Milchtein v. Chisholm, 17-1420

• Decision Date: 29 January 2018
• Docket Number: No. 17-1420,17-1420
• Parties: Alexander MILCHTEIN and Ester Riva Milchtein, Plaintiffs–Appellants, v. John T. CHISHOLM, District Attorney of Milwaukee County, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

880 F.3d 895

Alexander MILCHTEIN and Ester Riva Milchtein, Plaintiffs–Appellants,

v.John T. CHISHOLM, District Attorney of Milwaukee County, et al., Defendants–Appellees.

No. 17-1420

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2017

Decided January 29, 2018

James Bopp, Jr., Corrine L. Youngs, Jeffrey P. Gallant, Attorneys, BOPP LAW FIRM, Terre Haute, IN, Plaintiffs–Appellants.

Thomas C. Bellavia, Brian Patrick Keenan, Jennifer L. Vandermeuse, Attorneys, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI, for Defendants–Appellees.

Before Easterbrook and Manion, Circuit Judges, and John Z. Lee, District Judge.^*

Easterbrook, Circuit Judge.

Alexander and Ester Riva Milchtein have 15 children. The two eldest refused to return home in 2011 and 2012 and were placed in foster care by orders of Wisconsin's court system. In this federal suit, the Milchteins contend that state officials violated the federal Constitution during proceedings that ended in the foster-care orders. The Milchteins contend that the state either discriminated against or failed to accommodate their views of family organization and management in the Chabad understanding of Orthodox Judaism. (Rabbi Alexander Milchtein tells us that he follows the teachings of the Lubavitcher Rebbe Menachem Mendel Schneerson.) These two children now are adults, however, and all state proceedings with respect to them are closed. For that reason the district court dismissed the Milchteins' suit as moot. 2017 U.S. Dist. LEXIS 13160 (E.D. Wis. Jan. 31, 2017).

The Milchteins contend that it is not moot, because (a) the district court could have entered a declaratory judgment about the propriety of Wisconsin's actions, and (b) they still have 12 minor children, any of whom might run away and precipitate the same sort of controversy.

The district judge addressed the first of these themes by invoking the Rooker - Feldman doctrine. See Rooker v. Fidelity Trust Co. , 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) ; District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Among federal courts, only the Supreme Court of the United States has statutory authority to review the decisions of state courts in civil cases. 28 U.S.C. § 1257. The Rooker - Feldman doctrine insists that other federal courts not usurp that authority. Because the proceedings with respect to the Milchteins' two eldest children are over, the state courts' decisions are not subject to review anywhere . The Milchteins did not ask the district judge, and do not ask us, to alter or annul any decision by a state judge. Nonetheless, the district judge deemed the Milchteins' arguments to be "inextricably intertwined" with the state litigation and thought that this brought the Rooker - Feldman doctrine into play.

It isn't hard to find decisions in this circuit, and elsewhere, that extend the Rooker Feldman doctrine to any arguments that were, or could have been, presented in the state suit, even though the federal plaintiffs do not want the state judgment to be changed, by stating that the arguments are "inextricably intertwined" with the judgment. See, e.g., Remer v. Burlington Area School District , 205 F.3d 990, 996 (7th Cir. 2000). The phrase "inextricably intertwined" originated in Feldman itself, though it was put to different use. 460 U.S. at 482 n.16, 486–87, 103 S.Ct. 1303. More recently, however, the Supreme Court has insisted that the jurisdictional Rooker Feldman doctrine be distinguished from principles of issue and claim preclusion. See, e.g., Exxon Mobil Corp. v. Saudi Basic Industries Corp. , 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) ; Lance v. Dennis , 546 U.S. 459, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) ; Skinner v. Switzer , 562 U.S. 521, 531–33, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011).

If a contention in federal litigation is intertwined with the state litigation only in the sense that it entails a factual or legal contention that was, or could have been, presented to the state judge, then the connection between the state and federal cases concerns the rules of preclusion, which are not jurisdictional and are outside the scope of the Rooker Feldman doctrine. Because the phrase "inextricably intertwined" has the potential to blur this boundary, it should not be used as a ground of decision. See Richardson v. The Koch Law Firm, P.C. , 768 F.3d 732 (7th Cir. 2014). The vital question, the Justices stated in Exxon Mobil , Lance , and Skinner , is whether the federal plaintiff seeks the alteration of a state court's judgment. The Milchteins do not, so the Rooker Feldman doctrine does not block this suit.

What does block it is the requirement of justiciability. The Milchteins want a federal judge to say where a state judge erred but not do anything about the errors. That is a naked request for an advisory opinion. The state cases are closed. A federal judge's statement about how the state judge should have handled old litigation could not affect anyone's rights—that's why the Rooker Feldman doctrine is irrelevant—and precisely because it could not affect anyone's rights it also would be advisory. Federal judges don't tell state judges how they should have ruled in closed cases.

This brings us to the Milchteins' second theme. The opinion they seek would not be advisory, they contend, because it could affect future litigation involving their other children. They observe that a dispute is not moot if it is capable of repetition between the same parties but evades review because it is too short-lived for the federal judiciary to reach a decision while it is ongoing. See, e.g., Weinstein v. Bradford , 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). The parties debate whether Wisconsin's child-custody proceedings last long enough, before a child reaches age 18, to permit federal litigation while they last. The district judge thought that they do, 2017 U.S. Dist. LEXIS 13160 at *37, but added that the absence of new child-custody proceedings during the years after the Milchteins' second-eldest child turned 18 shows that repetition of the constitutional dispute is unlikely.

The Milchteins reply that, after the district court ruled, the dispute has come back to life concerning another child. We have a bit more to say about that contention later. For now it is enough to conclude that the possibility of new or ongoing proceedings concerning the Milchteins' other children could avoid mootness (if state proceedings are inherently too short) without authorizing federal litigation. For if Wisconsin again starts judicial proceedings concerning any of the Milchteins' children, the doctrine of Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), would require the federal tribunal to abstain. Younger concerned a criminal defendant's attempt to obtain federal intervention in a pending prosecution. It has since been extended to civil litigation brought by the state to vindicate its policies. Huffman v. Pursue, Ltd ., 420 U.S. 592, 604–05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) ; Trainor v. Hernandez , 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) ; Moore v. Sims , 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). That's an apt description of child-welfare and child-custody proceedings. Moore , 442 U.S. at 423, 99 S.Ct. 2371 (applying Younger to state-initiated custody litigation); Brunken v. Lance , 807 F.2d 1325, 1330–31 (7th Cir. 1986). Younger also has been extended to state administrative...