Private defensive litigation and the state role

The Third Circuit declared valid a New Jersey law requiring noncustodial parents, at the request of the custodial parents, to continue paying child support past the child's nineteenth birthday where the child is a full-time college student; the law does not impose such an obligation on custodial parents. Merits aside, I do not understand how this case reached federal court; that it did again illustrates how often courts and litigants--including the government--misunderstand or ignore the boundaries between offensive and defensive (and federal and state) constitutional litigation.

Pittman is the noncustodial parent. Pittman's ex-wife requested in state court continuation of the support obligation because their daughter was a full-time college student. The state court agreed and ordered three more years of support. Pittman sought relief from that obligation.

Pittman filed a § 1983 action in federal court. According to the district court, Pittman sued the governor and attorney general; the court granted a motion to dismiss, in part, because the governor and attorney general, as executive officials, have "no power to codify, amend, or abolish the laws Plaintiffs challenge, because that power is vested solely in the state legislature." Pittman filed an amended complaint naming the attorney general and the head and assistant head of the state Office of Child Support Services. All defendants moved to dismiss on Younger and Rooker-Feldman grounds; the district court denied the motions (rightly), then reached the merits and declared the law valid. No defendant raised "you sued the wrong person" as to the amended complaint. The court of appeals affirmed on the merits.

It seems to me the state defendants (and the district court) all misunderstood  why they are the wrong defendants and why the court should have dismissed the federal action . As far as I can tell from looking at New Jersey law, none of the executive officers is responsible for enforcing these laws. These laws govern family-court proceedings between private parties. Although the commissioner has rulemaking authority, the lawsuit did not challenge those regulations. The government, including these officials, plays no role in enforcing this law. The correct argument should have been that neither the governor nor AG is responsible for enforcing the challenged law, therefore the court could not enjoin them from doing so. Whether framed as standing, Eleventh Amendment, or merits, a federal court cannot enjoin an official from doing something he lacks the state-law power to do.

In other words, offensive litigation in federal court should not have been an option; this case required defensive litigation in state court. In resisting the continuation of the support obligation in the action against his ex, Pittman should have argued that the law allowing his child-support obligations to continue was constitutionally invalid, appealed that determination through the New Jersey courts and then to SCOTUS (if he lost--if he won, his ex-wife could have appealed). The challenge to the law should have proceeded like a challenge to a suspect state tort-reform provision--apply the provision in an actual tort case and adjudicate challenges to its validity.

Yet everyone missed this.

The governor and AG's argument as to the original complaint--"we cannot create or change the challenged law, that is the legislature's job"--is stupid. Taken seriously, the executive would never be a proper defendant in a constitutional challenge to a law because the legislature always controls the challenged laws. But the executive normally is the right defendant because constitutional litigation challenges the enforcement of the law, not the law itself--and the executive is  responsible for that. That is not true in this case because of the nature of the particular challenged law at issue. But not for the reasons the officials argued.  For the same reason, the three defendants in the amended complaint erred in not raising the same "wrong defendant" argument--we do not enforce this law.

So why did everyone mess up? At some level, I wonder if state officials prefer to litigate federal issues in federal court rather than state court. Why? The path to SCOTUS is one step shorter in federal court, but that does not seem a big deal. More importantly, I wonder if state officials buy the common idea that federal courts "do" federal law better than state court--they get federal law right--and that works as much for state governments seeking to argue their laws are valid as for rights-holders seeking to challenge their validity. State officials would rather defend an EpY action in federal court than litigate as interested parties in private state-court litigation, despite the purported "home-court advantage" in their courts.