United States District Court for the District of Oregon

“ The fact that the actions of Wasco County and its Sheriff differ from those of the State is not determinative. An obvious reason exists as to why the State would find it much easier than Wasco County and the Sheriff to "act" as if Rajneeshpuram were not a city. The State's "actions" in reliance on its view that Rajneeshpuram is not a valid city merely consist of cutting off funds and services to the City. The State's "actions" are really inaction or failure to act. ”

“ When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question [*3] of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. ”

“ Where the complaint in an action for declaratory judgment seeks, in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court. ”

“ The court will first address defendants' contention that plaintiff's dismissal cannot be allowed to stand because of Fed. R. Civ. P. 23 (e) . The right to voluntarily dismiss a case under Rule 41 (a) (1) is made expressly subject to Rule 23 (e) . Rule 23 (e) reads: A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. ”

“ In Pennhurst, the Court engaged in a comprehensive discussion of the origin, nature, and development of eleventh amendment immunity, and stated: A sovereign's immunity may be waived, and the Court consistently has held that a State may consent to suit against it in federal court. ”

“ What is implicit in the above-cited taxpayer standing cases also undercuts the State's argument that its action against Rajneeshpuram cannot arise under the first amendment because the first amendment gives the State no substantive rights or immunities. If an action by a citizen-taxpayer against an alleged establishment of religion by a government arises under the first amendment for jurisdictional purposes, then certainly the present suit does as well. ”

“ Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on any terms as are just.
The scope of application of Rule 21 is extremely broad. The court can exercise its power to allow or to order joinder of any party whose presence is found to be necessary or desirable. ”

“ The purpose of Rule 23 (e) is to insure that a class representative does not "sell out" the interests of absent class members in favor of his own interests. Here, the effect of the dismissal on the defendants is identical with its effect on the putative class members. Defendants' primary complaint is that plaintiff should not be allowed to subvert the removal procedure through the course of dismissal followed by refiling. However, this argument is unrelated to the existence of class allegations in the complaint ”

“ Individuals chosen by the followers of a particular faith to safeguard their spiritual and cultural way of life have been [**21] accorded authority to determine what shall constitute acceptable modes of conduct for Methodists and non-Methodists alike. Government and religion are so inextricably intertwined as to be inseparable from one another. ”

“ There are good reasons why the federal courts should not entertain suits by the States to declare the validity of their regulations despite possibly conflicting federal law. States are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation. ”

“ In both Larson and Dugan, the Court recognized the general rule that a suit is against the sovereign if the effect of the judgment would be "to restrain the government from acting, or to compel it to act." Larson v. Domestic & Foreign Corp., 337 U.S. at 704. However, both courts recognized the exception to that rule when acts are allegedly beyond a state official's statutory authority or allegedly constitutionally void. Dugan v. Rank, 372 U.S. at 621. In Larson, the plaintiff filed an action against federal administrators for an injunction in a contract dispute. ”

“ PERSONS TO BE JOINED IF FEASIBLE. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among the parties. ”

“ In considering such approval, the court must guard the interests of the absent class members and insure that the settlement is fair, reasonable, and adequate. Id. at 519-20. As discussed more fully below, the rule upon which plaintiff bases its dismissal gives a plaintiff an unqualified right to dismiss his action, even as against the objection of a court to the dismissal. In the present case, the party holding this unqualified right to dismiss is not the representative of the putative class. Here plaintiff simply proposes to drop its entire action against defendants and the defendant class. ”

“ The questions asked arise out of actions purportedly occurring within the City of Rajneeshpuram. We have determined the existence of some facts, but other critical facts which could influence the answer to any one of the questions presented can only be assumed. In rendering opinions, the Department of Justice is precluded by law from acting as legal counsel for any Oregon city. ”

“ The cases finding that no federal jurisdiction exists appear [*12] to be concerned with (1) the requirement that the federal element be a necessary element in the plaintiff's cause of action and not come into the case as a matter of defense (Mottley, supra) , and (2) that the federal element in the plaintiff's cause of action not be too remote or too indirectly related to the cause of action (Gully, supra) . Neither concern arises here. 1
Footnotes 1 The State relies heavily on Franchise Tax Board, supra, in support of its position that no federal jurisdiction exists in the present action. ”