                                                            su§ANt:CARLSON
                                                          SUPREME COURT CLERK



     IN THE SUPREME COURT OF THE STATE OF WASHINGTON


WASHINGTON TRUCKING ASSOCIATIONS, a
Washington nonprofit corporation; EAGLE
SYSTEMS, INC., a Washington corporation,
GORDON TRUCKING, INC., a Washington
corporation; HANEY TRUCK LINE, INC., a
Washington corporation; JASPER TRUCKING,
INC., a Washington corporation; PSFL LEASING,
INC., a Washington corporation; and SYSTEM
TWT TRANSPORTATION d/b/a SYSTEM TWT, a
Washington limited liability company,

                                   Respondents,               NO. 93079-1
              v.

THE STATE OF WASHINGTON, EMPLOYMENT
SECURITY DEPARTMENT; PAULTRAUSE,                              EN BANC
individually and in his official capacity as the former
Commissioner of the Employment Security Depart-
ment, and JANE DOE TRAUSE, husband and wife
and the marital community composed thereof; BILL
WARD, individually and in his official capacity, and          Filed   APR 2 7 2017
JANE DOE WARD, husband and wife and the
marital community composed thereof; LAEL
BYINGTON, individually and in his official capac-
ity, and JANE DOE BYINGTON, husband and wife
and the marital community composed thereof; JOY
STEWART, a single individual, individually and in
her official capacity; MELISSA HARTUNG, a
single individual, individually and in her official
capacity; ALICIA SWANGWAN, a single individ-
ual, individually and in her official capacity,

                                   Petitioners.
Washington Trucking Ass 'ns, et al. v. Emp 't Sec. Dep 't, et al., 93079-1



       STEPHENS, J.-The principal issue in this case is whether taxpayers may

bring federal or state tort claims to challenge tax assessments, or instead must rely

on the normal state tax appeals process. The taxpayers here are tn1cking companies

that were assessed unemployment taxes after the Washington State Employment

Security Department audited and reclassified their employment relationship with

owner-operators who own and lease out their own tn1cking equipment. The trucking

companies, joined by their trade organization, Washington Trucking Associations,

brought this suit in Thurston County Superior Court, asserting a civil rights claim

under 42 U.S.C. § 1983 and a state common law claim for tortious interference with

business expectancies.

       The superior court dismissed the suit, holding that the trucking companies

must challenge the tax assessments through the state tax appeals process. The Court

of Appeals reversed in part, holding that the comity principle precludes the section

1983 claim only "to the extent that [Washington Trucking Associations] and the

[trucking companies] seek damages based on the amounts of the assessments, but

not to the extent that they seek damages independent of the assessment amounts."

Wash. Trucking Ass 'n v. Emp 't Sec. Dep 't, 192 Wn. App. 621, 641, 369 P.3d 170

(2016). The appeals court further held that the exclusive remedy provision of

Washington's Employment Security Act, RCW 50.32.180, bars the tort claim only




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Washington Trucking Ass 'ns, et al. v. Emp 't Sec. Dep 't, et al., 93079-1



"to the extent that the claim is based on an allegation that the reclassification of

owner/operators as employees was improper." Wash. Trucking Ass 'n, 192 Wn. App.

at 650.

       We reverse the Court of Appeals and reinstate the superior court's dismissal

of both the federal and state claims.

              BACKGROUND FACTS AND PROCEDURAL HISTORY

       Washington's Employment Security Act (ESA), Title 50 RCW, provides for

the "compulsory setting aside of unemployment reserves to be used for the benefit

of persons unemployed through no fault of their own." RCW 50.01.010. Under the

ESA, "employers" pay "'contributions,"' i.e. taxes, for persons engaged in

"employment," i.e., employees. RCW 50.24.010; RCW 50.04.072, .100. Persons

engaged in "employment" include independent contractors so long as they perform

"personal services" under a contract and an exemption does not apply.

RCW 50.04.100, .140, .145.         Consistent with the statutory mandate for liberal

construction, RCW 50.01.010, courts constn1e exemptions to the ESA narrowly. See

Shoreline Cmty. Coll. Dist. No. 7 v. Emp 't Sec. Dep 't, 120 Wn.2d 394, 406, 842 P.2d

938 (1992).

       The ESA authorizes the commissioner of the Washington State Employment

Security Department (Department) to administer the State's unemployment



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             compensation system, which includes auditing employers. RCW 50.04.060; RCW

             50.12.010; Clerk's Papers (CP) at 220. Pursuant to that power, the Department

             audited commercial trucking companies (Carriers 1) that lease trucks from and secure

             the driving services of independent contractors (owner-operators). The Department

             reclassified the owner-operators as Carrier employees, resulting in additional

             unemployment tax assessments on the Carriers. CP at 222; see also RCW 50.24.070.

                    The Carriers timely appealed the assessments to the Office of Administrative

             Hearings pursuant to RCW 50.32.030. In that tribunal, they filed a consolidated

             motion for summary judgment, arguing that the owner-operators are independent

             contractors or otherwise exempt from coverage; that federal law preempts the ESA

             with respect to the owner-operators; and that the tax assessments were based on

             biased, predetermined, and politically motivated audits. 2


                    1
                       For ease of reference, we use the term "Carriers" for any trucking company that
             has been involved in the facts relevant to this case.
                     2
                       Specifically, the Carriers allege the Department improperly "established an
             underground economy unit" to conduct rigged audits of and "collect additional taxes" from
             the trucking industry. CP at 221-22; Resp'ts' Suppl. Br. at 1. The Department counters
             that "[t]here is nothing unlawful about targeting for audit an industry that is suspected of
             misclassifying covered workers as independent contractors" because "[a]uditing the
             industry levels the playing field." Br. ofResp'ts at 29 n.17; CP at 239-40.
                     The Carriers also claim the Department '"unilaterally decided to change the rules"'
             regarding the classification of owner-operators. CP at 654; Br. of Appellants at 11. They
             argue that, in the past, "the Commissioner determined, and the Court of Appeals confirmed,
             that owner/operators were not employees for which unemployment taxes were required."
             Br. of Appellants at 9 (citing Penick v. Emp 't Sec. Dep 't, 82 Wn. App. 30, 34-36, 39, 917
             P.2d 136, review denied, 130 Wn.2d 1004 (1996)). The Department responds that its
             determination that owner-operators are employees is "consistent with Western Ports

                                                           -4-
Wasnington Truckzng Ass 'ns, et al. v. Emp 't Sec. JYep 't, et al., 93079- I   ·



       An administrative law judge (ALJ) denied the Carriers' motion, concluding

that the owner-operators are in employment of the Carriers at least for their personal

driving services, and rejecting the Carriers' preemption argument as a matter oflaw.

The ALJ further stated that the Carriers' challenges to the audits should be addressed

at a hearing on the merits. He subsequently remanded the matter to the Department

with instructions to reassess the taxability of the payments attributable to (1)

equipment rental, (2) out-of-state driving services, and (3) corporate services. 3 CP

at 299-301, 303-04; see also RCW 50.04.110, .165, .320(2).

       After the ALJ' s remand order, the Carriers and the Department entered into

settlement negotiations.      Believing a settlement had been reached, the Carriers

brought a motion to enforce the agreement before the ALJ. After the ALJ ruled he

lacked authority to enforce the agreement, the Carriers obtained an ex parte show

cause order from Pierce County Superior Court. The superior court concluded that

a settlement had been reached and entered an order enforcing the agreement.

       The Department appealed that order to Division Two of the Court of Appeals,

and the Court of Appeals reversed on jurisdictional grounds. Eagle Sys., Inc. v.




[Transportation, Inc. v. Employment Security Department], 110 Wn. App. [440,] 450-58,
[41 P.3d 510 (2002)]," which came out six years after Penick. Br. ofResp'ts at 29 n.17,
42 n.27.
       3
         Although only four Carriers moved for summary judgment, the ALJ remanded all
other Carriers' pending administrative appeals on the same grounds.

                                               -5-
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.   Washington Trucking Ass 'ns, et al. v. Emp 't Sec. Dep 't, et al., 93079-1



    Emp 't Sec. Dep 't, 181 Wn. App. 455, 457, 326 P.3d 764 (2014). Neither party

    sought review of that decision.

           Shortly after the Department filed its appeal of the Pierce County order, the

    Carriers and Washington Trucking Associations (WTA)4 filed the present action in

    Spokane County Superior Court against the Department and six of its current and

    former employees. Upon the Department's motion, the case was transferred to

    Thurston County Superior Court. The Carriers repeated the allegations raised in

    their administrative appeals, and along with WTA asserted a section 1983 claim

    against named Department employees as well as a claim against the Department for

    tortious interference with contracts and business expectancies. 5 WTA and the

    Carriers requested compensatory damages under both claims, as well as punitive

    damages and attorney fees under the section 1983 claim.

           Thurston County Superior Court dismissed the action with prejudice on the

    Department's motion under CR 12(b)(6), failure to state a claim, and CR 12(c),

    judgment on the pleadings. That court orally ruled that (1) the Carriers must exhaust

    administrative remedies before challenging their tax assessments, (2) WTA lacks

    standing to sue under section 1983, and (3) the elements of tortious interference are


           4
             The Carriers are all members of WT A, a trade association that was not audited or
    issued a tax assessment, and is not a party to the administrative appeals.
           5
             WT A and the Carriers also brought claims for bad faith, conversion, and unjust
    enrichment, which are no longer at issue.

                                                        -6-
Washington TruckingAss'ns, eta!. v. Emp'tSec. Dep't, eta!., 93079-1



not met as a matter of law. Verbatim Report of Proceedings (VRP) (June 13, 2014)

at 39-40. 6

       WTA and the Carriers sought direct review, but this court denied the request

and instead transferred the case to Division Two of the Court of Appeals. Order,

Wash. Trucking Ass 'n v. State, No. 90584-3 (Wash. June 3, 2015). At the Court of

Appeals, WTA and the Carriers challenged only the superior court's dismissal of

their section 1983 claim and their tortious interference with business expectancies

claim. See Br. of Appellants at 1 n.2.

       The Court of Appeals reversed in part and remanded to the superior court for

further proceedings on the surviving claims. Wash. Trucking Ass 'n, 192 Wn. App.

at 630. That court stated four relevant holdings: First, comity does not bar WTA's

and the Carriers' section 1983 claim to the extent the damages sought are unrelated

to the amount of the unemployment tax assessments. Second, whether WTA has

associational standing to file a section 1983 claim cannot be determined without

further factual development. Third, neither RCW 50.32.180 nor the doctrine of

exhaustion of administrative remedies bars the Carriers' claim for tortious

interference so long as the claim is based on allegations that the Department had


       6 Relevant to the issues discussed below, the Department additionally argued in its
motion to dismiss that the Tax Injunction Act, 28 U.S.C. § 1341, and the comity principle
bar the section 1983 claim, and that the exclusive remedy provision of the ESA bars the
tortious interference claim, if not all tort claims.


                                           -7-
improper motives or used improper means in imposing its assessments. Fourth, the

Carriers state a claim for tortious interference with contracts and business

expectancies.

       The Department and its current and former employees then filed a petition for

review in this court, which we granted. Wash. Trucking Ass 'ns v. Emp 't Sec. Dep 't,

186 Wn.2d 1016, 380 P.3d 522 (2016).

                                       ANALYSIS

       We review CR 12(b)(6) and CR 12(c) dismissals de novo. FutureSelect

Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d

29 (2014); P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198, 203, 289 P.3d 638 (2012).

"We treat a CR 12(c) motion ... identically to a CR 12(b)(6) motion." P.E. Sys.,

176 Wn.2d at 203. Dismissal under either subsection is "appropriate only when it

appears beyond doubt" that the plaintiff cannot prove any set of facts that "would

justify recovery." San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157

P.3d 831 (2007); P.E. Sys., 176 Wn.2d at 210. On review, we presume the truth of

the allegations and may consider hypothetical facts not included in the record.

FutureSelect, 180 Wn.2d at 962; P.E. Sys., 176 Wn.2d at 211. 7



       7
        In addition to the complaint allegations, WT A and the Carriers submitted to the
superior court a 23-page set of "hypothetical facts" that the superior court could rely on in
considering the Department's motion. CP at 478-502.

                                             -8-
-·-----·------wasliington Truckiiig71ss 'ns,-eTi:il.-v.bmp 't Sec. Dep 't, et al., 93079-1___ ------ - ----- -- ----



                     The superior court dismissed WTA's and the Carriers' section 1983 and

              tortious interference claims because they failed to follow the procedures provided

              under the ESA and the Administrative Procedure Act (APA), chapter 34.05 RCW.

              We must decide whether these claims belong in court, and if so, whether they have

              merit. We discuss each claim in tum.

                     I.      WTA's and the Carriers' Section 1983 Claim Is Barred under the
                             Comity Principle

                     WTA and the Carriers assert a section 1983 claim against Department

              employees in their individual capacities, 8 arguing that the Department employees

              violated the Carriers' constitutional rights when they targeted the trucking industry

              and performed audits that were designed to find an employment relationship and tax

              liability. CP at 221-22, 224. The Department contends that the comity principle

              bars this federal law claim because the state law process for challenging tax

              assessments is adequate. Suppl. Br. of Emp't Sec. Dep't at 4-5 (hereinafter Pet'rs'

              Suppl. Br.). WTA and the Carriers respond that the comity principle does not apply

              here, and even if it does apply their claim survives because the state law process is

              inadequate. Wash. Supreme Court oral argument, Wash. Trucking Assocs. v. State,

              No. 93079-1 (Jan. 19, 2017), at 25 min., 10 sec. through 26 min., 26 sec., recording


                     8
                       Section 1983 does not permit claims against the State or its officials acting in their
              official capacities. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304,
              105 L. Ed. 2d 45 (1989).

                                                             -9-
-   -   Wasnzngton TrucRing Ass 'ns, et aCv.-EmjiTSec---:-Dep 'fetal., 93079-1____ _



        by TVW, Washington State's Public Affairs Network, http://www.tvw.org; see also

        Resp 'ts' Answer to WSAMA9 Amicus Br. at 12-15. We believe the Department has

        the better argument. In holding that comity bars the section 1983 claim, we consider

        in what contexts comity applies, how to measure the adequacy of a state law remedy,

        and what remedy is provided under Washington law. 10

                     a. Comity Bars State Courts from Awarding Damages under Section
                        1983 in State Tax Cases When State Law Provides an Adequate
                        Remedy

              In general, "the notion of' comity'" refers to the federal government's "proper

        respect for state functions." Younger v. Harris, 401 U.S. 37, 44, 91 S. Ct. 746, 27

        L. Ed. 2d 669 (1971 ). Comity carries '"peculiar force' in suits challenging the

        constitutionality of state" taxes because of "the important and sensitive nature of

        state tax systems." Fair Assessment in Real Estate Ass 'n, Inc. v. McNary, 454 U.S.

        100, 108, 102, 102 S. Ct. 177, 70 L. Ed. 2d 271 (1981) (citation omitted) (quoting

        Matthews v. Rodgers, 284 U.S. 521, 525, 52 S. Ct. 217, 76 L. Ed. 447 (1932)).

        Indeed, as a matter of federalism "Congress and [the United States Supreme] Court

        repeatedly have shown an aversion to federal interference with state tax

        administration." Nat'l Private Truck Council, Inc. v. Okla. Tax Comm'n, 515 U.S.


              9Washington State Association of Municipal Attorneys.
              10Because we hold that comity bars any section 1983 claim, we do not address
        whether WTA has associational standing to assert such a claim on behalf of the Carriers.
        See Resp'ts' Suppl. Br. at 18-20.

                                                  -10-
Washington Trucking Ass 'ns, et al. v. Emp 't Sec. Dep 't, et al., 93079-1



582, 586, 115 S. Ct. 2351, 132 L. Ed. 2d 509 (1995). As early as 1871, the Supreme

Court explained

       It is upon taxation that the several States chiefly rely to obtain the means to
       carry on their respective governments, and it is of the utmost importance to
       all of them that the modes adopted to enforce the taxes levied should be
       interfered with as little as possible. Any delay in the proceedings of the
       officers, upon whom the duty is devolved of collecting the taxes, may
       derange the operations of government, and thereby cause serious detriment
       to the public.

Dows v. City of Chicago, 78 U.S. (11 Wall.) 108, 110, 20 L. Ed. 65 (1871).

       This "federal-court restraint in state tax matters was [originally] based upon

the traditional doctrine that courts of equity will stay their hand when remedies at

law are plain, adequate, and complete." Fair Assessment, 454 U.S. at 108 (citing

Matthews, 284 U.S. 521). However, "Congress also recognized that the autonomy

and fiscal stability of the States survive best when state tax systems are not subject

to scrutiny in federal courts." Id. at 102-03. In 1937, Congress enacted the Tax

Injunction Act (TIA), 28 U.S.C. § 1341, which states, "The district courts shall not

enjoin, suspend or restrain the assessment, levy or collection of any tax under State

law where a plain, speedy and efficient remedy may be had in the courts of such

State." Essentially, the TIA precludes federal courts from awarding injunctive relief




                                             -11-
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-------~-~-was1iingtoriTruckziig A3i:s-'ns----;etal.-v~-EinjiTSec. Dep 't, eral., 93079-1



             in state tax cases when state law provides an adequate remedy. See Fair Assessment,
                            .   11
             454 U.S. at 105.

                     Although the TIA was intended to limit only federal court jurisdiction, "the

             principle of comity which predated the [TIA] was not restricted by its passage." Id.

             at 110; see also Levin v. Commerce Energy, Inc., 560 U.S. 413, 430, 130 S. Ct. 2323,

              17 6 L. Ed. 2d 1131 (2010) (the Supreme Court has not "recast the comity doctrine").

             This is because the TIA is "but a partial codification of the federal reluctance to

             interfere with state taxation." Nat'! Private Truck, 515 U.S. at 590; see also

              California v. Grace Brethren Church, 457 U.S. 393, 412, 102 S. Ct. 2498, 73 L. Ed.

             2d 93 (1982) (the "historical reluctance" of the federal government to interfere with

              state taxation existed "long before enactment of the [TIA]"); Rosewell v. LaSalle

             Nat'! Bank, 450 U.S. 503, 525 n.33, 101 S. Ct. 1221, 67 L. Ed. 2d 464 (1981) ("And

              even where the [TIA] would not bar federal-court interference in state tax

              administration, principles of federal equity may nevertheless counsel the

             withholding of relief."). The Supreme Court has thus continued to rely on the comity

              principle, finding that it precludes federal courts from issuing declaratory judgments




                     11
                       The Supreme Court has interpreted the TIA to also bar federal courts from issuing
              declaratory judgments in state tax cases if a "plain, speedy and efficient" remedy exists.
              California v. Grace Brethren Church, 457 U.S. 393, 408, 102 S. Ct. 2498, 73 L. Ed. 2d 93
              (1982).

                                                           -12-
-----------~Wasfizngton Trucli:ing Ass 'ns, et al. v~Emp 't Sec. Dep 't, e(af, 93079-1   -



             in state tax cases when an adequate state law remedy exists. Great Lakes Dredge &

             Dock Co. v. Huffman, 319 U.S. 293, 295, 301, 63 S. Ct. 1070, 87 L. Ed. 1407 (1943).

                    The Supreme Court has relied on the comity principle in two key cases

             involving section 1983 challenges to state taxes. In Fair Assessment, the Supreme

             Court identified "two divergent lines of authority respecting access to federal courts

             for adjudication of the constitutionality of state laws." 454 U.S. at 105. While

             comity generally bars federal courts from awarding relief in state tax cases, section

             1983 generally permits relief. See id. The plaintiffs in Fair Assessment brought a

             section 1983 action in federal court, seeking a refund and punitive damages for

             allegedly unequal taxation of their real property. Id. at 106. Given that awarding

             damages would "be fully as intrusive as the equitable actions that are barred by

             principles of comity," the Supreme Court held that the plaintiffs' section 1983 claim

             was barred. Id. at 113, 116. That case thus stands for the rule that comity bars

             federal courts from awarding damages in section 1983 actions challenging state

             taxes so long as state law provides an adequate remedy. Id. at 116.

                    In National Private Truck, the Supreme Court built on Fair Assessment to

             explain that comity applies with equal force in state courts. There, the plaintiffs

             brought a section 1983 action in state court seeking a refund, an injunction, a

             declaratory judgment, and attorney fees for taxes that allegedly violated the



                                                          -13-
-- --- - -WasHirigtonTruclffiigAss'iis---;eral. v. Emp'tSec. IJep't, etal., 93079-1



             commerce clause. 515 U.S. at 584; CONST art. I, § 8, cl. 3. The Supreme Court held

             that comity bars state courts from awarding injunctive or declaratory relief in section

             1983 challenges to state taxes when state law provides an adequate remedy. Id. at

             589. This is because an "injunction issued by a state court pursuant to § 1983 is just

             as disruptive as one entered by a federal court." Id. at 591. In so holding, the

             Supreme Court relied on the "background presumption that federal law [as opposed

             to federal courts] generally will not interfere with" state tax administration. Id. at

             588 (emphasis added).

                    Taken together, Fair Assessment and National Private Truck lead to the

             conclusion that comity restrains state courts from awarding any type of relief in

             section 1983 actions challenging the validity of state taxes, provided there is an

             adequate state law remedy. 12 Fair Assessment demonstrates that a damages award

             is just as disruptive of the state tax system as an injunction, while National Private



                    12
                        The Supreme Court has held that neither the TIA nor the comity principle bars a
             third party's section 1983 challenge to a tax credit received by others. Hibbs v. Winn, 542
             U.S. 88, 106-08, 124 S. Ct. 2276, 159 L. Ed. 2d 172 (2004) (invalidation of the tax credit
             would have "enlarge[ d] state receipts," and thus the TIA and comity did not stand as an
             obstacle to the section 1983 suit). Comity bars only state tax challenges in which a taxpayer
             seeks to "avoid paying state taxes" because invalidation of a tax impacts the State's revenue
             raising function. Id. at 107.
                      WT A and the Carriers contend that Hibbs limits the comity principle to challenges
             based on the collection of taxes, not the tax collector's conduct. Wash. Supreme Court oral
             argument, supra, at 20 min., 46 sec. through 21 min., 10 sec. We disagree. Hibbs was
             concerned only with the result-not with the basis-of the section 1983 claim, i.e., the fact
             that it interfered with state tax collection.

                                                         -14-
Washington Trucking Ass'ns, et al. v. Emp't Sec. Dep't, et al., 93079-1 .



Truck demonstrates that a state court injunction is just as disruptive as a federal court

injunction. Accordingly, a state court's award of damages is just as disruptive as a

federal court's award of damages. 13 This conclusion aligns with comity's underlying

purpose, which is to avoid throwing state tax administration '"into disarray,"'

allowing taxpayers to "'escape the ordinary procedural requirements imposed by

state law,"' or obstructing '"the collection of revenue."' Fair Assessment, 454 U.S.

at 108 n.6 (quoting Perez v. Ledesma, 401 U.S. 82, 127 n.17, 91 S. Ct. 674, 27 L.

Ed. 2d 701 (1971) (Brennan, J., concurring in part and dissenting in part)); see also

Great Lakes, 319 U.S. at 299 (noting that "in every practical sense [the procedure]

operate[s] to suspend collection of the state taxes until the litigation is ended").

      Recognizing this purpose, other courts have come to the same conclusion. For

example, in Patel v. City of San Bernardino, 310 F.3d 1138, 1141 (9th Cir. 2002),

the Ninth Circuit stated that "[r]ead together, Fair Assessment and National Private

Truck bar use of§ 1983 to litigate state tax disputes in either state or federal court."

In Francis v. City of Columbus, 267 Neb. 553, 559, 676 N.W.2d 346 (2004), the

Nebraska Supreme Court stated that "[a]lthough Fair Assessment was limited only



       13
           Because 42 U.S.C. § 1988 provides for an award of attorney fees under section
1983 to "the prevailing party," comity also bars state courts from awarding attorney fees
in state tax cases when an adequate state law remedy exists. 42 U.S.C. § 1988(b); see also
Nat'/ Private Truck, 515 U.S. at 592 ("It follows that when no relief can be awarded
pursuant to§ 1983, no attorney[] fees can be awarded under§ 1988.").

                                           -15-
- -wasliihgtorfTruclffiigAss'ns, et al.- v.-Emp 't Sec. -Dep '( eraT., 93019-l



  to [section] 1983 claims in federal court, its concerns apply with equal force to

  [section] 1983 claims brought in state court." Lastly, in General Motors Corp. v.

  City of Linden, 143 NJ. 336, 346, 671 A.2d 560 (1996), the New Jersey Supreme

  Court posited that in Fair Assessment, "the [Supreme] Court focused not on the

  nature of the relief requested, but on the possible interference of any relief in the

  administration of the state tax system." (Emphasis added.) Given the conclusion

  that the comity principle applies in this context, we must determine how the

  adequacy of a state law remedy is to be measured in comity cases.

                 b. The Adequacy of a State Law Remedy Turns on Procedural Criteria,
                    Not Whether Substantive Relief Is Available

          The Department contends that whether a state law remedy is adequate depends

  on the procedure it affords. Pet'rs' Suppl. Br. at 5. If constitutional objections can

  be raised during the state law process, and that process is subject to judicial review,

  the remedy afforded is adequate and the taxpayer cannot assert a section 1983 claim

  to obtain additional relief. Id. at 9.

          Amicus WSAMA supports the Department, contending that "the state remedy

   is viewed procedurally, not substantively." Suppl. Br. of Amicus Curiae WSAMA

   in Supp. of State of Wash. at 2. Both the Supreme Court and other state courts have

   found a state law remedy adequate even where the plaintiff could not recover the




                                                 -16-
- Wasnzngton TrucRzng Ass 'ns, et al. v. Emp 't Sec. Dep 't, et a7., 93079-1



  attorney fees and punitive damages under section 1983 in the state law process. Br.

  of Amicus Curiae WSAMA in Supp. of State of Wash. at 8, 12-14.

         WTA and the Carriers respond that a state law remedy is not adequate, and

  thus comity does not require restraint, if at least one of the taxpayer's claims cannot

  be substantively addressed in the forum provided under state law. Resp'ts' Answer

  to Pet. for Review at 11. They insist that the Department and WSAMA misstate the

  law in arguing that "adequacy" analysis is limited to a review of the procedures

  available because such an analysis would effectively immunize agencies from

  liability under section 1983. Id.; Resp'ts' Answer to WSAMA Amicus Mem. at 4.

  This would run contrary to the broad interpretation of section 1983 as a remedial

  statute. Br. of Appellants at 25 n.19.

         The case law regarding both the TIA and the comity principle support the

  Department's argument. Under the TIA, a state law remedy is adequate if it is "plain,

  speedy and efficient." 28 U.S.C. § 1341. Under the comity principle, courts "will

  stay their hand when remedies at law are plain, adequate, and complete." Fair

  Assessment, 454 U.S. at 108. While the Supreme Court has never explicitly held

  that these inquiries are identical, it has "suggested that adequacy of the state system

  for comity purposes is the same standard as 'plain, speedy and efficient' under the

  TIA." Wal-Mart P.R., Inc. v. Zaragoza-Gomez, 834 F.3d 110, 125 (1st Cir. 2016).



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                                                                                       - - -



             Although the Supreme Court once stated that "Congress did not equate [the TIA's]

             'plain, speedy and efficient' with equity's 'plain, adequate and complete,"'

             Rosewell, 450 U.S. at 526, later that year the Supreme Court treated the terms as

             synonymous. In Fair Assessment, the Supreme Court stated,

                   We discern no significant difference ... between remedies which are 'plain,
                   adequate, and complete,' as that phrase has been used in articulating the
                   doctrine of equitable restraint, and those which are 'plain, speedy and
                   efficient,' within the meaning of [the TIA]. Both ... refer to the obvious
                   precept that plaintiffs seeking protection of federal rights in federal courts
                   should be remitted to their state remedies if their federal rights will not
                   thereby be lost.

             454 U.S. at 116 n.8 (citations omitted).

                   In any event, in the same opinion that first rejected equating the terms, the

             Supreme Court also stated that comity cases are instructive in deciding whether a

             state remedy is '"plain, speedy and efficient"' under the TIA. Rosewell, 450 U.S. at

             525 n.33. The Supreme Court's suggestion in Fair Assessment that the terms are

             equivalent, combined with its statement in Rosewell that comity cases are instructive

             in the TIA's adequacy analysis, as well as the fact that the TIA '"has its roots in

             [federal] equity practice,"' all support the conclusion that the two inquiries are

             essentially the same. Id. at 522 (quoting Tully v. Griffin, Inc., 429 U.S. 68, 73, 97 S.

             Ct. 219, 50 L. Ed. 2d 227 (1976)). Even if they are not identical, the comity principle

             "is more embracive than the TIA" and thus requires restraint in more instances.

             Levin, 560 U.S. at 424; see also Rosewell, 450 U.S. at 525 n.33 ("And even where


                                                        -18-
-~--~--   WasfUngton Truc1ang 71.ss 'ns, ef al. v. Emp 't Sec. Dep 't, et al., 93079~1 -   -   -----------



          the [TIA] would not bar federal-court interference in state tax administration,

          principles of federal equity may nevertheless counsel the withholding of relief.").

                 Accepting an equivalent adequacy analysis under the TIA and the comity

          principle, we must consider what the analysis entails. Courts construe the '"plain,

          speedy and efficient"' exception narrowly. Grace Brethren, 457 U.S. at 413. The

          Department and WSAMA are correct that the focus is on state procedures, not on

          the substance of specific remedies. The Supreme Court has said that whether a

          "'plain, speedy and efficient'" remedy exists turns on the procedures afforded under

          state law. Id. at 411; Rosewell, 450 U.S. at 512 (a state court remedy must "meet[]

          certain minimal procedural criteria"). The procedures afforded under state law are

          adequate if they provide "the taxpayer with a 'full hearing and judicial

          determination' at which [the taxpayer] may raise any and all constitutional

          objections to the tax." Rosewell, 450 U.S. at 514 (quoting LaSalle Nat'l Bank v.

          County of Cook, 57 Ill. 2d 318, 324, 312 N.E.2d 252 (1974)); see also Grace

          Brethren, 457 U.S. at 414-15 (rejecting taxpayers' claim of inadequate state

          procedures because injunctive relief was not available in the state system, and

          emphasizing that the same type of relief need not be available in the state system so

          long as the taxpayer may raise constitutional claims ). 14              "Plain" means the


                 14
                  Other state courts have relied on Rosewell and Grace Brethren to hold that the
          adequacy of a state remedy is to be viewed procedurally. See, e.g., Francis, 267 Neb. at

                                                       -19-
procedures in the state law process are certain. Rosewell, 450 U.S. at 516-17.

"Efficient" means the process poses "no unusual hardship." Id. at 518. "Speedy" is

fact dependent, but the Supreme Court has held that a two-year delay in receiving a

refund is speedy. Id. at 521.

      Given this case law, we cannot accept WTA's and the Carriers' argument that

state remedies are inadequate where section 1983 or tort claims cannot be

adjudicated in the state forum. It is not enough to say that section 1983 is a remedial

statute that must be construed broadly to allow taxpayers to bring claims based on

constitutional violations. Br. of Appellants at 25 n.19. In the specific context of

state tax cases, the Supreme Court has held that section 1983 must be construed

narrowly. Nat'l Private Truck, 515 U.S. at 589. 15




555, 560-61 (state law remedy was adequate, even though it did not allow taxpayers to
recover punitive damages or attorney fees, because it provided taxpayers with an
opportunity to collect a refund and to raise constitutional objections to the tax); Gen.
Motors, 143 N.J. at 348 ("A state remedy need not be identical to section 1983 remedies.
It need not be the best remedy available, the most convenient remedy, or equal to or
comparable with federal remedies." (citations omitted)); Kerr v. Waddell, 185 Ariz. 457,
463-64, 916 P.2d 1173 (1996) (same).
       15 WTA and the Carriers rely on Dennis v. Higgins, 498 U.S. 439, 111 S. Ct. 865,

112 L. Ed. 2d 969 (1991), stating that there the "Court upheld the availability of§ 1983 to
vindicate key federal statutory and constitutional rights, even in state court actions."
Resp'ts' Suppl. Br. at 7-8 n.5. However, the majority opinion in Dennis did not discuss
the TIA or the comity principle. That case stands only for the proposition that a commerce
clause claim is actionable under section 1983. See Dennis, 498 U.S. at 440.

                                           -20-
                                                                                -   -- - -   --   ------ ---------------

------ --wasliington-TriickingAss'ns, elal.-v:Emp'tYec. Dep't, etal., 93079-1



                 The section 1983 cases on which WTA and the Carriers rely are not helpful.

           WTA and the Carriers first direct us to Jones v. State, 170 Wn.2d 338, 242 P.3d 825

           (2010) and Tarabochia v. Adkins, 766 F.3d 1115, 1128 (9th Cir. 2014). Resp'ts'

           Suppl. Br. at 5-7. In Jones, this court held that health inspectors could be liable

           under section 1983 for wrongfully fabricating evidence to suspend a pharmacist's

           license without a predeprivation hearing. 170 Wn.2d at 352. In Tarabochia, the

           Ninth Circuit held that the plaintiffs' Fourth Amendment rights were violated in a

           warrantless stop and the officers that performed the stop were not entitled to

           qualified immunity under section 1983. 7 66 F .3d at 1125. Neither of these cases

           concerned state taxes or the comity principle, and they are therefore off point.

                 Next, WTA and the Carriers rely on Carrier Corp. v. Perez, 677 F.2d 162 (1st

           Cir. 1982), Hillsborough v. Cromwell, 326 U.S. 620, 66 S. Ct. 445, 90 L. Ed. 358

           (1946), Patel v. City ofSan Bernardino, 310 F.3d 1138 (9th Cir. 2002), and Johnson

           v. City a/Seattle, 184 Wn. App. 8, 335 P.3d 1027 (2014). Resp'ts' Suppl. Br. at 8-

           11. None of these cases advances their cause. In Carrier Corp., the First Circuit

           held that the Butler Act, 48 U.S.C. § 872-Puerto Rico's equivalent of the TIA-

           barred a corporation's Commerce Clause claim because it could pursue that claim in

           the Puerto Rico courts. 677 F.2d at 164. The court explained that "[t]he Butler Act,

           at most, requires assurance that a plaintiff will have an opportunity to make an



                                                    -21-
-~~-~-~- WasningtonTrucltingJlss'ns,ercil.-v.-Emp'{Sec.-Dep 't, et al., 93079-1 .   ...



            argument in state court, not that he will win." Id. at 165. Carrier Corp. thus

            demonstrates only that the adequacy of a remedy depends on the taxpayer's ability

            to raise constitutional claims in the state law process, a point which favors the

            Department's argument.

                  In Hillsborough, the Supreme Court held that the state law remedy was

            inadequate because "the state board of tax appeals . . . ha[ d] no right to pass on

            constitutional questions" and any subsequent state court review was "purely

            discretionary." 326 U.S. at 625-26. Hillsborough demonstrates that a taxpayer must

            have the opportunity to raise constitutional objections to taxation at some point in

            the state court process. This simply confirms that state law remedies are to be

            viewed procedurally, as the Supreme Court confirmed in Rosewell and Grace

            Brethren.

                  In Patel, the Ninth Circuit allowed taxpayers to pursue a section 1983 claim

            for damages when the city continued to collect a tax after the state court had declared

            it unconstitutional. 310 F.3d at 1139-40, 1142. The Ninth Circuit explained that

            Fair Assessment did not control because the taxpayers were "not seeking to

            challenge the validity of a tax, but merely to obtain retrospective damages for a tax

            that ha[d] already been declared invalid in state court." Id. at 1140. While it is true

            that Patel shows the TIA and comity are not absolute bars to section 1983 claims in



                                                     -22-
Washington Trucking Ass 'ns, et al. v. Emp 't Sec. Dep 't, et al., 93079-1



tax cases, it does not apply here because this case does not concern the collection of

a tax that has been adjudged unconstitutional or invalid. Rather, as the Department

correctly notes, the ALJ merely remanded with instructions to the Department to

reassess certain aspects of the taxes. Pet'rs' Suppl. Br. at 11; CP at 299-301, 303-04

(remanding and placing the burden on the Carriers to produce evidence justifying

reconsideration). 16

       In Johnson, the Court of Appeals reversed the dismissal of the plaintiff's

section 1983 suit because the city's ordinance scheme did not allow the plaintiff to

present evidence of his nonconforming use as a defense to parking citations. 184

Wn. App. at 11. Johnson involved neither state taxing authority nor the comity

principle, and is therefore unhelpful.

       WTA and the Carriers further rely on Wal-Mart Puerto Rico. Resp'ts' Suppl.

Br. at 11-12. There the First Circuit held that neither comity nor the Butler Act

barred the taxpayer's section 1983 claim because Puerto Rico had passed legislation

based on "dire financial straits" setting a cap on the amount of tax refunds, and its

prioritization of other government obligations rendered any refund uncollectable.


       16
         WTA and the Carriers also rely on Sintra, Inc. v. City of Seattle, 119 Wn.2d 1,
24, 829 P.2d 765 (1992). Resp'ts Suppl. Br. at 10. In Sintra, this court allowed a developer
to pursue its section 1983 claim against the city after the city continued to enforce a tax
that had been declared invalid in a separate case. 119 Wn.2d at 8. Given the similarities
between Patel and Sintra, the latter case is no more helpful than the former.


                                             -23-
Wasnmgton TrucRmg Ass 'ns, et al. v. Emp 't Sec. Dep 't, et al. ;9]079-1



Wal-Mart Puerto Rico, 834 F.3d at 112, 121. The holding in Wal-Mart Puerto Rico

is limited to the unusual facts of the case. Should the Carriers be entitled to a refund

in this case, nothing suggests they could not collect it, as counsel for the Carriers

conceded at oral argument. Wash. Supreme Court oral argument, supra, at 29 min.,

28 sec. through 29 min., 43 sec.

       Lastly, WTA and the Carriers look to the cases the Department cites, including

Francis, General Motors, Grace Brethren, and Rosewell. Resp'ts' Suppl. Br. at 12

n.8. WTA and the Carriers argue that in these cases the "'adequate remedy' could

at least address, on the merits, the allegation that the plaintiffs' federal rights had

been violated." Id. To the extent they argue the difference is that an administrative

tribunal could adjudicate the federal constitutional claims, they are mistaken. In

both Francis and Grace Brethren, it appears that the constitutional objections could

be raised only in the superior court. See Francis, 267 Neb. at 560 ("[U]nder [Neb.

Rev. Stat.] § 16-63 7, a taxpayer can ... bring[] suit ... and ... a claim that a special

tax assessment violates the federal Constitution can be raised and adjudicated in §

16-637 claims."); Grace Brethren, 457 U.S. at 413 n.30 ("Apparently, California

taxpayers cannot raise their constitutional challenges in the administrative tax refund

proceeding unless an appellate court already has sustained such a challenge."). In

any event, adequacy depends on the taxpayer's ability to raise constitutional



                                            -24-
-   Wasnington Truclring 71ss 'ns, -et aCv---:Emp 'rSec-:-Dep'f;et al., 93079-1



    objections at some point in the state law process-whether in the administrative

    tribunal or on judicial review. See Grace Brethren, 457 U.S. at 414 ("Nothing in

    this scheme prevents the taxpayer from 'rais[ing] any and all constitutional

    objections to the tax' in the state courts." (emphasis added) (alteration in original)

    (quoting Rosewell, 450 U.S. at 514)).

           Similarly, WTA and the Carriers are mistaken to the extent they argue that the

    specific claims they seek to raise must be adjudicated in the state law process. As

    established above, taxpayers need only be provided the opportunity to raise

    constitutional objections-not a specific claim, such as one under section 1983.

    Section 1983 claims are available only in special circumstances, such as when a

    taxing agency continues to impose a tax after a state court has declared the tax

    unconstitutional. See Nat'! Private Truck, 515 U.S. at 591 n.6 ("[T]here may be

    extraordinary circumstances under which injunctive or declaratory relief is available

    even when a legal remedy exists .... [I]f a state court awards a refund to a taxpayer

    on the ground that the tax violates the Federal Constitution, but state tax authorities

    continue to impose the unconstitutional tax, injunctive and declaratory relief might

    then be appropriate. In such circumstances, the remedy might be thought to be

    'inadequate."'); see also Patel, 310 F.3d at 1142 & n.4 (allowing plaintiffs to pursue

    their section 1983 claim for damages against state tax officials because "[a] tax



                                                 -25-
declared unconstitutional cannot continue to be collected"). Though these special

circumstances are not present here, they demonstrate that the comity principle does

not render agencies such as the Department wholly immune from section 1983

liability, as WTA and the Carriers argue. They also demonstrate that there is a

substantive aspect to state forum adequacy under Fair Assessment and National

Private Truck because a state remedy will not be found adequate unless it affords

monetary relief from the collection of an unconstitutional tax. See Wal-Mart P.R.,

834 F.3d at 121 (recognizing that adequacy analysis cannot render the word

"remedy" meaningless); see also Patel, 310 F.3d at 1142.

      In sum, precedent does not support WTA's and the Carriers' proposition that

the adequacy of a remedy depends on whether the state tribunal can address the

merits of the taxpayer's particular claims. Rather, the cited cases are either irrelevant

to the issue in this case or they demonstrate merely that a remedy is not adequate if

it is uncertain. Having determined that the adequacy of the state process turns on

procedural criteria, we must consider the adequacy of the remedy available to the

Carriers here under Washington law.




                                          -26-
-----·-~washTngto1rTruc-'/eing 71.ss 'ns,   era!.   v. Emp 't Sec. Dep 't, et al:;-93079=1



                          c. The Remedy Provided under Washington Law Is Adequate Because
                             It Affords the Carriers an Opportunity To Raise Constitutional
                             Objections to Tax Assessments on Judicial Review

                   The Department contends that the state law remedy in this case is adequate

            because the Supreme Court has found tax refunds, the same remedy available here,

            to be adequate in other cases, and constitutional objections to the taxes assessed can

            be made in an APA appeal. Pet'rs' Suppl. Br. at 6, 8. WTA and the Carriers counter

            that the administrative process provides only for a refund in the amount of the

            unemployment tax assessed. Resp'ts' Answer to Pet. for Review at 9. Because a

            refund would not redress the Department's violation of the Carriers' section 1983

            rights, the state law remedy is not adequate and comity does not bar the claim. Id. 17

                   As discussed above, the Department correctly articulates how we must

            measure the adequacy of a state law remedy in comity cases. Accordingly, in




                    17 WTA and the Carriers also assert that the remedy is not adequate because the ALJ
             in other administrative appeals excluded evidence regarding the auditing process, and there
             is therefore "very limited or no meaningful [opportunity] to create a record" to address the
             Department's violations of the Carriers' constitutional rights. Br. of Appellants at 41.
             Indeed, they contend that "an AP A appeal is limited to the agency record." Id. at 22. They
             are mistaken. On judicial review, the court can consider evidence not contained in the
             agency record that "relates to the validity of the agency action." RCW 34.05.562(1). Our
             holding is therefore not affected by the fact that the ALJ excluded testimony regarding the
             auditing process in other administrative appeals, CP at 631-32, and the fact that the
             Department moved to exclude testimony in this case because the "issue is whether the
             assessment is correct, not how the agency made the assessment," id. at 560. Even if these
             rulings were error, they do not render our state forum inadequate, since they do not limit
             the claims the Carriers can raise on appeal or the relief available if those claims succeed.

                                                            -27-
-- ---   - Wasnzngton TrucRzng Ass 'ns,------er al. v. Emp 't Sec. Dep 't, et al., 93079-1



            determining whether the state law remedy in this case is adequate, we examine the

            procedure for challenging a tax assessment (and obtaining a refund when that

            challenge succeeds) under Washington law.

                   Upon finding an employer has failed to pay unemployment taxes, the

            Department issues an "order and notice of assessment specifying the amount due."

            RCW 50.24.070. Chapter 50.32 RCW of the ESA provides for an administrative

            appeal of such an assessment. RCW 50.32.030. An aggrieved employer may

            request a hearing by an ALJ. RCW 50.32.010, .030, .050. Collection of taxes,

            penalties, and interest is stayed on administrative appeal, and only on judicial review

            must sums due be paid to the commissioner or into the registry of the court. RCW

            50.32.030, .130. Parties may engage in discovery, introduce evidence, present

            testimony, and examine witnesses. RCW 34.05.446(3), .449; WAC 192-04-110, -

            130. After hearing, the ALJ will issue an initial order affirming, modifying, or

            setting aside the assessment. RCW 50.32.050. The Department's commissioner

            may review the ALJ' s ruling sua sponte or upon petition of any interested party.

            RCW 50.32.070, .080. Judicial review of the commissioner's decision is available

            under the APA.         RCW 34.05.510; RCW 50.32.120. Absent such review, the

            commissioner's decision becomes final. RCW 50.32.090. On judicial review, a

            court may affirm, set aside, modify, or remand the matter if the agency's order "is



                                                           -28-
m violation of constitutional prov1s10ns          on its    face   or as    applied."

RCW 34.05.570(3)(a), .574(1); see, e.g., Dot Foods, Inc. v. Dep 't of Revenue, 185

Wn.2d 239, 244-45, 372 P.3d 747 (2016) (retroactive application of business and

occupation tax amendment did not violate taxpayer's due process rights); Tiffany

Family Tr. Corp. v. City of Kent, 155 Wn.2d 225, 227-28, 119 P.3d 325 (2005)

(rejecting property owner's allegation that local improvement district assessment

was an unconstitutional taking and violated due process because it "failed to use the

mandatory statutory procedure for challenging" such assessments).

      Because the Supreme Court has held that the ability to seek a tax refund is an

adequate remedy, and because the Carriers may raise any constitutional claims on

judicial review, Washington law provides an adequate remedy. In both Rosewell

and Grace Brethren, the Supreme Court held that a refund was an adequate remedy

even though interest and injunctive relief were not available in the state system. See

Rosewell, 450 U.S. at 515 (interest); Grace Brethren, 457 U.S. at 415 (injunctive

relief). In Fair Assessment and National Private Truck, the Supreme Court also

suggested that a refund may be adequate despite the taxpayer's inability to recover

punitive damages or attorney fees in the state process. See Fair Assessment, 454

U.S. at 106, 116 (punitive damages); Nat'l Private Truck, 515 U.S. at 592 (attorney




                                         -29-
-- ------- - - Wasliington Trzicldng )fss'ns;-et aCv---: Emp-TSec. Dep 't, et al., 93079-f


            fees).    While adequacy was not directly at issue in either of those cases, 18 the

            Supreme Court's analysis nonetheless confirms that a remedy is adequate even when

            "no relief can be awarded pursuant to§ 1983." Nat'! Private Truck, 515 U.S. at 592.

                     Further, the APA provides that the Carriers may raise constitutional objections

            upon judicial review, and thus the state law remedy "meets certain minimal

            procedural criteria." Rosewell, 450 U.S. at 512. Although it is unclear whether the

            ALJ or the commissioner may pass on the constitutionality of taxes, 19 the taxpayer

            is not prohibited from asserting constitutional claims. See Grace Brethren, 457 U.S.

            at 414; cf Hillsborough, 326 U.S. at 624-26. Accordingly, the section 1983 claim

            is barred under the comity principle.

                     II.   The Exclusive Remedy Provision of the ESA Bars the Carriers' Tortious
                           Interference Claim

                     Independent of their section 1983 claim, the Carriers assert a claim for tortious

            interference. Because this is a state common law claim, the comity principle does

            not apply. However, as with the comity principle, the ESA restrains interference




                     18In Fair Assessment, the district court concluded that the remedy was adequate and
            the plaintiffs did not appeal that finding. 454 U.S. at 116. In National Private Truck, the
            plaintiffs conceded that the remedy was adequate. 515 U.S. at 589.
                    19 At oral argument, counsel for the Department explained that ALJs have limited
            power to review constitutional claims, but that such issues may be preserved for appeal.
            Wash. Supreme Court oral argument, supra, at 10 min., 5 sec. through 10 min., 30 sec.

                                                           -30-
Wasfungton Trucking Ass 'ns, et al. v. Emp 't Sec. Dep 't, e{al.~ -9J079--=-l



with state taxation and it provides that taxpayer challenges to the "justness or

correctness" of unemployment tax assessments must proceed under Title 50 RCW.

         The Department maintains that a challenge to an assessment amount is a

challenge to its '"correctness,"' while a challenge to the motive or means in

assessing the tax is a challenge to its "'justness."' Pet'rs' Suppl. Br. at 15. Because

the Carriers challenge the validity of the assessments and the manner in which the

Department conducted the audits, they must bring their challenges under the

procedures set out in Title 50 RCW. Id. In response, the Carriers contend that the

Department should be judicially estopped from arguing that the administrative

process can address the 'justness" of the assessments given that the Department has

repeatedly insisted its motive and means are irrelevant. Resp'ts' Answer to Pet. for

Review at 17. We hold that the ESA bars the common law tortious interference

claim.

         The ESA provides that the remedies under it "for determining the justness or

correctness of assessments, refunds, adjustments, or claims shall be exclusive and

no court shall entertain any action to enjoin an assessment or require a refund or

adjustment except in accordance with the provisions of this title." RCW 50.32.180.

The ESA does not define "justness," nor are there any cases or legislative history

interpreting its meaning. An undefined statutory term should be given its "'usual



                                               -31-
---~~-~-~-~~--wushingtonfruckingAss'n:s, eral. v. Emp't Sec. Dep 't;et al.-;93079-.:r--~-~-~---



            and ordinary meaning."' Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230

            (2005) (quoting State v. Hahn, 83 Wn. App. 825, 832, 924 P.2d 392 (1996)). "If the

            undefined statutory term is not technical, the court may refer to the dictionary to

            establish the meaning of the word." Id. at 423. Under the common meaning, 'just"

            is synonymous with "fair," "equitable," "impartial," ''unbiased," "dispassionate," or

            "objective." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE

            979, 655 (3d ed. 1992) (synonyms of"just" cross-referenced under "fair"); WILLIAM

            C. BURTON, LEGAL THESAURUS 305-06 (2d ed. 1992). Given that the Carriers

            challenge the Department's motive and means in conducting the audits, they

            arguably challenge the unfairness, and thus the 'justness," of the assessments. See

            Br. of Appellants at 35 (describing the Department's improper motive as

            restructuring the trucking industry, and its improper means as disregarding its own

            auditing standards). By its plain terms, the ESA therefore bars the Carriers' tortious

            interference claim.

                   III.   WTA and the Carriers Are Not Entitled to Attorney Fees

                   WTA and the Carriers request attorney fees pursuant to RAP 18 .1 and section

             1988. Resp'ts' Suppl. Br. at 20. Section 1988 provides that "[i]n any action or

            proceeding to enforce a provision of section[] ... 1983, ... the court, in its discretion,

            may allow the prevailing party ... a reasonable attorney's fee as part of the costs."




                                                       -32-
42 U.S.C. § 1988(b). Because comity bars WTA and the Carriers' section 1983

claim, there is no basis for an award of attorney fees.

                                   CONCLUSION

      We reverse the Court of Appeals and uphold the superior court's order of

dismissal. The comity principle bars state courts from awarding damages under section

1983 in state tax cases when there is an adequate state law remedy. The adequacy

analysis is the same for purposes of the TIA and comity. This holding is in line with

the underlying purpose of comity-avoiding disruption of state tax administration to

ensure the State can collect the revenue it depends on to function. Applying the

adequacy analysis here, comity bars WTA's and the Carriers' section 1983 claim

because they may raise constitutional objections to the tax on judicial review.

      The ESA precludes the Carriers' state common law claim for tortious

interference with business expectancies. This claim plainly challenges the "justness or

correctness" of the unemployment tax assessments, requiring the Carriers to rely

exclusively on the procedures set out in Title 50 RCW.




                                          -33-
··~····   ~~·~.~~ ··· ·~ ·wasMngton   TruclrtngAss 'ns, era!. v: ~mp 'rSec. Dep 't; et al., 93079-1. ·




                    WE CONCUR:




                                                                                                  (/




                                                                      -34-
