The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3528
LOIS JONES,
Plaintiff-Appellant,
v.
THOMAS BRENNAN, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 3285—Charles R. Norgle, Sr., Judge.
____________
SUBMITTED JANUARY 4, 2006—DECIDED AUGUST 14, 2006
____________
Before POSNER, MANION, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Lois Jones filed this suit pro se in
federal court under 42 U.S.C. § 1983 against several Cook
County, Illinois, probate judges, the county’s public guard-
ian, two of his deputies, and four private lawyers whom the
probate court had appointed to be guardians ad litem. Jones
claimed that the defendants had conspired to deprive her of
property without due process of law in the course of
probate proceedings involving her father’s estate. Her father
was living when the proceedings began, but was incapable
of handling his affairs, apparently because of dementia and
complications of diabetes, and so his property was in the
2 No. 04-3528
control of the probate court. He died in the course of the
proceedings; they continued.
The complaint alleges that the probate judges received
ex parte communications from the guardians, failed to
require the guardians to file appearances or provide an
accounting of their management of the estate, and denied
the plaintiff notice and a hearing before replacing a previous
guardian. The complaint further alleges that one of the
guardians “bargain[ed]” with the plaintiff’s siblings for
property that should have remained in the estate, and
conducted an “illegal search” of her personal belongings,
and that the guardians prevented her from spending
time with her father before he died by making false re-
ports that convinced the court to grant an order of pro-
tection against her, and by hastening her father’s death
through neglect. She seeks compensatory and punitive
damages.
The judge dismissed the suit on the pleadings on the
authority of the Rooker-Feldman doctrine. District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923). This was a mis-
take. The doctrine, which forbids a federal court other
than the Supreme Court to entertain an appeal from a
decision by a state court, is inapplicable when the plaintiff is
not attacking a state court judgment. Exxon Mobil Corp. v.
Saudi Basic Industries Corp., 544 U.S. 280, 291-94 (2005);
TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 591 (7th Cir. 2005).
The plaintiff filed her suit before the litigation in state court
over her father’s estate was completed, and is complaining
(so far as we can determine from the inartfully drafted pro
se complaint), in part anyway, about matters that were not
the subject of the state court judgment, such as the alleged
bargaining between her siblings and the guardians, the
No. 04-3528 3
search, the denial of access to her father, and the defen-
dants’ actions that she contends hastened his death. To the
extent that the Rooker-Feldman doctrine does not apply, the
plaintiff’s claims may be barred by res judicata, 28 U.S.C.
§ 1738, or the anti-injunction act, 28 U.S.C. § 2283, but these
are defenses rather than jurisdictional obstacles and their
applicability remains to be determined.
There is another jurisdictional obstacle to consider,
however, and that is the “probate exception” to the federal
courts’ jurisdiction. See, e.g., Storm v. Storm, 328 F.3d 941,
943-44 (7th Cir. 2003); Dragan v. Miller, 679 F.2d 712, 713-15
(7th Cir. 1982). As recently clarified by the Supreme Court,
the exception “reserves to state probate courts the probate
or annulment of a will and the administration of a dece-
dent’s estate; it also precludes federal courts from endeavor-
ing to dispose of property that is in the custody of a
state probate court. But it does not bar federal courts
from adjudicating matters outside those confines and
otherwise within federal jurisdiction.” Marshall v. Marshall,
126 S. Ct. 1735, 1748 (2006). The probate exception is usually
invoked in diversity cases, and the courts are divided over
its applicability to federal-question cases, such as this case.
Compare In re Marshall, 392 F.3d 1118, 1131-32 (9th Cir.
2004), rev’d on other grounds under the name Marshall v.
Marshall, supra, and Tonti v. Petropoulos, 656 F.2d 212, 215-16
(6th Cir. 1981), holding it applicable to such cases, with
Goerg v. Parungao, 844 F.2d 1562, 1565 (11th Cir. 1988),
holding it inapplicable. We think it applicable.
It used to be thought that the probate exception, like
the domestic-relations exception, which denies federal
jurisdiction to grant a divorce or exercise the other charac-
teristic powers of a domestic-relations court, Marshall v.
Marshall, supra, 126 S. Ct. at 1746; Ankenbrandt v. Richards,
4 No. 04-3528
504 U.S. 689, 703 (1992); Friedlander v. Friedlander, 149 F.3d
739, 740 (7th Cir. 1998), and is also usually invoked
in diversity cases, was of constitutional dignity. Byers v.
McAuley, 149 U.S. 608, 619-20 (1893); Gaines v. Fuentes, 92
U.S. 10, 21 (1876); Case of Broderick’s Will, 88 U.S. 503, 509
(1875); cf. Andrews v. Andrews, 188 U.S. 14, 32-33 (1903)
(domestic-relations exception). We echoed that view in
Dragan v. Miller, supra, 679 F.2d at 714; see also Akin v.
Louisiana Nat’l Bank of Baton Rouge, 322 F.2d 749, 751 (5th
Cir. 1963); cf. Loubser v. Thacker, 440 F.3d 439, 440 (7th Cir.
2006) (domestic-relations exception). The thought was
that Article III of the Constitution, in limiting the judicial
power of the United States to cases and controversies, had
confined the jurisdiction of the federal courts to “matters
that were the traditional concern of the courts at West-
minster.” Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frank-
furter, J., concurring). Probate and domestic relations
were handled by the English ecclesiastical courts rather than
by the royal courts (both the common law courts and the
Chancery court) at Westminster. Lloyd v. Loeffler, 694 F.2d
489, 491 (7th Cir. 1982); Csibi v. Fustos, 670 F.2d 134, 136 (9th
Cir. 1982); 13B Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3609, p.
460 (2d ed. 2006); see also 3 William Blackstone, Commentar-
ies on the Laws of England 87-103 (1768).
The accuracy of this historical analysis has been ques-
tioned. See 13B Wright, Miller & Cooper, supra, at 491-92; cf.
Lloyd v. Loeffler, supra (domestic-relations exception). The
dominant modern view is that the exceptions are of statu-
tory rather than constitutional origin (except insofar as some
matters within the probate or domestic-relations juris-
dictions do not involve disputes and therefore are not cases
or controversies, O’Callaghan v. O’Brien, 199 U.S. 89, 106
(1905); Ellis v. Davis, 109 U.S. 485, 496-97 (1883); Gaines v.
No. 04-3528 5
Fuentes, supra, 92 U.S. at 21-22), and is agnostic about the
accuracy of its remote historical underpinnings.
When Congress in the Judiciary Act of Sept. 24, 1789, § 11,
1 Stat. 73, conferred on the federal courts a diversity juris-
diction limited to “all suits of a civil nature at common law
or in equity,” which is narrower than Article III’s definition
of the federal judicial power, probate and domestic relations
were, the courts interpreting the statute held, excluded
because they were thought to be part of neither common
law nor equity. Marshall v. Marshall, supra, 126 S. Ct. at 1746;
Lloyd v. Loeffler, supra, 694 F.2d at 491; Csibi v. Fustos, supra,
670 F.2d at 136; 13B Wright, Miller & Cooper, supra, at 460.
Congress used the same language when in the Judiciary Act
of March 3, 1875, § 1, 18 Stat. 470, it conferred a general
federal-question jurisdiction on the federal courts, by which
time the probate and especially the domestic-relations
exceptions had become established in the case law. E.g.,
Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859); Case of
Broderick’s Will, supra. The implication is that the exceptions
were probably intended to apply to federal-question cases
too. And there is no indication that the current formula in
both jurisdictional statutes—“all civil actions,” 28 U.S.C.
§§ 1331, 1332(a)—was intended to repeal the exceptions.
Marshall v. Marshall, supra, 126 S. Ct. at 1746; Ankenbrandt v.
Richards, supra, 504 U.S. at 700-01; Dragan v. Miller, supra,
679 F.2d at 713.
There is no good reason to strain to give a different
meaning to the identical language in the diversity and
federal-question statutes. The best contemporary reasons for
keeping federal courts out of the business of probating wills,
resolving will contests, granting divorces and annulments,
administering decedents’ estates, approving child adop-
tions, and the like are two, and they are as persuasive when
6 No. 04-3528
a suit is filed in federal court on the basis of federal law as
when it is based on state law. First, the proceedings we have
listed, or at least those involving child custody and probate
administration, are in rem in character—they are fights over
a thing of value that is in the court’s control—and another
court should not try to elbow its way into the fight. Second,
state courts are assumed to have developed a proficiency in
these matters, to have procedures tailored to them, and to
work closely with and even employ specialized staff not
found in federal courts. Ankenbrandt v. Richards, supra, 504
U.S. at 703-04; Lloyd v. Loeffler, supra, 694 F.2d at 492; 13B
Wright, Miller & Cooper, supra, at 461. This case, involving
as it does a fight over an estate in the control of the state
probate court, and the deployment of the public guardian,
illustrates both points. See Ankenbrandt v. Richards, supra,
504 U.S. at 703-04. And since state courts are authorized to
decide issues of federal law unless Congress decrees
otherwise, confiding a class of federal-law cases to state
courts does not deprive litigants of their federal rights.
Jones for the most part is complaining simply about the
maladministration of her father’s estate by the Cook County
probate court, and this complaint, brought while the
probate proceedings were in progress though they have
since concluded, was tantamount to asking the federal
district court to take over the administration of the estate.
That clearly would violate the probate exception. Marshall
v. Marshall, supra, 126 S. Ct. at 1748. But she is also accusing
the guardians of having mismanaged the estate, and as
an heir she may have a claim for breach of fiduciary duty by
them. Miller v. Rich, 204 Ill. 444, 451-52 (1903); Estate of Lis v.
Kwiatt & Ruben, Ltd., 847 N.E.2d 879, 886-87 (Ill. App. 2006).
Such a claim does not ask the court in which it is filed to
administer the estate, but rather to impose tort liability on
the guardians for breach of fiduciary duty. Although both
No. 04-3528 7
the public guardians and the guardians ad litem are agents
of the probate court as long as they are acting at the court’s
direction, and so have to that extent absolute quasi-judicial
immunity, e.g., Dornheim v. Sholes, 430 F.3d 919, 925 (8th Cir.
2005); Hughes v. Long, 242 F.3d 121, 127 (3d Cir. 2001);
Fleming v. Asbill, 42 F.3d 886, 889 (4th Cir. 1994), they can be
sued if they step outside the scope of their agency and
engage in self-dealing, as charged by the plaintiff. Dornheim
v. Sholes, supra, 430 F.3d at 925; Cok v. Cosentino, 876 F.2d 1,
2-4 (1st Cir. 1989) (per curiam). In any event, immunity is a
defense rather than a jurisdictional defect, although the
grounds for dismissal in this case based on the probate
exception and the immunity defense merge when guardians
are acting within the scope of their authority because they are
administering a probated estate.
But to establish federal jurisdiction it is not enough that
the plaintiff’s suit may not be entirely barred by the probate
exception. The parties are not of diverse citizenship. The
claim of breach of fiduciary duty clearly is based solely on
state law. The plaintiff is also claiming, however, that the
defendants deprived her of her property interest in her
father’s estate without due process of law. If they did this in
the course of administering the estate, the claim cannot
escape the gravitational pull of the probate exception. It is
too facile a litigation move to recast a claim of
maladministration as a denial of due process. But conceiv-
ably some of the alleged misconduct involving the plaintiff’s
claim to a share of her father’s estate occurred outside the
proceedings to administer the estate.
Another federal claim in the complaint is that the plaintiff
was deprived, again without due process of law, of a liberty
interest in her relationship with her father. We suggested in
Russ v. Watts, 414 F.3d 783, 790 (7th Cir. 2005), that parents
8 No. 04-3528
and adult children have some constitutionally protected
interest in being able to associate with each other. See also
Robertson v. Hecksel, 420 F.3d 1254, 1258 (11th Cir. 2005)
(collecting cases). But this claim may also be within the
probate exception if, as appears from the complaint, the
alleged interference was caused by a protection order that
the guardians obtained to prevent the plaintiff from interfer-
ing with the probate proceedings.
As for the complaint about the search of the plaintiff’s
personal belongings, the legal basis of the claim is obscure
but the search may have been conducted under a war-
rant issued by the probate court. In that event it would
be state action that could be challenged under the Four-
teenth Amendment as an unreasonable search and
seizure—unless, once again, the warrant was ancillary to the
administration of the estate “in the practical sense that
allowing [the claim] to be maintained in federal court would
impair the policies served by the probate exception.” Dragan
v. Miller, supra, 679 F.2d at 715-16. This we cannot tell from
the complaint.
Though we are dubious that any of the plaintiff’s federal
claims are outside the probate exception, the matter is not so
clear that the judgment dismissing the case on jurisdictional
grounds can be sustained without further probing in the
district court. Unsure that there is federal jurisdiction, we
express no view of the merits of any of the claims but add
that if there is at least one colorable federal claim not barred
by the probate exception, the district court has jurisdiction
over the plaintiff’s state-law claims by virtue of the court’s
supplemental jurisdiction. 28 U.S.C. § 1367.
The judgment is vacated and the case remanded for
further proceedings consistent with this opinion.
No. 04-3528 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-14-06