Dawn Elaine Brown, by and Through Gayle (Brown) Marden, as Her Mother and Next Friend, Cross v. Dixie Herlong Chastain, Cross , 416 F.2d 1012 ( 1969 )

DYER, Circuit Judge:

We are here presented with the question whether the District Court had jurisdiction to directly review a final determination of federal constitutional questions voluntarily submitted to and decided by the state courts of Florida in connection with litigation pending in the state courts, no review by the United States Supreme Court having been sought. The District Court had no jurisdiction, and we reverse.

In 1961 Gayle and James Brown were divorced. Gayle was awarded custody of their child, Dawn Elaine Brown. In 1966 James Brown filed suit in the Juvenile and Domestic Relations Court of Dade County, Florida, and on May 8, 1967, an order was entered changing the custody of the child from the mother to the father. An appeal was filed in the Florida Third District Court of Appeal, but counsel for the mother and child soon discovered that the cost of preparing a transcript of the testimony in the lower court was beyond the financial means of the mother and child. A petition to the Juvenile Court praying that either the State of Florida or the father be required to pay for the transcript was denied; a similar petition in the Court of Appeal was denied; and finally an appeal to the Supreme Court of Florida from the order denying a free transcript was dismissed. No attempt for direct Supreme Court review of the state court decisions through certiorari under 28 U.S.C.A. § 1257 was made.

The appellants then filed their complaint in the District Court alleging that the denial by the State of a free transcript for use in their state civil appeal constituted a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the very same allegation which the state courts had considered and rejected. The complaint prayed for relief in the form of a mandatory injunction requiring the State of Florida to provide a transcript at the expense of the State or the father, or alternatively to strike the order changing the custody of the child. Soon afterwards a hearing was held. In open court the parties stipulated that the facts alleged in the complaint were correct and further that the defendants did not have to file an answer or other response. The District Court then entered judgment on the merits in favor of the defendants based on the pleadings, and this appeal ensued.

It is obvious from the complaint and the requested relief that the appellants are here attempting to re-litigate their federal constitutional claims by obtaining a form of direct federal district court review of the state decisions, since independent equitable proceedings to prevent the enforcement of a judgment are considered a direct attack upon it. See Restatement, Judgments § 11, comment a (1942). The District Court was patently without jurisdiction to engage in such a review. As noted in Rooker v. Fidelity Trust Co., 1923, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362:

If the constitutional questions stated in the . . . [complaint] actually arose in the cause, it was the province and duty of the state courts to decide them; and their decision, whether right or wrong, was an exercise of jurisdiction. If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding. Unless and until so reversed or modified, it would be an effective and conclusive adjudication. [Citations omitted] Under the legislation of Congress, no court of the United States other than this [the Supreme] Court could entertain a proceeding to reverse or modify the judgment for errors of that character. [Citations omitted] To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly original. * * * Id., at 415-416, 44 S.Ct. at 150.

As stated in Pilkinton v. Pilkinton, 8 Cir. 1968, 389 F.2d 32, “[i]t is plainly evident that what appellant seeks in this original action is a review by the federal courts of the proceedings of the . . . [Florida] State Courts in the divorce action. Federal courts are without authority to. function as an appellate arm of the state courts.” Id. at 33. The decision of a federal constitutional question by a state court does not warrant a mandatory injunction in the nature of mandamus nor an order striking its decision even if erroneous. “State courts are competent to decide questions arising under the federal constitution, and federal courts most assuredly do not provide a forum in which disgruntled parties can re-litigate federal claims which have been presented to and decided by state courts.” Deane Hill Country Club, Inc. v. City of Knoxville, 6 Cir. 1967, 379 F.2d 321, 325. See generally Evanson v. Northwest Holding Co., 8 Cir. 1966, 368 F.2d 531; Coral Gables First Nat. Bank v. Constructors of Florida, Inc., 5 Cir. 1962, 299 F.2d 736; Hanna v. Home Ins. Co., 5 Cir. 1960, 281 F.2d 298; Norwood v. Parenteau, 8 Cir. 1955, 228 F.2d 148; Parnacher v. Mount, 10 Cir. 1953, 207 F.2d 788, cert. denied, 1954, 347 U.S. 917, 74 S.Ct. 515, 98 L.Ed. 1073; Williams v. Tooke, 5 Cir. 1940, 108 F.2d 758, cert. denied, 1940, 311 U.S. 655, 61 S.Ct. 8, 85 L.Ed. 419; Moran v. Paine, Webber, Jackson & Curtis, W.D.Pa.1967, 279 F.Supp. 573, aff’d 3 Cir. 1968, 389 F.2d 242; Lenske v. Sercombe, D.Or.1967, 266 F.Supp. 609; Chirillo v. Lehman, S.D.N.Y.1940, 38 F.Supp. 65, aff’d 1941, 312 U.S. 662, 61 S.Ct. 741, 85 L.Ed. 1108. See also City of Greenwood v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944; England v. Louisiana State Bd. of Medical Examiners, 1964, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440; Angel v. Bullington, 1947, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832; Jones v. Hulse, 8 Cir. 1968, 391 F.2d 198; Stevens v. Frick, 2 Cir. 1967, 372 F.2d 378; Tomiyasu v. Golden, 9 Cir. 1966, 358 F.2d 651.

Appellants’ reliance upon verbiage in Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, is misplaced. Fay involved a habeas corpus action instituted in the federal district court as an original proceeding for which there is specific statutory authority. Habeas corpus is an exception to ordinary rules of res judicata. See Note, Developments in the Law — Res Judicata, 65 Harv.L.Rev. 818, 851 (1952). Neither do we consider the instant action as a collateral attack rather than direct, since appellants waived the requirement of an answer to the complaint, in which the affirmative defense of res judicata could have been pleaded, and since the defense affirmatively appeared in the body of the complaint itself.

The District Court should have dismissed the complaint for lack of jurisdiction to review the state courts’ action rather than entering judgment on the merits. Therefore the case is reversed and remanded to the District Court with instructions to dismiss the complaint for lack of jurisdiction.

Reversed and remanded.