Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CAROL ANKENBRANDT, AS NEXT FRIEND AND MOTHER OF L.R. AND S.R., Petitioner v. JON A. RICHARDS AND DEBRA KESLER

No. 91-367

March 31, 1992

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:10 a.m.

APPEARANCES:

RICHARD LYNN DUCOTE, ESQ., New Orleans, Louisiana; on behalf of the Petitioner.

PAUL S. WEIDENFELD, ESQ., New Orleans, Louisiana; on behalf of the Respondents.

PROCEEDINGS

11:10 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 91-367, Carol Ankenbrandt v. Jon A. Richards.

Am I pronouncing your name correctly?

MR. DUCOTE: Ducote, Chief Justice.

CHIEF JUSTICE REHNQUIST: Ducote -- Mr. Ducote. You may proceed.

ORAL ARGUMENT OF RICHARD LYNN DUCOTE ON BEHALF OF THE PETITIONER

MR. DUCOTE: Mr. Chief Justice and may it please the Court, I represent two young girls, one 9 and one 7, who come before you through their mother as their next friend. Their parents were divorced and their mother was awarded full custody, and during the court-ordered visitation they were physically and sexually molested by their father and his girlfriend.

Because of the abuse, the Jefferson Parish, Louisiana Juvenile Court through its child protection statutes permanently terminated all the parental rights of the father and permanently enjoined him from having any contact whatsoever with the children again. Therefore, under State law he is a legal stranger to them. That decision was never appealed and is final.

After that decision, the children filed suit against their father and his girlfriend in tort, in Federal court in Louisiana, under diversity of citizenship, because they were no longer residing in the same State.

The district court in the Fifth Circuit through the case out saying what this really is is a domestic relations case over which the Federal courts have no jurisdiction.

I think it's first important to note what this case is not. This case is not about establishing a new Federal cause of action. This case has nothing to do with the concerns expressed by the Chief Justice and other Members of this Court about creating new Federal causes of action such as the actions now pending before Congress concerning making all crimes against women perhaps civil rights actions which could be brought in Federal courts, or against making all crimes committed with handguns Federal offenses.

There's no question, and it's never been contested in this case, that all of the elements of diversity have been satisfied.

QUESTION: Well, we could go further, could we not, Mr. Ducote, in saying what the case is not about, in saying that it is not about a decree of divorce, it is not about child custody, it's not about probate -- something like that?

MR. DUCOTE: That's correct. It's a simple diversity tort action. Every tort action under diversity is a State and a local cause of action, just as this case is. If these children had been, say, run over by their father by an automobile they would have Federal relief.

If they had been sexually molested, say, by their minister or by their schoolteacher, they would have a Federal forum. Perhaps -- and it's not clear under the Fifth Circuit's test where the line would be drawn, but perhaps if it had been an uncle -- an uncle or an aunt or a first cousin who had molested them, they'd also be able to sue in Federal court under diversity of jurisdiction.

Why is it, then, that the Federal courts can abstain or simply refuse to hear a case because it's the father who's involved, and I submit that they can't. I don't believe that the test of Federal jurisdiction is whether or not we want to get involved, when the Federal courts say I don't want to get involved because it sounds too much like a family matter. The real question here --

QUESTION: Well, but you -- in your earlier answers to the chief justice you seem to be saying that well, if it were a family matter, that would be a different question.

As I understand, your position is if it were probate, if it were any traditional family matter, there would still be no basis for the Federal court staying out, right?

MR. DUCOTE: Well, one of the questions the court asked is whether or not there is a Federal -- a domestic relations exception to Federal jurisdiction.

QUESTION: That's right.

MR. DUCOTE: My position is that if the diversity criteria are met and the amount in controversy exceeds the $50,000 threshold, no matter what the source of the money is, it should be within Federal jurisdiction unless Congress determines otherwise.

QUESTION: So you can sue in Federal court for divorce.

MR. DUCOTE: Well, I don't believe so, because divorce itself has no $50,000 threshold, nor does child custody, nor does child visitation. If what is sued for is money, then yes, if the $50,000 threshold is met and the diversity criteria are met, the Federal courts have jurisdiction until Congress says otherwise.

QUESTION: Well, what if a husband sues for a divorce and requests a property settlement agreement, saying that the amount of controversy, our property, amounts to several hundred thousand dollars. Would that meet the jurisdictional amount for diversity?

MR. DUCOTE: Unfortunately, at this point, given the fact that the Federal jurisdiction is defined by Congress and Congress is not exempted, that sort of question from the diversity of jurisdiction, I think to be true to the Constitution, yes, the Federal courts would have jurisdiction.

QUESTION: We really don't have to decide that question, do we, to rule in your favor? There could be a domestic relations exception which embraced divorce, child custody, and still did not extend as far as your case.

MR. DUCOTE: That's absolutely correct.

QUESTION: What about a suit for the partition of real estate in another State? I mean, that, like divorce, has been considered traditionally a nontransitory cause of action, so you had to sue within the State where the property was. If you sued in another State's courts you couldn't get it, but your position is you can sue in any Federal court for it.

MR. DUCOTE: My position is that if the diversity criteria are met and the amount in controversy exceeds $50,000 and the State law that's applicable in the jurisdiction where the Federal court sits allows for that cause of action, the Federal courts under Article 3 and the congressional mandate under 28 U.S.C. section 1332 says that you have jurisdiction.

QUESTION: Don't you think that that congressional mandate took into account accepted notions of transitory causes of action and nontransitory causes of action so that it was entirely understood that to get a divorce you could only sue in the court of the State where the people are resident?

MR. DUCOTE: I think first you have to look at the State law, and whatever the State where the forum sits says about what can be done with property that another State would control.

Unfortunately, and as all of the Law Review articles and Judge Weinstein in the Spindel case point out, most of what the courts have said about the domestic relations exception have been on very weak grounding, that these things about well, ecclesiastical courts used to do this, and courts of equity didn't do this and all, just don't apply, and I think with the position, unfortunately, where we have to look at what the Constitution says about who decides what Federal courts have jurisdiction over and return the responsibility to Congress to sort through the problems that you're suggesting, I think as a matter of principle if the Federal courts can simply define their own jurisdictional boundaries we just have all sorts of --

QUESTION: They're not defining their own. They're just assuming that the congressional grant of jurisdiction, if not the constitutional grant of jurisdiction, took into account ordinary notions of nontransitory causes of action that could only be brought in certain courts.

What about criminal jurisdiction? Can Federal courts try for State crimes? The traditional notion is that no sovereign enforces the criminal laws of another sovereign.

MR. DUCOTE: I agree.

QUESTION: Can a State attorney bring in Federal court a prosecution for a State crime?

MR. DUCOTE: No, but in the diversity cases -- and that's the unique nature of diversity jurisdiction -- diversity jurisdiction specifically deals with local causes of action, local concerns, and simply says that because of this -- in the Bullone case it's expressed, the concern about local prejudice, and then the -- sort of the equal footing that nonState parties should have in that court, that the Federal courts should have diversity of jurisdiction.

QUESTION: In some of our cases, Mr. Ducote, we've said that when Congress enacts a jurisdictional measure it takes it with knowledge of any judicial gloss on it, so to speak, such as Canon v. University of Chicago.

Now, this Court has been speaking about domestic relations exceptions to diversity jurisdiction since the turn of the century, and the Congress has revisited the diversity statute several times and never made any addition to it indicating that it disapproved of that exception. Doesn't that suggest that your analysis is a little bit two-dimensional when you simply say well, we just look at the statute?

MR. DUCOTE: Well, the Court -- the last pronouncement was in the 1930's on the domestic relations exception, except for Thompson v. Thompson in 1988, when in a footnote the Court talked about the tradition of the domestic relations exception, and what I'm saying -- and again, I don't think this is essential for us to prevail in this cause of action, but I think what we have to do is sort of pull that all back together and make some sense out of it and get back to the issue that Congress needs to set out what the parameters of Federal jurisdiction are and what are the exceptions.

And I think Congress did an excellent job of that in 1990 in the supplemental jurisdiction provision under 28 U.S.C. 1367, where the Court said -- Congress said the Federal courts can have supplemental jurisdiction if this criteria is met, this criteria, and they may choose to decline supplemental jurisdiction if State law is uncertain or the issues are too complicated or for other good reasons.

So in that case, Congress specifically authorized an abstention, if you would, from jurisdiction, and I think that's really what we need to do so this doesn't spread further and --

QUESTION: Is there any suggestion that that was done in the light of this Court's statement about the domestic relations exception?

MR. DUCOTE: I think it had to do with perhaps some of the other abstention doctrines, Younger v. Colorado Water District, but I think if we're going to have exceptions to Federal jurisdiction, or we're going to allow for abstention of Federal jurisdiction, then I think it should be by congressional mandate and not by judicial activism.

QUESTION: Well, but these cases, speaking of the domestic relations exception, have been on the books -- our books for a long time. Are you saying we should overrule them?

MR. DUCOTE: The specific issue in this case has never been addressed by the Court.

QUESTION: Absolutely right, and one could easily say that those cases referred to things like seeking a decree of divorce, child custody, other nontransitory causes of action, and that therefore your case is not governed by them, but when you get into the more general area, it seems to me you're arguing for just a rather sweeping clearing of the brush, so to speak, which I'm not sure isn't inconsistent with all our cases.

MR. DUCOTE: Well, I think the cases of Burrus and Barber and Popovici and De La Rama v. De La Rama have simply said in very broad brush strokes the relations between husband and wife, parent and child, belong to the States and we're not going to get involved in it, and those cases have sort of set up judicial chaos for 100 years in all of the circuits that have led to this sort of decision.

The fact that in 1991 a Federal district court can look at sexual abuse, a sexual abuse tort action and say that well, this is domestic relations under -- citing Barber v. Barber in 19 -- I'm sorry, 1880, shows the extent to which this issue is still uncertain.

So I think yes, it -- again, the principle is important that either Congress sets up the parameters of Federal jurisdiction or the courts do on an ad hoc basis, and that's the concern, but I don't think that's the most important issue here, because these kids should be able to sue in tort no matter who the defendant is if there's a cognizable State cause of action and the other criteria of the diversity statute have been met.

The other issue is the Younger abstention issue.

QUESTION: Counsel, before you get to that point, suppose that in this case the mother was involved in the proceedings in the Louisiana domestic court and the court made findings of fact that the abuse had not occurred? I take it that that would have operated as issue preclusion in the suit that you're bringing now.

MR. DUCOTE: Under Louisiana law it would not.

QUESTION: It would not.

MR. DUCOTE: Louisiana probably has the most restrictive issue preclusion statutes in the country.

QUESTION: I think that in other States it would, although I'm not sure of that, and if that's so then my next question would be if there would be issue preclusion going back the other way, if the tort were tried first, I assume it would not be a violation of due process at least for a domestic court, say, that this has already been litigated and it's going to accept those findings.

MR. DUCOTE: I don't think so. You know, very often in other contexts, for example in police brutality cases, it's not unusual for there to be State court proceedings and Federal court proceedings in the prosecution as well as administratively in any number of areas, so I think the law should not -- or the rules of the game should not change simply because we're dealing with children or because we're dealing with sexual abuse and we're dealing with families.

I think one of the things that's happened in the courts is this issue is something that people haven't wanted to get involved in, and they've looked for a way to sort of get rid of it, and I think in another context, were it not a family context, those questions wouldn't even be raised.

And that's sort of what the district court does with the Younger issue and says well, you know, the State court permanently terminated this man's rights, therefore the State's interest in this case is obviously even more compelling than it would be in another case, and that's even more cause for us to keep out of it.

And I look at it and I say because his rights were terminated, if you apply the Younger rules the State's already finished with the case. The man is a legal stranger, so it's even more compelling it should be in Federal court.

So again I think the rules have to be clarified -- family, no family, whatever. If it meets the criteria of the statute, unless Congress exempts it it should be adjudicated. As has this Court said in Deakins v. Monaghan, the Federal courts have an unflagging duty to adjudicate cases that are properly in their jurisdiction.

QUESTION: Mr. Ducote, was there any equitable relief sought in this case?

MR. DUCOTE: Absolutely none. It was straightforward tort action for compensation.

QUESTION: It might be a different case if there were equitable relief. I mean, would you have any problem with the Federal court using its power to decline to exercise equitable jurisdiction on the basis that family law matters, even more broadly than divorce and status and affiliation and so forth, shouldn't be addressed by Federal courts?

MR. DUCOTE: I have no problem with that, and as Justice Kennedy discussed in the case of McIntyre v. McIntyre in the Ninth Circuit, when issues of status are not involved and the court -- the Federal court has not asked to impinge on the State supervision of a minor and it's just simply an issue of compensatory damages, it's like every other case, and again we just can't simply say well, this is family business and we don't like to be involved in family business that --

QUESTION: Counsel, I'm interested from a practical point of view. What is the great attraction for you of a Federal court in Louisiana?

MR. DUCOTE: Well, I think there are two points. One is that the Federal Rules of Evidence, because of not only the rules themselves but because of Federal court decisions in child sexual abuse cases, provide a better opportunity for the evidence that is available in this case to be presented to a jury.

The second question is the fact that one of the respondents is an attorney in this case who practices in the local State court where the case would have to be brought. These are the traditional sort of concerns that are the underpinnings of diversity jurisdiction.

We think that these out-of-State plaintiffs having to go into a State court where one of the respondents is a practicing attorney might not receive as fair a shake as they would in the Federal court.

And if there are no other questions I would reserve the balance of my time for rebuttal.

QUESTION: Very well, Mr. Ducote. Mr. Weidenfeld, we'll hear from you.

ORAL ARGUMENT OF PAUL S. WEIDENFELD ON BEHALF OF THE RESPONDENTS

MR. WEIDENFELD: Mr. Chief Justice and may it please the Court:

The first issue here is whether or not there is a domestic relations abstention to Federal court jurisdiction. This Court since 1859 in Barber has stated that there is one.

QUESTION: Mr. Weidenfeld, you just use the word abstention. Did you mean exception?

MR. WEIDENFELD: I did. I did, Your Honor -- Mr. Chief Justice, excuse me.

Is there an exception to Federal jurisdiction for domestic relations? This Court has said since 1859 there is such an exception to jurisdiction. I think from 1859 to 1930, 71 years passed. There were three intervening cases which reaffirmed that doctrine, and in 1930 Justice Holmes reaffirmed it yet again, allowing that doctrine to defeat the original jurisdiction of the Federal courts in matters involving consoles, and that was of course Papovici v. Agler.

QUESTION: Of course, that general proposition doesn't give us the answer to this case, yet.

MR. WEIDENFELD: No, it doesn't Your Honor, but of course this Court has asked to address that issue, at least in brief, and I think that as a matter -- it has to be accepted that there is a domestic relations exception to jurisdiction. Either there is or there is not, and I suggest that there is, that Congress has had 130-some-odd years, 13 separate terms, to modify it, abolish it, do something to it, and they've never taken the opportunity to do so.

QUESTION: Mr. Weidenfeld, do you think the exception which you would have us continue to recognize is based on the Constitution, or is it something statutory? Can Congress change it?

MR. WEIDENFELD: I think that the exception goes back to the concept of the Tenth Amendment in that it actually was a matter not delegated to the Federal Government. I think that the common understanding, as Justice Holmes said, was that domestic matters are matters unique to the States and belong to the States.

QUESTION: So you don't think Congress could directly address this, and for instance in the parental kidnapping case direct Federal courts to have jurisdiction of certain family related matters?

MR. WEIDENFELD: The common understanding at the time was that matters domestic -- that is, matters involving parent and child, husband and wife, were excluded from the jurisdiction of the Federal courts in that --

QUESTION: Yes. Would you answer, though, the question I asked? Do you think Congress can enact laws such as the parental kidnapping case and give Federal courts jurisdiction over matters that do relate, in a sense, to family matters?

MR. WEIDENFELD: Well, I think that --

QUESTION: Yes or no.

MR. WEIDENFELD: No, not as it stands, and this Court has found that it did not, of course, in Thompson v. Thompson.

I would make a caveat to my no, and that is, is a kidnapping act a domestic matter, is the question. That is, how far does the -- how far is there the exception to jurisdiction? What is excepted from jurisdiction -- what domestic matters? What constitutes a domestic matter?

I think what constitutes a domestic matter --

QUESTION: -- you're pressing for an exception to Federal jurisdiction. Would it be correct to say that we're really talking about abstention rather than exception?

MR. WEIDENFELD: No, not in the context of the domestic relation exception to jurisdiction. I'm talking about abstention in relation to Younger, but not in relation to the -- if domestic matters are excepted from jurisdiction, then it's not an abstention doctrine. Then there either is jurisdiction or there is not. Either it is a matter domestic, or it is not.

QUESTION: Well, they certainly are different, but I'm wondering if all through the years we're really speaking of the Federal courts abstaining from getting into this area rather than formulating a nonstatutory exception, so to speak, to diversity jurisdiction.

MR. WEIDENFELD: Well, the -- the broader concepts I think lead to the same place. The broader concepts are the interrelationship between the Federal Government and the State governments, so that gets to the same place, but this Court has spoken about domestic relations as an exception itself to jurisdiction, so the question is what makes it domestic?

If it is a matter reserved to the State, what makes it domestic, and my answer is that you have to look to the States and have the States created -- and do the States give us guidance, and they do.

QUESTION: Well, isn't it dangerous to read into the Constitution what isn't there, to wit, a domestic relations exception to Federal jurisdiction, and aren't we on sounder ground if we were talking about abstention, as maybe the Court should have done over the years?

MR. WEIDENFELD: Well, it is always dangerous to read things into the Constitution. I think that this Court has decided, or at least has held, that it is jurisdictional, and Congress has never decided to take that position on.

If it -- if this Court wishes to rephrase the language and call it abstention, that is something that it can do, but the object is that if it is abstention -- whether it's abstention or jurisdiction, although this Court calls it jurisdictional, we have to get to how do we define what a domestic matter is?

The States have defined what domestic matters are. The States have significant rules that abridge the rights of individuals to sue within the family unit. Fathers cannot sue their wives, cannot sue mothers. Children cannot sue their parents. It was incorrect for counsel to say that had John Richards run over his daughter, she could have sued him in State or Federal -- in Federal court because he was her father, if it happened while he was her father.

QUESTION: But that really is a question of what law is applicable, isn't it, rather than whether there's jurisdiction? I mean, if that is the rule in Louisiana, presumably the same result will obtain on the merits no matter whether it's in the State court or in the Federal district court?

MR. WEIDENFELD: That's correct, Your Honor, my point being that the States have -- that each State has its own set of rules involving parent -- the domestic harmony, and the results that involve the interrelationship between spouses and between parents and children. The Federal courts and the Federal Government has always deferred to that for the simple reason that domestic matters are unique to the States.

QUESTION: Well, we may have deferred to it, but it doesn't make it jurisdictional, does it?

MR. WEIDENFELD: Well, by this Court's phrasing of the -- by this Court's prior determinations that domestic matters are jurisdictional, the question that leads to is, is it a domestic matter, and how do we decide if something involves the domestic relations. That's how it seems to come to me, and when you're deciding is something a domestic matter or not, you have to see it's going to be the same considerations as in an argument that involves comity, that involves Younger v. --

QUESTION: So you think it's -- your criterion of what is domestic looks to the State law of capacity, is that what you're saying?

MR. WEIDENFELD: I'm saying that's a factor. I'm saying -- yes to the extent that you look to, not just Louisiana, all States have very particular rules as between suits between spouses and suits between children. In fact, the common law I think until this century did not permit -- well, I know until this century, did not permit suits as between spouses, nor did they permit suits as between parent and child. They simply didn't permit it.

So they have taken control -- they have wrested control of this area, of the area involving parent and children, husband and wife, without any question by anybody, and the reason is because it is a matter uniquely unto the State, so you look narrowly at an individual law, but the scope, these -- the areas involving suits between children, or suits between spouses, or a child and their father, are a matter of the domestic relations. The considerations have always been domestic -- the harmony of the family and the peace of the family.

QUESTION: So in any case these are sort of pointers as to what presumably the Court may have had in mind and Congress may have had in mind perhaps in ratifying what we did, but you're not making the argument that every State law with respect to capacity is jurisdictional --

MR. WEIDENFELD: No.

QUESTION: With respect to Federal jurisdiction.

MR. WEIDENFELD: No, Your Honor, I'm not making that argument, and I'm not making the argument that any tort involves -- is domestic. I think that's a matter for the sound discretion of the Court. That's a matter that the district judge has to look at and say, is this a domestic matter?

When you get to the heart of it, are we talking about a matter that will be domestic, and if so, then we don't handle it because the Federal courts never have handled domestic matters, and I don't think that Judge Arceneaux's discretion should be overturned, that he made an abuse of that discretion.

QUESTION: If a wife kills her husband somehow in violation of Federal law is it your position that a Federal criminal court could not entertain the suit because that involves domestic matters?

MR. WEIDENFELD: I have not addressed the interplay between the --

QUESTION: I know you haven't. That's why I asked you the question.

MR. WEIDENFELD: Would you repeat the question, Your Honor?

QUESTION: If a wife kills her husband in some manner that violates Federal law, using a handgun that's been carried interstate or something like that, is it your position that there can be no Federal prosecution because it's a domestic matter?

MR. WEIDENFELD: No.

QUESTION: Well, why is that different from a tort in which a wife hits her husband, and then the next question is going to be why is that different from a tort in which a father hits his son?

MR. WEIDENFELD: Because Congress has made that a crime. Congress has specifically stated that it's a crime, and I don't think that the common understanding that Federal crimes -- that crimes that occurred at the time of the Constitution, if it was a Federal crime it would have been in Federal court, domestic or otherwise.

QUESTION: This is not a spouse-killing Federal crime, it's a general Federal criminal statute. You cannot -- you know, any crime committed with the use of a handgun that's been carried interstate, and it so happens that a wife kills her husband in violation of that statute. It's not a specific Federal spousal statute.

MR. WEIDENFELD: But there's -- the answer is there has never -- at least my answer is there has never been any case that has excluded that as a matter of being a domestic case, whereas there have been in the civil arena.

Had there been such a case, it is my guess that Congress would have looked at it and said you have extended the domestic relations doctrine a bit far. It is a -- if it's a Federal offense, then the Federal criminal courts should handle that matter.

QUESTION: May I ask you, among these cases -- I'm just not as familiar as I should be with the earlier cases. How many of the earlier cases was jurisdiction sought to be invoked on the basis of diversity of citizenship? Are there some?

MR. WEIDENFELD: No -- No, Your Honor.

QUESTION: They were -- under the Popovici case they were trying to -- suing under Bassett or something or something like that, wasn't it?

MR. WEIDENFELD: Under the original jurisdiction of the Court, and In re Burrus it was a habeas case --

QUESTION: Right.

MR. WEIDENFELD: In Simms and De La Rama, they were both cases that emanated from the territories.

QUESTION: What is your answer if a child is battered, receives severe injuries and sues for medical payments, sues the father through a next friend?

MR. WEIDENFELD: In Federal court?

QUESTION: Yes.

MR. WEIDENFELD: Is it during -- the tort occurred during the existence of the marriage?

QUESTION: Yes.

MR. WEIDENFELD: Then it's going to be a matter --

QUESTION: This is a child suing the parent.

MR. WEIDENFELD: That would be a matter that would go to the -- that would fall within the domestic relations exception and it should go to State court as a part of the State court's unitary system that involves their special interest in the family, because when you're dealing with the family, that is a matter that is uniquely the State's concern -- the health and well-being of the domestic harmony of the families within it.

I don't think -- I think it goes without saying that the State's interest in the family as a unit is strong and is unique and is very basic to the sovereignty of the State. In support of that interest, what the States have done is they have -- or various States have done it in various ways but they have tried to come up with a unitary way or means of dealing with matters that evolve from domestic disputes.

So that there is the juvenile court system, there is the divorce and custody -- as in fact in this case. This matter ended up in criminal courts, in two separate criminal courts, in a juvenile court, in a custody court, and three separate court of appeals. There's -- the State has recent -- the State of Louisiana at least has recently brought together all their juvenile court laws into a 700-page tome and each State, each State in this country is trying to do the same thing. They're trying to bring together the laws and treat it in a unitary way.

The factors that are always in support of comity, of the doctrine of Younger v. Harris, is that you don't want to disrupt this unified body. You don't want to risk the Federal courts giving de novo trials after State matters.

The normal circumstance in which this case is going to come to a Federal court is not from the winning party but from the losing party. The losing party in the State action is going to try and relitigate the matter through the Federal courts. That's the normal way in which this case -- this is the usual way in which this case is going to come to the Federal courts. That's the way it's going to come in all -- in most other cases, to use the United States district court as a court of review for fact-finding unfavorable to the person while they were in the State.

QUESTION: Mr. Weidenfeld, a few minutes ago you were asked by Justice Stevens whether there had been any cases sounding of diversity jurisdiction in which this statement as to the domestic relations exception had been announced. What do you conceive the basis of the Federal jurisdiction to have been in the case of Barber v. Barber?

MR. WEIDENFELD: That was diversity, Mr. Chief Justice. I apologize. That was the enforcement of an alimony decree, and that was in --

QUESTION: Yes, and that certainly suggests that even back then, December term 1858, that the Court saw definite limits to the domestic relations exception, doesn't it? I mean, didn't they allow there the enforcement of a New York judgment for alimony?

MR. WEIDENFELD: Yes, they did, Mr. Chief Justice, and the -- so that yes, I agree that there is a limit to it. It does not go forever.

You have to draw a line somewhere, and how do you draw the line, and who draws that line, and I suggest -- the way I would suggest that the line be drawn is whether the matter sued upon occurred during the existence of the -- during the marriage, because if it occurred during the existence of the marriage, those are the matters in which the State has taken a particular interest.

If it's something that occurs after the marriage, then there's not going to be any revisitation of any of the facts around the divorce or around the custody decrees or around the alimony decrees. If it occurs -- that's if it occurs after the marriage has terminated, but if it occurs before the marriage has legally terminated, as happened in this case, then all of those factors, all of those actions are going to be -- are involved in the divorce case itself.

QUESTION: But Mr. Weidenfeld, the State court is through with this case. It's awarded custody to the mother, the marriage is terminated, only money damages are sought. It seems to me this is a perfect case for Federal diversity jurisdiction.

MR. WEIDENFELD: Justice O'Connor, these cases never end. The custody of the children is always, in all instances, subject to review, so much so that for a long time custody judgments were not even considered final judgments for the purpose of full faith and credit, so the case never ends.

If in this case we come and there is a jury interrogatory which determines that no abuse occurred -- and no abuse did occur. These are allegations. There has never been a full and -- a true and full hearing in this matter. I mean, the only hearings have been where Mr. Richards was unable to present a defense because he was about -- because he had criminal charges hanging over his head and elected on advice of counsel not to expose his defenses.

But when there is a full-blown hearing, a full trial, and then the facts are revisited, or actually in this instance visited at the first instance and the factors that come out show that no abuse occurred, or that the abuse occurred at the instance of the mother, or that -- or for whatever other contradictory verdict comes down, someone -- it may not be Jon Richards because his parental rights have been terminated, but someone is going to go back to the State court, or someone ought to go back to the State court and say is the best interest of this child such that we should not now revisit this in light of all the evidence which has finally come to bear?

QUESTION: In Louisiana, is it open to a third party stranger to come in and reopen a question like that?

MR. WEIDENFELD: Well, it is always a matter that's open. The State represents the children, and often cases it's the State taking away children as against both parents, so the State would have the responsibility, I would suggest, to reopen that matter.

QUESTION: In another sense that doesn't help you, though, because if the Federal court enters a judgment making certain findings as, let's say the child abuse did occur, if the proceeding is always open in Louisiana and if Louisiana does not give preclusive effect to that determination, the jurisdiction of the Louisiana court remains unfettered and unconstrained by the Federal judgment.

MR. WEIDENFELD: That's -- that would be correct, and what -- but what would happen is you now have the Federal courts telling the State courts that we don't -- that really you haven't done it correctly. You've come to the wrong result. You need to relitigate this matter.

QUESTION: But the State court is just as free as it would have been if there had been no Federal proceeding at all, as I understand both your submission and that of your opposing counsel.

MR. WEIDENFELD: That's correct.

QUESTION: Well, couldn't -- are you agreeing that you could not claim collateral estoppal, an offensive use, let's say, of collateral estoppal in a State court if the State proceeding is left open and there has been a determination and judgment in the Federal proceeding?

MR. WEIDENFELD: That there'd be no collateral estoppal as between the State proceeding and the Federal proceeding?

QUESTION: No, the other way around. Let's -- I thought you were saying the State proceeding is never closed, so there's no judgment and therefore no preclusive effect running from the State proceeding binding on the parties in the Federal proceeding, but if the Federal proceeding goes to judgment and the State proceeding is always open, one could make, I presume, either offensive or defensive use of collateral estoppal if one reopens the State proceedings based on findings of fact made in the Federal tort action.

MR. WEIDENFELD: That -- yes, that's correct.

QUESTION: Okay.

MR. WEIDENFELD: And what would happen is that -- and then you see what happens. A party loses in the State and says well, wait a minute, since I can reopen this matter, I'm going to hop over into the United States district court to relitigate my case because I have a friendlier -- I perceive myself to having a friendlier forum there. I have more favorable laws, as is suggested, and so I get to redo the whole case, which you wouldn't be able to do in the State court.

QUESTION: But Mr. Weidenfeld, there are a lot of tort actions that could have an effect on a custody decree.

I mean, a tort action by a total stranger against the mother who has been given custody on the ground that she was a drunken driver and injured -- or on the ground that she was violent and whipped the plaintiff's child, I mean, that would be an indication in the State courts, wouldn't it, of the mother's incapacity or unsuitability to have custody of the child?

Now, is that tort suit to be disallowed in Federal courts as well because it might have a collateral estoppal effect on the State custody proceeding?

MR. WEIDENFELD: No. My test is whether or not it occurred during the existence of the marriage and it involves the State interests vis-a-vis parent --

QUESTION: Well, I know that's your test because it fits your case, but I don't know why the one is any more logical than the other.

MR. WEIDENFELD: Well, the State has no interest or no involvement in the other, per se.

I know that this Court has never extended Younger to a diversity case and -- but I suggest that the State interests are the same as in a diversity case, and the Federal interests if anything have decreased.

QUESTION: But for Younger, even in the criminal context there has to be a pending proceeding, doesn't there, a pending proceeding in the State court?

MR. WEIDENFELD: There does, and I think that the pending proceeding is the -- and this is a stretch which I admit, but the pending nature of the proceeding is that custody is always pending, is always on-going, because the State's interest never ends.

QUESTION: Well, we don't need a domestic relations exception then, if we have that sort of an abstention doctrine. It's to accomplish exactly the same purpose.

MR. WEIDENFELD: I agree with that. I agree absolutely with that. I mean, the same purpose can be achieved in either way, and I think the purpose ought to be achieved, and the purpose that ought to be achieved is that the State -- that the Federal court in this instance is not to be used by disgruntled litigants. In this case they're not a disgruntled litigant, but that's what's normally going to happen, to be used to review or revisit or to gain some advantage. I don't think that that's the purpose of the Federal courts.

QUESTION: Counsel, one question for clarification. Let's assume that the domestic relations exception applies to the father, respondent Richards. How does it apply to his companion, respondent Kesler?

MR. WEIDENFELD: It would not -- well, in two ways. One, she is in effect the co-respondent, and there is the eternal triangle. It's a domestic matter.

It's a three-edged sort of triangle -- mother, the new girlfriend, and the father -- so in that sense -- and in Louisiana you couldn't marry a proven co-respondent, but I think the easier way that it works is that once it's -- once it is Jon Richards, if that -- if there's no jurisdiction in that case, then the girlfriend, as opposed to having them in two instances, you come very close to a Colorado River type situation where you've got litigations in parallel jurisdictions and it would -- the duplication of resources, it wouldn't make sense to have the two, so the one would -- the one against the girlfriend would come back over to the State.

I would only close by saying that there needs to be some way to determine what is a matter that is domestic, and I think that that ought to be a matter that goes to the discretion of the court, of the trial court. They're in the best position to make that determination, and that Judge Arceneaux in this instance did not abuse his discretion.

Thank you.

QUESTION: Thank you, Mr. Weidenfeld.

Mr. Ducote, you have 11 minutes remaining.

REBUTTAL ARGUMENT OF RICHARD LYNN DUCOTE ON BEHALF OF THE PETITIONER

MR. DUCOTE: Mr. Chief Justice and may it please the Court:

I think there are a number of situations where a State court action can result in a Federal -- or the facts that result in a State court action can result in a Federal action, and we don't have all of this fear. For example, you can have a criminal conviction in State court and then a tort action among the same players, the perpetrator and the victim, and if there's a decision in the Federal court action based on diversity that is contrary to the State court criminal proceeding it's no basis to go back and reopen the criminal court proceeding. Just as in this case, this man's parental rights were terminately and unalterably and permanently terminated in an unappealed final decision. That's it. The case is over.

QUESTION: He could never get custody back.

MR. DUCOTE: He would have no right of action under State law because he's a legal stranger to the children. The case is over and done with.

Now, people can go into domestic court on all sorts of reasons and try to reopen cases. The fact that people can attempt to do things doesn't mean that the whole constitutional and congressional grant of jurisdiction should then tremble and say well, you know, this might happen, this might happen and this might happen. He's over and done with as far as the children are concerned as a matter of State law.

QUESTION: Well, most -- all of us I guess react by where our own practice was. Where I practiced, you could -- you would -- a father who was denied custody could have some years later come back in and moved to reopen that saying look, the mother is not proving to be a good custodian, there are new facts available, the money is situated differently, the child is now 14 years old and expressed a desire to live with me, and the decree would be reopened. That doesn't happen in Louisiana.

MR. DUCOTE: Well, commencing about the 1970's virtually every State has enacted termination of parental rights statutes because of the child abuse problem. The denial of custody is different than what happened here. This is a permanent termination of all parental rights, meaning he doesn't even have the right as another parent would to come in and seek custody. He's not on the same footing any more, and he's permanently enjoined from any contact.

QUESTION: Would you be here making the same argument if instead custody had been awarded to the mother but no termination of parental rights? Would you still think that the Federal courts should entertain the tort action?

MR. DUCOTE: Certainly. I don't think that has any bearing. I think that made this a clearer case for review because his parental rights were terminated, but I don't think that in and of itself has any bearing because, as Justice Blackmun questioned, is this an exception, or is it abstention, and if it's going to be abstention, then it has to be one of the abstentions that the Court has recognized -- Younger, but again doesn't apply because there are no pending State actions.

So again if it meets the diversity criteria and it's a diversity case, then the Federal court has to do what Congress says it's supposed to do -- hear the case, decide on the merits, award damages, don't award damages, whatever the jury decides, and what happens in the State court proceedings will happen, and that's to be dealt with separately.

If there are no other questions --

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Ducote. The case is submitted.

(Whereupon, at 12:02 p.m., the case in the above-entitled matter was submitted.)