Petition for Writ of Certiorari — Donner v. Donner

( rY Supreme Court, U.8.

eee Fi L E D

O11°50FEB 982004

NO.

In The

Supreme Court Of The United States

MIRIAM DONNER,

Petitioner,

vs.

WILLIAM DONNER, EDWARD DONNER, and MARK

DONNER, as personal representatives of Estate of Charles

Donner, deceased, and FOURTH DISTRICT COURT of

APPEAL of FLORIDA,

Respondents

On Petition For Writ Of Certiorari

To the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Miriam Donner, pro se

i ees 2 8. ye

Hallandale, Florida 33009

QUESTIONS PRESENTED

A Florida state-appeals-court panel, including Judge Mager,

affirmed a judgment in favor of Charles Donner and against

Miriam Donner. Six days later, Mager resigned and joined a

law firm that represented Charles Donner regarding the

subject matter of that suit. Twenty years later Miriam Donner

discovered that firm's employment of Mager and that the

employment was negotiated before the affirmance. The state

court refused to recall its mandate since it had lost jurisdiction

at the end of the term in which its mandate was issued.

Miriam Donner sued in federal court to void the state-court

appellate decision claiming that Judge Mager's participation

in the appeal violated due-process. Her § 1983 complaint was

dismissed and that dismissal was affirmed, citing the Rook-

er-Feldman doctrine, allegedly because she had a "reasonable

opportunity" to discover Mager’s employment in time to raise

the due-process issue in state court via rehearing or certiorari.

a

1. Did the Eleventh Circuit standard, barring claims simply

because a party allegedly had a “reasonable opportunity” to

discover facts relating thereto, conflict with the Rooker-Feldman

doctrine, barring only those claims that were “raised” and

heard, or that the party “failed” to raise, in state court?

2. Is a finding that a party had a “reasonable opportunity” to

discover facts relating to an issue dispositive of whether,

under Rooker-Feldman, she “failed” to raise that issue where

she was under no duty to search out those facts in the state

court proceeding and hence was not “at fault” in not doing so?

3. Is a party at fault in not discovering, and raising in state

court, the facts relating to a judge’s disqualification, where the

| judge himself “neglects” to disclose those facts to that party?

__ ________4, Did the Eleventh Circuit violate Rooker-Feldman by depriving

| Petitioner of any forum in which to raise her claim where she

) was not at fault in not discovering the issue and in fact could

not have done so in time to have it heard in state-court appeal?

3

LIST OF ALL PARTIES IN PROCEEDING BELOW

MIRIAM DONNER

WILLIAM DONNER, EDWARD DONNER, and MARK

DONNER, as personal representatives of the Estate of Charles

Donner, deceased,

FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

ie

TABLE OF CONTENTS

Questions presented for review .......ccccccccccsescecesccesescseeceseeees ;

List of all parties to proceeding ...........ccccscesessesecsesesseseeseseeees ii

I decease acuidsaecinstgsticaasekatgingin Vv

Opinions and orders below ............csccccssseseseesssessssseseesssesee vii

rr ana asia cacsiinnebawinbaieenbonaunitess 1

EERE Ia ee ener eer oO NCI 1

i a csimeasicaeetiaen 3

Reasons for granting review ...........ccsscsssecessesessesesecesssseeseeee 11

1. The federal questions are important ...............0-c0s0-sesse0000 11

2. The Eleventh Circuit decision conflicts with relevant

decisions of this Court and of the Fifth Circuit ...........00.0.... 13

A. The Eleventh Circuit decision conflicts with decisions of

this Court in Feldman, Williams, Liljeberg, and Gibson and with

that of the Fifth Circuit in Womack .0........ccccccccccccccccecccecescceees 13

(1) Feldman’s “failed-to-be-raised” standard bars only those federal

issues that a party had a duty to raise in state COUTE ..............000. 14

(2) Under Liljeberg and Williams, party is under no duty to search

public records to discover disqualifying facts ..........s.:.sse+0s00000. 15

(3) Under Liljeberg and Womack, Miriam Donner could not have

been expected to search public records for the Articles of Amendment

without knowledge of Mager’s employment ................s-sssse+e-e0 16

iii

(4) Even if Articles of Amendment would have been discovered on

the date they were filed, no timely motion for rehearing could have

been filed in state court raising that 1SSUe .............scesseeeseeeneeees 17

(5) Comity concerns for state interests under Feldman do not apply

where state tribunal is biased .....................csccccssccssssecscessssssrecess 18

B. The Eleventh Circuit decision conflicts with that of this

Ee I cet ecteetahcocccrenksciesuatocnsbiitntadetaateiisaadahattaniacen 19

(1) Rooker’s first set of charges were known to him in time to be

raised and fully heard in state COUTE .........c.ssssessesesesesesesseneneeneess 19

(2) In contrast to the Eleventh Circuit decision, Rooker considered

on the merits the charge that state-court appellate judge was

TI orcs ecpninrrcatinnnvisrnsinininiasinsnanasinsinsininasincssiesibiasiaiatiin 21

CIE avec seconssinsnssininncneneniinnotonnnenatinmionannassctsimaniiauratati 22

Appendix

Eleventh Circuit's March 12, 2001 Opinion ................ App. 1

Eleventh Circuit's November 13, 2001 Order denying

rehearing and rehearing en banc ..........ccsesceseseeeesereerens App. 5

U.S. District Court's June 2, 2000 Order denying motion to

WUE oncccnssecsssisecnsenmeonanmnsnanessadnbinconiisensensensaenssnitnnislaninton App. 6

US. District Court's September 23, 1999 Order dismissing case

for want Of juriSictiOn ...........ccsccseseseseseeees He 287 vue App. 8

August 9, 1977 opinion of affirmance of Fourth District Court

EL de REE neem bern on see App. 11

“LY

TABLE OF CITED AUTHORITIES

Cases:

Brown v. Michigan Academy of Family Physicians,

SP Ee Ge lee cases sintisetisinnesalahdiniidbengcisiesisi 12

District of Columbia Court of Appeals v. Feldman,

CEO GI Ge cevetiatitinsnintnhtraictsenihassin 11, 13, 14;6; 18

Donner v. Donner, 349 So.2d 1240

(Fla. Dist. Ct. App. 1977),

cert. denied, 365 So.2d 724 wee — Aiaineaanesaesianisscnetbblaanioniie 4

unnes: Downer, 525 U. S. 1002,

veh, denied, 525 US. 1095 (1999) ....cccascccnsossssenenssossesnsessnsonssoses 6

Donner v. weasel 252 F.3d 442 (11th Cir. 2001) ...... vii

Felker v. Turpin, 518 U.S. 651 51 (1996) sli dgaidatamiie eat aaa

Gibson v. Berryhill, 411 U.S. 564 (1973) ......cescssessesseene 12, 18, 21

Johnson v. DeGrandy, 512 U.S. 997 (1994) .....eesessecsssseseeees 20, 21

Liljeberg v. Health Services Acquisition Corp.,

OO ED. BEF COT acecccvstensnnrnsetsleiblddtentanpicicuiipiaiioas 12, 15, 16, 17

Morgan v. Amerada Hess Corp.,

357 So.2d 1040 (Fla. Dist. Ct. App. 1978) .......csecssseseseereseseeeees 18

Rooker v. Fidelity Trust Co., a

Be OF GES Ge aicecscsscindinimnintantinainaiaininieomnean 19, 20, 21

Vv

rrr stele |

United States v. Womack,

454 F.2d 1337 (5th Cir.1972),

cert. demied, 414 U.S. 1025 (1973) <....sssssssssssssssssccesesseeeseenssses 17

Williams v. Taylor, 529 U.S. 420 (2000) ....cossoosssseeee 11, 14, 15, 16

Constitutional Provisions, Statutes, and Rules

US, Comst.s ammaandd. 1 ....cccccccsccessscsscsssecscaccnsescascscescscaseee 1,7,8,9

US, Comat, amend. XIV ...ccccccorsccescscssescscesesessscssesssseseee 1,7,8,9

Fla. Cosrst. art. V, § Gla) ...ccccccccsccccsscesesssccscesssesessscscscsesosscnssense 4

ORCA. GIN hil ec ae i

BB UGC. § TAPER cccccctsescaccccesssscseesscsnsccenssnnsstevemnessnssananntessien 2

BB TCG AGG arccascciccncsesssceTasssieccscecesescttmanssnsesessccsseutsoncce 2,3

2B U.S.C. § TSESEAME) .ncccccesesscesceceserssecescossecsscstessesnssensnsssnsses 2,3

42 UBC. © BGGB cercecrercrersnecrsesonsscssessecescsetnebestatecnsanstusbenmnbe 1,3

Florida Appellate Rule 3.14 ............ccccsssseseeeeensesesenenenenees 2, 18

Other Authorities:

Hart, The Power of Congress To Limit the Jurisdiction

of Federal Courts: An Exercise in Dialectic,

66 Flan. L. Rey. TSG CESS) ccceccerccscsinseteessrsceiscectnnstnnsecsounshe 12

_—_— —

vi

ee ee

PETITION FOR WRIT OF CERTIORARI

Petitioner Miriam Donner respectfully petitions for a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit.

OPINIONS AND ORDERS BELOW

The March 12, 2001 order of affirmance is reported as

Donner v. Donner, 252 F.3d 442 (11th Cir. 2001), but the opinion

was not published. The judgment of the district court was not

published or reported. Those orders are reproduced at App.

8-10 and 6-7.

vii

STATEMENT OF JURISDICTION

Under 28 U.S.C.A. § 1254(1), jurisdiction is conferred

on this Court to review by certiorari the U. S. Court of Appeals

for the Eleventh Circuit's affirmance of the judgment of the U.

S. District Court for the Southern District of Florida. The opin-

ion of affirmance was issued on March 12, 2001 (App. 1-4). A

timely petition for rehearing was served and filed on March

29, 2001 and that petition was denied on November 13, 2001

(App. 5).

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Constitution, amendment I, in pertinent part, provides:

"Congress shall make no law ... abridging the

right of the people ... to petition the Govern-

ment for redress of grievances."

U. S. Constitution, amendment XIV, in pertinent part, pro-

vides:

"No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property

without due process of law: ..."

42 U.S.C. § 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

1

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress, ...

28 U.S.C. § 1257, in pertinent part, provides:

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court by writ of certiorari ... where any title,

right, privilege or immunity is specially set up

or claimed under the Constitution ...

28 U.S.C. § 1331 provides:

"The district courts shall have original juris-

diction of all civil actions arising under the

Constitution, laws, or treaties of the United

States.

28 U.S.C. § 1343(a), in pertinent part, provides:

"The district courts shall have original juris-

diction of any civil action authorized by law to

be commenced by any person:

(4) To ... to secure equitable or other relief

under any Act of Congress providing for the

protection of civil rights..."

Florida Appellate Rule 3.14, in effect in 1977, in pertinent part,

provided: —

a. Time For. Unless further time is allowed,

rehearings must be applied for by petition in

writing within 15 days after the filing of the

decision or order of the Court.

* * *

e. Only One Petition Allowed. The petitioner

shall be entitled to file only one petition for

rehearing with respect to the _ particular

decision and no further petition or motion will

be received or filed by the clerk or considered

by the Court.

STATEMENT OF THE CASE

In federal district court, Miriam Donner sued William,

Edward, and Mark Donner, as personal representatives of the

Estate of Charles Donner, deceased, and the Fourth District

Court of Appeal of Florida under 42 U.S.C. § 1983 for

declaratory relief. Her complaint alleged that the court of first

instance, the federal district court, was vested with jurisdiction

under 28 U.S.C. §§ 1331 and 1343(a)(4) and that complaint

further alleged the following facts:

i. In 1976, Miriam Donner, as the wife of Charles Donner,

sued him in Florida state court for separate maintenance

(Complaint, | 4; see App. 2 ) In that case, that court entered a

judgment of dismissal on the stated ground that the parties

were not husband and wife. (Complaint, § 5; see App. 2) The

effect of that judgment was to bar Miriam Donner's claimed

marital right to support and her right of inheritance as

surviving spouse when Charles Donner later died.

as. See acca

YS In Appeal Case No. 76-1708, Miriam Donner appealed

the aforementioned judgment to the District Court of Appeal

of Florida, Fourth District. (Complaint, § 7; see App. 2)

3. On August 9, 1977, a three-judge panel of that Court,

consisting of Judges Alderman, Mager, and Dauksch, unani-

mously affirmed that judgment per curiam without opin-

ion.(App. 11; complaint, { 9) That panel comprised a quorum

of that Court.’ Rehearing was denied by September 15 and 21,

1977 orders. (Complaint, J 12)

4. The Florida Supreme Court denied without opinion

Miriam Donner's petition for writ of certiorari, seeking review

of that Fourth District Court of Appeal decision. (Complaint,

{ 13) Thereafter, on February 17, 1978, the district court of

appeal issued its mandate of affirmance. (Id., § 14) Donner v.

Donner, 349 So.2d 1240 (Fla. Dist. Ct. App. 1977), cert. denied,

365 So.2d 724 (Fla. 1978). (Id., J 15)

> In 1997, Miriam Donner discovered for the first time

that, at some time prior to August 15, 1977, Judge Mager had

already agreed to join a law firm ~- Abrams, Anton, Robbins,

Resnick & Schneider. That August 15, 1977 date was just four

business days after the August 9, 1977 date of the appellate

panel's order of affirmance. That law firm had for several

years been representing, and in July and August, 1977 con-

tinued to represent, Charles Donner on an ongoing basis with

regard to the subject matter of Miriam Donner’s separate

maintenance claim. (Id., J 16)

6. Paragraph 22 of the complaint alleged:

(c) Upon learning of Mager's association with

that firm, Miriam Donner initiated a search of

— the -public- Florida -corporate- filings to— -

\ At the time of that appeal, Fla. Const., art. V, § 4(a)

provided, "Each district court of appeal shall consist of at least three

judges. Three judges shall consider each case ..." (Italics supplied)

determine when Judge Mager joined that firm.

(d) As a result of that search, in October, 1997,

Miriam Donner learned that, on August 30,

1977, that law firm had filed with the Secretary

of State "Articles of Amendment." ...

(e) Those Articles recited that, "on the 15th day

of August, 1977," the shareholders of that firm

adopted an amendment, changing the name of

the -firm from "Abrams, Anton, Robbins,

~ Resnick and Schneider, P.A." to "Abrams,

Anton, Robbins, Resnick, Schneider and

Mager, P.A." (emphasis supplied).

(f) The "Mager" whose name was added to the

"P.A." was the same Gerald Mager who was

the judge on the aforementioned district-court-

of-appeal panel.

£ Since Judge Mager tendered to the Governor of the

State of Florida a July 13, 1977 letter of resignation effective

August 15, 1977, at least by July 13, 1977, Judge Mager's post-

resignation plans for employment as a name member of

Anton's law firm had already been concluded, or alternatively

the discussions and negotiations relating thereto spanned a

period that overlapped the period when Judge Mager parti-

cipated in the deliberations in regard to the three-judge panel's

order of affirmance and included the time when he cast his

vote in that case. (Id., ¥§ 23 & 24)

8. Upon making that discovery in 1997, Miriam Donner

immediately moved in the Fourth District to recall the man-

date of affirmance based upon the aforementioned newly-

discovered facts. (Id., § 17)

9. On December 23, 1997, in Case No. 76-1708, a panel of

judges of the Fourth District (different from the judges who

comprised the panel presiding in 1977) denied Miriam Don-

~

ner's motion to recall its mandate, holding that "[a]n appellate

court is without jurisdiction to recall its mandate beyond the

term of court during which the mandate was issued.” (Id., §

25)

10. _— Petitioner's ensuing petition to the Florida Supreme

Court for discretionary review of the Fourth District Court of

Appeal order (denying her motion to recall the mandate) was

denied without opinion, without determining the merits of

any issue. (Id., § 39)°

11. On May 5, 1998 Miriam Donner filed in the Florida

Supreme Court a petition for writ of mandamus requiring "...

the Fourth District to accept jurisdiction of Appellant Miriam

Donner's motion to recall mandate and determine that motion

on its merits." The Florida Supreme Court denied that petition

without opinion, again without determining the merits of any

issue. (Id., | 40-41; see App. 2)

12. _ Petitioner's petition for writ of certiorari to the U.S.

Supreme Court, seeking review of the Fourth District order

denying her motion to recall the mandate, was denied. Donner

v. Donner, 525 U.S. 1002, reh. denied 525 U.S. 1095 (1999) (Id.,

{ 42; see App. 2)

“ The Eleventh Circuit opinion in the case at bar likewise

States:

"(T]he court denied the motion noting that it was

without jurisdiction to recall a mandate beyond the

term of the court when the mandate was issued."

(App. 2)

3 These same facts are reiterated in the Eleventh Circuit

opinion. (App. 2)

13.

Paragraph 44 of the complaint alleged:

"[A]s a result of Judge Mager's discussions and

negotiations for employment with, and his

employment by, the said law firm, he had a

substantial interest, pecuniary and/or profes-

sional, adverse to Miriam Donner, in the out-

come of the aforementioned appeal when he

contemporaneously participated in the deliber-

ations of the appellate panel and in the appel-

late order of affirmance.

(a) His participation with the other

judges on that panel in their deliberations and

in their affirmance likewise prejudiced and dis-

qualified those judges and the entire panel

with that same taint.

(b) Those circumstances rendered the

said appellate decision and appellate mandate

SO egregious as to strike at the very foundation

of the judicial system and at basic notions of

fairness, violative of Miriam Donner's right to

an impartial tribunal, guaranteed to her under

the Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution and her

right to petition the Courts for redress under

the First Amendment.

(c) Those due process and First

Amendment violations were rendered all the

more egregious by the ongoing failure of the

Fourth District Court of Appeal, of Judge

Mager, of the Abrams, Anton law firm, of

opposing counsel, and of Charles Donner to

disclose the relevant facts to Miriam Donner.

14.

Paragraph 45 of the complaint alleged:

(a) Judge Mager's participation in the panel's

deliberations and affirmance not more than

four business days before the Abrams, Anton

law firm formally changed its name to include

that of Judge Mager, and

(b) the failure of that law firm, of Judge Mager,

of opposing counsel, and of Charles Donner to

disclose that employment or the negotiations

leading to that employment or the timing

thereof to Miriam Donner, failed to "satisfy the

appearance of justice" and instead generated an

appearance of impropriety so egregious as to

strike at the very foundation of the judicial

system and at basic notions of fairness and

thereby likewise constituted a denial of due

process, violative of the Due Process Clause of

the Fourteenth Amendment to the U.S. Consti-

tution and of the First Amendment.

The complaint further alleged:

In light of the Defendant Court's stated

position that it lacks jurisdiction (after expira-

tion of the term of court in which its mandate

was issued) to recall its mandate, Miriam

Donner has been deprived of any opportunity,

meaningful or otherwise, to have a Florida

state court consider or adjudicate the due-

process and First Amendment issues, with

regard to which declaratory judgment is

sought herein, on the merits. (Id., § 48)

16. That complaint concluded with the following prayer:

Plaintiff demands judgment

(a) declaring that the August 9, 1977,

September 15, 1977, and September 21, 1977

orders of the Fourth District, [and] its ensuing

February 17, 1978 mandate of affirmance in

Case No. 76-1708 were denials, under color of

state law, of Plaintiff's property rights and right

of access to the Courts, violative of the pro-

cedural and substantive due process guaran-

tees under the Due Process Clause of the Four-

teenth Amendment of the U. S. Constitution

and of the First Amendment right to petition

the court for relief, and as such were void,

thereby leaving pending for resolution in the

Fourth District the merits of Miriam Donner's

appeal of the Broward Circuit Court judgment

to the Defendant Court in Case No. 76-1708,

— ei eee

(b) for such further relief as this Court

may deem just and proper.

(Id., pp. 16-17) Absent from the complaint was any prayer for

monetary relief.

The federal district court clerk entered default against

the personal representatives of the Charles Donner estate. The

Fourth District moved to dismiss the complaint based on the

Rooker-Feldman doctrine. (App. 8) Citing that doctrine, the

court granted that motion. That court opined, "The basis of

Plaintiff's Complaint is that the state appellate court deprived

her of her constitutional rights by refusing to recall its 1978

mandate." (App. 9) Miriam Donner's motion for rehearing of

that order was denied. That order characterized her as trying

to "shoehorn" her claim into an exception to the Rooker-Feldman

doctrine and opined that "she is in effect appealing the 1997

9

state court decision denying her relief on her claims concern-

ing the 1977 decision to the district court." (App. 6-7) Pursuant

to 28 U.S.C. § 1291, she appealed that dismissal.

The Eleventh Circuit affirmed that judgment, again

relying on the Rooker-Feldman doctrine. However, that Court

departed from the district court's view, that Miriam Donner’s

complaint was seeking review of the December 23, 1997 order,

by opining instead that her complaint was seeking review of

the August 9, 1977 opinion. In support of its decision, the Ele-

venth Circuit reasoned that the names of the Fourth District

judges on the panel that issued that opinion were known to

Petitioner and that

[A]ccording to her own admission, she could

have discovered that the law firm had filed

articles of amendment with the secretary of

state, making the former judge a named

partner. With this information, Plaintiff could

have included her due process claims in a peti-

tion for rehearing or in a petition for certiorari

... While Plaintiff may not have had actual

knowledge of the judge joining the law firm,

she at least had a reasonable opportunity to

learn the facts necessary to bring her due

process challenge. Resources of a party making

an appeal are limited. Just because Plaintiff did

not investigate the potential grounds for the

judge[’]s recusal does not mean that she did

not have a reasonable opportunity to do so.

(App. 4) In regard to the above-quoted reference to Miriam

Donner's alleged "own admission," her only "admissions"

concerning the articles of amendment are those set out in ¥ 22

of the complaint, quoted in § 6 at pp. 4-5 ante., as to the

substance of the amendment that the articles approved, as to

the August 30, 1977 date of filing of those articles, and as to

10

Miriam Donner's discovery of those articles in 1997. Neither in

the complaint nor otherwise did Miriam Donner allege or

"admit" that she was ever alerted to Judge Mager’s employ-

ment at any time before 1997. [Complaint, |] 44(c) and 45(a),

quoted ante at pp. 6-7] To the contrary, her complaint alleges

that in 1997 she was for the first time apprized of that

employment and prompted to search out and discover Mag-

er’s law firm’s public filings. (See JJ 5 and 6 at pp. 4-5 ante).*

REASONS FOR GRANTING THE PETITION

1. The federal questions are important

The Rooker-Feldman doctrine and its interpretation have

presented oft-recurring federal jurisdictional issues in the

federal courts. The various circuits have adopted a diversity of

standards under that doctrine. The Eleventh Circuit's “reason-

able opportunity” standard and decision conflicts both with

the standards announced in Rooker v. Fidelity Trust Co., 263

U.S. 413 (1923) and District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 482 (1983) (doctrine bars only those

issues that were raised and heard, or that claimant “failed” to

—— —faise, in-state-court), and-with Williams v. Taylor, 529 U.S. 420,

431-432 (2000) (party “fails” to raise an issue in state court only

if he was under a duty to discover the facts relating thereto),

* The Eleventh Circuit opinion does not specify where in

the record that alleged "admission" appears. Since the judgment

under review granted a motion to dismiss the complaint, the

Eleventh Circuit was presumably referring only to allegations of the

complaint. Nowhere in the record did Miriam Donner make any

allegation concerning the Articles of Amendment that elaborated

upon, or differed in any way from, the allegations of { 22 of the

compiaint, fully quoted ante in § 6. And since the Eleventh Circuit

opinion, rendered on its "Non-Argument Calendar" (App. 1),

confirms that there was no oral argument, no such “admission” may

be attributed to any statement made at an oral argument.

il

ee ee ree eres Ae

Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 864

(1988) (duty rests on judge to disclose, not party to ferret out,

disqualifying facts) and Gibson v. Berryhill, 411 U.S. 564, 575-

577 (1973) (no cognizable comity interest exists in a biased

state-tribunal proceeding)

The special importance of the Eleventh Circuit's depar-

ture from Rooker-Feldman is that it effectively deprives an

aggrieved person, who is under no duty to discover a state-

court’s constitutional due-process violation, of any forum,

state or federal, past, present, or future, in which to remedy

that violation simply because he could have discovered those

facts. Any such version of Rooker-Feldman that would bar all

avenues of judicial relief from a due-process violation, would

give rise to "serious constitutional questions." Brown v. Mich-

igan Academy of Family Physicians, 476 U.S. 667, 681 (1986),

citing Hart, The Power of Congress To Limit the Jurisdiction of Fed-

eral Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362

(1953); see also Felker v. Turpin, 518 U.S. 651, 667 (1996)

(Stevens, Souter, and Breyer, JJ., concurring).

That “serious constitutional question” is here germane

because, in the course of Miriam Donner’s 1977 state-court

appeal, she had no knowledge of the facts disqualifying the

state-court judges that gave rise to her due-process claim and

those judges themselves neglected to disclose those facts to

her. Thus, she was under no duty to discover or to raise that

claim in that appeal or via a certiorari petition to this Court

seeking review of that appellate decision. Yet, the Eleventh

Circuit nailed shut the door to the only available avenue of

relief, the federal district court.

This Court's resolution of that question is rendered all

the more important to our dual federal-state court system in

light of the fact that the due-process violation that Miriam

Donner seeks to remedy will require the federal court to

declare void the state-court appellate decision.

It is essential that state courts and their judges be

placed clearly on notice by this Court that they cannot conceal,

12

and thereby evade federal-court scrutiny of, their disqualifying

due-process violations.

2. The Eleventh Circuit decision conflicts with

relevant decisions of this Court and of the Fifth

Circuit

A. The Eleventh Circuit decision conflicts with |

decisions of this Court in Feldman, Williams,

Liljeberg, and Gibson and with that of the Fifth

Circuit in Womack

This Court's decision in District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482 n.16 (1983) -- the second

half of the Rooker-Feldman doctrine — holds that federal district

courts lack jurisdiction over "constitutional claims" that “are

inextricably intertwined with the state court's" decision. That

footnote 16 sets out a two-prong standard, explaining that the

jurisdictional bar applies where the issue

(a) was “raised” and heard on the merits in the state-

court proceeding, or

(b) was “failed to be raised" in that proceeding.

Feldman’‘s underlying facts illustrate the first prong of

that standard. In Feldman, the petitioners were, in the course

of an antecedent District-of-Columbia bar proceeding, fully

cognizant of the facts that formed the basis of their federal

claims and did in fact “raise” those federal issues in that pro-

ceeding (wherein those issues were heard). The first prong of

that standard is here inapplicable because the Eleventh Circuit

itself contrastingly notes Miriam Donner’s lack of knowledge

of the facts upon which her federal claim was later based

(App. 4) and the fact that she did not “raise” that claim in state

court.

13

——————EO

(1) Feldman’s “failed-to-be-raised” standard bars only

those federal issues that a party had a duty to raise

in state court

There remains then to be considered the second,

“failed-to-be-raised" prong of Feldman’s standard. The word

“failed” has more recently been construed by this Court in

Williams v. Taylor, 529 U.S. 420, 431-432 (2000), in the context

of a statutory provision concerning one who “has failed to

develop the factual basis of a claim in State court pro-

ceedings.” Williams, 529 U.S. at 431-432, holds that the

“ordinary, ... common meaning” of the word “failed” “con-

notes some omission, fault, or negligence on the part of the

person who has failed to do something,” a failure to “take the

necessary steps to fulfill” “a duty.” Feldman likewise invokes

the word “failed” in its “ordinary” sense. Therefore, Miriam

Donner can be said to have “failed” to raise her federal issues

in state court only if she was “at fault” in that regard — only

if she was in breach of some “duty” to discover the disquali-

fying facts relating to Judge Mager and to raise those facts in

the state court.

The Eleventh Circuit opinion below replaces the second

prong of Feldman’s standard with its own conflicting standard,

that it was enough that Miriam Donner allegedly “could have

discovered” the Articles of Amendment and would thereby

have had “a reasonable opportunity” to raise her federal claim

in the state-court proceeding. That different standard elimin-

ated any consideration of whether she “failed” or, in other

words, was in breach of some “duty” (and therefore “at fault”)

in not raising her federal claim in state court. Accordingly, the

standard that the Eleventh Circuit adopted conflicts with

Feldman’s foregoing standard, as well as with Williams.

14

(2) Under Liljeberg and Williams, party is under no

duty to search public records to discover disqualifying

facts

That conflict is of real significance in this case because,

in fact, no such “duty” was imposed on Miriam Donner cr

violated by her in her state-court appeal. That conclusions is

impelled by the following two decisions of this Court: f)

i. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, t)

864 (1988), held that the mere fact that a judge’s financial

disclosure forms were on file in a public record did not place

the litigants on notice of disqualifying facts disclosed therein

— because the duty rests on a judge to disclose disqualifying

facts, not on litigants to ferret those facts out of public records.

Any “neglect” in that regard “is chargeable to” the judge, not

to the litigants. Jd. Miriam Donner’s complaint pointed out

that the state-court judges did not perform their duty of

disclosure. (Complaint, § 45(b), quoted in { 14, at p. 7 ante)

Indeed, the facts, as alleged in Miriam Donner’s complaint

would, if true, have imposed an even broader, overarching

responsibility on Judge Mager to disqualify himself sua sponte,

without a need for any party to raise the issue in the state-

court proceeding — a duty that he did not fulfill.

ii. Williams v. Taylor, 529 U.S. at 440, likewise held that

counsel was under no duty to search through public records

to ferret out a state-court juror’s disqualifying personal

information — and that he therefore cannot be said to have

“failed” to have develop that information in state court. bias

Thus, the Eleventh Circuit's inquiry, limited just to \)

whether Miriam Donner “could” have discovered those facts ()

through her own independent research, missed the mark. '

Under Feldman, it is rather the fact that she had no knowledge

of those facts — and therefore no duty to raise the federal

issue in state court — that is dispositive. Accordingly, the

15

Eleventh Circuit standard conflicts with Feldman’s standard as

well as with the aforementioned holdings in Liljeberg and

Williams.

(3) Under Liljeberg and Womack, Miriam Donner

could nothave been expected to search public records

for the Articles of Amendment without knowledge of

Mager’s employment

There is yet another dimension to that conflict, as

follows.

Liljeberg, 486 U.S. at 864, characterized a litigant's

search of "the judge's financial disclosure forms" as an

"unusual step" even though those "financial disclosure forms'

would naturally have been readily retrievable through a public

records index search directly under the name of the judge in

Liljeberg. By contrast, the law firm's Articles of Amendment,

reflecting the addition of Mager as a member of that firm,

would naturally have been indexed in the Secretary of State's

records under the name of the firm, Abrams, Anton, Robbins,

Resnick, Schneider & Mager, P.A., not under Mager's name,

and as such would in 1977 not have been discoverable by

searching that index under his name. Miriam Donner would

have had to be clairvoyant to initiate an index search under

that firm name or even to have conceived of searching the

records of the Secretary of State. Nothing in Miriam Donner's

complaint suggests otherwise. Indeed, the complaint affirma-

tively alleges that neither the Fourth District, nor Mager, nor

the opposing party imparted any information to her in that

regard. [Complaint, { 44(c) and 45(a) quoted ante at pp. 6-8]

Thus, a search of the Secretary of State's records to find

the August 30, 1977 filing would have to be characterized as

an even more "unusual step" than was the direct search in

Liljeberg — and hence was a step that Miriam Donner could not

"reasonably" have been expected to undertake at any time

before she gained knowledge thereof in 1997.

16

2

This same logic was applied by the Fifth Circuit in

United States v. Womack, 454 F.2d 1337 (5th Cir. 1972), cert.

denied, 414 U.S. 1025 (1973). Womack, 454 F.2d at 1341, held that

a litigant was under no duty to discover grounds for disqualifica-

tion evidenced by a transcript, previously included as a public

record in the record of another case, on "the day it became a

public record," absent knowledge of facts that would have led

him to initiate a search for that transcript.

(4) Even if Articles of Amendment would have been

discovered on the date they were filed, no timely

motion for rehearing could have been filed in state

court raising that issue

Even without regard to any of the foregoing considera-

tions, discovery of the articles of amendment before the time

for rehearing expired would not have enabled Miriam Donner

to have a “full hearing” concerning Judge Mager’s disquali-

fication. Those articles related only to Judge Mager’s employ-

ment status on August 15, 1977, after the August 9, 1977 opin-

ion was issued. Only with the benefit of the additional facts

alleged in Miriam Donner’s federal district court complaint,

that relate Judge Mager’s pre-employment negotiations with

the law firm back to the date when that opinion was issued,

would she have been able to prove those disqualifying facts

and her due-process claim. Analogously, in Liljeberg, 486 U.S.

at 864, it was noted that the financial disclosure forms

available for inspection in the public records would not alone

have been sufficient, because although it disclosed the judge’s

connection with a University, it did not disclose whether that

connection existed while the University was negotiating with

Liljeberg.

One must hasten to add that, even if Miriam Donner

would by sheer serendipity have happened upon those articles

and all of the other needed information on the same day the

articles were filed, the deadline for filing a motion for rehear-

17

ing raising a claim in regard thereto in the state-court appeal

would by then have already expired. Since the panel opinion

in which Judge Mager participated was issued on August 9,

1977 (App. 11), Miriam Donner's motion for rehearing of that

opinion was mandated to be filed within 15 days, not later

than August 24, 1977 — six days prior to the August 30, 1977

date of filing of those articles. The then-applicable Florida

Appellate Rule 3.14, quoted at pp. 2-3 ante, limited a party to

just one motion for rehearing filed not later than 15 days after

the order to which it is directed. Nor could Miriam Donner

have circumvented that deadline by filing a later "supplement"

to a timely motion for rehearing; Morgan v. Amerada Hess Corp.,

357 So.2d 1040, 1045 (Fla. Dist. Ct. App. 1978) construed that

Rule as allowing a supplement only if both the original motion

and supplement thereto were filed before the 15-day deadline

expired. It would have been chronologically impossible for

Miriam Donner to comply with that requirement.

(5) Comity concerns for state interests under Feldman

do not apply where state tribunal is biased

One final feature that distinguishes the case at bar from

Feldman arises out of the closing comments in Feldman’s foot-

note 16. That footnote notes the “importance” to Feldman’s

analysis of “the state interest in regulating the state bar.”

Gibson v. Berryhill, 411 U.S. 564, 575-577 (1973) held that

comity considerations that would otherwise require deference

to state interests do not apply in the face of facts showing that

the state tribunal is biased — the very essence of Miriam

Donner’s due-process claim. Hence, yet another conflict with

Feldman (and Gibson). That issue is further discussed in

Argument 2B(2) post

18

B. The Eleventh Circuit decision conflicts with that of

this Court in Rooker

The first half of the Rooker-Feldman doctrine, upon

which the Eleventh Circuit relied, is Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923). The Eleventh Circuit's reliance on Rooker

was likewise misplaced and in fact conflicted with Rooker. In

Rooker, a bill in equity made the following several "charges":

(1) Rooker’s first set of charges were known to him in

time to be raised and fully heard in state court

The first set of charges was that, in a prior state-court

proceeding, a judgment "gave effect to a state statute alleged

to be in conflict with "the "contract clause of the Constitution"

and "the due process of law and equal protection clauses" and

did not give effect to "the law of the case." Rooker, 263 U.S. at

415, observed:

"[The state] circuit court had jurisdiction of

both the subject-matter and the parties, that a

full hearing was had therein, that the judgment

was responsive to the issues, and that it was

affirmed by the Supreme Court of the state on

an appeal by the plaintiffs."

(Emphasis supplied) Based on those observations, Rooker, 263

U.S. at 415-416, declined to address the merits of those

charges, reasoning:

"If the decision was wrong, that did not make

the decision void, but merely left it open to

reversal or modification in an appropriate and

timely appellate proceeding... Under the

legislation of Congress, no court of the United

States other than this court could entertain a

19

proceeding to reverse or modify the judgment

for errors of that character."

Rooker conflicts with the Eleventh Circuit's treatment of the

allegations of Miriam Donner’s complaint at every step in the

foregoing analysis. Her complaint alleged facts showing that,

(a) in her 1977 appeal,

(i) there was by contrast no hearing, "full" or otherwise,

on the (due-process) issues relating to Judge Mager’s disqualli-

fication,

(ii) the state-court decision by contrast made no ruling

on, and "was not responsive to," those issues,

(iii) Her lack of knowledge of the disqualifying facts

and the state judges’ failure to disclose those fact contrasted

with Rooker’s knowledge of the facts giving rise to those

federal issues in the state-court proceeding and with Rooker’s

ability to seek "reversal or modification in an appropriate and

timely appellate proceeding" in state court, and,

(b) indeed, when, in 1997, Miriam Donner finally gain-

ed knowledge of those facts, the state court contrastingly held

that, in the interim, it had lost all "jurisdiction." (App. 2)°

> These same observations are equally dispositive of the

federal district court's reasons, different from those of the Eleventh

Circuit, for invoking Rooker-Feldman in the case at bar. Already

noted, ante, at p. 9, is the fact that the federal district court mis-

construed the complaint as seeking review of the Fourth District's

1997 order, denying the motion to recall mandate. (App. 8-9) Since

that order was based on a ruling that the Fourth District lacked "jur-

isdiction" to recall its mandate (and therefore could not hear the

federal issues on the merits), the federal district court's reasoning is

equally at odds with Rooker's above-quoted criteria. The federal

district court's initial order (App. 9) additionally relied on an abbre-

viated reference to the Rooker-Feldman doctrine in Johnson v.

DeGrandy, 512 U.S. 997, 1005-1006 (1994). In regard to that doctrine,

Johnson's only holding was that that doctrine was inapplicable where

the claimant was not a party to the prior state-court proceeding.

20

ee

(2) In contrast to the Eleventh Circuit decision,

Rooker considered on the merits the charge that state-

court appellate judge was disqualified

These observations are also relevant to the separate

discussion in Rooker, 263 U.S. at 416-417, of the bill's further

"charge," that the state-supreme-court affirmance was "void"

because one of the judges, "participating" in the state-court

appellate proceeding "had an interest in the case which

worked his disqualification." Rooker, 263 U.S. at 417, contrast-

ingly addressed, and disposed of, that charge on its merits by

ruling that "the facts set forth and relied upon neither support

nor tend to support the charge..." of disqualification. Rooker’s

separate treatment of that issue may have been prompted by

a concern that a “full” — and fair — “hearing” on that issue

would not have been available in the state court if, in fact, bias

existed. Compare Gibson, 411 U.S. at 575-577, that also looked

to the merits of the allegations of state-tribunal bias in deter-

mining whether to abstain from exercising federal jurisdic-

tion; and see Argument 2A(5) ante. Though the disqualifying

facts alleged in the complaint at bar markedly differ from

those alleged in Rooker's bill, it is noteworthy that Miriam

Donner’s complaint also charges that the state-court appellate

affirmance is "void" because a state-court appellate judge had

an interest in the case "which worked his disqualification" and

that of the entire panel with whom he deliberated. However,

the Eleventh Circuit decision contrastingly foreclosed con-

sideration of whether the allegations of fact in Miriam Don-

ner’s complaint "support or tend to support the charge."

That holding is of course entirely consistent with the foregoing

analysis of Rooker and Feldman. In dicta, Johnson, 512 U.S. at 1005-

1006, additionally recognized that doctrine’s prohibition against

seeking "appellate review of the state judgment..." in federal district

court. The fact that Miriam Donner’s complaint does not violate that

prohibition has already been fully discussed ante.

21

CONCLUSION

Wherefore, the petition should be granted.

Respectfully submitted,

Miriam Donner, pro se

P.O. Box 1232

Hallandale, FL 33009

22

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

No. 00-13530

Non-Argument Calendar

D. C. Docket No. 99-08593-CV-DMM

MIRIAM DONNER,

Plaintiff-Appellant,

versus

EDWARD DONNER, MARK DONNER,

et al.,

Defendants-A ppellees

Appeal from the United States District Court

for the Southern District of Florida

(March 12, 2001)

Before ANDERSON, Chief Judge, CARNES and MARCUS,

Circuit Judges.

PER CURIAM:

Plaintiff Miriam Donner appeals the district court's

dismissal of her civil action for declaratory relief against

William Donner, Edward Donner, and Mark Donner, as

personal representative of the Estate of Charles Donner, and

the Fourth District Court of Appeals of Florida. Plaintiff

argues that the district court erred in dismissing her claim

based on the Rooker-Feldman doctrine. Because we find that

the district court correctly applied the Rooker-Feldman

doctrine, we affirm.

App. 1

\ Background Facts

In 1976, Miriam Donner lost her lawsuit in a Florida

circuit court claiming separate maintenance from Charles

Donner, because the court determined that she and Charles

Donner had never been husband and wife. Following this

decision, Plaintiff appealed to the Fourth District Court of

Appeals, which affirmed the decision. The Supreme Court of

Florida subsequently denied certiorari. Twenty-five years

later, in 1997, Plaintiff discovered that one of the judges on the

Fourth District Court of Appeals that heard her initial appeal

had joined a law firm that had represented Charles Donner

just six days after the original opinion issued. Based on this

evidence, Plaintiff filed a motion to have the state appellate

court recall its mandate, but the court denied this motion

noting that it was without jurisdiction to recall a mandate

beyond the term of the court when the mandate was issued.

Plaintiff moved for rehearing and rehearing en banc of this

order, and then petitioned for certiorari by the Florida

Supreme Court and the United States Supreme Court. All of

these requests were denied. In addition, Plaintiff sought a writ

of mandamus from the Florida Supreme Court, which was

denied.

Di

We review the district court dismissal for lack of

subject matter jurisdiction de novo. Woodruff v. U.S. Dep't of

Labor, 954 F.2d 634, 636 (11th Cir. 1992).

Under the Rooker-Feldman doctrine, federal district

courts do not have subject matter jurisdiction when a plaintiff

seeks review of a state court judgment. See Rooker v. Fidelity

Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 150 (1923); District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103

S.Ct. 1303, 1315 (1983). This doctrine applies to claims that were

raised in state court as well as claims that were not raised but

could have been in an earlier state proceeding. See Powell v.

App. 2

Powell, 80 F.3e 464, 467 (11th Cir. 1996). Thus, the primary

exception to the doctrine is when a plaintiff did not have a

"reasonable opportunity" to raise the issue in the state

proceeding. Wood v. Orange County, 715 F.2d 1543, 1547 (11th

Cir. 1983).

In Wood v. Orange County, the plaintiffs challenged the

procedure used to attach a lien against their property. See id. at

1544. The defendants argued that the plaintiff's claim should be

dismissed under Rooker-Feldman because the plaintiffs could

have made their constitutional challenge to the judgment that

created the lien in state court. See id. at 1548. This Court

rejected that argument because the plaintiffs did not receive

actual notice of the judgment until well after the time for appeal

had elapsed. See id. The defendants also argued that the

plaintiffs could have raised their objections by filing a motion

to set aside the judgment creating the lien. See id. The court

also rejected this argument—this time on the ground that the

motion to set aside is "not a substitute for an appeal." Id. It acts

as "a special kind of collateral attack on, rather than an appeal

of, the judgment." Id. Thus, it did not matter that the plaintiffs

could have raised their claims in the motion to set aside

because those proceedings were not part of the appellate

review of the original judgment. See id. In conclusion, this

Court held that because the plaintiffs did not have a reasonable

opportunity to raise their claims in the trial court or on appeal

of the judgment, the federal district court's exercise of

jurisdiction would not usurp the state appellate court's or the

United States Supreme Court's appellate jurisdiction of the

constitutional issues presented. See id.

The Court has also noted that even when an issue is

presented, if that court does not have the ability to consider the

issue fully on its merits, Rooker-Feldman preclusion does not

apply. See Biddulph v. Mortham, 89 F.3d 1491 (11th Cir. 1996).

The plaintiffs in Biddulph v. Mortham sought a writ of

mandamus asking the Florida Supreme Court to review a

decision by the Secretary of State. See id. at 1494. The court

App. 3

denied the petition, and the plaintiff filed suit in federal district

court making the same federal claim. See id. at 1495. This Court

decided that because the Florida Supreme Court had strictly

limited authority only to grant a mandamus in cases where

there is a right to the performance of a right that is indisputably

clear, the "reasonable opportunity" exception should apply. See

id. at 1495 n. 1. In other words, since the plaintiff did not have

a fair opportunity to have the claim considered by a state court,

the federal district court was not exercising appellate review of

any state court decision.

Plaintiff maintains that she never received a reasonable

opportunity to litigate her due process claim in the state courts.

Unlike the plaintiffs in Woods that were not even aware that a

lien had been placed on their property, Miriam Donner had

notice of the judicial proceedings in which she was par-

ticipating. The names of the judges on the panel of the Fourth

District Court of Appeals were obviously known to her and,

according to her own admission, she could have discovered

that the law firm had filed articles of amendment with the

secretary of state, making the former judge a named partner.

With this information, Plaintiff could have included her due

process claims in a petition for rehearing or in a petition for

certiorari, both of which are part of the appellate review

referred to in Wood. While Plaintiff may not have had actual

knowledge of the judge joining the law firm, she at least had a

reasonable opportunity to learn the facts necessary to bring her

due process challenge. Resources of a party making an appeal

are limited. Just because Plaintiff did not investigate the poten-

tial grounds for the judges recusal does not mean that she did

not have a reasonable opportunity to do so.

Because Plaintiff had a reasonable opportunity to

present her constitutional claims, Rooker-Feldman preclusion

opportunity to present her constitutional claims, Rooker-

Feldman preclusion was appropriate. Accordingly, we

AFFIRM.

App. 4

IN THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

FILED

U.S. COURT OF

APPEALS

No. 00-13530-AA ELEVENTH CIRCUIT

NOV 13, 2001

THOMAS K.

MIRIAM DONNER, KHAN CLERK

Plaintiff-A ppellant,

versus

EDWARD DONNER, MARK DONNER,

WILLIAM DONNER, as personal

representatives of the Estate

of Charles Donner, deceased

4th COURT OF APPEALS,

Defendants-Appellees.

— —_

On Appeal from the United States District

Court for the Southern District of Florida

——$

ON PETITION(S) FOR REHEARING AND SUGGESTION(S)

OF REHEARING EN BANC

(Opinion Race, BF)

Before: ANDERSON, Chief Judge, CARNES and MARCUS,

Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of

this panel or other Judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Eleventh

Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are

DENIED.

ENTERED FOR THE COURT:

S/

CHIEF JUDGE ORD-42

App. 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

No. 99-8593-CIV-MIDDLEBROOKS

MIRIAM DONNER, FILED BY AM D.C.

JUN 01 2000

Plaintiff, Clarence Maddox

Clerk U.S. Dist.

VS. Ct. S.D. of Fla.

EDWARD DONNER, MARK DONNER,

and WILLIAM DONNER, as personal

representatives of the Estate

of Charles Donner, deceased,

and DISTRICT COURT OF APPEAL

OF FLORIDA, FOURTH DISTRICT,

Defendants.

/

ORDER DENYING MOTION TO VACATE

THIS CAUSE comes before the Court upon Plaintiff's

Motion to Vacate. DE #38. The Court has reviewed the motion

and is otherwise fully advised in the premises.

In this motion, Plaintiff moves the Court to vacate its

order dismissing this case for want of jurisdiction pursuant to

the Rooker-Feldman doctrine. In this motion, Plaintiff argues that

the order should be vacated because the Rooker-Feldman doc-

trine is inapplicable to the facts of this case. We do not agree

and therefore deny Plaintiff's motion.

Despite Plaintiff's attempts to shoehorn this case into

several of the exceptions to the doctrine, based upon our review

of the case law and the facts of this case we conclude that this

App. 6

Court is without jurisdiction to hear this case. Indeed, at the

heart of this case is Plaintiff's accusation that her constitutional

rights were violated by the acts of the Florida State Court

system in a 1977 divorce proceeding. She presented these

claims to the state court in 1997 and was denied the requested

relief. After this denial, Plaintiff appealed the denial to the Flor-

ida appellate courts and the United States Supreme Court and

was agains denied relief. Plaintiff then filed this case, claiming

that the 1977 acts violated her constitutional rights. Accord-

ingly, she is in effect appealing the 1997 state court decision

denying her relief on her claims concerning the 1977 decision

to the district court. Such an attempt is in direct violation of the

Rooker-Feldman doctrine. Accordingly, it is

ORDERED AND ADJUDGED that Plaintiff's motion to

vacate, DE # 38, is DENIED.

s/

DONALD M. MIDDLEBROOKS

UNITED STATES DISTRICT JUDGE

copies to counsel of record, Miriam Donner, pro se

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

No. 99-8593-CIV-MIDDLEBROOKS

a

_ MIRIAM DONNER,

Plaintiff,

VS.

EDWARD DONNER, MARK DONNER,

and WILLIAM DONNER, as personal

representatives of the Estate

of Charles Donner, deceased,

and DISTRICT COURT OF APPEAL

OF FLORIDA, FOURTH DISTRICT,

Defendants.

/

ORDER DISMISSING CASE FOR WANT OF

JURISDICTION

THIS CAUSE comes before the Court upon Defendant,

Fourth District Court of Appeal's, Motion to Dismiss, filed on

August 30, 1999. DE @21. Finding that this Court is without

jurisdiction, we dismiss this action.

I.

On August 2, 1999, Plaintiff filed a complaint with this

Court alleging violation of her civil rights pursuant to 42 U.S.C

§ 1983. The essence of Plaintiff's claim is that the Fourth District

Court of Appeal violated her constitutional rights by virtue of

App. 8

its December 23, 1997 decision denying her motion to recall a

1977 mandate. Plaintiff is seeking declaratory relief that the

merits of a 1976 appeal remain pending for resolution.

Although it is unclear as to whether Plaintiff is seeking

monetary damages, it appears the complaint is more accurately

described as a petition for mandamus.

II.

Although 28 U.S.C. §§ 1331 and 1343(3) appear to create

federal court subject matter jurisdiction in all § 1983 cases, there

are a few situations where jurisdiction does not exist. This case

presents such a situation. In Rooker v. Fidelity Trust Co., 263 U.S.

413 (1924), the plaintiffs attempted to have a state court

judgment declared null and void. The Supreme Court held that

the federal district courts have no jurisdiction to "entertain a

proceeding to reverse or modify" a state court judgment. Jd. In

defining the scope of this doctrine the Supreme Court

explained that a district court does not have "jurisdiction ...

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." District

of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 485 (1983).

Thus the Supreme Court has instructed that, "a party losing in

state court is barred from seeking what in substance would be

appellate review of the state judgment in a United States

District Court based on the losing party's claim that the state

judgment itself violated the loser's federal rights." Johnson v.

DeGrandy, 512 U.S. 997, 1005-6 (1994).

This is clearly the case here. The basis of Plaintiff's

Complaint is that the state appellate court deprived her of her

constitutional rights by refusing to recall its 1978 mandate.

Instead of availing herself to the rules of appellate procedure,

Plaintiff filed this action challenging the constitutionality of the

state court's judgment. As such, under the Rooker-Feldman

Doctrine, this Court is without jurisdiction over this matter.

_ App. 9

Il.

For the reasons stated above, it is

ORDERED AND ADJUDGED that this action is

DISMISSED for want of jurisdiction. The Clerk of the Court is

instructed to CLOSE this case and all pending motions.

DONE AND ORDERED in Chambers, at Miami,

Florida, this 23rd day of September 1999.

s/

DONALD M. MIDDLEBROOKS

UNITED STATES DISTRICT JUDGE

copies to counsel of record, Miriam Donner, pro se

App. 10

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA FOURTH DISTRICT,

JULY TERM 1977

MIRIAM DONNER, )

Appellant,

v. CASE NO. 76-1708

CHARLES DONNER,

Appellee. |

Decision filed August 9, 1977

Appeal from the Circuit Court

for Broward County;

Thomas J. Reddick, Jr., Judge

Miriam Donner, Hallandale,

pro se.

L. J. Cushman of Cushman & Cushman,

Miami, for appellee.

PER CURIAM.

AFFIRMED.

ALDERMAN, C.J., MAGER and DAUKSCH, JJ.,

concur.

CONCLUSION

Wherefore, the petition should be granted.

Respectfully submitted,

Miriam Donner, pro se

P.O. Box 1232

Hallandale, FL 33009°

°Prepared with assistance of counsel.

22