from e State of Washington cigarette tax. Paul Maeson s Puyallup Indian business was also exempt as e Puyallup Tribe/State Compact was in effect. Wash.Rev.Code For convenience, hereafter e reference to Appellees brief is to e State but is meant to include all Appellees. -2-

12 Case: /28/2012 ID: DktEntry: 18 Page: 12 of 47 Nick Maeson s Coeur d Alene Reservation business was exempt under Wash.Rev.Code (c); (5). Wash.Rev.Code (1)(a), (m) and especially sub-paragraph (n)(iii) exempts a wholesale shipper like Jessica Maeson to possess or transport. Wash.Rev.Code (3); Mahoney v. State Tax Commission, 524 P.2d 187 (Idaho 1973) and Paul v. Department of Revenue, 40 P.3d 1203 (Wash. 2002) bo hold at cigarettes destined out-ofstate to oer Indian reservations need not have tax stamps and ereby ese products are not taxable by e State. There is no evidence at cigarettes were destined for any taxable location or at ese products were sold or disposed of by Plaintiff. Maeson never wholesaled to non-indians. ER II. OBJECTION TO STATEMENT OF FACTS Page 3 of e State s brief states, Ms. Maeson was e first taxable person and Ms. Maeson or her employees possessed unstamped cigarettes outside of Indian country. The State admits, however, at page 4 of its brief and roughout at Maeson was a licensed wholesaler. The Complaint alleges a continuous -3-

13 Case: /28/2012 ID: DktEntry: 18 Page: 13 of 47 wholesale license from 2006 rough at least November ER Maeson, as a licensed wholesaler, can legally possess unstamped cigarettes anywhere in e United States including Washington State. See; e.g., Wash.Rev.Code (l)(e) and (n)(iii). Wash. Rev.Code (1) states, except as auorized by is chapter, no person oer an a licensed wholesaler, shall possess in is state unstamped cigarettes. Wash.Rev.Code (1) in part provides... no person oer an (a) a licensed wholesaler in e wholesaler s own vehicle. Wash.Rev.Code (1) states,... oer an (a) a wholesaler required to be licensed under is chapter. Maeson raised e licensed wholesaler issue at pages 11, 31-2, of her brief. The State admits at, e wholesaler can sell unstamped cigarettes to (1) anoer wholesaler.... or (4) a tribally licensed wholesaler or retailer on an Indian reservation. (State s Br. p. 4). Unless she sells to a taxable consumer, no stamping or tax collection is required. Wash.Rev.Code (1) and (2), Appellant s Opening Brief pgs reviews e issue. There is -4-

14 Case: /28/2012 ID: DktEntry: 18 Page: 14 of 47 absolutely no evidence, nor even an inference, at a taxable sale was ever made by Maeson. Therefore, e ruling of e trial court must be reversed. Anoer reason e first taxable person factual statement is incorrect is at e statement ignores e undisputed fact at all ree Maesons were enrolled Indians living on and whose businesses were located on federally recognized Indian reservations. ER 179, 191, 192. The State of Washington cigarette tax never applies to enrolled Indians, wheer on or off eir reservations. McClanahan v. State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Department of Taxation and Finance of New York v. Milhelm Attea & Bros., 512 U.S. 61, 64, 114 S.Ct. 2028, 129 L.Ed.2d 52 (1994); Moe v. Confederated Salish and Kootenai Tribes of Flaead Reservation, 425 U.S. 463, 480, 96 S.Ct 1634, 48 L.Ed.2d 96 (1976); Washington v. Confederated Tribes of e Colville Reservation, 447 U.S. 134, 142, fn.9, 100 S.Ct. 2069, 65 L.Ed.2d10 (1980). On page 3 of e State s Brief, e argument at a wholesaler -5-

15 Case: /28/2012 ID: DktEntry: 18 Page: 15 of 47 is e first taxable person unless she sells in an exempt sale all referring to Wash.Rev.Code is misleading as wholesalers can keep stock unstamped indefinitely. Wash. Rev.Code (2)(b). Wash.Rev.Code (4)allows Indian sales,... (4) in accordance wi federal law and rules prescribed by e department, an enrolled member may purchase cigarettes from an Indian tribal organization. Wash.Rev.Code (b)(5) also allows Maeson unlimited possession over any period of time. Wash.Rev.Code (2) completely refutes presumed sales. It states: e tax shall be imposed at e time and place of e first taxable event and upon e first taxable person wiin is state. Any person whose activities would oerwise require payment of e tax imposed by subsection (1) of is section but who is exempt from e tax nevereless has a precollection obligation for e tax at must be imposed on e first taxable event wiin is state. When e sale is to a taxable person e tax is imposed only on e first taxable event of sale. Under Appellee s eory, all wholesalers must stamp all cigarettes immediately wi no exceptions, but is eory of e case is not supported by e Act. -6-

16 Case: /28/2012 ID: DktEntry: 18 Page: 16 of 47 Maeson s Opening Brief at pages 31-32, also refutes is material misstatement, especially e recent case of HCI Distribution Inc. v. New York State Police, 948 N.Y.S.2d 542, 548 (S.C.N.Y. 2012) holding, it is pure speculation at an Indian transporting cigarettes would sell em off-reservation. A wholesaler is never e taxable person, but only has to collect e tax when e sale is taxable. A furer misstatement is made at page 5 of e State s Brief, The department determined at Ms. Maeson had not purchased state tax stamps for e 703,400 packs. The Complaint (ER 172) quotes Defendant Lee Smi under oa stating at no one knew wheer stamps were on e cigarettes. The determination is speculation wiout any factual basis. The factual assertions roughout refer to e state tax false determinations. Page 6 of e State s Brief at Maeson failed to pay e tax is an example. The state transcript has not been introduced into evidence. This appeal is on a motion to dismiss. The facts of e Complaint at is time are taken as true. Akhtar v. Mesa, 2012 WL , page 8-7-

17 Case: /28/2012 ID: DktEntry: 18 Page: 17 of 47 (9 Cir. 2012). This is a 1983 federal case. At is stage of e case, no credibility determinations are made. The Complaint (ER 171-2), provides at Maeson doesn t transport or sell to anyone but two Indian tribal organizations, her Indian broer or faer. ER 179. The State s Brief at 6 also misstates e finding of e Board of Tax Appeals. There is no evidence to weigh as no presumption, under Nin Circuit law, can prevail unless admissible evidence is introduced. Weimerskirch v. C.I.R., 596 F.2d 358, (9 Cir. 1979). The Commissioner offered no evidence... ere was no evidence from which it could only be inferred at he engaged in ose activities... A deficiency determination which is not supported by e proper foundation of substantive evidence is clearly arbitrary and erroneous. Federal law, especially Moe v. Confederated Salish and Kootenai Tribes of Flaead Reservation, 425 U.S. 463, 480, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) holds,... e cigarette sales tax, as applied to on-reservation Indians, conflict wi e congressional statutes. Wash.Rev.Code (1) allows a wholesaler to possess -8-

18 Case: /28/2012 ID: DktEntry: 18 Page: 18 of 47 unstamped cigarettes...050(1) states e same. Furer, Maeson is an Indian trial organization and can possess cigarettes under at classification. Wash.Rev.Code (b)(5). The wholesale license was granted by e State and substantive due process was provided by e State if e wholesaler violated e license. Wash.Rev.Code , 550. Maeson s Complaint alleges, Plaintiff is discriminated by defendants as ey refuse to recognize her wholesaler s license. ER 187. The allegations in e Complaint allege a systemic violation of Indian rights. ER The state actors ignored Maeson s wholesale license and her right to due process and equal treatment for alleged violations. This is e epitome of e case. A female Indian wholesaler, who alleges at she is probably e only Washington State female on-reservation Indian wholesaler, was discriminated against by constant supervision and harassment. ER There was no discovery conducted in is matter. It is highly doubtful if all wholesalers get such constant supervision. For all of e above reasons, e decision of e trial court must be reversed. -9-

19 Case: /28/2012 ID: DktEntry: 18 Page: 19 of 47 III. ARGUMENT A. The Tax Injunction Act does not apply to penalties. The State s Brief at page 11 and roughout presumes at it was a tax, but e assessment was not a tax. This issue is reviewed in Maeson s Opening Brief at pages National Federation of Independent Businesses v. Sebelius, U.S., 132 S.Ct. 2566, 2583, 183 L.Ed.2d 450 (2012) held at a penalty is not a tax. 26 U.S.C. 7421(a) states, assessment and collection of any tax. 28 U.S.C states, collection of any tax. Federal law determines wheer e tax is an assessment wiin bo 28 U.S.C and 26 U.S.C. 7421(1). This issue is reviewed at page 31 of is Reply Brief. Wright v. Riveland, 219 F.3d 905, 911 (9 Cir. 2000). Wash.Const. art I 2; art IV 28, U.S.Const. Art I 10, Wash.Rev.Code all support federal law to determine wheer an assessment is a tax. If it is not a tax, 28 U.S.C does not apply and federal jurisdiction is obtained. The State also contends at page 11 of its brief, at is case is not a collection action. The State contradicts its statement in -10-

20 Case: /28/2012 ID: DktEntry: 18 Page: 20 of 47 footnote 5 at page 7. While e Department has filed tax warrants as a result of Ms. Maeson s failure to pay e assessment and has collected against Ms. Maeson s off-reservation bank account. Arguments cannot change e facts. Collection has been undertaken and will continue. ER 184. The State has already taken Maeson s money from her bank account. If e case is decided on e basis of non-collection, all e State has to do is continue collection. The attempt to distinguish Jefferson County v. Acker, 527 U.S. 423, 119 S.Ct. 2069, 144 L.Ed.2d 409 (1999) fails. This suit, like Acker, supra, seeks an injunction against tax collection. ER 198, 201. Acker Id., 435, In sum, we hold at e Tax Injunction Act does not bar collection suits, nor does it prevent taxpayers from urging defenses in such suits at e tax for which collection is sought is invalid. B. A State Remedy does not prevent Federal Jurisdiction for e reason at Federal Preemption, Discrimination and Personal liability is alleged ereby creating 1983 liability. It also involves violation of Federal Constitutional Principles of Indian and Interstate Commerce, State Employees acting beyond eir auority and oer issues. The Federal Court has Exclusive Jurisdiction. -11-

21 Case: /28/2012 ID: DktEntry: 18 Page: 21 of 47 In reviewing is issue, Maeson, at page 11 of her Opening Brief cites Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1049 (9 Cir. 2000). The Court, reviewing Idaho v. Coeur d Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997), stated: Justice Kennedy stated in e principal opinion at [w]here ere is no available state forum e Young rule has special significance, Id. at 271, 117 S.Ct. 2028, and concluded at one instance in which Young applies is if ere is no state forum available to vindicate federal interests, id. at 270, 117 S.Ct He ultimately acknowledged, however, at [e]ven if ere is a prompt and effective remedy in a state forum, a second instance in which Young may serve an important interest is when e case calls for e interpretation of federal law. Id. at 274, 117 S.Ct we conclude at e existence of a remedy at law in state court is not a bar to e Young exception. (Underlining supplied). Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9 Cir. 2012) upheld jurisdiction for declaratory and injunctive relief against a state officer for failure to enforce e State Constitution. Mark v. Groff, 521 F.2d 1376, 1378 (9 Cir. 1975) holds at damage actions are allowable against federal employees who harass individuals on tax audits. The action also applies to -12-

22 Case: /28/2012 ID: DktEntry: 18 Page: 22 of 47 state tax officials. Maeson alleged constitutional violations under color of state law willfully beyond e named individuals auority ER 169, 173, 178, They were sued personally. ER 178. These factual allegations support federal jurisdiction for damages. Weste v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Dodds v. Richardson, 614 F.3d 1185, 1193 (10 Cir. 2010). Maxwell V. City of San Diego, 697 F.3d 941, 953 (9 Cir. 2012) denies Eleven Amendment immunity in a 1983 case where personal liability is alleged. Here personal liability of Smi and McMinn is alleged. ER 169, 178, 186. Injunctive and declaratory relief is allowed even if only official capacity is alleged. Wolfson v. Brammer, 616 F.3d 1045, 1066 (9 Cir. 2010). Crowe & Dunlevy P.C. v. Stidham, 640 F.3d 1150, (10 Cir. 2011) notes at an ongoing violation of federal law eliminates sovereign immunity pursuant to Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed 714 (1908). Maeson alleges at e interstate commerce clause of e U.S. Constitution invalidates e notice statute and it also discriminates against Indians. ER The -13-

23 Case: /28/2012 ID: DktEntry: 18 Page: 23 of 47 regulations required out of state reporting. ER 182. Comenout v. State, 722 F.2d 574 (9 Cir. 1983) and Dillon v. Montana, 634 F.2d 463 (9 Cir. 1980), cited roughout e State s brief, are easily distinguishable as neier had a state wholesaler s license, and were not subject to systemic discrimination, state tax penalties or unconstitutional collection. Grizzle v. Kemp, 634 F.3d 1314, 1319 (11 Cir. 2011) and 281 Care Committee v. Arneson, 638 F.3d 621, 632 (8 Cir. 2011) uphold 1983 declaratory relief if constitutional violations are proven. Pueblo of Santa Ana v. Nash, 854 F.Supp.2d 1128 (D.C.N.M. 2012) holds at if e question involves lack of state jurisdiction on federal Indian law, e issue is primarily federal and declaratory judgment against a state court judge named individually is available in federal court. C. Eleven Amendment Immunity Does Not Apply. At page 27 of its brief, e State contends at it has Eleven Amendment immunity against e State and its officials acting in eir official capacities. This argument overlooks e allegations in -14-

24 Case: /28/2012 ID: DktEntry: 18 Page: 24 of 47 Maeson s Complaint at, The individual Defendants have acted far beyond eir delegated auority in a willfully wanton, reckless and intentional attempt to destroy Plaintiff s wholesale license and drive Plaintiff out of business. ER 169. The facts alleged support is contention. ER 172, 180-5, and roughout. Maeson alleged denial of equal rights, ereby violating e Fif Amendment of e Federal Constitution. ER 174. The detailed systematic disparate treatment of military bases could sell as many cigarettes as ey wanted, but Indian retailers were given quotas by e state. The State also denied her e use of her valid wholesaler s license based on her Indian status and sex. ER The state law requires wholesale licensed Indians to call in, even if out of state, before ey ship cigarettes to a reservation Indian retailer. ER Military bases are not required to call in. Wash.Rev.Code (7)(b). However, shipments to Indian reservations require a call in. Wash.Rev.Code (c). Exceptions to state taxation are invalid if ey violate a wholesaler s equal protection rights, provided by e fourteen amendment to e United States -15-

25 Case: /28/2012 ID: DktEntry: 18 Page: 25 of 47 Constitution and also e State of Washington Constitution, art Associated Grocers v. State, 787 P.2d 22, 25 (Wash. 1990). As an enrolled Indian living on her reservation, Jessica Maeson, even if she was unlicensed, had no duty to comply wi e State s notice or registration law as it infringes on tribal sovereignty. State v. Atcitty, 215 P.3d 90, 98 (N.M. 2009). Wash.Rev.Code (7)(b) allows military cigarettes delivered wiout notice but requiring shipments by non-wholesalers onto Indian reservations to give advance notice. Wash.Rev.Code (c). The same discrimination applies to e state regulations by WAC (9) apply quotas to Indians but not purchasers from military base stores. WAC (303) and 602(a). Invalidity and injunctive relief from ese statutes and rules are requested on e Complaint. ER 195, 197. Related to e issue of inconvenience is State v. Union Pacific Railroad Company, 823 P.2d 539 (Wyo. 1992) holding at filing papers by a construction company declaring at its equipment was not going to be used in state taxable situations held up e equipment for several hours -16-

26 Case: /28/2012 ID: DktEntry: 18 Page: 26 of 47 and was moot a minimum burden. Id. at 542. The State s assertion at collection of e tax is minimal ignores e notice provision of Wash.Rev.Code (1)(a); (7)(c) and Red Ear LLC v. U.S., nd 657 F.3d 138 (2 Cir. 2011). Jessica Maeson was engaged in interstate or Indian commerce. She was merely picking up wiin e state on a round trip between reservations. Rowe v. New Hampshire Motor Transport Ass n, 552 U.S. 364, 374, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008) holds at a trucker of cigarettes in interstate commerce is not required to deliver to only state licensed tobacco retailers and also does not have to ascertain at e person who takes delivery is over 21. Federal preemption invalidates e law. This has been e law for at least 125 years, since 1888 when Bowman v. Chicago NW Ry Co., 125 U.S. 465, 8 S.Ct. 689, 31 L.Ed 700 (1888) was decided. It held at a Chicago brewer could ship beer by rail to itself from Chicago, Illinois to Marshalltown, Iowa, a dry state at e time. The court held until e beer was to be delivered to a person who had auority to receive it, it did not violate e state non-alcohol laws. -17-

27 Case: /28/2012 ID: DktEntry: 18 Page: 27 of 47 The interstate transportation was not at end and e state could not prohibit importation from anoer state. Louisville N.R. Co. v. F.W. Coors Brewing Co., 223 U.S. 70, 32 S.Ct. 189, 56 L.Ed 355 (1912) holds e same way. Until e transportation is concluded, e commodity is not subject to state regulation. The state law, Wash.Rev.Code (1)(a), (1) and , allow interstate transportation by a licensed wholesaler. The State violated e law as Maeson only delivered on round-trips. Miller Bros v. Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed 744 (1954). Dennis v. Higgins, 498 U.S. 439, 451, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991) upholds a challenge to a state law violating e commerce clause and confers 1983 jurisdiction. American Trucking Associations v. Scheiner, 483 U.S. 266, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987) prohibits state taxes on interstate trips. The State s repeated reliance in Fair Assessment in Real Estate Ass n v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981), roughout its brief, ignores e facts at Fair Assessment -18-

28 Case: /28/2012 ID: DktEntry: 18 Page: 28 of 47 was a damage suit based on e amount of e tax assessment, not immunity from tax. Fair Assessment predates National Federation of Independent Business v. Sebelius, U.S., 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) holding at if e assessment is not a tax, e federal court has jurisdiction. It is also distinguished by e constitutional principles of e Washington Constitution Art 26, Second, giving exclusive jurisdictional control of Indians and eir reservations to e U.S. Congress. The U.S. Const. Art I 8 cl. 3 retains exclusive control to regulate Indian commerce to Congress as does e Supremacy Clause. Art VI cl 2. Congress retains e power to immunize on-reservation Indians from state tax. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 150, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1976), U.S.Const. art I 8 cl. 3, Wash.Const. art 26, Second. Arizona v. U.S., U.S., 132 S.Ct. 2492, 2501, 183 L.Ed.2d 351 (2012) recognizes express preemption and also is precluded from regulating conduct in a field at Congress acting wiin its proper auority, has determined must be regulated by it exclusive governance. Seneca Tribe of Oklahoma v. Thompson,

29 Case: /28/2012 ID: DktEntry: 18 Page: 29 of 47 F.2d 709, 714 (10 Cir. 1989) holds at federal Indian laws predominate on Indian conduct on reservations, us federal abstention is inappropriate. Fair Assessment has been limited by Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 719, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996).... But we have subsequently indicated at Fair Assessment was a case about e scope of e 1983 cause of action,... not e abstention doctrines. The limitation was not abstention but limited to tax cases at are dependant on holding e tax statute unconstitutional. The Nin Circuit in an en banc opinion has recognized e limitation of Fair Assessment in Gilbertson v. Albright, 381 F.3d 965, 984 (9 Cir. 2004) holds at when damages are at issue, 1983 actions, deference not dismissal is e proper meod. Maeson seeks damages. ER 196. She also seeks many oer remedies against discrimination, invalid collection violating due process, State employees acting beyond eir scope and oer relief. At e least, Fair Assessment has been limited to a stay, not dismissal. En banc -20-

30 Case: /28/2012 ID: DktEntry: 18 Page: 30 of 47 opinions are binding. Hart v. Massanari, 266 F.3d 1155, 1171 (9 Cir. 2001). Independent Article III jurisdiction exists as Maeson alleges at she was damaged by failure of e state to bring e collection action in tribal court. ER 174, 184, 196. A damage action for discrimination confers Article III jurisdiction. Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316, 327, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008). Here, collection of a penalty is also involved. Jefferson County v. Acker, 527 U.S. 423, 438, 119 S.Ct. 2069, 144 L.Ed.2d 409 (1999) involved federal immunity for impermissible and discriminatory license fees. The Court held at e federal court had jurisdiction. Acker applies here. Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041 (9 Cir. 2000) also controls...e existence of a remedy at law in state court is not a bar to e Young exception. id at Maeson alleges at Defendants Lee Smi and Doyle McMinn were informed of Maeson s exempt status (ER 169), had no evidence of any unstamped transportation on sales to taxable -21-

31 Case: /28/2012 ID: DktEntry: 18 Page: 31 of 47 persons (ER 172, 183), were informed of e exemption by case citations (ER 181-2) and knowingly tried to put Maeson out of business. They were named personally, as ey acted far beyond e scope of eir delegated auority by willfully ignoring e Plaintiff s rights as a tribal Indian and discriminated against her gender. (ER 178). These allegations are sufficient to find federal jurisdiction and to overcome a motion to dismiss. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Maeson also relies on 28 U.S.C. 1343(a)(3) confirming original jurisdiction of 1983 cases in federal court. In e state court proceedings, no jury was allowed. Maeson seeks a jury determination. ER 168, 200. Federal law determines legal incidence of state tax. Coeur d Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 681 (9 Cir. 2004). Discriminatory treatment of Indians, an exemption from state laws, is subject to federal preemption. Cabazon Band of Mission Indians v. Smi, 388 F.3d 691, 701 (9 Cir. 2004). Cabazon applies factually and legally for e reason at e -22-

32 Case: /28/2012 ID: DktEntry: 18 Page: 32 of 47 statute in Cabazon required Indian tribal police to cover e light bars on top of eir vehicles when traveling off e Cabazon reservation. The Cabazon Reservation is separated by 13 miles of off-reservation roads between four noncontiguous reservation sections.... it is not possible to drive between e different sections wiout leaving reservation land and driving on public roads. Id. at 693. The tribal police, even in hot pursuit, had to stop e police car, open e trunk and cover e light bars. All oer non-indian vehicles, including private ambulances, only had to turn off e lights but did not have to cover em. This procedure was required by California law. Since e Indian police were not auorized, ey did not fit e requirement to only turn e lights off. The court held at e state statute discriminated against onreservation Indians traveling off-reservation and ere was no rational basis to discriminate. The Complaint alleges at Maeson is a tribal Indian living all her life on Indian reservations. ER 158-9, 177. She only hauled cigarettes to her faer and broer on round trips to and from e -23-

33 Case: /28/2012 ID: DktEntry: 18 Page: 33 of 47 reservation. Cree v. Flores, 157 F.3d 762, 774 (9 Cir. 1998) denied e State s attempt to require licenses and overnight fees on Yakama Indians off reservation round trip travel. The Yakama treaty had specific language. However, e Puyallup exemption from state cigarette tax is analogous. Wash.Rev.Code Additionally, e State admits at page 4 at, e wholesaler can sell unstamped cigarettes to anoer wholesaler. Even if purchase is presumed, e purchase was wholesaler to wholesaler and exempt by Wash.Rev.Code (3) and (1) and (2). The State has no off reservation contact to sustain e motion to dismiss except at e wholesaler delivered off reservation to Maeson in a tax exempt delivery. The State alleges purchases off reservation wiout facts or a taxable person. It is beyond dispute at Maeson s only off reservation conduct and conduct wi non Indians is wholesaler to wholesaler. The rest of e facts alleged in e Complaint are Indian to Indian, close relative to close relative, on Indian reservations or between on-reservation Indians. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144, 100 S.Ct. -24-

34 Case: /28/2012 ID: DktEntry: 18 Page: 34 of , 65 L.Ed.2d 665 (1980), states: When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for e State s regulatory interest is likely to be minimal and e federal interest in encouraging tribal self-government is e strongest. See Moe v. Salish & Kootenai Tribes supra at 480, 481, 90 S.Ct. At ; McClanahan v. Arizona State Tax Comm n. In Ward v. New York, 291 F.Supp.2d 188, 206 (W.D.N.Y. 2003), a case granting restraining orders against e State of New York, preempting at state s cigarette tax laws, e Court stated: However, e Court has been reluctant to allow state regulation of on-reservation commerce between tribe members. See Moe, 425 U.S. at , 96 S.Ct (holding at Montana could not collect cigarette sales taxes wi respect to on-reservation sales by tribe members to tribe members);... Based upon e current record, it does not appear at ose interests are implicated by on-reservation transactions between tribe members. Furer, to e extent at it regulates onreservation transactions between tribe members, e Statute is not tailored to account for actual offreservation ef-fects. The general presumption is at state law is inapplicable to on-reservation conduct involving only tribe members. Hicks, 533 U.S. at 362,f 121 S.Ct At is stage of e litigation, it does not appear at Defendants are able to overcome at presumption. As such, is Court finds at Plaintiffs are likely to succeed on e merits of eir -25-

35 Case: /28/2012 ID: DktEntry: 18 Page: 35 of 47 claim at e Statute is unconstitutional insofar as it restricts e shipment or transportation of cigarettes from a tribe member on e reservation to anoer tribe member on e reservation. When e icket e State s rhetoric is cleared away, e only facts are at an Indian person, beset by non-applicable laws of a state, has intentional injury inflicted on her by huge illegal assessments so at Maeson cannot accommodate her onreservation Indian relatives on eir reservations. Burke s, e non Indian wholesaler who delivered to Maeson, could deliver on e respective reservations wiout state tax. Wash.Rev.Code , (7)(a) and (1)(n). The discrimination is obvious. D. This suit involves Federal Preemption, not inconsistent State Statutes. At pages 25-6 of its brief, e State contends at Maeson could pay e tax and proceed under Wash.Rev.Code and This argument ignores e fact at Maeson filed an Affidavit at she lived in Idaho, could not pay e tax and at Defendant Doyle McMinn reatened revocation of her license if she -26-

36 Case: /28/2012 ID: DktEntry: 18 Page: 36 of 47 didn t pay e tax. ER The argument ignores Wash.Rev.Code (3); at e assessment was a tax not a penalty and at Wash.Rev.Code 82.32A.020(3) and excepts payment when constitutional grounds are asserted. Neier statute cross refers to e state laws cited above. The cigarette tax does not apply if its application violates e Federal Constitution. Wash.Rev.Code In is Circuit, injunctive relief and declaratory judgment, at e very least, apply when an injunction is sought and federal Indian law preempts state taxes. The State s conclusion at page 13 of it s Brief, at state remedies bar is federal suit, ignores e law Wash.Rev.Code and federal preemption. The State s Brief also failed to respond to Maeson s argument at at exhaustion does not apply to failure to allow a pre-deprivation hearing. The Washington cigarette tax law provides at federal law preempts e state statutes. Wash.Rev.Code At Wash.Rev.Code (4), e statutes incorporate federal -27-

37 Case: /28/2012 ID: DktEntry: 18 Page: 37 of 47 law when purchases are from Indian tribal organizations which includes Maeson. Wash.Rev.Code (6). Maeson also alleges interstate commerce violations. ER 176, 179, Washington State Bldg and Trades Council AFL-CIO v. Spellman, 684 F.2d 627, 631 (9 Cir. 1982) grants federal jurisdiction if unequal treatment is an issue, as here. ER The discrimination, harassment and failure to follow state statutes by state actors is e epitome of is case. Unconstitutional deprivation of a state protected property interest by state actors supports 1983 federal jurisdiction. Maeson pleads systematic audit harassment in her Complaint. ER ; , ; Chudacoff v. University Medical Center of Souern Nevada, 649 F.3d 1143, 1152 (9 Cir. 2011) upholds 1983 jurisdiction where e state actors did not hold a hearing before e Plaintiff doctor s hospital privileges were suspended. Exclusion of state licensing privileges based on irrational discrimination is unconstitutional. Schware v. Board of Bar She alleges systemic harassment of herself and her family. ER

38 Case: /28/2012 ID: DktEntry: 18 Page: 38 of 47 Examiners of e State of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed 220 (1886). Applicable treaties and federal law define e limits of state taxation of Indians. Violation of a state statute at creates a right deprived wiout due process establishes a 1983 claim. Jefferson County v. Acker, 527 U.S. 423, 435, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) also holds at, differences in such suits at e tax for which collection is sought is invalid, are not prohibited by 28 U.S.C E. This Case is brought under 28 U.S.C. 1343, 42 U.S.C for Gender and Racial Discrimination by State Employees acting beyond eir auority under color of State Law; for Immunity from Tax pursuant to Federal Preemption; for Systemic Discrimination, Harassment and Unlawful Collection. The Tax Injunction Act does not deny Federal Jurisdiction to a Female, Enrolled Tribal Indian who claims Discriminatory Treatment. Parker v. Franklin County Community School Corp., 667 F.3d 910, 922 (7 Cir. 2010) denies e defense of sovereign immunity to a government where e complaint alleged a systemic denial of equal protection. The court held at a 42 U.S.C violation was -29-

39 Case: /28/2012 ID: DktEntry: 18 Page: 39 of 47 sufficiently alleged allowing e suit to go forward on gender discrimination by systemic discriminatory treatment. The court upheld jurisdiction on equal protection grounds and held at e Eleven Amendment does not grant immunity to suit by a citizen of anoer state. The Eleven Amendment does not apply to equal protection granted by e Fourteen Amendment. Therefore, e damage suit could proceed. The applicable case is Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). This case holds at an express enactment to implement e 14 Amendment eliminates e Eleven Amendment. Here Wash.Rev.Code incorporates e Federal Constitution. The State s brief never disputes Appellant s argument at page 21 of its opening brief, at e most at e State could do was suspend Maeson s license for 30 days. Wash.Rev.Code (3). Assessment of e penalty violates due process. This issue was never addressed in e State s brief. F. 28 U.S.C does not Bar Jurisdiction where State Cigarette Taxes on Indians is e Issue. At page 18 of its brief, e State attempts to distinguish -30-

40 Case: /28/2012 ID: DktEntry: 18 Page: 40 of 47 between 28 U.S.C and 26 U.S.C This contention is rebutted by e Indian cigarette tax case of Moe v. Confederated Salish and Kootenai Tribes of e Flaead Reservation, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). In at case, 28 U.S.C was relied on by e State of Montana to prohibit federal jurisdiction. The court held at 28 U.S.C did not bar federal jurisdiction prohibiting federal courts from invalidating state cigarette tax on Indians. Moe, Id. at 421, totally refutes e application of 28 U.S.C to is case. It upheld e language of e District Court, 392 F.Supp at 1303: While e exceptions to 1341 have been expressed most often in terms of e Federal instrumentality doctrine, we do not view e exceptions as limited to cases where is doctrine is clearly applicable. It seems clear from e decided cases and e legislative history of 1341 at is section does not bar federal court jurisdiction in cases where immunity from state taxation is asserted on e basis of federal law wi respect to persons or entities in which e United States has a real and significant interest. The district court case also stated at 1303: We conclude at e United States could have brought is action in federal court, -31-

41 Case: /28/2012 ID: DktEntry: 18 Page: 41 of 47 irrespective of 1341, based upon e interest of e United States in protecting reservation Indians from state taxation and e fact at e asserted tax immunity is based solely upon federal law. G. e Tax Injunction Act does not apply where e collection of e tax is from Third Parties. Related to e injunction issue is e principle at tax collection from ird parties is not wiin 28 U.S.C This issue was discussed in Maeson s Opening Brief at pages Hibbs v. Winn, 542 U.S. 88, 108, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) holds at ird parties may pursue constitutional claims in federal courts. When license violations are e only claim to require wholesalers to pay e cigarette tax imposed on consumers, e disconnect is too great to allow collection from e wholesaler. Hemi Group LLC v. City of New York, 130 S.Ct. 983, 990, 175 L.Ed.2d 943 (2010). The court upheld e trial court s decision at when immunity from state taxation is asserted on e basis of federal law, 28 U.S.C does not apply. The argument of e State at 22 of its brief, -32-

42 Case: /28/2012 ID: DktEntry: 18 Page: 42 of 47 at only a tribe has jurisdiction, ignore e fact at 1983 was not at issue. 42 U.S.C and 28 U.S.C. 1343(a)(3) establish federal jurisdiction. H. The Motion to file a Supplemental Complaint alleged facts at occurred after e Judgment was entered in is Case. It was an abuse of discretion to deny it. The State, at page 27 of its brief, contends at e Complaint was merely an Amended Complaint. The motion states at e facts occurred after e original Complaint was filed and after 21 days had elapsed. ER 18. It was also a Supplemental Complaint. The Supplemental Complaint alleges additional conduct of Defendant Doyle McMinn on March 21, 2012 and May 24, ER These facts occurred after e judgment was entered. ER 4. The conduct of license revocation all occurred after e original Complaint was filed. It alleges ongoing violations of right to cross examine a party to an existing case. ER 48. The Supplemental Complaint alleges at e license bonds have now been collected by illegal meods. This is an additional material cause of action. ER 66. Fed.R.Civ.P. 15(d) applies to supplemental pleadings and gives -33-