E.A. and J.A., minors, by their father Dana A. Alden as next friend, Plaintiffs-Appellants,
Mary K. Gardner, Defendant-Appellee.
February 21, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17 C 7181 - Harry
D. Leinenweber, Judge.
EASTERBROOK, Sykes, and BARRETT, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
case began as a child-custody dispute in state court. Dana
Alden and his wife divorced in 2009. They shared custody of
their two children. In 2012 Alden's ex-wife complained to
the court that Alden was trying to turn the children against
her. The court appointed a psychologist, Mary Gardner, to
evaluate the children. See 750 ILCS 5/604.10(d). Gardner
concluded that Alden was us- ing "severe alienation
tactics" to drive a wedge between Alden's children
and their mother. Gardner recommended that the court limit
Alden to supervised visitation and give full custody of the
children to their mother. After motions and a hearing,
that's what the state court did: it terminated
Alden's custody, awarded sole custody to the mother, and
ordered all of Alden's visitation to be supervised. The
Appellate Court of Illinois affirmed. In re Marriage of
Alden, 2014 IL App (2d) 121046-U.
Alden asked the court to rescind the supervised visitation
requirement. (Illinois courts can modify visitation orders in
post-judgment proceedings. See former 750 ILCS 5/607(c) (in
effect in 2012) and current 750 ILCS 5/603.10(b) (effective
2016).) Gardner did additional evaluations but concluded that
circumstances had not changed. After another hearing, Alden
failed to persuade the court to modify its order. He appealed
unsuccessfully. In re Marriage of Alden, 2015 IL App
(2d) 140346-U. In 2015 he tried yet again, with the help of
his own expert, to persuade the court to alter the custody
and visitation arrangements. Again Gardner reassessed the
situation. And again Alden failed to convince the court to
alter its order. He didn't bother to appeal.
these three unsuccessful outcomes in state court, Alden
changed his strategy. He filed this federal suit under 42
U.S.C. §1983 against Gardner. Alden asserts his
children's rights as their next friend. He says that he
does not challenge Gardner's actions as an expert witness
but rather denies the validity of the Illinois Marriage and
Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101 to 5/802,
to the extent that it permits a state court to change or
terminate custody arrangements after a divorce on a showing
that one parent en- dangers a child's physical, mental,
moral, or emotional health. 750 ILCS 5/602.7(b), 603.10. And
this creates a problem: Gardner does not enforce any state
presents two theories for the statute's invalidity.
First, he argues that the statute violates the First
Amendment (applied to the states by the Fourteenth) by
regulating speech: it takes parents' speech into
consideration when deciding on the best interests of the
child. Second, he contends that the statute violates the
Fourteenth Amendment's equal protection clause because it
treats parents differently based on whether they are
divorced: the standard of proof for awarding or modifying
divorced parents' custody is preponderance of the
evidence, 750 ILCS 5/602.7(b), 750 ILCS 5/603.10, while
otherwise the standard for terminating parental rights is
clear and convincing evidence, 705 ILCS 405/2-21(5)(iii).
(The statutes explicitly referencing the preponderance
standard were enacted in 2015, after Alden's state court
case began. State courts had interpreted the predecessor
statute on modifying visitation, former 750 ILCS 5/607, as
requiring a preponderance standard. See In re Marriage of
Slayton, 292 Ill.App.3d 379, 387 (1997); Griffiths
v. Griffiths, 127 Ill.App.3d 126, 129 (1984). But when
custody rather than just visitation was at issue, former 750
ILCS 5/610 required clear and convincing evidence.)
district court dismissed the case for lack of jurisdiction,
holding that Alden lacks standing. He didn't show that
any of the injuries he alleges is traceable to Gardner as
opposed to the independent action of the state judiciary. Nor
did Alden contend that victory in this suit would change
custody arrangements. If he had, then the
Rooker-Feldman doctrine would bar the suit: state
court losers can't come into federal court to complain
that the state court judgment violates their federal rights.
See Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923); District of Columbia Court of Appeals v.
Veld-man, 460 U.S. 462 (1983). Otherwise federal
district judges would effectively hold appellate jurisdiction
over state courts, while under 28 U.S.C. §1257 only the
Supreme Court has that jurisdiction. See also Milchtein
v. Chisholm, 880 F.3d 895, 897 (7th Cir. 2018). The
district court concluded that Alden has presented only a
request for an advisory opinion about the validity of state
appeal Alden leads with the curious argument that Gardner
can't challenge his standing because
she lacks standing. Alden relies on Diamond v.
Charles, 476 U.S. 54 (1986), to argue that the real
party in interest in defending the validity of a state
statute is the state itself. But this doesn't help Alden
in the least. First, it's irrelevant whether Gardner has
standing. Alden's standing is essential to the
existence of a case or controversy, and a district court must
inquire into every plaintiff's standing no matter who the
defendant is or what the defendant argues. Second,
Alden's argument amounts to an admission that he has sued
the wrong party. That by itself is enough to sustain the
district court's dismissal.
does not enforce any state law. She did not initiate
proceedings as a prosecutor might in a criminal proceeding.
She is instead a psychologist who provided information to the
state court. The state judiciary, not Gardner, made the
decision to remove Alden's children from his custody.
has a heads-I-win-tails-you-lose conception of this
litigation. He thinks that Gardner can't defend against
his claim because she lacks standing. (Indeed, he insists
"has no business making an appearance in this Court and
had no business making an appearance in the district
court.") He characterizes Gardner's position as an
effort to defend the rights of another-namely, the State of
Illinois. Yet Alden thinks that he has still sued the state
by suing Gardner "in her official capacity," that
the Attorney General of Illinois should be defending this
case, and that he is entitled to a summary decision in his
favor because the state has not defended its legislation.
State of Illinois did not defend for the simple reason that
it was not sued. Indeed, Alden cannot sue Illinois
in its own name because it is not a "person" for
the purpose of §1983. See Will v. Michigan State
Police,491 U.S. 58, 64-70 (1989). Alden says that he is
suing the state by means of an official-capacity suit. But
this just reveals his misunderstanding of both Will
and Ex Parte Young,209 U.S. 123 (1908), the point
of which is that plaintiffs can sue state officials under
§1983 when they are not deemed to be the state.
Will holds that any official-capacity suit against a