Appendix Vol I — Tindall v. Wayne County Friend of Court

In the Supreme Court of the United States

MICHAEL E. TINDALL

Plaintiff-Petitioner

Vv.

WAYNE COUNTY FRIEND OF THE COURT, BY

JOSEPH A. SCHEWE, Director of Legal Services;

ALAN E. SKROK, Staff Attorney, Assistant Friend

Of Court;WAYNE COUNTY SHERIFF'S

DEPARTMENT, By: ROBERT FICANO, Sheriff;

WAYNE COUNTY CIRCUIT COURT, FAMILY

DIVISION, By: KIRSTEN FRANK KELLY, Presiding

Judge; MICHAEL F.SAPALA, Chief Judge

Defendants-Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

APPENDIX I TO PETITION FOR A WRIT OF

CERTIORARI

Michael E. Tindall

TINDALL & CO. P.C.

49 Macomb PL

Suite 29

Mt. Clemens MI 48043

(313) 640-4450

Counsel for the Petitioner

Appendix A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHLGAN

SOUTHERN DIVISION

MICHAEL E. TINDALL.

Plaintiff.

Case No. 98-C V-73896-DT

HONORABLE DENISE PAGE HOOD

WAYNE COUNTY FRIEND OF COURT,

by: JOSEPH A. SCHEWE. DIRECTOR OF

LEGAL SERVICES, and ALAN E. SKROK,

STAFF ATTORNEY and ASSISTANT FRIEND

OF COURT; WAYNE COUNTY SHERIFF'S

DEPARTMENT, by: ROBERT FICANO. SHERIFF~

WAYNE CO~JNTY CIRCUIT COURT. FAMILY

DIVISION, by: KIRSTEN FRANK KELLY,

PRESIDING JUDGE, MICHAEL F. SAPALA,

CHIEF JUDGE,

Defendants.

\

ORDER DISMISSING COMPLAINT

4

Pursuant to the Remand and Judgment

entered by the United States Court of Appeals for

the Sixth Circuit tiled October 15, 2001,

IT IS ORDERED that the Complaint is

DISMISSED in its entirety.

“S/

DENISE PAGE HOOD

UNITED STATES DISTRICT JUDGE

DATED: OCTOBER 23, 2001

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL E. TINDALL, Plaintiff-

Appellant,

V.

WAYNE COUNTY FRIEND OF THE

COURT, by: JOSEPH A. SCHEWE,

Director of Legal Services; ALAN E.

SKROK, Staff Attorney; ASSISTANT

FRIEND OF COURT; WAYNE COUNTY

SHERIFF'S DEPARTMENT, by: ROBERT

FICANO, Sheriff; WAYNE COUNTY

CIRCUIT COURT, FAMILY DIVISION,

by: KIRSTEN FRANK KELLY, Presiding

Judge; MICHAEL F. SAPALA, Chief

Judge, Defendants-Appellees.

MICHAEL E. TINDALL, Plaintiff-

Appellant/Cross-Appellee,

V.

WAYNE COUNTY FRIEND OF THE

COURT, by: JOSEPH A. SCHEWE,

Director of Legal Services; WAYNE

COUNTY SHERIFF'S DEPARTMENT, by:

6

ROBERT FICANO, Sheriff; ALAN E.

SKROK, Staff Attorney; ASSISTANT

FRIEND OF COURT, Defendants,

WAYNE COUNTY CIRCUIT COURT,

FAMILY DIVISION, by: Kirsten Frank

Kelly, Presiding Judge; Michael F.

Sapala, Chief Judge, Defendants-

Appellees / Cross-Appellants.

MICHAEL E. TINDALL, Plaintiff-

Appellant/ Cross-Appellee,

V.

WAYNE COUNTY FRIEND OF THE

COURT, by: Joseph A. Schewe, Director

of Legal Services; Alan E. Skrok, Staff

Attorney, Defendants-Appellees/Cross-

Appellants, Wayne County Sheriffs

Dep't, et al.,

Nos. 99-2208/99-2312/99-

2319

June 13, 2001, Argued

October 15, 2001, Decided

October 15, 2001, Filed

PRIOR HISTORY:

7

Appeal from the United States District Court for the

Eastern District of Michigan at Detroit. No. 98-

73896. Denise Page Hood, District Judge.

Tindall v. Wayne County Friend of Court, 1999 U.S.

Dist. LEXIS 15928 (E.D. Mich. 1999)

DISPOSITION: '

VACATED judgment of district court and

REMANDED with instructions to dismiss complaint.

COUNSEL:

ARGUED: Michael E. Tindall, TROMBLY TINDALL,

Port Huron, Michigan, for Plaintiff.

Margery Moselle Mann, WAYNE COUNTY FRIEND

OF THE COURT, LITIGATION SECTION, Detroit,

Michigan, Joseph C. Marshall, III, DICKINSON,

WRIGHT, MOON, VAN DUSEN & FREEMAN,

Detroit, Michigan, for Defendants.

ON BRIEF: Michael E. Tindall, TROMBLY TINDALL,

Port Huron, Michigan, for Plaintiff.

Margery Moselle Mann, Janet E. LeAnnais, WAYNE

COUNTY FRIEND OF THE COURT, LITIGATION

SECTION, Detroit, Michigan, Joseph C. Marshall,

Ill, Kathleen A. Lang, Ann J. Foeller, DICKINSON,

WRIGHT, MOON, VAN DUSEN & FREEMAN,

Detroit, Michigan, for Defendants-

JUDGES:

Before: RYAN and COLE, Circuit Judges; MARBLEY,

District Judge. *

* The Honorable Algenon L. Marbley, United States

District Judge for the Southern District of Ohio,

sitting by designation.

OPINIONBY:

R. GUY COLE, JR.

OPINION:

R. GUY COLE, JR., Circuit Judge. Attorney and

divorce Michael E. Tindall is a noncustodial parent

who has continually and inexplicably failed to

comply with court orders requiring him to make

support payments for his minor children. He has

been the subject of at least eight enforcement

proceedings to collect delinquent support payments,

instituted under Michigan's Friend of Court Act,

Mich. Comp. Laws Ann. § 552.501 et seq., and its

Support and Visitation Enforcement Act, Mich.

Comp. Laws Ann. § 552.601. Dissatisfied with the

manner in which those proceedings were conducted,

Tindall filed the instant action raising various

federal claims. Named in Tindall's lawsuit are

Defendants-Appellees the Wayne County Friend of

the Court ("FOC"); the Wayne County Circuit Court,

Family Division ("WCCC"); the Wayne County

Sheriffs Department ("Sheriff's Department’); and

individual defendants Joseph A. Schewe, Director of

9

FOC Legal Services; Alan E. Skrok, FOC Staff

Attorney; Robert Ficano, Sheriff, Wayne County

Sheriffs Department; Kirsten Frank Kelly, Presiding

Judge, WCCC; and Michael F. Sapala, Chief Judge,

WCCC fall collectively referred to herein as

"Defendants"}.

Tindall appeals from the district court's grant in

part of the motions to dismiss of Defendants-

Appellees, specifically challenging the district

court's application of the Younger v. Harris

abstention doctrine to Counts III and VI of his

complaint in refusing to determine the

constitutionality of Mich. Comp. Laws Ann. §

552.628 ("License Act"), which provides for the

suspension of the occupational or driver's license of

a delinquent child-support payer; and whether the

FOC's failure to follow established policies for

conducting referee and judicial hearings violated his

right to due process. Tindall also assigns error to

the district court's denial of his request for

injunctive relief under the Federal Courts

Improvement Act of 1996, as to Counts IV and V of

his complaint; and to the district court's alleged

misapplication of the Fed. R. Civ. P. 12(b)(6)

standard in evaluating his claims.

Cross-Appellants the FOC and the WCCC raise

challenges of the district court's grant in part of

Tindall's motion for summary judgment and assert

that: (1) the district court violated the Eleventh

Amendment when it exercised subject-matter

jurisdiction over Tindall's claims; (2) the post-

complaint transfer of Tindall's divorce action to

10

Macomb County Circuit Court rendered moot his

claims, thus requiring us to vacate the district

court's judgment in this case; (3) the district court

erroneously concluded that Tindall had standing to

assert the claims raised in his complaint; (4) the

district court improperly refused to abstain from

ruling on all of Tindall's claims; (5) the district court

erred by permitting Tindall to proceed under the

Declaratory Judgment Act; and (6) the district court,

in granting Tindall's summary judgment motion, -

erroneously concluded that Defendants’ procedures

for issuing show cause orders and bench warrants

were unconstitutional. nl

nl Defendant-Appellee Sheriffs Department has

neither entered an appearance in this matter nor

filed briefs for purposes of this appeal. Thus, we will

assume that it has impliedly adopted the arguments

raised by its co-appellees, the WCCC and the FOC.

This case presents a host of legal questions for

our consideration. Because, however, we conclude

that the district court properly should have

abstained from reaching any of Tindall's claims, we

decline to reach any issue except that pertaining to

abstention. We therefore VACATE the order of the

district court and REMAND this case with

instructions to dismiss Tindall's complaint.

11

I. BACKGROUND

In December 1991, a divorce judgment issued in

the Wayne County Circuit Court ending the

marriage of Michael and Grace Tindall, pursuant to

which, Tindall was ordered to make support

payments for his two minor children. He repeatedly

failed to make the required payments. Between

October 1993 and April 1997, no fewer than five

show cause orders issued ordering Tindall to answer

for his failure to pay court-ordered child support.

When Tindall failed to appear at these hearings,

bench warrants issued immediately thereafter.

Tindall alleges that the WCCC and the FOC violated

their established procedures by pre-signing these

show cause orders and bench warrants and by

allowing them to be issued by nonjudicial officers.

A WCCC representative issued another show |

cause order on April 25, 1997, ordering Tindall to

appear at a hearing to answer for his failure to

comply with the court's previous child support

order, which had resulted in the August 21, 1996,

issuance of a bench warrant. Tindall failed to

appear at this hearing and instead sent his attorney

to inform the court that he had never received

notice of the hearing and that he had not been

made aware that a bench warrant for his arrest had

issued until the morning of the hearing. FOC

attorney Shelly Payne disputes this point. When

further confusion developed at the hearing

concerning who had authorized the issuance of the

‘

‘

12

August 21, 1996, warrant and where that warrant

was currently located, Payne drew up a new

warrant, signed by Judge Giovan, requiring Tindall

again to show cause why he should not be held in

contempt. n2

n2 At the hearing, Payne admitted that she had

authorized the warrant, which Tindall points to as

evidence that the FOC and its employees

disregarded established procedures for issuing

bench warrants. See Mich. Court Rules [hereinafter

M.C.R.] 3.208(B) (noting that while a friend of court

may petition for a show cause order, only a court

may issue a bench warrant); see also Mich. Comp.

Laws Ann. § 552.631 (same).

In response to the May 14, 1997, warrant,

Tindall filed a Complaint for Superintending Control

in the Michigan Court of Appeals, accompanied by

an "Emergency Ex Parte Motion for Superintending

Control and to Stay Enforcement of a Void Bench

Warrant," in which Tindall objected to the

procedures that had been employed during the

pendency of his divorce action. n3 ‘Specifically, he

challenged the manner in which show cause orders

had been issued and how show cause hearings had

been conducted and questioned the propriety of

Judge Giovan's and Payne's continued participation

- in his divorce action. The Michigan Court of Appeals

13

issued a summary order denying Tindall's

Complaint for Superintending Control on May 22,

1997. Tindall filed a Complaint for Superintending

Control in the Michigan Supreme Court on May 27,

1997, lodging the same grievances raised in the

previous complaint filed in the Court of Appeals. In

a June 5, 1997, order, the Michigan Supreme Court

declined review of Tindall's petition on June 5,

1997.

Tindall v. Wayne Circuit Judge, 454 Mich. 921, 564

N.W.2d 50, 1997 Mich. LEXIS 1285 (1997)

n3 Under Michigan law, superintending control

orders are used to determine "if the inferior

tribunal, upon the record made, had jurisdiction,

whether or not it exceeded that jurisdiction and

proceeded according to law." People v. Burton, 429

Mich. 133, 413 N.W.2d 413, 416 (Mich. 1987).

Superintending control is an extraordinary power

that may be exercised when a petitioner

demonstrates both the respondent's failure to

perform a clear legal duty and the absence of an

adequate legal remedy. See In re Recorder's Court

Bar Ass'n v. Wayne Circuit Court, 443 Mich. 110,

903 N.W.2d 885, 897 (Mich. 1993). If it is

determined that a petitioner seeking such an order

has an adequate legal remedy by resort to the state

appellate process, a complaint for an order of

Superintending control must be dismissed. See

ORIOL a AP hain 254 5

14

M.C.R. 3.302(D)(2). Review in such cases is limited

to questions of law. See id.

Tindall's continued nonpayment of child support

resulted in the issuance of additional show cause

orders and bench warrants. Several hearings were

held at which Tindall was required to demonstrate

why he should not be held in contempt for his open

defiance of the court's. orders. On one such

occasion, a WCCC judge held Tindall in contempt of

court and ordered him incarcerated for forty-five

days, or until he made a $2000 payment towards

his child support obligations. Tindall complied with

the court's order and avoided incarceration.

Thereafter, on August 24, 1998, the FOC served

Tindall with a notice informing him that on

September 8, 1998, it would seek an order

suspending his license to practice law for his failure

to pay court-ordered child support. Tindall filed no

motion to quash the notice, failed to appear at the

hearing, and did not otherwise raise a challenge to

it-in state court, but proceeded instead to federal

court to file the lawsuit presently before us.

Tindall initiated the instant lawsuit in the United

States District Court for the Eastern District of

Michigan on September 4, 1998. Tindall's complaint

set forth four claims, pursuant to 42 U.S.C. § 1983

and 28 U.S.C. § 2201, alleging that the License Act,

which provides for the suspension of the driver's or

occupational license of a delinquent child-support

15

payer, is unconstitutional, both facially and as

applied by the WCCC and the FOC (Count III); that

the procedures employed by the WCCC and the FOC

to initiate contempt proceedings are

unconstitutional (Count IV); that the procedures

utilized by the WCCC and the FOC to issue bench

warrants are unconstitutional (Count V); and that

WCCC's referee hearings and judicial hearings

[collectively referred to herein as "contempt

proceedings"] are unconstitutional for their failure

to comply with Michigan Court Rules (Count VI).

Tindall sought an order from the district court

declaring the contested statute and procedures

unconstitutional; enjoining the named defendants

from taking further action pursuant to the

contested statute and procedures; and awarding

him attorney fees and costs.

On or about-September 28, 1998, Defendants

filed separate motions to dismiss, and Tindall filed

a cross-motion for summary judgment. After a

hearing on the motions, the district court issued a

judgment on September 30, 1999, and made the

following findings: (1) because Tindall could not

demonstrate that there had been any attempt by the

WCCC or the FOC to enforce the License Act and

suspend his law license, it abstained from ruling on

the constitutionality of the statute (Count III); (2)

because Tindall successfully demonstrated (without

rebuttal by Defendants) that the FOC acted in bad

faith by violating its established procedures for

issuing show cause orders and bench warrants, no

Younger abstention bar existed, and in the absence

16

of such a bar, both summary judgment on Counts

IV and V and a declaratory judgment finding these

practices unconstitutional were appropriate (Counts

IV, V); and (3) with respect to the contempt

proceedings, because Tindall failed to demonstrate

_ that the FOC and the WCCC do not follow their

established procedures for conducting contempt

proceedings, and because he could not therefore

demonstrate the requisite bad faith or flagrant

unconstitutionality to overcome a Younger

abstention bar, the district court abstained from

ruling on this issue (Count VI). In short, the district

court granted Tindall's motion for summary

judgment on Counts IV and V and declined to rule

on Counts III and VI, finding no exception to the

Younger abstention doctrine.

II. DISCUSSION

The Younger abstention doctrine counsels a

federal court to abstain from adjudicating a matter

properly before it in deference to ongoing state

criminal proceedings. See Younger v. Harris, 401

U.S. 37, 37-38, 27 L. Ed. 2d 669, 91 S. Ct. 746

(1971); see also Middlesex County Ethics Comm.

v. Garden State Bar Ass'n, 457 U.S. 423, 432, 73 L.

Ed. 2d 116, 102 S. Ct. 2515 (1982) (extending the

doctrine to encompass civil and administrative

proceedings). Three considerations have emerged

for determining when abstention is appropriate: (1)

whether the underlying proceedings constitute an

ongoing state judicial proceeding; n4 (2) whether the

proceedings implicate important state interests; and

(3) whether there is an adequate opportunity in the

17

State proceedings to raise a constitutional challenge.

Where a review of these considerations suggests

that the state court should properly adjudicate the

matter, a federal court should abstain and order the

federal complaint dismissed. If, however, a plaintiff

can demonstrate extraordinary circumstances such

as bad faith, harassment, flagrant

unconstitutionality, or another unusual

circumstance warranting equitable relief, then a

federal court may decline to abstain. See Fieger v.

Thomas, 74 F.3d 740, 750 (6th Cir. 1996). A district

court's decision to abstain from adjudicating a claim

pursuant to the Younger doctrine is a question of

law that we review de novo. See Cooper v. Parrish,

203 F.3d 937, 954 (6th Cir. 2000).

n4 We have relaxed this requirement, noting that

“even in the absence of a pending state proceeding

. ., @ federal court cannot grant relief regarding

unconstitutional practices which occur at a state

trial." Parker v. Thomas, 626 F.2d 1, 10 (6th Cir.

1980).

In the instant case, the district court reviewed

each of these factors and determined that it should

properly abstain from considering Tindall's claims.

It then proceeded to consider whether Tindall had

Satisfied any of the recognized Younger exceptions,

and concluded that he had demonstrated, with

18

respect to Counts IV and V, bad faith on the part of

FOC. Specifically, the district court found that the

Defendants’ failure to rebut Tindall's allegations

that they failed to follow their established

procedures for issuing show cause orders and

bench warrants constituted an admission to the

truth of those allegations. Such an admission, the

district court concluded, was evidence of bad faith,

thus removing any Younger bar to its consideration

of those claims.

Defendants submit that the district court

disregarded this Circuit's well-settled rule that

"federal = courts, absent ‘extraordinary

circumstances’ must abstain from’ granting

declaratory or injunctive relief [affecting a civil

contempt hearing stemming from the nonpayment

of child support] because doing so would involve

unduly intrusive interference with, and monitoring

of, the day-to-day conduct of state hearings and

trials." Sevier v. Turner, 742 F.2d 262, 269-70 (6th

Cir. 1984). We agree that the district court's failure

to abstain contravened our holding in Sevier v.

Turner, a case almost factually indistinguishable

from the instant one.

In Sevier, plaintiff Freddie Sevier, a noncustodial

parent obligated to pay child support for his minor

children, sought injunctive and declaratory relief

against various Tennessee juvenile judges and other

family court officials. See Sevier, 742 F.2d at 264-

65. Sevier alleged, inter alia, various due process

violations stemming from the officials’ alleged failure

to inform him of certain rights to which he was

19

entitled at a civil contempt hearing (e.g., the right to

counsel). See id. at 265-66. When he was

unsuccessful in obtaining relief from the trial court,

Sevier filed before the Tennessee Court of Appeals

and the Tennessee Supreme Court Tennessee's

equivalent of a motion for superintending control,

seeking an extraordinary appeal from the trial

court's adverse ruling. See id. at 266. Both appeals

were denied, and Sevier then sought relief in federal

court. See id. The district court dismissed his suit.

See id. On appeal, relying on our decision in Parker

v. Turner, 626 F.2d 1 (6th Cir. 1980), we abstained

from adjudicating Sevier’s injunctive- and

declaratory-relief claims, finding that Sevier had

failed to demonstrate “extraordinary circumstances"

for federal court relief. See Sevier, 742 F.2d at 270.

The district court in this case never considered

the impact of Sevier on Tindall's case, concluding

that while the action might otherwise be barred,

Defendants’ bad faith provided a basis for reaching

Counts IV and V of Tindall's complaint. We disagree

with the district court's analysis and conclude that

Sevier forecloses Tindall's action. Although the

Supreme Court has recognized that bad-faith

prosecution of an individual may serve as a proper

exception to the Younger abstention doctrine, see,

e.g., Middlesex County Ethics Comm., 457 U.S. at

435, we have found no Supreme Court case that

has ever authorized federal intervention under this

exception. Such cases thus are exceedingly rare,

particularly where a plaintiff seeking to defeat an

abstention argument has failed to avail himself first

20

of state appellate processes before seeking relief in

federal court:

The actions alleged to constitute evidence of bad

faith on the part of the defendants in the instant

appeal can all properly be challenged, either by

motion to the trial court, or later on appeal to the

state appellate courts. As such, Ballard plainly has

an adequate opportunity to have [her] constitutional

defenses heard and determined during the course of

the state court proceedings. Where there exists the

possibility of raising and correcting constitutional

claims in state courts, the principles of federalism

and comity expressed in Younger require that a

criminal defendant must first exhaust his state

appellate remedies before seeking relief in the

District Court. Ballard v. Stanton, 833 F.2d 593,

594 (6th Cir. 1987) (emphasis added) (internal

citations and quotation marks omitted). Here, it is

undisputed that Tindall's only resort to Michigan

courts for relief occurred when he filed his motions

for superintending control before the Michigan

Court of Appeals and the Michigan Supreme Court.

Those appeals, without more, are insufficient to

rebut the presumption in favor of abstention. See

Sevier, 742 F.2d at 270-71.

The district court erred by folding into its inquiry

of the abstention question consideration of whether

Defendants had responded to the allegations set

forth in Tindall's complaint. In resolving the

threshold question of whether it should properly

abstain from consideration of Tindall's claims, it

a 21

essentially made a merits determination -- that

Defendants' failure to rebut the claims raised in

Tindall's complaint constituted an "admission"

entitling him to relief. We are not persuaded that a

disputed admission is sufficient to demonstrate

“extraordinary circumstances." Indeed, if we

declined to find the requisite "extraordinary

circumstances" to intervene in Sevier, where the

plaintiff alleged injuries far more egregious than

Tindall's, then a fortiori we are foreclosed also from

reaching Tindall's claims. See 742 F.2d at 265-67

(discussing how - the officials’ alleged violations

arguably resulted in incarceration of, financial

hardship to, and job loss by Sevier).

III. CONCLUSION

For the foregoing reasons, we VACATE the

judgment of the district court and REMAND this

case with instructions to dismiss Tindall's complaint

in its entirety.

22

Appendix C

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN,

SOUTHERN DIVISION

MICHAEL E. TINDALL, Plaintiff,

Vv.

WAYNE COUNTY FRIEND OF COURT, by: JOSEPH

A. SCHEWE, DIRECTOR OF LEGAL SERVICES,

and ALAN E. SKROK, STAFF ATTORNEY and

ASSISTANT FRIEND OF COURT;

WAYNE COUNTY SHERIFF'S DEPARTMENT, by:

ROBERT FICANO, SHERIFF;

WAYNE COUNTY CIRCUIT COURT, FAMILY

DIVISION, by: KIRSTEN FRANK KELLY,

PRESIDING JUDGE, MICHAEL F. SAPALA,

CHIEF JUDGE, Defendants.

Case No. 98-CV-73896-DT

September 30, 1999, Decided

September 30, 1999, Filed

COUNSEL:

For MICHAEL E. TINDALL, plaintiff: Michael E.

Tindall, Trombly, Tindall P.L.L.C., Port Huron, MI.

23

For WAYNE COUNTY FRIEND OF COURT, JOSEPH

A. SCHEWE, ALAN E. SKROK, defendants:

Margery M. Mann, Wayne County Friend of the

Court, Detroit, MI.

For WAYNE COUNTY SHERIFF DEPARTMENT,

defendant: Edward Ewell, Jr., Robert S.

Gazall, Herman G. Petzold, III, Wayne County

Corporation Counsel, Detroit, MI.

For KIRSTEN FRANK KELLY, MICHAEL F. SAPALA,

defendants: Brian D. Einhorn, John

M. Cooney, Collins, Einhorn, Southfield, MI.

For DAVID FINDLING, movant: David M. Findling,

Royal Oak, MI.

JUDGES:

DENISE PAGE HOOD, United States District Judge.

OPINIONBY:

DENISE PAGE HOOD

OPINION:

MEMORANDUM OPINION AND ORDER

I. FACTS

Plaintiff Michael E. Tindall filed the instant suit

under 42 U.S.C. @ 1983 claiming that his

constitutional rights are being violated by the

Defendants’ enforcement of Plaintiff's child support

24

obligations. Plaintiff claims the following: 1) that

M.C.L.A. @ 552.628 provides for an nconstitutional

suspension of an occupational license (Count III); 2)

that the show cause orders issued by the Friend of

the Court and Wayne County Circuit Court are

illegal (Count IV); 3) that the bench warrants issued

by Defendants are illegal (Count V); and 4) that the

referee and judicial hearings are illegal (Count V).

nl

nl Count I, entitled "Jurisdiction" does not state

a claim but merely sets forth the jurisdictional

basis of Plaintiffs Complaint. Count II, entitled

"General Allegations," also does not state a specific

claim but merely sets forth the factual basis of

Plaintiff's claims found in Counts III through V.

Plaintiff was divorced by a Judgment of Divorce

entered in December 1991 by the Wayne County

Circuit Court. From 1992 through the present,

Plaintiff claims he has been the subject of about

eight show cause orders issued by the Friend of

the Court during referee and judicial hearings.

Plaintiff claims he has been illegally incarcerated

without proper notice, hearing, opportunity to

defend or be represented by counsel. Plaintiff states

that he has orally and in writing objected to the

procedures before the Wayne County Circuit Court,

6 25

by complaint for Superintending Control in the

Michigan Court of Appeals and by complaint for

Superintending Control in the Michigan Supreme

Court. These complaints were denied.

This matter is now before this Court on the

various Defendants' Motion to Dismiss and

Plaintiffs Motion for Summary Judgment.

Responses were filed and a hearing was held on the

matter.

Il. ANALYSIS

A. Subject Matter Jurisdiction

1. Abstention Factors

Although not addressed by the parties, the Court

must first determine whether it has subject matter

jurisdiction over Plaintiffs Complaint. Plaintiff

alleges Section 1983 claims in his Complaint.

Inasmuch as Plaintiff is seeking federal review of a

State Court order, this Court has no subject matter

jurisdiction over such a claim.

A United States District Court has no authority to

review final judgments of a state court judicial

proceedings. Review of such judgments may be had

in the United States Supreme Court. District of

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

462, 482, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983).

To the extent that a District Court is requested to

26

review a State Court's order, the District Court

lacks subject-matter jurisdiction over those

complaints. Lower federal courts possess no power

whatever to sit in direct review of state court

decisions. If the constitutional claims presented to

a United States District Court are inextricably

intertwined with the state court's denial in a

judicialproceeding of a particular plaintiff's

complaint, then the district court is in essence

being called upon to review the state-court decision,

which the district court may not do. Id. at 483. To

the extent that a general challenge to the

constitutionality of a certain rule is alleged, the

District Court does have subject-matter jurisdiction

over those complaints. Id. at 482-483. The

Feldman case involved a constitutional challenge to

a state's regulation of lawyers. The Supreme Court

in Feldman in determining whether or not a

constitutional claim is inextricably intertwined to a

state court's order in a judicial proceeding, stated:

_.. We have recognized that state supreme courts

may act in a nonjudicial capacity in promulgating

rules regulating the bar. (citations omitted).

Challenges to the constitutionality of state bar

rules, therefore, do not necessarily require a United

States district court to review a final state-court

judgment in a judicial proceeding. Instead, the

district court may simply be asked to assess the

validity of a rule promulgated in a nonjudicial

proceeding. If this is the case, the district court is

not reviewing a state-court judicial decision. In this

27

regard, 28 U.S.C. @ 1257 does not act as a bar to

the district court's consideration of the case and

because the proceedings giving rise to the rule are

nonjudicial the policies prohibiting United States

district court review of final state-court judgments

are not implicated. United States district courts,

therefore, have subject-matter jurisdiction over

general challenges to state bar rules, promulgated

by state courts in nonjudicial proceedings, which

do not require review of a final state-court

judgment in a particular case. They do not have

jurisdiction, however, over challenges to state-court

decisions in particular cases arising out of judicial

proceedings even if those challenges allege that the

state court's action was unconstitutional. Review of

those decisions may be had only in this (U.S.

Supreme Court) Court. 28 U.S.C. @ 1257.

Feldman, 460 U.S. at 485-486. Federal courts

require that a plaintiff raise his federal

constitutional claims at the state level before the

federal courts will review a state court's decision.

The Supreme Court has noted the competence of

state courts to adjudicate federal constitutional

claims. Feldman, 460 U.S. at 483. Principles of

equity, comity and federalism in certain

circumstances counsel abstention in deference to

ongoing state proceedings. Younger v. Harris, 401

U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). In

Younger, the Supreme Court held that a federal

court should not interfere with a pending state

criminal proceeding exce~: in the rare situation

where an injunction is secessary to prevent great

28

and immediate injury. Id. at 44. The Supreme

Court has applied abstention to state civil

proceedings which involve important state interests

and to a variety of state administrative proceedings.

Middlesex County Ethics Committee v. Garden

State Bar Ass'n, 457 U.S. 423, 73 L. Ed. 2d 116,

102 S. Ct. 2515 (1982). The Supreme Court has

enumerated a three-part test to determine

abstention:

1) Whether the proceedings involved

constitute an ongoing state judicial proceeding;

2) Do the proceedings implicate important

state interests; and

3) Is there an adequate opportunity in the

state proceedings to raise constitutional

challenges?

Id. at 432.

2. Ongoing State Judicial Proceeding

In this case, the underlying proceeding involved is

enforcement of Plaintiffs child support obligations

under the divorce judgment entered by the Wayne

County Circuit Court. If a state action is pending

when the federal complaint was filed, the federal

action must be dismissed. Hicks v. Miranda, 422

U.S. 332, 45 L. Ed. 2d 223, 95 S. Ct. 2281 (1975).

Whether there is a pending state judicial

proceeding, the Supreme Court has held that "[a]

judicial inquiry investigates, declares and enforces

—

29

liabilities as they stand on present or past facts and

under laws supposed already to exist." New Orleans

Public Service, Inc. v. Council of the City of New

Orleans, 491 U.S. 350, 370, 105 L. Ed. 2d 298, 109

S. Ct. 2506 (1989). So long as state court judicial

review is available, Younger abstention applies.

Fieger v. Thomas, 74 F.3d 740, 745 (6% Cir. 1996).

The first requirement of the Younger abstention

has been met. There is no dispute that the state

proceedings in this case involve the enforcement of

Defendant's child support obligations under a

divorce judgment entered by the Wayne County

Circuit Court. Plaintiff has not shown that he has

appealed any of the orders entered by the Wayne

County Circuit Court. Plaintiff did file a Complaint

of Superintending Control with the Michigan Court

of Appeals and with the Michigan Supreme Court.

The requests for Superintending Control sought a

Stay of the proceedings before the Wayne County

Circuit Court and to determine the fitness of Judge

William Giovan to preside over the case. (Exs. E

and F to Plaintiffs Complaint) Both courts denied

Plaintiff's Complaint for Superintending Control. In

Michigan, superintending control is an

extraordinary power that may be invoked when the

plaintiff demonstrates the defendant's failure to

perform a clear legal duty and the absence of an

adequate legal remedy. In re Recorder's Court Bar

Ass'n v. Wayne Circuit Court, 443 Mich. 110, 134,

903 N.W.2d 885 (1993). Superintending control

orders are used to determine "if the inferior

30

tribunal, upon the record made, had jurisdiction,

whether or not it exceeded that jurisdiction and

proceeded according to law." In re People v. Burton,

429 Mich. 133, 139, 413 N.W.2d 413 (1994). The

review by the Michigan appellate courts on a

superintending control complaint is limited to

questions of law and is not available when the

plaintiff has an adequate legal remedy through an

appeal. Id. When an appeal is available, the

complaint for an order of superintending control

must be dismissed. M.C.R. 3.302((D)(2). Appeal

procedures to the Michigan Court of Appeals are

governed by M.C.R. 7.200 et seq. and to the

Michigan Supreme Court by M.C.R. 7.300 et seq.

The Court finds that there is currently a pending

state judicial proceeding before the Wayne County

Circuit Court involving Plaintiffs child support

obligations under a divorce judgment. Plaintiff has

not taken advantage of the appeal process to

further adjudicate his disagreements with the

Circuit Court's rulings, other than applying for

superintending control which is not a substitute for

the appellate process.

3. Important State Interests

The second prong of the abstention analysis has

also been met. The state proceedings before the

Wayne County Circuit Court-child support

enforcement issues and domestic relations law-

involve a paramount state interest. Mann v.

31

Conlin, 22 F.3d 100, 105 (6th Cir. 1994); Parker v.

Turner, 626 F.2d 1, 3 (6th Cir. 1980).

4. Adequate Opportunity to Raise Constitutional

Issues

The third requirement for abstention-that there

be an adequate opportunity in state proceedings to

raise constitutional challenges-has also been

met.Abstention is appropriate unless state law

clearly bars the interposition of the constitutional

claims. Moore v. Sims, 442 U.S. 415, 425-26, 60 L.

Ed. 2d 994, 99 S. Ct. 2371 (1979). The burden

rests on the federal plaintiff to show that state

procedural law barred presentation of the plaintiff's

claims. Id. at 432.

As discussed above, Plaintiff has the opportunity

to challenge the constitutionality of the procedures

through the Michigan appellate courts. Plaintiff has

not shown that he has challenged Defendants'

procedures based on constitutional reasons before

the Wayne County Circuit Court-in the form of

motions--let alone before the Michigan appellate

courts. Plaintiffs Complaints for Superintending

Control do not address the constitutional

challenges he has brought before this Court. The

Michigan Courts have not had the opportunity to

review Plaintiff's constitutional challenges to the

procedures before the Wayne County Circuit Court

nor the constitutionality of M.C.L.A. @ 552.628

which authorizes the Michigan circuit courts to

32

suspend an occupational license where an

individual is in-arrearage under a child support

order exceeding three months. Plaintiff, an

attorney, is capable of presenting constitutional

issues before the Michigan courts, as evidenced by

the documents he has submitted before this Court.

There has been no showing that the rules and

procedures established in Michigan bar Plaintiff

from presenting his constitutional claims before the

Michigan courts.

B. Exceptions to Abstention

1. Plaintiffs claims of constitutional violations

A federal court normally orders a complaint

dismissed if the three requirements for Younger

abstention are met unless a plaintiff can show an

exception from abstention such as bad faith,

harassment, or flagrant unconstitutionality. Fieger,

74 F.3d at 750. The Younger Court has stated that

"the possible unconstitutionality, of a statute ‘on its

face’ does not in itself justify an injunction against

good-faith attempts to enforce it," especially absent

"any showing of bad faith, harassment, or any other

unusual circumstance that would call for equitable

relief." Younger, 401 U.S. at 54. Any challenged

statute must be "flagrantly and patently violative of

express constitutional prohibitions in every clause,

sentence and paragraph, and in whatever manner

and against whomever an effort might be made to

apply it." Id. at 53-54.

33

Plaintiff claims that he has shown that

Defendants' actions to enforce child support orders

were made in bad faith. Plaintiff states that

Defendants are acting in bad faith by blindly and

blatantly ignoring the constitutional principles

established by the federal constitution which are

recognized in Michigan. Plaintiff addresses three

instances where Defendants have violated

his constitutional rights.

The first instance is that the Friend of the Court

personnel, with the Circuit Court's complicity-

issues show cause orders which are pre-printed,

pre-signed by the Circuit Court judge, without

review by Mr. Joseph A. Schewe for the Friend of

the Court or a Circuit Court judge. Plaintiff states

that he does not specifically challenge the

constitutionality of the Friend of the Court and

Enforcement Acts but that because the Friend of

the Court does not follow the rules and statutes,

his Fourth Amendment rights to procedural due

process have been violated.

The second instance in which Plaintiff claims a

violation of his constitutional rights is that the

Friend of the Court personnel and the Circuit

Court do not follow the rules and procedures in

handling contempt proceedings. Plaintiff claims

that he was not given alternatives to incarceration

under M.C.L.A. @@ 552.635 and 552.637 nor given

notice as to the standard of proof the contemnor

34

must meet to rebut the statutory presumption

under M.C.L.A. @ 552.633. Plaintiff claims that if

the Friend of the Court attorney is not satisfied

with any offers by the party in arrears, a hearing

before a referee is then immediately conducted.

Plaintiff states that the referee hearing is conducted

on hearsay statements from the Friend of the Court

attorney, no evidence or testimony is taken, no

cross examination is allowed, and the rules of

evidence are not applied or enforced nor findings of

fact or conclusions are made, as required by M.C.R.

3.215(E). If either party objects to the referee's oral

decision, the parties are ordered to immediately

appear before a Wayne County Circuit Court judge.

Tne Friend of the Court attorney then orally recites

to the judge what he claims the referee decided

earlier. Neither the judge nor the parties are

provided a written referee recommendation. Neither

the parties nor the Friend of the Court attorney is

sworn to testify before the Judge. The rules of

evidence are not followed by the judge nor cross-

examination allowed. The alleged contemnor is not

advised by the judge of his right to counsel nor the

existence of statutory alternatives to incarceration.

Plaintiff claims the hearing usually lasts less than

ten (10) minutes and usually results in the

incarceration of the alleged contemnor.

The third instance of violation of Defendant's

constitutional rights is that the Circuit Court may

restrict Plaintiff's ability to work under M.C.L.A. @

552.628. This statute allows the Circuit Court to

35

suspend a professional license if child support

obligations are not met. Plaintiff argues that

M.C.L.A. @ 552.628 violates his substantive and

procedural due process rights.

Plaintiff submitted documentary evidence and an

affidavit to support his arguments. Defendants

submitted no documentary evidence to rebut

Plaintiffs factual allegations that the Friend of the

Court personnel and the Circuit Court do not follow

the statutory provisions or the court rules.

Defendants declined to submit any evidence or

testimony from the Court at the hearing.

2. Pre-printed, Pre-Signed Order to Show Causes

and Bench Warrants

As noted previously, Defendants have not

submitted any evidence to rebut Plaintiff's evidence

that the Friend of the Court, without review by a

Circuit Court judge, issues a bench warrant at will.

Plaintiff has presented sufficient evidence to

support his allegation that the Friend of the Court

personnel, with the Circuit Court's complicity,

issues show cause orders which are pre-printed,

pre-signed by the Circuit Court judge.

Plaintiff submitted bench warrants issued by the

Circuit Court which he claims are pre-printed and

issued without review and without the actual

signature of a Circuit Judge. Attached to Plaintiff's

Complaint, is a transcript of a May 14, 1997 Show

36

Cause Hearing where the Friend of the Court

attorney, Shelly A. Payne, admits to issuing a

bench warrant for August 21,1996. (5/14/97 hrg.,

p. 4) When the Court asked Ms. Payne, “who

authorized the bench warrant" Ms. Payne

responded, "I did." (5/14/97 hrg. p. 9) The court

then asked, "Can you do [sic] on your own?" Ms.

Payne responded, "Yes, I do that all the time.

There's a failure to appear the Friend of the Court

has the power to issue a bench warrant for failure

to appear." (5/14/97 hrg. p. 9)

M.C.L.A. @ 552.501 et seq. and M.C.R. 3.208 set

forth the Friend of the Court's powers and duties.

M.C.R. 3.208(B) regarding enforcement states as

follows:

(B) Enforcement. The friend of the court is

responsible for initiating proceedings to enforce an

order or judgment for support, visitation, or

custody.

(1) If a party has failed to comply with an order or

judgment, the friend of the court may petition for

an order to show cause why the party should not be

held in contempt.

(2) The order to show cause must be served

personally or by ordinary mail at the party's last

known address.

37

(3) The hearing on the order to show cause may be

held no sooner than seven days after the order is

served on the party. If service is by ordinary mail,

the hearing may be held no sooner than nine days

after the order is mailed.

(4) If the party fails to appear in response to the

order to show cause, the court may issue an order

for arrest.

M.C.R. 3.208(B) (italics added). M.C.L.A. @

952.631(1) state as follows:

(1) If any person has been ordered to pay support

under a support order and fails or refuses to obey

and perform the order, and if an order of income

withholding is inapplicable or unsuccessful, a

recipient of support or the office of the friend of the

court may commence a civil contempt proceeding

by filing in the circuit court a petition for an order

to show cause why the delinquent payer should not

be held in contempt. If the payer fails to appear in

response to an order to show cause, the court may

issue a bench warrant requiring that the payer be

brought before the court without unnecessary delay

to answer and plead that neglect or refusal.

M.C.L.A. @ 552.631(1) (italics added).

Based on the unrebutted evidence submitted by

Plaintiff, the Court finds that Plaintiff has

submitted sufficient evidence to support his claim

that it is the Wayne County Friend of the Court's

38

practice to issue orders to show cause and bench

warrants using pre-printed forms with the judge's

signature already affixed without the judge's review

and approval as required by M.C.R. 3.208(B) and

M.C.L.A. @ 552.631. Plaintiff's Complaint and

affidavit stating that no Circuit Court judge reviews

or actually signs the show cause orders and the

bench warrants is unrebutted. No evidence to the

contrary was submitted by Defendants, even after

the Court invited Defendants to do so at the

hearing. n2 Plaintiff has met the exception to

abstention on the ground that Defendants have

violated Plaintiffs due process rights under the

Fourth Amendment, guaranteed by the Fourteenth

Amendment, by failing to follow the procedures set

forth in M.C.R. 3.208(B) and M.C.L.A. @ 552.631.

An individual's right to liberty is at stake when

contempt proceedings are initiated by the Friend of

the Court. The Friend of the Court's actions,

without actual approval by the Circuit Court

judges, are outside the statutory mandate of

M.C.L.A. @ 552.641 and M.C.R. 3.208(B).

n2 Although the Court must view the motion in

the light most favorable to the nonmoving party,

where "the moving party has carried its burden

under Rule 56(c), its opponent must do more than

simply show that there is some metaphysical doubt

as to the material facts." Matsushita Electric

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,

anal 39

986, 89 L. Ed. 2d 538, 106 S. Ct. 1348(1986);

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91

L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

3. Contempt Proceedings

Plaintiff has not submitted sufficient evidence to

support his allegations that the Friend of the Court

personnel and the Circuit Court do not follow the

rules and procedures in handling contempt

proceedings. Plaintiff has also not submitted

sufficient evidence to show that Plaintiff was not

given alternatives to incarceration under M.C.L.A.

@@ 552.635 and 552.637 nor given notice as to the

standard of proof the contemnor must meet to

rebut the statutory presumption under M.C.L.A. @

952.633. Plaintiff has failed to submit sufficient

evidence to show that the rules of evidence are not

followed by the referee or the Circuit Court.

M.C.L.A. @ 552.633 allows the court to find a

‘payer in contempt "if the court finds that the payer

is in arrears and if the court is satisfied that the

payer has the capacity to pay out of currently

available resources all or some portion of the

amount due under the support order." Upon finding

a payer in contempt, the court has the discretion to

enter an order which includes committing the payer

to the county jail. M.C.L.A. @ 952.633(1)(a)-(e).

M.C.L.A. @ 552.635(1) allows the court to find a

sists shoes lao is mecca clecceineel

40

payer with capacity to pay arrearage in contempt "if

the court is satisfied that by the exercise of

diligence the payer could have the capacity to pay

all or some portion of the amount due under the

support order and that the payer fails or refuses to

do so." Upon finding a payer in contempt, the court

has the discretion to enter an order, including

committing the payer to the county jail. M.C.L.A. @

552.635(2)(a)-(c). M.C.L.A. @ 552.637 sets forth the

provisions of the order of commitment pursuant to

M.C.L.A. @@ 552.633 and 552.635. Nothing in

these three statutes require a judge to notify a

payer as to the alternatives which may be found in

these statutes.

Plaintiff has not submitted any evidence, other

than Plaintiff's conclusory allegations, to support

his allegations that the rules of evidence are not

followed during the hearings before the friend of the

court, the referee or the circuit court judge.

Disagreements with a judge's findings under

M.C.L.A. @@ 552.633, 552.635 and 552.637 and

any disputed evidentiary issues before the Friend of

the Court, the Referee or the Circuit Court judge

may be brought before the state and appellate

courts. None of these allegations are "flagrantly and

patently violative of express constitutional

prohibitions" as required by the Younger abstention

doctrine. Younger, 401 U.S. at 53-54. The Court

will abstain from ruling on these issues.

4. M.C.L.A. @ 552.628

41

The Court will not address the issue that

M.C.L.A. @ 552.628 is unconstitutional because

Plaintiff has not been subjected to the provisions of

that statute. Plaintiff has not shown that there is a

subject matter in controversy regarding the

constitutionality of M.C.L.A. @ 552.628. As the

Supreme Court stated in Younger, "the possible

unconstitutionality of a statute 'on its face' does not

in itself justify an injunction against good-faith

attempts to enforce it." Here, there has been no

allegation that any attempts have been made to

implement the statute. The Court will abstain from

ruling on the constitutionality of M.C.L.A. @

952.628 because Plaintiff has not shown any

attempt to enforce the statute.

C. Anti-Injunction Statute

Defendants Michael F. Sapala and Kirsten Frank

Kelly claim that 28 U.S.C. @ 2283 expressly forbids

injunctive relief against judicial officers. 28 U.S.C.

@ 2283 states:

A court of the United States may not grant an

injunction to stay proceedings in a state court

except as expressly authorized by Act of Congress,

or where necessary in aid of its jurisdiction, or to

protect or effectuate its judgments. The Supreme

Court in Mitchum v. Foster, 407 U.S. 225, 242, 32

L. Ed. 2d 705, 92 S. Ct. 2151 (1972), found that

Section 1983 is an explicit exception to the

iain

42

anti-injunction statute. The Sixth Circuit expressly

adopted those Supreme Court findings in Martin-

Marietta Corp. v. Bendix Corp., 690 F.2d 558, 562

(6th Cir. 1982).

Because Plaintiff filed a suit in this Court

pursuant to 42 U.S.C. @ 1983, the anti-injunction

statute, 28 U.S.C. @ 2283, is inapplicable to the

instant case. However, for the reasons set-forth

below, injunctive relief is not available to Plaintiff.

D. Absolute immunity

Alternatively, the Wayne County Circuit Court

judges and the Friend of the Court employees claim

they are absolutely immune from the suit. Plaintiff

agrees that judicial officers and friend of the court

employees are absolutely immune from claims for

monetary damages under Section 1983 while acting

in their official capacities. Plaintiff does not seek

damages. Plaintiff seeks a declaration that the

enforcement hearings and procedures conducted by

the friend of the court and its referees are

unconstitutional.

It is well settled that judicial officers are

absolutely immune from claims for damages under

Section 1983. Imbler v. Pachtman, 424 U.S. 409,

47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). Friend of

the Court employees are also absolutely immune

from claims for damages whether acting as judicial

designees, including referees or as prosecutors,

Ena

43

such as Friend of the Court attorneys seeking

enforcement of child custody and support orders.

Watts v. Burkhart, 978 F.2d 269 (6th Cir. 1972). In

Pulliam v. Allen, 466 U.S. 522, 541-42, 80 L. Ed.

2d 565, 104 S. Ct. 1970 (1984), the Supreme Court

held that judicial immunity is not a bar to

prospective injunctive relief against a judicial officer

acting in his/her judicial capacity. Equitable relief

against a judge, as with any other defendant, is

limited to cases where there is "a showing of an

inadequate remedy at law and of a serious risk of

irreparable harm. ..." Pulliam, 466 U.S. at 537.

On October 19, 1996, Public Law 104-317, the

Federal Courts Improvement Act of 1996, was

signed in to law. Section 309 of the Act amended

42 U.S.C. @ 1983 as follov. :

In any action brought against a judicial -

officer for an act or omission taken in such

officer's judicial capacity, injunctive relief

shall not be granted unless a declaratory

decree was violated or declaratory relief was

unavailable. 42 U.S.C. @ 1983 (italics

added);Kampfer v. Scullin, 989 F. Supp. 194,

201(N.D. N.Y. 1997).

Absolute immunity bars not only a Section 1983

claim for damages but with the amended language

the immunity extends to a Section 1983 claim for

injunctive relief, unless a declaratory decree was

violated or declaratory relief is unavailable. Montero

44

v. Travis, 171 F.3d 757, 761 (2"4 Cir. 1999); Hili v.

Sciarrotta, 140 F.3d 210, 215 (2nd Cir. 1998);

Ackermann v. Doyle, 43 F. Supp. 2d 265, 272 (E.D.

N.Y. 1999).

The legislative history of P.L. 104-317 clearly

indicates that Congress intended to protect judicial

officers from Section 1983 claims for injunctive

relief, as well as damages. The Senate Report on the

bill states:

This section restores the doctrine of judicial

immunity to the status it occupied prior to the

Supreme Court's decision in Pulliam v. Allen, 466

U.S. 522, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984) .

In Pulliam, the Supreme Court broke with 400

years of common-law tradition and weakened

judicial immunity protections. The case concerned

a State magistrate who jailed an individual for

failing to post bond for an offense which could be

punished only by a fine and not incarceration. The

defendant filed an action under 42 U.S.C. 1983,

obtaining both an injunction against the

magistrate's practice of requiring bonds for

nonincarcerable offenses, and an award of costs,

including attorney's fees. The Supreme Court

affirmed, expressly holding that judicial immunity

is not a bar to injunctive relief in section 1983

actions against a State judge acting in a judicial

capacity, or to the award of attorney's fees under

the Civil Rights Attorney Fees Award Act, 42 U.S.C.

45

1988. Those statutes are now amended to preclude

awards of costs and attorney's fees

against judges for acts taken in their judicial

capacity, and to bar injunctive relief unless

declaratory relief is inadequate.

Subsection 311(c)[Senate version of Section 309]

amends 42 U.S.C. 1983 to bar a Federal judge from

granting injunctive relief against a State judge,

unless declaratory relief is unavailable or the State

judge wiolated a declaratory decree. ...

This section does not provide absolute immunity

for judicial officers. Immunity is not granted for any

conduct "clearly in excess" of a judge's jurisdiction,

even if the act is taken in a judicial capacity.

Moreover, litigants may still seek declaratory relief,

and may obtain injunctive relief if a declaratory

decree is violated or is otherwise unavailable.

Section 311 restores the full scope of judicial

immunity lost in Pulliam and will go far in

eliminating frivolous and harassing lawsuits which

threaten the independence and objective decision-

making essential to the judicial process. P.L. 104-

317, Senate Report No. 104-366, Sept. 9, 1996.

It is clear that Congress amended Section 1983 to

limit suits against judicial officers absent a showing

that the judicial officer violated a declaratory decree

or there is no declaratory decree available. In this

case, there is no allegation that the judicial officers

have violated a declaratory decree. Plaintiff sought

46

declaratory relief, in addition to injunctive relief,

which is available pursuant to 28 U.S.C. @ 2201.

Since there is no allegation that the judicial officers

in this case have violated a declaratory decree,

absolute judicial immunity bars Plaintiff's request

for injunctive relief pursuant to 42 U.S.C. @ 1983.

Based on the amendment to 42 U.S.C. @ 1983, it

appears that the anti-injunction statute, 28 U.S.C.

@ 2283 now applies to 42 U.S.C. @ 1983 claims

with the limitations set forth in Section 1983.

Plaintiff's claim for injunctive relief is denied.

E. Declaratory Relief

1. Five Factors

As noted previously, in addition to injunctive

relief, Plaintiff has sought declaratory relief. 28

U.S.C. @ 2201 provides in pertinent part:

In a case of actual controversy within its :

jurisdiction ... any court of the United States, upon

the filing of an appropriate pleading, may declare

the rights and other legal relations of any interested

party seeking such declarations, where or not

further relief is or could be sought. Any such

declaration shall have the force and effect of a final

judgment or decree and shall be reviewable as

such.

The Declaratory Judgment Act "is an enabling Act,

which confers discretion on the courts rather than

47

an absolute right upon the litigant." Allstate Ins. v.

Mercier, 913 F.2d 273, 277 (6th Cir. 1990). In the

Sixth Circuit, five factors are generally considered

and weighed before declaratory relief may be

granted:

1) whether the declaratory action would settle the

controversy; 2) whether the declaratory action

would serve a useful purpose in clarifying the legal

relations in issue; 3) whether the declaratory

remedy is being used merely for the purpose of

"procedural fencing" or "to provide an arena for a

race for res judicata"; 4) whether the use of a

declaratory action would increase friction

between our federal and state courts and

improperly encroach upon state jurisdiction; and 5)

whether there is an alternative remedy which is

better or more effective. Id.

2. First Factor / Settle the Controversy

The only claim remaining in this case is whether

Defendants violated Plaintiffs due process

constitutional rights when the Friend of the Court

personnel, without the Circuit Court's review,

issued show cause orders which are pre-printed

and pre-signed by the Circuit Court judge but are

not reviewed pursuant to M.C.R. 3.208(B) and

M.C.L.A. @ 552.631. Plaintiff claims a liberty

interest created by the state court rules and

statutes under the due process clause. Plaintiff

does not claim that M.C.R. 3.208(B) and M.C.L.A. @

48

952.631 are unconstitutional but that Defendants

failed to follow the procedures outlined under the

rule and statute.

A liberty interest due process claim was

considered by the Supreme Court in

Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d

960, 99 S. Ct. 2781 (1979). The Supreme Court

noted:

[A] person cannot incur the loss of liberty for an

offense without notice and a meaningful

opportunity to defend. ... The most elemental of due

process rights [is] freedom from a wholly arbitrary

deprivation of liberty.

Id. at 319. A violation of a state's formal

procedure does not in and of itself implicate

constitutional due process concerns. Levine v.

Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993). "A

state cannot be said to have a federal due process

obligation to follow all of its procedures; such a

system would result in the constitutionalizing of

every state rule, and would not be administrable."

Id. The proper inquiry is "whether the state's

procedures have passed federal constitutional

muster, not whether there was an error in the

state's applying its own law." Id. To establish a due

process claim violation under the constitution, it

must be shown that “the state court's application of

its constitutionally adequate standard was so

49

erroneous as to raise an independent due process

violation." Id.

Based on the unrebutted evidence submitted by

Plaintiff, he has established that Defendants'

application of the state procedural rules violated his

due process right. When show cause orders and

bench warrants for a person's arrest are issued

against a person, that person is facing a loss of

liberty which the state cannot impose without

notice and a meaningful opportunity to defend. The

rules set forth in M.C.R. 3.208(B) and M.C.L.A. @

552.631 were enacted to protect a person's right to

proper notice and to have independent review of the

show cause order and bench warrant, other than

that of Friend of the Court personnel who prosecute

arrearage claims. The issuance of show cause

orders and bench warrants on pre-printed form

with the judge's signature already affixed to the

form at the discretion of Friend of the Court

personnel and without subsequent review by a

judge violates Plaintiffs due process rights under

the Fourth Amendment, guaranteed by the

Fourteenth Amendment.

The Court's declaration that Defendants' failure

to follow the procedures set forth in M.C.R.

3.208(B) and M.C.L.A. @ 552.631 violated Plaintiff's

due process rights settles the controversy between

Plaintiff and the Defendants as to whether

Plaintiff's due process rights have been violated.

50

3. Balancing of the Remaining Factors

The Court's declaration clarifies the legal

relations in issue. The Court's declaration

establishes Defendants’ duties toward Plaintiff and

shows that Defendants should meaningfully follow

the procedures set forth in M.C.R. 3.208(B) and

M.C.L.A. @ 552.631 before issuing show cause

orders or bench warrants.

There may be some showing that Plaintiff is using

this action for the purpose of “procedural fencing"

in that Plaintiff may wish to avoid child support

payments as ordered by the state court. The Court

has made it clear that the Court will not disturb

any findings by the Circuit Court on the issue of

child support payments. The sole issue before this

Court is the due process constitutional violation

noted above.

The Court does not find that declaratory relief

would increase friction between our federal and

state courts and improperly encroach upon state

jurisdiction. This Court's sole focus is whether

Defendants have violated Plaintiff's due process

rights by failing to meaningfully follow the

procedures set forth in M.C.R. 3.208(B) and

M.C.L.A. @ 552.631. The Court makes no finding as

to the appropriateness of the child support order

issued and any prosecution to collect under the

order so long as Plaintiffs due process rights are

protected.

51

No other alternative has been presented by

Defendants as to how to correct the violation of

Plaintiffs due process rights. The only apparent

way to correct the due process violation is to follow

the procedures set forth in M.C.R. 3.208(B) and

M.C.L.A. @ 552.631. The Court's finding that

Defendants have failed to follow these procedures

should put Defendants on notice that the

procedures they have been following violate

Plaintiffs due process rights. The Circuit Court was

made aware that Friend of the Court personnel

issued the show cause orders and bench warrants

without review by a judge. Defendants did not

produce any evidence to rebut Plaintiff's evidence.

Weighing the factors involved, the Court finds

that a declaratory judgment should be issued in

this action. The Court declares that the Friend of

the Court's practice to issue show cause orders and

bench warrants without actual review by a judge

and Defendants’ failure to follow the procedures set

forth in M.C.R. 3.208(B) and M.C.L.A. @ 552.631

violate Plaintiff's due process rights.

Ill. CONCLUSION

For the reasons set forth above, the Court

declares that the Friend of the Court's practice to

issue show cause orders and bench warrants

without actual review by a judge and Defendants'

failure to follow the procedures set forth in

52 e

M.C.R. 3.208(B) and M.C.L.A. @ 552.631 violate

Plaintiffs due process rights. As to the remaining

claims, the Court abstains from considering those

issues.

Accordingly;

IT IS ORDERED that Defendant Sapala's Motion to

Dismiss (Docket No. 12, filed September 25, 1998)

is GRANTED IN PART and DENIED IN PART as

more fully set forth above.

_ ITIS FURTHER ORDERED that Defendant Kelly's

Motion to Dismiss (Docket No. 13, filed September

28, 1998) is GRANTED IN PART and DENIED IN

PART as more fully set forth above.

IT IS FURTHER ORDERED that Plaintiffs Motion

for Summary Judgment (Docket No. 15, filed

September 28, 1998) is GRANTED IN PART and

DENIED IN PART as more fully set forth above.

IT IS FURTHER ORDERED that Plaintiff's Motion to

Supplement Complaint (Docket No. 27, filed March

24, 1999) is MOOT.

IT IS FURTHER ORDERED that Defendant Wayne

County Friend of the Court's Motion to Quash

Plaintiffs Subpoena (Docket No. 32, filed April 2,

1999) is MOOT.

53

IT {iS FURTHER ORDERED that Defendants Sapala

and Kelly's Motion to Quash Findling Subpoena

and for Protective Order (Docket Nos. 36-1 and 36-

2, filed April 5, 1999) is MOOT.

IT IS FURTHER ORDERED that Plaintiffs Motion to

Compel Production of Documents and Deposition of

Subpoenaed Witness (Docket No. 37, filed April 6,

1999) is MOOT.

IT IS FURTHER ORDERED that Declaratory

Judgment is entered in favor of Plaintiff as to the

due process claim on Defendants’ application of the

rules and procedures set forth in M.C.R. 3.208(B)

and M.C.L.A. @ 552.631 only as more fully set forth

above.

IT IS FURTHER ORDERED that the Court

ABSTAINS as to the Plaintiffs remaining claims and

those claims are DISMISSED.

IT IS FURTHER ORDERED that Plaintiffs request

for injunctive relief is DENIED.

DENISE PAGE HOOD

United States District Judge

DATED: SEP 30 1999

54

Appendix D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL E. TINDALL,

Plaintiff

V. Case No. 98-CV-73896-DT

HONORABLE DENISE PAGE HOOD

WAYNE COUNTY FRIEND OF COURT,

By: JOSEPH A. SCHEWE, DIRECTOR OF

LEGAL SERVICE, and ALAN E. SKROK,

STAFF ATTORNEY and ASSISTANT FRIEND

OF COURT; WAYNE COUNTY SHERIFF'S

DEPARTMENT, by: ROBERT FICANO, SHERIFF;

WAYNE COUNTY CIRCUIT COURT, FAMILY

DIVISION, by: KIRSTEN FRANK KELLY,

PRESIDING JUDGE, MICHAEL F. SAPALA,

CHIEF JUDGE,

Defendants.

MEMORANDUM

OPINION AND

55

ORDER

I. BACKGROUND

On September 30, 1999, the Court entered a

Memorandum Opinion and Order and Judgement in

this case. The Court abstained from all of Plaintiff's

claims, except for Count V, as to the due process

claim only. The Court entered Judgment against

Defendants Wayne County Circuit Court. Judges and

Friend of the Court personnel (“Defendants”) on

Count V.

The Court denied Defendants’ Motion for

Enlargement of Time as untimely. Defendants

thereafter filed a Motion for Relief from Judgment

under Fed. R. Civ. P. 60(b). Plaintiff at first objected

to the Rule 60(b) motion stating that the Court was

without jurisdiction to address the motion but

Plaintiff later withdrew his objection. As noted in this

Court’s order denying Defendants’ Motion for

Enlargement of Time, the Sixth Circuit has

determined that motions under Rule 60(b) must be

filed within a reasonable time after judgment has

been entered. Generally. the Sixth Circuit disfavors

Rule 60(b) motions filed after an appeal period has

run. The interests of finality of judgments and

judicial economy outweigh the value of giving a party

a second bite at the apple by allowing a rule 60(b)

motion after an appeal period has run. Pierce v.

United Mine Workers of America Welfare, 770 F.2d

449, 451-452(6th Cir. 1985).

56

Here, Defendants filed their Motion under Rule

60(b) in conjunction with their Notice of Appeal on

November 1, 1999. The Court will consider

Defendants’ Motion for Relief from Judgment since it

was filed before the appeal period had run. It should

be noted that Defendants object to Plaintiffs response

to their Motion for Relief from Judgment as untimely

filed. Plaintiff filed an “objection” to Defendants’

Motion for Relief from Judgment, on November 3,

1999. which was within the response time for filing

responses under Local Rule 7.1. Plaintiffs response

was filed on November 29, 1999, at which time he

withdrew his previously filed “objections.” Even

though Plaintiff is an attorney, he is proceeding pro

se and the Court will consider Plaintiffs response filed

as a substitute for his “objections.” Defendants have

not shown they will be prejudiced by the Court’s

consideration of the response, especially since

Defendants now want the Court to consider an

affidavit filed long past the time summary judgment

motions were heard.

II. DEFENDANTS’ MOTION FOR RELIEF

FROM JUDGMENT |

A. Fed. R. Civ. P. 60(b)

Fed. R. Civ. P. 60(b) in pertinent part states:

(b) Mistakes; Inadvertence;

Excusable Neglect; Newly Discovered

Evidence; Fraud, Etc. On motion and

upon such terms as are just, the court

57

may relieve a party or a party’s legal

representative from a final judgment,

order, or proceeding for the following

reasons: (1) mistake, inadvertence.

surprise, or excusable neglect; (2) newly

discovered evidence which by due

diligence could not have been discovered

in time to move for a new trial under

Rule 59(b); (3) fraud (whether heretofore

denominated intrinsic or extrinsic),

misrepresentation, or other misconduct

of an adverse party (4~ the judgment is

void: (S’ the judgment has been satisfied.

released, or discharged, or a prior

judgment upon which it is based has

been reversed or otherwise vacated, or it

is no longer equitable that the judgment

should have prospective application; or

(6) any other reason justifying relief from -

the operation of the judgment. The

motion shall be made within a

reasonable time, and for reasons (1), (2),

and (3) not more than one year after the

judgment, order, or proceeding was

entered or taken.

Fed. R. Civ.,P. 60(b).

Defendants have stated three arguments in

support of their Motion for Relief from Judgment.

First, Defendants claim that the Judgment against

Defendants is void because the Court lacks subject

_ matter jurisdiction over the Complaint. Although not

58

expressly identified by Defendants, the Court

assumes that Defendants are seeking relief under

Fed. R. Civ. P. 60(b)(4). Second, Defendants claim

that the Judgment was based on a mistake in the

application of the law. The Court assumes that

Defendants are seeking relief under Fed. R. Civ. P.

60(b)( 1) since Defendants again did not expressly

identify the specific rule. Third, Defendants claim the

Judgment was based on a mistake of fact by the

Court. Again, the Court assumes Defendants are

seeking relief under Fed. R. Civ. P. 60(b)(1).

B. Fed. R. Civ. P. 60(b)(4)/Judgment is Void

Relief from judgment can be had under Fed. R.

Civ. P. 60(b)(4) if. the Judgment entered is void.

Defendants claim that the Judgment is void because

there is no case and controversy at issue.

It is noted that Defendants did not raise this

issue in any of their papers prior to the instant

‘motion. Even if neither party addresses the

jurisdictional issue, the federal courts are under an

independent obligation to examine their own

jurisdiction. Jenkins v. McKeithen, 395 U.S. 411. 421

(1969). The Court has a threshold duty in every case

to determine whether it has subject. matter

jurisdiction over the controversy before it. whether or

not the parties have preserved for appeal a challenge

to the Court’s jurisdiction. In re Wolverine Radio Co.,

930 F.2d 1132, 1137-38(6th Cir. 1991). The Court

will address this issue at this time.

59

Article Ill. section 2 of the United States

Constitution confines federal court jurisdiction. to

cases and controversies. Arizonans for Official English

v. Arizona, 520 U.S. 43, 117 S.Ct. 1 055. 1067, 137

L.Ed.2d 170 (1997). Merely because a party asks a

federal court to declare his/her legal rights, the case-

or-controversy requirements of Article 111 are not

satisfied. Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., 454

U.S. 464, 471 (1982). Federal courts are prohibited

from issuing advisory opinions. SEC v. Med. Comm.

for Human Rights, 404 U.S. 403, 407 (1972). Federal

courts require that a party has standing to institute

an action. Valley Forge, 454 U.S. at 471.

Standing involves two levels of inquiry. The

first is whether the plaintiff has shown, at a

minimum, some actual or threatened injury resulting

from the alleged illegal action. Id. at 472. The second

is whether the plaintiff is the proper proponent of the

rights in which the action is based. Singleton v. Wulff

428 U.S. 106, 112-113 (1976).

Under the “injury” requirement, a plaintiff

must show more than abstract injury. A plaintiff

must show that he/she “has sustained or is

immediately in danger of sustaining some direct

injury” as a result of the challenged statute or official

conduct. Valley Forge, 454 U.S. at 476-7S. The injury

or threat of injury must be both ‘real and immediate,

"not conjectural” or “hypothetical.” O‘Shea v.

Littlelon. 414 U.S. 488, 494 (1974). Past exposure to |

illegal conduct, without a showing of continuing and

60

present adverse affects, does not meet the injury

requirement. Id. at 495-496.

In Parker v. Turner. 626 F.2d 1 (6th Cir. 1980).

a child support case, the plaintiffs were found to have

standing because they claimed that they could not

afford to make support payments and would likely

face future contempt proceedings. Plaintiffs claimed

that the procedures in enforcing their child support

obligations were unconstitutional. Defendants claim

that Plaintiff cannot show that he cannot make future

payments because he is a lawyer, thus, Plaintiff is not

facing future contempt proceedings.

There is no dispute that Plaintiff has been the

subject of previous contempt proceedings. In this

case, Plaintiff asserted in his Complaint and

continues to assert that the Friend of the Court has

erroneously and continuously overstated his child

support obligations. Based on the alleged erroneous

entries, Plaintiff claims he would face future contempt

proceedings because he does not agree with the

Friend of the Court’s assessments of his child support

obligations. Given Plaintiffs allegation that he does

not agree with the Friend of the Court’s assessments

and that he would be facing future contempt

proceedings, Plaintiff has established the minimum

requirement of standing in this case.

Defendants cite Johnson v. Turner, 125 F.3d

324 (6th Cir. 1997) to support their argument. The

Johnson case involved consolidated cases which

challenged the procedures in a paternity action and

61

enforcement of child support obligations. The Sixth

Circuit found that in paternity actions, because such

actions involve a one-time judgment of paternity, the

plaintiffs could not demonstrate injury because they

could not show that they would be subject to future

paternity actions. The Sixth Circuit found that in the

absence of evidence that the plaintiffs will again be

subject to paternity proceedings. the plaintiffs had no

interest in the challenged statutes and proceedings.

The Sixth Circuit found no standing in that case. As

to the plaintiffs involved in child support payments.

because the plaintiffs had not demonstrated that they

could not make future support payments, the Sixth

Circuit found that plaintiffs did not have the

necessary standing to seek injunctive and declaratory

relief. Johnson, 125 F.3d at 338-339.

Here. Plaintiff's child support obligation is not

a one-time issue but a continuing issue. Plaintiff has

alleged that the Friend of the Court’s assessments are

erroneous, thus, he would be subject to future

contempt proceedings. Plaintiff has standing in the

case before the Court. Plaintiff has satisfied the case-

in-controversy requirement under Article III of the

Constitution.

C. Fed. R. Civ. P. 60(b)(1)/Mistake as to

Application of Law

The Sixth Circuit has stated that “mistake” as

used in Rule 60(b)(1) encompasses any type of

mistake or error on the part of the court. Barrer v.

Beaver, 712 F.2d 231, 234 (6th Cir. 1983). A district

62

court abuses its discretion when it relies on clearly

erroneous findings of fact. or when it improperly

applies the law, or uses an erroneous legal standard.

Rornstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th

Cir. 1995).

Defendants claim that the Court misinterpreted

the “bad faith” exception to the abstention doctrine as

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

Defendants argue that the state courts can

adequately address the alleged bad faith actions in

the state appellate courts. Defendants cite Parker, to

support their argument. In Parkeér, the Sixth Circuit

affirmed the district court’s decision to abstain from

the case holding that the plaintiffs, indigent fathers,

could not seek federal court relief for their claims that

the state courts denied them due process of law by

denying them the right to counsel. the right to

confront and cross-examine witnesses, and the right

to testify and present witnesses on their own behalf.

Parker, 626 F.2d at 2. The Sixth Circuit found that for

the federal courts to adjudicate the suit would result

in “significant and unacceptable interference in the

state judicial process,” which might include ongoing

supervision of the state court. Id. at 3.

In response. Plaintiff argues that if the state

court is to determine the bad faith exception under

the Younger abstention doctrine, there would be no

bad faith exception. Plaintiff claims that the bad faith

issue is an issue for the federal courts, and not the

state courts. A party must exhaust his state court

appellate remedies unless he/she can bring himself

63

within the exceptions specified in Younger. Hoffman

v. Peruse, 420 U.S. 592, 608 (1975).

The Court’s September 30, 1999 Memorandum

Opinion and Order thoroughly went through the

Younger abstention requirements and its applicability

to Plaintiffs claims. (9/30/99 Opinion, pp. 2-14) The

Court found that based on the evidence submitted by

Plaintiff which was unrebutted by Defendants,

Plaintiff had shown that Defendants acted in bad

faith in enforcing child support orders when pre-

printed, pre-signed orders to show cause and bench

warrants were issued without review by a Circuit

Court judge. The Court noted that when the Friend of

the Court initiates contempt proceedings, an

individual’s right to liberty is at stake. The Friend of

the Court (with the complicity of the Wayne County

Circuit Court) by issuing orders to show cause and

bench warrants without independent judicial review

and outside the statutory mandate of M.C.L.A §

552.64 1 and M.C.R. 3.208(B), violated Plaintiffs due

process rights. In its opinion, the Court did not enjoin

Defendants from any acts but merely declared that

Plaintiffs rights were violated. The Court did not order

Defendants to do anything. The Court’s opinion did

not “interfere” with any state court judicial process.

- The Court did not misinterpret the “bad faith”

D.

exception analysis 1 in its Opinion.

Fed. R. Civ. P. 60(b)(1 ): Mistake as to Findings of

Facts

Defendants claim the Court misunderstood the

state of the facts. Defendants argued that they did

submit evidence in opposition to Plaintiffs claim.

Defendants believed that the parties had stipulated

to the facts as set forth in the “defendants’ brief.”

Defendants claim that at the very least, the evidence

submitted by the Defendants created an issue of fact

that precluded summary judgment by this Court.

Defendants argue that their counsel misunderstood

the clarity of the record at a point in the proceedings

when an answer had not yet been filed and no

discovery had been conducted. Defendants now

submit the affidavit of Kirsten Frank Kelly, Presiding

Judge, Wayne County Circuit Court, Family Division,

to support their position. Defendants further claim

that the confusion in this case resulted from the

loose usage of the term “Friend of the Court”

throughout the record. Defendants argue that the

family division referees, frequently referred to as the

Friend of the Court Referees, are not part of the

Friend of the Court, but are judges. Defendants claim

that only after Referees have recommended bench

warrants can the “digitized” signature of Judge Kelly

be used. Defendants claim that the court, through

procedures and guidelines, does monitor and

supervise the issuance of orders to show cause and

bench warrants. Defendants argue that the Circuit

Court judges have the authority to delegate to their

judicial referees the task of executing show cause

orders and bench warrants. '

In response, Plaintiff claims that the Court

had asked Defendants on the record whether they

65

would wish to make any further written response to

Plaintiffs motion for summary judgment. Defendants’

counsel declined to do so. Defendants were aware of

the posture of the proceedings. Plaintiff had initially

requested a preliminary injunction, joined with a trial

on the merits. Plaintiff agreed not to go forward with

the preliminary injunction motion and trial on the

merits but to proceed on his cross-motion for

summary judgment. (10/5/98 hrg., pp. 4-6)

Defendants did not submit any evidence rebutting

Plaintiffs evidence regarding the orders to show

causes and bench warrants. Plaintiff argues that

Judge Kelly’s proffered affidavit supports his claim

that no independent judicial review is made before

orders to show cause and bench warrants are issued.

Defendants’ arguments that the parties had

stipulated to the “facts” in Defendants’ brief is not

supported by the record. The Court expressly noted

what would be addressed at the hearing. The Court

expressly asked Defendants, “And that no one of the

Defendants wishes to make any further written

response to the Plaintiffs motion - Plaintiffs cross

motion for summary judgment; is that right?”

Defense counsel responded, “That is correct, Your

Honor.’ (10/5/98 hrg., p. 4) When Plaintiff argued, he

expressly noted the standard for a motion for

summary judgment. (105/98 hrg., pp. 11-12) Plaintiff

expressly argued that the Complaint had extensive

exhibits and was supplemented with a motion for

summary judgment containing even more extensive

affidavits, noting that most of the exhibits were

|

|

66

Defendants’ own records. (10/5/98 hrg., p. 13)

Plaintiff noted that Defendants had filed a response

to the cross motion for summary judgment with no

counter affidavits or exhibits attached. (10/5/98 hrg.,

p. 13)

Based on the record, the Court had no

misunderstanding of the procedural posture of the

case. The Court also expressly noted on the record,

and the parties agreed, as to where the parties were

at that stage of the proceedings. Defendants ‘did not

seek further discovery. Defendants were on notice

that Plaintiff originally sought to have a preliminary

injunction hearing, along with a trial on the merits.

The record is clear that Defendants were aware that

Plaintiffs cross motion for summary judgment was

before the Court.

The Court had no misunderstanding as to who

and what the differences are between the Friend of

the Court, the Referee, and the Wayne County Circuit

Court Judges. The Court found in its opinion that

Plaintiffs due process rights were violated because

there was no independent judicial review of the show

cause orders or bench warrants. The Court’s opinion

expressly set forth the requirements under M.C.R.

3.208(B) and M.C.L.A. § 552.63 1(1) which the Court

found were not followed by the Friend of the Court

and the Wayne County Circuit Court. Defendants’

arguments that the Circuit Court has the “authority”

to “delegate administrative duties to a trial court

administrator or others” does not change this Court's

67

opinion that an independent judicial review, by a

Circuit Judge, is required by the Michigan statute

and rule and constitutional requirements before the

issuance of show cause orders and bench warrants

since an individual’s liberty is at stake.

As to whether the Court should consider Judge

Kelly’s affidavit, the Court declines to do so. It is

within the discretion of the district court whether to

consider untimely affidavits. Hooks v. Hooks, 771

F.2d 935. 946 (6 Cir. 1985). If the affidavit is

untimely and the party does not alert the Court to

any previously unconsidered issues of material fact,

the affidavit should not be considered. Michigan State

Podiatry Ass ‘n v. Blue Cross and Blue Shield of

Michigan, 681 F.Supp. 1239, 1241 (E.D. Mich. 1987).

Fed. R. Civ. P. 56(c) imposes a burden on the

nonmoving party to produce evidence to rebut a

properly supported motion for summary judgment.

The nonmovant “may not rest upon the mere

allegations or denials of his pleading, but his

response ... must set forth specific facts showing that

there is a genuine issue for trial. If he does not so

respond. summary judgment, if appropriate, shall be

entered against him.” Celotex Corp. v. Cattrett, 477

U.S. 317 (1986),

Defendants have not provided any viable

reason as to why no evidence was submitted to rebut

Plaintiffs motion. for summary judgment. Even if the

Court were to consider Judge Kelly’s_ affidavit, a

review of the affidavit shows that it raises no genuine

68

issue of material fact. The affidavit supports Plaintiff's

claims that no Circuit judge independently reviews

the orders to show cause and bench warrants prior to

their issuance. Judge Kelly’s affidavit indicates that

only after Joseph Schewe, Director of Legal Services

of FOC, an attorney and Assistant FOC, reviews the

petitions is the digitized signature placed on the

forms. (Kelly Aff., J~ 6.e., 6.m.) Mr. Schewe is not a

referee nor a judicial officer. Judge Kelly’s statement

that effective October 18, 1999 a new procedure is in

place only shows that she reviews “listings.” Whether

this new procedure complies with the applicable

statutes and whether it violates Plaintiff's

constitutional rights are not issues before the Court.

The Court’s Opinion noted that injunctive relief could

be available to a party if a judicial officer has violated

a declaratory decree. (9/29/99 Opinion, p. 16).

Ill. PLAINTIFF’S MOTION FOR RELIEF FROM

JUDGMENT ;

Plaintiff moves for relief from judgment under

Fed.R.Civ.P. 60(b)(2) claiming that Judge Kelly’s

affidavit presents new evidence regarding Plaintiffs

claim that the hearings before the Friend of the Court

and Wayne County Circuit Courts were illegal. The

Court had found that Plaintiff had not submitted

sufficient evidence to support the allegations of his

complaint that the hearings were illegal. Plaintiff

seeks an amendment of the Declaratory Judgment as

to Count VI of Plaintiff's Complaint.

Because the Court will not consider Judge Kelly’s

69

affidavit, any new evidence in that affidavit is not

before the Court. As noted above, Judge Kelly’s

affidavit does not change the facts which were before

the Court. Plaintiff has not presented sufficient

evidence regarding his claim under Count VI.

IV.PLAINTIFF’S MOTION FOR RELIEF

SUPPLEMENTARY TO JUDGMENT

Plaintiff seeks to have the Court disqualify the

Wayne County Circuit Court and the Friend of the

Court from conducting any proceedings against or

involving Plaintiff, to dissolve the sua sponte

receivership created by the Wayne County Circuit

Court, to correct the Wayne County Circuit Court and

the Friend of the Court’s support account, and to

transfer the action to the St. Clair County Circuit

Court pursuant to M.C.R. 3.21 2(B)(2)(C). Several

hearings have been held before the Wayne County

Circuit Court where the Court has refused to transfer

the case and make any changes to Plaintiff's child

support obligations. Plaintiff has also filed a

bankruptcy action, which Plaintiff claims he may

dismiss.

In response, Defendants claim that no actions

by the Wayne County Circuit Court have been in

violation of this Court’s declaratory judgment.

Defendants further claim that the administration of

the Circuit Court’s cases are not before this Court.

The proper remedy for addressing any procedural

issues is through the state court appellate system.

70

New claims brought by Plaintiff will not be

addressed by the Court, including subsequent

actions by the Wayne County Circuit Court. As noted

by the Court in its opinion, a party may have a new

cause of action for injunctive relief if he/she can

show that the judicial officers have violated a federal

court’s declaratory judgment. Plaintiff has not

presented any authority by which this Court could

grant post-judgment injunctive relief. Also, the

Court’s judgment was declaratory and did not enjoin

Defendants from any acts. The Court’s Memorandum

Opinion and Order and Judgment did not retain

jurisdiction over enforcement of its Order. There is

nothing for this Court to enforce at this time. As the

Plaintiff has argued, the Court is without jurisdiction

over the case, apart from the Rule 60(b) motion,

since notices of appeal have been filed. The filing of

a Notice of Appeal divests the district court of

jurisdiction over the action and the appellate court

assumes jurisdiction. Pittock v. Otis Elevator Co., 8

F.3d 325 (6th Cir. 1993) Additionally, for the

reasons set forth in this Court’s September 30, 1999

opinion, the Court is abstaining and has abstained

from any issues between the parties, other than the

due process issue, on which the court has entered a

judgment in favor of Plaintiff. The only matter before

the Court is the Rule 60(b) motion. The Court is

without jurisdiction as to any other matters because

jurisdiction has been transferred to the Court of

Appeals based on both parties’ notices of appeal.

71

V. DEFENDANTS’ MOTION TO STRIKE

Defendants seek an Order striking: Plaintiffs

Answer to Defendants’ December 23, 1999 Motion

for Sanctions; Plaintiff's Request for Evidentiary

Hearing; and Plaintiff's Fed. R. Civ. P. 11(c)(1)(A)

Request for Award of Reasonable Expenses and

Attorney Fees Incurred to Respond to and Oppose

Dependants’ Motion for Sanctions. After reviewing

the documents, including a Motion to Disqualify,

Request for Supplementary Judgment and Motion

for Relief from Judgrnent, Defendants determined

that these documents were frivolous and filed in bad

faith. In accordance with Rule 11(c)(1)(A), the “safe

harbor” provision, Defendants served Plaintiff with a

copy of their Motion for Sanctions. Rule 11(c) states

that the motion shall not be filed if not submitted to

the opposing party. In direct violation of Rule 11,

Plaintiff submitted a copy of Defendants’ Motion for

Sanctions and request for an evidentiary hearing,

before Defendants filed the motion. Plaintiff then

filed a response to Defendants’ unfiled Motion for

Sanctions. As there was no motion filed, Plaintiff

should not have filed a response.

Plaintiff has not filed a response to

\ Defendants’ motion to strike. As noted above, the

: Court has no jurisdiction over this matter based on

the notices of appeal filed by the parties. The Court

cannot consider documents not related to the Rule

60(b) motions.

VI. DEFENDANTS’ SUGGESTION OF MOOTNESS

72

AND MOTION TO VACATE THE SEPTEMBER 30,

1999 JUDGMENT AND TO DISMISS PLAINTIFF'S

CLAIMS WITH PREJUDICE

Defendants claim that Plaintiffs claims are moot

because he is no longer subject to the alleged

procedures that he claims violate his rights to due

process since the divorce action has been transferred

to Macomb County Circuit Court. Defendants further

claim that when a case becomes moot then the

Judgment entered must be set aside. As this Court

noted above, the Court no longer has jurisdiction over

the Judgment, other than to rule on the Rule 60(b)

motions. The Sixth Circuit’s March 22, 2000 Order

suggests that the Court review the mootness question

based on Defendants’ Motion to Vacate.

The doctrine of mootness requires that

litigation have continuing vitality, even throughout

the course of appellate review. Kremens v. Bartley,

431 U.S. 119 (1977). Although an actual

controversy once existed, changed circumstances

may intervene to destroy standing to the extent

that the dispute is essentially ended and

meaningful relief is no longer possible. Allen v.

Mansour, 928 F.2d 404 (Table), 1991 WL 37832 **

1 (6th Cir. Mach 19, 1991)(unpublished). Mootness

applies where a plaintiff seeks a declaratory

judgment invalidating or modifying a state policy

and death prevents a plaintiff from benefiting in

any way from the requested relief. Id. An exception

to the mootness doctrine is whether the issue

raised by the appeal is “capable of repetition, yet

73

evading review.” Id. at **2; See Southern Pacific

Terminal Co. v. LC.C., 219 U.S 498 (191 1); Roe v.

Wade, 410 U.S. 113, 166 (1973). The party seeking

to evade mootness must show that: 1) the

challenged official action is likely to be repeated; 2)

it will be of a duration too short to be fully litigated

prior to its cessation or expiration; and 3) there is

“a reasonable expectation that the same

complaining party [will] be subjected to the same

action again. Weinstein v. Bradford, 423 US

147,159 (1975).

On of the challenged official actions is

whether show cause orders and bench warrants

are reviewed independently by a judicial officer.

Based on the record below, it appears that the

challenged official actions may likely be repeated.

According to Judge Kelly’s affidavitl the

procedure prior to October 18, 1999 was that only

after Joseph Schewe, Director of Legal Services of

FOC, an attorney and Assistant FOC, reviewed the

petitions was her digitized signature placed on the

forms. (Kelly Aff. @@6.e, 6m). Mr. Schewe is nota

referee nor a judicial officer. Judge Kelly’s

statement that effective October 18, 1999 a new

procedure is in place only shows that she reviews

“listings”, the constitutionality of which is not

before this Court.

As to the second requirement for mootness,

based on the record before the Court, there has

been a showing that based on Judge Kelley’s

1 The Court considers Judge Kelly’s affidavit on the mootness issue.

74

affidavit and the change in procedure, the duration

of the challenged action regarding the judicial

review of show cause orders and bench warrants

may have ceased prior to the matter being fully

litigated. However, there are other actions

challenged by Plaintiff which may endure too

briefly to be fully litigated prior to its cessation or

expiration. Plaintiff has suggested that the order

transferring his divorce action to Macomb County

Circuit Court was issued to support Defendants’

mootness argument and to evade review. This

argument may have had some merit if the order

transferring the divorce action was entered sua

sponte but the order was entered after Judge

Callahan granted Plaintiffs motion to disqualify the

‘Wayne County Circuit Court bench. (Ex. B to

Plaintiffs Response, 12/10/99 Tr. Pp 14-15).

Regarding the third argument to establish

mootness, Plaintiff is unable to show that as the

complaining party he will be subjected to the same

action again by the Defendants in this case.

Plaintiffs divorce proceeding is no longer before the

Wayne County Circuit Court.

There is no dispute that Plaintiff moved to

disqualify the entire Wayne County Circuit Court

bench to review his divorce action and that an

order was entered transferring the case to the

Macomb County Circuit Court. Plaintiff claims

that the order entered transferring the case to the

Macomb County Circuit Court was used to

support Defendants’ argument as to mootness.

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Plaintiff claims that the procedures set forth by

the State Court Administrator’s Office were not

followed. Plaintiff argues that the SCAO should

have chosen the transferee County yet in the order

transferring Plaintiffs divorce action, Judge J.

William Callahan himself ordered the transfer to

the Macomb County Circuit Court. For the

reasons set forth previously, the Court will not

review whether the order transferring the divorce

action was entered properly since that claim is not

before the Court.

Plaintiff further argues that he would face

the same issues before the Macomb County

Circuit Court. If Plaintiff were to be subjected to

the same issues as he did in the instant case,

those claims would be against different defendants

than those narned in the instant case. There is

nothing before the Court to show that the Macomb

County Circuit Court uses the same procedures

for reviewing orders to show cause and bench

warrants.

The Court finds that there is no

longer a present, live controversy between the

parties because the issues have been rendered

moot by the transfer of Plaintiffs divorce action to

the Macomb County Circuit Court. The Sixth

Circuit will not be able to render a decision which

would have an impact upon Plaintiff and the

circumstances of the pending appeal do not fall

within any well recognized exception to the

mootness doctrine. The Court certifies to the

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Sixth Circuit Court of Appeals that this Court is of

the opinion that an order vacating the Judgment

and dismissal should issue and requests a

remand of the matter if the Court of Appeals so

deems appropriate.

VII CONCLUSION

For the reasons set forth above.

IT IS ORDERED that Defendants’ Motion for

Relief from Judgment (Docket No.49, filed

November 1, 1999) is DENIED.

IT IS FURTHER ORDERED that Plaintiff's

Motion for Relief from Judgment (Docket No. 74,

filed November 29, 1999) is DENIED.

IT IS FURTHER ORDERED that Plaintiff's

Motion for Relief Supplementary to Judgment

(Dockets No. 71, filed November 19, 1999) is

DENIED.

IT IS FURTHER ORDERED that Defendants’

Motion to Strike documents in response to

Defendants’ unfiled Motion for Sanctions (Docket

No. 89, filed January 18, 2000) is GRANTED.

IT IS FURTHER ORDERED that Defendants’

Motion for Suggestion of Mootness and Motion to

Vacate the Judgment and Motion to Dismiss

Plaintiff's Claims with Prejudice (Docket Nos. 92-1

and 92-2, filed February, 2000) is GRANTED

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pending the Sixth Circuit’s order remanding the

matter for entry of an order setting aside the

Judgment and an order of dismissal of the case.

The Court CERTIFIES to the Sixth Circuit Court

of Appeals that this Court is of the opinion that an

order setting aside the Judgment and an order of

dismissal should issue and requests a remand of

the matter if the Sixth Circuit so deems

appropriate.

_"s/

DENISE PAGE HOOD

United States District Judge

Dated: September 28, 2001

78

Appendix E

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF

WAYNE

Grace E. Tindall,

Case No.: 90-026438

Plaintiff,

V

Michael E. Tindall,

Defendant.

/

ORDER TRANSFERING CASE TO MACOMB COUNTY

This matter having come before this Court on

Defendant’s Notice/Motion for Entry of Order

Dissolving Receivership and to Set Aside Order for

Medical Expense Reimbursement and Sanctions

Dated October 18, 1999, Defendant’s Motion to

Reverse Unauthorized Adjustment to Child Support

Account and to Enforce Order Crediting Child

Support Account dated October 18, 1999;

Defendant’s Verified Motion to Disqualify Wayne

County Circuit Court Bench on Due Process

Grounds and to Reassign Matter under MCR 3.212

dated November 9, 1999; and Receiver’s Petition for

Payment of Interim Fiduciary and Attorney Fees and

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For Entry of Amended Order Appointing Receiver

dated December 1, 1999, and, Plaintiff having

appeared in pro per, and the office the Friend of the

Court having been represented by Mr. Alan E.

Skrok,

This Court having conducted a hearing on

December 10, 1999, and it appearing to this court

that in Michael E. Tindall vs. Wayne County

Friend of the Court, By Joseph A. Schewe,

Director of Legal Services, and Alan E. Skrok,

Staff Attorney and Assistant Friend of the Court;

Wayne County Sheriffs Department, By Robert

Ficano, Sheriff: [and] Wayne County Circuit

Court, Family Division, by Kirsten Frank Kelly,

Presiding Judge and Michael F. Sapala, Chief

Judge, J/S Case No 98-CV-73896-DT 9, pending

in the Federal District Court for the Eastern

District of Michigan (hereinafter “Tindall v. FOC”)

an opinion mas been rendered in favor of the

Defendant herein determining that the “Friend of

the Court’s practice to issue show cause orders

and bench warrants without actual review by a

. judge and Defendant’s [apparently all defendants,

including this court] failure to follow the

procedures set forth in MCR 3.208(B) and MCL

552.631 violate Plaintiff's due process rights” and

a Judgment was entered thereon against

Defendants in Tindall v. FOC, (including,

apparently, this court).

It appearing to this Court that there is now an

issue of the mere appearance of impartiality which

80

may tend to erode the public’s confidence in the

integrity of the judiciary based on the adverse

ruling in Tindall v. FOC, indicates that this court

should transfer this case to another county (See

Michigan Code of Judicial Conduct, Cannon 2A

and B (discussing the importance of the public’s

confidence in the impartiality and integrity of the

judiciary)), and

Defendant having submitted an order for

entry pursuant to MCR 2,602(B)(3) and no written

objections to the proposed order having been filed,

and this court, sua sponte, having determined

that changes to Defendant’s proposed order are

necessary to comport with this court’s decision as

well as to conform to the practices of the State

Court Administrator’s Office, and

After having conferred with members of the

State Court Administrator’s Office, and on

‘ January 13, 2000, this court having spoken with

Judge Donald Martin of the Macomb County

Circuit Court Family Division concerning the

intention of this court to transfer this matter to

Macomb County Circuit Court and this court

being otherwise fully advised in the premises;

NOW THEREFORE, IT IS HEREBY ORDERED

THAT:

1. Defendant’s Notice / Motion for Entry of

Order Dissolving Receivership and to Set

Aside Order for Medical Expense

81

Reimbursement and Sanctions Dated

October 18, 1999, Defendant’s Motion to

Reverse Unauthorized Adjustment to Child

Support Account and to Enforce Order

Crediting Child Support Account dated

October 18, 1999; and Receiver’s Petition

for Payment of Interim Fiduciary and

Attorney Fees and For Entry of Amended

Order Appointing Receiver dated December

1, 1999, be, and they are hereby adjourned

to be heard following reassignment of this

case.

Defendant’s Verified Motion to Disqualify

Wayne County Circuit Court Bench on Due

Process Grounds and to Reassign Matter to

St. Clair County. under MCR 3.212 dated

November 9, 1999, is denied because the

conditions under subrule (B) of MCR 3.212

are not satisfied.

This matter is hereby transferred to

Macomb County Circuit Court in accord

with MCR 2.212(A)(1)and (B)(2).

Defendant, Michael E. Tindall, shall pay any

past-due fees and costs to the Wayne

County Friend of the Court at the time of

transfer pursuant to MCR 2.21 2©(2).

Defendant, Michael E. Tindall, shall pay any

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and all costs incurred as a result of the

transfer pursuant to MCR 2.2 12©(3).

6. Defendant shall continue to remit child

support payments to the Wayne County

Friend of the Court until this case is

transferred to and established in Macomb

County.

Dated January 14, 2000

”

Pere

J. W. CALLAHAN

TRUE COPY

83

Appendix F

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF

WAYNE

Grace E. Tindall

Case No.: 90-026438 DM

Plaintiff,

Vv.

Michael E. Tindall,

Defendant.

I

ORDER TRANSFERING CASE TO MACOMB

COUNTY

This matter is now before the Chief Judge of this

Circuit Court upon its return from Macomb _

County Circuit Court, to which the matter had

been transferred. The factual background is as

follows:

Defendant previously petitioned the Trial Court

(per the Honorable John William Callahan) to

transfer this action to St. Clair County under

MCR 3.212 citing “due process grounds.” By

Order of January 14, 2000, the Trial Court denied

84

that motion, finding that these grounds did not

satisfy the conditions for transfer stated in MCR

3.212(B)(1). Nevertheless, the Trial Court found

that there was an appearance of impropriety and

partiality that might tend to erode the public’s

confidence in the integrity of the judiciary based

upon the adverse ruling in Tindall v FOC.

Accordingly, the Trial Court concluded that the

matter should be transferred to another court.

The Trial Court conferred with members of the

State Court Administrator’s Office and, pursuant

to that conference, ordered the matter transferred

to Macomb County Circuit Court in accord with

MCR 3.212(A)(1) and (B)(2). The Trial Court also

directed defendant to pay any and all costs

incurred as a result of the transfer pursuant to

MCR 3.212(C)(3). Defendant failed and refused to

pay those costs, despite having requested the

transfer. Accordingly, the Macomb County Circuit

Court issued an Order of Dismissal on March 17,

2000, and returned this matter to this Court.

The Court’s concerns regarding the appearance of

impropriety and partiality still being an issue of

paramount importance, IT IS HEREBY ORDERED

THAT

1. This Matter is hereby transferred to Macomb

County Circuit Court in accord with MCR

3.212(A)(1) and (B)(2) and pursuant to the Court’s

conference with the State Court Administrator’s

Office.

85

2.Pursuant to MCR 3.212(D), no statutory

filing fee shall be assessed as this Court has

initiated the transfer.

Dated March 28, 2000.

”

oan

HON. MICHAEL F. SAPALA

Chief Judge, Third Judicial Circuit Court

A TRUE COPY