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Wednesday, April 05, 2017

Your Fed Courts/Civil Rights Exam

Identify the problems with this complaint: The victims who will testify in the Michigan sexual-abuse prosecution Lawrence Nassar, the former doctor for USA Gymnastics. The witnesses have sued the criminal trial judge, the attorney general, and Nassar, challenging a gag order the judge imposed on the witnesses (on Nassar's motion), alleging it violates due process and the First Amendment. Where to begin?

• The claims against Nassar rest on the conclusion that a criminal defendant acts under color of law when performing ordinary, presumptively lawful litigation maneuvers, such as making motions. That is a dangerous idea.

Rooker-Feldman bars federal constitutional claims seeking relief from an injury caused by a state court order. And the Sixth Circuit is part of the majority of circuits holding that RF applies to interlocutory judgments. I see no way around that in this case, as even the Deadspin commentators recognize.

• The appropriate move should be for the witnesses to intervene and/or to file a motion in the criminal court challenging the gag order, which non-parties can do to challenge orders that affect their interests (for example, what newspapers do to challenge orders that cut-off access to the court). I suppose the move after that would be to mandamus the judge in the state appellate or supreme court--and, if necessary, move the issue to SCOTUS after a final judgment on the mandamus. A federal § 1983 action is nowhere on the list of appropriate strategies.

Posted by Howard Wasserman on April 5, 2017 at 09:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


Rooker-Feldman doesn't seem to apply to non-parties. Lance v. Dennis, 546 U.S. 459 (2006).

Posted by: Rooker | Apr 6, 2017 9:44:15 PM

I thought about that. But in Lance, the federal plaintiffs had no way to participate in the relevant state-court action, which was an original action in the state supreme court between two executive-branch officials. Here, the plaintiffs have procedural options in state court--motion for reconsideration, intervention, mandamus--that obviate the need for a § 1983 suit.

Posted by: Howard Wasserman | Apr 7, 2017 1:11:48 AM

It doesn't seem like the availability of procedural options is relevant to the Rooker-Feldman analysis or 1983. Both are rooted in federal statutes, and neither statute looks to the availability of state court remedies. If the witnesses first appealed in state court, then Rooker-Feldman would apply.

Posted by: Rooker | Apr 7, 2017 1:55:06 PM

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