Opposition Brief — Mann v. Conlin

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(3 fhorenra Court, SUL

RIEEFED

1 1994

No. 94-101 AUG 5 ’ }

———

In The

Supreme Court of the United States

October Term, 1994

+

SHELLY L. MANN; ROBERT W. THORSON, individually

and as representatives of the class, and BEVERLY KISH,

Petitioners,

vs.

PATRICK J. CONLIN,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

¢

BRIEF IN RESPONSE TO

PETITION FOR WRIT OF CERTIORARI

+

Ear R. Jacoss-(P15395)

Barry H. Somiyo (P34646)

Attorneys for Respondent

21540 W. Eleven Mile Road

Suite 200

Southfield, MI 48076-3876

(810) 354-6644

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

A. WHETHER THE CORRECT STANDARD WAS USED

IN DISMISSING PETITIONERS’ DAMAGE CLAIMS

AND WHETHER THIS DECISION IS IN CONFLICT

WITH CONLEY v. GIBSON, 78 S. Ct. 99 (1957).

B. WHETHER THE DOCTRINE OF JUDICIAL IMMU-

NITY JUSTIFIED THE DISMISSAL OF PETI-

TIONERS’ COMPLAINT AND WHETHER THIS

DECISION IS IN CONFLICT WITH OTHER CIR-

CUITS.

C. WHETHER THE YOUNGER DOCTRINE REQUIRED

THE LOWER COURT TO ABSTAIN FROM GRANT-

ING PETITIONERS’ PROSPECTIVE INJUNCTIVE

RELIEF AND WHETHER THIS DECISION IS IN

CONFLICT WITH OTHER CIRCUITS.

> th Of aio aaa

il

TABLE OF CONTENTS

Page

Questions Peesentes .06665060t28ecb iets eee i

Table OF CantOh. oo ac cscnusivdsapseee ee ii

index of Actos ... «00s scccsnteceensasaeeee iii

Opinions Below .....2.csesereusssentersaetewaetees 1

Pear laGhctbae.. oo oncccccecanskstsiseniet nee 1

Statement of et COGS 6 oicckcacckcsasgeeseiyeren 1

Summary of Argument ....2200c0sscctcsesestsdives 7

Argument:

A. THE CORRECT STANDARD WAS USED TO

PROPERLY DISMISS PETITIONERS’ DAMAGE

CLAIMS FOR FAILURE TO STATE A CLAIM

AND IS NOT IN CONFLICT WITH DECISIONS

OF THIS COURT OR ANY CIRCUIT .......... 8

B. PETITIONERS’ CLAIMS FOR DAMAGES WERE

PROPERLY DISMISSED AS THERE WERE NO

FACTUAL ALLEGATIONS WHICH WOULD

DEFEAT JUDICIAL IMMUNITY. THIS DECI-

SION DOES NOT CONFLICT WITH ANY

OTFEER COUUEE oc ckcnksctouswacsansaacicanens 10

C. THE COURT OF APPEALS PROPERLY ABS-

TAINED FROM CONSIDERING PETITIONERS’

REQUEST FOR PROSPECTIVE INJUNCTIVE

RELIEF. THIS DECISION DOES NOT CONFLICT

OVITHT ANY GOTEEIEe GOS 66 ss cecevssegess 19

Comment . «cic ig cv cad teendeengs eee 27

Appendis © oie ciccescescantsssseswpasseaneeaas App. 1

iii

INDEX OF AUTHORITIES

Pages

CASES

Aristocrat Health Club of Hartford, Inc. v.

Chaucer, 451 F. Supp. 210, 214 (D. Conn. 1978) .... 20

Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986)

Sl OE Re Rear ore ey ae eee ee 10, 13, 19

Bradley v. Fisher, 13 Wall. 335 (1871) ....10, 11, 15, 17, 19

Carras v. Williams, 807 F.2d 1286 (6th Cir. 1986)....20, 23

Cobb v. Green, 611 F. Supp. 873 (W.D. Mich. 1985)

CEE yikes: fg 89 byw in x + 4g WS Wwe Wins 20, 22, 24, 25, 26

Conley v. Gibson, 355 U.S. 41 (1957)............ (fe

Decker v. Hillsborough County Attorney’s Office,

Ger wee 27 (eet Coe, 1908)... 2. 1c cweees 14, 16, 17, 18

Dellenbach v. Letsinger, 889 F.2d 755 (7th Cir.

Se ea aed y check eho iss sane wien’ 13, 14, 16, 17

Dykes v. Hosemann, 776 F.2d 942 (11th Cir. 1985) ..13, 15

Forrester v. White, 484 U.S. 219 (1988) .............. 12

Fowler v. Alexander, 478 F.2d 694 (4th Cir. 1973) .... 19

Hansen v. Ahlgrimm, 520 F.2d 768 (7th Cir. 1975) .... 19

Holeman v. Elliott, 732 F. Supp. 726 (S.D. Tex.

Sa eS ee eer eer te a eee ee ere Te 21

Holloway v. Walker, 765 F.2d 517 (5th Cir. 1985)... .passim

Huynh Thi Ahn v. Levi, 586 F.2d 625 (6th Cir.

ee ae, 22

Lassiter v. Department of Social Services, 452 U.S.

. SRS ee re re ere 24, 25

Lowe v. Letsinger, 772 F.2d 308 (7th Cir. 1985)... 9, 13, 17

iv

TABLE OF AUTHORITIES - Continued

Maestri v. Jutkofsky, 860 F.2d 50 (2nd Cir. 1988)..... 15

McKinstry v. Genesee County Circuit Judges, 669

P. Sapp. GOT GL.. BCR. FORT F ea cc. cs vaieewes 24, 25

Middlesex County Ethics Committee v. Garden

State Bar Ass’n, 457 U.S. 423 (1982)............ 20, 23

Mireles v. Waco, 112 S. Ct. 286 (1991)........ 20. if.

Moose v. Sims, 462 US. 405 CGO i ss i vccen wets cons 22

Morrison v. Lipscomb, 877 F.2d 463 (6th Cir. 1989) .... 13

Patten v. Glaser, 771 F.2d 1178 (8th Cir. 1985) .. 14, 16, 21

Rolleston v. Eldridge, 848 F.2d 163 (11th Cir. 1988)

Ldtagea ec eess (Mande RASTA ee be eee ans 14, 16, 17, 18

Sevier v. Turner, 742 F.2d 262 (6th Cir. 1984)..... 24, 25

Stern v. United States Gypsum, Inc., 547 F.2d 1329

eo Se. vy Re ee eer ree mee ere ie 10

Stump v. Sparkman, 435 U.S. 349 (1977).. 12, 15, 16, 17

Sun v. Forrester, 939 F.2d 924 (11th Cir. 1991)....... 13

Supreme Court of Virginia v. Consumers Union,

gS ee BD. | ee agra ere eee 12

Sword v. Sword, 249 N.W.2d 88 (1976).............. 24

United States Medical Corp. v. M.D. Buyline, Inc.,

753 F. Supp. G6 (.D. Ohio 1900)... 000. ices. y

Ward v. Hekman, 497 F. Supp. 454 (1980)........... 22

TABLE OF AUTHORITIES —- Continued

Page

Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976).... 8, 9, 17

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

STATUTES

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Re NS is vce cePedwdndenuens eee dae eee 16

Ds NE Fie d's neo ev edu eee caw encase ee 16

es SED 4a o's s 2 accede vee eee ee eee eee 16

S&S errs Tr rrr Pr Te rr 17

OTHER AUTHORITIES

27 Fed. Proc., L.Ed., § 62:468 ........0...cceeeeeeeeee 9

bed. Rh the 0 OS eee 6, 7, 8,9

Waid. eR ok cad cc ecto eee 1

SIT FN ois sidan 18

MCU BAOA cs sick eee 18

WEEE ieee eee 19

oe ek rere mr rrrrs Pre ie 19

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITIONERS’ REQUEST

FOR WRIT OF CERTIORARI

OPINIONS BELOW

Respondent-Appellee relies upon Petitioner-Appellant’s

statement.

JURISDICTION

Respondent-Appellee relies upon Petitioner-Appel-

lant’s statement.

STATEMENT OF THE CASE

Petitioner-Appellants, Robert W. Thorson (“Thor-

son”), Shelly L. Mann (“Mann”), and Beverly Kish

(“Kish”), (collectively referred to as Petitioners), are indi-

vidual litigants in domestic relations actions which had

been pending before Respondent, Judge Patrick J. Conlin,

in Washtenaw County Circuit Court. After the

commencement of this action, each of their cases was

transferred to another trial judge. Petitioners are not rep-

resentatives of a class. Certification as a class under Fed.

R. Civ. P. 23 has never been granted. Thorson’s and

Mann’s complaint alleges a variety of violations and

improprieties by Judge Conlin (Appendix B). Proposed

intervening Petitioner, Kish, cites additional wrongdoing

by the Judge (Appendix C). All three believe that Judge

Conlin violated their constitutional rights and are suing

for money damages as well as prospective injunctive

relief and attorneys fees.

The facts in the three underlying cases, as alleged in

the complaint and proposed intervenor’s complaint, have

been well documented and are set forth in Appendix B

and C and in the briefs filed below. In the case of Mary Jo

Thorson v. Robert W. Thorson, Case No. 87-38000-DM (MI.

Cir. Ct. filed Nov. 24, 1987), Thorson essentially claims

that the judge placed conditions (payment of the wife’s

attorney fees) on his right to participate in or obtain

adjournments of various domestic relations hearings.

(Appendix B: pp. 27a-3la, {19-22.)!

1 On September 7, 1988, the issue of whether the wording of

the proposed judgment conformed to the record made on May

27, 1988 was before Judge Conlin. Thorson alleges that the judge

ordered him to pay Five Hundred ($500.00) Dollars to his wife’s

attorney by noon that day if he wanted to proceed with the

hearing. Since Thorson could not obtain the money, according to

Thorson, the order which was entered did not conform to the

record made on May 27, 1988. (Appendix B: pp. 27a-28a, 419.)

(Thorson does not allege that he appealed the judgment and, in

fact, no appeal was filed.) On December 14, 1988, a dispute

arose regarding visitation. Thorson alleges that Judge Conlin

ordered that a Friend of the Court referee hearing would be held

only if Thorson paid a retainer of Five Hundred ($500.00) Dol-

lars to his ex-wife's attorney, paid all of her attorney fees at One

Hundred Twenty Five ($125.00) Dollars per hour, and agreed to

be bound by the Friend of the Court recommendation. (Appen-

dix B: p. 29a, 420.) (There are no allegations that the order,

entered May 17, 1989, was appealed and, in fact, no appeal was

filed.) Thorson requested an adjournment of the hearing held on

May 18, 1990 because he was ill. According to Thorson, Judge

Conlin stated that he would adjourn the hearing only if Thorson

paid One Hundred Thirty Five ($135.00) Dollars to his ex-wife

for the amount she claimed to be losing in wages for the day.

Appellant Mann makes allegations against Judge

Conlin which relate to the case of Randall L. Mann v.

| Shelly L. Mann, Case No. 86-36538-DM (MI. Cir. Ct. filed

Dec. 12, 1986). Mann alleged that the judge made erro-

neous rulings of law and procedure regarding child cus-

tody issues and that hearings were scheduled in violation

of the court rules and/or while the issues were being

considered by the Michigan Court of Appeals. She also

claimed that Conlin failed to follow the directives of the

Michigan Court of Appeals regarding visitation issues.

(Appendix B: pp. 37a-43a, {29-35.)?

Since he could not pay the money, he proceeded with the hear-

ing while ill. (Appendix B: pp. 29a-30a, 421.) However, Judge

Conlin’s denial of Thorson’s motion to adjourn was affirmed by

the Michigan Court of Appeals in Thorson v. Thorson,

unpublished opinion per curiam of the Court of Appea!s,

(Docket No. 133933), stating “[a]fter the motion was denied,

Defendant [Thorson] proceeded to testify at length, and our

review of his testimony reveals no impairment that may have

prejudiced his case.” Thorson’s remaining allegations concern

an order dated July 13, 1992 involving a custody motion.

According to Thorson, Judge Conlin refused to set a date for an

evidentiary hearing on the custody motion until Thorson paid

his ex-wife’s attorney fees in the amount of One Thousand Five

Hundred Thirty Five ($1,535.00) Dollars, as previously ordered

and until the appeal of an order dated June 20, 1990 was

resolved. (Appendix B: pp. 30a-3la, {22.) Note that on August

| 31, 1992, Judge Kurtis T. Wilder of Washtenaw County Circuit

Couct also denied Thorson’s request to have the custody issue

referred to the Friend of the Court because it is inextricably

woven with the appeal of the June 20, 1990 order.

2 Mann first alleges that the judge changed custody of the

children to her ex-husband based on a Friend of the Court

recommendation, over her objections and without holding a de

novo hearing as required by law. (Appendix B: pp. 37a-38a,

129.) According to Mann, Judge Conlin ordered that the

in’, hn

The third appellant is the proposed intervenor, Kish.

Her proposed complaint refers to various actions

children be turned over by noon that day, November 29, 1989.

Mann did not turn over the children and filed a claim of appeal

the next day. (Appendix B: p. 38a-39a, 430.) However, the

Michigan Court of Appeals, in Docket No. 123650, determined

that Mann had no right of appeal because the order changing

custody was an interim or temporary order, not a final order.

Accordingly, the court dismissed the appeal for lack of

jurisdiction. Mann then filed an application for leave to appeal

which was denied by the Michigan Court of Appeals in Docket

No. 124402. See Mann v. Mann, 473 N.W.2d 702 (1991).

(Appendix D.) On December 1, 1989, Judge Conlin ordered that

Mann be remanded to jail until the children were turned over to

her ex-husband as previously ordered. Mann was jailed for ten

days until she capitulated, turned over the children, and was

released. Mann alleges that the Court of Appeals ruled that the

judge’s actions were clear legal error. (Appendix B: pp. 38a-39a,

730.) But see Mann v. Mann, 476 N.W.2d 439 (1991), (the Court of

Appeals held that Mann was properly held in contempt for

violating the interim custody order). (Appendix D.) When an

evidentiary hearing was finally held in the Mann case, six

months had passed since the hearing was requested by Mann, in

violation of a court rule requiring hearings within fifty six days.

(Appendix B: pp. 39a-40a, 431.) At the conclusion of the

hearing, according to Mann, Judge Conlin “took joint custody

away from Plaintiff Mann when Randall Mann had not even

requested it, ordered supervised visitation (with no evidence to

support), and ordered child support to be recommended by the

friend of the court. On all three points he was reversed and

remanded.” (Appendix B: p. 40a, {32.) In the hearing on remand

from the Court of Appeals, Mann alleges that Judge Conlin did

not follow the directives of the Court of Appeals. According to

Mann, the judge ordered that the father of Mann’s two younger

children not be present during visitation for five years and that

there be no smoking in the home while the two older children

are visiting. (Appendix B: pp. 40a-41a, 433.) At a hearing

regarding entry of the order, Mann claims that the judge entered

allegedly taken by Judge Conlin in the case of Theodore G.

Apostoleris v. Beverly A. Apostoleris, Case No. 85-34532-DM

(MI. Cir. Ct. filed Aug. 28, 1985). Kish asserts that the

judge made domestic relations rulings while the judg-

ment of divorce remained on appeal. According to Kish,

Judge Conlin allegedly entered erroneous orders regard-

ing costs in violation of his own previous orders. He

allegedly made errors of law regarding child support

issues and the payment of attorney fees. Kish claims that

Judge Conlin improperly denied her an evidentiary hear-

ing and otherwise showed favoritism towards her ex-

husband.

an order which did not conform to the earlier record, over

Mann’s objections and without hearing some of her objections

to the proposed order. (Appendix B: pp. 41a-42a, 734.) On

| January 8, 1992, Mann’s ex-husband filed a motion requesting to

move to Arkansas with the minor children. It was scheduled for

a hearing even though Mann pointed out to the judge that

jurisdiction of the visitation provisions of the court’s order was

in the Court of Appeals. An evidentiary hearing was convened

in which, Mann alleges, she repeatedly objected on the ground

of jurisdiction. Judge Conlin finally “stopped the hearing,

phoned the Court of Appeals, and advised Randall Mann and

his attorney to move for a remand. Subsequently, after remand

from the Court of Appeals, he granted the permission to move.”

(Appendix B: pp. 42a-43a, 435.)

3 Kish alleges that she filed a claim of appeal from the

judgment of divorce entered on February 11, 1988. (Appendix C:

Proposed complaint of Intervening Plaintiff, Beverly Kish, pp.

53a-54a, 93.) (The Court of Appeals affirmed the judgment of

divorce in Apostoleris v. Apostoleris, unpublished opinion per

curiam of the Court of Appeals, decided August 8, 1990 (Docket

No. 106565).) Due to the appeal, according to Kish, Judge Conlin

had no jurisdiction to act, yet he “proceeded as if there was no

appeal” between February 11, 1988 and May 9, 1990. (Appendix

Respondent, Judge Conlin, filed a Motion to Dismiss

pursuant to Fed. R. Civ. P. 12(b)(6). Honorable Barbara K.

Hackett of the U.S. District Court for the Eastern District,

Southern Division, granted Respondent’s Motion. The

court found that Judge Conlin was protected by judicial

immunity as the actions alleged were performed in his

judicial capacity. Additionally, the court determined that

C: p. 54a, 74.) Kish alleges that Judge Conlin entered an order

dated May 5, 1989 suspending her visitation with the minor

children until a psychological evaluation is made. The evalua-

tion was never done and Kish is not allowed to visit her chil-

dren. (Appendix C: pp. 54a-55a, 45.) (Kish does not allege that

this order was appealed and, in fact, none was taken.) On Octo-

ber 24, 1990, Judge Conlin entered an order requiring Kish to

pay Four Hundred Nine ($409.00) Dollars to Quality Care (the

agency providing adult third-party supervision to the parties)

for time spent in preparation of, and giving, testimony in court.

Kish alleges this order was in violation of his earlier order,

dated March 18, 1988, that the parties share the expense of

Quality Care equally, and in violation of the law. (Appendix C:

p- 55a, 6.) (There are no allegations that an appeal was taken

from this order and, in fact, it was not appealed.) Kish alleges

she was denied a de novo evidentiary hearing because the judge

stated that he would grant the hearing but that it would not

matter because he “always accepts the recommendation of the

Friend of the Court.” (Appendix C: p. 56a, 47.) Kish further

alleges that Judge Conlin ignored the law with regard to impu-

tation of income and ordered Kish to pay child support to her

ex-husband, while the case was on appeal. (Appendix C: p. 56a,

18.) Finally, Kish alleges that Judge Conlin has violated the law

and court rules regarding payment of her ex-husband's attorney

fees and by showing favoritism toward her ex-husband.

(Appendix C: pp. 56a-57a, 49.) (An appeal from an order regard-

ing payment of attorney fees is currently pending in the Michi-

gan Court of Appeals, Docket No. 147722.)

the Younger doctrine prevented the consideration of Peti-

tioners’ claims for prospective injunctive relief.

The United States Court of Appeals for the Sixth

Circuit affirmed the district court’s decision. Mann v Con-

lin, 22 F.3d 100 (6th Cir. 1994). The court affirmed that

although the district court did not cite the test enunciated

in Conley v. Gibson, 355 U.S. 41 (1957), it is clear that the

district court found that there was no set of facts that

would allow these Plaintiffs to recover against Judge

Conlin. The court also affirmed that Judge Conlin was

acting in his judicial capacity and was therefore entitled

to immunity for each of the allegedly “administrative”

acts. Additionally, the court confirmed that Younger v.

Harris, 401 U.S. 37 (1971), mandated abstention from

hearing Petitioners’ claims for injunctive and declaratory

relief.

SUMMARY OF ARGUMENT

The court of appeals used the proper standard in

affirming the granting of Respondent’s Fed. R. Civ. P.

i2(b)(6) motion. Citing Conley, 355 U.S. 41, the court of

appeals found that it was clear that there are no set of

facts which would permit these plaintiffs’ to recover

against Judge Conlin.

The court of appeals properly determined that judi-

cial immunity barred Petitioners’ claims for damages.

First, each action alleged to be improper was judicial in

nature. Second, none of Judge Conlin’s actions was taken

in the clear absence of all jurisdiction.

The court of appeals properly abstained from consid-

ering Petitioners’ claims for prospective injunctive relief.

Petitioners’ request for prospective injunctive relief

would require the federal judiciary to enjoin a state judi-

cial proceeding implicating vital state interests. The state

courts provided Petitioners with an adequate opportunity

to challenge Judge Conlin’s decisions by appealing his

rulings to the state court of appeals. However, Petitioners

repeatedly failed to avail themselves of this remedy and

instead are attempting to convince the federal judiciary to

reverse Judge Conlin’s domestic relations decisions.

Additionally, Petitioners’ allegation that the court of

appeals decision conflicts with decisions from other cir-

cuits is unsupported and meritless.

¢

ARGUMENT

A. THE CORRECT STANDARD WAS USED TO

PROPERLY DISMISS PETITIONERS’ DAMAGE

CLAIMS FOR FAILURE TO STATE A CLAIM AND

IS NOT IN CONFLICT WITH DECISIONS OF

THIS COURT OR ANY CIRCUIT.

Petitioners argue that the district court must have

used the wrong standard in dismissing their claims pur-

suant to Fed. R. Civ. P. 12(b)(6) because the standard as

enunciated by this Court was not quoted or cited in the

district court’s order of dismissal. What Petitioners fail to

realize is that the district court relied on a Sixth Circuit

Court of Appeals decision which cites the Conley stan-

dard, Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976). The

court of appeals ruled that the district court used and

applied the proper standard even though it was not spec-

ifically quoted in the order of dismissal.

In reviewing the dismissal for failure to state a claim,

the court must accept all well pleaded facts as true and

view them in the light most favorable to the Plaintiffs.

Holloway v. Walker, 765 F.2d 517, 519 (5th Cir. 1985) and

Lowe v. Letsinger, 772 F.2d 308, 311 (7th Cir. 1985). In

appraising the sufficiency of a complaint, it should not be

dismissed pursuant to Fed. R. Civ. P. 12(b)(6) “unless it

appears beyond doubt that the Plaintiff can prove no set

of facts in support of his claim which would entitle him

to relief.” Conley, 355 U.S. at 45-46. The court must focus

on the facts pled, not Petitioners’ conclusions regarding

what the facts mean, in determining whether Petitioners

have shown they are entitled to relief. Westlake, 537 F.2d

at 858, United States Medical Corp. v. M.D. Buyline, Inc., 753

F. Supp. 676, 678 (S.D. Ohio 1990) and 27 Fed. Proc.,

L.Ed., § 62:468.

The court of appeals found that “although the district

court did not cite the Conley test, it is clear . . . that the

court found there was no set of facts that would allow

these Plaintiffs to recover against Judge Conlin.” (Appen-

dix A: p. 5). Even if the court failed to use the appropriate

standard, the error was harmless because, as demon-

strated below, the court did not err in dismissing Peti-

tioner’s claims under Conley, 355 U.S. 41.

Petitioners next argue that they should have been

given an opportunity to amend their complaint. It is

important to note that Petitioners never requested leave

to amend after dismissal of their claims. Accordingly, the

issue was not decided by the court of appeals and cannot

10

be considered by this Court as grounds for reversal.

Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) and Stern v.

United States Gypsum, Inc., 547 F.2d 1329 (7th Cir. 1977).

B. PETITIONERS’ CLAIMS FOR DAMAGES WERE

PROPERLY DISMISSED AS THERE WERE NO

FACTUAL ALLEGATIONS WHICH WOULD

DEFEAT JUDICIAL IMMUNITY. THIS DECISION

DOES NOT CONFLICT WITH ANY OTHER CIR-

CUIT.

Judicial immunity has been the settled doctrine of the

common law for many centuries. Bradley v. Fisher, 13

Wall. 335, 347 (1871). In Bradley, the United States

Supreme Court reaffirmed the fact that a judge is immune

from civil liability for judicial acts within the jurisdiction

of the court. Bradley, 13 Wall. at 347. Like other forms of

immunity, judicial immunity is immunity from suit, not

just from assessment of damages. Mireles v. Waco, 112 S.

Ct. 286 (1991).

“[JJudges of courts of superior or general juris-

diction are not liable to civil actions for their

judicial acts, even when such acts are in excess

of their jurisdiction, and are alleged to have

been done maliciously or corruptly. A distinc-

tion must be here observed between excess of

jurisdiction and the clear absence of all jurisdic-

tion over the subject-matter. Where there is

clearly no jurisdiction over the subject-matter

any authority exercised is a usurped authority,

and for the exercise of such authority, when the

want of jurisdiction is known to the judge, no

excuse is permissible. But where jurisdiction

over the subject-matter is invested by law in the

11

judge, or in the court which he holds, the man-

ner and extent in which the jurisdiction shall be

exercised are generally as much questions for

his determination as any other questions

involved in the case, although upon the correct-

ness of his determination in these particulars the

validity of his judgments may depend.” Bradley,

13 Wall. at 351-52.

The policy rationale behind the doctrine was summarized

by the court in Holloway, 765 F.2d at 522:

“[Flirst, and most important, a judge must be

free to act upon his own convictions, without

apprehension of personal consequences to him-

self; second, the controversiality and importance

of the competing interests in contest before a

court make it likely that the inevitable losing

party may be overly willing to ascribe malevo-

lent motives to the judge; third, judges faced

with the prospect of damages actions would be

driven to wasteful and distractive self-protec-

tion devices, such as excessive record-keeping;

fourth, alternative remedies such as appeal and

impeachment reduce the need for private rights

of action against judges; and, fifth, the ease of

alleging bad faith would make a qualified “good

faith” immunity virtually worthless. Bradley, 13

Wall. at 347-54. These factors retain their vitality

today. Butz v. Economou, 348 U.S. 478, 98 S.Ct.

2894, 2912, 57 L.Ed.2d 895 (1978). To them, one

may add the need for finality of judgment.”

Immunity can only be overcome in two sets of circum-

stances.

“First, a judge is not immune from liability for

nonjudicial actions, i.e., actions not taken in the

judge’s judicial capacity. Forrester v White, 484

12

US, at 227-229, 98 L Ed 2d 555, 108 S Ct 538;

Stump v Sparkman, 435 US, at 360, 55 L Ed 2d

331, 98 S Ct 1099. Second, a judge is not immune

for actions, although judicial in nature, taken in

the complete absence of all jurisdiction. Id., at

356-357, 55 L Ed 2d 331, 98 S Ct 1099; Bradley v

Fisher, 13 Wall, at 351, 20 L Ed 646.” Mireles, 112

S. Ct. at 287.

The courts have struggled with developing a defini-

tion of “judicial act.” See Stump v. Sparkman, 435 U.S. 349

| (1977) and Mireles, 112 S. Ct. 286.

“(T]he factors determining whether an act by a

judge is a ‘judicial’ one relate to the nature of

the act itself, 7. e., whether it is a function nor-

mally performed by a judge, and to the expecta-

tions of the parties, i. e., whether they deal with

the judge in his judicial capacity.” Stump, 435

U.S. at 362 and Mireles, 112 S. Ct. at 286.

Compare Supreme Court of Virginia v. Consumers Union, 446

U.S. 719 (1967) (promulgation of rules regarding attorney

advertising was not a judicial act therefore judicial immu-

nity did not apply, however, the court was immune from

suit in its legislative capacity) and Forrester v. White, 484

U.S. 219 (1988) (judge was not immune for the adminis-

trative task of firing an employee).

The focus is on the “nature” and “function” of the act

generally, not the specifics of the “act itself.” “In other

words, we look to the particular act’s relation to a general

function normally performed by a judge.” Mireles, 112 S.

Ct. at 288-289.

“{I]f only the particular act in question were to

be scrutinized, then any mistake of a judge in

13

excess of his authority would become a ‘non-

judicial’ act, because an improper or erroneous

act cannot be said to be normally performed by

a judge. If judicial immunity means anything it

means a judge ‘will not be deprived of immu-

nity because the action he took was in

error . . . or was in excess of his authority.’” Id.

at 288, citing Stump, 435 U.S. at 356.

The entry of an order, even if it is erroneous or in

violation of law or procedure, is a judicial act if the

order is entered in the context of a suit pending before

the judge. See Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.

1989). An incorrect determination does not make the act

any less judicial. Dykes v. Hosemann, 776 F.2d 942 (11th

Cir. 1985). The manner in which the order is entered

does not change the nature of the act for purposes of

immunity analysis. See Sun v. Forrester, 939 F.2d 924 (11th

Cir. 1991), Ashelman, 793 F.2d 1072, and Holloway, 765 F.2d

517. Even the misuse of the court’s power is subject to

immunity if the ultimate act performed is a judicial func-

tion. Id. at 524. See Ashelman, 793 F.2d 1072 (fact that

judge allegedly conspired with prosecutor was of no con-

sequence when ultimate act was judicial in nature.) See

Sun, 939 F.2d 924, (judge making derogatory comments

toward Defendant during sentencing on a criminal mat-

ter constitutes a judicial act which is protected by judicial

immunity.)

Many actions by judges have been determined to be

judicial in nature. Determination of when to decide a case

and notify the parties of the outcome is a judicial func-

tion, even if it takes four years. Lowe, 772 F.2d 308. Docket

control is key to the proper workings of a court and is

classified as a judicial function. Dellenbach v. Letsinger, 889

14

F.2d 755 (7th Cir. 1989). Requiring payment of One

Thousand Two Hundred ($1,200.00) Dollars prior to con-

sideration of an appeal was found to be a judicial act of

the trial judge, which was not taken in the clear absence

of jurisdiction. Dellenbach, 889 F.2d 755. Enforcement of

the court’s own orders, by contempt or otherwise, is a

judicial function. Patten v. Glaser, 771 F.2d 1178 (8th Cir.

1985).

Failing to follow proper procedure, substantive law

or directives of the higher courts do not make an act any

less judicial in nature. Rolleston v. Eldridge, 848 F.2d 163

(11th Cir. 1988), Decker v. Hillsborough County Attorney's

Office, 845 F.2d 17 (1st Cir. 1988), and Holloway, 765 F.2d

517. Even improperly refusing to accord a litigant a

hearing is an act to which immunity applies. Rolleston,

848 F.2d 755 and Decker, 845 F.2d 17.

Entry of orders regarding custody, visitation, and

support, as well as contempt proceedings for violation of

those orders, including jail sentences, are judicial acts

to which immunity attaches. Patten, 771 F.2d 1178. Pre-

siding over ex parte hearings which result in restriction

of a family law litigant’s visitation rights is a judicial act

taken within the subject matter jurisdiction of the court.

There can be no question that the court of appeals

correctly determined that immunity applies. Petitioners’

bold assertion that the “Sixth Circuit’s views on judicial

immunity are far more limiting” than this Court

intended, has no merit. Petitioners offer no support for

their conclusions. Rather than attempt to prove the nega-

tive, Respondent relies on the cases cited above. If the

Sixth Circuit’s view on judicial immunity were improper,

15

Petitioners hze failed to specifically identify cases which

support their position.

The second aspect of judicial immunity involves the

judge’s jurisdiction. It has long been held that a judge is

immune unless he acted in the “clear absence of all

jurisdiction.” Bradley, 13 Wall. at 351, Stump, 435 U.S. at

357, and Mireles, 112 S. Ct. at 287. The inquiry looks at

subject matter jurisdiction of the court. Stump, 435 U.S.

at 356. Compare Maestri v. Jutkofsky, 860 F.2d 50 (2nd Cir.

1988) (town justice acted in the clear absence of jurisdic-

tion where he acted beyond his territorial limits) and

Dykes, 776 F.2d 942 (judge was immune where he lacked

personal jurisdiction over the Defendant because he had

subject matter jurisdiction over the action). The scope of

the judge’s jurisdiction must be construed broadly where

the issue is the immunity of the judge. Stump, 435 U.S. at

356. The question is whether the court has the power to

consider the question before it, rather than dismissing the

litigant’s claims for lack of jurisdiction. Stump, 435 U.S.

349. That a decision was made incorrectly does not

affect the fact that it was within the judge’s power to

make it. Dykes, 776 F.2d at 947.

A distinction must be drawn between an act in the

complete absence of jurisdiction, for which there is no

immunity, and an act which is merely in excess of juris-

diction for which a judge is immune.

“In Bradley, the Court illustrated the distinction

between lack of jurisdiction and excess of juris-

diction with the following examples: if a probate

judge, with jurisdiction over only wills and

estates, should try a criminal case, he would be

acting in the clear absence of jurisdiction and

16

would not be immune from liability for his

actions; on the other hand, if a judge of a crimi-

nal court should convict a Defendant of a non-

existent crime, he would merely be acting in

excess of his jurisdiction and would be immune.

Id., at 352.” Stump, 435 U.S. at 357 n. 7.

A judge is immune even if he commits grave pro-

cedural errors, makes an erroneous decision, enters an

order in violation of statute or law, erroneously acts when

exclusive jurisdiction is in the court of appeals, or fails

and refuses to follow orders of a higher court. Stump, 435

U.S. 349, Dellenbach, 889 F.2d 755, Rolleston, 848 F.2d 163,

Decker, 845 F.2d 17, Patten, and Holloway, 771 F.2d 1178.

Such acts are merely in excess of the judge’s jurisdiction

and are within the realm of judicial immunity.

A review of the well pleaded facts from Petitioners’

complaint reveals that all acts complained of were judi-

cial acts which were not taken in the clear absence of all

jurisdiction. Judge Conlin is a judge of Michigan’s Circuit

Court, sitting in Washtenaw County. Circuit courts are

courts of general jurisdiction with original jurisdiction to

hear domestic relations actions. (Appendix E: Mich.

Comp. Laws § 600.601 and 600.605 1968.) Circuit courts

also have the jurisdiction and power to fully effectuate

and enforce their judgments and orders. (Appendix E:

Mich. Comp. Laws § 600.611 1968.)

Mann and Kish both make several allegations that

Judge Conlin acted without jurisdiction because he took

certain actions while issues were pending on appeal.

(Appendix B: pp. 38a-39a, 430 and pp. 42a-43a, 435.

Appendix C: pp. 53a-54a, {3-4 and p. 56a, 48.) At the

outset, it should be noted that it is not always easy, in

17

domestic relations actions, to determine whether a court

has jurisdiction to consider particular issues where other

issues have been appealed.* Bradley, 13 Wall. at 352 and

Stump, 435 U.S. at 356. In fact, Thorson complains of the

exact opposite conduct, i.e., that Judge Conlin refused to

hear a motion while another issue was on appeal.

(Appendix B: pp. 30a-3la, 422.) The law regarding cus-

tody, visitation, and support is interwoven. A decision in

one area will impact on the others. However, this Court

need not consider the propriety of Judge Conlin’s actions.

Federal courts have clearly ruled time and time again that

an action taken by a judge while jurisdiction is in the

court of appeals is merely in excess of his authority and

does not defeat immunity. Dellenbach, 889 F.2d 755 and

Rolleston, 848 F.2d 163. See also Decker, 845 F.2d 17 (judge

immune for failing to grant a hearing on matters within

jurisdiction of the court).

There are no other factual allegations in either the

amended complaint or the proposed intervenor’s com-

plaint which attack the judge’s jurisdiction. All that

remains regarding this aspect of immunity are Peti-

tioners’ conclusions that Judge Conlin acted without

jurisdiction. There are no facts which support such con-

clusions. The court must consider only the facts and draw

its own conclusions. Holloway, 765 F.2d at 519, Lowe, 772

F.2d at 311, and Westlake, 537 F.2d at 858.

4 In such cases, the court has the continuing power to

amend its previous judgments or orders regarding child cus-

tody, visitation or support for proper cause shown or because of

a change of circumstances. (Appendix E: Mich. Comp. Laws

§ 722.27 1970.)

18

There are several allegations by each Petitioner that

Judge Conlin acted outside his judicial function. In each

case, the ultimate conduct complained of was a judicial

act. Thorson alleges that Judge Conlin acted outside his

judicial capacity by requiring him to pay his wife’s attor-

ney fees on three separate occasions prior to obtaining a

hearing and by requiring him to pay his wife’s lost wages

as a condition of granting his motion to adjourn. (Appen-

dix B: pp. 27a-35a, 419-23.) The Michigan Court Rules

grant Judge Conlin the power to enter orders that one

party’s attorney fees be paid by the other side. The court

rules also allow a judge the discretion to impose costs

and conditions in granting an adjournment. (Appendix E:

Mich. Ct. R. 3.206(A), 2.503(D).) Entry of the orders com-

plained of by Thorson were judicial acts authorized by

the court rules.

The remaining allegations of Thorson are aimed at

the claim that various orders were entered in violation of

law or procedure. That does not make them any less

judicial in nature. Rolleston, 848 F.2d 163, Decker, 845 F.2d

17, and Holloway, 765 F.2d 577. Based on the facts pled by

Thorson, all of his claims for damages are barred by

judicial immunity.

Mann and Kish allege that Judge Conlin entered a

number of erroneous orders. (Appendix B: pp. 37a-43a,

129-35, and Appendix C: pp. 53a-57a, 3-9.) Violations of

procedural rules and entry of erroneous decisions are

judicial acts which are accorded judicial immunity by the

courts. Rolleston, 848 F.2d 163, Decker, 845 F.2d 17, and

19

Holloway, 765 F.2d 577. Petitioners’ proper avenue is to

appeal, not to sue the judge.5

In summary, Petitioners have not alleged facts which

avoid the immunity bar. All acts complained of by Peti-

tioners were judicial in nature and within the subject

matter jurisdiction of the court. Their claims for damages®

were therefore properly dismissed.

C. THE COURT OF APPEALS PROPERLY ABSTAINED

FROM CONSIDERING PETITIONERS’ REQUEST

FOR PROSPECTIVE INJUNCTIVE RELIEF. THIS

DECISION DOES NOT CONFLICT WITH ANY

OTHER CIRCUIT.

The court of appeals properly affirmed the district

court’s dismissal of Petitioners’ claims for declaratory

and injunctive relief based on the abstention doctrine as

> There are other remedies available to Plaintiffs. A request

for rehearing or appeal are the most obvious ones. However, the

Court Rules provide a procedure whereby an individual can

request a writ of superintending control to compel a judge to

perform his duties. (Appendix E: Mich. Ct. R. 3.301, 3.302.) An

alternate remedy is available to Plaintiffs through the demo-

cratic process. They could simply campaign against the judge to

have him removed from office. See Bradley, 13 Wall. at 350.

© Respondent acknowledges that judicial immunity does

not bar Petitioners’ claims for prospective relief. However, these

claims are now moot because their cases have been transferred

to other trial judges. The federal courts have consistently held

that declaratory or injunctive relief should not be granted in the

absence of a live case or controversy. Once the claim is no longer

pending before the Respondent judge, prospective relief should

be denied. Ashelman, 793 F.2d 1072, Hansen v. Ahlgrimm, 520 F.2d

768 (7th Cir. 1975), and Fowler v. Alexander, 478 F.2d 694 (4th Cir.

1973).

20

set forth by Younger v. Harris, 401 U.S. 37 (1971) and its

progeny. On appeal, Petitioners argue that the doctrine

does not apply to cases arising out of 42 U.S.C. § 1983

because several courts addressing cases arising under

§ 1983 declined to abstain. This argument has no merit.

Ironically, the Younger doctrine was developed in the

context of § 1983. Aristocrat Health Club of Hartford, Inc. v.

Chaucer, 451 F. Supp. 210, 214 (D. Conn. 1978).

The fact that some courts declined to abstain in a

§ 1983 case simply indicates that the doctrine is not

applicable in all circumstances. However, the abstention

doctrine was developed for cases similar to the one at bar.

“In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971), the Supreme Court held that,

absent ‘extraordinary circumstances,’ consider-

ations of comity and federalism require the fed-

eral courts to abstain from enjoining pending

criminal proceedings in state court. In subse-

quent cases, the court extended the doctrine of

Younger to require abstention when the relief

sought in federal court would interfere with

ongoing state civil proceedings involving mat-

ters of special concern to the states.” (Citations

omitted. Emphasis in original.) Cobb v. Green,

611 F. Supp. 873, 873-874 (W.D. Mich. 1985).

Younger, 401 U.S. 37, and the subsequent cases espouse a

strong federal policy against federal court interference

with pending state judicial proceedings. Carras v. Wil-

liams, 807 F.2d 1286, 1290 (6th Cir. 1986). See also Middlesex

County Ethics Committee v. Garden State Bar Ass’n, 457

U.S. 423, 431 (1982). Abstention serves the policies of

comity and federalism by preventing the federal courts

from “unduly interfer[ing] with the legitimate activities

—— ee

21

of the States.” Carras, 807 F.2d at 1290, citing Younger, 401

U.S. at 44.

The abstention doctrine has been applied in cases

similar to this one. In Patten, 771 F.2d 1178, a domestic

relations litigant sued the judge presiding over his

divorce case. The judge had entered several orders

regarding custody, visitation, and support. Following

non-compliance with the orders, the judge held contempt

hearings and found both parties in contempt of court,

sentencing them to five day jail sentences. The husband

sued for injunctive relief and damages alleging that the

judge had held him in contempt and imprisoned him in

violation of his constitutional rights and without jurisdic-

tion. After finding that plaintiff's claims for damages

were barred by judicial immunity, the court abstained

from hearing the remaining claims for prospective relief.

In a similar case, Holeman, 732 F. Supp. 726 (S.D. Tex.

1990), a domestic relations litigant sued a judge for vio-

lating his due process rights by holding ex parte hearings

which resulted in a restriction of plaintiff’s child visita-

tion rights. The court initially determined that plaintiff’s

claims for damages were barred by judicial immunity and

then went on to consider plaintiff's request for injunctive

relief. The court determined that the claim for injunctive

relief must be dismissed for two reasons.

“First, ‘there is a well established policy that

federal courts should abstain from exercising

jurisdiction in domestic relations cases.’ Plain-

tiff argues a cause of action challenging the fam-

ily court rulings that allegedly restricted his

visitation rights. Plaintiff has not attacked the

22

constitutionality of the rules or statutes govern-

ing the family court’s procedures. Instead,

Plaintiff’s claims against Judge Elliott are

‘enmeshed’ in the underlying domestic relations

controversy, which is a state — not federal -

concern.

Second, Plaintiff's claims are merely collateral

attacks on the state court’s judgment in the

guise of a civil rights action. Plaintiff is, in

essence, seeking «© reversal in the federal court

of a state court judgment. This court does not

have jurisdiction to review the constitutionality

of a judgment rendered in a state court. Plain-

tiff’s proper course of action is to appeal the

family court’s ruling through the Texas state

appellate courts to the United States Supreme

Court.” (Citations are omitted.) Holeman, 732 F.

Supp. at 727.

See Moore v. Sims, 442 U.S. 415 (1979) (child custody

involving alleged child abuse), Huynh Thi Ahn v. Levi, 586

F.2d 625 (6th Cir. 1978) (procedures and remedies pro-

vided under the Michigan Adoption Code), Ward v. Hek-

man, 497 F. Supp. 454 (1980) (challenging the

constitutionality of an adoption decision), and Cobb, 611

F. Supp. 873 (1985) (civil contempt for non-payment of

child support). These cases suggest family law and child

custody are issues of paramount concern to the state.

Under the Younger doctrine as it has developed over

the years, a federal court should decline to hear a case in

which:

(1) a federal court is called upon to enjoin a

state judicial proceeding;

23

(2) the state proceeding implicates vital state

interests; and

(3) the state proceeding provides an adequate

opportunity to raise constitutional challenges.

Carras, 807 F.2d at 1290 citing Middlesex County,

457 U.S. at 432.

All three Petitioners in this action have domestic

relations cases pending in Washtenaw County Circuit

Court. As demonstrated by the cases cited above, child

custody, divorce, and other family law matters are vital

state interests. Each Petitioner was afforded an oppor-

tunity to raise constitutional challenges to Judge Conlin’s

actions by way of appeal to the Michigan Court of

Appeals, Michigan Supreme Court, and, ultimately, the

United States Supreme Court. Petitioners have not

attempted to avail themselves of this remedy with respect

to many of the claimed violations by Judge Conlin.”

Those that were appealed met with mixed reactions by

the court. In some instances, Judge Conlin’s actions were

upheld and sometimes he was reversed. The Michigan

Court of Appeals is not acting as a “rubber stamp” for the

Respondent.

To avoid application of the Younger doctrine, this

court must find that “extraordinary circumstances” exist.

Courts have found that extraordinary circumstances exist

7 On at least one occasion, Plaintiffs failed to argue the

claimed constitutional violations on appeal. In Thorson v. Thor-

son, unpublished opinion per curiam of MI. Court of Appeals,

(Docket No. 133933), the Court stated, “defendant’s equal pro-

tection argument has been abandoned on appeal because of

defendant's failure to identify any relevant supporting author-

ity. In re Toler, 193 Mich App 474, 477, 484 NW2d 672 (1992).”

24

where the state courts have indicated that they would not

redress plaintiff’s claimed constitutional violations. See

McKinstry v. Genesee County Circuit Judges, 669 F. Supp.

801 (E.D. Mich. 1987). However, courts have found that

extraordinary circumstances did not exist where the

plaintiffs had an opportunity to raise their constitutional

challenges in the state courts but did not avail themselves

of that opportunity. See Cobb, 611 F. Supp. 873, and Sevier

v. Turner, 742 F.2d 262 (6th Cir. 1984).

The existence of extraordinary circumstances is illus-

trated by a comparison of Cobb, 611 F. Supp. 873 and

McKinstry, 669 F. Supp. 801. In both cases, plaintiffs sued

trial judges challenging the courts’ practice of refusing to

appoint counsel to represent indigent defendants at hear-

ings on charges of contempt of court for failure to comply

with child support orders. The plaintiff in Cobb, 611 F.

Supp. 873, argued that “extraordinary circumstances”

were present because the Michigan Supreme Court had

ruled in Sword v. Sword, 249 N.W.2d 88 (1976) that no

general due process right to counsel exists in civil non-

support contempt proceedings. This ruling was in contra-

diction to a subsequent United States Supreme Court

decision, Lassiter v. Department of Social Services, 452 U.S.

18 (1981). The Cobb, 611 F. Supp. 873, court determined

that circumstances had changed since the Michigan

Supreme Court’s ruling in Sword, 249 N.W.2d 88, there-

fore it was possible that the Michigan Court of Appeals

would follow Lassiter, 452 U.S. 18, rather than Sword, 249

N.W.2d 88, in ruling on plaintiff’s case. Accordingly, the

Cobb court abstained finding that an appeal to the state

courts would not have been fruitless. Cobb, 611 F. Supp.

873.

25

The McKinstry, 669 F. Supp. 801, court was facing

vastly different circumstances. By this time, the Michigan

Court of Appeals had ignored Lassiter, 452 U.S. 18, and

denied an indigent father his right to appointed counsel

prior to being jailed fer contempt for non-payment of

child support. Further, the Genesee County Circuit

Judges indicated that they would not appoint counsel

unless directed to do so by the federal court. The McKins-

try, 669 F. Supp. 801, court determined that it was not

possible for plaintiffs to have their federal claims

redressed in the state courts. Consequently, the federal

court appropriately became involved in the state court

proceeding.

The courts have recognized that the abstention doc-

trine may have severe results. Nevertheless, it must be

applied when failure to do so would result in undue

interference with the conduct of state courts. As stated in

Cobb, 611 F. Supp. at 877:

“Admittedly, the result reached here seems a

harsh one .. . Yet the result the court reaches is

required if the federal courts are to honor the

principles of comity and federalism that under-

lie the Younger doctrine. Under that doctrine,

the federal courts are not to interfere with state

court processes unless the state appellate

courts have exhibited an unwillingness to

enforce plaintiff’s federal constitutional rights.

Sevier, 742 F.2d at 271; Parker [v. Turner], 626

F.2d [1] at 10 [(6th Cir. 1980)]. This court can

only assume that the Michigan courts will cor-

rectly apply the constitutional principles set

forth in Lassiter v. Department of Social Services,

452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640

(1981), if plaintiffs appeal their claims in those

26

courts. Especially in a case like this, where

plaintiffs ask a federal court co grant equitable

relief that will affect the day-to-day conduct of

state trial courts and possibly require ongoing

supervision of state trial court judges, a federal

court should not interfere when less intrusive

avenues of relief are available. Parker, 626 F.2d

“a? = Z

In the case at bar, Petitioners all have ongoing cases

pending in the state circuit court and court of appeals.

They are asking this court to become involved in the day-

to-day handling of family law cases by a state circuit

judge. Petitioners request equitable, declaratory, and

injunctive relief against Judge Conlin, including ordering

that he “(i) refrain from hearing any domestic family

matters; (ii) amend his policies and practices in the speci-

fic manners herein complained of to stop his infringe-

ment of constitutional rights in his courtroom and in the

administration of business of his court; (iii) institute

internal record keeping procedures, and surveillance, to

insure compliance with these orders.” Petitioners also

request declaratory and injunctive relief particular to

their own cases. (Appendix B: pp. 48a-51a and Appendix

C: pp. 62a-65a.)

It is exactly this type of state court intrusion that the

abstention doctrine was designed to eliminate. Peti-

tioners’ complaint fails to allege extraordinary circum-

stances to avoid operation of the doctrine. The Petitioners

in this case cannot show that the state court of appeals is

unwilling to address and remedy any claimed violations

of Petitioners’ constitutional rights. In fact, Petitioners, as

in Cobb, 611 F. Supp. 873, have not appealed many of the

claimed constitutional violations. The Younger doctrine

27

was grounded in part on the fundamental requirement

that a party must have no remedy available at law to seek

equitable relief. Petitioners have an adequate remedy at

law. They may appeal the various decisions, and seek

redress of their constitutional claims in the state courts of

appeal. Consequently, the court of appeals properly

affirmed the district court’s decision to abstain from hear-

ing Petitioners’ equitable claims.

¢

CONCLUSION

As discussed above, the court of appeals correctly

used the Conley standard in granting Respondent's

motion to dismiss.

The court of appeals also properly found that Judge

Conlin was protected by the cloak of judicial immunity

because the acts complained of by Petitioners were judi-

cial in nature and within the jurisdiction of Judge Con-

lin’s court. Finally, the court of appeals properly

abstained from considering Petitioners’ claims for pro-

spective injunctive relief finding that Petitioners’ had

failed to allege the necessary extraordinary circumstances

required to overcome application of the abstention doc-

trine.

Petitioners’ assertion that this is a nationally impor-

tant case is embarrassing. Petitioner asserts that “the

legal system is currently in a downswing-failing to meet

its awesome responsibility.” However, the legal system

provides these Petitioners ample opportunity to chal-

lenge Judge Conlin’s decisions. These Petitioners have

repeatedly failed to take advantage of their right to

28

appeal. Instead, they are attempting to convince the fed-

eral judiciary to oversee the day to day operations of the

Washtenaw County Circuit Court because they are dissat-

isfied with the manner in which Judge Conlin runs his

courtroom.

Imagine the burden on the federal courts if they were

charged with overseeing the domestic relation cases

heard by state judges. Inevitably, in these cases, one of

the parties becomes disgruntled by the divorce proceed-

ing. If this court were to grant Petitioners’ request, the

floodgates would open, inundating every federal court

with claims of judicial misconduct.

Petitioners’ unsupported assertion that the court of

appeals decision is in conflict with other circuits should

not jetify the granting of their Petition for Writ of Cer-

tiorari. Petitioners repeatedly make assertions that the

court of appeals decision is inconsistent with prior deci-

sions of this Court. However, upon review, these asser-

tions prove to be meritless. The court of appeals decision

is amply supported by the caselaw of this court. Addi-

tionally, Respondent has been unable to identify any con-

flict with any other circuit. For all of these reasons,

29

Respondent respectfully requests that this Honorable

Court deny the Petition for Writ of Certiorari.

Respectfully submitted,

Jacoss, JAMes, KLARR AND SOMLYO

A Professional poration

Ear R. Jacoss (P15395)

Barry H. Somtyo (P34646)

Attorneys for Respondent

21540 W. Eleven Mile Road

Suite 200

Southfield, MI 48076-3876

(810) 354-6644

Dated: August 31, 1994

No. 94-101

+

In The

Supreme Court of the United States

October Term, 1994

SHELLY L. MANN; ROBERT W. THORSON, individually

and as representatives of the class, and BEVERLY KISH,

Petitioners,

VS.

PATRICK J. CONLIN,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

APPENDIX TO BRIEF IN RESPONSE TO

PETITION FOR WRIT OF CERTIORARI

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MCL 600.601

MCL 600.605

MCL 600.611

MCL 722.27(1)

App. 1

APPENDIX E

Circuit courts have the power and

jurisdiction

(1) possessed by courts of record at

the common law, as altered by the

constitution and laws of this state

and the rules of the supreme court,

and

(2) possessed by courts and judges

in chancery in England on March 1,

1847, as altered by the constitution

and laws of this state and the rules of

the supreme court, and

(3) prescribed by rule of the

supreme court.

Circuit courts have original jurisdic-

tion to hear and determine all civil

claims and remedies, except where

exclusive jurisdiction is given in the

constitution or by statute to some

other court or where the circuit

courts are denied jurisdiction by the

constitution or statutes of this state.

Circuit courts have jurisdiction and

power to make any order proper to,

fully effectuate the circuit courts

jurisdiction and judgments.

If a child custody dispute has been

submitted to the circuit court as an

original action under this act or has

arisen accidentally from another

action in the circuit court or an order

or judgment of the circuit court, for

the best interests of the child the

court may:

MCR 3.206(A)

App. 2

(c) Modify or amend its previous

judgments or orders for proper cause

shown or because of change of cir-

cumstances until the child reaches 18

years of age, and, subject to section

4a, until the child reaches 19 years

and 6 months of age. The court shall

not modify or amend its previous

judgments or orders or issue a new

order so as to change the established

custodial environment of a child

unless there s presented clear and

convincing evidence that it is in the

best interest of the child. The custo-

dial environment of a child is estab-

lished if over an appreciable time the

child naturally looks to the custodian

in that environment for guidance,

discipline, the necessities of life, and

parental comfort. The age of the

child, the physical environment, and

the inclination of the custodian and

the child as to permanency of the

relationship shall also be considered.

(f) Take any other action considered

to be necessary in a particular child

custody dispute.

(1) In any domestic relations action,

either party may request that the

court order the other spouse to pay

an attorney a specified sum to enable

that party to prosecute or defend the

action.

MCR 2.503(D)

MCR 3.301(A)

App. 3

(3) The Court may order that a neces-

sary and reasonable sum be paid to the

attorney, either directly by the other

spouse or from the spouse’s assets over

which the court has jurisdiction.

(1) In its discretion the court may

grant an adjournment to promote the

cause of justice. An adjournment may

be entered by order of the court

either in writing or on the record in

open court, and the order must state

the reason for the adjournment.

(2) In granting an adjournment, the

court may impose costs and condi-

tions. When an adjournment is

granted conditioned on payment of

costs, the costs may be taxed sum-

marily to be paid on demand of the

adverse party or the adverse party’s

attorney, and the adjournment may

be vacated if nonpayment is shown

by affidavit.

(1) A civil action or appropriate

motion in a pending action may be

brought to obtain

(a) superintending control,

(b) habeas corpus,

(c) mandamus, or

(d) quo warranto.

Unless a particular rule or statute

specifically provides otherwise, an

Original action may not be com-

menced in the Supreme Court or the

Court of Appeals if the circuit court

would have jurisdiction of an action

seeking that relief.

MCR 3.302(A)

MCR 3.302(D)

App. 4

(2) These special rules govern the

procedure for seeking the writs or

relief formerly obtained by the writs,

whether the right to relief is created

by statute or common law. If the right

to relief is created by statute, the lim-

itations on relief in the statute apply,

as well as the limitations on relief in

these rules.

(3) The general rules of procedure

apply except as otherwise provided

in this subchapter.

A superintending control order

enforces the superintending control

power of a court over lower courts or

tribunals.

(1) The Supreme Court, the Court of

Appeals, and the circuit court have

jurisdiction to issue superintending

control orders to lower courts or tri-

bunals. In this rule the term “circuit

court” includes the Recorder’s Court

of the City of Detroit as to superin-

tending control actions of which that

court has jurisdiction.

(2) When an appeal in the Supreme

Court, the Court of Appeals, the circuit

court, or the recorder’s court is avail-

able, that method of review must be

used. If superintending control is

sought and an appeal is available, the

complaint for superintending control

must be dismissed.