Opposition Brief — D. T. B. ex rel. O'Callaghan v. Farmer

Supreme Court brief2005

Ask Donna

What actually matters in this document.

Text

No. 04-992

In th

Supreme Court of the United States

D.T.B., a minor child, by his next friend, DANIEL J.

O’CALLAGHAN, and DANIEL J. O°CALLAGHAN, Pro

Se, on his own behalf,

Petitioners,

Vv.

HON. JOHN J. FARMER, JR., in past or present official

Capacity as Attorney General of the State of New Jersey;

HON. JOHN J. HARPER, in his past or present official

capacity, as Justice of the Superior Court of New Jersey,

Chancery Division, Family Part; ANN T. SCUCCTI;

MATHIAS R. HAGOVSKY; and DAVID F. SALVAGGIO,

Respondents.

On Petition For a Writ of Certiorari To The United

States Court of Appeals for the Third Circuit

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

PETER C. HARVEY

ATTORNEY GENERAL OF NEW JERSEY

Attorney for State Respondents

R.J. Hughes Justice Complex

P.O. BOX 112

Trenton, New Jersey 08625

(973) 648-4730

NANCY KAPLEN

Assistant Attorney General

ANDREA M. SILKOWITZ

Assistant Attorney General,

(Counsel of Record)

QUESTIONS PRESENTED

Whether the court of appeals properly applied the

Rooker-Feldman doctrine in affirming the dismissal of this

action for declaratory and injunctive relief as to the State

respondents whereby petitioners sought to have the federal

district court overturn, as constitutionally invalid, final

orders issueu by respondent Judge Harper?

Whether subject matter jurisdiction is lacking as to the

claims for retrospective declaratory and injunctive relief

asserted against the State respondents by reason of Eleventh

Amendment immunity?

Whether the declaratory and injunctive relief sought as to

the State respondents in this action has been rendered moot by

the intervening State appellate court ruling?

Whether certiorari should be denied as dismissal of the

amended complaint for declaratory and injunctive relief filed

against the State respondents would have been warranted

pursuant to the Younger v. Harris abstention argument

advanced before the federal district court?

TABLE OF CONTENTS

QUESTIONS PRESEN BISA. ccccacccsosenscecscotvctcsebbascceds i

TABLE OF AU TERGRRES Sits sccccccssdanssdaudvensusavessovseses iv

COUNTERSTATEMENT OF THE CASE................... l

ARGUMENT

POINT I

THE WRIT SHOULD BE DENIED AS THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT PROPERLY APPLIED

THE ROOKER-FELDMAN DOCTRINE TO

PETITIONERS’ FEDERAL SUIT SEEKING TO

OVERTURN THE FINAL STATE COURT

RULINGS ENTERED BY RESPONDENT JUDGE

POINT I

PURSUANT TO THE ELEVENTH

AMENDMENT, THE FEDERAL COURTS LACK

SUBJECT MATTER JURISDICTION TO

ADJUDICATE THE CLAIMS FOR

RETROSPECTIVE DECLARATORY AND

INJUNCTIVE RELIEF AS TO THE STATE

RESPONDERS 3 os <«.<<0xnennscessauessaberineieesaaheauans 19

ili

POINT I]

DISMISSAL OF THE FEDERAL COMPLAINT

SEEKING INJUNCTIVE AND DECLARATORY

RELIEF AS TO JUDGE HARPER AND

ATTORNEY GENERAL FARMER WOULD

HAVE BEEN WARRANTED, AS ARGUED

BELOW, UNDER YOUNGER V. HARRIS, 401

U.S. 37 (1971), ABSTENTION PRINCIPLES......... 22

INT IV

THE PETITION FOR CERTIORARI SHOULD BE

DENIED AS THE CLAIMS’ FOR

DECLARATORY AND INJUNCTIVE RELIEF AS

TO THE STATE RESPONDENTS ARE

Rr dcndobrinitncdssednscypbasenicaalntosecduieains 28

Nth caus id Cacdndndnesdicedsosavkevarkéasacacti: 30

APPENDIX

A. Opinion of the Superior Court of

New Jersey, Appellate Division,

Docket No. A-289-02T3, dated July

Ati lercinscntitesnatedcbsebsiaceiunsekacneces la

B. Opinion of the Superior Court of

New Jersey, Appellate Division,

Docket Nos. A-4782-00T3 and A-

6659-00T3, dated October 29, 2002............ 20a

TABLE O ORITIES

CASES CITED

Ankenbrandt v. Richards, 504 U.S. 689 (1992)............. 27

Arizonans for Official English v. Arizona,

SP I a a a San gina 29

District of Columbia Court of Appeals v. Feldman,

EEE cs csccscckonccssbasksecuanawnsons 14,16,18

Edelman v. Jordon, 415 U.S. 651 (1974).................... 19

Elk Grove Unified School District v. Newdow,

542 U.S. 1, 124 S.Ct. 2301 (2004)..........00000... 26,27

Ex Parte Young, 209 U.S. 123 (1908)..................... 20,21

Exxon Mobil Corporation v. Saudi Basic Industries

Corp. ,544 U.S. , 125 §.Ct. 1517

PD cccchenseatiiiaucssakasneabeiiiadaspuahanauanaads 16,17,18

Fitts v. McGee, 172 U.S. 516 (1899)......................... 21

Green v. Mansour, 474 U.S. 64 (1985)................... 21,29

Kafer vy Dials, SUZ US. Zi (IDS)... cccccseccecccccscsecetoce 20

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).....23,24,25

Idaho v. Couer d’Alene Tribe of Idaho,

ee Bes PE its iptciddedcitiassnaincsbinscdents 21

Kentucky v. Graham, 473 U.S. 159 (1985)................. 20

Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556

Maisonet v. Dept. of Human Services, 140 N.J. 214,

ie & Ee FT. I Ra ie 27

Middlesex County Ethics Comm. v. Garden State Bar

re eis id, 6; ea: 23

Moore v. Sims, 442 U.S. 415 (1979)........... cc cc cece cece ee 26

New Orleans Public Service v. New Orleans, 491 U.S.

RD Ce icdssasaskestiasnnii ee 24

Okpalobi v. Foster, 244 F.3d 405 (5 Cir. 2001).......... 21

Ohio Civil Rights Commission v. Dayton Christian

Schools, Inc., 477 U.S. 619 (1986).................008. 72

Papasan v. Allain, 478 U.S. 265 (1986)................0.0.. 20

Pennhurst State School and Hospital v. Halderman,

ee ef | Ie TE River 20

Pennzoil v. Texaco, 481 U.S. 1 (1987).............. 22,25,26

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)..23

Rooker-Feldman Trust Co., 263 U.S. 413

CRN Pbiscsicunnannsdcvaxsanadiasndunaied 13,14,16,17,18,19

Stern v. Nix, 840 F.2d 208 (3d Cir.), cert. denied.,

Ge Bi, Te CI a i skint chtesniintageenaenen 18

Thigpen v. Roberts, 468 U.S. 27 (1984)..........0...00c.. ae

Verizon Md. Inc. v. Public Service Comm’n of Md.,

mR A I ee nbn winbichabnesiiig 21

Will v. Michigan Dept. of State Police, 491 U.S. 58

CR Risiccnsantustavocderseescsea ee 20

Wooley v. Maynard, 430 U.S. 705 (1977)......c.ccecceseeee. 28

Younger v. Harris, 401 U.S. 37 (1971)...18,22,24,26,27,28

STATUTES CITED

NLLS.A, 9:17-38 of 960...........cccccssscessocesceseccescsecees 28

SE) FCs esr n er rc 1

SBA GiB P AD. .0i:ccaccnnicoiiccsacesivaeemeaannane 1

SET Re or i 27

43 TEBE CN i vsccsccsncsccacmeennaaee 27

RULES AND REGULATIONS CITED

ae Se BY We ee 9,17

a. 0 | Renee nn anche eT 11

3 Gk BOM... sisisadternnaaseee 14,28

B® ©. Em eS 12

RA XS ener ele ki 11,14

MA BGG cencicssucstcceee 11,14

at. gE earner ear 11

Fed. R.Civ.Proc. 12(b)(1).........sssecccesssescessceseceseces 13

Fed. R.Civ.Proc. 12(b)(6)..........cceccccessesceescesseeeeces 13

—eSEe— ee

COUNTERSTATEMENT OF THE CASE

This petition for a writ of certiorari arises from a

September 14, 2004, decision by the United States Court of

Appeals for the Third Circuit affirming the District Court of

New Jersey’s dismissal of an amended complaint of petitioner

Daniel J. O’Callaghan, individually and on behalf of his son,

D.T.B., a minor, seeking declaratory and injunctive relief

against former New Jersey Attorney General John J. Farmer,

Jr. and Superior Court of New Jersey, Chancery Division-

Family Part Judge John J. Harper on the basis of the Rooker -

Feldman doctrine. As determined by the lower federal

courts, petitioners’ federal constitutional challenge to

visitation and other rulings rendered by Judge Harper as to

D.T.B. and other claims inextricably tied to these challenges

were not cognizable by the federal district court but rather

were appropriate for state appellate review then pending.

Mr. O’Callaghan is the natural father of twelve-year-old

D.T.B. (A139). On June 22, 2000, Mr. O’Callaghan, then

residing in Brooklyn, New York, filed suit against V.J.B., the

natural mother of D.T.B., a resident of Chester, New Jersey,

in the Superior Court of New Jersey, Chancery Division-

Family Part, Morris County, seeking an adjudication

establishing his paternity of D.T.B. and reasonable visitation

with the child, pursuant to N.J.S.A. 9:17-39,40 (Appendix K

to the Petition for Certiorari) (hereinafter, App. K). On June

23, 2000, Mr. O’Callaghan’s then counsel filed a motion

seeking, inter alia, temporary custody of D.T.B. or, in the

alternative, a liberal parenting-time schedule with him

(A117). Following a hearing conducted by Judge Harper on

July 28, 2000, the court issued an order, inter alia, continuing

custody of D.T.B. with his mother, requiring that the parties

undergo a best interest investigation and home inspection with

‘A __ refers to the appendix filed by Mr. O’Callaghan with the

United States Court of Appeals for the Third Circuit.

which they were to “fully cooperate” and directing that

D.T.B. be interviewed by the court on August 10 in

connection with the best interest investigation (A121; A122).

On or about August 15, 2000, Mr. O’Callaghan filed a

substitution of attorney, noting his appearance pro se (A123),

and on August 18, 2000, sought emergent relief, alleging Ms.

B.’s refusal to provide him with agreed upon parenting time

(A124 to Al47).? Pending consideration of the applications

by Judge Harper, Judge Christine L. Miniman entered an

order on August 18, 2000, directing that Mr. O’Callaghan be

afforded overnight, continuous parenting time with D.T.B.

between August 18 and 22, 2000 (A156 to A158).

Following hearings on August 22 and 25, 2000, and

relying on submissions by D.T.B.’s mother, Judge Harper

entered an order which suspended all overnight visitation

between Mr. O’Callaghan and his son (A159 to A161; A168

to A170) but directed that visitation occur following the court

proceeding and thereafter, during the day on August 26,

2000, from 10:00 a.m. to 6:00 p.m. at Mr. O’Callaghan’s

home and on August 29, 2000, from 3:00 p.m. to 7:00 p.m.

in New York City (A179 to A181). Additionally, the court

appointed Ann T. Scucci as guardian ad litem to interview the

parties and child and make recommendations to the court and

Dr. Mathias R. Hagovsky, a psychologist, to provide therapy

to D.T.B., with the parents participating in the therapy. The

court continued the matter until September 15, 2000 (A181).

Mr. O’Callaghan thereafter sought an emergent stay of

the order appointing a guardian ad litem and therapist and

restoration of his overnight parenting time (A182 to A196;

? According to a certification filed by Mr. O’Callaghan, his then

counsel had advised him that Judge Harper had authorized D.T.B.’s

overnight visit with his father for the weekend of August 12 and 13

(A124). As Judge Harper would later note in his February 6, 2001, letter

decision, he had initially found based on the record at that point that

overnight visits would be appropriate (A426).

A201 to A203) and following the September 8, 2000, return

date, Judge Harper continued the appointments of Ms. Scucci

and Dr. Hagovsky and provided for further daytime parenting

time for Mr. O’Callaghan pending further hearing on

September 15, 2000 (A219 to A220). Following additional

submissions by Mr. O’Callaghan (A221 to A243) and the

conduct of the September 15" hearing, Mr. O’Callaghan

unsuccessfully sought an emergent order seeking recusal of

Judge Harper and custody of D.T.B. (A263 to A264).?

By order entered October 27, 2000, Judge Harper

memorialized his findings and rulings as to the September 15,

2000, hearing and thereby directed that the appointment of the

guardian ad litem would continue and that if the parties could

agree, a psychologist participating in V.J.B.’s insurance plan

could be substituted for Dr. Hagovsky. (A269 to A271).

In response to an emergent Order to Show Cause filed by

Mr. O’Callaghan, the court subsequently directed in October

and November, 2000, orders that, pending the reports of the

guardian ad litem and psychologist, overnight visits by

D.T.B. with Mr. O’Callaghan would not proceed, but that

Saturday visits between 10:00 a.m. and 6:00 p.m. would

continue (A270; A274; A277). Judge Harper further directed

the court-appointed psychologist to conduct “evaluations of

both parties and the child, addressing parenting time of the

child with [Mr. O’Callaghan], including overnights, as well

as potential parental alienation[;]” (A278).

In his November 15" order Judge Harper explained:

3. Pending further Order of the Court, and receipt of

reports from both the Court appointed guardian ad

* In October, 2000, petitioner unsuccessfully moved for emergent

relief before the Superior Court of New Jersey, Appellate Division

asserting “clear error and violation of the Constitutional safeguards as to

orders entered in August and October, 2000" (A266 to A268).

litem and psychologist, overnight visitation of

Plaintiff with the minor child will not occur. There

is much high conflict between these parties which

has so seriously impacted the child as discussed in

the certifications filed by the parties and others, and

these parties are so litigious and apparently incapable

of recognizing what is in the best interests of their

son without the intervention of a guardian ad /item

and psychologist that it is necessary to appoint a

guardian ad litem and a psychologist to bring this

matter to an appropriate resolution.

4. Unfortunately, the Court’s effort to bring such

assistance to the parties is misperceived by the

Plaintiff as an effort toward delay and not recognized

as needed under the circumstances. Limited

visitation will continue until the Court receives an

impartial assessment and an accurate account of what

is in the child’s best interest. There is no irreparable.

harm as Plaintiff claims.

[A277; emphasis added].

Following a rescheduling of the November 17, 2000,

- hearing for December 8 due to a second motion filed by Ms.

B. which was not properly served (A278; A281) and Mr.

O’Callaghan’s application for reconsideration of the

adjournment, Judge Harper issued findings of fact and

conclusions, reiterating that the suspension of overnight

visitation continued “because of conflicts between the parties

and the impact same is having upon the child as evidenced by

certifications filed with the court . . .” (A280). The court

further opined as to Mr. O’Callaghan’s application for recusal

of the judge that:

This is a ‘high conflict case’ which now threatens, if

not properly managed, to engulf defendant’s counsel

and the Court in efforts to divert attention from the

best interests of D[ ] to plaintiff's claims of

prejudicial and unfair treatment by those who

disagree with him. His efforts to have this Court

recuse itself are obviously designed to seek another

judge who will make rulings more favorable to

plaintiff's position. As discussed below there is no

basis for recusal and this Court will not reward the

plaintiff's efforts to forum shop. Plaintiff must

cooperate with the guardian ad litem and the

psychologist, continue with his visitation as ordered

and reduce the level of conflict. To do otherwise, is

not in the best interests of D[ J.

[Ibid.}.*

Following further submissions by Mr. O’Callaghan as to

the application for recusal (A282 to A292; A293 to A294),

the submission of a preliminary report of the guardian ad

litem following a visit with D.T.B. at his mother’s home

(A296 to A298), and a hearing conducted on December 8,

2000, Judge Harper entered an order on December 13, 2000,

denying the motion for recusal, granting the motion to find

Ms. B. in violation of litigant’s rights and further ordering

additional visits between D.T.B. and Mr. O’Callaghan in

New York and New Jersey (A235). The court further

directed that the parties “cooperate with the guardian ad litem

and court-appointed psychologist to allow expeditious

completion of their reports” (A336).° In the accompanying

findings of fact, the court reiterated its view that the

appointments of the guardian ad litem and psychologist were

* The Appellate Division subsequently denied Mr. O’Callaghan’s

motion for leave to appeal and stay this order (A295).

* In her initial report, Scucci had indicated that she had been

unsuccessful in her attempts to communicate with Mr. O’Callaghan to

arrange for a visit at his home with D.T.B. (A297). By letter dated

December 13, 2000, Judge Harper requested that Scucci contact Mr.

O’Callaghan again and directed Mr. O’Callaghan to communicate with

her (A331).

necessary to help the court determine D.T.B.’s best interests

given the “high degree of conflict” between the parents (A237

to A238).

Following the filing of an Order to Show Cause by Mr.

O’Callaghan on December 16, 2000, asserting violation of his

constitutional rights by entry of the court’s orders, as well as

additional submissions (A344 to A364; A365 to A374; A375;

A379 to A380; A381 to A388; A389 to A394), Mr.

O’Callaghan sought, inter alia, recusal of Judge Harper,

disqualification of V.J.B.’s counsel, the guardian ad litem and

Dr. Hagovsky, immediate institution of overnight visitation,

and vacating of all prior orders, (A389 to A394; A397 to

A399). Subsequent to a February 2, 2001, hearing before

Judge Harper, the court denied the motions for

reconsideration and disqualification and further ordered Mr.

O’Callaghan’s payment of V.J.B.’s counsel fees (A421 to

A42). Directing that the complaint for custody and/or

visitation be dismissed, the court further ordered that Mr.

O’Callaghan’s daytime Saturday visits continue and that Ms.

Scucci and Dr. Hagovsky were relieved of their duties with

any continuing efforts to be on a voluntary basis. (A421 to

A422). In an accompanying letter decision dated February 6,

2001, the court addressed each of the issues addressed in Mr.

O’Callaghan’s submissions, noting:

This Court is satisfied from the plaintiff's conduct

and the defendant’s certifications that at no time did

Mr. O’Callaghan cooperate with this Court’s efforts

to have the Guardian ad Litem discharge her duties,

and further, to have a Psychologist assess the

parenting abilities of the parties and provide an

evaluation. The plaintiff has some mistaken notion

that the Court should enforce its G»n orders sua

sponte. The Court has responded appropriately in

this case to the requests of the parties for its

intervention. The Court appointed qualified

professionals to assist it in fact-finding only to have

its efforts constantly frustrated by the plaintiff who

sought to challenge the appropriateness of the

appointments and who resisted cooperating.

Incredibly, plaintiff now claims that it was the Court

who failed to see to it that the professionals had

completed their assignments in a timely fashion. The

plaintiff apparently fails to comprehend the

inconsistency of his position and seeks only to blame

the Court instead of himself for the failure of the

professionals to complete their assignments. It is

evident that Mr. O’Callaghan is seeking to delay and

frustrate the Court’s efforts to gather facts about this

matter through legal maneuvering and challenges.

There is no other reasonable or appropriate

explanation.

[A427; emphasis supplied].°

Mr. O’Callaghan thereupon filed a motion for leave to

appeal with the Appellate Division on February 16, 2001

(A440 to A441). By order of the Appellate Division entered

on April 16, 2001 (A464), the court determined that the

challenged February 6, 2001, order was a final order,

appealable as of right. Mr. O’Callaghan was thus directed to

file a Notice of Appeal, which he did on or about April 19,

2001, challenging both the February 6 and March 26, 2001,

orders entered by Judge Harper. (A471). Mr. O’Callaghan

subsequently filed a separate appeal as to the June 28, 2001,

® Judge Harper subsequently adjudicated additional motions

presented by Mr. O’Callaghan (A442 to A455) with regard to his child

support obligations and payment of counsel fees by order entered March

26, 2001 (A456; A457 to A458). Cross-motions by the parents were also

addressed by Judge Harper in an order entered on June 28, 2001. See

Appendix B to the State Respondents’ Brief Opposing Certiorari

(hereinafter RApp.B at 57a to 59a).

order, which later was consolidated with the earlier appeal

(RApp.B at 63a to 64a).’

By unpublished opinion issued on October 29, 2002, the

Appellate Division affirmed the Family Part orders entered on

February 6, March 26, and June 28, 2001, “substantially for

the reasons articulated by Judge Harper in his comprehensive

written opinions accompanying each order.” (RApp.B at

65a).® The court also specifically found that “[t]he case

management efforts undertaken by Judge Harper were

designed to provide the court with sufficient information to

evaluate plaintiff's claim for custody, and to determine a

custodial and parenting-time arrangement that met the best

interest of D[ ]. Plaintiff's efforts frustrated that effort and

resulted in the court’s dismissal of plaintiff's claim.” Id. at

68a to 69a. Nevertheless, the Appellate Division directed that

a remand hearing be conducted by the Family Part as to the

“issue of whether overnight parenting-time sessions between

D[ ] and his father are in D[ ]’s best interest and, if so, the

nature and frequency of same.” Id. at 69a. The appellate

panel further noted “that the overnight parenting-time issue

should be expeditiously managed and adjudicated through

imposition of tight time frames. Although full cooperation by

7 In a brief filed with the Appellate Division in February, 2002,

challenging each of Judge Harper’s orders, Mr. O’Callaghan asserted that

the Family Court’s “unfair extinguishment of ‘overnight’ visitation not

only has been injurious to the minor child (and . . . his father but also has

violated procedural rules and compelling New Jersey case law and has

been accomplished in violation of constitutional safeguards. See

generally, Ankenbrandt v. Richards, 504 U.S. 689 (1992). See Santosky

v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);

Shapiro v. Thompson, 394 U.S. 618 (1969)” (Plaintiff's pro se Brief,

Docket No. 006659-00T3 at p.7).

® A redacted copy of this opinion as well as of the ensuing July

20, 2003, Appellate Division opinion as to D.T.B. have been included in

the State respondents’ appendix as references to the minor and his mother

in this federal litigation have been by initials only.

both parties obviously serves the interest of their own

respective positions, evaluations necessary to determine this

issue can be accomplished with or without parental

cooperation.” Id. at 70a. No further appeal to the Supreme

Court of New Jersey, as permitted by N.J. Ct. R. 2:2-5(b),

appears to have been filed.°

In the interim, one day after issuance of Judge Harper’s

February 6, 2001, order, Mr. O’Callaghan filed a complaint

in the United States District Court for the District of New

Jersey (A41) and on April 6, 2001, an amended complaint,

then also on behalf of his son (A40 to A41; A52 to A110),

naming Judge Harper and Attorney General Farmer, in their

official capacities only, as well as the guardian ad litem, Ann

T. Scucci, Dr. Hagovsky, and V.T.B.’s counsel David F.

* Contrary to petitioners’ claims (Pet. at 17) and as the cited rule

makes clear, a judgment of the Appellate Division on appeal from “a final

judgment shall be reviewable by the Supreme Court on certification or,

when appropriate, as of right, notwithstanding the remand of the matter

by the Appellate Division for further proceedings.” Thus, Mr.

O’Callaghan could have sought review of the October 29, 2002, appellate

ruling.

In any event, following the Appellate Division’s October 29,

2002, remand, proceedings continued before Family Part Judge David

Rand. Following a hearing on July 2, 2002, the court entered an order

providing, in pertinent part, for overnight visitation by Mr. O’Callaghan

with D.T.B. from July 3 at 11:00 a.m. to July 7 at 12:00 p.m. and for

vacation after July 20 (RApp.A at 12a). Following additional hearings,

the court entered orders providing for further vacation/overnight visitation

by Mr. O’Callaghan with D.T.B. (Id. at 13a to 15a). As revealed in the

Appellate Division’s July 1, 2003, opinion arising from this custody

dispute, additional Family Court hearings regarding visitation schedules

continued into 2003.(Id. at 16a).

Salvaggio as defendants.'° By his amended complaint, Mr.

O’Callaghan alleged violation of his and his son’s federal

rights of privacy, access to the courts, the privilege and

immunities clause (Article [V §2, Clause 1) as well as the

First, Fifth, Seventh, Ninth and Fourteenth Amendments

arising from the June, 11, 2000, to March, 22, 2001,

proceedings before Judge Harper (A52 to A91)."’ As the first

'0 As asserted in the State’s motion to dismiss, nowhere in the

amended complaint is there any reference to any actions taken by

Attorney General Farmer with regard to either Mr. O’Callaghan or

D.T.B. in the proceedings initiated by Mr. O’Callaghan before Judge

Harper. Nor is there any explanation for why this executive branch

officer is referred to as a “Judicial Defendant” (A92) or has been sued

with regard to the application of Court Rules promulgated by the Supreme

Court of New Jersey.

'! Following a detailed, thirty-one page recitation of the

proceedings before the Family Court from commencement of the action

on June 22, 2000, through the entry of the March 26, 2001, order (A55

to A86), paragraph 150 of the amended complaint summarizes the

constitutional challenges asserted:

In so acting, Judge Harper violated DTB’s and Plaintiff

Pro Se’s due process and equal protection rights, /.e.,

planned and intended not an arbitrary misapplication of

State law, but rather, a consistent avoidance and

omission of enforcement of State statutory law and rules

and customary Family Court practices and procedures

so as to preclude to DTB and to Plaintiff Pro Se the

rights to (i) parent-child relationship; (ii) association

including companionship, society, affection and comfort

between the minor child and natural father, (iii) the

equal application of resources of the State Track

System, and (iv) Plaintiff Pro Se’s ability to have

commenced-and pursued - - the claims, i.e., effective

visitation and custody.

[A87; emphasis in original].

(continued. ..)

and second claim for relief, Mr. O’Callaghan sought a

declaratory judgment that Judge Harper and Attorney General

Farmer’s actions violated federal constitutional rights “as

identified in the aforesaid facts and circumstances alleged” as

“relating to the iacntified hearings and Family Court orders

and Findings and the Letter Decision and the $10,000 Order

and related practices/procedures conducted pursuant to the

above Rules and in consequence of the conduct of the Judicial

Defendants . . .” (A94) and that N.J. Ct. R.5:8B

(Appointment of guardian ad litem), N.J. Ct. R.5.1 (Case

management Track Rules), N.J. Ct. R.5:3-3 (Appointment of

Experts) and N.J. Ct. R.5:8-1 (custody of children) were

unequally applied to unmarried fathers or were otherwise

vague and unconstitutional (A92 to A94; A100).

Asserting a “biased Family Court judge, unconstitutional

Family Court practices/procedures and statutes” (A94) as

well as discriminatory treatment (A96), Mr. O’Callaghan

also sought in the third and final, fourth claim for relief as to

the State respondents an order:

(i) enjoining enforcement of all orders,

findings, decisions, and judgments,

including the Letter Decision and the

$10,000 Order, issued in the Family

Court case;

(ii) directing reinstatement of the Plaintiff

Pro Se’s Family Court complaint

including claims for effective

Visitation and custody;

(iii) directing a fair and impartial

Visitation Rights Hearing and

"(_. continued)

See also A97.”

'2 Four additional complaints were subsequently filed by Mr.

O’Callaghan with regard to the preceedings as to D.T.B:

1. A suit later consolidated with the amended complaint

filed against Attorney General Farmer and Judge

Harper, naming Ms. Scucci, Mr. Hagovsky and Mr.

Salvaggio as defendants (C.A. No. 01-4032) (A496 to

A516);

2. A complaint naming, among others, then Attorney

General Samson, Judge :‘arper, and Judge David B.

Rand, who handled subsequent proceedings in the

D.T.B. custody litigation, as defendants (C.A. No.

2002-CV-5791;

(continued...)

On March 19, 2001, the New Jersey Attorney General

moved, pursuant to Fed.R.Civ.Proc. 12(b)(1) and (6), to

dismiss the complaint filed against Judge Harper and Attorney

General Farmer (A48 to A51) on the grounds of lack of

subject matter jurisdiction by reason of the Rooker-Feldman

doctrine and also urged that the District Court should abstain

on Younger v. Harris, Pullman and/or Burford abstention

grounds. (App. A at 1-2; 7-8).

In an opinion dated August 9, 2001, the District Court

determined that it lacked subject matter jurisdiction to hear

the case under the Rooker-Feldman doctrine as the federal

court challenge was essentially an attempt “to seek federal

court review of the Family Court decision” which appeal was

already pending before the Superior Court of New Jersey,

Appellate Division (App.A at 13). As noted by the court,

“district courts must evaluate whether the relief requested by

the complainant would void the state court’s rulings.

Accordingly, a complaint which essentially appeals a final

state court decision must be dismissed for lack of subject

12 continued)

3. A complaint naming as defendants, among others, the

Advisory Committee on Judicial Conduct with whom

Mr. O’Callaghan filed a complaint as to Judge Harper

(C.A. No. 2002-CV-5791); and

a A complaint naming Attorney General Harvey,

Appellate Division Judge Rodriguez, Judge Rand,

among others, as defendants (C.A. No. 2003-CV-

4419).

Only the last filed action remains pending.

'S The motion further urged dismissal of the complaint .as to

Attorney General Farmer as the complaint failed to state a claim against

him upon which relief could be granted and further argued that the

complaint should be dismissed for failure to demonstrate entitlement to

injunctive relief.

matter jurisdiction.” (Id. at 9-10). The court thereupon

concluded that to grant injunctive relief in this case based “on

the multitude of . . . constitutional rights [allegedly] violated

by Judge Harper in his family court proceedings” would

effectively reverse the state court judgment, contrary to

Rooker-Feldman. (Id.at 10-11).

As to the remaining claims asserting that New Jersey

Court Rules 5:1-4, 5:3-3 and 5:8-1 were unconstitutional, the

court noted its need to assess, under District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16

(1983), whether these claims “were inextricably intertwined

ith the state court’s [decision] in a judicial proceeding”, thus

requiring the court “in essence being called upon to review

the State court decision”. (Id. at 8). While recognizing that

Mr. O’Callaghan purported to assert a facial challenge to

these court rules, the district court found significant that the

injunctive relief requested were the court to find any of the

three rules unconstitutional was limited to “enjoin{ing]

enforcement of all orders, findings, decisions, and judgments,

including the letter decision and the ten-thousand ($10,000)

order, issued in the Family Court case.” (Id. at 12).

Accordingly, the court construed the facial constitutional

challenges as “nothing more than an attempt to have this

Court reverse a state court decision.” (Id. at 12-13). Thus,

by order entered that same day, the court dismissed the

complaint with prejudice as to Judge Harper and Attorney

General Farmer (App. B). By Amended Order dated

December 17, 2001, the court clarified that its earlier order

contemplated dismissal of the claims set forth in the

Amended Complaint (App. C).”*

'* By order dated September 26, 2003, the District Court also

dismissed the complaint as to Dr. Hagovsky on Rooker-Feldman grounds

as well as based on its finding that as a court-appointed psychologist Dr.

Hagovsky was absolutely immune from liability (App. D). On appeal, the

United States Court of Appeals for the Third Circuit affirmed the District

(continued...)

By per curiam opinion issued on September 14, 2004, the

United States Court of Appeals for the Third Circuit affirmed

the District Court’s conclusions as to the applicability of the

Rooker-Feldman doctrine, noting:

We appreciate the importance of O’Callaghan’s

concerns, but the claims asserted in the present

federal action are inextricably interwined with the

State court decisions, and the lower federal courts

accordingly lack jurisdiction to entertain those

claims.

[App. E at 22].

By order entered on October 20, 2004, the Court of Appeals

denied the petition for rehearing (App. G).

This petition for certiorari followed.

re ee OTe ee ee eee ee ~

'“(_. continued)

Court’s grant of summary judgment in favor of Dr. Hagovsky on the

grounds of absolute immunity (App. E).

ARGUMENT

POINT I

THE WRIT SHOULD BE DENIED AS THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT PROPERLY APPLIED

THE ROOKER-FELDMAN DOCTRINE TO

PETITIONERS’ FEDERAL SUIT SEEKING TO

OVERTURN THE FINAL STATE COURT

RULINGS ENTERED BY RESPONDENT JUDGE

HARPER.

r-Feldman Trust Co., 263 U.S. 413 (1923), the

Court established that an unsuccessful state court litigant is

barred by federal statutory law from challenging the

correctness of a state court judgment on federal constitutional

grounds in the district court. “To do so would be an exercise

of appellate jurisdiction,” which only the Supreme Court of

the United States may exercise. Id. at 416.

Again, in District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983) and this Term, in Exxon

Mobil ration v. Saudi ic ies Corp.,544 U.S.

___, 125 S.Ct. 1517 (2005), the Court reaffirmed that

federal court review of a state court judgment may not be

obtained in the lower federal courts. As the Exxon Mobil

Court emphasized, the Rooker-Feldman doctrine “is confined

to cases . . . brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district

court review and rejection of those judgments.” 125 S.Ct. at

1521-22.

This is precisely the case presented here. Thus, one day

after Judge Harper issued his February 6, 2001, order

dismissing Mr. O’Callaghan’s complaint for custody and

denying his motion for reconsideration as to his parenting-

RL RES AR OTS

OST Fear TARO De ES

time schedule, Mr. O’Callaghan filed his initial complaint in

the federal district court challenging, as violative of his and

his son’s constitutional rights, rulings entered by Judge

Harper over the course of the then eight-month Family Court

proceedings. In addition to seeking a declaratory judgment

finding Judge Harper’s rulings to have violated numerous

constitutional rights, Mr. O’Callaghan sought injunctive relief

barring enforcement of all orders, findings and judgments

issued by the Family Court, as well as reinstatment of the

Family Court complaint and a direction for a further hearing

as to the visitation issues before a different Family Part judge

(App.A. at 7).

Plainly, each of the elements described in Exxon Mobil’s

clarification of the Rooker-Feldman doctrine were satisfied:

the loser in the concluded State court proceedings complains

of injuries caused by the State court ruling, preceding the

federal filing, and “invit[es] district court review and

rejection of these judgments.” 125 S.Ct. at 1522. As in

Rooker, Mr. O’Callaghan “repaired to federal court to undo

'S Contrary to petitioner’s contentions (Pet. at 15), the February

6, 2001, order entered by Judge Harper (as well as the subsequent March

26, 2001 and June 28, 2001 orders) were viewed by the Appellate

Division as final orders, resulting in the court’s issuance of the October

29, 2002, opinion addressing the merits of Judge Harper’s various rulings

(R.App.B). Moreover, insofar as the court in the October 29, 2002,

opinion determined a need for further hearings before the Family Court

on the visitation issue, the court’s remand, by operation of N.J. Ct.

R.2:2-5(b), did not render either the appellate ruling or the trial court

rulings challenged interlocutory. As N.J. Ct. R.2:2-5(b) recognizes, an

appeal may be taken to the Supreme Court of New Jersey from an

Appellate Division order for remand so long as the original trial court

rulings challenged were final.

the [State court] judgment... .”, 125 S.Ct. at 1527, and

declare it “null and void.” Rooker, supra, 263 U.S. at 414."°

And consistent with the Court’s teachings in District of

Columbia Court of Appeals v. Feldman, supra, 460 U.S. at

487 n.18, the lower courts upon a “close reading” of the

amended complaint properly focused on the ultimate

injunctive relief requested in determining that the essential

relief sought from the district court was to review and

overturn the rulings embodied in Judge Harper’s February 6,

2001 order. See e.g., Stern v. Nix, 840 F.2d 208 (3d Cir.),

cert. denied, 488 U.S. 826 (1980). As the courts below

properly concluded, the amended complaint’s assertions as to

the invalidity of certain New Jersey court rules allegedly

violated in the context of the Family Court proceedings before

Judge Harper were “inextricably intertwined” with the

. Challenges to the February 6,.2001, rulings.. Id. at 486.

Moreover, as made clear by the ultimate injunctive relief

'© In contrast, in Exxon Mobil, the federal plaintiff did not

commence its action seeking to annul a state court judgment. Rather, as

detailed by the Court, the federal action was filed by Exxon Mobil as a

pre-emptive action prior to any state court adjudication, 125 S.Ct. at

1525.

Since Exxon’s federal court challenge sought a determination as

to whether Saudi Basic Industries Corporation had overcharged Exxon

Mobil’s joint ventures for sublicenses, rather than seeking to overturn an

existing state court judgment, the later adjudication of the state suit did

not, as the Court of Appeals concluded, deprive the lower federal courts

of jurisdiction. While the existence of the state court judgment might

warrant dismissal in whole or part of the federal case on claim or issue

preclusion grounds or deferral to the state proceedings on Younger v.

Harris, 401 U.S. 37 (1971) or other abstention grounds, “neither Rooker

nor Feldman supports the notion that properly invoked concurrent

jurisdiction vanishes if a state court reaches judgment on the same or

related question while the case remains sub judice in a federal court.”

Exxon Mobil, supra, 125 $.Ct. at 1527.

requested (no less than the essential focus of and the parties

named in the amended complaint), the objective of the federal

suit was to overturn and render null and void the findings and

orders entered by Judge Harper as of February 6, 2001. As

such, the courts below properly concluded that the relief

requested as to the State respondents would run afoul of the

Rooker-Feldman doctrine.

As the rulings below are consistent with the teachings of

this Court as to the limited scope of the Rooker-Feldman

doctrine and as no conflict or other compelling reason

warrants review of this matter, certiorari should be denied.

POINT I

PURSUANT TO THE ELEVENTH

AMENDMENT, THE. FEDERAL COURTS

LACK SUBJECT MATTER JURISDICTION TO

ADJUDICATE THE CLAIMS FOR

RETROSPECTIVE DECLARATORY AND

INJUNCTIVE RELIEF AS TO THE STATE

RESPONDENTS.”

The Eleventh Amendment of the United States

Constitution states:

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any foreign state.

'7 Although the Eleventh Amendment argument was not raised

or addressed below, this Court has repeatedly emphasized its obligation

to examine its jurisdiction as well as the jurisdiction of the courts below.

Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).

This amendment gives “affirmation to traditional notions of

State sovereign immunity and also bars actions by private

citizens against not only the State but also state agencies,

regardless of the relief sought.” Pennhurst State School and

Hospital v. Halderman, 465 U.S. 89, 100 (1984). The law

is clear that unless a State has consented to such litigation or

Congress has expressly abrogated the State’s Eleventh

Amendment immunity, claims brought in federal court against

a State or its agencies by private citizens are barred by the

Eleventh Amendment. Papasan v. Allain, 478 U.S. 265, 276

(1986); Pennhurst, supra, 465 U.S. at 100. “This bar exists

whether the relief sought is legal or equitable.” Papasan,

supra, 478 U.S. at 276. In addition, this Court has

consistently held that, under the Eleventh Amendment, suits

against state officials in their official capacities are no

different than suits against the State itself, and are barred.

Hafer v. Melo, 502.U.S. 21 (1991); Will v. Michigan Dept.

of State Police, 491 U.S. 58, 66, 71 (1989); Kentucky v.

Graham, 473 U.S. 159, 165-166 (1985).

In the present case, Mr. O’Callaghan has sued, in their

official capacities only, Judge Harper, who presided over the

challenged Family Part proceedings from June, 2000, through

March, 2001, as well as former Attorney General Farmer,

who had no role in these proceedings Because the State of

New Jersey has not consented to lawsuits against its judiciary

and executive branch members, and because Congress has

not abrogated the States’ Eleventh Amendment immunity in

civil rights suits such as this, the Eleventh Amendment bars

the claims asserted as to Judge Harper and Attorney General

Farmer in their official capacities. Therefore, the Court lacks

jurisdiction under the Eleventh Amendment to review this

matter.

The fact that the petitioners are seeking only declaratory

and injunctive relief as to the State respondents does not

deprive these state officials of the benefit of Eleventh

Amendment immunity. As the Court has emphasized, the Ex

EN AO eT Mel Me CBW NR, MPT 9s ea

os Poe te ge ae ee

Parte Young, 209 U.S. 123 (1908), fiction only applies where

the requested relief is prospective, and not retrospective, in

nature. Idaho v. Couer d’Alene Tribe of Idaho, 521 U.S.

261, 294 (1997). See also Verizon Md. Inc. v. Public

Service Comm’n of Md., 535 U.S. 635, 645-48 (2002).

In the present case, petitioners are seeking retrospective

relief in the form of a declaration that their constitutional

rights were violated in the past by the rulings of Judge

Harper. This is retrospective relief for an alleged wrong by

a public official rather than prospective relief against state

officials. See Green v. Mansour, 474 U.S. 64, 68 (1985).

Additionally, insofar as Attorney General Farmer played no

role in the challenged Family Court proceedings nor in the

adoption or enforcement of the challenged court rules, the

limited exception carved out by Ex Parte Young does not

apply and Eleventh Amendment immunity obtains for this

reason as well. See Fitts v. McGee, 172 U.S. 516, 529-30

(1899). Compare with Ex parte Young, supra, 209 U.S. at

156. See also Okpalobi v. Foster, 244 F.3d 405, 412-419 (5"

Cir. 2001).

Accordingly, the claims for declaratory and injunctive

relief brought as to the State respondents are barred under the

Eleventh Amendment. Therefore, the petition for certiorari

should be denied on this basis alone.

POINT Il

DISMISSAL OF THE FEDERAL COMPLAINT

SEEKING INJUNCTIVE AND DECLARATORY

RELIEF AS TO JUDGE HARPER AND

ATTORNEY GENERAL FARMER WOULD

HAVE BEEN WARRANTED, AS ARGUED

BELOW, UNDER YOUNGER V. HARRIS, 401

U.S. 37 (1971), ABSTENTION PRINCIPLES."

In its long line of abstention decisions beginning with

Younger v. Harris, 401 U.S. 37 (1971), this Court has

articulated a strong public policy against interference with

ongoing state proceedings by federal courts. The Younger

Court identified two primary reasons for federal courts to

abstain where there are pending State proceedings. One is the

basic equitable principle that courts of equity should not act,

particularly to restrain State judicial processes, when the

affected party has an adequate remedy at law and will not

suffer irreparable harm by denial of the equitable relief. Id.

at 45. The second, more critical consideration, is the notion

of federalism or comity. As further developed in Ohio Civil

Rights Commission v. Dayton Christian Schools, Inc., 477

U.S. 619 (1986), and Pennzoil v. Texaco, 481 U.S. 1 (1987),

the Younger abstention doctrine instructs that absent

extraordinary circumstances justifying intrusion, federal

courts should refrain from taking any action in cases where

the federal plaintiff has adequate redress available in State

court proceedings.

Although Younger involved State court criminal

proceedings and a request for federal injunctive relief, the

Court has extended the doctrine to the civil context (where

'§ This Court can dispose of the petition for certiorari on any

ground raised below and therefore is not limited to the single rationale for

dismissal of the claims upheld by the lower courts. See Thigpen v.

Roberts, 468 U.S. 27, 29-30 (1984).

esac iit

}

‘ both federal injunctive and declaratory relief are sought) when

the following three requirements are satisfied: (1) there is an

‘ ongoing state proceedi ich is judicial in nature; (2) the

| ae State interests; and (3) there

i will be an opportunity at same stage of the proceeding to raise

constitutional challenges. Middlesex County Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Huffman

v. Pursue, Ltd., 420 U.S. 592 (1975). See also Quackenbush

v. Allstate Ins. Co., 517 U.S. 706 (1996).

‘ In Huffman y. Pursue, Ltd, supra the federal plaintiff had

never appealed from the grant of a permanent injunction

against him in the Allen County Court of Common Pleas. As

detailed by the Court:

BAR Stand PRA ida Pk Gta

As a matter of state procedure, the judgment

presumably became final, in the sense of being

nonappealable, at some point after the District Court

filing, ... [But] regardiess of when the Court of

Common Pleas’ judgment became final, we believe

that a necessary concomitant of Younger is that a

party in appellee’s posture must exhaust his state

appellate remedies before seeking relief in the

District Court, unless he can bring himself within

one of the exceptions specified in Younger.

{Id. at 608; emphasis added]

The Huffman Court expressed the important interests that are

served by this deference to the state appellate process

Virtually all of the evils at which Younger is

directed would inhere in federal intervention prior to

completion of state appellate proceedings, just as

surely as they would if such intervention occurred at

or before trial. Intervention at the later stage is if

anything more highly duplicative, since an entire

trial has already taken place, and it is also a direct

aspersion on the capabilities and good faith of state

appellate courts. Nor, in these state-initiated

nuisance proceedings, is federal intervention at the

appellate stage any the less a disruption of the State’s

efforts to protect interests which it deems important.

Indeed, it is likely to be even more disruptive and

offensive because the State has already won a nisi

prius determination that its valid policies are being

violated in a fashion which justifies judicial

abatement.

[Id. at 608-09; emphasis added]

For these reasons the Court concluded that it did not matter

for Younger purposes whether the federal plaintiff had availed

himself of the state appellate option: “In any event, [the

plaintiff] may not avoid the standards of Younger by simply

failing to comply with the procedures of perfecting its

appeal.” Id. at 611 n. 22.

More recently in New Ori Public Service v. New

Orleans, 491 U.S. 350, 368-369 (1989), the Court again

voiced similar sentiments:

For Younger purposes, the State’s trial-and appeals

process is treated as a unitary system, and for a

federal court to disrupt its integrity by intervening in

mid-process would demonstrate a lack of respect for

the State as sovereign. For the same reason, a party

may not procure federal intervention by terminating

the state judicial process prematurely ...

[emphasis supplied]

In this case, the District Court properly could have

dismissed the claims asserted as to the State respondents

under Younger abstention principles. As this Court in

Huffman recognized, Younger abstention principles seek to

avoid “federal intervention which would annul the results of

[a State court or] agency determination,” and deprive the

States of the legitimate and proper function of resolving

constitutional issues “in litigation over which they had

jurisdiction.” 420 U.S. at 609. This point was earlier

highlighted in Wooley _v. Maynard, 430 U.S. 705, 711

(1977). There, in declining to find error in the District

Court’s refusal to abstain, the Court noted:

Here ... the suit is in no way ‘designed to annul the

results of a State trial’ since the relief requested

sought is wholly prospective, to preclude future

prosecution under a statute alleged to violate

appellees’ constitutional rights. Maynard has already

sustained convictions and has served a sentence of

imprisonment for his prior offenses. He does not

seek to have his record expunged, nor to annul any

collateral effects those convictions may have, e.g.

upon his driving privileges. The Maynards seek

only to be free from prosecutions for future

violations of the same statutes.

[emphasis supplied]

However, in this case, petitioners seek precisely the relief

the Maynard Court sought to distinguish. Thus, the amended

complaint requests a declaratory ruling as to the

“unconstitutionality of the [New Jersey Court] Rules relating

to the identified hearings and Family Court orders and

Findings and the [February 6, 2001] Letter Decision and the

$10,000 Order and related practices/procedures conducted

pursuant to the above Rules . . .” (A94). As well, petitioners.

seek an order “enjoining enforcement” of all of Judge

Harper’s orders issued in the Family Court case as well as

reinstatement of the June, 2000 complaint for “effective

visitation and custody”. (A95; A97; A101).

Clearly such claims for relief, insofar as it would render

the final determinations of the Family Court a nullity, fall

directly within the Wooley v. Maynard proscription and thus

should not be properly entertained by the federal courts. See

Pennzoil Co. v. Texaco, Inc., supra, 481 U.S. at 13-14

(federal action to enjoin enforcement of State court judgment

and to declare Texas bond and lien provisions violative of due

process by arbitrarily depriving Texaco of right to appeal

dismissed on Younger abstention grounds to avoid federal

granting of relief which would make State court’s judgments

“nugatory”).

Moreover, in the present case, as in Pennzoil, all three

preconditions for Younger abstention were satisfied. Within

two weeks of the date the amended complaint was filed in

federal court, Mr. O’Callaghan had filed his first appeal as of

right in the State appellate court from Judge Harper’s

February 6 and March 26, 2001 orders - - the very orders

challenged in this action. Thus, there is no question as to the

existence of an on-going proceeding in State court with

respect to the custody case that forms the basis of the

constitutional claims before the federal court. This satisfies |

the first of the Younger abstention requirements.

Nor can there be any doubt as to satisfaction of the

second Younger factor - - that the pending state proceeding

implicated important state interests. The federal courts have

repeatedly recognized that child custody issues reflect

important state interests and that state courts have an

important interest in matters involving divorce, alimony,

child custody and spousal and child support. See Elk Grove

Unified School District v. Newdow, 542 U.S. 1, 124 S.Ct.

2301, 2309 (2004); Moore v. Sims, 442 U.S. 415, 434-35

}

eae fie sci 4,

SALA ESO SAREE BORON

(1979).'? Accordingly, the second Younger requirement was

satisfied.

Finally, the state appeal process which Mr. O’Callaghan

pursued afforded the opportunity to raise (as he had below)

his federal constitutional claims. Under the New Jersey Court

Rules, litigants who disagree with the findings of a trial court

have a right to appeal that decision to the Appellate Division

of the state and further to the New Jersey Supreme Court if

the Appellate Division decision is not acceptable. Moreover,

it is clear that the state appellate proceedings offer ample

opportunity to present constitutional claims. Thus, the

Supreme Court of New Jersey in Maisonet v. Dept. of

Human Services, 140 N.J. 214, 657 A.2d 1209 (1995), ruled

that in an appeal from a State administrative decision the

appellant could include claims under 42 U.S.C. §§1983 and

1988 directly related to the challenge to the agency action.

Thereafter, the Appeliate Division could either decide the

federal claims in the exercise of its original jurisdiction or

transfer those claims to the Law Division. 140 N.J. at

226-227. No lesser ability obtained as to the appeal from the

Family Court orders. Thus, as is evident in Mr.

O’Callaghan’s Appellate Division appeal brief, he was free to

raise anew both state law and federal constitutional challenges

to the rulings rendered by Judge Harper.”

'9 Indeed, given the preeminent role of the State courts and

federal court deference to State law in this area it might have been

appropriate for the district court to have declined jurisdiction under the

“domestic relations exception” even though the relief requested did not

seek issuance directly by the federal court of a child custody decree. See

Ankenbrandt v. Richards, 504 U.S. 689, 703, 705-6 (1992) But see Elk

Grove Unified School District v. Newdow, supra, 124 S.Ct. at 2313-14

(concurring opinion of Chief Justice Rehnquist).

0 Here, review by the state appellate courts eliminated many of

the state law issues undergirding the constitutional claims, which

(continued...)

Because all of the requirements needed for application of

the Younger abstention were present in this case, and as no

compelling equitable basis for federal court intervention was

presented, the courts below appropriately should have

abstained from hearing this matter. Thus denial of the

petition for certiorari is warranted on this basis as well.

POINT IV

THE PETITION FOR CERTIORARI SHOULD

BE DENIED AS THE CLAIMS FOR

DECLARATORY AND INJUNCTIVE RELIEF

AS TO THE STATE RESPONDENTS ARE

MOOT.

Insofar as the essential relief sought by the amended

complaint filed in April, 2001, as to the State respondents

was for an order directing reinstatement of Mr. O’Callaghan’s

Family Court complaint for effective visitation and custody of

his son, and a hearing before a judge of the Family Part

(other than Judge Harper) as to visitation rights, that relief

was accorded by reason of the intervening Appellate Division

ruling of October 29, 2002. Although the appellate panel

rejected the multitude of arguments advanced by Mr.

O’Callaghan as to the invalidity of Judge Harper’s February,

March and June, 2001, orders, the court did remand the case

for further hearings as to the issue of overnight visitation

between D.T.B. and his father (RApp.B at 69a to 70a). As

revealed in the subsequent July 1, 2003, Appellate Division

opinion, those hearings proceeded before the Family Part (and

0. continued)

petitioners continue to advance before this Court, see Pet. at 2 and n.1,

7 0.5, 16,17,19,20,21,23 as to the Parentage Act, N.J.S.A. 9:17-38 et

seq, application of N.J. Ct. R.5:1-4 and the family therapist privilege as

explored in Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556 (1997).

See R.App.B at 65a to 69a.

before a judge other than Judge Harper) (RApp.A at 7a to

15a). Additionally, Mr. O’Callaghan had the opportunity in

his state appeal to present his claims as to the unconstitutional

application of the court rules challenged in this litigation and

the further opportunity to seek review of those claims before

the Supreme Court of New Jersey, and thereafter this Court.

He, however, chose not to do so.

As the rulings by Judge Harper challenged in this

litigation have been effectively resolved by the intervening

Appellate Division ruling, no live controversy exists as to the

essential relief sought in this litigation. See Arizonans for

Official English v. Arizona, 520 U.S. 43, 67-68 and n.23

(1997). See also Green v. Mansour, supra, 474 U.S. at 72-

73 (equitable considerations militate against issuance of

declaratory relief where dispute concerns repealed law). For

this reason as well, the petition for certiorari should be

denied.

CONCLUSION

For all the foregoing reasons, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

PETER C. HARVEY

ATTORNEY GENERAL OF NEW

JERSEY

Attorney for State Respondents

By:

Andrea M. Silkowitz

Assistant Attorney General

Counsel of Record

R.J. Hughes Justice Complex

P.O. BOX 112

Trenton, New Jersey 08625

(973) 648-4730

Dated: May 18, 2005

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.