___________________________________________________________
ROBERT S. CATZ ISRAEL WEINSTOCK
1600 28th Street, N.W. 140-06 Rockaway Beach
Washington, D.C. 20007 Belle Harbor, New York 11694
(202) 276-6088
(718) 318-1000
The district court had subject matter jurisdiction,
conferred by 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1332
(diversity of citizenship, with more than $75,000 at issue), to entertain a
bill in equity, arising under federal and Maryland common law, declaring under
28 U.S.C. § 2201 a final Maryland divorce decree void as wanting in due process
under the Fourteenth Amendment of the U.S. Constitution. Appellate jurisdiction
is conferred by 28 U.S.C § 1291, allowing this Court to review the district
court’s judgment dismissing all claims.
The final judgment of dismissal was entered on March 19, 2004, (App.
44).[1]
A timely notice of appeal was filed on April 16, 2004, (App.45).
STATEMENT OF THE ISSUES
PRESENTED FOR REVIEW
(1) Whether the "Domestic Relations" exception defeats federal question and diversity jurisdiction to entertain an original, separate and independent action in rem in the nature of a bill in equity arising directly under federal and Maryland common law that collaterally attacks a Maryland divorce decree as void as wanting in procedural and substantive due process.
(2) Whether "Rooker-Feldman" defeats federal question and diversity jurisdiction to entertain an original, separate and independent action in rem in the nature of a bill in equity arising directly under federal and Maryland common law that collaterally attacks a Maryland divorce decree as void as wanting in procedural and substantive due process.
STATEMENT OF THE CASE
On
January 26, 2004, Plaintiff-Appellant Jacob Roginsky (hereafter “Roginsky”), an
adult citizen of Virginia, instituted this action on his own behalf and as natural father and next friend of his
minor son, Joshua Roginsky (hereafter “Joshua”), against Defendant-Appellee
Veronica Blake (hereafter “Blake”), an adult citizen and resident of Maryland.
Blake, the natural mother of Joshua, is sued
as a real party of interest with standing to defend. The complaint was filed under penalty of
perjury, pursuant to 28 U.S.C. § 1746. (App.3-41)
Roginsky
instituted this action to mount a collateral attack upon a judgment of absolute
divorce that was entered on March 22, 1999, in Veronica Blake-Roginsky v.
Jacob Roginsky, No. Cv-97-780 in the Circuit Court for Charles County,
Maryland. Roginsky described the action
as being “in the nature of a bill of
equity under Maryland common law, Sisk v. Garey, 27 Md.401, 414-19
(1867); Travelers Indemnity Co. v. Nationwide Construction Co., 224 A.2d
285, 290-291(Md.1966), collaterally attacking a final state court judgment as
void. . .”. The complaint invokes the
district court’s subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 28
U.S.C 1332, seeking declaratory relief under 28 U.S.C. §2201 for violations of
the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.”[2] Roginsky averred that the
property-distribution, spousal and child support, custody and visitation
provisions of the Maryland divorce decree were procured by Blake by extrinsic
fraud upon the rendering court, process irregularities and other “departure(s)
from established modes of procedure”, Windsor v. McVeigh, 93 U.S.274,
281-282 (1876), including deception, suborned perjury and judicial
collusion. (App. 39-40). The proceedings culminating in the divorce
decree made a farce and mockery of Roginsky’s rights to a full and fair
opportunity to be heard on core matters related to fundamental human rights,
including those rights that are enjoyed by the parent-child relationship.
On
March 19, 2004, the district court entered a final judgment (App.44) dismissing
Roginsky’s complaint, on the basis of the “Domestic
Relations” exception to
federal subject matter jurisdiction, relying on Ankenbrandt
v. Richards, 504 U.S. 689 (1992).
The district court’s reasons:
It
appears that Mr. Roginsky is alleging violations of his due process rights
insofar it concerns his Final Judgment for Absolute Divorce entered March 22,
1999 in the Circuit Court for Charles County. Specifically, Petitioner asserts
the divorce decree, custody arrangements, and the judicial proceedings
pertaining to his divorce violated his right to due process under the
Fourteenth Amendment. As relief,
Plaintiff asks the Court to void his divorce decree, child custody and support judgments,
and alimony awards to the Respondent.
He also requests that the Court void all orders entered by Judge Nalley
of the Circuit Court for Charles County and accuses him of a litany of
[judicial] improprieties.
Regardless
of how the Plaintiff characterizes the instant complaint, the gravamen of his
allegations concern matters related to divorce, custody, child support and
alimony. In essence, Plaintiff seeks
review and vacatur of state court proceedings regarding domestic relations
orders which is not a basis for federal jurisdiction. An award of the relief sought by Plaintiff would contravene the
interests safeguarded by the domestic relations exception to federal
jurisdiction. See, Ankenbrandt v. Richards, 504 U.S. 689, 701-05 (1992).
(App.42-43)
On April 16, 2004 Roginsky filed a notice of appeal of the judgment of dismissal entered on March 19, 2004, by the district Court, invoking this Court’s appellate jurisdiction conferred by 28 U.S.C. §1291. (App.45)
STATEMENT OF FACTS
Roginsky and Blake married on December 30, 1993, and
separated on January 1, 1996. A child
from the marriage, Joshua, was born on July 26, 1994. (App. 7). On May 6, 1997, Blake filed suit in the
Circuit Court for Charles County, Maryland, seeking a divorce, marital property
award, alimony, child custody, and child support. The case was tried on November 24, 1998, and January 29, 1999.
(App. 26) On March 22, 1999, the Circuit Court granted Blake an absolute divorce,
a monetary award for her equitable share of the marital estate, alimony, child
custody, child support, and an award of attorney's fees.
In April, 1999, Roginsky appealed to the Maryland Court
of Special Appeals. On appeal Roginsky raised a claim of constitutional
error: that the Maryland decree was
void as wanting in due process. This
claim was based solely on ex parte communications between Blake’s
attorney and the chief judge concerning the substantive contents of the final
decree of absolute divorce. Although the record on appeal only permitted
Roginsky to review this particular episode of improper ex parte
communications, that incident was sufficient to persuade the reviewing court to
grant relief on his due process claim,
by vacating the trial court’s financial determinations. See, Roginsky v. Blake-Roginsky, 740
A.2d 125, 136-39 (Md. App. 1999), issued on November 4, 1999. Here is the reasoning of the appellate
court:
Appellant
contends that he was denied due process because counsel
for appellee engaged in ex parte communications
with the trial judge after
the trial and before the entry of final judgment. The
case was tried on
November 24, 1998, and January 29, 1999. Additionally,
at the conclusion
of the trial, the trial judge stated that he would not
enter an earnings withholding order without appellant's consent. The fact that
such an order was later entered, according to appellant, implies that it was as
a result of ex parte communications with appellee's counsel. Finally, according
to appellant, regardless of whether such communications had anything to do with
the terms of the judgment actually entered, the entire judgment should be
vacated and the matter retried because such communications taint the judicial
process.
On
January 29, the trial judge indicated that he would apply the child support
guidelines and would award child support in favor of appellee in the amount of
$ 664 per month. The court found that appellant's gross income was $ 5,791 per
month, and appellee's gross income was $ 828 per month. The order entered on
March 22, 1999, however, awarded child support in the amount of $ 976 per
month. Appellant contends that the increase was as a result of ex parte communications
between appellee's counsel and the court and that this constituted a denial of
due process.
Additionally,
at the conclusion of the trial, the trial judge stated that he would not enter
an earnings withholding order without appellant's consent. The fact that such
an order was later entered, according to appellant, implies that it was as a
result of ex parte communications with appellee's counsel. Finally, according
to appellant, regardless of whether such communications had anything to do with
the terms of the judgment actually entered, the entire judgment should be
vacated and the matter retried because such communications taint the judicial
process. Appellee asserts that,
following the trial and while the proposed order was being prepared, a problem
arose because, in appellee's view, the court had inadvertently failed to
consider appellee's monthly daycare expense and appellant's monthly health care
expense. According to appellee, her counsel called appellant, who was
representing himself and who had represented himself at trial, and described
the need to see the judge to clarify the situation. Appellee further asserts
that appellant was advised with respect to the date and time for a meeting with
the judge but did not attend. A copy of the proposed judgment was sent to
appellant at least a week before the judgment was actually entered, and
appellant did not respond before or after it was entered. Finally, appellee
points out that appellant, even now, does not take issue with the substance of
the change or clarification; instead, he attacks the ex parte communication.
Appellant
asserts that he did not know of or acquiesce in the ex parte contact with the
trial judge. He states that, when contacted, he asked that the issue be handled
by conference call with both parties present or, if that was not acceptable,
that the meeting with the judge be scheduled at a time acceptable to appellant.
While
we understand the need to deal with matters expeditiously and recognize that
appellant may have contributed to the error, we agree that appellant should
have a further opportunity to be heard. Under circumstances such as those
existing in this case, when a party believes the trial court has committed or
is about to commit an error, all parties must be given an opportunity to be
heard. We recognize that such matters may sometimes be handled informally,
assuming proper notice. The better practice -- especially without the consent
of all parties -- is to deal with such matters formally, by pleading or on the record,
with all parties present or having been given a reasonable opportunity to be
present. In this case, appellant should have a reasonable opportunity to argue
that the amount of child support awarded was in error and that the earnings
withholding order was entered in error.
We hasten to add that we have insufficient information to determine whether there was error in the amount of child support or the entry of an earning withholding order. The court may arrive at the same result after remand; it cannot do so, however, without affording an opportunity to be heard.
Id. at
136-139.
Roginsky’s
attempt to secure further relief, by certiorari review by the Maryland Court of
Appeals, was denied, 747 A.2 645 (Md. 2000).
In March
2000 Roginsky filed in the U.S. District Court for the District of Maryland an in personam action for
damages against multiple defendants, including several attorneys and related
parties, pursuant to 42 U.S.C. § 1983 and Maryland’s common law on intentional
torts. On August 11, 2000, the district
court dismissed the complaint for failure to state claims upon which relief
could be granted. Roginsky v. Blake,
131 F. Supp. 2d 715, 716 (D. Md. 2000), aff’d per curiam without opinion,
315 F.3d 131 (4th Cir. 2000).
The
instant complaint relates the extra-judicial conduct under extraordinary
circumstances that so profoundly breached due
process. The operative factual
averments of the complaint, which must
be accepted as true by this Court, raise factual matters and procedural and
substantive due process issues that could not
have been reviewed on direct appeal, including numerous additional
incidents of off-the-record, extra-judicial conduct that demonstrate that the
chief judge, the domestic relations master engaged in collusive conduct with
Blake’s attorney. (App.23-25). The
complaint includes core factual allegations that support Roginsky’s claim that
he was denied a full and fair opportunity to assert claims and defenses in the
Maryland divorce proceeding. Roginsky’s
allegations of egregious misconduct by the chief judge, the domestic relations
master, Blake’s counsel, by Blake and others, if confirmed in an evidentiary
hearing, would compel recognition that the Maryland divorce decree is void, as
the product of proceedings that were contaminated by gross violations of the
due process rights of the Roginskys.
The asserted due process violations rights include the
following allegations:
-Pervasive
manipulation by Blake’s attorney and the presiding chief judge of the
assignment process, thus avoiding random selection and insuring that the chief
judge and one specific domestic relations master[3]
would hear all matters related to the subject case, as demonstrated by court
records, other documentary proof, and extra-judicial statements of clerical
staff (App. 26);
-Repeated
episodes of ex parte communications between Blake’s attorney[4]
and the trial judge, and also between Blake’s attorney and the domestic
relations master assigned to the subject case, Id.;
-Perjury
by Blake, knowingly suborned by Blake’s attorney, Id.;
-Numerous
comments made by Blake to Roginsky during the pendency of the divorce
proceedings in which she boasted that her attorney of Olmstead & Olmstead
had a personal relationship with the trial judge, who was also the chief judge,
and the domestic relations master and that the divorce proceeding was “fixed”, Id.;
-Extrinsic
fraud perpetrated upon the Maryland court, as demonstrated by audio recordings surreptitiously
taken by Roginsky in the professional offices of the court-appointed
psychologist admissible under F.R.Evid. 501, which establish that the
psychologist – appointed by his close friend, the domestic relations master
willfully fabricated the factual contents of his interview notes, and then
falsified the facts in his report to the court concerning the parent-child
relationship and other core custody issues, (App. 27);
-Extrinsic
fraud upon the court that consisted of the court-appointed psychologist’s
concealing the results of a psychological test that he administered to Blake,
which results were unfavorably to Blake, and then stating falsely that he had
administered no such test to Blake, Id.;
-Pervasive
and severe bias against Roginsky by the trial judge, as demonstrated by
numerous extra-judicial comments made by the judge over a two-year period that
publicly denigrated Roginsky and thus signaled to local attorneys that
representing him could damage them professionally, Id.;
-Judicial
cronyism traceable to longstanding relationships among Blake’s attorney’s law
firm Olmstead & Olmstead, the chief judge, the domestic relations master
(now associate judge), the court-appointed psychologist, the court-appointed
guardian ad litem and their respective families, Id.;
These
egregious facts combined to deny Roginsky’s “fundamental right to care and
raise his child”, by seeking custody before an impartial tribunal, free of
extra-judicial influence by Blake’s attorney with the chief judge and the
domestic relations master of the Charles County Circuit Court, to be free from
a case that is “fixed”. Certainly the
above-described circumstances constituted a departure from legitimate and
established modes of procedure. Troxel
v. Granville, 530 U.S. 57, 65-66 (2000). Furthermore, the above-described
incidents were driven, or at least encouraged, allegedly by decades-long
friendships among the members of Blake’s attorney’s firm and the chief judge,
who wielded power to award lucrative attorneys fees in family law, probate and
other statutory fee cases. (App. 27-33) A divorce attorney gaming the local
court with a little “home cooking”.
(App. 39)
Roginsky
also avers that following the Blake-Roginsky appeal, the Maryland Attorney
Grievance Commission found Blake’s attorney “in violation of the professional
rules of ethics and issued an unpublished reprimand to him”. (App.29)
Presumably the “unpublished reprimand” was related to the Maryland Court of
Special Appeals adjudication that Blake’s attorney had engaged in ex parte
communications with the chief judge on matters related to the preparation,
substantive content and entry of the final decree of absolute divorce.
The
foregoing incidents, relationships, and circumstances combined to violate
Roginsky’s procedural and substantive due process rights render void the
Maryland divorce decree. Catz v.
Chalker, 142 F.3d 274 (6th Cir. 1998).
SUMMARY
OF THE ARGUMENT
This
appeal seeks reversal of the district court’s dismissal based on the “Domestic
Relations” exception to subject matter jurisdiction. The relief Roginsky seeks
is distinct from the core domestic-relations decisions that are properly and
exclusively left to the province of state courts: he seeks no affirmative
relief that would arise under the substantive family law of Maryland, such as a
grant of a divorce, distribution of marital property, spousal or child support,
alimony, child custody, child parental visitation or the like. Despite the
“Domestic Relations” exception, federal courts retain subject matter
jurisdiction to exercise their inherent common law equity powers to declare
void a judgment procured as wanting in due process.
Although
the district court did not dismiss this action for want of subject matter
jurisdiction under the “Rooker-Feldman” doctrine, this Court, as well as the
parties, may raise that doctrine at any time to question whether there is
subject matter jurisdiction. Barefoot
v. City of Wilmington, 306 F.3d 113, 120(4th Cir. 2004). The inapplicability of “Rooker-Feldman” is raised,
on the assumption that it is virtually inevitable that “Rooker-Feldman” must be
considered by this Court .
“Rooker-Feldman” stands for the rather unremarkable proposition that the
U.S. courts may not exercise original subject matter jurisdiction to review
claims alleging substantive errors in state court decisions. Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v.
Feldman, 460 U.S. 462 (1983).
“Rooker-Feldman”
does not bar an original, separate and independent action that states separate
and distinct claims and injuries, by challenging a state court judgment, it
nevertheless provides it the same measure of judicial recognition that the law
of the rendering State would pay it, as required of the federal system and of
every other state, pursuant to Article IV § 1 of the U.S. Constitution and 28
U.S.C. § 1738 as void as wanting in due process. Rooker, supra at 415-416; Catz v.
Chalker, 142 F.3d 279, 294 fn.8 (6th Cir. 1998).
ARGUMENT
THE U.S. COURTS HAVE SUBJECT-MATTER JURISDICTON TO
ENTERTAIN AN ORIGINAL, INDEPENDENT ACTION IN THE NATURE OF A BILL IN EQUITY
ARISING DIRECTLY UNDER BOTH FEDERAL AND MARYLAND COMMON LAW TO COLLATERALLY
ATTACK AS VOID A MARYLAND FINAL JUDGMENT OF ABSOLUTE DIVORCE AS TOTALLY WANTING
IN DUE PROCESS IN THE MANNER THAT IT WAS RENDERED
Standard
of Appellate Review
This Court reviews de
novo, as a matter of law, the district court’s dismissal
for want of subject matter jurisdiction. Tilman v. Resolution Trust Corp., 37
F.3d 1032,1034 (4th Cir. 1994).
The
Court reviews the sufficiency of a complaint dismissed for want of subject
matter jurisdiction by accepting liberally all facts plead as true that would
entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-56
(1957); Coakley & Williams, Inc. v. Shatterproof Glass Corp., 706
F.2d 456,457 (4th Cir. 1983).
The
Court reviews the sufficiency of a pro se plaintiff’s complaint by liberal
construction of the pleadings. Haines v. Kerner, 404 U.S. 519, 521
(1972).
A
federal complaint filed by a pro se plaintiff should not be dismissed
summarily unless it appears beyond doubt that no facts could be proved in support
of claims entitling relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir.1978).
Discussion
and Legal Analysis of the Issues Presented for Review
1. Roginsky’s Original Action in the Nature of a Bill
in Equity Cognizable
Under Federal and Maryland Common Law States a Claim
for Relief Arising Directly Under the Due Process Clause of the Fourteenth
Amendment of the U.S. Constitution.
The federal courts are mandated under Article III of the U.S. Constitution to entertain an original, separate and independent plenary action in the nature of a bill in equity under federal common law [5]as well as under Maryland common law invoking federal question and diversity jurisdiction to collaterally attack a final state court judgment as void under the Due Process Clause and as well as under the substantive law of the rendering state of Maryland regarding void judgments.[6] Barrow v. Hunton, 99 U.S. 80, 82-85 (1878); Firestone Tire & Rubber Co v. Marlboro Cotton Mills, 282 F. 811, 814-816 (4th Cir. 1922) (equity enjoins a judgment obtained by fraud); Resolute Insurance Co. v. North Carolina, 397 F.2d 586, 589 (4th Cir. 1968) (federal courts “may entertain a collateral attack on a state court judgment procured through fraud, deception, accident or mistake); Yale v. National Indemnity Co., 602 F.2d 642, 644-645 (4th Cir. 1979)(void judgment subject to collateral attack, is rendered void by court lacking jurisdiction over defendant, over the subject matter, or violated procedural requirements so substantial that it is deemed by the rendering state )[7] ; Sisk v. Garey, 27 Md. 401,418-419 (Md. 1867) (bill in equity enjoins void judgment).[8]
The law is clearly established under both federal and Maryland common law that a separate and independent bill in equity will enjoin the operation of a void judgment whether the action is brought in either a federal or Maryland state court. In Barrow v. Hunton, 99 U.S. 80 (1878) the Court spoke unequivocally.
The question presented in regard to the jurisdiction of the Circuit Court is, whether the proceeding to procure nullity of the former judgment in such a case as the present is or is not in its nature a separate suit, or whether it is a supplementary proceeding so connected with the original suit as to form an incident to it, and substantially a continuation of it. If the proceeding is merely tantamount to the common-law practice of moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review or an appeal, it would belong to the latter category, and the U.S. court could not properly entertain jurisdiction of the case.
* * * *
On the other hand, if these proceedings are tantamount to a bill in equity to set aside a decree for fraud in the obtaining thereof, then they constitute an original and independent proceeding, and according to the doctrine laid down in Gaines v. Fuentes (92 U.S. 10), the case might be within the cognizance of the Federal courts. The distinction between the
two classes of cases may be somewhat nice, but it may be affirmed to exist. In the one class there would be a mere revision of errors and irregularities,
or of the
legality and correctness of the judgments and decrees of the State courts; and
in the other class, the investigation of a new case arising upon new facts,
although having relation to the validity of an actual judgment or decree, or of
the party’s right to claim any benefit by reason thereof.
Id. at 82-83. (Emphasis added)
In Firestone
Tire & Rubber Co., 282 F.811 (4th Cir. 1922), this Court applied Barrow
v. Hunton:
The necessary diversity of citizenship, and the amount involved, gave them their right to ask relief in the proper federal court, and a federal court, in the exercise of its equity power, may, and should in a proper case, enjoin the collection of a judgment fraudulently or unlawfully obtained in a state court. In this case the judgment was final. Every step necessary to make it an ended cause, so far as the judgment itself was concerned, had been had, and the supplementary proceeding in process when the bill below was filed was, for all practical purposes, a new proceeding to realize on the judgment, analogous, in many respects, to a bill in equity to subject real estate to the payment of a judgment obtained in a common law action. The proceeding instituted in the federal court was not designed to correct errors appearing in the trial of the case in which the judgment was had, nor had it any of the aspects or purposes of a writ of error or an appeal. It was a proceeding by bill in equity to restrain the collection of a final judgment for lack of proper service, and it was therefore, under the circumstances here shown to exist, properly brought in the federal court (Barrow v. Hunton, 99 U.S. 80-82, 25 L. Ed. 407; Lehman v. Graham, 135 Fed. 39, 67 C.C.A. 513; Public Service Co. v. Corboy, 250 U.S. 153, 39 Sup. Ct. 440, 63 L. Ed. 905.
*
* * *
”In 1793, when that statute was adopted [judiciary code] (1 Stat. 334), courts of equity had a well-recognized power to issue writs of injunction to stay proceedings pending in court—in order to avoid a multiplicity of suits, to enable the defendant to avail himself of equitable defenses and the like. It was also true that the courts of equity of one state or country could enjoin its own citizens from prosecuting suits in another state or country. Cole v. Cunningham, 133 U.S. 107.This, of course, often gave rise to irritating controversies between the courts themselves which could, and sometimes did, issue contradictory injunctions.
* * * *
But when the litigation has ended and a final judgment has been obtained—and when the plaintiff endeavors to use such judgment—a new state of facts, not within the language of the statute may arise” a state of facts making it the duty of the court to enjoin “that which purports to be a judgment but is, in fact, an absolute nullity.”
The order appealed from will therefore be reversed,
with instructions to grant a temporary injunction until a final hearing shall
determine, after full evidence, whether the judgment was obtained without
service of process, or through fraud, accident, or mistake.
Id. at
815-816. (Emphasis added)
Regarding the common law of the rendering State of Maryland, the Court of Appeals in Sisk v. Garey, 27 Md. 401 (Md. 1867) spoke forcefully about the availability and of a bill in equity as a remedy to enjoin the operation of a void judgment rendered by a Maryland court.
The inquiry in all cases of this kind
is, first, whether the party seeking the interposition of a Court of Equity,
had an adequate defence at law, and secondly, whether he was deprived of the
opportunity of making such defence, by fraud, surprise, or inevitable accident
or mistake, without any default of his own. If we apply these principles to the
case as presented by the first or second bill and the answers thereto, it
appears there was sufficient ground for issuing and continuing the injunction
as prayed. The Courts of Equity will grant
relief, in cases where the defendant had not adequate defence at law. “It is
well known,” says Story, “that when a suit is brought at the common law, upon
an award, no extrinsic circumstances or matter of fact dehors the award, can be
pleaded, or given in evidence, to defeat it. Thus for example, fraud,
partiality, misconduct or mistake of the arbitrators, is not admissible to
defeat it. But Courts of Equity will in all such cases, grant relief, and upon
due proofs, will set aside the award.” Where, after the hearing was closed, the
arbitrators received a statement from one of the parties, containing new and
different items of claim from any presented at the hearing and without the
knowledge of the other party, a Court of Equity will enjoin a suit at law upon,
and set aside the award
Id. 418-419. (Emphasis added).
Assuming all of Roginsky’s facts plead are true, under Conley v. Gibson,
supra, liberally accepted in a light most favorable to a pro se litigant under Haines v. Keener, supra, then the aberrational and draconian manner in which the Maryland proceedings were conducted, if adjudicated as true by a fact finder would render the Maryland final divorce decree void. All the peculiar procedural and constitutional irregularities combined, if true, to make a farce and mockery of the Roginskys’ right to procedural due process in the Maryland domestic proceeding. Wetmore v. Karrack, 205 U.S. 141, 149 (1907). The “departure from established modes of procedure render judgment void,” Windsor v. McVeigh, 93 U.S. 274, 282 (1876). Particularly when the procedural defects are of sufficient magnitude and “so unfair as to deprive the proceeding of its vitality.” Eagles v. U.S., 329 U.S. 304, 314 (1946). See, Eberhardt v. Intergrated Design & Construction, Inc., 167 F. 3d 861, 871 (4th Cir. 1999); Schwartz v. U.S., 976 F.3d 213, 217(4th Cir. 1992) (judgment void if rendering court lacked personal jurisdiction, subject matter jurisdiction, or wanting in due process; Firestone Tire & Rubber v. Marlboro Cotton Mills Co., 282 F. 811,814-816 (4th Cir. 1922) (equity enjoins judgment obtained by fraud); Resolute Insurance Co. v. North Carolina, 397 F.2d 586, 589 (4th Cir. 1968) (federal court may entertain a collateral attack on a state court judgment wanting in due process); Catz v. Chalker, 142 F.3d 271, 292-293 fn.8 (6th Cir.1998); Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140-41 (9th Cir.2004) (plaintiff in federal court can seek to set aside a state court judgment as void as obtained by fraud, citing Barrow v. Hunton); Cook v. Alexandria National Bank, 282 A.2d 97, 101 (Md. 1971) (void judgment may be assailed at all times, in all proceedings and collaterally attacked at anytime); Travelers Indemnity Co. vs. Nationwide Construction Company; 224 A.2d 285, 290-291 (Md. 1966); Oppenheimer v. Michbar Company, 63 A.2d 765, 768-769 (Md. 1949); Thomas v. Hardisty, 143 A.2d 618,624-625 (Md. 1958) (judgment is void where defendant not given full and fair opportunity to defend).
Roginsky’s verified complaint alleges inter alia pervasive ex parte
contacts by Blake’s divorce attorney that implicate due process, in that such communications are destructive of fundamental fairness and the right of a
party to be heard. Ex parte communications are prohibited in order to ensure that every person in a proceeding is given the full right to be heard according to law.
Ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge. Ex parte conversations or correspondence can be misleading; the information given to the judge may be incomplete or inaccurate, the problem can be incorrectly stated. At the very least, participation in ex parte communications will expose the judge to one-sided argumentation, which carries the attendant risk of an erroneous ruling on the law or facts. At worst, ex parte communication is an invitation to improper influence if not outright corruption.
J. Shaman, S. Lubet & J. Alfini, Judicial Conduct and Ethics, 2d Ed., 501, p. 151-
152(1995).
A common bill in equity to enjoin the operation of a void final judgment has long been available whenever a ”party, through no fault of his own, has had no opportunity to present an otherwise meritorious claim or defense.” In U.S. v. Throckmorton, 98 U.S. 61, 65-68 (1878) the Court clearly recognized the availability of the equitable remedy in cases such as those involving connivance by the prevailing party in securing a final judgment.
But there is an admitted exception to
this general rule in cases where, by reason of something done by the successful
party to a suit, there was in fact no adversary trial or decision of the issue
in the case. Where the unsuccessful
party has been prevented from exhibiting fully his case, by fraud or deception
practised on him by his opponent, as by keeping him away from court, a false
promise of a compromise; or where the
[defendant never had knowledge of the suit, being kept in ignorance by
the acts of the plaintiff; or where an attorney fraudulently or without
authority assumes to represent a party and connives at his defeat; or where the
attorney regularly employed corruptly sells out his client’s interest to the
other side, -- these, and similar cases which show that there has never been a
real contest in the trial or hearing of the case, are reasons for which a new
suit may be sustained to set aside and annul the former judgment or decree, and
open the case for a new and a fair hearing.
Id. at
65-66.
Marshall
v. Holmes, 141 U.S. 589 (1891) relying on Barrow v. Hunton, 99 U.S.
80 (1878), extends Throckmorton.
While, as a general rule, a defence cannot
be set up in equity which has been fully and fairly tried at law, and although,
in view of the large powers now exercised by courts of law over their
judgments, a court of the U.S., sitting in equity, will not assume to control
such judgments for the purpose simply of giving a new trial, it is the
settled doctrine that “any fact which clearly proves it to be against
conscience to execute a judgment, and of which the injured party could not have
availed himself in a court of law, or of which he might have availed himself at
law, but was prevented by fraud or accident, unmixed with any fault or
negligence in himself or his agents, will justify an application to a court of
chancery.” The leading case upon this
subject is Barrow v. Hunton, 99 U.S. 83-85(1878).
Id. at 596-598. (Emphasis added).
While the precise elements of a fraud upon the court
claim are somewhat nebulous, this Circuit has stated that it is most “typically
confined to the most egregious cases, such as bribery of a judge or juror, or improper
influence exerted on the court by an attorney, in which the court’s integrity
and ability to function impartially is directly impinged.” Great Coastal
Express Company v. International Brotherhood, 675 F.2d 1349, 1355-56 (4th
Cir. 1982); Bizzell v. Hemingway, 548 F.2d 505, 508 (4th Cir. 1977); Zahrey
v. Coffey, 221 F. 3d 342, 355-357 (2d Cir. 2000)(right to be free from
“fabricated” evidence).
The Maryland courts are in accord. Fleisher v. The Fleisher Company, 483 A.2d 1312 (Md. 1984). In Schwartz v. Merchants Mortgage Co., 272 Md. 305, 322 A.2d 544 (1974), the Court of Appeals reaffirmed Maryland’s adherence to the reasoning and language of the Supreme Court in the case of U.S. v. Throckmorton, 98 U.S. 61 (1878):
Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, -- these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. 98 U.S. at 95.”
Id. at 1314-1315 . (Emphasis added)
The foregoing is adopted, by Fleisher v. The
Fleisher Company, 483 A.2d at 1314-1315. It is apparent under U.S. v. Throckmorton, and Marshall v.
Holmes, a bill in equity
lies under Barrow v. Hunton in federal court to enjoin the operation of
a void judgment. All the elements essential to a bill are present in this case:
(1)
[J]udgment which ought not, in equity and good conscience, be enforced; (2) a
good defense to the alleged cause of action on which the judgment is founded;
(3) fraud, accident, or mistake which prevented the defendant in the judgment
from obtaining the benefit of his defense; (4) the absence of fault or
negligence on the part of the defendant; (5) the absence of any adequate remedy
at law.
Chicago Railway Co., v. Callicottee, 267 F. 799, 803-805 (8th Cir. 1920). See also, Great
Coastal Express Company v. International Brotherhood, 675 F.2d 1349, 1358
(4th Cir. 1982); Addington v. Farmer’s Elevator Mutual Insurance Co.,650
F.2d 663, 667-68(5th Cir. 1981) (Five part elements in Chicago
Railway quoted and adopted).
In sum, the complaint, pleaded with the specificity
required by F.Civ.P.R. 9(b) for cases alleging fraud, contains allegations of
pervasive ex parte collusion, which, if adjudicated true on remand,
renders the decree of absolute divorce void as wanting in due process.
As early as
Magna Carta, procedural norms were regarded as a valuable
means of protecting the rights of litigants. In
America, with the object of preventing an arbitrary government, procedural
safeguards were guaranteed to all persons by the inclusion of “due process”
clauses in the various federal and state constitutions.
Few
principles of law, applicable as well to the administrative process, are as
fundamental or well established as “a party is not to suffer . . . without an
opportunity of being heard.” Painter v. Liverpool Oil Gas Light Co., 11
Eng. Rep. 478, 484, 3 Adm. & Eccl. 433, 448-49 (K.B. 1836). For the American, in the words of Justice
Frankfurter:
“audi
alteram partem—hear the other side!
-- a demand made insistently through the centuries, is now a command, spoken
with the voice of the Due Process Clause of the Fourteenth Amendment. . . .”
Caritativo v. California, 357 U.S. 549, 558(1958) (Frankfurter, J.
dissenting).
Gorman v. University of Rhode Island, 837 F.2d 7, 12 (1st Cir. 1988).
Based on Roginsky’s “conscience shocking” allegations
of judicial collusion, the Maryland divorce decree is also void for want of
substantive due process. The core touchstone of procedural due process is the
fundamental requirement that an individual be given the opportunity to be heard
in a meaningful manner. See Loudermill v. Cleveland Bd. of Education,
470 U.S. 532 (1985).
The malodorous and egregious allegations by Roginsky
claim that Blake, with the complicity and active participation of her Maryland
divorce lawyer, the chief judge, the domestic relations master, the
court-appointed psychologist and the court appointed guardian ad litem clearly
demonstrate procedural due process violations. Roginsky’s “conscience shocking”
allegations if found to be true, also constitute substantive due process[9]
violations rendering the Maryland decree void.
The rationale for granting procedural protection to an
interest that does not rise to the level of a fundamental right lies at the
very heart of our constitutional democracy: the prevention of arbitrary use of
government power. A substantive due
process, on the other hand, serves the goal of preventing governmental power
from being used for purposes of oppression, regardless of the fairness of the
procedures used. See Daniels v.
Williams, 474 U.S. 327, 331(1986) (citation omitted). Substantive due process serves as a vehicle
to limit various aspects of potentially oppressive government action. For example, it can serve as a check on
legislative enactments thought to infringe on fundamental rights otherwise not
explicitly protected by the Bill of Rights; or as a check on official
misconduct which infringes on a “fundamental right”; or as a limitation on
official misconduct, which although not infringing on a fundamental right, is
so literally “conscience shocking”, hence oppressive, as to rise to the level
of a substantive due process violation.
However,
where the governmental decision causing a deprivation is made without any
process where one is required, the inquiry shifts to the nature of the conduct
causing the deprivation. That is, the
question becomes whether the decision to deprive a person of a protected
liberty interest was made more than negligently. See id. at 329‑30.
Wanton and abusive behavior is not a constitutional prerequisite to
liability in this context; the
failure to provide due process, where the government
is constitutionally required to do so, is in itself an arbitrary and unfair use
of official power.
In short, substantive due process prohibits the
government's abuse of power or its use for the purpose of oppression, and
procedural due process prohibits arbitrary and unfair deprivations of protected
life, liberty, or property interests without procedural safeguards. . .
Howard v. Grinage, 82 F. 3d 1349 (6th Cir.
1996).
To state a cognizable claim, both substantive and procedural
due process violations must "deprive" an individual of a
constitutionally protected interest, and the deprivation must be
"arbitrary in the constitutional sense," Collins v. City of Harker
Heights, 503 U.S. 115,129 (1992), each imposes upon a plaintiff a different
burden to state a cognizable claim. As applied to the facts of Roginsky’s case the alleged conduct of judicial collusion "shocks the
conscience" of the court and therefore renders the Maryland divorce decree
void as wanting in substantive due process. Rochin v. California, 342
U.S. 165, 172-73 (1952); Daniels v. Williams, 474 U.S. 327, 331 (1986); Hawkins
v. Freeman, 195 F.3d 732, 739-742(4th Cir.1999)(en banc); Martin
v. St. Mary's Dep't of Soc. Servs., 346 F.3d 502, 511(4th Cir. 2003)
(substantive due process claim arising in custody dispute with Maryland social
services agency); Mertik v. Blalock, 983 F.2d 1353, 1367-68 (6th Cir.
1993).
Accepting as true, as this Court must, Roginsky’s
“shocking conscience” factual allegations of judicial collusion and other acts
which constitute a fraud upon the Maryland divorce court, clearly renders the
Maryland divorce decree void as wanting in both procedural and substantive due
process under the Fourteenth Amendment of the U.S. Constitution.
2. The “Domestic Relations” Exception to
Federal Subject Matter Jurisdiction Does Not Apply to an Original, Separate and
Independent Action in the Nature of a Bill in Equity Arising Directly Under
Federal and Maryland Common Law Collaterally Attacking as Void a Final Judgment
of Absolute Divorce Rendered by a Maryland State Court as Totally Wanting in
Procedural and Substantive Due Process.
In dismissing this independent common law bill in equity, the District Court improperly applied the long-standing “Domestic Relations” exception doctrine to federal subject matter jurisdiction, that provides that the U.S. courts have no judicial power to hear claims where the “core” issues presented, require the court to grant a divorce, annulment, alimony, determine support payments, award custody of a child or provide for the distribution of the marital estate. The “Domestic Relations” exception doctrine, is generally thought to originate in dicta of two early Supreme Court cases, Barber v. Barber, 62 U.S. (21 How.) 582, 584, (1858), and Ex Parte Burrus, 136 U.S. 586, 593-594 (1890). [10] In so doing the district court simply misapplied the “Domestic Relations” exception doctrine to this common law bill in equity as resolving the merits of the challenges to the state court judgment herein, even though this case does not require the U.S courts to become “embroiled” or “enmeshed” in the adjudication of substantive core issues of Maryland domestic relations law. Contrarily, the Supreme Court has made clear that a federal court may decide whether a state court judgment of divorce is valid and therefore entitled to full faith and credit under 28 U.S.C. § 1738, so long as the U.S. courts are not embroiled in the factual details and substantive law of the rendering state regarding divorce decrees, alimony, child support, custody, division of property and the like. Elk Grove Unified School District v. Newdow, 159 L.Ed. 2d 98, 110 (2004); Griffin v. Griffin, 327 U.S. 220, 223 (1945); Sutton v. Lieb, 342 U.S.402, 403-407 (1952); Harrison v. Harrison, 214 F.2d 571,573 (4th Cir.1954); Catz v. Chalker, 142 F.3d 271, 292-293(6th Cir. 1998).[11]
When examining the validity of a final state divorce
decree, federal courts are rarely embroiled in the factual details of the
“family law” dispute, except in the context of substantive state law regarding
domestic relations and the application of full faith and credit considerations
arising under Article IV § 1 of the U.S. Constitution and the Full Faith and
Credit Act, 28 U.S.C. § 1738. If a fraud has been committed upon the rendering
state court, it matters not under the Due Process Clause that the “litany of
improprieties”, i.e., the fraud, took place, albeit off the record, in a “Domestic
Relations” proceeding.
The gravamen of Roginsky’s claims regarding a void judgment
which “concern matters related to divorce, custody, child support and alimony”
and the like have nothing to do with
the “domestic relations” laws of Maryland.
Roginsky’s inconvenient and unpleasant factual allegations concern very
serious claims of extrinsic and intrinsic fraud upon the rendering court in the
form of judicial collusion, abuse of process, suborned perjury, fraudulent
concealment of the results of a psychological report regarding Blake, and a
fabricated professional report
submitted to the rendering court by a court-appointed family psychologist --who
was unaware that Roginsky was tape recording some of the counseling sessions
with Roginsky and Joshua.
Roginsky’s allegations regarding a “litany of
improprieties” details conduct so egregious that it states a claim for damages
for judicial collusion under 42 U.S.C. § 1983 against non-judicial state
actors. Dennis v. Sparks, 449 U.S.24 (1982); Lugar v. Edmondson Oil
Co., 639 F. 2d 1058, 1068 (4th Cir. 1981), affirmed in part, 457
U.S. 922 (1982) (private state court litigants who by conspiracy with state
judge had induced the latter to issue an injunction depriving adversary of
property thereby acted ‘under color of law’ for § 1983 purposes.”) See also, Scotto v. Alemans, 143 F.3d
105 (2d Cir. 1998). It is absolutely clear that Roginsky is not seeking a
“review” of the Maryland decree for legal error. Roginsky had already successfully sought “review” in 1999 by
direct appeal of all issues that were supported by the trial record. Roginsky v. Blake-Roginsky, 740 A.2d
125 (Md. App. 1999), cert. denied, 747 A.2 645 (Md. 2000). Thus Roginsky’s “litany of improprieties”,
which occurred off the record of the Maryland domestic proceeding, if found to
be true, would clearly support an “inference that private actors were active,
willful participants” with state judicial actors in violating the Roginskys’ “due process right to a full
and fair opportunity to heard”.[12]
Dykes v. Hosemann, 743 F.2d 1488, 1494 (11th Cir.1984).
Regarding the application of the “Domestic Relations” exception, this Circuit has consistently held that simply because a federal plaintiff’s substantive claims may touch on some aspects of intra-family relations does not necessarily deprive the federal courts of subject matter jurisdiction. Cole v. Cole, 633 F.2d 1083 (4th Cir. 1982).
A district court may not simply avoid all diversity cases having intra-family aspects. Rather it must consider the exact nature of the rights asserted or of the breaches alleged. . . so long as diversity of jurisdiction endures, federal courts cannot shirk the inconvenience of sometimes trading in wares from the foul rag-and-bone shop of the heart.
* * * *
The duty to abstain from malicious prosecution, from abuse of process, from arson, and from conversion does not arise out of or require ... a present or prior family relation”; “deciding this case would not require the court either to adjust family status or establish duties under family-relations law or to determine whether or not such duties had been reached”; “the claims asserted could have arisen between strangers, and certainly between people with no marital relationship whatever”; and the asserted causes of action “do not require the existence of any rule particularly marital in nature as a substantial ingredient to give them vitality.”
Id. at 1087-89.
Wasserman
v. Wasserman, 671 F.2d 832, 834-35 (4th Cir. 1982), holds:
However, the torts of child enticement and intentional infliction of emotional distress are in no way dependent on a present or prior family relationship. . . . Most importantly, appellant is not seeking a determination of entitlement to custody or any other adjustment of family status.
Id. at
834-835.
Thus any adjudication by a U.S. court that does not require the
adjustment of family status, familial duties or determining the existence of a breach
of such duties as such, simply does not contravene the “Domestic Relations”
visitation and support).
In Anderbrandt v. Richards, 504 U.S. 689 (1992), the Supreme Court wholly adopted this Circuit’s “Domestic Relations” exception jurisprudence decisions discussed above[13], when it held that the “Domestic Relations” exception, which ordinarily divests the federal courts of judicial power in diversity cases, is to be narrowly confined to core issues of divorce, alimony, custody and division of the marital estate:
In order to determine whether the case falls within
this narrow exception this Court must sift through the claims of the complaint
to determine the true character of the dispute to be adjudicated. As to the
right to the control and possession of this child, as it is contested by its
father and its grandfather, it is one in regard to which neither the Congress
of the U.S. nor any authority of the U.S. has any special jurisdiction.” In re Burrus, 136 U.S. at 594.
Id. at 703-704.
Although
In re Burrus technically did not involve a construction of the diversity
statute, as we understand Barber to have done, its statement that “the
whole subject of the domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the U.S.,” id.,
at 593-594, has been interpreted by the federal courts to apply with equal
vigor in suits brought pursuant to diversity jurisdiction
This
application is consistent with Barber’s directive to limit federal
courts’ exercise of diversity jurisdiction over suits for divorce and alimony
decrees. See, Barber, 21 HOW at
584. We conclude, therefore, that the domestic relations exception, as
articulated by this Court since Barber, divests the federal courts of
power to issue divorce, alimony, and child custody decrees. Given the long
passage of time without any expression of congressional dissatisfaction, we
have no trouble today reaffirming the validity of the exception as it pertains
to divorce and alimony decrees and child custody orders.
Id. at 702-704.
The
only federal court to consider the precise questions presented is the Sixth
Circuit. It is clear that this action
simply collaterally attacks the Maryland divorce decree as void as wanting in
due process, and is unaffected by the “Domestic Relations” exception to federal
subject matter jurisdiction. In Catz
v. Chalker, 142 F. 2d 271 (6th Cir.1998), Judge Danny Boggs rejected the
district court’s dismissal under the “Domestic relations” exception to federal
subject matter jurisdiction of an independent action in the nature of a common
law bill in equity seeking to enjoin the operation of a void final state court
judgment of divorce as wanting in due process:
Our
disagreement with the district court comes down to the question of whether
Catz’s action is a “core” domestic relations case, seeking a declaration of
marital or parental status, or a constitutional claim in which it is incidental
that the underlying dispute involves a divorce. We conclude that the case is
best described as the latter. True, the remedy Catz seeks – a declaration that
the Pima County divorce decree is void as a violation of due process—would seem
to “directly impact the marriage status and rights between the husband
Plaintiff and his wife.” On the other hand, if the divorce judgment was
unconstitutionally obtained, it should be regarded as a nullity, see Phoenix
Metals Corp. v. Roth, 79 Ariz. 106,
284 P.2d 645, 648 (Ariz. 1955), and any decree so stating would change nothing
at all. Further, the declaration Catz seeks would not itself address the
merits, or ultimately dispose, of Chalker’s divorce petition; she would be free
to relitigate her marital status in state court. Finally, Catz is not asking
the district court to involve itself in the sort of questions attendant to
domestic relations that are assumed to be within the special expertise of the
state courts—for instance, the merits of a divorce action; what custody
determination would be in the best interest of a child; what would constitute
an equitable division of property; and
the like. Instead, Catz asks the court to examine whether certain judicial
proceedings, which happened to involve a divorce, comported with the federal
constitutional guarantee of due process. This is a sphere in which the federal
courts may claim an expertise at least equal to that of the state courts.
Our
conclusion that the domestic relations exception ought not to apply here finds
support in the Supreme Court’s latest announcement on the subject, Ankenbrandt
v. Richards, 504 U.S. 689(1992). There, the Court (impressed that the
doctrine’s pedigree, though dubious, was certainly very old; and supposing that
the jurisdictional limit had been ratified by Congressional silence) reaffirmed
the existence of the doctrine, but gave it narrow scope:
We conclude, therefore, that the
domestic relations exception, as articulated by this Court since Barber,
divests the federal courts of power to issue divorce, alimony, and child
custody decrees. . . concluding, as we
do, that the domestic relations exception encompasses only cases involving the
issuance of a divorce, alimony, or child custody decree, we necessarily find
that the Court of Appeals erred by affirming the District Court’s invocation of
this exception. This lawsuit in no way seeks such a decree; rather, it alleges
that respondents . . . committed torts against . . . Ankenbrandt’s children . .
. Federal subject-matter jurisdiction pursuant to § 1332 thus is proper in this
case. Id. at 703-04. The Court also
noted that “the better reasoned views among the Courts of Appeals have
similarly stated the domestic relations exception as narrowly confined to suits
for divorce, alimony, or child custody decrees.” Id., at 703 n.6. We
take this language
to mean, plainly
enough, that the domestic relations exception applies only where a plaintiff
positively sues in federal court for divorce, alimony, or child custody. This
is simply not such a lawsuit. Nor is it made so by the fact that the suit, if
successful, would alter the parties’ status, rights, and obligations, as they
had been most recently determined by the Pima County court.
Id. at
291-293 (footnotes omitted) (Emphasis added). See, Johnson v. Rodriques,
226 F.3d 1103, 1107-1113 (10th Cir. 2000) (applying Catz v. Chalker); Dunn
v Cometa, 238 F.3d 38, 42(1st Cir. 2001) (same)