I.          STATEMENT OF JURISDICTION

          Action below is a suit for relief under 42 U.S.C. §1983.  District Court had subject matter jurisdiction provided by 42 U.S.C. §1983, for enforcement of civil rights by 28 U.S.C. §1343(a)(3) and (4), and for federal question by 28 U.S.C. §1331.

          The Order Granting Defendants’ Motion for Summary Judgment, Document No. 43, ER 9-15, dismissing Roger W. Knight’s complaint on summary judgment, and the Judgment, Document No. 44, ER 8, were filed on May 1, 2001.  The Judgment is the final disposition of the case in district court.  This court therefore has jurisdiction to hear this appeal under 28 U.S.C. §1291.  The Notice of Appeal, Document No. 47, ER 1, was filed on May 7, 2001, less than thirty days after the entry of the Judgment.  This appeal is timely under FRAP 4(a)(1).

II.          STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

          Was the district court in error in finding that Rooker-Feldman doctrine prevented the federal courts from having jurisdiction in an action under 42 U.S.C. §1983 for relief from an old state court child support order based upon a new United States Supreme Court decision limiting state’s interest in the parent and child relationship and finding that beyond that newly limited interest, a state may not regulate the parents’ fundamental right to making decisions concerning the custody, care, and education of their children?

III.          REVIEWABILITY AND STANDARD FOR REVIEW

          A dismissal on summary judgment is reviewed de novo, Hiser v. Franklin, (9th Cir. 1996) 82 F. 3d. 869, 871.

IV.          STATEMENT OF THE CASE

          On June 5, 2000, the United States Supreme Court released its decision in Troxel v. Granville, (2000) 530 U.S. 57, 147 L. Ed. 2d. 49, 120 S. Ct. 2054.

          On November 3, 2000, Roger W. Knight filed the Complaint, Document No. 1, and his Declaration of Roger W. Knight, Document No. 2, ER 16-51.

          On February 26, 2001 Mr. Knight filed his Motion for Summary Judgment, Document No. 18.

          On March 16, 2001, Appellee Norm Maleng filed his Motion for Summary Judgment, Document No. 22.

          On March 19, 2001, Appellee Gary Locke filed his Motion for Dismissal and for Summary Judgment, Document No. 25.

          On May 1, 2001 the district court entered the Order Granting Defendants’ Motions for Summary Judgment, Document No. 43, ER 9-15, and the Judgment, Document No. 44, ER 8.

          On May 7, 2001 Mr. Knight filed the Notice of Appeal, Document No. 47, ER 1.

V.          ARGUMENT

A.      No Genuine Issue of Material Fact

          The facts material to this case are not in dispute.  Mr. Knight is under an old Washington state child support order to pay a sum of money each month to appellee Mrs. Schmitz, Exhibits attached to the Declaration of Roger W. Knight (Knight Declaration), Document No. 2, ER 16-51.  This child support order is based upon chapter 26.19 RCW, the child support schedule law passed in 1988.  RCW 26.19.001 declares that it is the intent of the Legislature not only to provide child support for the child’s basic needs, but “to provide additional child support commensurate with the parents’ income, resources, and standard of living.”  Chapter 26.19 RCW was upheld by this Court in P.O.P.S. v. Gardner, (9th Cir. 1993) 998 F. 2d. 764.

          Long after the child support order was imposed upon Mr. Knight and long after P.O.P.S., Justice O’Connor wrote in Troxel v. Granville, at 121 S. Ct. 2061:

Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.

 

Mr. Knight brought action in the district court for relief from the child support order and injunction against its continued enforcement based on the above finding in Troxel.  His argument is that any support order beyond the amount necessary to allow the custodial parent to adequately care for the children, and where the custodial parent has sufficient resources to adequately care for the child, any support order, violates the noncustodial parent’s Fourteenth Amendment rights as established and reaffirmed in Troxel.  P.O.P.S. is thus overturned because chapter 26.19 RCW is unconstitutional on its face in that it provides “additional child support commensurate with the parents’ income, resources, and standard of living.”  The “additional” is the parent’s decision, not the state’s decision.  These are the arguments brought by Mr. Knight.

          Because RCW 26.09.170(1) flatly prohibits the state’s courts from granting relief from any child support judgment for months gone by, the abstention doctrine set forth in Younger v. Harris, (1971) 401 U.S. 37, 46-54, 27 L. Ed. 2d. 669, 91 S. Ct. 746, does not, by its own terms, apply to preclude federal court jurisdiction.[1]  Once federal court jurisdiction is established for part of a case, federal practice generally precludes, for reasons of judicial economy, splitting causes of action[2] and the federal court may hear the entire case.  That Younger abstention did not apply because Mr. Knight lacked adequate remedy in the state’s courts for part of his claim was not challenged by the appellees.

          At the time Mr. Knight filed his Complaint, Document No. 1, he paid $2,505.59 during the years since he ceased working in June 1995.  Order, Document No. 43, page 2, ER 10.  Mr. Knight did not request damages for child support paid prior to June 1995, he requested that the amount he then paid be declared sufficient to meet whatever state’s interest is left after Troxel.   Subsequent to the Complaint, Mr. Knight was imprisoned on April 9, 2001 and again on May 2, 2001 and Paul H. King posted a total of $6,000.00 in bail to obtain his release.  Declarations of Roger W. Knight, Document Nos. 41 and 45, not included in the Excerpts of Record.  The defendants did not set forth any specific facts that Mrs. Schmitz needed any of these funds since June 1995 to adequately care for the children.

          Therefore, summary judgment was appropriate pursuant to the standards set forth in Reeves v. Sanderson Plumbing Prod., Inc., (2000) 147 L. Ed. 2d. 105, 120 S. Ct. 2097, 2110; Anderson v. Liberty Lobby, Inc., (1986) 477 U.S. 242, 91 L. Ed. 2d. 202, 106 S. Ct. 2505; Celotex Corp. v. Catrett, (1985) 477 U.S. 317, 322-323, 91 L. Ed. 2d. 265, 106 S. Ct. 2548; and Adickes v. S.H. Kress & Co., (1970) 398 U.S. 144, 158-159, 26 L. Ed. 2d. 142, 90 S. Ct. 1598.  Once genuine issues of material fact are resolved, then the matter is whether the district court applied the relevant substantive law.  Jones v. Union Pacific R.R. Co., (9th Cir. 1992) 968 F. 2d. 937, 940.  That is what is at issue in this appeal.

B.          Rooker-Feldman Doctrine Does Not Apply to an Independent Action for Relief From an Old Judgment Based Upon Subsequent Change in Law.

 

          Rooker-Feldman doctrine is derived from Rooker v. Fidelity Trust Co., (1923) 263 U.S. 413, 68 L. Ed. 362, 44 S. Ct. 149 and District of Columbia Court of Appeals v. Feldman, (1983) 460 U.S. 462, 75 L. Ed. 2d. 206, 103 S. Ct. 1303.  There are two views of Rooker-Feldman doctrine: 1) It is a res judicata doctrine that federal courts should grant final judgments of state courts the same res judicata effect that the state’s own courts would give it.  And 2) It is a statutory jurisdictional doctrine that only the Supreme Court, pursuant to 28 U.S.C. §1257, may review the final decision of a state court of last resort and that none of the jurisdictional statutes grant the federal district courts appellate jurisdiction to review a state court judgment.[3]  This latter view was adopted by the district court, Order, Document No. 43, page 4, ER 12 lines 4-15, applying the doctrine to both direct review and to collateral attack.[4]

          Feldman at 460 U.S. 482-483 draws a clear distinction between review of a particular state court judgment and a general challenge to the constitutionality of the underlying state law or procedure:

To the extent Hickey and Feldman mounted a general challenge to the constitutionality of Rule 46I(b)(3), however, the District Court did have subject matter jurisdiction over the complaints.

 

Same was found in Dubinka v. Judges of Superior Court, (9th Cir. 1994) 23 F. 3d. 218, 221.  Dubinka found that while the district court had subject matter jurisdiction over the constitutional challenge to the state law, Younger abstention doctrine applied because parties had adequate remedy in the state courts.  This is not the case with Mr. Knight, he is precluded from part of the relief he requests by RCW 26.09.170(1).  The district court has jurisdiction over the challenge to the validity of chapter 26.19 RCW on the basis that it violates the Fourteenth Amendment by denying the fundamental rights determined in Troxel v. Granville.

          Olson Farms, Inc. v. Barbosa, (9th Cir. 1998) 134 F. 3d. 933, 937, quoting Robinson v. Ariyoshi, (9th Cir. 1985) 753 F. 2d. 1468, 1472:

Where state court refused to decide federal issue, our decision of that issue will not be a review of state court decision and will not be barred on jurisdiction or res judicata grounds.

 

In the case of a state court decision rendered more than 90 days prior to Troxel, thereby any relief as may be available by Supreme Court review having become unavailable by the passage of time, granting relief from the state court judgment on the basis of Troxel is not a review of the state court judgment.  The Washington courts did not have Troxel to consider before June 5, 2000.

          FRCP 60(b) provides for vacation of judgment on the grounds including  any other reason justifying relief from the operation of the judgment.  A motion to vacate a judgment is not a direct review of the judgment, Polites v. United States, (1960) 364 U.S. 426, 437, 5 L. Ed. 2d. 173, 81 S. Ct. 202:

The validity of the District Court’s interpretation of §305 is not before us; we are not here directly reviewing the 1953 decision.  We hold only that the decisions in Maisenburg and Nowak were not effective to alter the law controlling the petitioner’s case.

 

The implication is that if Nowak v. United States, (1958) 356 U.S. 660, 2 L. Ed. 2d. 1048, 78 S. Ct. 955 and Maisenberg v. United States, (1958) 356 U.S. 670, 2 L. Ed. 2d. 1056, 78 S. Ct. 960 were effective to alter the law, then relief from the 1953 judgment could be had without directly reviewing the judgment.  Polites made its decision on the merits of whether the subsequent decisions were effective to alter such law and to justify relief from the previous judgment.

          This is where the district court made the error.  None of the decisions cited by the district court on page 4, ER 12, of its Order, Document No. 43, which found that while the Supreme Court is the only federal court that has jurisdiction to directly review final state court judgments, extend this finding to collateral attack or independent action for review from old judgment.  Rooker, Feldman, Worldwide Church of God v. McNair, (9th Cir. 1986) 805 F. 2d. 888, Olson Farms, and Dubinka, are all silent on this issue.

          However, Worldwide Church at 805 F. 2d. 892 quoting Robinson at 753 F. 2d. 1472 suggests that when an independent action is brought for relief from an old judgment based upon a change in law or circumstances, the court exercises original jurisdiction in such a claim:

Faced with the task of deciding our power to review constitutional issues which arise from a state court proceedings, we view the res judicata requirement of full and fair opportunity to litigate, and the Feldman “inextricably intertwined” barrier as two sides of the same coin.  Under the rubric of either “jurisdiction” or “res judicata,” the crux of the question is whether there has already been actual consideration of and a decision on the issue presented.  If consideration has been accomplished, action in federal court is an impermissible appeal from the state court decision.  If no consideration has been given, or any decision on the matter is ambiguous, it is unlikely that the issues presented to the state high court and to the federal court are so “inextricably intertwined” that the federal court cannot take jurisdiction. (citations omitted).

 

The child support judgment from which Mr. Knight seeks relief was rendered long before June 5, 2000 and Troxel was released long after any deadline for review by the Supreme Court under 28 U.S.C. §1257 has passed.  Therefore, the question that Mr. Knight seeks decision upon, does Troxel limit the state’s interest in imposing and enforcing child support to an amount less than originally imposed and does going beyond that limit violate the Fourteenth Amendment, is a question that he has not presented to the state’s courts.  The state’s courts have not made a decision on this very question (at least in any case involving Mr. Knight).  They cannot have made such a decision prior to June 5, 2000.

          Mr. Knight could bring an action or motion to modify the child support order in the Washington courts on the basis of Troxel.  The resulting decision could be appealed and ultimately, the Supreme Court of Washington can make a final decision.  Such final decision can be petitioned to the United States Supreme Court under 28 U.S.C. §1257, which would have jurisdiction to review the state court decision on the modification, even though the deadline for reviewing the original child support order has long passed.

          Obviously, such motion to modify a child support order is an exercise of the Superior Court of Washington’s original jurisdiction.  It is not a direct review of the child support order, because it would be based upon a subsequent change in the controlling law, Troxel.

          The problem for Mr. Knight is that RCW 26.09.170(1) flatly prohibits the Washington courts from modifying a child support order for months previous to the month such motion is brought.  This flatly prohibits relief for months prior to June 2000 on the basis of Troxel.  That is why Younger abstention does not apply and the district court has original jurisdiction under 42 U.S.C. §1983 to grant the child support modification that the state courts are prohibited by state statute from granting.

          Therefore Rooker-Feldman doctrine does not apply to this lawsuit.

C.      When Subsequent Decisions Change the Controlling Law.

          The Polites Court split 5-4, the majority opinion finding that the intervening decisions cited did not create new law effective to alter the law controlling the previous judgment.  The majority found at 364 U.S. 433 that it did not have to find that “relief under Rule 60(b) is inflexibly to be withheld when there has later been a clear and authoritative change in governing law.”  The dissent at 364 U.S. 437-440 found that FRCP 60(b) can be used to grant relief from a judgment when a subsequent court decision changes the controlling law. This split decision left the issue open and the circuits have since split as to whether and what extraordinary circumstances are necessary for a subsequent decision to provide grounds for relief from judgment.  An opportunity to clarify this issue might have occurred in Fiore v. White, (2001) 148 L. Ed. 2d. 629, 121 S. Ct. 712 (Fiore II), but the Pennsylvania court answered that its subsequent decision did not change the state law, it was the correct reading of the law at the time of the previous conviction.

          The Tenth Circuit has decided this issue firmly in favor of the party seeking relief from judgment.  Adams v. Merrill Lynch, (10th Cir. 1989) 888 F. 2d. 696, 702, “In this circuit, a change in relevant case law by the United States Supreme Court warrants relief under Fed.R.Civ.P. 60(b)(6).” citing Pierce v. Cook & Co., (10th Cir. 1975) 518 F. 2d. 720-722-724 cert den 423 U.S. 1079.

          But this Court, in Tomlin v. McDaniel, (9th Cir. 1989) 865 F. 2d. 209, 210 found that a change in the law after a judgment became final is not a sufficient basis for vacating judgment.  One example of this would be a case of a mixed race couple who challenged a state antimiscengenation statute as offensive to the Fourteenth Amendment and lost.  Then Loving v. Virginia, (1967) 388 U.S. 1, 18 L. Ed. 2d. 1010, 85 S. Ct. 1817 strikes down such state laws.  The mixed race couple sues for relief from the previous judgment based upon Loving.  In the Tenth Circuit, under Adams, there is no question that the couple would be entitled to relief.  But this Court in Tomlin did not consider it a sufficient basis for relief.

          Then In re Pacific Far East Lines, Inc., (9th Cir. 1989) 889 F. 2d. 242 found that a subsequent clarification could, in conjunction with other circumstances, warrant relief from judgment.  The consequences of denying a mixed race couple the right to wedded bliss might be the “other circumstances”.

          Likewise, the on-going nature of a child support order and its enforceability by contempt proceedings, arrest, and imprisonment, and by license suspension, are extraordinary circumstances.  The clash between the state’s interest in the support of the children and the fundamental rights of the parents, including noncustodial parents, in making decisions as to custody, care, control, and education of their children, the millions of such cases nationwide, are extraordinary circumstances.

          Clifton v. Attorney General of California, (9th Cir. 1993) 997 F. 2d. 660, 665 found that a district court could not grant FRCP 60(b) relief if the moving party did not bring the motion timely.  The circumstances of that case might have been considered extraordinary had the party brought the motion timely, and relief from judgment could have been granted.  Mr. Knight filed his Complaint, Document No. 1 on November 3, 2000, about five months after Troxel was released.  Mr. Knight’s Complaint is timely.

          An extraordinary circumstance is where the subsequent decision leads to a finding that the statute under which the previous judgment was obtained is unconstitutional.  In this case chapter 26.19 RCW is alleged by Mr. Knight to be unconstitutional on its face.  Ex parte Young, (1908) 209 U.S. 123, 157-168, 52 L. Ed. 714, 28 S. Ct. 441 and Norton v. Shelby County, (1886) 118 U.S. 425, 442, 30 L. Ed. 178, 6 S. Ct. 1121 each found that unconstitutional statutes are null and void.  It follows that judgments based upon unconstitutional statutes are null and void.  Thus FRCP 60(b) allows a court in an independent action under 42 U.S.C. §1983 to grant the relief from the judgment because it creates no legal right.  This is one reason this Court, at least with Supreme Court decisions such as Troxel, should adopt the Tenth Circuit’s approach set forth in Adams.

D.      Troxel Changed the Law by Conclusion that the Fourteenth Amendment Restricts State’s Interest and Protects Parents’ Rights to an Extent Not Previously Established

 

          In Troxel v. Granville, (2000) 530 U.S. 57, 147 L. Ed. 2d. 49, 120 S. Ct. 2054, 2060 Justice O’Connor found:

In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

 

And struck down RCW 26.10.160(3) which provided that nonparents may bring action in the state’s Superior Courts to establish visitation orders.  The extensive precedent she cited: Meyer v. Nebraska, (1925) 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625; Pierce v. Society of Sisters, (1925) 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571; Prince v. Massachusetts, (1944) 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438; Stanley v. Illinois, (1972) 405 U.S. 645, 31 L. Ed. 2d. 551, 92 S. Ct. 1208, which found that such rights belonged to an unwed father; Wisconsin v. Yoder, (1972) 406 U.S. 205, 32 L. Ed. 2d. 15, 92 S. Ct. 1526; Quillon v. Walcott, (1978) 434 U.S. 246, 54 L. Ed. 2d. 511, 98 S. Ct. 549; Parham v. J.R., (1979) 442 U.S. 584, 61 L. Ed. 2d. 101, 99 S. Ct. 2493; Santosky v. Kramer, (1982) 455 U.S. 745, 71 L. Ed. 2d. 599, 102 S. Ct. 1388; and Washington v. Glucksberg, (1997) 521 U.S. 702, 138 L. Ed. 2d. 772, 117 S. Ct. 2258.

          Justice O’Connor also found at 120 S. Ct. 2061:

Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.

 

To the extent that “adequately cares for his or her children” can be reduced to the monetary expense of supporting her children, then what the parent does with the rest of her money is none of the government’s business.  The Supreme Court has recognized that noncustodial parents are also protected by substantive due process in their fundamental rights, Zablocki v. Redhail, (1978) 434 U.S. 374, 384-386, 54 L. Ed. 2d. 618, 98 S. Ct. 673.

           Under Troxel, there is no legitimate or compelling interest of government beyond the minimum level of support necessary to “adequately care for his or her children” that can justify the modification of a Constitutional right.  Chapter 26.19 RCW, upon which the child support order is based, ER 35, page 5 of Findings of Fact, Conclusions of Law, and Decree of Dissolution attached to Knight Declaration, Document No. 2; ER 40-41, Id. pages 9-10, is unconstitutional on its face to the extent that it is based upon the Legislative intent not only to provide the minimum level of support necessary to adequately care for the child, but “to provide additional child support commensurate with the parents’ income, resources, and standard of living.” RCW 26.19.001.

          Even if the custodial parent has substantial resources and income, the effect of the support schedule in RCW 26.19.020 provides small reduction in the noncustodial parent’s obligation.  The total obligation of both parents is presumed to increase with the total income, divided among the parents in proportion to their respective shares of the income.

          Example 1: Noncustodial earns net income (after federal taxes) of $1,800 per month and is responsible for three children under age 12.  Custodial earns no income.  Combined income is $1,800 per month.  Support obligation based upon the Economic Table, RCW 26.19.020, $251 per month per child, is $753.00 per month.  As noncustodial earns all of the combined income, he is responsible for all of the support obligation.

          Example 2: Noncustodial earns net income of $1,800 per month.  Custodial earns net income of $3,000 per month.  Combined income: $4,800 per month.  The combined support obligation based upon the Economic Table, $463 per month per child, is $1,389 per month.  Noncustodial’s portion: 1800/4800 X $1,389 = $520.88 per month[5].

          The large increase in income earned by the custodial leads to a small decrease in obligation by the noncustodial.  The custodial parent’s presumed portion of the obligation, 3000/4800 X $1,389 = $868.12, is more than sufficient to “adequately care for his or her children”.  Thus, under Troxel, the State has no interest of government that justifies imposing any support order upon the noncustodial parent.  The noncustodial may still contribute to the support of the child, the two parents may work things out in some other way, but the State must stay out of it as long as the child is adequately supported.

          There is one other consideration.  Noncustodial parents do not enjoy their “fundamental right of parents to make decisions concerning the care, custody, and control of their children”.  Certainly not when it comes to the money they supply through the child support system.  Whatever their objections to how it is spent, the courts have heretofore not recognized their right to suspend payment.  Ordinarily, a college student dependent upon parental support will pursue a degree that the parent is willing to pay for.  But if there is a support order involved, she does not have to, she can sue to enforce payment, whatever her divorced parent thinks of her course of study.[6]

          Because of Troxel and Yoder, supra the state does not have an interest in enforcing any post majority support order for any kind of postsecondary education.  Educational decisions are to be made by the parents, not by the state, as long as the parents allow enrollment in the public schools or otherwise provide for education up to the Eighth Grade.

            Troxel thus overruled P.O.P.S. v. Gardner, (9th Cir. 1993) 998 F. 2d. 764.  Troxel clearly found that as long as the parent is adequately caring for his or her children, then his or her fundamental right to make decisions as to custody, control, care, and education of his or her children are protected by the Fourteenth Amendment and therefore trumps the State’s interest in the welfare of its children.  Therefore, mere fact that a child support schedule law is rationally related to the admittedly legitimate State interest in the support of the children, even if true, does not excuse such a fundamental interference in the Fourteenth Amendment rights of the parent as represented by the legislative intent to provide additional child support commensurate with the parents’ income, resources, and standard of living, RCW 26.19.001.

          Duranceau v. Wallace, (9th Cir. 1984) 742 F. 2d. 709 only considered the validity of state enforcement procedures of a child support order, specifically the garnishment of a judgment won by a noncustodial parent, it did not consider validity of the amount of the order.  It found that the State has a strong governmental interest in the support of children, but did not make any finding as to the limit of that interest.  Troxel established the limit.

          The appellees argued that a noncustodial parent has as much fundamental and natural law duty to support his children as the custodial parent.  See also United States v. Ballek, (9th Cir. 1999) 170 F. 3d. 871, cert. den. 145 L. Ed. 2d. 114, 120 S. Ct. 318.  But if that be the case, how then do noncustodial parents not enjoy the same fundamental rights as custodial parents with respect to making decisions as to custody, control, care, and education of their children without state second guessing their decisions and interference through the courts as established in Troxel and the decisions cited therein?  Indeed, how can noncustodial parents be denied equal protection of state constitutions that prohibit imprisonment for debt?  One of the purposes of the Fourteenth Amendment is to protect minorities from having imposed upon them obligations and restrictions that elected officials would not dare impose upon the general population.  Appellees want it both ways: Equal fundamental obligations to support the children as justification to exceed Constitutional restrictions upon state action with respect to noncustodial parents, without equal fundamental rights to make decisions concerning the care of the children to be enjoyed by noncustodial parents.

          Therefore, chapter 26.19 RCW is unconstitutional on its face and Mr. Knight is entitled to the relief he requests.

VI.          CONCLUSION

          For the reasons stated herein, the Order Granting Defendants’ Motions for Summary Judgment, Document No. 43, ER 9-15 and the Judgment, Document No. 44, ER 8, should be reversed or vacated and this case be remanded for further proceedings consistent with such reversal.

Respectfully submitted this 23d day of May, 2001,

 

                                       _______________________________

                                                Roger W. Knight, appellant pro se