In Cook v. Harding, published January 12, 2018, the 9th Circuit Court of Appeals affirmed dismissal of a federal suit seeking declaratory and injunctive relief against county and state officials, among others. The plaintiff, a surrogate mother, had a falling out with the biological father of the children she carried. The plaintiff challenged the constitutionality of Family Code section 7962, which prescribes standards for gestational surrogacy contracts and sets forth a court procedure for establishing parental rights under such contracts. She initially filed suit in state superior court. The court dismissed the case because it was not filed in the proper court or properly served. The father then filed an action in family court under section 7962's procedure. The plaintiff filed a counterclaim in that action, arguing section 7962 was unconstitutional. She then filed the federal action at issue, naming government officials along with the father. The district court dismissed the action on the ground that the Younger v. Harris abstention doctrine required the district court to abstain from entertaining the suit because the state court was also pending. The district court concluded that the family law issues in the case were important state interests that should be adjudicated in state court.
The 9th Circuit held that the district court erred in applying Younger abstention. Recent U.S. Supreme Court case law has narrowed Younger's application in civil cases. It applies only to civil enforcement actions that are similar to criminal proceedings, and to cases that involve the state's interest in enforcing its courts' orders and judgments. Instead, it is a challenge to the constitutionality of a statute, which is appropriate for federal court.
The 9th Circuit nevertheless affirmed the dismissal, on the ground of issue preclusion. While the federal action was pending in the district and appellate courts, the state action proceeded through a trial court judgment, a published opinion from the Second District Court of Appeal, the California Supreme Court's denial of review, and the U.S. Supreme Court's denial of certiorari. The Second District's opinion adjudicated the same constitutional issues that the plaintiff raised in the federal issue. The state court decision was well-reasoned. And policy issues--including ending the plaintiff's two-year litigation of the case in two different courts--favored applying issue preclusion.
Pollak, Vida & Barer represents the county defendants in this action.
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