Lesher v. Lavrich

WELLFORD, Circuit Judge

concurring.

Federal courts are sometimes criticized for becoming involved in essentially state concerns which, it is argued, should be determined by state courts. Among the critics are sometimes those who represent state agencies or facilities such as school and prison administrators, or those who have to do with setting or establishing state policies. Federal courts have generally resisted efforts of those, who, like the plaintiffs here, have sought to pursue a purported 42 U.S.C. § 1983 claim in the area of domestic relations or child care. Child custody has generally been left to state law and state courts to decide. This case would seem to be an obvious candidate for the commendable doctrine of abstention but for the fact that this specific suggestion was not raised in the district court by the state officials or state administrators named as defendants. Since considerable judicial time and effort has now already been devoted to this controversy, I concur that it is best that we not pursue the question as to whether abstention may be invoked, sua sponte, by this court. It is, however, regrettable defendants did not conserve federal court time and energy by promptly raising the dual defenses of abstention and res judicata.

I concur fully in the conclusion that res judicata bars plaintiffs’ constitutional claims and that plaintiffs, under the circumstances of this case, have no private cause of action against defendants under the Adoption Assistance Act.