In the
United States Court of Appeals
For the Seventh Circuit
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No. 07-2420
JAMES T. STRUCK,
Plaintiff-Appellant,
v.
COOK COUNTY PUBLIC GUARDIAN,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 2980—Rebecca R. Pallmeyer, Judge.
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SUBMITTED OCTOBER 31, 2007—DECIDED NOVEMBER 26, 2007
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Before POSNER, WOOD, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The plaintiff appeals from the
dismissal of his suit, which the district court held was
outside its jurisdiction. The complaint alleged that an
Illinois state court had appointed a guardian for the
plaintiff’s mother because she was incompetent to man-
age her own affairs, and that the plaintiff had asked the
court to revoke the guardianship because the guardian
was abusing his mother, refusing to let him visit her,
and denying him access to her records, mail, and assets.
Turned down by the state court, he brought this suit in
federal district court against the Cook County Public
2 No. 07-2420
Guardian, the public official who had designated the
guardian of the plaintiff’s mother. The suit charges vio-
lations of both the plaintiff’s and his mother’s federal
constitutional rights.
The plaintiff is not his mother’s guardian and there-
fore is not authorized to sue on her behalf; and to the ex-
tent that he is seeking appellate review in a federal district
court (or in this court) of the decision by the Illinois
state court, his suit is barred by the Rooker-Feldman doc-
trine. But his complaint, though none too clear (he does
not have a lawyer), appears also to be claiming miscon-
duct by the guardian that continued after the judgment
in the plaintiff’s unsuccessful state court suit.
And the plaintiff does have a claim on his own be-
half—that the guardian is preventing him from seeing his
mother and by doing so is depriving him of liberty pro-
tected by the due process clause of the Fourteenth Amend-
ment, liberty that he argues includes the right of an adult
child to associate with his parent. Whether the argu-
ment has merit has split the circuits, as explained in
Robertson v. Hecksel, 420 F.3d 1254, 1258-60 (11th Cir. 2005),
but remains an open question in this circuit. Jones v.
Brennan, 465 F.3d 304, 308 (7th Cir. 2006); Russ v. Watts,
414 F.3d 783, 790 (7th Cir. 2005). We need not try to answer
it in this case. For the preliminary question is whether
the suit is barred by the doctrine that excepts from fed-
eral jurisdiction certain probate and domestic-relations
cases, such as will contests, custody battles, and suits for
divorce; and we think it is barred.
The exception is usually described as two exceptions, one
for probate and one for domestic relations. But the two
exceptions are materially identical. The fact that they are
No. 07-2420 3
two rather than one reflects nothing more profound than
the legal profession’s delight in multiplying entities.
In Jones v. Brennan, supra, 465 F.3d at 306-07, we pointed
out that the exception originally was thought compelled
by the phrase “judicial Power of the United States,” in
Article III of the Constitution. The federal judiciary
was modeled on the three British royal courts at West-
minster, and in Britain in the eighteenth century most
domestic-relations and probate matters were consigned
to other courts. But the modern understanding is that
the exception, except insofar as it bars the federal courts
from entertaining nonadversary proceedings, such as the
uncontested appointment of a guardian or the uncontested
probate of a will, which are not cases or controversies
within the meaning of Article III, is based on a pragmatic
interpretation of the statutes that give the federal courts
jurisdiction over cases at law and in equity (the current
term, covering both, is “civil actions,” e.g., 28 U.S.C.
§§ 1331, 1332). Such terms need not be interpreted to
embrace all domestic-relations and probate matters, even
if they are real cases. Typical adversary proceedings
involving domestic relations or probate, such as child-
custody proceedings and proceedings to resolve disputes
over the administration of a decedent’s estate (or as in
this case and in Jones the estate of a living person who
is incompetent to manage his affairs), are, like the
nonadversary probate and domestic-relations proceed-
ings, still in rem in character. That is, they are fights over
a property or a person in the court’s control. And a
court other than the one that controls the res—the subject
of the custody battle or the property in the decedent’s
estate—should not be permitted to elbow its way into
such a fight. As the Supreme Court explained in Marshall
4 No. 07-2420
v. Marshall, 547 U.S. 293, 311-12 (2006) (citations omitted),
“when one court is exercising in rem jurisdiction over a
res, a second court will not assume in rem jurisdiction over
the same res. Thus, the probate exception reserves to
state probate courts the probate or annulment of a will
and the administration of a decedent’s estate; it also
precludes federal courts from endeavoring to dispose of
property that is in the custody of a state probate court. But
it does not bar federal courts from adjudicating matters
outside those confines and otherwise within federal
jurisdiction.”
State courts, moreover, are assumed to have developed
a proficiency in core probate and domestic-relations
matters to have evolved procedures tailored to them, and
some even employ specialized staff not found in federal
courts. The comparative advantage of state courts in re-
gard to such matters is at its zenith when the court is
performing ongoing managerial functions for which
Article III courts (as distinct from the Article I bankruptcy
courts, specialists in in rem proceedings analogous to
administering wills and supervising the custody of chil-
dren and other legal incompetents) are poorly equipped.
So the “exception” is akin to a doctrine of abstention.
The purpose of a legal doctrine frequently limits its
scope, and this is true of the probate/domestic-relations
exception. The plaintiff in Jones v. Brennan had charged a
conspiracy between a guardian and others to violate her
rights in the course of their administration of her father’s
estate. We ruled that such a suit could be litigated in
federal court. The father had died and the probate of his
estate had been completed, so that the plaintiff was not
seeking to inject the federal court into the administration
of the estate and wrest a res from the control of another
No. 07-2420 5
court, just as, in Marshall v. Marshall, a suit charging the
plaintiff’s stepson with tortious interference with her
expectation of a bequest from her deceased husband,
the plaintiff was seeking a judgment against the stepson
personally, not against the estate.
This case is different. The res—the plaintiff’s mother—is
in the control of the guardian appointed by the state
court, and decisions concerning the plaintiff’s right of
access to his mother and to her assets, her records, and
her mail are at the heart of the guardian’s responsibilities
and are supervised by the court that appointed him. Unlike
the plaintiff in Jones, our plaintiff is seeking to remove
into the federal court the res over which a state court is
exercising control. That is the sort of maneuver that the
probate/domestic-relations exception is intended to
prevent. The dismissal of the plaintiff’s federal suit is
therefore
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-26-07