NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 21-2571
_______________________
PAUL ARGEN;
SURENDER MALHAN,
Appellants
v.
ATTORNEY GENERAL NEW JERSEY;
HON. DAVID KATZ
_______________________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 2-18-cv-00963
District Judge: Honorable Susan D. Wigenton
__________________________
Argued June 15, 2022
Before: HARDIMAN, SMITH, and FISHER, Circuit Judges
(Filed August 16, 2022)
Paul A. Clark [ARGUED]
Suite 1N
10 Huron Avenue
Jersey City, NJ 07306
Counsel for Appellants
Brett J. Haroldson
Robert J. McGuire [ARGUED]
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellees
__________________________
OPINION*
__________________________
SMITH, Circuit Judge.
Surender Malhan, a party to a New Jersey family court proceeding, and Paul
Argen, a member of the media who is prevented by a 2015 family court gag order from
interviewing Malhan concerning certain aspects of the proceeding, appeal the District
Court’s dismissal of their challenges to the gag order on Younger abstention grounds.
We will affirm dismissal of Malhan’s claim as precluded under the doctrine of res
judicata.1 As for Argen, because the Younger doctrine does not extend to him, we will
vacate dismissal of his claim and remand it for further proceedings consistent with this
opinion.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
See Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 174 (3d Cir. 2009) (“We may
affirm the District Court on any grounds supported by the record.” (citation and quotation
marks omitted)).
2
I
Amid long-running and acrimonious divorce and child custody proceedings,
Malhan’s putative ex-wife sought a gag order from the family court to protect her and
Malhan’s minor children from potentially damaging public scrutiny. Nichols v. Sivilli,
No. 14-3821, 2014 WL 7332020, at *1 (D.N.J. Dec. 19, 2014). Then-presiding Judge
Nancy Sivilli granted the requested order, which broadly prohibited Malhan and his
putative ex-wife from discussing the proceeding online or with the press. Id. at *1–*2.
Subsequently, in separate federal cases not directly relevant to the case on appeal here,
two members of the media challenged Judge Sivilli’s order on First Amendment right-of-
access grounds. Both challenges were eventually abandoned.2
In 2015, after Judge Sivilli recused herself, her successor, Judge Donald Kessler,
held a hearing to evaluate the appropriateness of Judge Sivilli’s gag order. Judge Kessler
stated that he would want to “narrowly tailor” any gag order, Plaintiff’s App’x 95, but
that the record of the proceedings at that point were insufficient to allow him to do so.
Accordingly, he ordered both Malhan and his putative ex-wife to work with a court-
appointed psychologist to evaluate how the children might be adversely impacted by
publicity relating to their parents’ dispute.
2
Allen v. Chell, D.N.J. No. 15-3519, Dkt. 19, at 2 (May 9, 2016) (dismissing Karl
Hagberg’s challenge because “Judge Sivilli’s gag order ha[d] been ‘largely vacated’”);
Allen v. DeBello, 3d Cir. No. 16-2644, Allen’s Opening Br. (Aug. 1, 2016) (failing to brief
the dismissal of Hagberg’s challenge); Nichols v. Sivilli, D.N.J. No. 14-3821, Dkt. 47 (Dec.
6, 2016) (granting voluntary dismissal of challenge by Paul Nichols, who had passed
away).
3
To preserve the status quo, and choosing to “err on the side of caution to protect
[the children’s] best interest,” id., Judge Kessler entered a 2015 gag order that superseded
the one that had been entered by Judge Sivilli. It read:
All parties are hereby restrained and enjoined from speaking with, appearing for
an interview, or otherwise discussing any custody information to any reporters,
journalists, newscasters or other news media employees or from posting any blogs
or information not previously posted or disseminated relating to the children or
any custody issue in this case pending a further hearing.
Id. at 61 (emphasis added).
Judge Kessler entered the gag order, apparently on a sua sponte basis, even though
he suggested that Malhan’s putative ex-wife had not carried her “burden of proof” on the
question of whether a gag order was necessary. Id. at 94. He explained that he was
entering the gag order against both parties to ensure that “no one’s making a decision that
they later regret”—“hurting the child [when t]hey didn’t mean for it to happen[.]” Id. at
95.
The 2015 gag order remains in effect to this day. As Malhan would later admit to
the District Court, in the nearly three years following Judge Kessler’s entry of the gag
order, he never cooperated with the ordered psychological evaluation. District Court
Dkt. 18, ¶ 4 (Apr. 18, 2018) (informing the District Court that Malhan’s expert was
“unable to offer [the ordered] expert opinion”).
Instead, in 2018, Malhan and Argen sought to set aside the 2015 gag order by
filing a federal lawsuit against Judge Kessler and the Attorney General of New Jersey.
(Because Malhan would successfully move to recuse Judge Kessler and his successor, on
the basis that they were conflicted as adverse parties to him in federal litigation, we will
4
refer to the judicial defendant hereinafter as “the family court defendant.”). Pursuant to
42 U.S.C. § 1983 and 28 U.S.C. § 2201, Malhan and Argen sought a declaration that the
2015 gag order violated the First Amendment and an injunction prohibiting its
enforcement against Malhan. Malhan claimed a right to speak; Argen claimed a right to
listen.
Defendants moved for dismissal, which the District Court denied in part and
granted in part. After determining that abstention was inappropriate, the District Court
concluded that the family court defendant was properly subject to suit. By contrast,
because Plaintiffs failed to implicate the Attorney General in the enforcement of the gag
order, the District Court dismissed the Attorney General from the litigation. Finally, the
District Court dismissed Plaintiffs’ request for injunctive relief against the family court
defendant as barred by Section 1983, although it concluded that Plaintiffs’ declaratory
relief claim could proceed. Subsequently, in February 2020, Plaintiffs filed an
interlocutory appeal from the District Court’s denial of injunctive relief.
In July 2020, before we affirmed the District Court’s dismissal of Plaintiffs’
injunctive relief claim, see Argen v. Katz, 821 F. App’x 104, 104 (3d Cir. 2020), Malhan
alone filed a second lawsuit challenging the 2015 gag order. Although the
2020 Complaint described new occurrences that had taken place after Plaintiffs filed their
2018 Complaint, the later-in-time Complaint concerned the same 2015 gag order in the
same family court proceeding that was challenged in the earlier-in-time Complaint. E.g.,
Malhan v. Katz, D.N.J. No. 20-8955, Dkt. 1, ¶¶ 76–77, 81 (describing 2015 gag order as
having remained “in effect” for “five years”).
5
In October 2020, the District Court dismissed Malhan’s 2020 Complaint with
prejudice for reasons not relevant to this appeal,3 and in June 2021, we affirmed. Malhan
v. Katz, 850 F. App’x 838, 838 (3d Cir. 2021). Shortly thereafter, in Plaintiffs’ case here,
the District Court reconsidered the issue of Younger abstention4 and concluded that it was
required to abstain from hearing both Argen’s and Malhan’s challenges to the 2015 gag
order. Thus, it dismissed the claims raised by both Argen and Malhan in their 2018
Complaint.
This appeal followed.5
II
We must first determine Defendants’ amenability to suit. With respect to
Plaintiffs’ claims against the Attorney General, we agree with the District Court that
Plaintiffs provided only a “generalized statement of the Attorney General’s duties as
attorney for the State,” Argen v. Kessler, No. 18-963, 2018 WL 4676046, at *11 (D.N.J.
3
Malhan has not challenged the manner of the District Court’s dismissal. See FTC v.
AbbVie, Inc., 976 F.3d 327, 381 (3d Cir. 2020) (“Arguments not briefed are forfeited on
appeal.”).
4
Named for Younger v. Harris, 401 U.S. 37 (1971). The District Court concluded that
abstention was required under Younger based on an intervening articulation of the doctrine
we issued not-precedentially in 2020. Argen v. Katz, No. 18-963, 2021 WL 2850427, at
*2–3 (D.N.J. July 8, 2021) (citing Silver v. Ct. of Common Pleas of Allegheny Cnty., 802
F. App’x 55 (3d Cir. 2020)).
5
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction
pursuant to 28 U.S.C. § 1291. We review dismissals pursuant to the Younger abstention
doctrine de novo. Smith & Wesson Brands, Inc. v. Att’y Gen. of N.J., 27 F.4th 886, 890
(3d Cir. 2022) (citation omitted).
6
Sept. 28, 2018), without allegations implicating him in the enforcement of the gag order.6
Thus, we conclude that the Attorney General is “the wrong defendant,” cf. Williams v.
Army & Air Force Exch. Serv., 830 F.2d 27, 28 (3d Cir. 1987),7 and will affirm the
District Court’s dismissal of the Attorney General from this litigation.
We agree with Plaintiffs, however, that the family court judge is a proper
defendant for Argen’s declaratory relief claim. The doctrine of judicial immunity does
not bar Argen’s claims because a judge’s crafting of a gag order is administrative in
character and concerns a “non-merits issue,” see Bank of Hope v. Chon, 938 F.3d 389,
392, 394 (3d Cir. 2019) (holding that courts have inherent power to “keep their
proceedings fair and orderly” through measures such as gag orders), and thus it is not
purely an exercise of neutral adjudication. In turn, a judge who makes and enforces a
6
The only paragraph in Plaintiffs’ Complaint concerning the Attorney General’s
involvement is its statement that the “Attorney General’s Office represented all of the
judges [in Nichols v. Sivilli] and opposed [a motion to substitute the family court
defendant].” Argen v. Katz, D.N.J. No. 18-963, Dkt. 1, ¶ 41 (Jan. 23, 2018). This
contention does not amount to a plausible statement that the Attorney General is
responsible for enforcing the 2015 gag order.
Were we to construe Plaintiffs’ Complaint as incorporating documents they filed
afterwards—specifically, a transcript of the hearing Judge Kessler conducted before
entering the 2015 gag order—we would note that the transcript contradicts Plaintiffs’
position. The Attorney General’s representative stated at the hearing that the Attorney
General took “absolutely no position on the gag order.” Argen v. Katz, D.N.J. No. 18-963,
Dkt. 4-4, at 23 (Jan. 24, 2018); see Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)
(“[A] document integral to or explicitly relied on in the complaint may be considered
without converting the motion to dismiss into one for summary judgment.” (cleaned up)).
7
Cf. Finberg v. Sullivan, 634 F.2d 50, 54 (3d Cir. 1980) (noting that under Ex parte Young
a state official is a proper defendant if the official “‘has some connection with the
enforcement of the [complained of] act’” (quoting 209 U.S. 123, 157 (1908)).
7
rule of an administrative character “can be sued under Section 1983 for declaratory . . .
relief.”8 Allen v. DeBello, 861 F.3d 433, 440 (3d Cir. 2017).
We decline to construe judicial immunity too broadly so that it would be
impossible to bring a federal challenge to a state court judge’s rule of his “own creation.”
Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 533 (2021) (referring to Pulliam v.
Allen, 466 U.S. 522, 526 (1984)). Our dissenting colleague expresses the understandable
concern that “allow[ing] a § 1983 suit against the family court judge disincentivizes
litigants from resolving their grievances through the normal process: appeal in the state
courts.” But we disagree that policy considerations allow us to apply judicial immunity in
this case, for reasons we will explain.
8
We do not disagree with our dissenting colleague that “judges frequently exercise
discretion when adjudicating cases.” We merely conclude that, in the unique circumstance
presented here involving a family court judge’s sua sponte entry of a gag order against both
parties to protect the children from the unintended consequences of their parents’ actions,
the judge’s action was not purely an adjudication of requests presented by the parties.
By contrast, when we have applied judicial immunity, it has been in cases involving
challenges to quintessentially adjudicative actions such as a judge’s handling of witness
presentation and admission of evidence, in a case involving Malhan albeit not-
precedentially, see Malhan v. Katz, 830 F. App’x 369, 370 (3d Cir. 2020); a judge’s
imposition of involuntary commitment, see Brandon E. ex rel. Listenbee v. Reynolds, 201
F.3d 194, 195 (3d Cir. 2000); and a judge’s decision whether to grant an evidentiary
hearing, see Allen, 861 F.3d at 437 (noting action seeking to require judicial defendants to,
“among other things, provide a plenary hearing within ten days to any parent who has his
right to the care, custody, and control of his children reduced through state action”).
8
First, we observe that the record before us is unclear on the question of whether
Argen, as a non-party, could have sought relief in the family courts.9 In any event, when
we were presented in the Younger abstention context with a similar issue concerning the
federal courts’ role in hearing challenges to state-court proceedings, we did not “imply[]
a duty [on the non-party’s part] to exhaust all available state process [before] seek[ing]
relief [on its First Amendment right-of-access claim] . . . from a federal court.”10 FOCUS
v. Allegheny Cnty. Ct. of Common Pleas, 75 F.3d 834, 843 (3d Cir. 1996).
Second, we note that Congress in amending Section 1983 limited but did not
eliminate the availability of injunctive relief against ؙstate judges—and “implicitly
recognize[d] that declaratory relief is available in some circumstances,” Allen, 861 F.3d
at 439—in response to the Supreme Court’s ruling in Pulliam. In Pulliam, the Court had
held that there is no common law doctrine of “absolute judicial immunity from
prospective [injunctive] relief,” 466 U.S. at 536, nor evidence of Congressional intent “to
limit the injunctive relief available under § 1983,” id. at 540. Because Congress in
responding to Pulliam did not eliminate or otherwise limit the availability of declaratory
relief against state judges under Section 1983, we will apply “Congress’s scheme” and
9
See generally N.J. CT. R. 5:3-2(a) (“[T]he [family] court, in its discretion, may on its own
or party’s motion direct that any proceeding or severable part thereof involving the welfare
or status of a child be conducted in private.” (emphasis added)).
10
We note, too, that when federal courts enter gag orders, we do not always require federal
litigants to wait for a final judgment to challenge such orders on First Amendment grounds.
Bank of Hope, 938 F.3d at 394 (holding that the collateral-order doctrine applied to
challenges to the district court gag order at issue).
9
decline “to make a decision based on our judgment in the matter,” BethEnergy Mines,
Inc. v. Dir., Off. of Workers’ Comp. Programs, 32 F.3d 843, 850 (3d Cir. 1994).
Third, “matter[s] of comity and federalism, independent of principles of judicial
immunity,”11 suffice to insulate state court judges from undue scrutiny in federal court
actions. Pulliam, 466 U.S. at 539. The Younger abstention doctrine, which is “reinforced
by the notion of comity,” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013)
(cleaned up and citation omitted), prohibits12 federal courts from hearing challenges to
certain, “exceptional” classes of ongoing state proceedings, including proceedings before
state judges, id. at 78. Similarly, the Rooker–Feldman abstention doctrine13 prohibits
state-court litigants from challenging final “state-court judgments” in federal court to
circumvent the normal process of U.S. Supreme Court review. Malhan v. Sec’y U.S.
Dep’t of State, 938 F.3d 453, 459 (3d Cir. 2019). If we were to construe the doctrine of
judicial immunity as broad enough to bar challenges to state-court orders and proceedings
11
We also observe that “[t]he limitations already imposed by the requirements for
obtaining equitable relief against any defendant . . . severely curtail the risk that judges will
be harassed and their independence compromised by the threat of having to defend
themselves against suits by disgruntled litigants.” Pulliam, 466 U.S. at 537–38.
12
Sprint, 571 U.S. at 72 (“Younger exemplifies one class of cases in which federal-court
abstention is required.”).
13
Named for Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983).
10
already covered by these “narrow” and “exceptional” doctrines,14 we would effectively
render those doctrines redundant. It would have been unnecessary for us to conclude, as
we did in another case involving Malhan’s family court dispute, that Younger and
Rooker–Feldman did not bar Malhan’s challenges to a number of the family court
defendant’s orders: setting his child and spousal support obligations, imposing an
administrative levy on his bank account, and garnishing his wages. Malhan, 938 F.3d at
456–57.15
We decline to extend the doctrine of judicial immunity to this case. Neither do we
opt to dismiss the family court defendant on the ground that there is no adversity—no
“actual controvers[y]” as is required for Article III jurisdiction,” Whole Woman’s Health,
142 S. Ct. at 532—between Argen and the family court defendant.16 Argen is not a party
to the family court proceeding, so it is not the case that his relationship with the family
court defendant is as a litigant before a neutral adjudicator. Id. (observing that private
14
Malhan, 938 F.3d at 460 (Rooker–Feldman “occup[ies] a narrow ground” (internal
quotation marks and citation omitted)); id. at 462 (“Younger applies to only ‘three
exceptional categories’ of proceedings” (quoting Sprint, 571 U.S. at 78)).
15
Although the nominal defendants in the other Malhan case were the U.S. Secretary of
State, the New Jersey Attorney General, New Jersey’s administrative bodies for family
affairs, and their officers, we made clear in that case that Malhan went to federal court after
he was “[u]nable to find relief in family court.” Malhan, 938 F.3d at 456.
16
As we recognized in Allen, judicial immunity and lack of an Article III case or
controversy are two distinct grounds for dismissing a judicial defendant as not amenable
to suit. 861 F.3d at 443 n.49.
11
litigants before state courts “generally are not” adverse to “state-court clerks who docket
th[eir] disputes and the state-court judges who decide them”).
Although we conclude that the family court defendant is amenable to suit for
Argen’s claim, we do not reach whether judicial immunity or Article III principles bars
Malhan’s claim because it fails on other, “non-merits grounds[.]” Hoffman v. Nordic
Nats., Inc., 837 F.3d 272, 277 (3d Cir. 2016) (“[A] court is not required to establish
jurisdiction before dismissing a case on non-merits grounds [such as] claim preclusion”
(citing Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)).
III
Malhan’s claim fails because it is precluded under the doctrine of res judicata by
our 2021 judgment order affirming dismissal of his 2020 Complaint. See Malhan, 850 F.
App’x at 838. Res judicata is applicable if there has been a final judgment on the
merits17 in a suit involving the same parties or their agents, and the other suit in which res
judicata is asserted is based on the same occurrence or series of occurrences. Blunt v.
Lower Merion Sch. Dist., 767 F.3d 247, 276–77 (3d Cir. 2014). A final judgment on the
merits in one suit can be preclusive on the other suit, even if the suits do not involve the
same set of allegations, if the facts of each case are “indisputably connected” and arise
17
A final judgment on the merits for purposes of res judicata is any dismissal with
prejudice. Papera v. Pa. Quarried Bluestone Co., 948 F.3d 607, 610 (3d Cir. 2020).
12
out of “some form” of the same complained-of conduct by the defendant. Elkadrawy,
584 F.3d at 174.
Here, Malhan brought First Amendment challenges to the same 2015 gag order in
the same family court proceeding in both the 2018 and the 2020 Complaints, and we
affirmed a dismissal with prejudice of Malhan’s 2020 Complaint. And application of res
judicata is appropriate here because it would serve the interests of “fairness, finality, and
judicial economy[.]” Hoffman, 837 F.3d at 277. Thus, we will affirm the District Court’s
dismissal of Malhan’s 2018 claim, on the alternative ground that it is precluded under the
doctrine of res judicata.
IV
By contrast, on the record before us, no procedural bar applies to Argen’s claim.
Younger abstention, which the District Court applied in dismissing Argen’s claim, is
inapplicable with respect to Argen because he is not a party to the family court
proceeding. See FOCUS, 75 F.3d at 843–44 (holding that a federal court cannot abstain
under Younger from hearing a federal lawsuit challenging a state court judge’s action
from a non-party to the state proceeding). Even if we assume that a family court gag
order is an order “uniquely in furtherance of the state courts’ ability to perform their
judicial functions,” so that it would satisfy one of the Younger doctrine’s requirements,
Sprint, 571 U.S. at 78 (internal quotation marks and citation omitted), Younger abstention
is appropriate only if state judicial proceedings are “ongoing,” Middlesex Cnty. Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). There is no ongoing
13
proceeding involving Argen because he is not a party to the family court matter. See
FOCUS, 75 F.3d at 843.
Here, Argen’s claim could have been dismissed as “completely dependent upon
and derivative of Malhan’s ability to share [custody dispute] information,” Argen v. Katz,
No. 18-963, 2021 WL 3421567, at *2 (D.N.J. Aug. 5, 2021),18 if the family court
defendant had established the affirmative defense of non-party claim preclusion. See
Taylor v. Sturgell, 553 U.S. 880, 885, 905–07 (2008). The family court defendant,
however, did not address whether Argen is Malhan’s agent so that they would be the
same party for res judicata purposes. Id. at 907. Thus, we leave it to the District Court
in the first instance to evaluate Argen’s First Amendment claim on its merits.
And in remanding Argen’s claim, we express no view on its merits. We do note
that in some circumstances, “privacy rights may outweigh the public’s interest in
disclosure” of the information sought by a plaintiff claiming a First Amendment right of
access. United States v. Smith, 776 F.2d 1104, 1113 (3d Cir. 1985) (citing, inter alia,
18
Although the District Court did not cite to a case in dismissing Argen’s claim as
derivative of Malhan’s, we note that its reasoning closely resembles that of the Second
Circuit in Spargo v. New York State Commission on Judicial Conduct, 351 F.3d 65, 73
(2d Cir. 2003) (after abstaining under Younger from hearing the state court judge’s
speaker-based First Amendment challenge to ethics rules, dismissing his supporters’
listener claims as “inextricably intertwined with the First Amendment interests asserted by
[the judge]”).
Because we do not affirm dismissal of Malhan’s claim on the basis that it fails on its First
Amendment merits, we have not determined that Malhan lacks an “underlying First
Amendment right.” Id. at 84. Thus, it does not necessarily follow from our dismissal of
Malhan’s claim that Argen lacks a “protected interest in hearing [Malhan] speak.” Id.
14
Nixon v. Warner Comm’cns, Inc., 435 U.S. 589, 598 (1978)).19 In addition, although its
interpretation of the First Amendment does not bind us, we observe that the New Jersey
Supreme Court has articulated several factors for the “weighing process” between the
“public’s right” to information about a family court proceeding and the “state’s
compelling interest in conducting a private hearing,” including whether there are “any
allegation[s] of physical or psychological abuse[.]” N.J. Div. of Youth & Fam. Servs. v.
J.B., 576 A.2d 261, 269–70 (N.J. 1990). We leave it to the District Court on remand to
weigh the relevant interests.
V
For the reasons set forth above, we will affirm dismissal of Malhan’s claim. We
will remand Argen’s claim for further proceedings consistent with this opinion.
19
Cf. Nixon, 435 U.S. at 598 (“It is uncontested, however, that the right to inspect and copy
judicial records is not absolute. Every court has supervisory power over its own records
and files, and access has been denied where court files might have become a vehicle for
improper purposes. For example, the common-law right of inspection has bowed before
the power of a court to insure that its records are not ‘used to gratify private spite or
promote public scandal’ through the publication of ‘the painful and sometimes disgusting
details of a divorce case.’” (emphasis added)).
15
Paul Argen, et al v. Gurbir Grewal, et al, No. 21-2571
______________
HARDIMAN, Circuit Judge, dissenting in part.
I agree with the majority that we should affirm the District Court’s dismissal of
Malhan’s claims against both defendants and Argen’s claims against the New Jersey
Attorney General. I also agree with the Majority that “a judge who acts as a neutral and
impartial arbiter of a statute is not a proper defendant to a Section 1983 suit challenging
the constitutionality of a statute. . . . However, a judge who acts as an enforcer or
administrator of a statute can be sued under Section 1983 for declaratory . . . relief.” Allen
v. DeBello, 861 F.3d 433, 440 (3d Cir. 2017) (citations omitted). Unlike my colleagues, I
believe the state court judge in this case was acting as an adjudicator when he issued the
gag order. Therefore, I would also affirm the District Court’s dismissal of Argen’s claim
for declaratory relief against the family court judge.
To decide whether a judge acts as an adjudicator—against whom suit is not
proper—or as an administrator—against whom suit might be proper—we consider the
procedures the judge is required to follow. For example, when a judge does not initiate
the case and the parties are represented by counsel, judges are more likely acting as
adjudicators. See Brandon E. ex rel. Listenbee v. Reynolds, 201 F.3d 194, 199 (3d Cir.
2000) (holding that judges who commit minors to involuntary drug and alcohol
rehabilitation are adjudicators because the proceeding must be initiated by the parents,
counsel must be appointed for the minor, and the judge must hold a hearing to decide “a
mixed question of law and fact typical to the adjudicative setting”); see also Sup. Ct. of
1
Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 736 (1980) (holding that the state
supreme court was acting as an enforcer, not adjudicator, when it initiated disciplinary
proceedings against attorneys). Likewise, notice to the parties and hearings suggest that a
judge is acting in an adjudicative capacity. Allen, 861 F.3d at 441–42 (discussing Bauer
v. Texas, 341 F.3d 352 (5th Cir. 2003)). Most relevant to this appeal, judges do not depart
from their role as adjudicators simply because they have significant discretion to craft
orders regulating the behavior of the litigants before them. See id. at 442 (discussing
Nollet v. Justices of the Trial Ct. of the Commonwealth of Mass., 83 F. Supp. 2d 204 (D.
Mass), aff’d, 248 F.3d 1127 (1st Cir. 2000), where the statute gave state court judges
significant discretion to craft restraining orders in domestic relations matters). In short,
judges frequently exercise discretion when adjudicating cases.
In contrast, when state judges act as administrative officers, they are more likely to
be proper defendants to a declaratory judgment action under § 1983. See Georgevich v.
Strauss, 772 F.2d 1078, 1087–88 (3d Cir. 1985) (holding that judges acted as enforcers in
a statutory scheme that gave them, instead of the parole board, the unilateral power to
parole prisoners without any procedural constraints). Another important factor is whether
the judge acts pursuant to a statute or promulgates his own rules. See Consumers Union,
446 U.S. at 731 (holding that the state supreme court acted in a legislative, not judicial,
capacity when it promulgated attorney disciplinary rules).
Our opinion in Allen exemplifies our fact-intensive approach. There, we held that
New Jersey family court judges were not proper defendants in § 1983 actions because
they acted as adjudicators when they decided custody matters. Allen, 861 F.3d at 442
2
(holding that judges acted in an adjudicatory capacity because, even though they had
broad discretion, they decided custody under a statutory standard, had no right to initiate
actions, had no administrative functions, did not promulgate any rules, and had to hold
hearings in many cases). We did not specifically address whether the family court judges
acted as adjudicators when issuing gag orders. Nonetheless, it would be odd for us to say
that the custody determination itself is adjudicative, but an order issued in furtherance of
the custody determination is administrative.
The facts here demonstrate that the family court judge was acting as an adjudicator
when he issued the gag order. The judge did not initiate the action; Malhan’s ex-wife did.
The gag order issued only after a hearing in which the parties were represented by
counsel. The gag order was meant to protect material that, by statute, must remain
confidential. Moreover, it applied to both Malhan and his ex-wife. In sum, the family
court judge acted in his adjudicatory capacity and was not a proper defendant.
The Majority sees it differently because Argen was not a party to the state
proceedings. But to determine whether a judge is a proper defendant we look at his
actions, not the characteristics of the plaintiff suing him. See Allen, 861 F.3d at 440
(asking whether the judge acts as a “neutral and impartial arbiter” or “an enforcer or
administrator” to determine if he is a proper defendant); Reynolds, 201 F.3d at 199
(asking whether the judge is “an adjudicator” or “an enforcer or administrator”);
Georgevich, 772 F.2d at 1088 (asking whether the judges are “neutral adjudicators” or
“enforcers”). So the fact that Argen was not a party to the state court proceedings sheds
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no light on the question whether the family court judge was acting as an adjudicator or an
administrator when he issued the gag order.
The family court judge did craft the gag order, but that alone does not make him a
proper defendant. Unlike in Consumers Union, the family court judge in this case did not
promulgate a general legislative rule; he issued and applied a gag order to the litigants
before him. Cf. 446 U.S. at 731 (holding that the state supreme court acted in a legislative
capacity when it promulgated its disciplinary rules).
Finally, I am concerned that the Majority’s decision to allow a § 1983 suit against
the family court judge disincentivizes litigants from resolving their grievances through
the normal process: appeal in the state courts. State court judges decide constitutional
issues every day. By allowing federal suits to proceed against those judges, the Majority
sanctions an unwarranted federal incursion against our state court judges.
For these reasons, I respectfully dissent from the Court’s decision to the extent it
remands the case for further proceedings against the family court judge.
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