- Jacobsen s affidavit as to the hardship imposed on his enterprise by the effect of the administrator s actions has not been refuted. The balance of hardshipsMessage 1 of 1 , Jun 1, 2003View Source
"Jacobsen's affidavit as to the hardship imposed on his enterprise by
the effect of the administrator's actions has not been refuted. The
balance of hardships tips sharply in his favor. Where the precious
(First Amendment) right of freedom of the press is at issue, the
prevention of access to a public forum is, each day, an irreparable
injury; the ephemeral opportunity to present one's paper to an
interested audience is lost and the next day's opportunity is
different. Raising a serious question of constitutional dimensions,
he has met the conditions necessary to secure a preliminary
injunction." Jacobsen v. U.S. Postal Service, 812 F.2d 1151 (9th Cir.
Hon. Robert E. DeMascio, Judge, U.S.D.C. E.D. Michigan, Southern
Div., matter 85CV7458DT, Committee to End Racism v. Mansour
"...(the Plaintiffs contend)...that (the statute) creates racial
discrimination without reasonable basis and thus results in
arbitrary, invidious racial discrimination, violative of the Equal
Protection Clause of the Fourteenth Amendment...
"... (the Defendants) argue that the right of adoption is not even a
natural right, but exists only when created by statute, and we should
therefore defer to the wisdom of the Louisiana legislature and make
no constitutional inquiry into the State's determination that it
would not be in the child's best interest to be adopted by parents of
a different race."
"Any statute containing racial classifications is `constitutionally
suspect,' Bolling v. Sharpe, 347 U.S. 497,499, 74 S.Ct. 693,694, 98
L.Ed. 884; see McLaughlin v. Florida, Loving v. Virginia...."
"Cognizant of the realities of American society, this Court would
agree that an interracial home in Louisiana presents difficulties for
a child, including the possible refusal by a community to accept the
child, and other community pressures, born of racial prejudice, on
the interracial family. A determination of reasonableness of racial
classification in this statute would seem to follow recognition of
such difficulties, but we regard the difficulties inherent in
interracial adoption as justifying consideration of race as a
relevant factor, and not as justifying race as the determinative
"(Defendants) do not urge, nor could they successfully do so, that
given the alternatives of institutional life, foster home care or an
interracial family home, the institutional life or foster home care
would prevail in all instances over the interracial family in serving
the best interests of the child.
"When the advantages of family life in promoting personality
development and social adjustment are considered, the disadvantages
of interracial adoption cannot be said to outweigh in all cases the
advantages of a home and family life to a child whose only
alternatives are institutional life or foster home care. It is
obvious, therefore, that the Louisiana statute making race the
decisive factor in adoption subordinates the child's best interests
in some circumstances to racial discrimination. The statute thus
promotes not the child's best interests but only the integrity of
race in the adoptive family relationship.
"We have concluded that the Louisiana adoption statute cannot be
justified under equal protection scrutiny. The necessity of racial
matching of parent, or parents, and child in adoption to promote the
best interests of the child, and the reasonableness of that racial
classification in light of that purpose cannot be sustained. The
plaintiffs are entitled to the declaratory and injunctive relief
sought." Compos v. McKeithen, 341 F.Supp. at 264 (E.D.La. 1972)
In Drummond v. Fulton County Dept. of Family and Children's Services,
563 F.2d 1200 (1977)in that the District Court found that
"race was not used in an automatic fashion to reject foster parents'
application to adopt," Drummond id. at 1204.
"The only cases which have addressed this problem indicate that,
while the automatic use of race is barred, the use of race as one of
the factors in making the ultimate decision is legitimate." Drummond
id. at 1205.
"Proof that the decision by the Village was motivated in part by
racially discriminatory purpose would not necessarily have required
invalidation of the challenged decision. Such proof, however, would
have shifted to the Village the burden of establishing that the same
decision would have resulted even had the permissible purpose not
been considered." Village of Arlington Heights v. Metro. Housing
Dev., 97 S.Ct. 555 (1977)
"The question, however, is whether the reality of private biases and
the possible injury they might inflict are permissible considerations
for removal of an infant child from the custody of its natural
mother. We have little difficulty in concluding that they are not.
The Constitution cannot control such prejudices but neither can it
tolerate them. Private biases may be outside the reach of the law,
but the law cannot, directly or indirectly, give them effect. `Public
officials sworn to uphold the Constitution may not avoid a
constitutional duty by bowing to the hypothetical effects of private
racial prejudice that they assume to be widely and deeply held.'
Palmer v. Thompson, 403 U.S. 217, 260-261, 91 S.Ct. 1940, 1962-1963,
29 L.Ed.2d 438 (1971)" Palmore v. Sidote, 466 U.S. 429, 104 S.Ct.
1879, 80 L.Ed.2d 421 (1984).
One or more of these types of classifications were certified in the
following-listed cases, including such foster or adoptive children by
and through their foster parents:
Child v. Beame, 412 F. Supp 593 (S.D.N.Y., 1976);
Smith v. Organization of Foster Families for Equality and Reform
(OFFER) et.al, note 7, 431 U.S. at 822, 97 S.Ct. at 2098(1977);
Wilder v. Bernstein, 499 F.Supp. 980 (S.D.N.Y. 1980);
Hennessey v. Wa. Dept. of Social & Health Services, 627 F.Supp. 137
Compos v. McKeithen, 341 F.Supp.264 (E.D.La. 1972)
Player v. Alabama Dept. of Pensions & Security, 400 F.Supp. 249
Stipulation for Settlement and Joint Motion for Order Confirming
Settlement, Civil Action 86-6682-CIV-Nesbitt, Kay, et.al., v. William
Page, Secretary of Florida Dept. of Health and Rehabilitative
Services, U.S.D.C., S.D. Fl., Ft. Lauderdale District.
YOUNGER FEDERAL ABSTENTION:
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), was an attempt
to prospectively enjoin a state criminal prosecution, and does not
provide an appropriate basis for abstention here. In concurrence,
Justices Stewart and Harlan stated:
"The questions the Court decides today are important ones. Perhaps as
important, however, is a recognition of the areas into which today's
holdings don not necessarily extend. In all of these cases, the Court
deals only with the proper policy to be followed by a federal court
when asked to intervene by injunction or declaratory judgment in a
criminal prosecution which is contemporaneously pending in a state
".... And since all these cases involve state criminal prosecutions,
we do not deal with the considerations that should govern a federal
court when it is asked to intervene in state civil proceedings,
where, for various reasons, the balance might be struck differently.
"Note 2. Courts of equity have traditionally shown greater reluctance
to intervene in criminal prosecutions than in civil cases. (citations
omitted) The offense to state interests is likely to be less in a
civil proceeding. A State's decision to classify conduct as criminal
provides some indication of the importance it has ascribed to prompt
and unencumbered enforcement of its law. By contrast, the State might
not even be a party in a proceeding under a civil statute." Younger
v. Harris, id., 401 U.S. at 56,57, 91 S.Ct. at 756, 757.
The Younger Court specifically distinguished its facts and narrowed
its scope from the decision in Dombrowski v. Pfister, 380 U.S. 479,
14 L.Ed.2d 22, 85 S.Ct. 1116 (1965), which may be a more appropriate
standard herein, affirming 42 U.S.C. 1981 et.seq. exercise of
jurisdiction regarding racially biased state action.
In reversing a Federal Court Younger abstention dealing with
"administrative ratemaking", the Supreme Court stated as follows:
"This Court has expanded Younger abstention beyond criminal
proceedings, and even beyond proceedings in courts, but never to
proceedings that are not "judicial in nature."
".... it has never been suggested that Younger requires abstention in
deference to a state judicial proceeding reviewing legislative or
executive action. Such a broad abstention requirement would make a
mockery of the rule that only exceptional circumstances justify a
federal court's refusal to decide a case in deference to the States."
New Orleans Public Service, Inc. v. Council of the City of New
Orleans, et.al., 491 U.S. 350; 109 S.Ct. 2506; 105 L.Ed. 2d 298
There is, regarding the thus far named Plaintiffs, and arguably, the
class(es) to which they belong, no ongoing state judicial proceeding
with which the Federal Court's injunctive relief would interfere.
"...there is.... no doctrine requiring abstention merely because
resolution of a federal question may result in the overturning of a
state policy." Zablocki v. Redhail, 434 U.S. 374, 380, n.5., 98 S.Ct.
673, 54 L.Ed.2d 618 (1978) (A Federal case, incidentally, which
involved Domestic Relations issues including child support and the
right to marry).
Neither the existing Juvenile Dependency actions nor the anticipated
Juvenile Severance (of parental rights) actions in Maricopa County
Superior Court are fora in which the unconstituionality of the ADES
administrative Policy number 5-65-09 may be properly placed at issue.
"D. Notice of the review and the right of participation in all
proceedings under this title pertaining to a child in foster care,
shall be provided by the juvenile court by certified mail unless the
court determines that another notification process is more
appropriate. Such notice shall be provided to:
"2. Any foster parents in whose home the child resided within the
last six months or resides at present, except for those foster
parents who maintain a receiving foster home."
"It is no answer that the State has a law which enforced would give
relief. The federal remedy is supplementary to the state remedy, and
the latter need not be first sought and refused before the federal
one is invoked." Monroe v. Pape, 365 U.S. 167 at 503, 5. L.Ed.492 at
503, 81 S.Ct. 473 (1961) 29
PULLMAN FEDERAL ABSTENTION
Abstention under the doctrine of Railroad Commission of Texas v.
Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.971 (1941) is
generally held to be possible when there is a state statute which is
vague or unclear, meriting a review and clarification by the State
Moreover, Defendants have failed to demonstrate, in requesting
Pullman abstention, the availability of a State Court mechanism for
dealing with the substantial federal constitutional issue raised
herein, nor with the urgent need to protect the class(s) of
Plaintiffs herein defined.
McMillan v. Goleta Water District, 792 F.2d 1453 (1986): The Ninth
Circuit found that the District Court did not abuse its discretion by
failing to abstain under Pullman because it found that a State Court
ruling on the issues (Agins. v. City of Tiburon, 24 Cal.3d 266, 157
Cal. Rptr 372, 598 P.2d 25 (1979)) did not dispose of the Federal
issues, and indeed created a judicial vacuum in which the second and
third Pullman criteria could not be satisfied.
"However, a federal court need not abstain merely because there
exists the abstract possibility that state courts might render
adjudication of the federal question unnecessary. Hawaii Housing
Authority v. Midkiff, 467 U.S. at 237, 104 S.Ct. at 2327. See also
Midkiff v. Tom, 702 F.2d at 789-90, n.1. Consequently, the district
court did not abuse its discretion by failing to abstain." McMillan
v. Goleta Water District, id at 792 F.2d 1459.
Suspension of Federal Proceedings to allow State Courts to make
certain decisions in certain cases, along the lines suggested by
Louisiana Power & Light v. City of Thibodaux, 360 U.S. 25, 79 S.Ct.
1070, 3 L.Ed.2d 1058 (1959) is impractical, because of the continuing
flow of children through various stages of the system.
BURFORD FEDERAL ABSTENTION
Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424
(1943). Burford abstention has been said to apply to State
Administrative proceedings, rather than judicial proceedings. It is
invoked when there is likelihood of a "multiplicity of review" in
numerous venues of the State Court system, and where the State has
therefore consolidated review of administrative orders in a single
authorized State Court venue.
DOMESTIC RELATIONS ABSTENTION
The Domestic Relations Abstention Doctrine raised by Defendants
citation of Csibi v. Fustos, 670 F.2d 134 (9th Cir., 1982) is
narrowly applied only to cases arising under Diversity Jurisdiction,
and even more narrowly, Diversity cases in which the Federal Court
would actually establish or modify the "relationship of husband to
wife, or parent to child."
"In a footnote, the district court stated that it arguably did not
have subject matter jurisdiction because the factual issues are
`within the ambit of those domestic relations matters which federal
courts have consistently declined to consider on their merits.'
Alsager v. District Court, 384 F.Supp at 650 n.3. We believe this
misconstrues the claims being made by the Alsagers. As discussed
above, the Alsagers do not challenge the substantive findings under
the Iowa standards. They challenge the standards themselves. And of
course, federal courts may and do entertain constitutional attacks on
a state's domestic relations laws. See e.g. Sosna v. Iowa, 419 U.S.
393, 95 S.Ct 553, 42 L.ed.2d 532 (1975); Loving v. Virginia, 388 U.S.
1, 87 S.Ct. 1817, 18 L.Ed. 2d 1010 (1967)." Alsager v. District Court
of Polk County, Iowa (Juvenile Division, 518 F.2d 1160 (1975).
Csibi v. Fustos was decided by the Ninth Circuit during an early
1980's period when the Ninth Circuit deviated in its abstention
policy from the courts of the 2nd, 4th, 5th, 7th and District of
Columbia Circuits, in declaring that Federal Courts lacked
jurisdiction of any case even remotely relating to Domestic
A petition for Certiorari was sought in the U.S. Supreme Court in
1982, in an attempt to have the high court resolve the conflict among
the Circuits on this issue. Hirschfeld v. Dreyer, 464 U.S. 816, 104
S.Ct. 74, 78 L.Ed. 2d 87 (Cert. Den., 1983), 692 F.2d 763. The case
had wended its way from this very District Court, through the Ninth
In 1985, the Ninth Circuit reversed its earlier, conflicting
abstention position as had been stated in Csibi v. Fustos, id., and
decided that Diversity Tort Suits sounding in "Domestic Relations"
were jurisdictionally permissible, so long as they did not actually
award or modify child custody. McIntyre v. McIntyre, 771 F.2d 1316
(9th Cir. 1985).
"In abstention cases the district court must exercise its
jurisdiction within the narrow and specific limits prescribed by the
particular abstention doctrine invoked. There is no discretion to
abstain in a case that does not meet the abstention requirements. C-Y
Development Co. v. City of Redlands, 703 F.2d 375,377 (9th Cir.
1983)" McIntyre v. McIntyre, id., 771 F.2d at 1319
Also in 1985, a District Court in the Eastern District of Washington
ruled Domestic Relations Abstention did not apply to a Federal
Question suit against a State Dept. of Social Services.
"In this action, plaintiffs seek redress for alleged violations of
their constitutional rights. Plaintiffs do not challenge the
competency of the state court in settling a domestic dispute. Nor is
this an area which is particularly suited to state regulation and
control. Cf. Csibi at 137. In this case, the subject of domestic
relations is peripheral to the issues presented. Federal courts are
not ousted of their jurisdiction merely because the suit arises in a
domestic relations context. Elam v. Montgomery County, 573 F.Supp.
797 (S.D. Ohio 1983). Accordingly, I hold that this court does have
jurisdiction....." Hennessey v. State of Washington, Department of
Social and Health Services, 627 F.Supp. 137 (E.D. Wash. 1985).
STANDING OF THE PLAINTIFFS
Defendants have cited Chrissy F. by Medley v. Miss. Dept. of Public
Welfare, 883 F.2d 25 (5th Cir. 1989) to somehow support their
position that the Foster Parent Plaintiffs herein should be denied
standing as "next friends" of the Plaintiff Children because of a
hypothetical "conflict of interest.".
But in Chrissy, the Fifth Circuit Court of Appeals found only that
there was a definite conflict between Chrissy and the natural parent
who had abused her. The court was only able to speculate as to
whether or not Donna Medley, who had been appointed Guardian ad Litem
by a court of a state different than the forum state, would
adequately represent Chrissy's interests. The Court of Appeals
reversed the District Court's dismissal, and remanded so that the
District Court could in its discretion make the determination.
"We do not hold that Medley should or should not be appointed
Chrissy's representative in this litigation. It is within the
district court's discretion to determine Chrissy's need for
representation and who may best fill that need. We merely hold that
the district court must either appoint a guardian ad litem or next
friend who qualifies under Mississippi law or enter a finding that
Chrissy's interests are adequately represented without such an
appointment." Chrissy, id., 883 F.2d at 27.
Defendants' citing of dictum from Lenhard v. Wolff, 443 U.S. 1306,
1312 (1979) is particularly ludicrous, since that case involved a
last-ditch attempt by court-appointed attorneys to stay the execution
of a convicted murderer, while he himself asserted a "suicidal"
demand to be executed.
Ankenbrandt v. Richards, 112 S.Ct. 2206 (1992) (Affirmining Burrus
abstension doctrine but limiting it to custody and divorce granting.
Rule 53, ARCP has indeed been invoked in Divorce matters, but
undersigned counsel is unable to find any appellate precedent for
turning the psychological evaluation permitted under ARS 25-334(B)
and ARS 25-335, into an independent judicial proceeding.
"B. The court may seek the advice of professional personnel, whether
or not employed by the court on a regular basis. The advice given
shall be in writing and shall be made available by the court to
counsel, upon request, under such terms as the court determines.
Counsel may examine as a witness any professional personnel consulted
by the court, unless such right is waived." ARS 25-334(B)
"A. In contested custody proceedings, and in other custody
proceedings if a parent or the child's custodian so requests, the
court may order an investigation and report concerning custodial
arrangements for the child. The investigation and report may be made
by the court's social service agency, the staff of the juvenile
court, the local probation or welfare department, or a private agency
employed by the court for the purpose." ARS 25-335(A)
The usual Rule 53 invocation concerns complicated property and
financial matters, in which the "Master" deals with valuation of
professional practice, management pendente lite of large or
complicated estates, and the like. Hanner v. Hanner, 95 Ariz. 191
The Court may take judicial notice that the appointment of a
psychologist as an expert and advisor, from the approved list is
commonplace in Maricopa County Superior Court. However, the peculiar
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