Today’s blog entry is a discussion of two related cases. The comes from the first case comes out of the 11th Circuit. It is Behr v. Campbell, here, and it discusses the Rooker-Feldman doctrine. That decision is a published decision decided on August 12, 2021. The second decision is Lund v. Cowan, a published decision out of the Ninth Circuit decided on July 15, 2021. Lund discusses judicial immunity. As you will see, the two cases very much relate to each other.


Behr is an extremely significant decision for people with disabilities. As I have mentioned before, at least once a month I get phone calls from around the country involving state courts that have discriminated against a person with the disability in violation of their title II obligations. I have also written before on how going after state court systems is possible but difficult. See here for example. When you have a situation where a state court has violated their title II obligations but it gets folded into a decision that they actually make, federal courts have been reluctant to step in because of the Rooker-Feldman doctrine, which prohibits challenging a state court judgment. Making it even harder is that courts have frequently looked to how intertwined the complained of conduct was to the decision before allowing any challenges. Previously, here, we discussed in this blog entry how the Seventh Circuit was not going to buy off on Rooker-Feldman necessarily but required a deeper look when dealing which state court disability discrimination. Now, the 11th Circuit has made it quite clear that Rooker-Feldman is a narrow doctrine that will permit many challenges to the actions of state courts with respect to, in our case, actions violating a state court’s title II obligations. As usual, the blog entry is divided into categories and they are: Behr facts; Rooker-Feldman does not preclude claims; Behr thoughts/takeaways; Lund v. Cowan facts; mootness of Lund’s claims; applicability of sovereign immunity; judicial immunity bars Lund’s claim; and Lund thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.



Behr Facts


After a difficult series of child custody interventions and stay proceedings, plaintiff and two of his children filed a 30 count pro se complaint in federal district court asserting a wide variety of constitutional, statutory, and tort claims against a team named defendants. The lower court throws out the case on Rooker-Feldman grounds. In particular, plaintiffs believe that a host of defendants conspired to deprive him of custody through state child custody proceedings. They alleged violations of the fourth and 14th amendment to the U.S. Constitution.




11th Circuit’s Reasoning That Rooker-Feldman Does Not Preclude the Claims


  1. Over the years, Rooker-Feldman has become a sweeping jurisdictional doctrine.
  2. Rooker-Feldman has come to include not only claims presented or adjudicated by a state court but also claims inextricably intertwined with a state court’s judgment. The result of both of that is to effectively bar federal courts jurisdiction over all issues that seem sufficiently related to an earlier state court case.
  3. In 2005, United States Supreme Court restored Rooker-Feldman to its original boundaries when it said that a person cannot come to federal district courts complaining of injuries caused by state court judgments rendered before the district court proceeding commenced and inviting district court review and rejection of those judgments.
  4. Only when a losing state court litigant calls on a district court to modify overturn an injurious state court judgment does a claim get dismissed under Rooker-Feldman. That is, district courts do not lose subject matter jurisdiction over a claim simply because a party attempts to litigate in federal court a matter previously litigated in state court.
  5. Rooker-Feldman does bar all appeals of state court judgments regardless of whether the person appealing calls it as such.
  6. For Rooker-Feldman purposes, the critical question is whether a plaintiff’s claim directly challenges a state court loss.
  7. A claim at its heart that challenges the state court decision itself and not the statute or law underlying the decision falls within the doctrine because it complains of injuries caused by the state court judgment and invites review and rejection of those judgments.
  8. A claim is barred by Rooker-Feldman when it amounts to a direct attack on the underlying state court decision.
  9. Rooker-Feldman does not block claims that require some reconsideration of the decision of a state court if the plaintiff presents some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party.
  10. Rooker-Feldman is not a broad means of dismissing all claims related in one way or another to state court litigation.
  11. Rooker-Feldman bars only cases brought by state court losers complaining of injuries caused by state court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. That is, the injury must be caused by the judgment itself. Full Stop (the court actually uses the word “Period).”
  12. The concept of whether something is inextricably intertwined with a state court judgment is not a second prong of the Rooker-Feldman analysis, rather it is merely a way of ensuring that courts do not ask exercise jurisdiction over the appeal of a state court judgment simply because the claimant does not call it an appeal of the state court judgment.
  13. District courts should keep one thing in mind when Rooker-Feldman is raised. That is, it almost never applies.
  14. Under Rooker-Feldman, the question is whether resolution of each individual claim requires review and rejection of the state court judgment.
  15. In the case before the court, plaintiffs are not seeking to undo the state court’s child custody decision. Instead, they seek money damages for constitutional violations. In other words, plaintiffs are not raising due process claim to review and reject the state court’s child custody judgment. Instead, they only ask the court to consider whether their constitutional rights were violated during the proceedings and whether they are entitled to damages for those violations. Those kinds of claims fall outside Rooker-Feldman’s boundaries.
  16. Here, the claims fall outside Rooker-Feldman because they seek relief for violations that happened during the state processes and are not seeking the rejection of the state court judgment.
  17. Asking for damages for violations of a person’s constitutional rights is not the same as seeking to an appeal or undo a state court judgment.
  18. Claims seeking damages for constitutional violations of third parties and not relief from the judgment of the state court are permitted and are not barred by Rooker-Feldman.
  19. While Rooker-Feldman will bar far fewer cases from going forward, that does not mean plaintiffs have free reign to relitigate in federal court any and all issues related to their state court proceedings. Other preclusion and abstention doctrines remain alive and well and a federal court may be bound to recognize such preclusion and abstention doctrines.




Behr Thoughts/Takeaways


  1. This decision, which is precedential, will have a huge impact in favor of persons with disabilities. Unfortunately, many state courts simply do not understand their title II obligations. The result of that is litigators with disabilities are not able to effectively represent their clients and clients with disabilities do not get the fair shake they should in litigation. This decision changes all that. Where title II discrimination occurs, affected individuals can now say that they are not challenging an underlying state court decision that went against them. Rather, they can now say that disability discrimination should not have occurred during those proceedings and they should have redress for it in some respect.
  2. Georgia does a fantastic job of training judges on disability rights issues. Other states may want to take a page from Georgia, especially now in light of this decision. If you are interested in more information about how Georgia accomplishes this, feel free to reach out to me and I can give you a couple of names.
  3. As a published decision, it becomes something any court around the country can rely upon. Look for attorneys for those with disabilities to use this case quite a bit whenever a state court proceeding involves disability discrimination during the process of reaching its decision.
  4. Training, training, training for the state judiciary on what are the rights of people with disabilities (I do quite a bit of training of judges on exactly these questions), is now more important than ever.
  5. Federal judges do not have to worry about §504 or the ADA yet but time may be a changing. See here. That said, this particular piece of legislation would only apply to the employer employee relationship and not to disability discrimination by litigators, litigants, or family members of litigants during court proceedings.



Speaking of other preclusion and abstention doctrines…….




Lund v. Cowan Facts


Bradford Lund is the great-grandson of Walt Disney and has been engaged in a long-running dispute with family members and trustees. The fortune involved is estimated to be worth $200 million. In 2019, it appeared that Lund would finally receive his rightful inheritance when he reached a proposed settlement. However, the judge rejected it suggesting with questionable factual basis that Lund has Downs Syndrome. He then appointed a guardian ad litem over Lund without holding a hearing. Frustrated at that turn of events, Lund sued Judge Cowan and the Superior Court arguing that the appointment of the Guardian without notice or hearing violated his due process rights. He also argued that the judge’s comments violated the ADA. In November 2020-after Lund filed his opening brief on appeal but before the defendants had filed an answering brief-Judge Cowan issued three orders: 1) discharging the Guardian ad litem; 2) granting Lund’s motion to reassign the case to a new judge in the probate division; and 3) issuing an order to show cause whether to disqualify Lund’s attorney for conflict of interest. Judge Cowan commented that if Lund’s attorney was disqualified for conflict of interest, then the new judge might want to consider reappointing the Guardian ad litem to help deal with the aftermath of the disqualification.




Mootness of Lund’s Claims


  1. Lund no longer faces any harm from the appointment of the Guardian ad litem because Judge Cowan lifted the order appointing her.
  2. Any future harm is speculative because Judge Cowan transferred the case to another judge (in fact, Judge Cowan no longer serves in probate court).
  3. Judge Cowan did not direct the reappointment of a guardian ad litem. Instead, he only said that if a new judge disqualified Lund’s counsel for conflict of interest, the new judge may wish to consider appointing a guardian ad litem. Any such decision to reappoint the Guardian ad litem would remain within the sole discretion of the new judge.




Applicability of Sovereign Immunity


  1. The 11th amendment bars individuals from bringing lawsuits against a state for money damages or other retrospective relief.
  2. State officials in their official capacity are generally entitled to 11th amendment immunity.
  3. The 11th amendment does not permit retrospective declaratory relief regardless of whether that claim is characterized as prospective or not.
  4. Relief serving to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is precluded even when the state official is the named defendant.
  5. Relief serving directly to bring an end to a present violation of federal law is not barred by the 11th amendment even though it has a substantial effect on the state treasury.
  6. This particular claim involved past conduct. Further, Judge Cowan has since reassigned the case to a new judge and no longer serves in the probate division. So, Judge Cowan cannot handle Lund’s probate matter again at any point in the future. Therefore, any opinion declaring the Judge Cowan acted unconstitutionally would be advisory.




Judicial Immunity Bars Lund’s ADA Claim


  1. Judges are generally immune from suit for money damages.
  2. Judicial immunity only applies to judicial acts and not to the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.
  3. To determine whether an act is judicial, the following factors are considered: 1) the precise act is a normal judicial function; 2) the events occurred in the judge’s chambers; 3) the controversy centered around the case then pending before the judge; and 4) the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity.
  4. Lund does not identify any case law suggesting that judicial statements are protected only when they are embedded in an official judicial ruling rather than made during a court hearing more generally.
  5. Even when a proceeding is informal and ex parte, that does not necessarily deprive an act otherwise within a judge’s lawful jurisdiction of a judicial character.
  6. Judicial immunity ensures that challenges to judicial rulings are funneled through more efficient channels for review, such as the appellate process.
  7. Judicial immunity apparently originated in medieval times as a device for discouraging collateral attacks and thereby helping to establish appellate procedures as the standard system for correcting judicial error.
  8. Judicial immunity also serves the goal of judicial independence. That is, the proper administration of justice requires that a judicial officer, in exercising the authority vested in him or her, shall be free to act upon its own convictions without apprehension of personal consequences to himself.
  9. Subjecting judges to liability for the grievances of litigants would destroy their independence without which no judiciary can be either respectable or useful.
  10. While it is true that the commitment to judicial independence might result in unfairness to individual litigants, it is precisely in those types of unfair or controversial situations that judicial immunity may be more necessary to preserve judicial independence.
  11. Judge Cowan made the statement from the bench during an official settlement approval hearing in a probate case. The comment directly related to his effort to decide whether to approve a proposed settlement agreement that would have given Lund access to a large sum of monetary distributions. Therefore, it was not unreasonable for him to comment on Lund’s capacity to manage money since Lund’s competency was central to the litigation.
  12. Judicial immunity shields even incorrect or inappropriate statements if they were made during the performance of a judge’s official duties. In fact, a judicial act does not stop being a judicial act even if the judge acted with malice or corruption of motive.
  13. When it comes to judicial immunity, the relevant inquiry focuses on the particular act’s relation to a general function normally performed by a judge and not necessarily on the judicial act itself. To do otherwise would mean that any mistake of a judge in excess of his authority would become a nonjudicial act, which goes too far.
  14. Congressional representatives enjoy immunity for comments made on the congressional floor. For that matter, lawyers have immunity for comments made during litigation. So, no reason exists to treat differently a judge making a comment from the bench during a judicial proceeding. So, judicial immunity applies when a judge makes a statement from the bench during a court proceeding in a case before the judge.
  15. The claims against the judge’s employer also gets thrown out because of the underlying judicial immunity.
  16. Lund’s proposal to add §504 claims doesn’t work because judicial immunity bars money damages claims. Also, judicial immunity bars retrospective relief.




Lund Thoughts/Takeaways


  1. Behr and Lund dovetail nicely with each other because they say that even if you can get by Rooker-Feldman, you may still very well be dealing with sovereign immunity and judicial immunity (two preclusion doctrines).
  2. A critical piece in Lund was that the judge removed himself from the case and did not direct a subsequent judge to do anything. Those actions precluded prospective relief on behalf of the plaintiff.
  3. In failure to accommodate cases involving a judge, the question will be whether the failure to act on the accommodation was a normal judicial function. In an effort to enhance the prospects of judicial immunity, I have seen courts turn the accommodation process over to the judge thereby trying to make it a, “normal judicial function.” Personally, I don’t believe turning over the accommodation process to the judge makes it a normal judicial function, rather it remains an executive function. After all, all kinds of people decide on accommodations when dealing with accommodation requests under title I, title II, and even title III and almost none of those people are judges.
  4. If the disability discrimination claim against the state court involves something other than a failure to accommodate, it may be easier to activate judicial immunity. That said, activating judicial immunity isn’t going to be a slam dunk. Rather it is going to depend on the particular facts and circumstances.
  5. I am not sure I follow the sovereign immunity discussion and Lund because the Supreme Court in Tennessee v. Lane, has already upheld the ADA’s forcible waiver of sovereign immunity when it comes to persons with disabilities accessing the courts.
  6. Bottom line: If you are a litigant with a disability, a litigant’s family member with a disability, or a litigator with a disability and are facing discrimination in state court proceedings, Behr gives you a lot of possibilities to address those grievances that you did not have before, though you still have to be thinking about sovereign immunity and judicial immunity. Sovereign immunity may be the easier one to crack because under Tennessee v. Lane persons with disabilities fall into at least the intermediate level of scrutiny for purposes of the equal protection clause when it comes to the courts. If you recall, that case said that the ADA forcibly waived sovereign immunity with respect to persons with disabilities accessing the courts. Judicial immunity will be the tougher one. If it is a failure to accommodate situation, then personally I don’t think judicial immunity will be much of a problem. Outside of the accommodation process, it may be trickier but still may be possible to get around.