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United States District Court, S.D. Ohio, Eastern DivisionSep 5, 2002
Case No. C2-01-1224 (S.D. Ohio Sep. 5, 2002)

Case No. C2-01-1224

September 5, 2002


Plaintiffs, Roberta Butterfield and Diana Rice, filed this putative class action asserting that certain procedures followed by the defendant, a judge of the Licking County Domestic Relations Court, violate the United States Constitution. Defendant, Judge Steiner, filed a motion to dismiss for lack of subject matter jurisdiction, arguing that under the Rooker-Feldman doctrine this Court lacks jurisdiction over the plaintiffs' claims, and alternatively that if even jurisdiction is present the Court should abstain from exercising it pursuant to Younger v. Harris, 401 U.S. 37 (1971). The motion has been fully briefed and is ripe for decision. For the following reasons, the Court will dismiss the case pursuant to Younger v. Harris.

I. Factual Background.

For the purposes of this order, the Court draws the facts of this case from the complaint as well as from the parties' memoranda addressed to the issue of subject matter jurisdiction. Because the jurisdictional portion of Judge Steiner's motion is made under Rule 12(b)(1), the Court's review of the facts is not strictly limited to the pleadings. Consequently, the Court accepts the allegations in the pleadings as true, but also refers to additional facts set forth in exhibits to Judge Steiner's motion. None of the additional facts appear to be in dispute.

According to the complaint, both plaintiffs are indigent and both are or were the custodial parents of minor children. Both are currently subject to the continued jurisdiction of the Licking County Domestic Relations Court because they and their minor children reside in Licking County. It also appears that an initial custody order concerning the minor children was made in the course of divorce proceedings which occurred in Licking County.

Licking County, like other Ohio counties, has a procedure which permits the issuance of ex parte orders changing the custody status of a minor child. The Licking County Domestic Relations Court adopted a Local Rule on January 17, 2001, which, by its terms, governs ex parte temporary custody orders. With respect to cases where a prior custody order has been entered, the Rule requires that a motion for an ex parte order for the temporary custody of children which changes the permanent residence of those children must be accompanied by an affidavit demonstrating that irreparable harm will occur unless an immediate order is granted. The motion must be accompanied by an explanation of why prior notice to the current custodian has not been given. The Rule further provides that, if a temporary custody order issues, notice must be served upon the parent from whose custody the children are being taken. This notice advises that parent of the right to request an emergency hearing to be set within seven business days.

Notwithstanding this Rule, both plaintiffs allege that, in their cases, Judge Steiner issued temporary ex parte orders changing custody without requiring a showing of the type of extraordinary circumstances which would justify the entry of such an order. They also assert that, in each of their cases, they were not served with the application or given notice of the opportunity for a hearing prior to the time that Judge Steiner entered an order changing the custody status of their children. They further contend that they were not afforded an automatic prompt post-deprivation hearing. They allege that the policy or custom of the Licking County Domestic Relations Court in ex parte custody matters differs from that required by its Local Rule and they assert that this policy or custom is unconstitutional. In addition to the due process violations which they allege, they also assert that Judge Steiner's practice of granting ex parte custody orders based simply upon "who gets to the courthouse first," see Complaint at ¶ 13, discriminates against indigent women because they lack the resources to contest the ex parte custody order in an expeditious manner.

According to the complaint, on September 14, 2001, Judge Steiner issued an order at the behest of Ms. Butterfield's ex-husband transferring custody of their daughter from Ms. Butterfield to Mr. Butterfield. The complaint alleges that she never was given a hearing on the change of custody issue. Plaintiff Rice alleges that she, too, was subject to an ex parte custody order. This order was issued on November 13, 2001, changing the custody of her daughter to Ms. Rice's parents. She also alleges that she was never given a hearing on the issue.

Some additional information concerning the state court proceedings is contained in exhibits supplied by Judge Steiner. Apparently, it was the result of an error that Ms. Butterfield was not served with a copy of the order and request for hearing. The order and notice were finally served on Ms. Butterfield after this federal action was begun. Ms. Butterfield was then afforded an oral hearing on January 14, 2002 before a Magistrate in the Licking County Domestic Relations Court. The Magistrate subsequently issued a decision vacating the ex parte custody order and returning Ms. Butterfield's daughter to her custody. The underlying divorce action appears still to be pending. Ms. Rice requested a hearing on January 8, 2002, and that hearing occurred on January 14, 2002. The ex parte order was then affirmed and a final hearing on custody was scheduled. The parties have not advised the Court what the outcome of that final hearing has been, or whether it has been held yet.

II. The Rooker-Feldman issue.

Judge Steiner first argues that this Court lacks jurisdiction over the plaintiffs' claim pursuant to the Rooker-Feldman doctrine. That doctrine, which derives its name from two United States Supreme Court decisions,Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), encompasses a relatively simple concept. Under 28 U.S.C. § 1257, only the United States Supreme Court has jurisdiction to review, on an appellate basis, decisions of state courts which are allegedly in conflict with the Constitution or laws of the United States. Consequently, a party may not directly or indirectly seek what amounts to appellate review of a state court decision by filing an independent action in the United States District Court. If the issue raised would require the District Court to review, and potentially overturn, a decision of the state court, the District Court simply lacks the jurisdiction to do so.

Most, if not all, of the claims which are set forth in the class action complaint are claims for prospective declaratory relief. Although both plaintiffs were subject to an order issued by Judge Steiner which temporarily transferred custody of a minor child from the plaintiff to another individual, neither seeks a reversal of that decision. Rather, they seek a declaration on behalf of themselves and other members of the class that the alleged practice of Judge Steiner in granting such orders without a showing of exigent circumstances, and in failing to provide reasonable notice of the filing of the motion, the entry of the order, or the availability of a post-order hearing, violates the Due Process clause of the Constitution. Although, in order to prove those claims, the plaintiffs would have to introduce evidence concerning individual decisions made by Judge Steiner both in their cases and other cases which they allege are part of a pattern and practice of unconstitutional adjudications, they are not asking the Court to overturn any specific child custody order. Thus, at least facially, it does not appear that their request for relief runs afoul of the Rooker-Feldman doctrine.

However, the matter is not quite that simple. Rooker-Feldman also applies when claims which do not appear to be requests for appellate review of a state court decision are nevertheless "inextricably intertwined" with the merits of the state court's decision. See Feldman, 460 U.S. at 482-84, n. 16. That phrase has not been precisely defined. However, as noted by the Court of Appeals for the Third Circuit inCentifanti v. Nix, 865 F.2d 1422, 1430 (1989),

"in his concurring opinion in Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987), Justice Marshall addressed the problem of determining when a constitutional claim is `inextricably intertwined' with the particular decision of a state court:
While the question whether a federal constitutional challenge is inextricably intertwined with the merits of a state-court judgment may sometimes be difficult to answer, it is apparent, as a first step, that the federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. For federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment."

Following Justice Marshall's view, the Third Circuit held that if "the district court could hold that the state rules in question violate the Constitution, without holding that the Pennsylvania Supreme Court erred in [the decision made in the plaintiff's case] . . . the federal claim is not inextricably intertwined with the state court judgment." Id. Conversely, of course, if relief could be granted only if the Court concluded that the state court had erred in its determination on the merits, a Rooker-Feldman problem would exist.

In Catz v. Chalker, 142 F.3d 279, 294 (6th Cir. 1998), a case in which the plaintiff challenged the procedures leading up to a state court divorce decree, the court held that a due process claim relating to the manner in which a state court reached a judgment in a divorce case was not "inextricably intertwined" with that judgment because the plaintiff's "due process allegation does not implicate the merits of the divorce decree, only the procedures leading up to it [footnote omitted]. For him to seek federal relief on this score need not be "predicated upon a conviction that the state court was wrong' on the merits." Catz also noted that its decision would not prevent the state court from redetermining the merits of the action or "from coming to the same conclusion under constitutional procedures." Id.

Plaintiffs characterize their claim as one which asserts that the procedures actually followed by Judge Steiner in reviewing and granting ex parte applications for changes of custody are constitutionally deficient. Consistent with Centifanti and Catz, this Court could evaluate the notice procedures involved in such proceedings without ever determining that Judge Steiner made an incorrect decision on the merits of whether a change of custody should be ordered. That part of plaintiffs' case is no different than if the notice procedures about which they complain were incorporated into a written rule and they challenged the facial constitutionality of the rule. Rooker-Feldman clearly does not bar that type of review.

More problematic is plaintiffs' assertion that Judge Steiner routinely grants such petitions without requiring a showing of exigent circumstances. Clearly, if either plaintiff asserted that the decision to grant a temporary change of custody in her case was improper because the requisite factual showing for such an order had not been made, plaintiffs would be complaining about the application of the practice to their specific cases, and that challenge would be barred by Rooker-Feldman. See Patmon v. Michigan Supreme Court, 224 F.3d 504, 509-10 (6th Cir. 2000) However, plaintiffs have raised a more general challenge to the practices of the Licking County Domestic Relations Court. They contend that although both the United States Constitution and the Licking County Court's Local Rules require that an affidavit averring exigent circumstances is required, Judge Steiner frequently grants ex parte orders for a change of custody without requiring the affidavit to set forth any exigent circumstances which would justify an ex parte proceeding. Again, assuming the truth of this allegation for the purposes of ruling on Judge Steiner's motion to dismiss, the Court has jurisdiction to entertain such a challenge. The Court could conclude that such a procedure violates the Constitution even if it is precluded from reexamining the substantive decision reached by Judge Steiner in either of the two plaintiffs' cases. Further, there is a distinction between a situation where the parties quibble over whether a particular affidavit sets forth sufficient exigent circumstances to justify an ex parte proceeding, and a case where the plaintiffs claim that such a showing is never required. The latter allegation is identical to an argument that a written rule of procedure is constitutionally deficit because it does not require that an application for an ex parte change of custody order be accompanied by a showing of exigent circumstances. The fact that the "rule" challenged in this case is one of practice instead of written procedure simply cannot insulate it from federal review.

Judge Steiner points out that another judge of this Court recently decided, in Pancake v. McCown, Case No. C-1-01-0084 (S.D. Ohio, Feb. 22, 2002) that Rooker-Feldman barred the Court from considering claims similar to those advanced here. In Pancake, the court observed that if the state court had adopted a local rule suffering from the deficiencies which the plaintiffs pointed out in the state court's practice, "this Court could pass on the constitutionality of that rule because the Court could consider its facial validity without reference to any judgments."Pancake, slip op. at 4. The Court concluded, however, that if the state court followed a practice identical to such a written rule, but did not reduce that practice to writing, the federal court would not have jurisdiction to review the constitutionality of that practice because "the only evidence for it consists of wrongly decided state court judgments." Id.

With all due respect, this Court disagrees. Although a narrow construction of the claims advanced by the plaintiffs might suggest that this court will be required to review the merits of every decision made by Judge Steiner in ex parte custody proceedings in order to determine whether exigent circumstances actually existed, the Court reads the plaintiffs' claims more broadly. First, the due process notice and hearing issues are totally unrelated to the merits of each decision. Second, plaintiffs' allegation that such orders are routinely issued without any showing of exigent circumstances might conceivably be supported by evidence that numerous petitions have been granted where no attempt to make such a showing has been made. If that is so, there is no need to review the merits of any decisions made by the state court, andRooker-Feldman would not be implicated. On the other hand, if plaintiffs' attempt to argue that, although Judge Steiner requires applicants for ex parte custody orders to allege exigent circumstances, his decisions are routinely based on inadequate evidence, their claims might well be barred by Rooker-Feldman. Because at least some of plaintiffs' claims do not require either a reversal of specific decisions made by the state court or a substantive review of the merits of decisions made by that court, and because others may or may not implicate the merits of such decisions depending upon how plaintiffs put on their proof, their claims are not presently foreclosed by the Rooker-Feldman doctrine.

III. Abstention.

Despite the fact that this Court has jurisdiction over plaintiffs' claims, it must still consider whether it is appropriate to exercise that jurisdiction. Judge Steiner argues, relying on principles first enunciated in Younger v. Harris, 401 U.S. 37 (1971), that the Court should not. For the following reasons, the Court agrees.

Younger and its progeny, including more recent cases such as Pennzoil v. Texaco, Inc., 481 U.S. 1 (1987), hold that a federal court should, out of respect for the significant interests of a parallel sovereign, refrain from exercising jurisdiction and dismiss the case when a grant of either injunctive or declaratory relief would unduly interfere with ongoing state court proceedings. In its traditional formulation, Younger abstention requires that three prerequisites be met: (1) that there is, at least at the time that federal court relief is being contemplated, a pending state court proceeding; (2) that the proceeding involves an important state interest; and (3) that the plaintiffs have an adequate opportunity to raise their federal constitutional challenges in the state court system. As discussed more fully below, even when these three considerations are not all present, the Sixth Circuit, beginning with its decision in Parker v. Turner, 626 F.2d 1 (1980), and including such cases as Sevier v. Turner, 742 F.2d 262 (1984) and Tindall v. Wayne County Friend of the Court, 269 F.3d 533 (2001), has held that when injunctive or declaratory relief would require "excessive" federal supervision of state court proceedings, the Younger principles require abstention. Here, the Court concludes that abstention is appropriate both under the traditional Younger formulation and under the more expansive Parker v. Turner interpretation of Younger.

Plaintiffs concede that the first prong of Younger is satisfied because their custody cases are still pending. However, they assert that there is no important state interest at stake in the custody litigation and that they cannot raise their present claims in state court. Controlling precedent indicates that both of these contentions are erroneous.

According to plaintiffs, the issuance of an ex parte custody order does not implicate an important state interest because "there is no interest in seizing children by whichever party gets to the court house first and without making any attempt to obtain input from the custodial parent about the child's welfare." Plaintiff's Memorandum, at 13. However, the state's interest in child custody proceedings cannot be viewed in such a narrow fashion. Rather, it is the subject matter of the underlying action, and not the specific action taken by the state court judge, which defines whether an important state interest is involved.

Federal courts have Consistently recognized that matters relating to domestic relations cases and child custody disputes implicate important state interests in determining the relationship between married parties and the custody of minor children. See e.g., Moore v. Sims, 442 U.S. 415 (1979); Mann v. Conlin, 22 F.3d 100 (6th Cir. 1994); Keim v. Hyatt, 44 F.3d 415 (6th Cir. 1995); Parker v. Turner, supra. Every plaintiff who files a § 1983 action relating to child custody argues that the state court has acted Unconstitutionally. Consequently, in every such case, the plaintiffs could contend that no important state interest is involved because the state has no interest in having judicial officers act outside the boundaries of the United States Constitution. The above decisions implicity, if not explicitly, reject such an argument. Consequently, this Court also rejects plaintiffs' assertion that state court proceedings involving issues of child custody do not implicate important state interests.

The most significant Younger issue is whether plaintiffs have an adequate ability to raise the constitutional claim in the course of state court proceedings. Plaintiffs contend they have no such opportunity because, even though parents in their circumstances are entitled to a post-deprivation hearing (which both plaintiffs claim was unreasonably delayed), the issues at the hearing are limited to a determination of whether the original custody order was properly granted. They assert that at the subsequent hearing they are unable to raise federal constitutional claims about the procedures followed in issuing the ex parte custody order.

Plaintiffs cite to Licking County Rule 8.61 as support for their argument that the only issue at the post-deprivation hearing is "the truthfulness of the facts contained in the affidavit that accompanied the motion that requested the ex parte order. . . ." Although the Licking County Rule does indicate that an immediate hearing on that precise issue can be requested, there is nothing in the rule to suggest that an aggrieved party may not also file a motion raising federal constitutional concerns about the way in which the temporary custody order was issued or raise that issue at the post-deprivation hearing. Further, as the Sixth Circuit noted in Kelm v. Hyatt, supra, pursuant to the "open courts provision" found in Ohio Constitution Article I, Section 16, the Ohio courts are courts of general jurisdiction and are open to hear all claims based upon both federal and state law unless specifically limited by statute. The Domestic Relations Division is a part of the Common Pleas Court, which is Ohio's court of general jurisdiction, and the Court is not aware of any authority that would suggest that a party aggrieved by an order entered in a domestic relations case could not immediately move to have the order vacated on grounds that its issuance violated the United States Constitution.

Plaintiffs also assert that there is no effective appellate review available to them because a temporary custody order can never be the subject of an appeal. They contend that if the order is ultimately reversed as a result of a permanent custody hearing, it is moot, and if it is merged into a final custody order, it is only the final custody order which can be appealed. Although plaintiffs correctly point out that a temporary custody order is interlocutory and cannot be immediately appealed, see Brooks v. Brooks, 117 Ohio App.3d 19 (Franklin Co. 1996), Ohio courts have reviewed the constitutionality of procedures used to issue temporary custody orders even where a final custody order has been made. See, e.g., In re Reeder v. Reeder, 1986 WL 2179 (Madison Co. App. 1986). Further, Ohio courts can decide moot cases and moot issues. See, e.g., Franchise Developers, Inc. v. City of Cincinnati, 30 Ohio St.3d 28 (1987), syllabus 411 ("Although a case may be moot as to one of the litigants, this court may hear the appeal where there remains a debatable constitutional question to resolve, or where the matter appealed is one of great public or general interest"). Lastly, a similar argument was advanced in Kelm v. Hyatt, supra, and rejected by the Sixth Circuit, even though some of the orders about which the plaintiff in that case complained were temporary orders which were not immediately appealable and some of those orders had expired prior to the filing of an appeal in the state court. For all these reasons, the Court believes that there is an adequate opportunity for the plaintiffs to present their claims in state court proceedings. Consequently, all three prongs of the Younger test have been met, and abstention is appropriate.

Even if Younger were not strictly applicable, the Court is persuaded that this case cannot meaningfully be distinguished from Parker v. Turner, supra. In Parker, a class of individuals who had been subjected to civil contempt proceedings to enforce child support orders filed a § 1983 action against state court judges, claiming that during the course of those proceedings, they were denied various constitutional rights including the right to counsel, the right to cross-examine witnesses, the right to testify and call witnesses on their own behalf, and the right not to be jailed without a hearing. At the time they filed their suit, there were no proceedings pending against any of the named plaintiffs. They requested only prospective relief, arguing that the Court could compel the state court judges to follow constitutional procedures in the future even if it could not reverse unconstitutional decisions allegedly made in the past.

In concluding that Younger principles required abstention under those circumstances, the Court noted that Younger had been applied to private civil cases where there was an issue of significant state concern, and that such a concern exists in domestic relations proceedings. Id. The Court recognized, however, that cases such as Steffel v. Thompson, 415 U.S. 452 (1974) and Wooley v. Maynard, 430 U.S. 705 (1977) would appear to permit prospective injunctive relief even when significant state interests were involved if no proceeding was pending. However, both of those cases involved a request to enjoin further enforcement of a state statute. In contrast, the plaintiffs in Parker did not challenge any statute or rule. Rather, their complaint raised the question of "whether [the Court] should extend Younger and its principles of comity and federalism to bar relief solely because of possible undue influence with the conduct of state proceedings." Id. at 6.

In answering that question in the affirmative, the Court relied extensively upon O'Shea v. Littleton, 414 U.S. 488 (1973), a case in which the plaintiffs also alleged that certain state court practices relating to criminal prosecutions were unconstitutional. The Parker court concluded that the type of relief requested in O'Shea would have "require[d] ongoing federal supervision of how the state judges acted in numerous criminal cases." Id. at 7. Similarly, in Parker, "the relief which the plaintiffs seek in this case would necessarily require monitoring of the manner in which the state juvenile judges conducted contempt hearings in non-support cases. . . . The federal interference of state proceedings would be as serious here as it was feared to be inO'Shea." Id. at 8. Consequently, even though none of the plaintiffs was a party to a pending state court case, Parker held that Younger required abstention because of the unseemliness of federal supervision of state court judges to insure that they were carrying out the federal court's order.

Parker has been consistently followed in this circuit and in other circuits. For example, in Pompey v. Broward County, 95 F.3d 1543, 1549 (11th Cir. 1996), also a case involving child support, the Court noted that "it appears that what the plaintiffs really want . . . is for the district court . . . to force the state judges to conduct a more "thorough inquiry' into each parent's ability to pay, and somehow force the state judges to follow what plaintiffs perceive to be the state's own laws and procedures." The court concluded that Younger did not permit a federal court to act in that capacity.

Here, plaintiffs do not take issue with any state law or rule of procedure which the Court could simply hold to be unconstitutional. Rather, they assert that as a matter of practice, Judge Steiner does not follow state law or the dictates of the United States Constitution, and they ask this Court to declare that his refusal to do so is unconstitutional. Although they seek only a declaratory judgment, as the Supreme Court noted in Samuels v. Mackell, 401 U.S. 66 (1971), Younger's federalism concerns are still present even if declaratory, rather than injunctive, relief is sought. If a declaratory judgment is entered and the state continues the challenged practice, the next issue is enforcement. The Court then becomes entangled in the type of supervision which Parker has indicated is inappropriate. If this Court were to declare that Judge Steiner consistently fails to follow the Licking County Local Rules and violates the Constitution in child custody cases, in order to enforce its judgment, the Court would be required to review Judge Steiner's conduct in individual cases on an ongoing basis. Parker simply does not permit the Court to do so.

Parker did indicate that if there was no state remedy to address the constitutional violation, Younger would not require abstention. As discussed above, this Court has concluded that the constitutional claims asserted by these plaintiffs can be raised both in the Common Pleas Court and by way of appeal once a final order is issued. That being so, comity requires the Court to abstain from exercising the jurisdiction which it possesses over plaintiff's § 1983 claims.

IV. Order

Based upon the foregoing, the motion of defendant Judge Steiner to dismiss for lack of jurisdiction or, in the alternative, to abstain from exercising jurisdiction (file doc. #12) is granted. This case is dismissed pursuant to Younger v. Harris, 401 U.S. 37 (1971)