E.T. v. Tani Cantil-Sakauye ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
E.T.; K.R.; C.B.; G.S.; FRANK 
DOUGHERTY, on Behalf of E.T.,
K.R., C.B. and G.S.,
Plaintiffs-Appellants,
v.
No. 10-15248
TANI CANTIL-SAKAUYE, Chair of the
Judicial Council of California, in D.C. No.
2:09-cv-01950-FCD-
her official capacity; WILLIAM C.
VICKREY, Administrative Director  DAD
of the Administrative Office of the ORDER AND
Court of the Judicial Council, in AMENDED
his official capacity; STEVEN W. OPINION
WHITE, Presiding Judge of the
Superior Court of the County of
Sacramento, in his official
capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted
April 14, 2011—San Francisco, California
Filed September 13, 2011
Amended March 12, 2012
2801
2802 E.T. v. CANTIL-SAKAUYE
Before: Sidney R. Thomas and Johnnie B. Rawlinson,
Circuit Judges, and Cormac J. Carney, District Judge.*
Per Curiam Opinion
*The Honorable Cormac J. Carney, District Judge for the U.S. District
Court for Central California, Santa Ana, sitting by designation.
E.T. v. CANTIL-SAKAUYE 2803
COUNSEL
Edward Howard (argued), Children’s Advocacy Institute,
University of San Diego School of Law, San Diego, Califor-
nia; Peter E. Perkowski, Winston & Strawn, LLP, San Fran-
cisco, California, for the plaintiffs-appellants.
Robert A. Naeve, Jones Day, Irvine, California, for the
defendants-appellees.
ORDER
The panel has decided to amend the opinion filed Septem-
ber 13, 2011. The opinion is withdrawn and a substituted
opinion is filed concurrently with this order.
With the filing of the amended opinion, the panel has voted
to deny the petition for rehearing and to reject the petition for
rehearing en banc.
2804 E.T. v. CANTIL-SAKAUYE
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote on the
petition for rehearing en banc. Fed. R. App. P. 35(b).
The petition for rehearing is denied and the petition for
rehearing en banc is rejected. No further petitions for rehear-
ing will be entertained.
OPINION
PER CURIAM:
Plaintiff foster children appeal the dismissal of their class
action lawsuit under 42 U.S.C. § 1983, in which they allege
that the caseloads of the Sacramento County Dependency
Court and court-appointed attorneys are so excessive as to
violate federal and state constitutional and statutory provi-
sions. The district court abstained from adjudicating Plain-
tiffs’ claims. Based on O’Shea v. Littleton, 414 U.S. 488(1974), we affirm. See Kaufman v. Kaye, 466 F.3d 83, 84 (2d
Cir. 2006).
I
A
Plaintiffs filed this action on behalf of themselves and a
proposed class of roughly 5,100 foster children in Sacramento
County.1 They allege that “crushing and unlawful caseloads”
frustrate the ability of Dependency Courts to fairly and ade-
quately hear their cases and of court-appointed attorneys to
provide them effective assistance of counsel—all to the chil-
drens’ “enduring harm.” Their suit “seeks a Dependency
1
For purposes of a motion to dismiss, we take the factual allegations in
Plaintiffs’ complaint as true. Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th
Cir. 2010).
E.T. v. CANTIL-SAKAUYE 2805
Court for Sacramento’s abused and neglected children that
comports with basic Due Process and the effective, adequate,
and competent assistance of counsel for the children of Sacra-
mento County in dependency proceedings.”
In their complaint, Plaintiffs assert constitutional and statu-
tory claims under 42 U.S.C. § 1983, as well as pendent state
law claims.2 They seek relief in the form of (1) a declaratory
judgment that Defendants have violated, continue to violate,
and/or will violate Plaintiffs’ rights; (2) injunctive relief,
restraining future violations of those rights; and (3) an order
“mandating that Defendants provide the additional resources
required to comply with the Judicial Council of California and
the National Association of Counsel for Children’s recom-
mended caseloads for each court-appointed attorney.”
Named plaintiffs E.T., K.R., C.B., and G.S. reside in the
County of Sacramento and presently are in foster care or are
wards of the court. Together, they allege numerous shortcom-
ings of court-appointed counsel, including the failure to con-
duct meaningful interviews or regular meetings, investigate
their cases, and foster contact with social workers and other
professionals.
2
Specifically, Plaintiffs assert federal claims under § 1983 arising out of
alleged (1) procedural and substantive due process violations from exces-
sive attorney caseloads, and procedural due process violations from exces-
sive judicial caseloads; (2) deprivation of rights under the Federal Child
Welfare Act, 42 U.S.C. § 671(a)(22); and (3) deprivation of rights under
the Child Abuse Prevention and Treatment and Adoption Reform Act, 42
U.S.C. § 5106a(b)(2)(A)(xiii). Plaintiffs also assert state law claims aris-
ing out of alleged (1) violations of the inalienable right to pursue and
obtain safety set forth in Article I, § 1 of the California Constitution for
failure to provide fair and adequate tribunals and effective legal counsel;
(2) violation of due process as guaranteed in Article I, § 7 of the California
Constitution for failure to provide adequate and effective legal representa-
tion in dependency proceedings; (3) violation of Welfare and Institutions
Code § 317(c); and (4) violation of Welfare and Institutions Code
§ 317.5(b).
2806 E.T. v. CANTIL-SAKAUYE
Each named Defendant plays a part in administering the
County’s foster care courts. The Honorable Tani Cantil-
Sakauye, Chief Justice of California, is Chair of the Judicial
Council of California. The Judicial Council oversees the state-
wide administration of justice in the state’s courts. As Chair,
the Chief Justice directs the Council’s work, including its
allocation of the judicial branch budget; promulgation of rules
of court administration and procedure; and setting of priorities
for the system’s continual improvement. William C. Vickrey
is Administrative Director of the Administrative Office of the
Courts (“AOC”), the staff agency of the Council responsible
for a variety of programs and services to improve access to a
fair and impartial judicial system. The AOC’s initiatives
include Dependency Representation, Administration, Fund-
ing, and Training (“DRAFT”), a program to provide court
funding to participating California counties. DRAFT funds
pay for childrens’ court-appointed counsel in Sacramento
County Dependency Court. Finally, the Honorable Steven W.
White is Presiding Judge of the Superior Court of the County
of Sacramento. In that capacity, Judge White’s responsibili-
ties include allocating resources within the court and assign-
ing judges to departments, such as the county’s Dependency
Court.
B
On Defendants’ motion, the district court dismissed Plain-
tiffs’ complaint on abstention grounds. E.T. v. George, 681 F.
Supp. 2d 1151 (E.D. Cal. 2010). The court concluded that
both O’Shea, 414 U.S. at 501-02, and Younger v. Harris, 401
U.S. 37 (1971), require a federal court to abstain from adjudi-
cating Plaintiffs’ claims. E.T., 681 F. Supp. 2d at 1167-68,
1178-79. Plaintiffs timely appealed the district court’s judg-
ment only insofar as it dismissed their attorney caseload
claims and related request for declaratory relief. We have
jurisdiction under 28 U.S.C. § 1291.33
The parties disagree about the standard of review applicable to the dis-
trict court’s decision to equitably abstain under O’Shea and its progeny.
E.T. v. CANTIL-SAKAUYE 2807
II
[1] Federal courts may not entertain actions that seek to
impose “an ongoing federal audit of state . . . proceedings.”
O’Shea, 414 U.S. at 500; see also id. (warning against reme-
dies “which would indirectly accomplish the kind of interfer-
ence that Younger . . . and related cases sought to prevent”
(emphasis added)); Rizzo v. Goode, 423 U.S. 362, 379-80
(1976); Kaufman v. Kaye, 466 F.3d at 86; 31 Foster Children
v. Bush, 329 F.3d 1255, 1276 (11th Cir. 2003); Joseph A. v.
Ingram, 275 F.3d 1253, 1271 (10th Cir. 2002); Lucien v.
Johnson, 61 F.3d 573, 576 (7th Cir. 1995); Parker v. Turner,
626 F.2d 1, 7 (6th Cir. 1980); Gardner v. Luckey, 500 F.2d
712, 715 (5th Cir. 1974). “We should be very reluctant to
grant relief that would entail heavy federal interference in
such sensitive state activities as administration of the judicial
system.” Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697,
703 (9th Cir. 1992) (citing O’Shea, 414 U.S. 488; Rizzo, 423
U.S. at 379); cf. Horne v. Flores, ___U.S.___, 129 S. Ct.
2579, 2593 (2009) (noting “sensitive federalism concerns”
raised by “institutional reform injunctions” and federal court
decrees effectively “dictating state or local budget priorities”).
[2] Heeding the teachings of O’Shea and cases since, the
district court properly concluded that “[P]laintiffs’ challenges
to the juvenile dependency court system necessarily require
the court to intrude upon the state’s administration of its gov-
ernment, and more specifically, its court system.” E.T., 681 F.
Supp. 2d at 1164. Speaking to the Plaintiffs’ attorney caseload
claims, the court reasoned that
We need not resolve the dispute today, because whether we review the
district court’s ruling de novo or for an abuse of discretion, our conclusion
remains the same. See, e.g., United States v. Wunsch, 84 F.3d 1110, 1114
(9th Cir. 1996) (“We need not decide what the appropriate standard of
review should be in the instant appeal . . . because we would reach the
same result regardless of which one were applied.”).
2808 E.T. v. CANTIL-SAKAUYE
in order to declare the current attorney caseloads
unconstitutional or unlawful, the court would neces-
sarily have to consider through a generalized inquiry
how many cases are constitutionally and/or statu-
torily permissible, whether some types of cases
require more investigation or preparation, which
types of those cases deserve more resources, and
how much time or attention is constitutionally and/or
statutorily permissible.
Id. at 1165.
In asking us to reverse the district court’s judgment, Plain-
tiffs rely on our decision in Los Angeles Cnty. Bar Ass’n.
There, a county bar association brought a facial challenge to
the constitutionality of a state statute prescribing the number
of judges on the county’s superior court. 979 F.2d at 699. The
association sought a declaration that the statute violated fed-
eral and state constitutional guarantees—it argued that a
shortage of judges caused delays in civil litigation, depriving
litigants of access to courts, and that the statute denied local
litigants equal protection because it forced them to suffer lon-
ger delays than litigants in neighboring counties. Id. at 699-
700. We rejected the defendants’ suggestion that a federal
court should abstain under the principles of O’Shea and Rizzo.
Id. at 701-04. Here, because Plaintiffs seek only declaratory
relief on appeal, they believe their challenge to average attor-
ney caseloads resembles the average court delays claim at
issue in Los Angeles County Bar Ass’n. We disagree.
[3] Los Angeles County Bar Ass’n is distinguishable from
the case at bar. It involved average court delays and the
‘speedy civil litigation right,’ id. at 703, which the Plaintiffs
allege would be solved by a simple increase in the number of
judges. This case involves average attorney caseloads and the
right to counsel. Because the question is one of adequacy of
representation, potential remediation might involve examina-
tion of the administration of a substantial number of individ-
ual cases. Thus, we conclude that the declaratory relief sought
by Plaintiffs would amount to an ongoing federal audit of
E.T. v. CANTIL-SAKAUYE 2809
Sacramento County Dependency Court proceedings, requiring
abstention under O’Shea. See Samuels v. Mackell, 401 U.S.
66, 72-73 (1971) (noting that claims for declaratory relief can
be just as intrusive as claims for injunctive relief); Gilbertson
v. Albright, 381 F.3d 965, 977 (9th Cir. 2004) (en banc)
(same); see also O’Shea, 414 U.S. at 500; Parker, 626 F.2d
at 7 (“When the state agency in question is a state court . . .
the equitable restraint considerations appear to be nearly abso-
lute.”).
We decline Plaintiffs’ invitation to consider in isolation
their (now-narrowed) request for relief, as though reaching
the merits of their declaratory judgment claims would end the
matter. For “even the limited decree[ ]” sought here “would
inevitably set up the precise basis for future intervention con-
demned in O’Shea.” Luckey v. Miller, 976 F.2d 673, 679
(11th Cir. 1992) (per curiam) (emphasis added). In other
words, were we to declare the current Dependency Court
attorney caseloads unconstitutional or unlawful, the Defen-
dants’ compliance with that remedy and its effect in individ-
ual cases could be subject to further challenges in federal
district court. See Samuels, 401 U.S. at 72; Kaufman, 466
F.3d at 87. “[L]aying the groundwork for a future request for
more detailed relief which would violate the comity principles
expressed in Younger and O’Shea is the precise exercise for-
bidden under the abstention doctrine.” Luckey, 976 F.2d at
679; O’Shea, 414 U.S. at 500-501; accord Kaufman, 466 F.3d
at 87 (noting that later challenges to compliance with the fed-
eral court remedy requested “would inevitably lead to pre-
cisely the kind of ‘piecemeal interruptions of . . . state
proceedings’ condemned in O’Shea”).
III
[4] We conclude that the district court properly abstained
from consideration of the claims Plaintiffs raise here, and we
therefore affirm the dismissal of their complaint.