Morrell, Stacey v. Mock, Philip

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1429

Stacey Morrell, individually and

as next friend for Joshua Morrell,

an infant,

Plaintiff-Appellant,

v.

Philip Mock, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 2459--George W. Lindberg, Judge.

Argued September 15, 2000--Decided November 1, 2001

Before Flaum, Chief Judge, and Kanne and

Williams, Circuit Judges.

Williams, Circuit Judge. Three law

enforcement officers, acting on

directions from two assistant state’s

attorneys, took Stacey Morrell’s child

from her home in Illinois and gave the

child to his putative father pursuant to

an ex parte order issued by a New Mexico

court. In this appeal we must decide if

Morrell has stated a claim for

deprivation, without due process, of a

constitutionally protected liberty

interest, and if so, whether the

defendants are entitled to qualified

immunity from suit. Although we hold that

Morrell’s allegations are sufficient to

state a constitutional claim, we agree

with the district court that defendants

are entitled to immunity and therefore

affirm the judgment of the district

court.

I. BACKGROUND

A. Facts

Stacey Morrell had an affair with John

Howell while both were assigned to a

military base in Albuquerque, New Mexico.

After the affair ended, Morrell

reconciled with her husband, David, and

the couple moved to El Paso, Texas, where

David had been assigned for active duty.

In El Paso, Stacey Morrell gave birth to

Joshua Morrell. David Morrell was

identified as the father on Joshua’s

birth certificate.

Meanwhile, Howell filed a "Petition to

Establish Paternity, Custody, and Time

Sharing" in a New Mexico court, and on

the day before Joshua was born in El

Paso, Howell attempted service on Morrell

by posting a copy of the summons and

petition on the premises of her former

home in Albuquerque. Morrell never

received that posted notice, and after

she failed to enter an appearance, Howell

moved for a default judgment. At a

hearing on Howell’s motion, New Mexico

Judge Anne Kass ordered that Morrell be

served by personal service and ordered

her to appear in court on the day

following service. That order was served

on Morrell by hand delivery in El Paso,

and when she failed to appear the next

day, Judge Kass entered the following

order:

IT IS FOUND IN OPEN COURT:

Respondent was personally served with an

order to appear at 9:00 a.m. the first

business day following service. She was

personally served on June 17, 1998. She

failed to appear at 9:00 a.m. June 18,

1998.

Respondent has intentionally been

avoiding service of process in this

paternity case.

Respondent has willfully failed and

refused to participate in an orderly

process to determine parentage.

IT IS ORDERED IN OPEN COURT:

I. Law Enforcement Authorities are

authorized and requested to assist John

D. Howell . . . in obtaining physical

custody of a male child born on or about

3/17/98.

II. Upon obtaining physical custody, a

parentage determination shall be

undertaken. It may be undertaken in New

Mexico or in South Carolina as Mr. Howell

decides.

III. If parentage determination is

undertaken in So. Carolina or in any

other state, New Mexico relinquishes

jurisdiction to such other state to

determine custody, visitation and child

support issues.

IV. Judgment is entered against Stacey J.

Morrell in favor of John D. Howell for

fees and costs herein of $3,000.00.

After the order was entered, Morrell

filed a special appearance contesting

jurisdiction. At about the same time,

David Morrell’s active duty assignment in

El Paso ended, and the family moved to

Stacey Morrell’s parents’ home in Indiana

while David Morrell sought new

employment. There, Stacey Morrell filed a

petition to establish paternity, and

Howell responded with a motion to

dismiss, relying on the New Mexico

court’s prior assertion of jurisdiction

and asserting that he had already

commenced another paternity action in

South Carolina (where Howell resided).

While the Indiana action was pending,

David Morrell secured a job in Illinois,

and the Morrells moved there with Joshua.

Howell then traveled to Illinois and

filed the New Mexico order with the Will

County Circuit Court clerk. Howell

appeared that same day on an emergency

motion before the Will County Circuit

Court and requested enforcement of the

New Mexico order by way of a body

attachment (a civil writ ordering the

seizure of a person). The Illinois judge

refused to issue the writ without notice

to Stacey Morrell. Undeterred, Howell

went to the Will County State’s

Attorney’s office and spoke to defendant

Judy DeVriendt, an assistant state’s

attorney. DeVriendt telephoned the local

police and told them to take custody of

Joshua pursuant to the New Mexico order.

When the local police went to Stacey

Morrell’s home, she showed them pleadings

from the Indiana action. After consulting

with their superiors, the police decided

not to take custody of Joshua and advised

Howell that they would not take further

action without an order from the Will

County court.

DeVriendt then consulted defendant

Philip Mock, chief of the state’s

attorney’s civil division. Mock reviewed

the New Mexico order and the docket sheet

from the hearing before the Will County

Circuit Court, which showed that the

court had denied Howell’s emergency

motion for a body attachment. Mock then

read the Illinois Uniform Child Custody

Jurisdiction Act (UCCJA), 750 Ill. Comp.

Stat. 35/1, et seq., which governs the

recognition in Illinois of custody

determinations of other states. He also

checked the circuit court’s computer

database to determine whether any other

orders or judgments involving these

parties had been filed in Will County,

and directed his subordinates to verify

that the New Mexico order had not been

vacated. Mock concluded that the New

Mexico order was valid and directed

DeVriendt to have the Will County

Sheriff’s Department pick up the child

and give him to Howell.

Defendant Richard Ackerson, an

investigator with the Will County

Sheriff’s Department, was assigned to the

case. According to Ackerson, DeVriendt

showed him the New Mexico order and

paperwork from the Indiana action, told

him that the New Mexico order had been

validated by an Illinois judge, and

directed him to arrest Morrell if she did

not cooperate. Acting on her

instructions, Ackerson and two deputy

sheriffs, defendants Richard Holman and

Keith Ploense, went to the Morrells’

home. As she had when the police visited

a few days earlier, Morrell showed the

sheriff’s deputies the paperwork from the

Indiana action. She also asked them to

speak by telephone with her lawyer in

Indiana, who told them that the Indiana

action had "superceded" the New Mexico

order. Ackerson replied that he had

instructions to serve the New Mexico

order, which was the only one that had

been "validated" in Illinois. Morrell

gave Joshua to the deputies--after being

threatened with arrest if she refused--

and the deputies gave the eight-month-old

infant to Howell. Howell immediately

returned to South Carolina with Joshua.

Later that day, Morrell appeared before

another judge in Will County, who ordered

Mock to retrieve the baby. Joshua was

reunited with his mother four days later.

B.The District Court Proceedings

Morrell filed suit on behalf of herself

and Joshua claiming a deprivation,

without due process, of their liberty

interests in familial relations protected

by the Fourteenth Amendment. After

discovery, all parties moved for summary

judgment. Without reaching the question

of whether there had been a

constitutional violation, the district

court held that the deputies were

absolutely immune from liability for

damages arising from their execution of

the court order. With respect to the

assistant state’s attorneys, the court

held that reasonable persons in their

position would not have known that

ordering the child to be seized was

unconstitutional, and that they were

therefore entitled to qualified immunity

from damages. The court therefore granted

the defendants’ motions for summary

judgment, denied the plaintiff’s cross

motion for summary judgment, and entered

judgment for the defendants.

II. ANALYSIS

To evaluate defendants’ claim of

qualified immunity under sec. 1983, the

court must decide (1) whether plaintiff

has stated a claim for violation of her

constitutional rights, and if so, (2)

whether those rights were clearly

established at the time of the violation,

such that a reasonable official would

understand that what he was doing

violates those rights. Wilson v. Layne,

526 U.S. 603, 609 (1999); Mitchell v.

Randolph, 215 F.3d 753, 755 (7th Cir.

2000). We first address the

constitutionality of the defendants’

conduct. Saucier v. Katz, 121 S.Ct. 2151,

2155-56 (2001); Pearson v. Ramos, 237

F.3d 881, 884 (7th Cir. 2001). On that

question, "we are required to determine

only whether [the plaintiff’s]

allegations, if true, state a claim of

deprivation." Delaney v. DeTella, 256

F.3d 679, 683 (7th Cir. 2001); see also

Katz, 121 S.Ct. at 2156. We review the

district court’s judgment de novo.

McGrath v. Gillis, 44 F.3d 567, 569 (7th

Cir. 1995).

A.The Constitutional Violation

Morrell contends that the New Mexico

court lacked jurisdiction, and that the

court’s order could not be enforced in

Illinois until Morrell received notice

and an opportunity to be heard in

Illinois. Her claim is based on a

mother’s liberty interest, protected by

the due process clause of the Fourteenth

Amendment, in the companionship, care,

custody, and control of her child. See

Lassiter v. Dep’t of Soc. Servs., 452

U.S. 18, 27 (1981); Brokaw v. Mercer

County, 235 F.3d 1000, 1020 (7th Cir.

2000); Ellis v. Hamilton, 669 F.2d 510,

512 (7th Cir. 1982)./1 To meet the

requirements of due process, the state

must afford notice and an opportunity to

be heard "at a meaningful time and in a

meaningful manner." Armstrong v. Manzo,

380 U.S. 545, 552 (1965). We have held

that, absent exigent circumstances, due

process requires a hearing before state

officials may remove a child from his

home. Brokaw, 235 F.3d at 1020; Ellis,

669 F.2d at 512; accord Hollingsworth v.

Hill, 110 F.3d 733, 739 (10th Cir. 1997);

Hurlman v. Rice, 927 F.2d 74, 79-80 (2d

Cir. 1991).

Defendants do not claim that there were

exigent circumstances that would justify

seizing the child before notice and

hearing. Instead, they argue that

Morrell’s constitutional claim fails

because of the availability of a post-

deprivation hearing in Illinois. Their

argument is based on Ellis v. Hamilton,

669 F.2d 510, in which we held, with

respect to the plaintiffs’ claim that

they were denied due process when various

state officials allegedly blocked their

efforts to adopt their grandchildren,

that due process was not denied because

the state provided a "variety of remedies

by which to correct" the officials’

alleged misbehavior. 669 F.2d at 514.

However, Ellis is distinguishable because

in that case the grandparents acquiesced

in the child welfare officials’ directive

to turn the children over, and the

children were not (as in this case) taken

from the home without prior notice and

under a threat of arrest. See 669 F.2d at

515. Moreover, the right of the

grandparents in Ellis is less compelling

than the right of a biological, custodial

parent, and therefore lesser procedural

protections may be consistent with due

process. See Weller v. Dep’t of Soc.

Servs., 901 F.2d 387, 394 (4th Cir. 1990)

(distinguishing Ellis on this basis).

However, the defendants are correct that

Morrell had actual notice of the New

Mexico hearing (albeit less than 24

hours’ notice) and then had more than

four months to either raise her

jurisdictional defenses in New Mexico or

pursue a collateral attack elsewhere

before the order was enforced. The

question, then, is whether in addition to

prejudgment process provided in New

Mexico, Illinois must provide pre-

enforcement notice and an opportunity to

be heard. On this point, Morrell argues

that a state may not enforce another

state’s order without prior notice and a

hearing. She relies on cases holding that

a state’s judgment "cannot be enforced

out of the state by an execution issued

within it." McElmoyle ex rel. Bailey v.

Cohen, 38 U.S. 312, 325 (1839); Williams

v. North Carolina, 325 U.S. 226, 229

(1945). But these cases do not prescribe

the method that a state must use in

domesticating another state’s order; the

method, as Morrell concedes, is

determined by the local law of the

enforcing state. See Baker v. General

Motors, 522 U.S. 222, 235 (1998) (citing

McElmoyle, 38 U.S. at 325; Restatement

(Second) of Conflict of Laws sec. 99

(1969) ("The local law of the forum

determines the methods by which a

judgment of another state is

enforced."))./2

Morrell next relies on cases holding

that the Due Process Clause establishes

limits on the rendering state’s exercise

of jurisdiction over non-residents, and

that judgments entered beyond those

limits are void and may not be enforced

in that state or in any other, see, e.g.,

Williams, 325 U.S. at 229-30; Pennoyer v.

Neff, 95 U.S. 714, 720-23 (1877), and on

the principle that a defendant

challenging a court’s jurisdiction may

ignore the court’s proceedings, risk a

default judgment, and resist enforcement

in a collateral attack on the first

court’s jurisdiction. See, e.g.,

Williams, 325 U.S. at 229-31; Chicago

Life Ins. Co. v. Cherry, 244 U.S. 25, 29

(1917); Thompson v. Whitman, 85 U.S. 457,

469 (1873); Bd. of Trs., Sheet Metal

Workers’ Nat’l Pension Fund v. Elite

Erectors, Inc., 212 F.3d 1031, 1034-35

(7th Cir. 2000); United States v. County

of Cook, 167 F.3d 381, 388 (7th Cir.

1999) (observing that the exception from

res judicata for collateral attacks

challenging jurisdiction is necessary

"because otherwise a court that lacked

jurisdiction could strong-arm a party to

litigate the subject, decide in favor of

its own power, and thus block any review

of its adjudicatory competence.")./3

Again, however, these cases do not

establish any particular procedure that

must be followed by a state asked to

enforce another state’s order, and do not

hold that notice and a hearing on the

question of the rendering state’s

jurisdiction must in all cases precede

enforcement.

Closer to the question before us are two

Supreme Court decisions considering what

pre-enforcement process is due when a

creditor seeks to enforce a judgment. In

Endicott-Johnson Corp. v. Encyclopedia

Press, Inc., 266 U.S. 285 (1924), the

Court held that, having received full

notice and hearing on the underlying

judgment, the debtor was not entitled to

further notice before execution of that

judgment:

[T]he established rules of our system of

jurisprudence do not require that a

defendant who has been granted an

opportunity to be heard and has had his

day in court, should, after a judgment

has been rendered against him, have a

further notice and hearing before

supplemental proceedings are taken to

reach his property in satisfaction of the

judgment. Thus, in the absence of a

statutory requirement, it is not

essential that he be given notice before

the issuance of an execution against his

tangible property; after the rendition of

the judgment he must take "notice of what

will follow," no further notice being

"necessary to advance justice."

Id. at 288 (citations omitted).

However, a later case, Griffin v.

Griffin, 327 U.S. 220, 232 (1946),

appears to narrow the holding in

Endicott. In Griffin, a wife litigated

and won an award of alimony, and ten

years later, without notice to the

husband, she obtained a judgment that

alimony payments were in arrears and a

writ authorizing execution of that

judgment. The Court held that the failure

to give notice of the later proceedings

violated due process, and therefore, that

the judgment could not be enforced:

While it is undoubtedly true that the

1926 decree, taken with the New York

practice on the subject, gave petitioner

notice at the time of its entry that

further proceedings might be taken to

docket in judgment form the obligation to

pay installments accruing under the

decree, we find in this no ground for

saying that due process does not require

further notice of the time and place of

such further proceedings, inasmuch as

they undertook substantially to affect

his rights in ways in which the 1926

decree did not.

Id. at 232./4 The Court in Griffin did

not make reference to Endicott, but many

courts have interpreted Griffin as

limiting Endicott’s holding that notice

and hearing on the underlying judgment

serves as constructive notice of all that

will follow. See, e.g., McCahey v. L.P.

Investors, 774 F.2d 543, 548 (2d Cir.

1985); Brown v. Liberty Loan Corp. of

Duval, 539 F.2d 1355, 1364-65 (5th Cir.

1976); see also Hanner v. DeMarcus, 390

U.S. 736, 741-42 (1968) (Douglas, J.,

dissenting from the dismissal of writ of

certiorari on the question of overruling

Endicott). These cases interpret Griffin

as holding that, at least as to issues

and rights that were not litigated in the

underlying judgment, such as defenses to

execution on particular assets, Endicott

does not supply the answer. McCahey, 774

F.2d at 547-49; Brown, 539 F.2d at 1364-

65; see also Aacen v. San Juan County

Sheriff’s Dep’t, 944 F.2d 691, 695 (10th

Cir. 1991); Dionne v. Bouley, 757 F.2d

1344, 1351-52 (1st Cir. 1985).

Viewed in light of Griffin, we agree

that Endicott does not entirely foreclose

consideration of whether the Due Process

Clause requires post-judgment notice or

other procedures. According to Morrell,

because she failed to appear in New

Mexico, she retained her right to

collaterally attack jurisdiction

elsewhere. As to jurisdiction (without

which the judgment is void), Morrell

never had the "day in court" that was the

basis of Endicott’s holding that no

further pre-deprivation notice was

required.

In determining, then, what post-judgment

process (if any) is due, we must balance

the nature of the private interests at

stake, the risk of harm from erroneous

deprivations, and the government’s

interests affected. See Mathews v.

Eldridge, 424 U.S. 319, 335 (1976);

Aacen, 944 F.2d at 695-96; McCahey, 774

F.2d at 548-49; Finberg v. Sullivan, 634

F.2d 50, 57-58 (3d Cir. 1980) (en banc);

see also Weller, 901 F.2d at 394. We

believe that the same considerations

underlying the recognition of a parent’s

due process right to pre-deprivation

notice and hearing justify the

requirement of pre-deprivation notice and

some opportunity to object in the

enforcing state, at least when the

rendering court’s order is by default. To

hold otherwise would force the parent to

litigate her jurisdictional objections in

any state chosen by an adverse party

(even if, as Morrell asserts was the case

here, the state lacked any connection

with the child or personal jurisdiction

over the parent), or else risk

enforcement without notice in another

state before she has an opportunity to

mount a collateral attack. This result

would be inconsistent with the due

process limitations on a state’s

jurisdiction that the right of collateral

attack protects, see Williams, 325 U.S.

at 229; County of Cook, 167 F.3d at 388,

and is also inconsistent with a proper

balancing of the competing interests at

stake.

A parent’s liberty interest in her

relationship with her child is of

considerable importance--and "far

moreprecious . . . than property rights."

May v. Anderson, 345 U.S. 528, 533

(1953); see also Lassiter, 452 U.S. at

27; Santosky v. Kramer, 455 U.S. 745, 759

(1982); Weller, 901 F.2d at 394. And even

though the interference with the mother’s

custody in this case was to be temporary,

we cannot ignore the not insubstantial

risk that once physical custody is

erroneously transferred, it may never be

regained. See Unif. Child Cust. Jur. Act,

prefatory note, 9 U.L.A. 262, 264 (1999);

Wayne Young, Parental Child-Snatching:

Out of a No-Man’s-Land of Law, 13 St.

Mary’s L.J. 337, 338 (1981) (estimating

that, annually, as many as 100,000

children are kidnapped by a parent). The

risk of erroneous deprivation is

particularly grave in a case like this

one in which custody was transferred

based on an ex parte presentation, and

when, therefore, the jurisdiction of the

rendering court has not been tested in an

adversarial proceeding.

We must also consider, however, the

interest of the parent seeking to enforce

a court’s order transferring physical

custody. That parent has (at least

potentially) an equally important

interest at stake. And once a court has

recognized that parent’s right to

custody, that parent has an important

interest in having the court’s

determination enforced. Pre-enforcement

notice may trigger flight by the parent

with physical custody, making it more

difficult (and perhaps, in some cases,

impossible) to enforce the order.

However, the rendering court’s

determination of proper custody has less

weight when the question of the court’s

jurisdiction has never been litigated in

a contested proceeding; without some

procedure in the enforcing state, it is

impossible for that state to determine

whether the order is entitled to any

weight at all. Moreover, if pre-

enforcement process in the enforcing

state is required, as urged by Morrell,

any exigent circumstances (such as flight

risk) can be considered by the enforcing

court in determining whether action may

be taken in advance of notice.

The state’s interest, according to the

defendants, is in facilitating interstate

recognition and enforcement of child

custody decrees and in deterring the

unilateral removal of children by parents

seeking to avoid jurisdiction. Illinois

has addressed these interests in the

Uniform Child Custody Jurisdiction Act

(UCCJA), see 750 Ill. Comp. Stat. 35/2

(stating the purposes of the Act); see

also In re Marriage of Mauro, 543 N.E.2d

856, 858 (Ill. App. Ct. 1989), which, the

defendants contend, required them to

enforce the New Mexico order without

notice or hearing. They rely on section

16(a) of the Illinois Act, which provides

for registration of out-of-state custody

judgments:

A certified copy of a custody judgment of

another state may be filed in the office

of the clerk of any circuit court of this

State. The clerk shall treat the judgment

in the same manner as a custody judgment

of a circuit court of this State. A

custody judgment so filed has the same

effect and shall be enforced in like

manner as a custody judgment rendered by

a court of this State.

750 Ill. Comp. Stat. 35/16(a)./5

However, the UCCJA’s scheme for

cooperative interstate recognition of

custody determinations rests on the

premise that each state’s interests are

served by limiting the bases for a

state’s assertion of jurisdiction over a

child custody determination, and

requiring interstate recognition of only

those determinations entered within those

limits. See 750 Ill. Comp. Stat. 35/2; see

also Unif. Child Cust. Jur. Act sec. 13

cmt., 9 U.L.A. 559 (1999)./6 To that

end, Illinois law pro-vides the party

opposing recognition and enforcement of

another state’s custody determination

with notice and the opportunity to be

heard on whether those jurisdictional

prerequisites are met. See Gasaway v.

Gasaway, 616 N.E.2d 610, 613 (Ill. App.

Ct. 1993) (describing the procedures for

domesticating another state’s custody

judgment); In re Marriage of Los, 593

N.E.2d 126, 131 (Ill. App. Ct. 1992); In

re Marriage of Mauro, 543 N.E.2d 856, 858

(Ill. App. Ct. 1989); In re Marriage of

Rogers, 490 N.E.2d 1000, 1003 (Ill. App.

Ct. 1986). Although the Illinois statute

does not specify that notice and an

opportunity to be heard on jurisdictional

prerequisites (both constitutional and

statutory) must precede enforcement,

courts interpreting the Illinois and

uniform acts have held that it must, in

order to allow the adverse party the

opportunity to contest recognition and

enforcement. See In re Marriage of

Rogers, 490 N.E.2d at 1003; Holm v.

Smilowitz, 840 P.2d 157, 165 (Utah Ct.

App. 1992); Kilgore v. Kilgore, 666

S.W.2d 923, 929 (Mo. Ct. App. 1984);

Wyatt v. Falhsing, 396 So. 2d 1069, 1072-

73 (Ala. Civ. App. 1981); Beck v. Smith,

296 N.W.2d 886, 891-93 (N.D. 1980)./7

Given the importance that the Illinois

child custody enforcement scheme places

on proper statutory jurisdiction, we do

not think that the state’s interests

weigh against providing pre-deprivation

process before enforcing an out-of-state

order when that order was entered without

an adjudication of that court’s statutory

jurisdiction or whether the order was

entered consistent with due process

requirements of notice and jurisdiction.

See Duchesne v. Sugarman, 566 F.2d 817,

828 n.26 (2d Cir. 1977) (stating that

"the administrative and fiscal burden to

the state can be of no moment" when the

procedures were consistent with state

requirements). And when we consider the

nature of the interests at stake and the

gravity of erroneous deprivations to

parents and children alike, we conclude

that, absent exigent circumstances, due

process requires, at a minimum, pre-

enforcement notice and some opportunity

to object before law enforcement

officials may separate a parent from her

child pursuant to an out-of-state default

order transferring custody.

We therefore hold that Morrell has

stated a claim for deprivation, without

due process, of her and her child’s

liberty interest in not being separated,

based on the defendants’ seizure of

Joshua, without prior notice to her in

Illinois and without exigent

circumstances, pursuant to the

defaultorder entered in New Mexico.

B. No Clearly Established Law

We turn next to the second part of the

analysis of the defendants’ claim of

qualified immunity: whether clearly

established law prohibited the

defendants’ conduct. Katz, 121 S.Ct. at

2156; Anderson v. Creighton, 483 U.S.

635, 640 (1987). To show this, a

plaintiff may point to closely analogous

cases establishing that the conduct is

unlawful, or demonstrate that the

violation is so obvious that a reasonable

state actor would know that what he is

doing violates the Constitution. See

Siebert v. Severino, 256 F.3d 648, 654-55

(7th Cir. 2001); Brokaw, 235 F.3d at

1022; Vickery v. Jones, 100 F.3d 1334,

1339 (7th Cir. 1996).

Morrell contends that it was clearly

established that due process requires

notice and an opportunity to be heard be

fore state actors may interfere with a

mother’s liberty interest in her child.

The statement of the right at this level

of generality, however, is of little help

in determining the reasonableness of the

defendants’ conduct. See Anderson, 483

U.S. at 639; Wilson, 526 U.S. at 614-15.

The appropriate question is whether it

would be clear to reasonable officials in

the defendants’ position that enforcing

the New Mexico court’s order without

prior notice or an opportunity to be

heard in Illinois was unconstitutional.

See Katz, 121 S. Ct. at 2156; Anderson,

483 U.S. at 639; Wilson, 526 U.S. at 615.

With regard to the procedures followed

in Illinois, Assistant State’s Attorney

Mock concluded that he was required to

enforce the order without notice to

Morrell, based on his reading of the

Illinois UCCJA. As we noted above,

wedisagree with his conclusion about

Illinois law. But Morrell has not

identified, and we have been unable to

find, any authoritative cases considering

analogous circumstances that hold that

pre-deprivation notice and an opportunity

to be heard is required as a matter of

constitutional due process before a state

may enforce another state’s custody

order. As we noted earlier, cases

concerning the extra-territorial effect

of a state’s judgment or defining the due

process limits of a state’s jurisdiction

over non-residents (Williams v. North

Carolina, 325 U.S. 226 (1945), for

example), do not speak to the procedures

that must be employed in a state asked to

enforce an out-of-state order, and do not

hold that pre-enforcement notice and

hearing is always required. And we do not

think that the Illinois judge’s denial of

Howell’s emergency petition for a body

attachment compels a different

conclusion. Mock had no knowledge of the

basis for the judge’s denial, and the

judge’s failure to issue an order was not

obviously inconsistent with enforcement

of the New Mexico order, given Mock’s

interpretation that an order from an

Illinois judge was not required.

Morrell also contends that the order

was, on its face, a "constitutional

abomination," and so it should have been

obvious to the defendants that it could

not be enforced. The only alleged

procedural deficiency apparent from the

face of the order was the fact that it

was entered ex parte after Morrell failed

to appear the day after personal service.

Morrell has pointed to no cases holding

that a single day’s notice is, under

these circumstances, constitutionally

inadequate, and given the court’s finding

(recited in the order) that Morrell "has

intentionally been avoiding service of

process," we do not think that notice was

obviously infirm.

Finally, Morrell contends that the

sheriff’s deputies should have recognized

that the order could not properly be

enforced, based on information they

learned when they were shown copies of

the Indiana pleadings after they arrived

at Morrell’s home, specifically, that

another paternity action had been

instituted by Morrell in Indiana.

According to Morrell, they should have

known that the New Mexico order was no

longer operative because the order

recited that the court relinquished

jurisdiction once another parentage

determination was undertaken:

If [a] parentage determination is

undertaken in So. Carolina or in any

other state, New Mexico relinquishes

jurisdiction to such other state to

determine custody, visitation and child

support issues.

Morrell’s interpretation of the legal

effect of the filing of the Indiana

paternity action is a reasonable one, but

not the only reasonable one. At Morrell’s

home, the officers were shown pleadings

from the Indiana action, but there was no

order or other indication that the

Indiana court had asserted jurisdiction.

(Indeed, the officers were shown a motion

to dismiss that was pending in Indiana

based on New Mexico’s prior assertion of

jurisdiction.) Morrell’s lawyer told the

officers that the Indiana paternity

action "superceded" the New Mexico

action, but the officers were not

required to rely on the lawyer’s

conclusion about the legal effect of the

initiation of proceedings in Indiana. See

Marks v. Carmody, 234 F.3d 1006, 1010

(7th Cir. 2000) ("We are aware of no rule

that requires police officers to accept

the legal arguments offered by a

suspect’s attorney."). This is

particularly true in light of the fact

that Assistant State’s Attorney DeVriendt

had already made the officers aware of

the Indiana action, and specifically

advised them that the New Mexico order

was the operative one because it was the

only one that was filed in Illinois. See

Davis v. Zirkelbach, 149 F.3d 614, 620-21

(7th Cir. 1998) (police officers who

relied on specific advice of attorney

were entitled to qualified immunity when

the advice was unequivocal and closely

tailored to the particular facts, the

attorney was the one responsible for

rendering such advice, and the police

acted promptly upon receiving the

advice).

We conclude, therefore, that all

defendants are entitled to qualified

immunity. Because of our conclusion on

the issue of qualified immunity, we need

not reach the sheriff’s deputies’

alternate argument that they were

entitled to absolute immunity.

III. CONCLUSION

We are not unmoved by the circumstances

presented by this case, and we share

Morrell’s concerns about the wisdom of

authorizing an infant’s separation from

his mother and removal from the state by

someone whom the child has never seen,

apparently based on nothing more than the

man’s assertions that he, and not the

mother’s husband, was the child’s father.

Much of our concern is based on the

procedures used here, but as we have

said, it was not clearly established that

the procedures were constitutionally

infirm. Therefore, although Morrell has

stated a claim for deprivation, without

due process, of a protected liberty

interest, we hold that the defendants’

conduct in seizing her child was not

contrary to clearly established law and

therefore Affirm the judgment of the

district court.

FOOTNOTES

/1 Morrell also asserts in a conclusory fashion that

the seizure of Joshua violated the Fourth Amend-

ment. Because the argument is not developed, it

is waived. See Williams v. Gen. Elec. Capital

Auto Lease, 159 F.3d 266, 274 (7th Cir. 1998);

United States v. South, 28 F.3d 619, 629 (7th

Cir. 1994).

/2 The "local law" governing recognition and en-

forcement in Illinois of custody determinations

of other states is the Uniform Child Custody

Jurisdiction Act (UCCJA), 750 Ill. Comp. Stat.

35/1, et seq., the requirements of which we will

later address.

/3 Of course, jurisdiction is the only issue pre-

served when a defendant fails to appear, and if

the defendant loses on the question of jurisdic-

tion in a collateral attack, the decision on the

merits is res judicata. See Elite Erectors, Inc.,

212 F.3d at 1034-35; County of Cook, 167 F.3d at

388. Therefore, if jurisdiction is proper in the

rendering court, little is to be gained by fail-

ing to appear and suffering a default.

/4 Griffin distinguished between judgments entered

with adequate prior notice and hearing (as was

the case in Endicott) and those entered without

those prejudgment procedures (which could not be

enforced). Griffin, 327 U.S. at 233-34.

/5 We accept, for purposes of this discussion, the

defendants’ assertion that the New Mexico order

is a "custody determination" subject to the

UCCJA. See 750 Ill. Comp. Stat. 35/3.02 (defining

"custody determination"); see also Pena v. Mat-

tox, 84 F.3d 894, 899 (7th Cir. 1996) (noting

courts’ disagreement about whether a decision in

a paternity action is subject to the uniform

act). The parties do not make anything of the

distinction between custody "judgments" and

"decrees," so we will ignore this difference, as

well. Compare 750 Ill. Comp. Stat. 35/16(a) with

Unif. Child Cust. Jur. Act sec.15(a), 9 U.L.A.

616 (1999).

/6 In this context, "jurisdiction" refers to the

necessary connections, specified by the statute,

between the state and the controversy. See 750

Ill. Comp. Stat. 35/4; Levy v. Levy, 434 N.E.2d

400, 403 (Ill. App. Ct. 1982). We note that

federal law follows the same approach as the

UCCJA, requiring that states afford full faith

and credit to those custody determinations made

by a state having certain specified connections

with the child or controversy. See Parental

Kidnapping Prevention Act (PKPA), 28 U.S.C. sec.

1738A. Recognition of another state’s order,

under the UCCJA, is also limited to those deter-

minations made after prejudgment notice to out-

of-state parents and other specified parties. See

Unif. Child Cust. Jur. Act sec. 13 cmt., 9 U.L.A.

13. The minimal notice to out-of-state parties is

10 days in Illinois, 750 Ill. Comp. Stat. 35/6,

and (at the time the order was entered in this

case) 20 days in New Mexico. N.M. Stat. Ann.

40-10-6(a) (replaced by Unif. Child Cust. Jur. &

Enf. Act (UCCJEA), N.M. Stat. Ann. 40-10A-108,

effective July 1, 2001). Compare PKPA, 28 U.S.C.

sec. 1738A(e) (requiring reasonable notice).

/7 By contrast, the more recent Uniform Child Custo-

dy Jurisdiction and Enforcement Act (UCCJEA)

provides a streamlined enforcement procedure

whereby notice of registration is sent to certain

interested parties, and the out-of-state order

confirmed as a matter of law if those parties

entitled to notice do not contest registration

within a specified period. See Unif. Child Cust.

Jur. & Enf. Act sec. 305, 9 U.L.A. 692-93 (1999).

Illinois has not enacted the UCCJEA.