Amicus Curiae Brief — Nicole K., by Next Friend Linda R., et al., Petitioners v. Terry J. Stigdon, Director, Indiana Department of Child Services, et al.

Supreme Court briefOct 21, 2021

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No. 21-479

In the Supreme Court of the United States

NICOLE K., BY NEXT FRIEND LINDA R., et al.,

PETITIONERS

TERRY J. STIGDON, IN HER OFFICIAL CAPACITY AS

DIRECTOR OF THE INDIANA DEPARTMENT OF CHILD

SERVICES, et al.,

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF FOR THE INSTITUTE FOR JUSTICE, THE

NATIONAL ASSOCIATION OF COUNSEL FOR

CHILDREN, AND THE INSTITUTE FOR FREE

SPEECH AS AMICI CURIAE SUPPORTING

PETITIONERS

KIM DVORCHAK

NATIONAL ASSOCIATION OF

COUNSEL FOR CHILDREN

899 N Logan Street, Suite 208

Denver, CO 80203

SAMUEL B. GEDGE

Counsel of Record

MICHAEL GREENBERG

DANIEL B. RANKIN

INSTITUTE FOR JUSTICE

901 North Glebe Road,

ALAN GURA

Suite 900

OWEN YEATES

Arlington, VA 22203

INSTITUTE FOR FREE SPEECH (703) 682-9320

1150 Connecticut Avenue NW, sgedge@ij.org

Suite 801

Washington, DC 20036

(i)

TABLE OF CONTENTS

Page

Interest of amici curiae ..................................................... 1

Summary of argument ...................................................... 2

Argument ............................................................................ 4

A. The decision below conflicts with basic

Article III principles.............................................. 4

B. The decision below invites confusion on a

question of exceptional importance...................... 7

C. This case is an excellent vehicle for realigning

the Seventh Circuit’s outlier position with this

Court’s precedent................................................. 10

Conclusion ......................................................................... 14

TABLE OF AUTHORITIES

Page

Cases:

ACRA Turf Club, LLC v. Zanzuccki,

748 F.3d 127 (3d Cir. 2014) .......................................... 8

Barone v. Wells Fargo Bank, N.A.,

709 F. App’x 943 (11th Cir. 2017) ................................ 9

Blanchard v. Bergeron, 489 U.S. 87 (1989) ................. 10

Brumit v. Granite City, No. 19-cv-1090 (S.D. Ill.) ....... 1

Carson v. Makin, No. 20-1088 (U.S.)............................. 1

City of Riverside v. Rivera, 477 U.S. 561 (1986) ........ 10

Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800 (1976) .......................................... 4

Cook v. Harding, 879 F.3d 1035 (9th Cir.),

cert. denied, 139 S. Ct. 72 (2018) ................................. 9

Courthouse News Serv. v. Brown,

908 F.3d 1063 (7th Cir. 2018),

cert. denied, 140 S. Ct. 384 (2019) ............................. 12

Davis v. City of Chicago, No. 19-cv-3691 (N.D. Ill.) .... 1

FCA US, LLC v. Spitzer Autoworld Akron, LLC,

887 F.3d 278 (6th Cir. 2018) ......................................... 9

Google, Inc. v. Hood, 822 F.3d 212 (5th Cir. 2016) ....... 9

Grable & Sons Metal Products, Inc. v. Darue

Eng’g & Mfg., 545 U.S. 308 (2005) .............................. 8

Hertz Corp. v. Friend, 559 U.S. 77 (2010) ........... 7, 8, 10

Lozano v. City of Zion, No. 19-cv-6411 (N.D. Ill.) ....... 1

Mitchum v. Foster, 407 U.S. 225 (1972) ...................... 10

McDonald v. City of Chicago, 561 U.S. 742 (2010) .... 13

Merrell Dow Pharm. Inc. v. Thompson,

478 U.S. 804 (1986) ....................................................... 7

Moore v. Sims, 442 U.S. 415 (1979) ................................ 5

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) ..................................................... 11

Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1 (1983) ........................................... 6, 7

Mulholland v. Marion Cnty. Election Bd.,

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

New Orleans Pub. Serv., Inc. v. Council of City of

New Orleans, 491 U.S. 350 (1989) .................. 3, 5, 6, 8

Planned Parenthood of Kansas v. Andersen,

882 F.3d 1205 (10th Cir.),

cert. denied, 139 S. Ct. 638 (2018) ............................... 9

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) ....................................................... 4

Rio Grande Cmty. Health Ctr., Inc. v. Rullan,

397 F.3d 56 (1st Cir. 2005) ........................................... 8

Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) ..................................... 2, 3, 4, 5, 6, 9

Timbs v. Indiana, 139 S. Ct. 682 (2019) ...................... 13

Younger v. Harris, 401 U.S. 37 (1971) ........................... 6

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ..................................................... 13

Statutory provisions:

28 U.S.C. § 1331 ................................................................ 7

Other authorities:

Lexi Cortes, Granite City crime-free housing rules

displace hundreds—even those not accused of

crime, Belleville News-Democrat (Apr. 2, 2020),

https://tinyurl.com/2h85kfj8 ...................................... 13

Barry Friedman, Under the Law of Federal

Jurisdiction: Allocating Cases Between Federal

and State Courts,

104 Colum. L. Rev. 1211 (2004) ................................. 12

Bryan A. Garner et al., The Law of Judicial Precedent (2016) ................................................................... 12

John Pearley Huffman, An Inside Look at

Chicago’s Seedy Car-Impound Netherworld:

How the Windy City takes its citizens’ vehicles,

Car and Driver (Aug. 25, 2019),

https://tinyurl.com/3zhu59er ..................................... 13

Will Jones, Landlord, tenants temporarily halt Zion

home inspection program, abc7 (Sept. 28, 2019),

https://tinyurl.com/nbudzyfc ..................................... 13

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INTEREST OF AMICI CURIAE

Amici are public-interest legal groups, two of which

regularly represent plaintiffs in federal-court litigation

against state actors. Substantively, our missions differ.

We are united, however, in our view that jurisdictional

rules must be clear, knowable, and impartially applied.

Because the Seventh Circuit’s misuse of abstention invites confusion, waste, and injustice, each of us has an interest in the proper resolution of this case.1

The Institute for Justice is a public-interest law firm

committed to securing constitutional protections for individual liberty. We represent plaintiffs in Section 1983

cases in federal courts nationwide, including within the

Seventh Circuit. See, e.g., Carson v. Makin, No. 20-1088

(U.S.); Brumit v. Granite City, No. 19-cv-1090 (S.D. Ill.);

Lozano v. City of Zion, No. 19-cv-6411 (N.D. Ill.); Davis

v. City of Chicago, No. 19-cv-3691 (N.D. Ill.).

The National Association of Counsel for Children (NACC), founded in 1977, is a 501(c)(3) nonprofit

child-advocacy and membership association dedicated to

advancing the rights, wellbeing, and opportunities of

youth in the child welfare system through access to highquality legal representation. NACC is a multidisciplinary

organization, and its members include child-welfare attorneys, judges, and professionals from the fields of medicine, social work, mental health, and education. NACC’s

work includes federal and state policy advocacy, the Child

Counsel for all parties received notice of amicus Institute for Justice’s intent to file this brief at least ten days before its due date. All

parties have consented to the filing of this brief. No counsel for a

party authored this brief in whole or in part and no person other than

amici, their members, or their counsel have made any monetary contributions intended to fund the preparation or submission of this

brief.

Welfare Law Specialist attorney certification program, a

robust training and technical-assistance arm, and the

amicus curiae program. More information can be found

at www.naccchildlaw.org.

The Institute for Free Speech is a nonpartisan, nonprofit organization dedicated to the protection of the First

Amendment rights of speech, press, assembly, and petition. Along with scholarly and educational work, the Institute represents individuals and civil-society organizations in litigation securing their First Amendment liberties.

SUMMARY OF ARGUMENT

This case presents a straightforward but exceptionally important question of federal jurisdiction: do Article

III courts have freewheeling discretion to surrender their

jurisdiction—to abstain—in “any federal proceeding”

that overlaps in any way with state-court litigation? See

Pet. App. 6a. Time and again, this Court has answered no,

affirming “the general rule” that “[t]he pendency of an

action in [a] state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 73

(2013) (citation omitted). Most courts of appeals follow

that teaching faithfully. In recent years, however, the

Seventh Circuit has staked out an outlier position, dismissing federal cases based not on any specific source of

authority, but on an abstract sense of the deference owed

to state actors.

As petitioners ably demonstrate, the Seventh Circuit’s approach to abstention has been disavowed by two

courts of appeals (the Fourth Circuit and the Ninth) and

conflicts irreconcilably with the holdings of a half-dozen

more. Equally important, the Seventh Circuit’s stance

breaks with two central tenets of Article III: that people

with federal claims are presumptively entitled to federalcourt protection and that jurisdictional rules must above

all be clear. In the Seventh Circuit, fifty years of “carefully defined” abstention principles (New Orleans Pub.

Serv., Inc. v. Council of City of New Orleans, 491 U.S.

350, 359 (1989)) have gone by the board, replaced by a

standard under which the federal courts may claim “discretion” to abstain whenever a state court might “work[]

its way through” the federal issues on its own. Pet. App.

6a. Where this Court has said (and said again) “that, even

in the presence of parallel state proceedings, abstention . . . is the ‘exception, not the rule,’” Sprint Commc’ns,

Inc., 571 U.S. at 81-82, the Seventh Circuit says the opposite: that the federal courts should presumptively abstain

“unless there is some urgent need for federal intervention.” Pet. App. 6a. In this way, the Seventh Circuit has

injected uncertainty into an area that demands clear,

transparent rules. Worse, the confusion will fall hardest

on people seeking to vindicate their federally protected

rights.

This case is the perfect vehicle for addressing the

Seventh Circuit’s error. That is because the decision below reflects some of the worst consequences of the Seventh Circuit’s approach to abstention. Consider the posture. The district court’s judgment and the resulting appeal involved Younger abstention alone—a doctrine this

Court “clarif[ied]” as recently as 2013. Sprint Commc’ns,

Inc., 571 U.S. at 82. At oral argument in the court of appeals, the State of Indiana conceded that Younger did not

apply to most of petitioners. Oral Arg. 16:52-17:59 (“Well,

Your Honor, I don’t think Younger would bar their claims

in that sense . . . .”), https://tinyurl.com/cczjk8s. Yet the

court of appeals brushed aside that concession, discarded

the parties’ arguments (“it does not matter whether

Younger applies” (Pet. App. 6a)), and resolved the case

using a form of freestyle abstention that finds no support

in this Court’s precedent. Simply, the decision below underscores both the virtues of this Court’s clear jurisdictional rules and the vices of the Seventh Circuit’s contrary

approach. The Court’s review is warranted.

ARGUMENT

A. The decision below conflicts with basic Article

III principles.

1. Abstention doctrines are sometimes thorny, but

their shared premise is simple: Article III courts have a

“strict duty to exercise the jurisdiction that is conferred

upon them by Congress.” Quackenbush v. Allstate Ins.

Co., 517 U.S. 706, 716 (1996). Thus, abstention—relinquishing jurisdiction in deference to state courts—is consciously “the ‘exception, not the rule.’” Sprint Commc’ns,

Inc. v. Jacobs, 571 U.S. 69, 82 (2013). Colorado River abstention, for example, is warranted only in “exceptional

circumstances.” Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 813 (1976) (citation

omitted). Burford abstention applies only in a “narrow

range of circumstances.” Quackenbush, 517 U.S. at 726.

Likewise for Younger abstention—the basis for the district court’s decision below—which extends to “three ‘exceptional circumstances’” and “no further.” Sprint

Commc’ns, Inc., 571 U.S. at 82; see also id. at 77-78 (offering a concise survey of Younger precedent). Across

this slate of doctrines, the core principles are the same.

The federal courts start with a “virtually unflagging” duty

to exercise their jurisdiction. Id. at 77 (citation omitted).

And they can depart that baseline—they can abstain—

only pursuant to a specific source of authority.

2. The decision below broke with these principles at a

bedrock level. The district court and the litigants approached this case through the Younger framework. But

the court of appeals declined to follow suit. The court

maintained that “it does not matter whether Younger applies to all [petitioners’ state-court] proceedings.” Pet.

App. 6a. For with or without Younger, the court reasoned, the federal courts always have “discretion” to give

up their jurisdiction in deference to state courts. Pet. App.

6a. The court of appeals thus affirmed the district court’s

dismissal based not on any abstention doctrine, but on a

gestalt judgment about the respect due to state actors in

general.

In this, the court of appeals erred badly. In the panel’s

view, federal courts can abstain from “any federal proceeding” that overlaps in any way with state-court litigation. Pet. App. 6a. Time and again, however, this Court

has said the opposite. That “[a]bstention is not in order

simply because a pending state-court proceeding involves

the same subject matter.” Sprint Commc’ns, Inc., 571

U.S. at 72. That “we do not remotely suggest ‘that every

pending proceeding between a State and a federal plaintiff justifies abstention.’” Moore v. Sims, 442 U.S. 415, 423

n.8 (1979). That “[s]uch a broad abstention requirement

would make a mockery of the rule that only exceptional

circumstances justify a federal court’s refusal to decide a

case in deference to the States.” New Orleans Pub. Serv.,

Inc. v. Council of City of New Orleans, 491 U.S. 350, 368

(1989) (NOPSI). On this front, the lesson is clear: the

federal courts may abstain if a specific source of authority

requires or permits it, but not otherwise.

The court of appeals’ gesture to comity was equally

misplaced. “Principles of comity,” the panel said, counsel

that the federal courts can abstain whenever there’s parallel state-court litigation—absent “some urgent need for

federal intervention.” Pet. App. 6a. Here, too, this Court

has articulated the opposite rule: the courts’ task “is not

to find some substantial reason for the exercise of federal

jurisdiction,” but to “ascertain whether there exist ‘exceptional’ circumstances . . . to justify the surrender of that

jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 25-26 (1983) (addressing Colorado River abstention). The Younger doctrine embodies

this principle as well. By its terms, Younger is rooted in

the same “notion of ‘comity’” the court of appeals harnessed here. 401 U.S. 37, 44 (1971). Yet this Court has

held decisively that those notions of comity do not justify

abstention “simply because a pending state-court proceeding involves the same subject matter.” Sprint

Commc’ns, Inc., 571 U.S. at 72, 77. Rather, comity supports the “carefully defined” abstention principles articulated by this Court and spurned by the decision below. See

NOPSI, 491 U.S. at 359.

3. The court of appeals’ reasoning reinforces how far

afield it strayed.

First, the court of appeals minimized its decision by

suggesting that the district court had merely put petitioners’ case “on hold.” Pet. App. 6a. But the district court did

no such thing. It dismissed the case outright, and in affirming, the court of appeals declined to consider whether

any of this Court’s abstention precedents supported that

result. Simply, the federal courts lack the authority to opt

out of cases in this way. (Even had the court of appeals

been addressing itself to a “hold,” moreover—that is, a

stay—stays in deference to state courts are cabined as

well, to “exceptional circumstances.” Moses H. Cone

Mem’l Hosp., 460 U.S. at 19.)

Second, the court of appeals cited the rule against

“federal-defense removal” as supporting its view of abstention. Pet. App. 6a. But the two concepts have nothing

in common. The rule against “federal-defense removal”

reflects a statutory limit on the federal courts’ subjectmatter jurisdiction. See 28 U.S.C. § 1331; Merrell Dow

Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986) (“A

defense that raises a federal question is inadequate to

confer federal jurisdiction.”). It emphatically does not, as

the court of appeals posited, give the courts carte blanche

to opt out of cases (like this one) where federal jurisdiction exists. See Compl., D. Ct. Doc. 1 ¶¶ 20-21, 105-113

(Feb. 6, 2019). Far from honoring congressional limits,

the decision below conflicts both with this Court’s precedent and with Congress’s charge that the judiciary hear

and decide cases “arising under the Constitution, laws, or

treaties of the United States.” 28 U.S.C. § 1331.

B. The decision below invites confusion on a

question of exceptional importance.

The Seventh Circuit’s error is of great legal and practical importance. Few questions are more demanding of

clear answers than whether and when an Article III court

can surrender jurisdiction granted it by Congress. Clarity is key. “[C]ourts benefit from straightforward rules

under which they can readily assure themselves of their

power to hear a case.” Hertz Corp. v. Friend, 559 U.S. 77,

94 (2010). So, too, do litigants, who can look to predictable

rules of law in determining what forums are available for

vindicating their rights. Id. at 95. “Jurisdictional rules,”

in short, “should be clear.” Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 321 (2005)

(Thomas, J., concurring). Yet the Seventh Circuit’s decision invites all manner of uncertainty. For decades, this

Court has sought to “carefully define[]” its abstention

doctrines. NOPSI, 491 U.S. at 359. On the Seventh Circuit’s view, though, anything goes. If a state court or

agency might “work[] its way through” a federal issue on

its own, the federal courts can claim freewheeling “discretion” to bow out. Pet. App. 6a.

For would-be plaintiffs in the Seventh Circuit, that

view of abstention promises endless confusion. Were the

Seventh Circuit’s view correct, in fact, countless cases in

this Court, in other circuits, and in the Seventh Circuit

itself might have turned out differently. On the Seventh

Circuit’s theory, for instance, the lower courts in Sprint

could have exercised “discretion” to abstain; a parallel

state-court proceeding was pending and, to borrow the

Seventh Circuit’s words, the state court may have in time

“work[ed] its way through” the issues raised in federal

court. Pet. App. 6a. The same would have been true of the

courts in NOPSI. 491 U.S. at 369. And of cases from most

of the circuits2—including, in years past, the Seventh

Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 69 (1st

Cir. 2005) (“[T]he ongoing state proceeding involved here is not the

proper type of proceeding to require adherence to Younger principles.”); ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 129 (3d

Cir. 2014) (reversing Younger-based dismissal because the parallel

state proceeding “does not fit within the framework for abstention

itself.3 Federal-court proceedings routinely overlap to

some degree with state-court or -agency matters. But

throughout, “abstention from the exercise of federal jurisdiction is the ‘exception, not the rule.’” Sprint

Commc’ns, Inc., 571 U.S. at 82. Those exceptions are governed by a generally predictable set of abstention principles—the product of fifty years’ precedent. Within the

Seventh Circuit, however—home to one of the most populous States in the Nation—federal-court litigants are

now hamstrung by circuit-level precedent divorced from

knowable standards.

outlined in Sprint”); Google, Inc. v. Hood, 822 F.3d 212, 223 (5th Cir.

2016) (“The district court did not err in declining to abstain because

there was no ‘ongoing state judicial proceeding’ fitting one of

Younger’s three categories.”); FCA US, LLC v. Spitzer Autoworld

Akron, LLC, 887 F.3d 278, 290 (6th Cir. 2018) (“[T]he Ohio administrative proceeding . . . does not fall within any of the ‘exceptional’ circumstances that warrant Younger abstention in civil cases.”); Cook

v. Harding, 879 F.3d 1035, 1039 (9th Cir.) (“After more than forty

years of unchecked doctrinal expansion, the Supreme Court changed

course and made clear that Younger abstention was appropriate only

in the two ‘exceptional’ categories of civil cases it had previously identified . . . .”), cert. denied, 139 S. Ct. 72 (2018); Planned Parenthood

of Kansas v. Andersen, 882 F.3d 1205, 1222 (10th Cir.) (“We agree

with the district court that the administrative proceedings in this case

were not civil enforcement actions subject to Younger abstention.”),

cert. denied, 139 S. Ct. 638 (2018); Barone v. Wells Fargo Bank,

N.A., 709 F. App’x 943, 949 (11th Cir. 2017) (per curiam) (vacating

Younger dismissal because the “parallel state proceeding does not

fall within one of the categories of proceedings which define

Younger’s scope”).

Mulholland v. Marion Cnty. Election Bd., 746 F.3d 811, 816 (2014)

(“The planned Election Board meeting in this case is not the type of

quasi-criminal proceeding that would warrant Younger abstention,

at least after Sprint . . . .”).

This state of affairs promises real harms to real people. It will make it harder for people to vindicate their federal rights. It will close federal courthouses to people who

have every right to be there. It will waste resources, as

plaintiffs “litigate, not the merits of their claims, but

which court is the right court to decide those claims.”

Hertz Corp., 559 U.S. at 94. And by impeding civil-rights

actions like petitioners’, it will harm not just individual

plaintiffs, but “society at large.” Blanchard v. Bergeron,

489 U.S. 87, 96 (1989); see also City of Riverside v. Rivera, 477 U.S. 561, 574 (1986) (plurality opinion) (“Congress has determined that ‘the public as a whole has an

interest in the vindication of the rights conferred by the

statutes enumerated in § 1988 . . . .’”) (citation omitted).

Here above all, the need for clear, impartial rules is paramount. “The very purpose of § 1983,” after all, “was to interpose the federal courts between the States and the

people, as guardians of the people’s federal rights.”

Mitchum v. Foster, 407 U.S. 225, 242 (1972). The Seventh

Circuit’s ongoing misuse of abstention is a serious error,

and it warrants the Court’s attention.

C. This case is an excellent vehicle for realigning

the Seventh Circuit’s outlier position with this

Court’s precedent.

This case spotlights both the virtue of clear jurisdictional rules and the vice of the Seventh Circuit’s contrary

approach. Since this Court last considered a similar petition, moreover, the division among the circuits has sharpened and the Seventh Circuit’s misuse of abstention has

become more ingrained. At the same time, the Seventh

Circuit’s error is susceptible to an easy fix, and this case

is an excellent vehicle for that court to be brought back

into harmony with the other circuits.

1. This case captures some of the worst consequences

that follow from the Seventh Circuit’s misuse of abstention. Under a straightforward application of this Court’s

precedents, petitioners’ appeal should have been simple.

The district court dismissed petitioners’ putative class action on Younger-abstention grounds. On appeal, the parties joined issue on Younger and Younger alone. And at

oral argument, remarkably, the State gave the game

away: it conceded that Younger does not apply to seven

of the ten named plaintiffs. Oral Arg. 16:52-17:59 (“Well,

Your Honor, I don’t think Younger would bar their claims

in that sense . . . .”), https://tinyurl.com/cczjk8s.

That concession should have disposed of the appeal—

for those seven plaintiffs, at least. As to that supermajority, the district court’s judgment was a clear candidate for

vacatur by the court of appeals. For “the federal-state

comity considerations underlying Younger are . . . not implicated” when a State foreswears abstention. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 n.1

(1992). Yet the court of appeals overrode the State’s concession. It ventured far beyond the arguments presented

by the parties (“it does not matter whether Younger applies”). Pet. App. 6a. And with no notice to the parties, it

deployed a form of freestyle abstention that the State had

not asked for and that breaks with this Court’s precedent.

Making matters worse, the court then devoted itself to

scuttling petitioners’ merits theories (also unbriefed) before jettisoning the case on non-merits grounds. Pet. App.

7a-9a.

Respectfully, petitioners—and other litigants and, for

that matter, the public at large—deserve better. Clear jurisdictional rules do not just benefit the parties and the

courts; they secure the public’s “confidence in the

judiciary and in the rule of law,” the principle that “a

judge’s decisions must not be—and must not seem to be—

arbitrary, based on personal preference, or unbounded.”

Bryan A. Garner et al., The Law of Judicial Precedent 21

(2016); see also Barry Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal

and State Courts, 104 Colum. L. Rev. 1211, 1225 (2004).

(“[B]right line rules . . . have their place, and one place in

particular is the law of jurisdiction.”). Against that backdrop, the decision below shows how quickly things can go

off the rails when clear jurisdictional rules are replaced

with unchecked discretion. In any other circuit, petitioners would have been assured of an articulated application

of the rules presented by their and their adversaries’ arguments. In the decision below, they got ejected from federal court based on an unargued exercise of a judge-made

rule—one that contravenes a half-century of this Court’s

precedent and is susceptible to no principled application

going forward. That is arbitrariness made manifest, it encapsulates the Seventh Circuit’s current approach to abstention, and it demands correction.

2. This Court denied certiorari in a similar Seventh

Circuit case in 2019, Courthouse News Serv. v. Brown,

908 F.3d 1063 (2018), cert. denied, 140 S. Ct. 384, but petitioners’ case is a far stronger vehicle. For one thing, the

Seventh Circuit’s outlier view was less pronounced in

2019. The Fourth Circuit had yet to explicitly disavow the

Seventh Circuit’s approach. And the respondent in

Brown could at least argue that the Ninth Circuit’s disagreement with the Seventh was “unclear.” Br. in Opp. at

18, Courthouse News Serv. v. Brown (No. 18-1203). Since

then, however, both the Fourth Circuit and the Ninth

have repudiated the Seventh Circuit’s approach. Pet. 10-

13. The Seventh Circuit, for its part, has doubled down: it

is now deploying its idiosyncratic view to scotch not just

courthouse-records disputes (as in Brown) but federal litigation on a trans-substantive range of topics. See Pet. 28.

The division among the circuits is entrenched. And given

the record of constitutional violations by state actors

within the Seventh Circuit,4 the need for clarity on federal-court access in that jurisdiction is acute.

3. As discussed (pp. 7-10, supra), the decision below

promises confusion for future litigants in the Seventh Circuit. The fix, however, is an easy one. The court of appeals

wrongly ventured beyond the parties’ arguments and introduced a peculiar abstention doctrine of its own making.

As a result, it failed even to consider the questions framed

by petitioners’ appeal: whether the district court’s

Younger analysis was correct and whether the State’s

concessions called for vacatur as to at least some of petitioners. As a “court of final review and not first view,” this

Court could therefore correct the Seventh Circuit’s

threshold error—its refusal to consider Younger—and

remand for the Seventh Circuit to evaluate the district

court’s judgment under Younger in the first instance. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201

(2012) (citation omitted); see also id. (“[W]hen we reverse

See, e.g., Timbs v. Indiana, 139 S. Ct. 682 (2019); McDonald v. City

of Chicago, 561 U.S. 742 (2010); see also Lexi Cortes, Granite City

crime-free housing rules displace hundreds—even those not accused of crime, Belleville News-Democrat (Apr. 2, 2020), https://tinyurl.com/2h85kfj8; Will Jones, Landlord, tenants temporarily halt

Zion home inspection program, abc7 (Sept. 28, 2019), https://tinyurl.com/nbudzyfc; John Pearley Huffman, An Inside Look at Chicago’s Seedy Car-Impound Netherworld: How the Windy City

takes its citizens’ vehicles, Car and Driver (Aug. 25, 2019), https://tinyurl.com/3zhu59er.

on a threshold question, we typically remand for resolution of any claims the lower courts’ error prevented them

from addressing.”). That narrow disposition—suitable,

potentially, for a summary vacatur—would realign the

Seventh Circuit’s approach with this Court’s precedent

and would resolve the split among the courts of appeals

on the important question petitioners present.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.