kanBARoo Court. 50th Installment. Federal Jurisdiction & Issue Preclusion

Two U.S. Supreme Court cases, which gutted the Civil Rights Act of 1871, 42 U.S. C. § 1983, produced today’s oppressive state bar courts. Attorney discipline is usually administered by administrative bodies acting judicially for their state's highest court, whose conflicting right of ultimate review compromises impartiality. (See Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4 ["when a court makes a decision concerning the legality of its own actions, it may be too biased to justify abstention by the federal courts even if its actions are considered adjudicative."].) One commentator notes that the state high court may lack the ability to evaluate the administrative agencies it supervises objectively:

Yet, it is precisely because these cases more properly are understood as administrative proceedings (albeit before a judicial tribunal), rather than as true judicial proceedings, that there is legitimate concern about the ability of the states' highest courts to perform their regulatory function and provide appropriate judicial review. In many cases there are allegations of bias or challenges to the disciplinary and admission rules. Although these allegations may prove unfounded, there is sufficient basis for questioning whether a state's highest court can provide the dispassionate resolution that ought to be required when no other judicial review commonly occurs. (Friedman & Gaylord, Rooker-Feldman, From the Ground Up (1999) 74 Notre Dame L. Rev. 1129, 1132.)

Deciding my case against the State Bar, for example, would scandalize the California Supreme Court’s administrative arm. These unequal contests stretch the definition of adjudication. (See Guarino v. Larsen, supra, 11 F.3d at p. 1159 n.4 [“Adjudication may require a controversy between two parties other than the body making the adjudicative decision.”].)

For review of rights-infringing state cases, litigants have looked to 42 U.S.C. § 1983. A United States Supreme Court increasingly hostile to federal judicial oversight blocked the route to federal court for State Bar respondents and similar others when the court ruled that section 1983 suits are subject to the challenged state case’s common-law preclusive effects. (See Allen v. McCurry (1980) 449 U.S. 90.) Missouri had imprisoned McCurry for two years on drug possession charges, based on evidence obtained in an illegal invasion of his house. McCurry sued the officers who participated in the illegal search for conspiracy to violate his civil rights. The Allen v. McCurry court ruled that McCurry’s state conviction collaterally estopped the federal suit for damages, Justices Blackmun, Marshall, and Brennan dissenting. An important precedent had stated, “It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.” (Monroe v. Pape (1961) 365 U.S. 167, 183.) The dissenting justices recognized the decision’s break with precedent: "The Court repeatedly has recognized that § 1983 embodies a strong congressional policy in favor of federal courts' acting as the primary and final arbiters of constitutional rights." (Allen v. McCurry, supra, at p. 110.)

Yet, Allen v. McCurry isn’t prominent in interjurisdictional scholarship; the case is overshadowed by District of Columbia Court of Appeals v. Feldman (1983) 460 U.S. 462, which reproduced Allen v. McCurry’s implications and added a few more. Feldman’s salience confuses litigants challenging the State Bar, as circumventing the Rooker-Feldman doctrine—the new barrier Feldman created—would still leave intact the more fundamental Allen v. McCurry preclusion barrier. One supposed difference between the Rooker-Feldman doctrine and ordinary preclusion, as lawyers sometimes mention, is preclusion’s applicability only where the precluded party had “full and fair opportunity to litigate.” Most federal circuits, however, include this condition in construing the Rooker-Feldman doctrine. The contrast between ease of dismissal under Rooker-Feldman and the jargon, “full and fair opportunity to litigate,” creates an illusion that the Rooker-Feldman doctrine is much harsher than preclusion. But “full and fair opportunity to litigate,” whether applied to preclusion or jurisdiction, means only the chance to raise the federal issues in court. Rooker-Feldman never formally creates a broader bar than preclusion, although the jurisdictional tag subtly influences courts to favor the Rooker-Feldman defendant more than a defendant asserting preclusion as an affirmative defense.

Feldman, itself an attorney discipline case, created the emaciated prototype for the supposed review all California State Bar respondents and their counterparts in most other jurisdictions are entitled to, and Feldman permitted the prototype’s adoption. Although the Rooker-Feldman doctrine only jurisdictionally barred a subset of suits, which would be precluded anyway under Allen v. McCurry, the federal courts used the jurisdictional character of the Rooker-Feldman prohibition to justify uninformative boilerplate language, to which the courts usually confined opinions dismissing these cases. The Rooker-Feldman doctrine, more generally, became the primary docket-clearing mechanism in federal district court. Feldman, the cause of the opinionless decisions after In re Rose (2000) 22 Cal.4th 430 was also the paradigm for these opinions’ review minimalism.