Agg v. Flanagan
| Decision Date | 25 August 1988 |
| Docket Number | Nos. 87-3389,87-3428,s. 87-3389 |
| Citation | 855 F.2d 336 |
| Parties | Joseph AGG, Jr.; Carl P. Zauner; Dennis Johnson; Alvin Evans, Plaintiffs-Appellants, Cross-Appellees, v. Hon. Timothy M. FLANAGAN, Administrative Judge, Court of Common Pleas, Div. of Domestic Relations, Cuyahoga County; Hon. Lesley Brooks Wells, Court of Common Pleas, Div. of Domestic Relations, Cuyahoga County, Ohio; Hon. John F. Corrigan; Bureau of Support; Support Division, Court of Common Pleas; Donna Agg; Madorsky, Katz and Carr Co., L.P.A.; Leonard Carr, Defendants-Appellees, Madorsky, Katz and Carr Co., L.P.A.; Leonard Carr, Defendants-Appellees, Cross-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Sanford J. Berger (argued), Robert M. Fertel, Berger and Fertel, Cleveland, Ohio, for plaintiffs-appellants, cross-appellees.
Patrick J. Murphy, Michael D. Porkorny, Asst. Pros. Attys., Cleveland, Ohio, Joan K. Pellegrin (argued), Pellegrin & Zone, Lakewood, Ohio, for defendants-appellees.
John B. Robertson (argued), James M. Speros, Gallagher, Sharp, Fulton & Norman, Cleveland, Ohio, for defendants-appellees, cross-appellants.
Before KENNEDY and JONES, Circuit Judges, and CONTIE, Senior Circuit Judge.
Plaintiffs brought this class action on behalf of "all male litigants" of the Cuyahoga County, Ohio family court "who are, or will be subjected to wage assignments, garnishments or wage attachments" under procedures that are claimed to violate the due process and equal protection clauses of the Fourteenth Amendment, and the Federal Consumer Credit Protection Act.
Defendants are judges (and all present and future judges) of that court, the Bureau of Support of that court and the Support Division of the juvenile division of the court; the ex-wife of one of the named plaintiffs, her attorney, and the law firm of her attorney.
The District Court granted summary judgment to defendants on all counts.
It found all damage claims stemming from the application of Ohio's then-existing procedure, and pursuant to court orders, were barred by the doctrine of judicial imunity. Injunctive relief concerning future application of the procedure would not be barred by immunity, but was rendered moot by a subsequent repeal of the statute and its replacement by new procedures. However, plaintiffs' request to vacate orders issued pursuant to the statute whose constitutionality they challenged was neither moot nor barred by immunity. As to these claims, the District Court found no violation of plaintiffs' constitutional rights. In addition, the District Court found no merit in plaintiff Joseph Agg's claim of conspiracy. Plaintiffs appeal.
Defendants Carr and Madorsky, Katz & Carr cross-appeal the District Court's denial of their motion to dismiss the case for lack of subject matter jurisdiction.
We affirm the judgment of the District Court in all respects.
We turn first to the jurisdictional question raised on the cross-appeal. The cross-appellants argue that the "domestic relations exception" to federal jurisdiction precludes jurisdiction. At its core, that doctrine concerns federal jurisdiction based on diversity. The plaintiffs in this case sued under 42 U.S.C. Sec. 1983 and claimed deprivation of federal constitutional rights. They also claimed that Ohio's procedures were contrary to a federal law, the Federal Consumer Credit Act, and thus invalid under the supremacy clause. These claims were not all so completely devoid of merit that we can say that they were added merely to obtain federal jurisdiction. Since they present substantial federal questions, jurisdiction in the District Court was therefore proper under 28 U.S.C. Sec. 1331 or Sec. 1343.
The cross-appellants argue that the determination of the civil rights claims necessarily required the District Court to decide whether plaintiff Joseph Agg was financially able to make the payments that the Ohio court had ordered and that such a decision resolves "state law matters within the scope of the domestic relations exception," Hooks v. Hooks, 771 F.2d 935, 942 (6th Cir.1985).
We believe that this view represents a misunderstanding shared by cross-appellants and appellants. An incorrect decision by the Ohio court does not constitute a deprivation of due process of law that the federal courts must redress. The proper course to correct a mistake is by appeal. It is only the claim that Ohio's procedures do not allow a vindication of plaintiffs' rights that states a cognizable due process violation. The resolution of that claim did not require the District Court to decide "parent-child, domestic relations or custody disputes [or] adoption matters subject to state law and state court disposition," id. The claim that the state's method of determining and enforcing child support is unconstitutional and contrary to federal law is not identical to a claim that a particular support order is too high. The domestic relations exception concerns the second claim; the federal courts must properly exercise jurisdiction over the first.
The Act generally prohibits garnishments above 25% of income, 15 U.S.C Sec. 1673. The District Court, assuming that the Act creates a private right of action, found that these attachments are garnishments for the purposes of the Act. For the purpose of our analysis of this issue, we make the same assumption. The Act makes an exception for support orders, 15 U.S.C. Sec. 1673(b)(1)(A), which may reach 50% of income, 15 U.S.C. Sec. 1673(b)(2)(A). 1 There is no allegation that this proportion was exceeded here. In order for the exception to apply, the support order must be issued by a court of competent jurisdiction, there must be substantial due process, and the order must be subject to judicial review.
The District Court found that these conditions were met, and plaintiffs' claims concerning the jurisdiction of the Ohio court and the availability of judicial review are wholly without merit. See Ohio Revised Code Secs. 2301.34 (); 3109.07 (support orders appealable to the court of appeals). The question of whether the Ohio procedures violated 2 the Act therefore depends on whether there was substantial due process, an issue discussed below.
Plaintiff Joseph Agg claims a conspiracy to deprive him of his civil rights on the part of four defendants: his ex-wife Donna Agg, her attorney Leonard Carr, Carr's law firm, and Judge Timothy Flanagan. The factual background of this claim, which is also the basis of Agg's due process claim, was summarized by the District Court:
On May 21, 1976 the Court of Common Pleas of Cuyahoga County, Ohio entered a judgment ordering plaintiff Agg to pay child support to his ex-wife, defendant Donna Agg. The order was based on the stipulation of the parties. Following a number of hearings on orders to show cause, plaintiff Agg was first found in contempt of court for non-payment of the ordered support in 1981. His jail sentence was suspended on the condition that he comply with the court's order to pay the support. At that time his arrearage was $20,725.
Twice in 1982 he was again sentenced to a jail term for contempt of the court's order to pay support but the jail term was again suspended on the condition that he make the required payments.
Following a hearing, Referee Basie recommended on May 9, 1983 that plaintiff again be cited for contempt of court and that any jail term be suspended if plaintiff paid before May 20, 1983. That order was adopted by Judge Flanagan on June 9, 1983. Plaintiff filed no objections to the referee's recommendation and did not appeal Judge Flanagan's order. Plaintiff was represented by counsel throughout all proceedings.
On July 28, 1983 the court ordered plaintiff Agg to appear and show why he should not be held in contempt of court. On October 11, 1983 defendant Carr and plaintiff Agg's attorney conferred in private with Judge Flanagan. Following this conference, plaintiff Agg agreed to sign a voluntary wage order and a voluntary finding of contempt with a three day suspension on the condition that he make payment. On November 8, 1983 the court issued a capias against plaintiff Agg for failure to comply with this order. He failed to present himself to the court and was arrested on January 20, 1984. He was in jail from that date until January 23, 1984.
Joint Appendix at 26-27 (emphasis added).
This conspiracy claim thus rests on a meeting held between Flanagan, Carr, and Joseph Agg's counsel. The meeting occurred while Joseph Agg waited outside. According to Agg, his counsel came out to him and urged him to sign the voluntary wage order and contempt finding in order to avoid imprisonment and he reluctantly signed for that reason. He claims that the subsequent order of imprisonment was unconstitutional and unlawful. He neglects to mention that the contempt order suspended the sentence on the condition that Agg pay $2,000.00 of his arrearage "forthwith," which he failed to do.
Like the District Court, we are unable to see how these facts can support a conspiracy claim against anyone. "A civil conspiracy is an agreement between two or more persons to injure another by unlawful action," Hooks, 771 F.2d at 943-44 (emphasis added). If Agg's claim is that he got bad advice from his attorney about whether to sign the voluntary agreement, he should sue for malpractice. Since Joseph Agg's attorney has not been sued, and there is no allegation that he was part of the alleged conspiracy, it appears that plaintiffs' theory is that the defendants conspired to deprive Agg of his constitutional rights by using Ohio law to get his money and have him imprisoned. But accepting Joseph Agg's version of events as true, it still appears that defendants Donna Agg, Carr, and the law...
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