124 F.3d 893 (7th Cir. 1997), 96-3512, T.W. by Enk v. Brophy

Docket Nº:96-3512, 96-4136.
Citation:124 F.3d 893
Party Name:T.W. and M.W., minors, by their next friend, Scott ENK, Plaintiffs-Appellants, v. Thomas BROPHY, et al., Defendants-Appellees.
Case Date:September 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 893

124 F.3d 893 (7th Cir. 1997)

T.W. and M.W., minors, by their next friend, Scott ENK,

Plaintiffs-Appellants,

v.

Thomas BROPHY, et al., Defendants-Appellees.

Nos. 96-3512, 96-4136.

United States Court of Appeals, Seventh Circuit

September 11, 1997

Argued June 5, 1997.

Page 894

Kathleen Mitchell (argued), Louisville, KY, for Plaintiffs-Appellants.

John F. Jorgensen, Office of the Corporation Counsel, Milwaukee, WI, for Thomas Brophy.

Timothy W. Feeley, Stephen W. Hayes, Von Briesen, Purtell & Roper, Milwaukee, WI, for Catholic Social Services of the Archdiocese of Milwaukee Incorporated.

Richard A. Victor, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Mel Flanagan.

Harold Laufer (argued), Maria K. Myers, Louis F. Raymond, Susan G. Schellinger, Davis & Kuelthau, Milwaukee, WI, for Legal Aid Society of Milwaukee, Incorporated.

Peter D. Alberg, Wayne Van Ert, Otjen, Vanert, Stangle, Lieb & Weir, Milwaukee, WI, for Children's Hospital of Wisconsin, Incorporated.

Harvey J. Goldstein (argued), Milwaukee, WI, for Institute for Child and Family Development.

Before POSNER, Chief Judge, and COFFEY and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

In this suit--a flamboyant abuse of the process of the federal courts--two small children are purported to be seeking damages of $120 million against 24 defendants that constitute a cross-section of the officials and institutions concerned with the provision of social services to children in Milwaukee.

Page 895

The children, who are black, are said to claim that the defendants in violation of the equal protection clause of the Fourteenth Amendment conspired to remove them for racist reasons from their white foster parents and place them with an aunt (black) who has abused the children sexually. The custody battle between the foster parents and the aunt has been litigated throughout the Wisconsin court system and the aunt has won.

To maintain a suit in a federal court, a child or mental incompetent must be represented by a competent adult. Gardner by Gardner v. Parson, 874 F.2d 131, 137 n. 10 (3d Cir.1989); 4 Moore's Federal Practice § 17.20, p. 17-87 (3d ed.1997). A child who does not have a guardian or other "duly appointed representative may sue by a next friend or by a guardian ad litem" appointed by the district court. Fed.R.Civ.P. 17(c). The terms are essentially interchangeable, but "next friend" is normally used when the child is the plaintiff, and "guardian ad litem" when the child is the defendant. (Just to add to the confusion, when the child does have a general representative, the representative will usually be designated as the child's "next friend," despite the wording of Rule 17(c) quoted above.) The court does not usually appoint a next friend; it is usually the next friend who has taken the initiative in suing on the child's behalf; but appointed or not, he can be challenged as not being a suitable representative, just as a guardian ad litem can be. Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir.1989); Hull by Hull v. United States, 53 F.3d 1125, 1127 n. 1 (10th Cir.1995). When someone hauls a child into court as a defendant, the court has to appoint a representative for the child, because of the child's legal incapacity to litigate, and that is the guardian ad litem. Occasionally, for the "friendless" child who might have a legal claim, or if the next friend has a conflict of interest, the court will appoint a next friend or guardian ad litem to represent the child plaintiff in the litigation. In re Chicago, Rock Island & Pacific R.R., 788 F.2d 1280, 1282 (7th Cir.1986); Ad Hoc Committee of Concerned Teachers v. Greenburgh # 11 Union Free School District, 873 F.2d 25, 30-31 (2d Cir.1989). The two children who are named as the plaintiffs in this case have a guardian ad litem but not for this suit--in which, in fact, he is named as one of the defendants.

Rule 17(c) distinguishes between a guardian or other "duly appointed representative," on the one hand--in short, a general representative--and a guardian ad litem or a next friend, on the other hand--a special representative. If the general representative has a conflict of interest (for example because he is named as the defendant in the child's suit), or fails without reason to sue or defend (as the case may be), the child may with the court's permission sue by another next friend, or the court may appoint a guardian ad litem for the child. In re Chicago, Rock Island & Pacific R.R., supra, 788 F.2d at 1282; Ad Hoc Committee of Concerned Teachers v. Greenburgh # 11 Union Free School District, supra, 873 F.2d at 29-30; Chrissy F. by Medley v. Mississippi Department of Public Welfare, 883 F.2d 25 (5th Cir.1989); Adelman ex rel. Adelman v. Graves, 747 F.2d 986 (5th Cir.1984); Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35, 39 (5th Cir.1958); 4 Moore's Federal Practice, supra, § 17.21[a], pp. 17-94 to 17-95. Yet even if the child's existing representative is in fact inadequate, another next friend can't jump into the case without first obtaining a court order disqualifying the existing representative from representing the child in the suit. Garrick v. Weaver, supra, 888 F.2d at 692-93; Susan R.M. by Charles L.M. v. Northeast Independent School District, 818 F.2d 455, 458 (5th Cir.1987).

Unless--and here we come to the heart of the dispute in this case--the court finds the child's general representative to be inadequate, it should not allow the general representative to be bypassed by appointing a special representative to litigate on behalf of his ward. Rule 17(c) doesn't say this in so many words, but it is implicit in the usual formulations of the court's powers under the rule, see Ad Hoc Committee of Concerned Teachers v. Greenburgh # 11 Union Free School District, supra, 873 F.2d at 29-30; Adelman ex rel. Adelman v. Graves, supra; Developmental Disabilities Advocacy Center, Inc. v. Melton, 689 F.2d 281, 285 (1st Cir.1982)

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, and was made explicit in Hoffert v. General Motors Corp., 656 F.2d 161, 164 (5th Cir.1981). "As a general rule, a federal court cannot appoint a guardian ad litem in an action in which the infant or incompetent already is represented by someone who is considered appropriate under the law of the forum state." 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1570, p. 497 (2d ed.1990). It is a sensible general rule because the management of the affairs of infants, like other matters relating to domestic relations, is the primary responsibility of the states rather than of the federal government.

So far as appears, however, the child plaintiffs in the suit before us do not have a general representative, so there is no obstacle to their being represented in this suit by a special one. They have a custodian, the aunt, who would be the natural choice to be the children's general representative; and we shall see that the fact that she is named as a defendant in the suit would not necessarily allow her to be bypassed. But the defendants do not argue that either she or anyone else is the general...

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