Rooker and Feldman and Treason | Season 4, Ep. 1 – New Season

Bound By Oath by IJ

This episode explores the Rooker-Feldman doctrine, a legal rule that allows federal judges to decline jurisdiction over cases involving state

Key takeaways

• The Rooker-Feldman doctrine acts as a subject matter jurisdiction bar that can prevent federal courts from hearing constitutional claims.
• William Rooker was an Indiana lawyer who handled high-profile cases involving lynching victims and the Ku Klux Klan.

Main topics

• Rooker-Feldman Doctrine
• Subject Matter Jurisdiction

Notable quotes

The one or the other would be treason to the Constitution.

Conclusion

The episode provides a compelling argument for overturning or narrowin

Transcript preview

Speaker 1 (0:02) In 1821, in the case of Coens v. Virginia, Chief Justice John Marshall wrote some immortal words that are foundational to our law today. The Supreme Court, he said, must decide the cases that are properly before it. Quote, With whatever doubts, with whatever difficulties a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given. than to usurp that which is not given. The one or the other would be treason to the Constitution. Speaker 1 (0:38) Hello and welcome to Season 4 of Bound by Oath, a podcast about legal and constitutional history brought to you by the Institute for Justice's Center for Judicial Engagement. We are back, and on this season, we will explore a little bit of light treason. Doctrines that the Supreme Court have invented over the last hundred years that let federal judges decline to hear cases that are properly before them. Cases that they are bound by law. bound by the Constitution, and bound by oath to hear. Speaker 1 (1:11) Way back on season two, we talked about immunity doctrines, which restrict who you can sue when your civil rights are violated. Speaker 7 (1:19) On this season, we'll cover what are called abstention doctrines, which restrict when you can sue. And we'll cover a few other things besides. We'll start on Speaker 1 (1:30) this episode with an agent of chaos and confusion known as the Rooker-Feldman doctrine. Speaker 8 (1:36) Rooker-Feldman, if I understand it correctly, is... A subject matter Speaker 6 (1:42) jurisdiction bar. The intuition behind Rooker-Feldman isn't crazy. The idea that if you've already litigated a case in one court, you shouldn't be able to just try to litigate the exact same case in another court. We don't have any qualms with that. On Speaker 7 (1:56) paper, in theory, the Rooker-Feldman doctrine concerns a very narrow set of cases involving litigants who are trying to get a second bite at the apple in federal court after having lost in state court. But as we'll see, Rooker-Feldman prevents people from getting any bites at any apples at all. Speaker 6 (2:16) If Congress has said, we want you to vindicate federal rights, what power does a federal judge have to say, no, I'm just not feeling like it today? Speaker 1 (2:24) On this episode, we will explore the two cases that gave rise to the doctrine and the life Speaker 7 (2:30) and times of the men for whom it is named, Rooker and Feldman, both of whom were lawyers and both of whom were, in some ways, ahead of their times. pushing the practice of law forward into modernity. Speaker 3 (2:42) William Rooker was a big-time Indiana lawyer who, like a lot of big-time lawyers, got known for events in and outside of the courtroom. He argued a bunch of noteworthy cases in the early 1900s through the 1920s, lynching cases, labor cases, and Ku Klux Klan cases. Speaker 4 (3:01) One of the keys to Mark Feldman's life was that he was a contrarian. He tended to do things differently. Speaker 5 (3:11) And Bob and I thought, look, he's our best friend. We think we know this guy. He's going to be the godfather of our child. We had no idea. He was one extraordinary human being. Speaker 1 (3:24) And if all of that didn't sell you on this episode, I am positive you'll want to tune in for this big news. For one of the only times in its history, next week, on Monday, April 20th, the Supreme Court is going to hear a case about Rooker Feldman. At the Institute for Justice, we are urging the court to overturn the doctrine, tear it out by its roots, and salt the very earth behind it. Or, failing that, we have a practical suggestion for reining it in. I'm John Ross. Thanks for tuning in to Bound by Oath. Speaker 8 (4:00) Please raise your right hand and repeat after me. I. I. I, Elena Kagan. I, Brett M. Chavanagh. I, Ketanji Brown-Jackson. Do solemnly swear. That I will administer justice. Without respect to persons. And do equal right. To the poor and to the rich. To the poor and to the rich. And that I will well and faithfully discharge. That I will well and faithfully perform. Discharge and perform. Discharge and perform. The Speaker 6 (4:26) duties of Speaker 8 (4:27) the office. Of the office on which I am about to enter. So help me God. Speaker 8 (4:34) This case concerns what has come to be known as the Rooker-Feldman Doctrine. Some of the lower courts have given a broad interpretation to Rooker-Feldman. Speaker 1 (4:45) Rooker-Feldman was invented by the Supreme Court to deal with a simple scenario. But despite the court telling lower courts to use it sparingly, federal judges use it all the time to dismiss cases that they ought to be hearing from Speaker 7 (5:00) people who have suffered serious harms and have legitimate claims. On this episode, we will explore the origins of the doctrine and the role it plays in modern civil rights litigation. We'll learn about the men who gave the doctrine its name, William Rooker and Mark Feldman. And then we'll close with the case of TM v. University of Maryland Speaker 1 (5:20) Medical System, Speaker 7 (5:21) which Speaker 1 (5:21) the Supreme Court is going to hear next week, and which has the potential to really change the law for the better. Speaker 6 (5:27) My first interaction with the Ricker-Vildman Doctrine came in an early case I started at IJ on behalf of a client in East Cleveland, Ohio, who was campaigning against the mayor of his town when all of a sudden the city decided that all of these ordinances they had never enforced before. had to be uniquely enforced only against him. Speaker 1 (5:47) That is my colleague at the Institute for Justice, Ben Field, who is the lead author of IJ's amicus brief to the Supreme Court in the TM case, and who coincidentally has spent quite a bit of his time litigating Rooker-Feldman issues in his own cases. Speaker 2 (6:02) And so we brought a lawsuit against the officials who were responsible for that retaliatory scheme, and the lawsuit was proceeding, Speaker 6 (6:09) and then the district court... on its own, raised the Rucker-Feldman Doctrine. Because it's a jurisdictional doctrine, that's something that district courts can do. Speaker 1 (6:18) In general, it is very bad form, although not entirely unheard of, for judges to decide cases based on arguments that the parties to the lawsuit have not Speaker 7 (6:27) made. Speaker 6 (6:28) Normally, Courts are supposed to be the neutral arbiter. They're hearing the arguments that both sides are making, and they decide who is right. So the fancy name for this is the principle of party presentation, which is the idea that the courts don't raise issues themselves. They just decide the issues that the parties are arguing. But there's an exception to that. for subject matter jurisdiction. So if there's an issue that goes to whether the court has the power to decide this case at all, then it has an independent obligation to raise those issues for itself. Speaker 8 (7:01) Rooker-Bellman, if I understand it correctly, is a subject matter jurisdiction bar. And Speaker 1 (7:10) that's what it means for a rule to be jurisdictional. Speaker 7 (7:12) Judges can bring it up for themselves, even if the parties didn't, which is what happened in East Cleveland. What the judge was suggesting is Speaker 6 (7:19) that because one of the various enforcement actions against our client had resulted in him pleading no contest to some lesser offense, that that somehow prevented him from getting in the doors in federal court. Speaker 1 (7:34) Our client, William Fambro, had campaigned in support of a challenger to the incumbent mayor, who retaliated by sending police officers to William's home repeatedly to harass him. and to find a way to charge him with something, anything, in the codebook. Ultimately, the city towed William's van, damaging it extensively in the process, supposedly for violating a parking ordinance that had never before been enforced in the way that it was against William, and that other vehicles parked nearby were equally violating and were not towed. William was also cited for using a loudspeaker, even though he'd gotten a permit for it and was using it just as he and lots of other people in the city had done for years without any problems. Speaker 6 (8:18) He had to go down to the city court. He never saw a judge, but he just made an agreement with the city attorney that he'd pay a fee and plead to another offense to do with disorderly conduct and that it would go away. For you and me, it would just be like paying a parking ticket. But to a federal judge who's looking for a way to get rid of cases, it looks like, aha, by signing that form, you have consented to a state court order that I can now use potentially to kick your case out of federal court. Speaker 7 (8:50) William Fambro did not bring any litigation Speaker 1 (8:52) in state court. He was not seeking a second bite at the apple. But as we'll see, sometimes federal judges toss cases not just when there's been state court litigation preceding federal litigation, but anytime anything happened in a state Speaker 7 (9:07) forum. Even something like a parking ticket. Which puts people in a catch Speaker 6 (9:12) -22. If you're bringing a constitutional claim against a law or a policy that restricts your speech rights or infringes on your property rights or whatever it may be, the person who's the victim of that doesn't know that the law applies to them until it's enforced against them. And usually that will involve some sort of state court proceeding. And in fact, a person wouldn't even have standing probably to bring a lawsuit unless it had been enforced against them. Speaker 7 (9:38) And so it was in East Cleveland. To have standing to challenge the mayor's retaliation, he had to show he'd been retaliated against. And the citation was a part of that. Speaker 6 (9:48) And the problem is that if that results in some sort of state court action, if district courts are treating that as this magical cloak that prevents you from ever litigating anything related to it, then a civil rights litigant just never has a federal forum in which to bring their claims. Speaker 1 (10:07) Thankfully, the district court did not toss the case. Speaker 7 (10:10) Ben had to do extra briefing on Rooker Feldman, ordered by the judge, but it only delayed the case a few months. Today, six years after we filed it, the case is now finally up on appeal on the merits of the First Amendment question that we care about. Speaker 1 (10:25) And not for nothing, but the mayor has separately been convicted of corruption and barred from ever holding public office again. Speaker 6 (10:32) We are very careful to write our complaints to make clear to district courts that the doctrine doesn't apply. And yet this issue just keeps coming up again and again and again. And we are experienced lawyers who are used to dealing with this. But a lot of the people who are most unable to deal with complicated jurisdictional claims. are either litigants who are bringing the case themselves, who don't have a lawyer, or the local lawyer down the street who mostly does auto accidents or something and doesn't know about all of these traps for civil rights litigants. So it's often the people who have the fewest resources who are confronted with these complicated doctrines and are the least able to overcome them. Speaker 1 (11:13) And we don't always get off so easily either. On two occasions in the last few years, we've had to go up on appeal to get our clients' claims reinstated after a district court threw them out based on Rooker Feldman. Speaker 6 (11:25) The two cases where we have had to go up on appeal to defeat Rooker Feldman, I think are really powerful examples of the injustice that the doctrine causes in a very practical way. So the first case was a case called Sung Cho out of New York City. And our clients were challenging. what was then New York's no-fault abatement statute. And that sounds a little arcane, but basically what it meant was that if the city just had suspicion that some criminal activity had happened on your property, they could kick you out, even if you were not culpable at all. Speaker 1 (12:02) One of our clients, Sung Cho, had run a laundromat in Manhattan for decades with no problems. And the supposed crime the city wanted to hold him responsible for was the NYPD itself coming in and running a sting operation to tempt his customers to buy supposedly stolen electronics. And then they tried to evict Sung Cho and ruin his business without any evidence that he himself had anything to do with any criminality. Another one of our clients was falsely accused of having illegal drugs in her home. And though she successfully sued the police for false arrest, the city turned around and tried to evict her anyway. Speaker 2 (12:41) And in our clients' cases, in order to stay Speaker 6 (12:44) in their home or stay in their business, they agreed to these really onerous quote-unquote settlement agreements. Speaker 1 (12:50) Faced with eviction, Sung Cho agreed to let the NYPD search his Speaker 7 (12:54) property at will, anytime without a warrant. Our other client agreed that she would not allow her son into her home. Speaker 2 (13:02) And these were just signed off on by New York state judges without any thought. These agreements were written between our clients and the city without any involvement of a court. The only thing that a judge did is write, so ordered at the bottom of the page. The court wasn't adjudicating anything. So we brought a lawsuit saying that the entire system was unconstitutional and that you can't have this scheme that kicks people out of their homes or other businesses without any evidence that they themselves are culpable, without giving them any meaningful process. Our Speaker 7 (13:34) clients would not have had standing to challenge the ordinance until they were harmed by it. But once they were harmed, the federal district court said, sorry, a state court signed off on these settlement agreements. There may not have been any litigation or any kind of ruling in a state court, but state judges signed off on an agreement between two parties. Therefore, you can't bring a challenge in federal district court. Fortunately, the U.S. Court of Appeals for the Second Circuit put things back on track. Speaker 6 (14:05) The Second Circuit correctly said, no, you're not. attacking the orders themselves. This is an attack on the entire system. The entire system that led to these agreements that preceded the court orders was unconstitutional. And Speaker 7 (14:20) with that, we actually won the case. Rather than defend the no-fault provision on remand, the city repealed it, which was great. But the appeal took a year, Speaker 1 (14:29) and in the meantime, our clients had to deal with significant daily impositions on their rights. Speaker 6 (14:35) The other case where we had to go up to the Court of Appeals to defeat Rucker Feldman was our case challenging Memphis's environmental court. And this is also a really tragic situation. So our lead client in that case, Sarah Owenberg, she lost her home as a result of what we call in our brief and what I'm very happy to call a kangaroo court in the city of Memphis, Tennessee. So Memphis has set up this entity called the Environmental Court, and they've actually shopped it around the country. So now lots of other cities have environmental courts. And it consolidates all code enforcement nuisance into one court. And you can sort of understand the impetus. If somebody's house is, like, falling apart and there's lots of loud noise and they're really causing trouble for the neighborhood, you want somebody to be able to deal with it. Speaker 1 (15:28) As we've talked about on past episodes, local governments have ample, Speaker 7 (15:32) proper, and deeply rooted authority to combat nuisances. But due process requires that proper procedures are followed before the government starts punishing people. Speaker 6 (15:42) But the problem in Memphis is that it doesn't act like a court at all. It doesn't follow rules of procedure. It doesn't follow rules of evidence. It doesn't even keep a record of what it's doing. Speaker 1 (15:54) A court that doesn't verify evidence, where proceedings are not transcribed or recorded, and that you can't appeal the rulings of because there's no record to bring to an appeals court, is a sham. But when we brought that argument into federal district court on behalf of clients who'd lost their homes, who were facing arrest, the judge said, no, you're complaining about stuff that happened in a state Speaker 7 (16:17) court. Speaker 6 (16:18) We appealed to the Sixth Circuit, which fortunately has a very well-respected judge, Judge Jeffrey Sutton, who has been on sort of a one-man warpath against the Rucker-Feldman Doctrine. So he had written a previous concurrence saying that the district courts just have to cut it out. And there's even colorful language in it saying, if you're a district court judge who is contemplating applying the Rucker-Feldman Doctrine, there's one thing you should do. Stop. But I think that this shows how dangerous the doctrine is. Because even in a district court in the Sixth Circuit, where you've got Judge Sutton saying, district courts, don't apply this doctrine, a district court still reaches for it. So in our case, he wrote another fabulous opinion, this time for the majority of the court, reemphasizing everything he said in that prior concurrence, which is the doctrine is very, very narrow. Speaker 7 (17:07) Indeed. As we said, and as we'll come back to, the Supreme Court has admonished that Rooker Feldman only applies to a very narrow set of cases. Speaker 8 (17:16) Because the Third Circuit misperceived the narrow ground occupied by Rooker Feldman, we reverse that court's judgment. The decision is unanimous. Speaker 7 (17:27) But before we talk through that admonishment, we will go back to the beginning, to 1913, when William and Dora Rooker of Noblesville, Indiana, sued the Fidelity Trust Company for, they said, mismanaging their financial affairs. Their lawsuit reached the Indiana Supreme Court in 1916, and then again in 1921. They lost, and so they appealed that final state court judgment from the highest court in the state to the U.S. Supreme Court. But they lost there, too. Speaker 2 (17:58) So it's not super clear what happened, and you have to read between the lines, but it looks like that what's going on is that the Supreme Court was saying that the Rookers hadn't... timely raised a valid federal claim, that they just brought it way too late in the state court proceedings in order for it to be heard. So the case really, up until that point where they raised it too late, was just all about state trust law. So without the late-breaking federal issue, there wasn't anything for the U.S. Supreme Court to review. Speaker 1 (18:26) At which point, the Rookers filed a brand new lawsuit, the one that is the genesis of the Rooker-Feldman Doctrine. They filed the new lawsuit, not in state court, but in a federal trial court, with some new federal constitutional claims added in, but asking for the same thing as they had previously, for the state Supreme Court's decision to be reversed. And that second lawsuit, the one filed in federal district court, became the momentous case we know today, Rooker v. Fidelity Trust Company. Speaker 2 (18:56) So the case worked its way back up to the Supreme Court again. And in 1923, the court released this very short, tersely reasoned opinion. It's only about three pages long. And the gist is that the court created this new rule saying that federal district courts just don't have jurisdiction to hear cases like this. Only the Supreme Court can. The Speaker 1 (19:17) jurisdiction of the federal courts is something that Congress controls. Specifically, in this case, via what is today... Section 1257A of the U.S. Code. Speaker 2 (19:27) Rooker Feldman derives from 28 U.S.C. 1257A. Speaker 1 (19:31)