The Open Door
Note To All: Thank you for the wonderful and encouraging offline comments and responses to my previous posts. My heart is warmed in your kind words and well wishes towards my success in these articles. Special thanks to “the Biggest Daddy of them all” Robert Pedersen, whose masterful forethought brought me to this opportunity!
Big Daddy
Recently, Mr. Parker posted the following: “While I agree with your principle that it is time to find a way to assert some federal rights for fathers, the courts have historically found that under the 10th Amendment to the Constitution, regulating marriage and family matters are reserved to the States. It will take a serious national dialog and effort to move in the direction of some kind of federal involvement. Interestingly enough, it may take a "marriage amendment" to the Constitution to open that door.”
Thank you for the comment! Notwithstanding, your suggestion that there is need for legislative changes, to this I aver, but on the contrary the door is already open in the Federal Courts.
For years the Federal Courts have routinely barred Civil Rights Claims under 42 USC 1983 with Abstention Doctines, most notably the Rooker-Feldman Abstention. Without digressing too deeply into the law, Rooker barred prospective Federal litigants as state courts’ losers, seeking to appeal their losses. This is in application of 28 USC § 1257, which legislates the US Supreme Ct as the only Court authorized to hear appeals of state court’s decisions. Feldman, on the other hand, was a poor US Supreme Ct. decision that has wrecked havoc on fathers for twenty-five years. This is not the case anymore. The door has opened! Let’s walk through that door!
I. The Rooker Feldman Abstention Doctrine is Inapplicable
In Lance v Dennis, Justice Ginsberg opined at [462], “the Rooker-Feldman doctrine, the court explained, includes three requirements: (1) "the party against whom the doctrine is invoked must have actually been a party to the prior state-court judgment or have been in privity with such a party"; (2) "the claim raised in the federal suit must have been actually raised or inextricably intertwined with the state-court judgment"; and (3) "the federal claim must not be parallel to the state-court claim.” 379 F. Supp at 1124;
In Lance v Dennis, Justice Stevens, in his Dissent, characterized Rooker-Feldman, “Rooker and Feldman are strange bedfellows. Rooker, a unanimous, three-page opinion written by Justice Van Devanter in 1923, correctly applied the simple legal proposition that only this Court may exercise appellate jurisdiction over state-court judgments. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct 149; 68 L. Ed. 362. Feldman, a non-unanimous, 25-page opinion written by Justice Brennan in 1983, was incorrectly decided and generated a plethora of confusion and debate among scholars and judges. See District of Columbia [*468] Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206; id. at 488, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (STEVENS, J., dissenting);
Last Term, in Justice Ginsburg's lucid opinion in Exxon Mobil Corp v. Saudi Basic Industries Corp, 544 U.S. 280, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005), the Court finally interred the so-called “Rooker-Feldman doctrine.” And today, the Court quite properly disapproves of the District Court's resuscitation of a doctrine that has [**1204] “produced nothing but mischief for 23 years.”
The US Supreme Court in Exxon-Mobile clearly opines, as this Plaintiff's Claim asserts, “no federal court has ever abstained for want of jurisdiction.” See also Lance v. Dennis, where Justice Ginsberg opines, further limiting Rooker-Feldman, again, in not applying to federal court abstention for claims “for a court's want of jurisdiction.”
Justice Ginsberg opining on Rooker-Feldman at [284], “In Rooker v. Fidelity Trust Co., 263 U.S. 413, 68, L. Ed 362, 44 S. Ct. 149, the parties defeated in state court turned to a Federal District Court for relief. Alleging that the adverse state-court judgment was rendered in contravention of the Constitution, they asked the federal court to declare it "null and void." Id., at 414-415, 68 L. Ed. 362, 44 S. Ct. 149. This Court noted preliminarily that the state court had acted within its jurisdiction [emphasis added].”;
Further in Exxon-Mobile, Justice Ginsberg opining on Rooker-Feldman at [283], “Variously interpreted in the lower courts, the doctrine has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases, overriding Congress' conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of [***461] preclusion law pursuant to 28 USC § 1738 [28 USCS § 1738]. See, e.g., Moccio v. New York State Office of Court Admin., 95 F.3d 195, 199-200 (CA2 1996). Exxon-Mobile v Saudi Basic Industires, Inc. 544 U.S. 280, 283; 125 S. Ct. 1517; 161 L. Ed. 2d 454; 2005 U.S. LEXIS 2929; 73 U.S.L.W. 4266; 18 Fla. L. Weekly Fed. S 206.”;
In Exxon-Mobile, Justice Ginsberg opining on Rooker-Feldman at [287], “Since Feldman, this Court has never applied Rooker-Feldman to dismiss an action for want of jurisdiction.”;
In Plaintiff's case at bar: 1) Plaintiff has filed for Declaratory and Injunctive Relief under FRCP 57 & 60, 28 USC §2201, 42 USC §1983, and other causes of action. As noted in this Court Order, Plaintiff is seeking “to declare them [State orders] Void [Ab Initio]” for want of statutory authority, i.e. for Want of Jurisdiction; 2) Plaintiff's State Orders and Judgement of Divorce were not rendered in a state of Jurisdiction, i.e. there is no “finality” or “outstanding final judgment.” A ruling without jurisdiction is a Nullity, never has Vitality under the Law - at no time in Rooker or Feldman did the Plaintiffs allege that the trial court lacked Jurisdiction to adjudicate, but rather that they claimed judgments were voidable as unconstitutional;
The US Supreme Court held in Valley v. North Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116, that courts cannot go beyond that power delegated to them. If they act beyond that authority their judgments and orders are regarded as nullities. They are simply void, and this even prior to reversal. There is no time limit to Vacate a Void order, for once Void, it is Void forever. Fed. Rule of Civ. P. 60(b) explicitly exempts an independent action to address a Void Judgment from the one-year statutory limitation. See also: Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997; Old Wayne Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12 L. Ed, 1170, 1189, (1850); Rose v. Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808);
The US Supreme Court held in Mitchum v. Foster, 407 US 225, that injunctive relief is permitted in a 42 USC §1983 action. “The very purpose of 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights - to protect the people from unconstitutional action under color of state law, “whether that action be executive, legislative, or judicial.” [Mitchum, supra, quoting] Ex parte Virginia, 100 U.S., at 346.” “For these reasons we conclude that, under the criteria established in our previous decisions construing the anti-injunction statute, §1983 is an Act of Congress that falls within the “expressly authorized” exception of that law.” Supra at 243.
Again, I say, “Let’s walk through that open door!”
Big Daddy
Today, July 27, 2008 is National Parent’s Day! For all of you non-custodial fathers, who have your kids today, give them a hug for Big Daddy and the rest of us, who do not have our children this day!
