Reply Brief — Oglala Sioux Tribe, et al., Petitioners v. Lisa Fleming, in Her Official Capacity, et al.

d

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 A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, DC 20005

Courtney Bowie

AMERICAN CIVIL LIBERTIES

UNION OF SOUTH DAKOTA

P.O. Box 1170

Sioux Falls, SD 57101

Dana L. Hanna

HANNA LAW OFFICE, P.C.

P.O. Box 3080

Rapid City, SD 57709

Stephen L. Pevar

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

765 Asylum Avenue

Hartford, CT 06105

(860) 570-9830

spevar@aclu.org

Nusrat J. Choudhury

R. Orion Danjuma

Mark J. Carter

Jennesa Calvo-Friedman

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTRODUCTION ....................................................... 1

I.

PETITIONERS HAD NO ADEQUATE

OPPORTUNITY TO RAISE THEIR

CONSTITUTIONAL CLAIMS IN

THE ONGOING STATE COURT

PROCEEDINGS. .............................................. 3

II.

GERSTEIN V. PUGH DEMONSTRATES

THE PROPRIETY AND NECESSITY OF

FEDERAL JUDICIAL INTERVENTION

HERE. ............................................................... 7

III.

CERTIORARI IS ALSO WARRANTED

BECAUSE THE COURT OF APPEALS

ERRED IN LIMITING THE “FLAGRANTLY

AND PATENTLY UNCONSTITUTIONAL”

EXCEPTION TO CASES CHALLENGING

STATE STATUTES, NOT STATE POLICIES,

IN CONFLICT WITH THREE OTHER

CIRCUITS. ....................................................... 8

CONCLUSION.......................................................... 11

i

TABLE OF AUTHORITIES

CASES

Addiction Specialists, Inc. v. Twp. of Hampton,

411 F.3d 399 (3d Cir. 2005) ..................................... 4

Armstrong v. Manzo, 380 U.S. 545 (1965) ............... 10

Boddie v. Connecticut, 401 U.S. 371 (1971) ............. 10

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ................................................. 3

Cleveland Bd. of Ed. v. Loudermill,

470 U.S. 532 (1985) ............................................... 10

Fernandez v. Trias Monge,

586 F.2d 848 (1st Cir. 1978) .................................... 3

Gerstein v. Pugh, 420 U.S. 103 (1975) .............. passim

Habich v. City of Dearborn,

331 F.3d 524 (6th Cir. 2003) ................................... 4

Kugler v. Helfant, 421 U.S. 117 (1975) ...................... 9

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ................................................. 3

Mulholland v. Marion County Election Board, 746

F.3d 811 (7th Cir. 2014) .......................................... 9

Oglala Sioux Tribe v. Fleming,

904 F.3d 603 (8th Cir. 2018) ................................... 3

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ...... 6, 7

Peralta v. Heights Medical Center, Inc.,

485 U.S. 80 (1988) ................................................. 10

Seneca-Cayuga Tribe of Oklahoma v. State of Okl. ex

rel. Thompson, 874 F.2d 709 (10th Cir. 1989) ........ 4

Troxel v. Granville, 530 U.S. 57 (2000) .................... 11

ii

Ute Indian Tribe of the Uintah & Ouray Reservation

v. Utah, 790 F.3d 1000 (10th Cir. 2015) ................. 4

Younger v. Harris, 401 U.S. 37 (1971) .............. passim

STATUTES

25 U.S.C. 1911(b) ........................................................ 6

S.D. Codified Laws § 26-7A-14–21 ............................. 6

S.D. Codified Laws § 26-7A-87 ................................... 5

S.D. Codified Laws § 26-7A-90 ................................... 6

S.D. Codified Laws § 26-8A-22 ................................... 6

iii

INTRODUCTION

Respondents forcibly removed children from

their families pursuant to a policy that afforded a

hearing within 48 hours of removal, but provided

parents with no notice, no opportunity to be heard,

no right to confront the welfare worker whose

affidavit formed the basis of the state’s case, and no

decision based on evidence introduced in open court.

These hearings, which are the only opportunity

parents have to challenge the removal of their

children for up to sixty days, generally lasted less

than five minutes. No parent ever prevailed. Yet the

court below maintained that the federal court could

not intercede to assure parents these basic

protections because it speculated that the parents

could in theory have filed a separate state

mandamus action to challenge the procedures. That

decision is in direct conflict with decisions of three

other courts of appeals, and with this Court’s

decision in Gerstein v. Pugh, 420 U.S. 103 (1975), a

case Respondents do not even mention, much less try

to distinguish.

Respondents’ principal response to the circuit

split Petitioners identified is to point to two other

avenues to pursue claims in state court—an appeal

from a final disposition order based on a

determination of abuse and neglect, and an

interlocutory appeal from an “intermediate order.”

But the first option comes far too late in the day,

when the parents have already lost custody of their

children for extended periods, and when any issue

concerning the procedures provided at the 48-hour

hearing will be moot. And the second option is by its

terms not available to appeal Temporary Custody

Orders issued at the 48-hour hearings. Accordingly,

1

the only state court option Plaintiffs even

theoretically had was to file a separate state

mandamus proceeding. But as this Court and three

circuits have held, Younger v. Harris, 401 U.S. 37

(1971) requires federal court deference only to

ongoing state proceedings, and does not require

individuals to file new state proceedings in lieu of

seeking redress in federal court to vindicate federal

rights.

Respondents effectively concede that the

challenged policy was flagrantly unconstitutional.

Their only response is to contend that parents are

afforded rights at the subsequent abuse and neglect

adjudication. But just as the provision of a fair

criminal trial did nothing to remedy the objection in

Gerstein to the absence of a prompt probable cause

hearing upon arrest, so, too, providing process at a

final determination of abuse and neglect and

disposition of custody, long after the children have

been separated from their parents, does nothing to

remedy the absence of process at the point of initial

removal. The 48-hour hearing is the point at which

there is a deprivation triggering due process—and

one that will often last for sixty days, as it did in

hundreds of cases in the four years examined here.1

1 Respondents correctly point out that not all of the 823 Indian

children involved in 48-hour hearings were removed for the full

two months. Opp. 6 n.1. The record shows, in fact, that 260 of

those children remained in state custody the full 60 days (31%)

and 468 of those children (56%) remained in state custody at

least 15 days. Id. But the critical point for constitutional

purposes is that all of the children were removed without

rudimentary due process. While Respondents dispute the

number, they do not dispute the omnipresent procedural

infirmities.

2

I.

PETITIONERS HAD NO ADEQUATE

OPPORTUNITY TO RAISE THEIR

CONSTITUTIONAL CLAIMS IN THE

ONGOING STATE COURT

PROCEEDINGS.

The Eighth Circuit held that “[t]he availability

of mandamus relief is sufficient to show that state

proceedings provide an adequate opportunity to

litigate federal claims.” Pet. App. 20a (emphasis

added). For the reasons stated in the Petition, this

holding conflicts with the holdings of the First,

Third, and Sixth Circuits. Pet. 16-19.2

As noted in our Petition, the First, Third, and

Sixth Circuits have all held that the availability of a

separate state lawsuit does not require Younger

abstention where there is not an adequate

opportunity to raise federal claims in the ongoing

state proceedings. See Fernandez v. Trias Monge,

586 F.2d 848, 851-53 (1st Cir. 1978) (explaining that

Respondents argue, without citation to any authority, that

Petitioners waived their objection to Younger abstention by not

raising it in their petition for rehearing. But a party can seek

certiorari without seeking rehearing at all, so there is no basis

for such a rule. In any event, Petitioners did raise in their

petition for rehearing the issues on which they now seek

certiorari. See Br. of Plaintiffs-Appellees at 2, Oglala Sioux

Tribe v. Fleming, 904 F.3d 603 (8th Cir. 2018) (No. 17-1135) (“I.

Plaintiffs Did Not Have an Adequate Opportunity”); id. at 12

(“III. Defendants’ Policies were Flagrantly and Patently

Unconstitutional”). Moreover, it is well established that parties

do not waive arguments, provided that the legal claim was

raised below. See Citizens United v. Fed. Election Comm’n, 558

U.S. 310, 331 (2010) (allowing party to make a different

argument in the Supreme Court than in the courts below

because the argument was in “support [of] what has been [a]

consistent claim[.]” (quoting Lebron v. Nat’l R.R. Passenger

Corp., 513 U.S. 374, 379 (1995)).

2

3

the plaintiff had no adequate opportunity to raise

federal claims in the ongoing proceeding, and the fact

that plaintiff could have filed a separate state

injunctive action “is of no consequence”); Addiction

Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399,

412-13 (3d Cir. 2005) (explaining that where the

“availability of a claim in state court is questionable”

there is not an adequate opportunity, and the fact

that “the party may then file a separate mandamus

action” to raise that claim is not sufficient); Habich v.

City of Dearborn, 331 F.3d 524, 531-32 (6th Cir.

2003) (holding that where the defendant conceded

the plaintiff’s “due process and equal protection

claims would not have arisen in the state proceedings

as those proceedings existed,” the fact that “plaintiff

could file a new complaint in state court that alleged

her federal claims” did “not provide the ‘opportunity’

for review that Younger requires”).3

Respondents seek to avoid this conflict by

arguing that the Eighth Circuit also cited two other

possible avenues for Petitioners to raise their claims:

(1) an appeal from a final order of disposition of the

child; and (2) an interlocutory appeal from an

“intermediate order.” Opp. 14-15. But neither of

these opportunities could even possibly redress

Petitioners’ injuries.

3 See also Ute Indian Tribe of the Uintah & Ouray Reservation

v. Utah, 790 F.3d 1000, 1008 (10th Cir. 2015) (Gorsuch, J.)

(“[F]or Younger abstention to apply, there must be an ongoing

state judicial . . . proceeding, the presence of an important state

interest, and an adequate opportunity to raise federal claims in

the state proceedings.” (emphasis added) (quoting SenecaCayuga Tribe of Oklahoma v. State of Okl. ex rel. Thompson,

874 F.2d 709, 711 (10th Cir. 1989)).

4

An appeal from final disposition of an abuse

and neglect proceeding affords no opportunity to

redress deficiencies in the 48-hour hearing. At that

stage, the appeal concerns the determination of

abuse and neglect and the custody disposition. The

appeal can provide no relief to the parents who lost

custody of their child at the 48-hour hearing, as the

Temporary Custody Order is no longer effective, and

the family separation without due process has

already occurred. Any procedural issues relating to

the 48-hour proceeding will be moot, and the South

Dakota Supreme Court can provide no redress for the

irreparable injury already suffered.

Nor is an intermediate appeal available.

Respondents cite no authority for their assertion that

the “Temporary Custody Order” issued in a 48-hour

hearing is subject to interlocutory appeal, and there

is none. The only statute Respondents cite

authorizing an appeal of an “intermediate order” is

S.D. Codified Laws § 26-7A-87, Opp. 14-15, and that

provision has nothing to do with 48-hour hearings.

It states only that “[t]he order of adjudication is an

intermediate order and is subject to intermediate

appeal with the permission of the court.” (emphasis

added). But a Temporary Custody Order issued at a

48-hour hearing is not an order of adjudication.

Rather, as Respondents concede, Opp. 7, the “order of

adjudication” in an abuse and neglect proceeding

follows the “adjudicatory hearing,” which takes place

after the advisory hearing, which in turn is held

approximately 60 days after the 48-hour hearing. See

Pet. 6-8.4

The statutes governing the 48-hour

4 The order of adjudication is non-final because it is followed by

a final decree of disposition. “After adjudication, the court

shall conduct dispositional hearings . . . . Following the

5

hearing, by contrast, do not identify the “Temporary

Custody Order” as an “intermediate order” nor do

they authorize an “intermediate appeal.” S.D.

Codified Laws § 26-7A-14 through -21. Respondents

have cited not a single case in which the South

Dakota Supreme Court has granted an intermediate

appeal from a 48-hour hearing, and Petitioners are

aware of none. This option is by the statute’s terms

limited to “orders of adjudication” and affords no

opportunity to challenge the procedures in a 48-hour

hearing.

The two South Dakota Supreme Court cases

cited by Respondents are inapposite. See Opp. 15.

Both are appeals from decisions regarding motions to

transfer a case to tribal authority. Under the Indian

Child Welfare Act, a tribe has a right at any time

during the state proceeding to request that a custody

case be transferred to the tribal court. See 25 U.S.C.

1911(b). A court’s decision on a motion to transfer to

tribal authority is final as to that issue. In contrast,

the 48-hour hearing order, which ceases to have legal

effect as of the next hearing, is not a final or

intermediate order on any issue.

This is not a case in which “a litigant has not

attempted to present his federal claims in state-court

proceedings.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

15 (1987). Parents repeatedly did object to the

absence of process during the 48-hour hearings and

dispositional hearing, the court shall issue an interim decree of

disposition. . . . On completion of the final dispositional hearing

the court shall issue findings of fact, conclusions of law, and a

final decree of disposition. The decree shall be the final order of

the court for the purpose of an appeal.” S.D. Codified Laws § 267A-90; see S.D. Codified Laws § 26-8A-22; see also Pet. 8; Opp.

7.

6

in no case did the court do anything to remedy it. See

Pet. App. 114a-115a. Even after the federal district

court ruled on summary judgment that the 48-hour

hearing procedures were constitutionally infirm, the

state court refused to provide all of the procedures

the district court held were minimally necessary. See

Pet. App. 57a, 50a-51a. Thus, Petitioners have

provided “unambiguous authority” that the state

court procedures are inadequate. Pennzoil Co., 481

U.S. at 15.

In short, the only conceivable state “remedy”

available to Petitioners was to file an entirely

separate mandamus proceeding.

The court of

appeals deemed that opportunity “sufficient” to

require abstention, in direct conflict with three other

circuits. This Court should grant certiorari and

make clear that Younger requires abstention only

when individuals can pursue their federal claims in

the ordinary course of the ongoing state proceeding.

II.

GERSTEIN V. PUGH DEMONSTRATES

THE PROPRIETY AND NECESSITY OF

FEDERAL JUDICIAL INTERVENTION

HERE.

As Petitioners argued in their Petition, this

case is on all fours with Gerstein v. Pugh, 420 U.S.

103, 108 n.9 (1975), for purposes of Younger

abstention. Pet. 20. There, as here, plaintiffs

challenged the adequacy of an initial hearing to test

the validity of a deprivation of liberty—a warrantless

arrest in Gerstein, the removal of children here. This

Court held in Gerstein that Younger abstention was

not required because the legality of pretrial detention

without a judicial hearing “could not be raised in

defense of the criminal prosecution.” Id. The same

7

holds true here, as the legality of the procedures in

the 48-hour hearing are not reviewed at any

subsequent stage of the abuse and neglect

proceeding, which is instead focused on whether a

final order of abuse and neglect is warranted.

The state procedures in Gerstein were

inadequate because they would either come too late

to remedy the deficiency, as was the case with the

“special statute allowing a preliminary hearing after

30 days;” or were available only in theory, as was the

case with “arraignment,” which could provide a

judicial determination of probable cause, but “was

often delayed a month or more after arrest.” 420

U.S. at 106. In Gerstein, as here, the individual in

theory could file a separate state action—there, a

habeas petition, here, a mandamus petition. But

such a filing would not be in the ordinary course of

the state court proceeding, and the availability of a

separate state proceeding did not relieve the federal

court of its unflagging obligation to decide federal

claims.

III.

CERTIORARI IS ALSO WARRANTED

BECAUSE THE COURT OF APPEALS

ERRED IN LIMITING THE

“FLAGRANTLY AND PATENTLY

UNCONSTITUTIONAL” EXCEPTION TO

CASES CHALLENGING STATE

STATUTES, NOT STATE POLICIES, IN

CONFLICT WITH THREE OTHER

CIRCUITS.

Respondents concede that the court below

declined to apply the exception to Younger abstention

for “flagrantly and patently . . . unconstitutional”

state action because the state action here took the

8

form of a policy rather than a statute. See Opp. 3

(“The Eighth Circuit correctly noted Petitioners did

not challenge the constitutionality of any statute at

all making the extremely narrow exception

inapplicable.”). As Petitioners pointed out, Pet. 2628, three other circuits have properly recognized, in

conflict with the court below, that the “flagrantly and

patently . . . unconstitutional” exception encompasses

state action other than statutes, including flagrantly

unconstitutional policies.5 As this Court has

explained, Younger’s reference to a statute was

simply “one example of the type of circumstances

that could justify federal intervention.” Kugler v.

Helfant, 421 U.S. 117, 125 n.4 (1975). The comity

principles that underlie Younger abstention provide

no

basis

for

distinguishing

flagrantly

unconstitutional state statutes from equally

unconstitutional state policies. Nor do Respondents.

In fact, Respondents effectively concede that

the

48-hour

procedures

are

flagrantly

unconstitutional.

Their only rejoinder to the

argument that removing children without meeting

the bedrock principles of due process is

unconstitutional is to claim that it is sufficient that

the parents will be provided due process later. But

that is like saying that as long as a defendant gets a

Respondents accuse Petitioners of misrepresenting the

Seventh Circuit’s holding in Mulholland v. Marion County

Election Board, 746 F.3d 811 (7th Cir. 2014) because that case

“[d]eals [o]nly with a [s]tatute.” Opp. 24 (emphasis added). But

the Seventh Circuit’s application of the exception turned not on

the text of the statute, but on the “the Election Board’s attempt

to enforce a law that a federal court has already told the Board

in a final judgment is unconstitutional.” Id. at 819. In other

words, plaintiffs challenged the policy of the Election Board to

enforce a statute already declared invalid.

5

9

fair trial it does not matter if he or she is denied a

prompt and fair probable cause or bail hearing. But

see Gerstein, 420 U.S. 103. This Court has repeatedly

rejected the notion that a failure to provide timely

notice and hearing can be “cured” by providing those

mandated procedures later. See Cleveland Bd. of Ed.

v. Loudermill, 470 U.S. 532, 542 (1985); Boddie v.

Connecticut, 401 U.S. 371, 379 (1971). As a

unanimous Court explained in a related context, the

failure to provide adequate notice at the outset

“violates ‘the most rudimentary demands of due

process of law’” and the notion that procedural

shortcomings at the outset can be justified by

subsequent events “is untenable.” Peralta v. Heights

Medical Center, Inc., 485 U.S. 80, 84, 85 (1988)

(quoting Armstrong v. Manzo, 380 U.S. 545, 550

(1965)). The purpose of process at the 48-hour

hearing is to ensure that the parent does not lose

custody of her child at that point without a

meaningful opportunity to be heard, just as the

purpose of a meaningful hearing on probable cause or

bail is to ensure that an arrestee is not detained

without a meaningful opportunity to challenge his

detention at that point. Providing an opportunity to

be heard two months later does not redress the

fundamental constitutional problem, which is that

the state is taking children from their parents

without affording the parents a prompt and

meaningful opportunity to be heard after the child’s

initial removal and before the child is taken away for

an extended period of time.

Child custody “is perhaps the oldest of the

fundamental liberty interests recognized by this

Court” and deserves “heightened protection against

governmental interference” under the Due Process

10

Clause. Troxel v. Granville, 530 U.S. 57, 65-66

(2000). Faced with flagrant, blatant, and virtually

weekly violations of fundamental rights, the district

court appropriately denied the motion to abstain.

The court of appeals’ decision is contrary to Gerstein

and the decisions of multiple other courts of appeals,

and should be reversed.

CONCLUSION

The Petition should be granted.

Respectfully submitted,

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, DC 20005

Courtney Bowie

AMERICAN CIVIL LIBERTIES

UNION OF SOUTH DAKOTA

P.O. Box 1170

Sioux Falls, SD 57101

Dana L. Hanna

HANNA LAW OFFICE, P.C.

P.O. Box 3080

Rapid City, SD 57709

Stephen L. Pevar

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

765 Asylum Avenue

Hartford, CT 06105

(860) 570-9830

spevar@aclu.org

Nusrat J. Choudhury

R. Orion Danjuma

Mark J. Carter

Jennesa Calvo-Friedman

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Date: July 22, 2019

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