Alexander Milchtein v. John Chisholm , 880 F.3d 895 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1420
ALEXANDER MILCHTEIN and ESTER RIVA MILCHTEIN,
Plaintiffs-Appellants,
v.
JOHN T. CHISHOLM, District Attorney of Milwaukee County,
et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 13-C-0940 — C.N. Clevert, Jr., Judge.
____________________
ARGUED NOVEMBER 30, 2017 — DECIDED JANUARY 29, 2018
____________________
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 or-
ders of Wisconsin’s court system. In this federal suit, the
* Of the Northern District of Illinois, sitting by designation.
2 No. 17-1420
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 dis-
criminated against or failed to accommodate their views of
family organization and management in the Chabad under-
standing of Orthodox Judaism. (Rabbi Alexander Milchtein
tells us that he follows the teachings of the Lubavitcher Reb-
be 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 dis-
missed 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 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983). Among federal
courts, only the Supreme Court of the United States has stat-
utory 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
No. 17-1420 3
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 else-
where, that extend the Rooker-Feldman doctrine to any argu-
ments 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. More recently, however, the Supreme
Court has insisted that the jurisdictional Rooker-Feldman doc-
trine be distinguished from principles of issue and claim
preclusion. See, e.g., Exxon Mobil Corp. v. Saudi Basic Indus-
tries Corp., 544 U.S. 280 (2005); Lance v. Dennis, 546 U.S. 459
(2006); Skinner v. Switzer, 562 U.S. 521, 531–33 (2011).
If a contention in federal litigation is intertwined with the
state litigation only in the sense that it entails a factual or le-
gal contention that was, or could have been, presented to the
state judge, then the connection between the state and feder-
al cases concerns the rules of preclusion, which are not juris-
dictional 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 fed-
eral plaintiff seeks the alteration of a state court’s judgment.
The Milchteins do not, so the Rooker-Feldman doctrine does
not block this suit.
4 No. 17-1420
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 any-
one’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 opin-
ion 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 be-
cause 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 (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 chil-
dren could avoid mootness (if state proceedings are inher-
No. 17-1420 5
ently 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 (1971), would require the federal tribunal to ab-
stain. 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 (1975); Trainor v. Hernandez, 431 U.S. 434 (1977);
Moore v. Sims, 442 U.S. 415 (1979). That’s an apt description
of child-welfare and child-custody proceedings. Moore, 442
U.S. at 423 (applying Younger to state-initiated custody litiga-
tion); Brunken v. Lance, 807 F.2d 1325, 1330–31 (7th Cir. 1986).
Younger also has been extended to state administrative pro-
ceedings. Ohio Civil Rights Commission v. Dayton Christian
Schools, Inc., 477 U.S. 619 (1986). And we know from Samuels
v. Mackell, 401 U.S. 66, 69–73 (1971), that Younger applies to
requests for declaratory judgments as well as to requests for
injunctions.
So if a state-initiated proceeding concerning one of the
Milchteins’ remaining children comes before Wisconsin’s
child-welfare agency and judiciary, a federal court should
abstain and let the Milchteins present their constitutional ar-
guments to the state officials. Younger prevents a federal
judge from resolving isolated legal issues that might matter
to proceedings already before a state agency or judge. See,
e.g., South Bend v. South Bend Common Council, 865 F.3d 889
(7th Cir. 2017). Principles of comity and federalism permit
states to resolve for themselves all legal contentions, includ-
ing those based on the Constitution. Add to this the princi-
ple that federal courts are supposed to leave child-custody
disputes to the states, see Ankenbrandt v. Richards, 504 U.S.
6 No. 17-1420
689 (1992), and we have a set of powerful reasons not to ad-
dress the sort of arguments the Milchteins seek to present.
Younger suggests that abstention may be inappropriate if
the very existence of a state proceeding violates the First
Amendment. But the Milchteins do not contend that it is
never permissible for a state to inquire into the welfare of a
religious leader’s children. They contend only that the state
must respect parents’ religious beliefs when making deci-
sions about the placement, education, and religious practices
of minor children. That sort of argument is one reserved by
the Younger doctrine to the state judiciary, with review (if
appropriate) by the Supreme Court of the United States.
Because the Milchteins’ proposed means of rescuing this
case from mootness runs smack into Younger, we need not
decide whether to supplement the record. Defendants op-
pose the Milchteins’ motion, observing that the affidavit was
not before the district judge. They add that Rabbi Milchtein’s
assertion that another minor child is “outside the control of
my wife and me” does not say what role, if any, state agen-
cies and courts have played in producing that status. (The
affidavit says that “Child Protective Services personnel con-
ducted an interview with myself, my wife, and some of my
minor children” but does not assert that state employees
have acted in any manner based on what they learned.)
For the reasons we have given, this federal case must end
whether or not we grant the Milchteins’ motion. As there is
no priority among reasons for not deciding the merits, see
Sinochem International Co. v. Malaysia International Shipping
Corp., 549 U.S. 422 (2007); Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574 (1999), details about exactly what is happening
No. 17-1420 7
with the Milchteins’ additional children do not matter to this
suit—though they may matter greatly in state court.
AFFIRMED