Respondents Brief — Oglala Sioux Tribe, et al., Petitioners v. Lisa Fleming, in Her Official Capacity, et al.
Supreme Court briefJun 27, 2019
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No. 18-1245
In the
Supreme Court of the United States
__________________
OGLALA SIOUX TRIBE, et al.,
Petitioners,
v.
LISA FLEMING, in Her Official Capacity, et al.,
Respondents.
__________________
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Eighth Circuit
__________________
RESPONDENTS’ BRIEF IN OPPOSITION
__________________
J. Crisman Palmer
Counsel of Record
GUNDERSON, PALMER,
NELSON & ASHMORE, LLP
506 Sixth Street
P.O. Box 8045
Rapid City, SD 57709
Telephone: (605) 342-1078
Telefax: (605) 342-9503
E-mail: cpalmer@gpna.com
Attorneys for Respondent
Mark Vargo
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
QUESTIONS PRESENTED
1. Whether the Eighth Circuit was correct in applying
Younger abstention when it held that Petitioners
have an adequate opportunity to challenge the
hearing procedures by direct apply within the abuse
and neglect proceedings, intermediate and final
appellate review, and also by seeking South Dakota
Supreme Court review through mandamus?
2. Whether the Eighth Circuit was correct in
determining that the manner in which informal
emergency child removal hearings were conducted
when the right to counsel, right to subpoena
witnesses, right to confront and cross examine
witnesses were not provided within 48 hours of an
emergency custody removal, was not “flagrantly and
patently violative of express constitutional
prohibitions in every clause, sentence and
paragraph, and in whatever manner and against
whomever an effort might be made to apply it”?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 4
1. The Child Protection Process. . . . . . . . . . . 4
2. Procedural History . . . . . . . . . . . . . . . . . . . 7
REASONS FOR DENYING THE PETITION. . . . . 11
I.
PETITIONERS FAILED TO PRESERVE
THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . 11
II.
THE EIGHTH CIRCUIT’S DECISION IS
CONSISTENT WITH “ADEQUATE
OPPORTUNITY” PRECEDENT. . . . . . . . . . 13
1. The Eighth Circuit Did Not Hold The
Possibility of Filing a Separate
Mandamus Action Was Sufficient In and
Of Itself to Provide an Adequate
Opportunity . . . . . . . . . . . . . . . . . . . . . . . 13
2. There is No Circuit Split . . . . . . . . . . . . . 16
A. First Circuit . . . . . . . . . . . . . . . . . . . . 16
B. Sixth Circuit . . . . . . . . . . . . . . . . . . . . 17
C. Third Circuit . . . . . . . . . . . . . . . . . . . . 18
3. The Eighth Circuit Set Forth Additional
Bases to Support Younger Abstention. . . 19
iii
III.
THE EIGHTH CIRCUIT MADE NO
MEANINGFUL DISTINCTION BETWEEN
POLICIES AND STATUTES WHEN
REJECTING THE “FLAGRANTLY AND
PATENTLY UNCONSTITUTIONAL”
EXCEPTION . . . . . . . . . . . . . . . . . . . . . . . . . 20
1. There is No Indication that the Sixth and
Ninth Circuits Considered Whether There
was a Distinction Between Policies and
Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. Sixth Circuit . . . . . . . . . . . . . . . . . . . . 21
B. Ninth Circuit. . . . . . . . . . . . . . . . . . . . 23
2. Petitioners Misrepresent the Seventh
Circuit’s holding; It Deals Only with a
Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3. Pennington County 48-Hour Hearings are
not Flagrantly and Patently Violative of
Express Constitutional Prohibitions . . . . 26
4. Petitioners Failed to Show Irreparable
Injury that is Both Immediate and Great
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iv
TABLE OF AUTHORITIES
CASES
Addiction Specialists, Inc. v. Township of Hampton,
411 F.3d 399 (3d Cir. 2005) . . . . . . . . . . . . . . . . 18
Cheyenne River Sioux Tribe v. Davis,
822 N.W.2d 62 (S.D. 2012) . . . . . . . . . . . . 2, 10, 14
Communications Telesystems Int’l v. California
Pub. Util. Comm’n,
196 F.3d 1011 (9th Cir. 1999). . . . . . . . . . . . . . . 23
Doe v. Univ. of Kentucky,
860 F.3d 365 (6th Cir. 2017). . . . . . . . . . . . . . . . 23
Fenner v. Boykin,
271 U.S. 240 (1926). . . . . . . . . . . . . . . . . . . . . . . 27
Fernandez v. Trias Monge,
586 F.2d 848 (1st Cir. 1978) . . . . . . . . . . . . . . . . 16
Fieger v. Thomas,
74 F.3d 740 (6th Cir. 1996). . . . . . . . . . . . . . . . . 22
Gibson v. Berryhill,
411 U.S. 564 (1973). . . . . . . . . . . . . . . . . . . . . . . 14
Habich v. City of Dearborn,
331 F.3d 524 (6th Cir. 2003). . . . . . . . . . . . . . . . 17
Juidice v. Vail,
430 U.S. 327 (1977). . . . . . . . . . . . . . . . . . . . 14, 15
Lassiter v. Department of Social Services,
452 U.S. 18 (1981). . . . . . . . . . . . . . . . . . . . . . . . 26
v
Mathews v. Eldridge,
424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . . . . . . 27
Middlesex County Ethics Committee v. Garden State
Bar Association,
457 U.S. 423 (1982). . . . . . . . . . . . . . . . . . . passim
Moore v. Sims,
442 U.S. 415 (1979). . . . . . . . . . . . . . 13, 14, 19, 27
Mulholland v. Marion County Election Board,
746 F.3d 811 (7th Cir. 2014). . . . . . . . . . . . . 24, 25
Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1 (1987). . . . . . . . . . . . . . . . 13, 14, 19, 20
People in Interest of A.O.,
896 N.W.2d 652 (S.D. 2017) . . . . . . . . . . . . . . . . 15
People in Interest of E.T.,
927 N.W.2d 111 (S.D. 2019) . . . . . . . . . . . . . . . . 15
Sprint Communications, Inc. v. Jacobs,
571 U.S. 69 (2013). . . . . . . . . . . . . . . . . . . . . . . . . 8
Trainor v. Hernandez,
431 U.S. 434 (1977). . . . . . . . . . . . . . . . . . . . . . . 21
Watson v. Buck,
313 U.S. 387 (1941). . . . . . . . . . . . . . . . . 21, 22, 25
Younger v. Harris,
401 U.S. 37 (1971). . . . . . . . . . . . . . . . . . . . passim
STATUTES
Fed. R. App. P. 35(b)(1) . . . . . . . . . . . . . . . . . . . . . . 11
Fed. R. App. P. 40(a)(2) . . . . . . . . . . . . . . . . . . . 10, 11
vi
SDCL § 26-7A-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SDCL § 26-7A-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SDCL § 26-7A-14 . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
SDCL § 26-7A-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SDCL § 26-7A-15.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SDCL § 26-7A-18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SDCL § 26-7A-30 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SDCL § 26-7A-34 . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
SDCL § 26-7A-54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SDCL § 26-7A-56 . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7
SDCL § 26-7A-83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SDCL § 26-7A-86 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SDCL § 26-7A-87 . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15
SDCL § 26-7A-90 . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15
SDCL § 26-8A-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1
INTRODUCTION
The decision below is unremarkable. It holds that
the district court should have abstained pursuant to
Younger v. Harris, 401 U.S. 37 (1971) from exercising
jurisdiction over challenges to alleged policies of
Pennington County, South Dakota officials regarding
emergency temporary custody removals of endangered
Indian children. The Eighth Circuit correctly held that
Petitioners failed to meet their burden of showing they
lacked an adequate opportunity to raise their federal
claims in the state proceeding and relied on wellestablished Supreme Court precedent that when a
litigant has not even attempted to press his federal
claims in the on-going state proceeding, it is presumed
that the state proceedings will provide an adequate
remedy. The Eighth Circuit also correctly determined
that Petitioners failed to establish great and immediate
irreparable loss and that the exception for “flagrantly
and patently unconstitutional” statutes is extremely
narrow and did not apply. Petitioners’ contention that
these unexceptional conclusions warrant review lacks
merit.
First, the Eighth Circuit did not hold, as Petitioners
suggest, that the ability to bring a separate state
action, in and of itself, satisfies the adequate
opportunity factor set forth in Middlesex County Ethics
Committee v. Garden State Bar Association, 457 U.S.
423 (1982). The Eighth Circuit held Petitioners failed
to meet their burden of establishing they lacked an
adequate opportunity to press their constitutional
claims in the on-going state proceedings because they
never attempted to bring their claims and failed to
2
present unambiguous authority that they could not.
This holding was supported by the fact that South
Dakota state courts are courts of general jurisdiction,
the availability of direct and intermediate appeal, and
the presumption that state courts will provide an
adequate remedy when litigants have not attempted to
press their claims. The holding was further supported
by the additional remedy of mandamus as recognized
in Cheyenne River Sioux Tribe v. Davis, 822 N.W.2d 62
(S.D. 2012) in which the South Dakota Supreme Court
decided a petition for writ of mandamus regarding 48hour hearings and the application of the Indian Child
Welfare Act. The opportunity to pursue constitutional
claims also exists in the on-going abuse and neglect
proceedings themselves and can be raised at
subsequent hearings during the process. The Eighth
Circuit’s decision follows established Supreme Court
precedent and Petitioners simply disagree with the
application of the properly stated rule of law.
Nor is there a circuit split worthy of review on this
issue. Even if the Eighth Circuit held as Petitioners’
claim, that the ability to bring a separate state action
to litigate federal claims satisfies Middlesex, it appears
to be the only decision that has ever held so.
Petitioners cite three other circuits in an attempt to
show some deep split among the circuits, but on
Petitioners’ best day, it is a 3 v. 1 “split”, hardly
warranting review by this Court. But there actually is
no circuit split to even review because the Eighth
Circuit did not hold that an adequate opportunity to
press constitutional claims is present when the only
option is to bring a separate, stand alone state action.
3
Second, Petitioners are dissatisfied that the Eighth
Circuit did not exercise jurisdiction notwithstanding
Younger abstention pursuant to extraordinary
circumstances, such as when “a statute is flagrantly
and patently violative of express constitutional
prohibitions in every clause, sentence and paragraph,
and in whatever manner and against whomever an
effort might be made to apply it.” Younger, 401 U.S. at
53-53 (quotation omitted). The Eighth Circuit correctly
noted Petitioners did not challenge the
constitutionality of any statute at all making the
extremely narrow exception inapplicable. Petitioners
seek review because other circuits have examined
whether a “rule” or “policy” was “flagrantly and
patently unconstitutional”. But no circuit has ever
made any distinction between policies or statutes in
relation to the exception so there are no actual holdings
that conflict.
Moreover, none of the cases cited by Petitioners
actually held that the rule or policy being challenged
was “flagrantly and patently unconstitutional”
recognizing instead the exception is an exceedingly
high bar to hurdle. There is no conflict among the
circuits concerning this exception.
In fact, the
exception itself is simply one example of extraordinary
circumstances that might warrant an exercise of
federal jurisdiction despite Younger. Petitioners failed
to convince the Eighth Circuit such extraordinary
circumstances exist in their case which is not a
sufficient reason for review.
4
Petitioners seek review of a decision that is fully in
accordance with this Court’s precedent and does not
present a circuit split. The petition should be denied.
STATEMENT OF THE CASE
1. The Child Protection Process
South Dakota, like most states, has established
laws to protect children from abuse and neglect. The
statutory scheme allows for the emergency removal of
children from dangerous situations, with and without
a court order. SDCL §§ 26-7A-12, -13. The process of
protected abused and neglected children has three
phases:
emergency removal, adjudication, and
disposition. Each phase has its own hearings but all
phases are part of one proceeding. The process begins
when law enforcement takes a child into emergency
protective custody. SDCL § 26-7A-14. That can
happen without prior court approval, or law
enforcement can obtain prior approval by a circuit
court judge or authorized intake officer, who may
approve the child’s out-of-home placement and issue a
temporary custody directive. SDCL §§ 26-7A-12, -13.
If law enforcement or the South Dakota Department
of Social Services (“DSS”) determines the child is
presently in danger, and that a Present Danger Plan
cannot be implemented to manage that danger, law
enforcement removes the child from the dangerous
environment and takes temporary custody of the child.
Law enforcement then places the child in temporary
emergency custody with Child Protective Services.
When law enforcement has taken custody of a child,
custody is transferred to DSS and a circuit judge is
5
contacted for approval of an out-of-home placement.
Pursuant to SDCL § 26-7A-15, when law enforcement
takes temporary custody, notification to the parent,
guardian, or custodian is given by law enforcement.
See also, SDCL § 26-7A-15.2.
South Dakota law prohibits temporary custody
longer than 48 hours, excluding weekends and
holidays, unless a petition is filed and a court orders
longer custody “during a noticed hearing or a
telephonic hearing.” SDCL § 26-7A-14. These hearings
are commonly referred to as “48-hour hearings” and are
one component of the entire abuse and neglect process
in South Dakota. Petitioners challenged the manner in
which 48-hour hearings were conducted in Pennington
County, South Dakota. The 48-hour hearing is an
informal proceeding to determine whether temporary
custody should be continued. The hearing can be held
telephonically and is not subject to the South Dakota
Rules of Civil Procedure or Rules of Evidence. SDCL
§§ 26-7A-18, -34, -56. The state’s attorney notifies the
parents and any relevant tribe of the time and place for
the hearing.
SDCL § 26-7A-15.
DSS obtains
information pertaining to the need for emergency
temporary custody, and provides that information to
the court at the 48-hour hearing, in an Affidavit of the
Department and ICWA Affidavit.
If temporary custody is continued, the judge issues
a Temporary Custody Order. If the judge who is
presiding over the hearing deems it appropriate, he or
she may authorize DSS to return the children without
6
further court order when it determines that the risk to
the children has abated.1
The next hearing in the emergency removal phase
is an advisory hearing, which informs all interested
parties (parents/child/Indian custodian) of their rights,
including the right to court appointed counsel, to
confront and cross-examine witnesses, and to remain
silent. SDCL § 26-7A-54. The 48-hour hearing focuses
just on the safety of the child, without attempting to
affix blame. It is at the advisory hearing that the state
advises the parties of any allegations of abuse and
neglect in the petition, the applicable burden of proof,
and the respective statutory and constitutional rights
of the parties. Id. Like the 48-hour hearing, this
initial hearing is part of the emergency removal phase
and not conducted according to the South Dakota Rules
of Civil Procedure, or the Rules of Evidence. SDCL
§ 26-7A-34.
1
Petitioners allege “more than 800 Indian children were forcibly
removed from their homes for two months . . .” (Petition at p. 2)
(emphasis added). This is a misrepresentation. Of the 823 Indian
children involved in 48-hour hearings reviewed in this case, 87
children were discharged from DSS custody the day of the 48-hour
hearing; 268 children were discharged from DSS custody within 1
to 15 days after the 48-hour hearing; 114 were discharged from
DSS custody within 16 to 30 days after the 48-hour hearing; 44
children were discharged from DSS custody within 31 to 45 days
after the 48-hour hearing; 50 children were discharged from DSS
custody within 46 to 60 days after the 48-hour hearing; and 260
children remained in DSS court ordered custody for more than 60
days after the 48-hour hearing. (Pet. App. 112a-113a.)
7
Then, the second phase begins with scheduling the
adjudicatory hearing.
The adjudicatory hearing
determines by clear and convincing evidence whether
the child was an abused or neglected child as defined in
SDCL § 26-8A-2. The adjudicatory hearing is a full
evidentiary hearing which follows the South Dakota
Rules of Evidence and Civil Procedure. SDCL §§ 267A-56; 26-7A-83. After adjudication, the parties may
petition for an intermediate appeal to the South
Dakota Supreme Court. SDCL § 26-7A-87. Review
hearings are held approximately every 45 days after an
adjudication to monitor the necessity for continued
custody.
A final dispositional hearing is scheduled for not
more than twelve months after the child was taken into
custody. SDCL § 26-7A-90. At this hearing the court
determines whether to terminate parental rights and
the child’s permanent placement goal (reunification,
permanent foster care, guardianship, adoption). After
a final dispositional order is entered the parties may
appeal both the adjudication and final dispositional
orders to the South Dakota Supreme Court.
2. Procedural History
Petitioners brought suit challenging the manner in
which 48-hour hearings were conducted in Pennington
County, South Dakota alleging violations of the Indian
Child Welfare Act and the Due Process Clause of the
14th Amendment. They did not challenge the South
Dakota abuse and neglect procedure as a whole or any
of the South Dakota abuse and neglect statutes. Nor
did they challenge the procedures at 48-hour hearings,
which are prescribed by South Dakota statute. (Pet.
8
App. 168a.) Respondents moved to dismiss arguing,
inter alia, Younger abstention. The district court
declined to abstain under Younger concluding child
abuse and neglect proceedings did not fit into any of
the three categories of cases outlined by Sprint
Communications, Inc. v. Jacobs, 571 U.S. 69 (2013).
(Pet. App. 156a.) It went on to address the Middlesex
factors and determined Petitioners did not have an
adequate opportunity to press all their constitutional
claims in state court suggesting South Dakota state
courts were not equipped to hear their claims despite
being courts of general jurisdiction. (Pet. App. 160a.)
Petitioners made two partial motions for summary
judgment seeking judgment as a matter of law that the
Respondents’ policies, practices and customs regarding
the manner in which 48-hour hearings were conducted
violated the Indian Child Welfare Act and the Due
Process Clause of the 14th Amendment. The district
court granted summary judgment on both motions
concluding as a matter of law that Judge Davis was a
“policymaker” who had instituted six of his own
policies, practices and customs regarding the manner
in which 48-hour hearings were conducted which
violated the Indian Child Welfare Act and the Due
Process Clause of the 14th Amendment. (Pet. App.
126a-128a.) It further ruled that DSS officials and the
State’s Attorney acquiesced to Judge Davis’ policies,
thereby exposing themselves to liability. (Pet. App.
129a.)
Motions to reconsider were denied and the district
court entered declaratory and injunctive relief detailing
exactly how 48-hour hearings must be conducted and
9
what must be contained in the petition for temporary
custody. (Pet. App. 78a, 33a, 62a, 70a.) The district
court also retained jurisdiction for the purpose of
enforcing and modifying the declaratory judgment and
granting additional relief as may be necessary and
appropriate. (Pet. App. 77a.) The district court
ordered 48-hour hearings to be conducted as full
evidentiary hearings allowing the parents to:
(1) contest the allegations in the petition; (2) require
the State to present sworn testimony; (3) cross-examine
the State’s witnesses; and (4) subpoena and present
witnesses and other evidence. (Pet. App. 62a, 70a.)
The district court ordered that parents must be
appointed counsel and could continue the hearing for
24 hours to confer with counsel. (Pet. App. 75a-76a.)
The Eighth Circuit vacated the orders and
remanded with instructions to dismiss the claims
holding that the district court should have abstained
pursuant to Younger v. Harris, 401 U.S. 37 (1971).
(Pet. App. 1a.) The Eighth Circuit correctly held that
Petitioners failed to meet their burden of showing they
lacked an adequate opportunity to raise their federal
claims in the state proceeding and relied on wellestablished Supreme Court authority that when a
litigant has not even attempted to press his federal
claims in the on-going state proceeding, it is presumed
that the state proceedings will provide an adequate
remedy. (Pet. App. 19a-21a.) It recognized South
Dakota courts hearing abuse and neglect proceedings
are courts of general jurisdiction with the ability to
hear constitutional claims and that even the South
Dakota Supreme Court has adjudicated claims “[i]n
this very context” via a petition for writ of mandamus
10
in Cheyenne River, 822 N.W.2d 62. (Pet. App. 20a.)
The Eighth Circuit also noted the right to appellate
review, which is a factor that must be considered when
determining whether state proceedings provide an
adequate opportunity to raise constitutional claims.
(Pet. App. 20a.) Petitioners ignore the entire holding
by the Eighth Circuit and instead misread the decision
suggesting it concluded simply that the ability to bring
a separate mandamus action, with nothing more,
satisfies the adequate opportunity prong.
The Eighth Circuit also correctly rejected
Petitioners invocation of the “flagrantly and patently
unconstitutional” exception to Younger abstention that
applies only in extraordinary circumstances and
correctly concluded that Petitioners failed to establish
great and immediate irreparable loss. The Eighth
Circuit followed Supreme Court precedent that even
though child custody proceedings involve interests of
great importance, that does not mean abstention is
inappropriate and such proceedings are a traditional
area of state concern. (Pet. App. 21a-22a.)
Petitioners petitioned for rehearing and rehearing
en banc but failed to identify either issue argued in
their Petition for Writ of Certiorari as required by Fed.
R. App. P. 40(a)(2) and 35(b)(1). Instead, they merely
argued why they did not think Younger abstention
applied. The petitions were denied.
11
REASONS FOR DENYING THE PETITION
I.
PETITIONERS FAILED TO PRESERVE
THE ISSUES
The petition should be denied because Petitioners
failed to raise their questions presented to the lower
courts. Petitioners complain the Eighth Circuit Court
of Appeals’ panel decision is at odds with other circuits
because (1) it identified the ability to file a separate
mandamus action in state court as an adequate
opportunity to raise constitutional issues; and (2) noted
Petitioners were not challenging a statute as “flagrantly
and patently violative of express constitutional
prohibitions” to invoke the “patently unconstitutional”
extraordinary circumstances exception to Younger
abstention. However, Petitioners never provided the
Eighth Circuit (or the district court) the opportunity to
address their concerns or alleged circuit split.
Petitioners never argued to the district court or the
Eighth Circuit that a petition for writ of mandamus
could not meet the “adequate opportunity” factor of
Middlesex because it was an action separate from the
on-going abuse and neglect proceedings. Petitioners
did petition for rehearing and rehearing en banc but
failed to make these arguments despite Fed. R. App. P.
40(a)(2)’s requirement that the petition for rehearing
“must state with particularity each point of law or fact
that the petitioner believes the court has overlooked or
misapprehended”. Likewise, Fed. R. App. P. 35(b)(1)
provides:
12
The petition must begin with a statement that
either:
(A) the panel decision conflicts with a
decision of the United States Supreme Court or
of the court to which the petition is addressed
(with citation to the conflicting case or cases)
and consideration by the full court is therefore
necessary to secure and maintain uniformity of
the court’s decisions; or
(B) the proceeding involves one or more
questions of exceptional importance, each of
which must be concisely stated; for example, a
petition may assert that a proceeding presents a
question of exceptional importance if it involves
an issue on which the panel decision conflicts
with the authoritative decisions of other United
States Courts of Appeals that have addressed
the issue.
Instead of alerting the Eighth Circuit that, according to
Petitioners, the panel decision overlooked or
misapprehended a point or law or that it conflicted
with decisions of the United States Supreme Court or
other courts of appeal, Petitioners simply re-argued
why they did not agree Younger abstention was
warranted. Petitioners failed to raise or preserve the
issues. Such a procedural defect justifies denial of the
petition for writ of certiorari.
13
II.
THE EIGHTH CIRCUIT’S DECISION IS
C ONS IS T E N T W I T H “ A D E QUA TE
OPPORTUNITY” PRECEDENT
1. The Eighth Circuit Did Not Hold The
Possibility of Filing a Separate
Mandamus Action Was Sufficient In and
Of Itself to Provide an Adequate
Opportunity
Petitioners argue the Eighth Circuit concluded that
the ability to bring an independent state mandamus
action constitutes an adequate opportunity to press their
claims in state court pursuant to the third factor set
forth in Middlesex County Ethics Committee v. Garden
State Bar Association, 457 U.S. 423 (1982). This is not
what the Eighth Circuit held.
In response to
Petitioners’ complaint that state court proceedings do
not afford an adequate opportunity to raise broad
constitutional claims, the Eighth Circuit held
Petitioners “have not established that South Dakota
courts are unwilling or unable to adjudicate their federal
claims.” (Pet. App. 19a.) The Eighth Circuit followed
this Court’s directive in Moore v. Sims, 442 U.S. 415, 430
(1979) that “[s]tate courts are competent to adjudicate
federal constitutional claims” and that “‘when a litigant
has not attempted to present his federal claims in
related state-court proceedings, a federal court should
assume that state procedures will afford an adequate
remedy, in the absence of unambiguous authority to the
contrary.’” (Pet. App. 19a-20a) (quoting Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 15 (1987)).
To demonstrate that there is no procedural bar to
review within the abuse and neglect proceedings, and
14
that South Dakota courts are willing to adjudicate
Petitioners’ federal claims, the Eighth Circuit
recognized that the types of claims raised by
Petitioners were examined and decided by the South
Dakota Supreme Court through a petition for writ of
mandamus in Cheyenne River, 822 N.W.2d 62. (Pet.
App. 20a.) This directly contradicts the district court’s
ruling on the “adequate opportunity” Middlesex factor
that “a state court challenge would preclude plaintiffs
from raising all the claims in their federal complaint.”
(Pet. App. 160a) (emphasis added).
The Eighth Circuit next observed that South
Dakota circuit courts are courts of general jurisdiction
so Petitioners were not prevented from raising their
constitutional claims. (Pet. App. 20a.) “[T]he burden
on this point rests on the federal plaintiff to show ‘that
state procedural law barred presentation of [its]
claim.’” Pennzoil, 481 U.S. at 14 (quoting Moore, 442
U.S. at 432). All that is required is the opportunity to
present federal claims in the state proceedings. “No
more is required to invoke Younger abstention.”
Juidice v. Vail, 430 U.S. 327, 337 (1977). “Appellees
need be accorded only an opportunity to fairly pursue
their constitutional claims in the ongoing state
proceedings, Gibson v. Berryhill, 411 U.S. 564, 577
(1973), and their failure to avail themselves of such
opportunities does not mean that the state procedures
were inadequate.” Id.
The Eighth Circuit also pointed out that “South
Dakota law provides a right to appeal at the conclusion
of the abuse and neglect proceedings, or after certain
intermediate orders”. (Pet. App. 20a) (citing SDCL
15
§§ 26-7A-30, -86, -87, and 90). See e.g. People in
Interest of A.O., 896 N.W.2d 652 (S.D. 2017) (final
appeal of trial court procedures for determining
timeliness of mother’s request to transfer abuse and
neglect proceeding to tribal jurisdiction); People in
Interest of E.T., 927 N.W.2d 111 (S.D. 2019)
(intermediate appeal of procedures for ruling on
transfer in abuse and neglect proceeding.) The
consideration of these factors is consistent with United
States Supreme Court Younger abstention
jurisprudence. See Juidice v. Vail, 430 U.S. 327, 330
(1977) (Younger applies because plaintiffs’ claims
“could have been raised” in County Court, and “[h]ad
the County Court ruled against these contentions,
appellees could have appealed to the Appellate Division
of the Supreme Court.”); Middlesex, 457 U.S.at 436 (the
right to appellate review must be considered in
determining whether state proceedings provide an
adequate opportunity for plaintiff to raise
constitutional claims).
Finally, the Eighth Circuit concluded that “[t]he best
evidence in South Dakota is that state procedures
provide an adequate remedy for alleged violations of
federal law at 48-hour custody hearings, and the
plaintiffs have not presented unambiguous authority to
the contrary.” (Pet. App. 21a) (emphasis added). The
Eighth Circuit’s entire holding is that when a litigant
fails to even press constitutional claims in a state court
of general jurisdiction that provides the right to
appellate review, the court will presume state
procedures will afford an adequate remedy, unless the
litigant provides unambiguous authority to the
contrary. This is in addition to the ability to seek
16
mandamus relief with the highest court of the state.
The Eighth Circuit’s decision falls squarely within
Supreme Court precedent and is consistent with the
First, Third and Sixth Circuit cases cited by Petitioners.
2. There is No Circuit Split
A. First Circuit
In Fernandez v. Trias Monge, 586 F.2d 848 (1st Cir.
1978), a juvenile challenged the juvenile court
procedure under Puerto Rico law that detained
juveniles without a probable cause hearing. The First
Circuit concluded the juvenile did not have an
opportunity to raise his constitutional claim in the
ordinary course of the criminal proceedings and that
just because he could have sought an injunction “in a
completely separate Commonwealth court proceeding
outside the four corners of the pending state
prosecution, is of no consequence”. Id. at 853-54. It
reiterated whether the state court proceeding provides
an adequate opportunity to raise constitutional issues
“must necessarily be limited to remedies, trial or
appellate, that are provided in the ordinary course of
the pending state proceedings.” Id. at 853. This is
precisely the law applied by the Eighth Circuit when it
recognized the right to appellate review and presumed,
in the absence of authority presented by Petitioners,
that state abuse and neglect proceedings in South
Dakota provide an adequate remedy for the alleged
constitutional claims. Fernandez may have came to a
different conclusion than the Eighth Circuit, but it
applied the same law. That does not constitute a split
between the First and Eighth Circuits.
17
B. Sixth Circuit
In Habich v. City of Dearborn, 331 F.3d 524 (6th
Cir. 2003), the Sixth Circuit concluded the plaintiff did
not have an adequate opportunity to raise her federal
claims in a pending appeal to the county court because
she had not even filed a complaint in that court, only
an appeal from the Building Board of Appeals, and
would have to initiate a separate action and move to
consolidate it with the pending appeal. Id. at 531, n. 3.
The Sixth Circuit concluded that whether a litigant has
an adequate opportunity to press federal claims in
state court “does not turn on whether the plaintiff
could file a new complaint in state court” and that it
was “aware of no case in which a federal plaintiff is
deemed to have the ‘opportunity’ to have his or her
federal claim heard in a state proceeding solely because
the plaintiff could have amended an existing complaint
or filed a new complaint in state court.” Id. at 531
(emphasis added).
The Eighth Circuit’s holding is in accord with the
Sixth Circuit because it did not hold Petitioners had an
adequate opportunity to have their constitutional
claims heard solely on the ability to bring a separate
mandamus action. Instead, it concluded the “adequate
opportunity” Middlesex factor was met because
Petitioners had not tried to press their claims and had
not provided unambiguous authority that they could
not or that state court relief would be inadequate.
18
C. Third Circuit
Finally, in Addiction Specialists, Inc. v. Township of
Hampton, 411 F.3d 399 (3d Cir. 2005), Pennsylvania
law was unclear whether damages could be awarded
for the application of an invalid land use ordinance in
the action challenging the ordinance.
Rather, there appears to be a two-step procedure
for seeking damages arising from the
unfavorable application of a zoning ordinance in
Pennsylvania. The first step is to challenge the
ordinance through a land use appeal, and if that
challenge is successful, the party may then file
a separate mandamus action to recover damages
arising from the application of the now-invalid
ordinance.
Addiction Specialists, 411 F.3d at 412. The Third
Circuit exercised jurisdiction determining “Younger
abstention is only appropriate where the precise claims
raised in federal court are available in the ongoing
state proceedings. Where the availability of a claim in
state court is questionable, our abstention
jurisprudence weighs in favor of retaining jurisdiction.”
Id. at 413 (emphasis in original). There is no confusion
as to whether Petitioners’ federal claims could be
raised in the abuse and neglect court proceedings. The
presumption is that they can and Petitioners have not
presented evidence to the contrary. Petitioners simply
failed to meet their burden of showing they did not
have adequate opportunity. This is not at odds with
the Third Circuit’s holding in Addiction Specialists.
19
There is no circuit split on this issue and the
petition should be denied.
3. The Eighth Circuit Set Forth Additional
Bases to Support Younger Abstention
This case does not warrant review because the
Eighth Circuit provided additional legal bases—not
challenged by Petitioners—to support Younger
abstention irrespective of Petitioners’ question
presented. The Eighth Circuit ruled that South Dakota
procedures provide three, independent ways of seeking
review of the trial court’s decision—one of which was a
writ of mandamus.
Even if this Court agreed
mandamus relief in a separate action is not an
adequate opportunity to press the constitutional claims
in the state court proceedings, it would have no affect
on the decision below because the opportunity would
still exist through the on-going abuse and neglect
proceedings and intermediate or final appeal.
The Eighth Circuit relied on well-established
Supreme Court precedent that places the burden
squarely on Petitioners to show they did not have the
opportunity to present their constitutional claims in
the state proceedings. Moore, 442 U.S. at 425;
Pennzoil, 481 U.S. at 15. The Eighth Circuit concluded
that Petitioners did not establish this.
While
Petitioners may disagree with this conclusion and
believe they had met this burden, the decision does not
conflict with Supreme Court or Courts of Appeal
precedent. There is no circuit split or conflict with the
long-standing Supreme Court precedent that when a
plaintiff has not attempted to present his federal
claims in the state court proceedings, it is presumed
20
that he can, unless there is unambiguous authority to
the contrary. Pennzoil, 481 U.S. at 15. Petitioners
may believe the facts of the case lend themselves to a
different conclusion when applied to this established
legal principal, but that is not a reason to grant the
petition.
III.
THE EIGHTH CIRCUIT MADE NO
MEANINGFUL DISTINCTION BETWEEN
POLICIES AND STATUTES WHEN
REJECTING THE “FLAGRANTLY AND
P A TE NTLY UNC ONS TITUTIONAL”
EXCEPTION
Petitioners also disagree with the Eighth Circuit’s
conclusion that they failed to meet the “flagrantly and
patently unconstitutional” narrow exception to Younger
abstention. Petitioners claim that the Eighth Circuit’s
decision creates a conflict among the circuits
warranting review by this court. Petitioners argue that
the Eighth Circuit decision is contrary to the holdings
of other circuits because it rejects the application of the
“flagrant and patently violative” exception to a “policy,”
rather than “statutes.”
First, Petitioners overstate the holding of the
Eighth Circuit. There is nothing in the Eighth Circuit
decision that suggests it found the “statute v. policy”
distinction meaningful. The Eighth Circuit did NOT
rule that the alleged policies were flagrantly and
patently violative, but since that standard applied only
to statutes, and not to mere policies, the exception did
not apply.
21
Second, even if the exception does apply to more
than just statutes, the challenged action here does not
fall within it. This Court has said that an exception to
Younger abstention “might exist where a state statute
is ‘flagrantly and patently violative of express
constitutional prohibitions in every clause, sentence
and paragraph, and in whatever manner and against
whomever an effort might be made to apply it.’”
Trainor v. Hernandez, 431 U.S. 434, 446-47 (1977)
(quoting Younger 401 U.S. at 53-54, quoting Watson v.
Buck, 313 U.S. 387, 402 (1941)). There is no “clause,
sentence [or] paragraph” to even analyze.
The
challenged action is alleged policies by Judge Davis as
to the manner of how 48-hour hearings are conducted
and other officials’ alleged policies of acquiescing to
Judge Davis. To make a determination that these
unwritten policies are unconstitutional requires a
federal court to undergo an analysis to identify a
policymaker and policies or customs, which is precisely
what abstention prohibits the court from doing.
Third, Petitioners cite to cases that do not provide
a conflict with the Eighth Circuit decision.
1. There is No Indication that the Sixth
and Ninth Circuits Considered Whether
There was a Distinction Between
Policies and Statutes
A. Sixth Circuit
The Sixth Circuit affirmed the district court’s
decision to abstain. A student brought suit in a federal
district court to enjoin a university disciplinary
proceeding on the grounds that the disciplinary
22
proceeding violated his due process rights. The Sixth
Circuit affirmed, and rejected the student’s argument
that the proceedings flagrantly and patently violated
his rights.
Even if abstention is warranted, however, a
plaintiff still has the opportunity to show that
an exception to Younger applies.
These
exceptions include bad faith, harassment, or
flagrant unconstitutionality of the statute or
rule at issue. Fieger [v. Thomas], 74 F.3d [740]
at 750 [(6th Cir. 1996)]. For the flagrant
unconstitutionality exception, “a statute might
be flagrantly and patently violative of express
constitutional prohibitions in every clause,
sentence and paragraph, and in whatever
manner and against whomever an effort might
be made to apply it.” Younger, 401 U.S. at 53-54,
91 S.Ct. 746 (quoting Watson v. Buck, 313 U.S.
387, 402, 61 S.Ct. 962, 85 L.Ed. 1416 (1941)).
That is not the case here. Showing such flagrant
unconstitutionality is a high bar, and the
University’s policy does not reach that level.
Doe’s argument that in practice the policy was
applied in an unconstitutional manner fails as
there must be facial unconstitutionality as well
as in application. Furthermore, although the
UAB did find that Doe was denied his due
process rights, that was because Defendant
Simpson was not following the policy, not
because the policy itself was flagrantly
unconstitutional. As such, Doe cannot meet this
exception.
23
Doe v. Univ. of Kentucky, 860 F.3d 365, 371 (6th Cir.
2017). So, the Sixth Circuit found it a loser whether it
applied to statutes, policies, or anything else.
B. Ninth Circuit
The same is true in the Ninth Circuit. The Ninth
Circuit simply held that the results of the proceedings
were not “flagrantly and patently violative.” There is
no indication that the Ninth Circuit considered or ruled
upon a distinction between statutes and policies.
The CPUC’s actions in fining and temporarily
suspending CTS from providing long-distance
service serve the very purpose specified in
§ 253(b) of the Act and are not “flagrantly and
patently” violative of the Constitution. The
CPUC has the power to implement regulations
that are “necessary” to “protect the public”
against slamming, which reasonably may
include fines or suspensions needed to prevent
such unlawful activity. Under CTS’ analysis of
“necessary,” a freeze on slamming would be the
only action permitted. CTS ignores the reality
that fines or suspensions may be required to
prevent and deter illegal behavior. More
crucially, as the CPUC points out, the
suspension handed down against CTS need not
be necessary to prevent CTS’ slamming; rather,
it need only be necessary to serve the interests
recognized in § 253(b) of protecting the public
welfare.
Communications Telesystems Int’l v. California Pub.
Util. Comm’n, 196 F.3d 1011, 1017 (9th Cir. 1999).
24
Petitioners argue Supreme Court review is
warranted because the Eighth Circuit decision creates
a conflict. There is no indication that any of the
Circuits—the Eighth, Sixth, or Ninth—actually
addressed the issue that Petitioners say divide them.
2. Petitioners Misrepresent the Seventh
Circuit’s holding; It Deals Only with a
Statute
Petitioners cite Mulholland v. Marion County
Election Board, 746 F.3d 811 (7th Cir. 2014) for the
proposition that the Seventh Circuit has held that the
“flagrantly and patently violative” exception applies
“even where the challenged procedures were the
product of a policy” rather than a statue. It did no such
thing. Mulholland is a statute case. The case dealt
with an election board’s attempt to enforce a statute
that had already been ruled unconstitutional.
If all this were not enough to defeat Younger
abstention, the second independent reason for
not abstaining is that the Election Board is
attempting to enforce a statute that has already
been held unconstitutional in a final judgment
against the Board itself. Younger therefore
would not apply even if the planned Board
meeting were the sort of adjudicative proceeding
that would otherwise call for abstention.
Mulholland, 746 F.3d at 818. The Seventh Circuit held
that attempting to enforce a statute that was already
found unconstitutional by a federal court “represents
the sort of ‘other unusual circumstance that would call
25
for equitable relief.’” Mulholland, 746 F.3d at 819
(quoting Younger, 401 U.S. at 54).
The Petition has the following explanation of
Mulholland, “(holding that the reference to ‘statute’ ‘is
not the test. Younger quoted this language as a
sufficient condition for rejecting abstention, not a
necessary condition.’)” That simply misrepresents what
the Seventh Circuit said. The Seventh Circuit ruled
that the test did not require that every part of a statute
be flagrantly and patently unconstitutional.
The Election Board contends that, although the
law was found unconstitutional in Ogden,
Younger abstention is appropriate because the
law is not “flagrantly and patently violative of
express constitutional prohibitions in every
clause, sentence and paragraph, and in
whatever manner and against whomever an
effort might be made to apply it.” See Younger,
401 U.S. at 53–54, 91 S.Ct. 746, quoting Watson
v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 85
L.Ed. 1416 (1941). That is not the test. Younger
quoted this language as a sufficient condition for
rejecting abstention, not a necessary condition,
and the Court was referring to a situation in
which a law’s unconstitutionality seems obvious
but has not yet been decided by a court.
Mulholland, 746 F.3d at 818–19. Mulholland does not
support Petitioners’ argument.
26
3. Pennington County 48-Hour Hearings
are not Flagrantly and Patently
Violative of Express Constitutional
Prohibitions
Even if this Court agreed that the “flagrantly and
patently unconstitutional” exception applies equally to
unwritten policies, it should deny review because the
manner in which 48-hour hearings were conducted was
not unconstitutional. Petitioners urge that parents are
entitled to court-appointed counsel, to present evidence,
to confront witnesses, to a clear statement of the
purpose of the proceedings, its possible consequences,
and the legal and factual basis for bringing it.
Respondents have never disputed that. Indeed, all of
those are provided to parents during the abuse and
neglect proceedings, and no one disputes that.
The question presented by this lawsuit is whether
all of those rights are constitutionally required within
48 hours of an emergency removal. No court –
anywhere in the country – has ever so held. While
Petitioners point to cases holding that each of those
rights is required, at some point in the proceedings,
none has ever held that they are constitutionally
required no more than 48 hours after an emergency
removal. Petitioners have never even referred to
another single state that provides such a prompt
hearing in emergency removal cases, much less sets out
the requirements of that hearing.
What process is due is a flexible standard related to
“time, place, and circumstances.”
Lassiter v.
Department of Social Services, 452 U.S. 18, 24 (1981).
When the state deprives an individual of a liberty
27
interest, that individual must have “the opportunity to
be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319, 333,
(1976). Given the flexible, and context-specific, nature
of due process, it cannot be said that not providing a
full-blown adversarial evidentiary hearing within
48 hours of an emergency child removal is “flagrantly
and patently violative of express constitutional
prohibitions in every clause, sentence and paragraph,
and in whatever manner and against whomever an
effort might be made to apply it.” Younger, 401 U.S. at
53-54.
4. Petitioners Failed to Show Irreparable
Injury that is Both Immediate and Great
The Eighth Circuit correctly followed Moore when it
concluded that Petitioners “have not established that
the alleged procedural deficiencies at the 48-hour
hearings threaten ‘irreparable loss [that] is both great
and immediate.’” (Pet. App. 16a) (quoting Younger, 401
U.S. at 45 (quoting Fenner v. Boykin, 271 U.S. 240, 243
(1926))). Petitioners disagree with this conclusion, but
provide no compelling reason as to why it merits
review. Instead, they just insist that emergency
removals of endangered children constitutes great and
immediate irreparable loss despite this Court’s
direction in Moore that “[f]amily relations are a
traditional area of state concern” and that a district
court “inverts traditional abstention logic when it
states that because the interests involved are
important, abstention is inappropriate.” 442 U.S. 43435.
28
CONCLUSION
The Eighth Circuit decision below does not conflict
with decisions of this Court or other circuits and did
not decide an important question of federal law that
has not already been settled by this Court. The Eighth
Circuit held that when a federal court plaintiff fails to
even attempt to present their claims in a state court of
general jurisdiction that provides the right to appellate
review, the district court will presume the state
procedures will afford an adequate remedy, unless the
federal plaintiff provides unambiguous authority to the
contrary. Petitioners are simply dissatisfied with the
application of the facts to this well-settled law. The
Petition for Writ of Certiorari should be denied.
Respectfully Submitted,
J. Crisman Palmer
Counsel of Record
GUNDERSON, PALMER, NELSON
& ASHMORE, LLP
506 Sixth Street
P.O. Box 8045
Rapid City, SD 57709
Telephone: (605) 342-1078
Telefax: (605) 342-0480
E-mail: cpalmer@gpna.com
Attorneys for Respondent Mark Vargo
Dated: June 27, 2019
29
This Response Brief is made jointly on behalf of all
respondents including:
Honorable Craig Pfeifle,
represented by
Jeffrey Hurd
BANGS, McCULLEN BUTLER
FOYE & SIMMONS
333 West Boulevard, Suite 400
P.O. Box 2670
Rapid City, SD 57701
jhurd@bangsmccullen.com
(605) 343-1040
And,
Lisa Fleming and M. Michael DeSautel,
represented by
Robert L. Morris II
MORRIS LAW FIRM PROF., LLC
704 7th Street, Suite 202
P.O. Box 370
Belle Fourche, SD 57701
bobmorris@westriverlaw.com
(605) 723-7777
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.