1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

THIRD DIVISION

Cause No.: 04-4152 JRT/FLN David Bernhard Witte, individually, and ) on behalf of all persons similarly situated, )

) Plaintiffs-Petitioners, ) ) v. ) ) Minnesota Governor Tim Pawlenty, ) Minnesota State Supreme Court Chief Judge ) Kathleen Blatz, ) Minnesota State Court of Appeals Chief Judge ) Edward Toussaint, ) Minnesota Commissioner of Supreme Court ) Richard S. Slowes, ) Minnesota State Court Administrator Sue K. Dosal, ) Minnesota Department of Human Services ) Commissioner Kevin Goodno, ) Minnesota State Commissioner of the Department ) of Public Safety Michael Campion, ) State of Minnesota, ) ) Defendants-Respondents. )

Notice of Supplemental Authority in Well Established Federal Jurisdiction Over the Constitutionality of Child Custody Matters

Comes now the principal Plaintiff-Petitioner, David B. Witte, individually, and also on behalf

of all persons so similarly situated in this action (together, “the Class”), and respectfully notifies

this Court of its well established jurisdiction in determining the constitutionality of state

proceedings within child custody matters, by submitting the following in direct support:

Request for judicial notice of all controlling authority described herein below.

2

Pursuant to Rule 201 of the Federal Rules of Evidence (“Judicial Notice of Adjudicative

Facts”), the Court is hereby requested to take full judicial notice of the specific language,

provision, ruling, and holding of every cited authority contained herein, to also take judicial

notice of the sheer wealth of such authority, to take judicial notice that such authority comes –

repeatedly and forcefully - from each and every federal circuit in this country, both from lower

district courts, and from the several Courts of Appeals – which is also binding upon this case.

It is well established that federal jurisdiction is available and proper with duty

to determine the constitutionality of state proceedings in child custody matters.

In further support of the fact that this Court has full authority and duty to determine the proper

constitutionality of the due process applied – if any – within the standard practices and policies

of state child custody proceedings that the Plaintiffs have complained of, and also in further

authoritative rebuttal against the various attempts to unlawfully undermine the due process of the

instant case, by alleging various “immunities”, “abstention doctrines”, or other such procedural

matters, the following small sample of authorities are provided to firmly validate that this

Court’s jurisdiction is well-established to weigh in on the merits of child custody due process.

Please note that the following sample of authorities are presented in no particular order, and

are merely sentences or paragraphs of citations taken directly from the written majority,

plurality, and per curiam opinions of numerous federal cases, as they each were supporting their

own decisions on the merits of various aspects of child custody matters raised in federal courts.

Again, each of the paragraph separations below generally represents authority taken directly

from different federal cases. While a few paragraphs re-iterate the authority of the United States

Supreme Court itself, most citations below are authority from the various Circuit Courts of

Appeals, and also some of various lower federal district courts throughout the several Circuits:

3

Plaintiffs' right to familial association derives from the Fourteenth Amendment's liberty

interest. See J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997).

See, e.g., Tenenbaum, 193 F.3d at 603-05 [*15] (analyzing child's removal as a seizure

under the Fourth Amendment, and considering whether a court order, probable cause or exigent

circumstances justified the child's removal); Wooley v. City of Baton Rouge, 211 F.3d 913, 925-

26 (5th Cir. 2000) (noting that a warrant, probable cause, or a reasonable belief that a child is in

imminent harm is necessary to justify a seizure of a child under the Fourth Amendment); J.B. v.

Washington County, 127 F.3d 919, 929 (10th Cir. 1997) (applying probable cause standard to

removal of child); Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000) ("state may not

remove children from their parents' custody without a court order unless there is specific,

articulable evidence that provides reasonable cause to believe that a child is in imminent danger

of abuse"). Cf. Landstrom v. Illinois Dept. of Children and Family Serv., 892 F.2d 670, 676 (7th

Cir. 1990) (search or seizure of child by DCFS must be "reasonable," but that does not

necessarily require probable cause or warrant); Darryl H. v. Coler, 801 F.2d 893, 902 (7th Cir.

1986) (accord). Of course, even then the manner in which the [*16] seizure is carried out must

be reasonable. Tennessee v. Garner, 471 U.S. 1, 8, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985)

("reasonableness depends on not only when a seizure is made, but also how it is carried out").

[T]hey [the State] violated the Fourth Amendment. Malik v. Arapahoe County Dept. of Social

Services, 191 F.3d 1306, 1315 (10th Cir. 1999) (government officials' procurement of a court

order to remove children based on information they knew was founded on distortion,

misrepresentation and omission, violated the Fourth Amendment).

4

The Supreme Court has long recognized as a component of substantive due process the right

to familial relations. See Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct.

438 (1944); Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923);

Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (there is "a

fundamental liberty interest of natural parents in the care, custody, and management of their

child."). See also, Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) ("Parents and children

have a well-elaborated constitutional right to live together without governmental interference.");

Croft v. Westmoreland County Children and Youth Services, 103 F.3d 1123, 1125 (3d Cir. 1997)

("We recognize the constitutionally protected liberty interests that parents have in the custody,

care and management of their children."). See generally Troxel v. Granville, 530 U.S. 57, 120 S.

Ct. 2054, 147 L. Ed. 2d 49 (2000). The Due Process Clause "includes a substantive component

that provides heightened protection against government interference with certain fundamental

[*42] rights and liberty interests." Id. 120 S. Ct. at 2060. These decisions recognize that the right

of a man and woman to marry, and to bear and raise their children is the most fundamental of all

rights--the foundation of not just this country, but of all civilization. Wisconsin v. Yoder, 406

U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) ("The history and culture of Western

civilization reflect a strong tradition of parental concern for the nurture and upbringing of their

children."); id., ("This primary role of the parents in the upbringing of their children is now

established beyond debate as an enduring American tradition."); Moore v. City of East

Cleveland, Ohio, 431 U.S. 494, 503, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) ("The institute of

the family is deeply rooted in this Nation's history and tradition."). Equally fundamental is the

substantive due process right of a child to be raised and nurtured by his parents. See Santosky v.

Kramer, 455 U.S. 745, 760, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) ("Until the state proves

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parental unfitness, the child and his parents share a vital interest in preventing erroneous

termination of the natural relationship. [*43] ") (emphasis added); J.B. v. Washington County,

127 F.3d 919, 925 (10th Cir. 1997) ("We recognize that the forced separation of parent from

child, even for a short time, represents a serious infringement upon both the parents' and child's

rights.") (internal quotations omitted); Wooley v. City of Baton Rouge, 211 F.3d 913, 923 (5th

Cir. 2000) ("a child's right to family integrity is concomitant to that of a parent"). n15 Thus,

substantive due process provides the appropriate vehicle for evaluating the constitutionality of

the nearly four-month government-forced separation of C.A. from his parents. See, e.g., J.B. v.

Washington County, 127 F.3d 919, 927 (10th Cir. 1997) ("It is evident that there was

interference with plaintiffs' rights of familial association because L.B. was physically removed

from her home and from her parents for a period of almost 18 hours, which included an

overnight stay in a pre-arranged shelter home."); Croft, 103 F.3d at 1125 ("The due process

clause of the Fourteenth Amendment prohibits the government from interfering in the familial

relationship unless the government adheres to the requirements of procedural [*44] and

substantive due process.").

Malik v. Arapahoe County Dept. of Social Serv., 191 F.3d 1306, 1315 (10th Cir. 1999) [*49]

("An ex parte hearing based on misrepresentation and omission does not constitute notice and an

opportunity to be heard."). Minimally, it also means that governmental officials will not remove

a child from his home without an investigation and pre-deprivation hearing resulting in a court

order of removal, absent exigent circumstances. Hollingsworth v. Hill, 110 F.3d 733, 739 (10th

Cir. 1997) ("Removal of children from the custody of their parents requires predeprivation notice

and a hearing except for extraordinary situations where some valid governmental interest is at

stake that justified postponing the hearing until after the event."); Malik, 191 F.3d at 1315 (a

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parent has a liberty interest in familial association and privacy that--absent extraordinary

circumstances--cannot be violated without adequate pre-deprivation procedures). Cf. Lossman v.

Pekarske, 707 F.2d 288, 291 (7th Cir. 1983) ("When a child's safety is threatened, that is

justification enough for action first and hearing afterward."); Jordan by Jordan v. Jackson, 15

F.3d 333, 346 (4th Cir. 1994) ("Only where a child's life is in imminent danger or where there is

immediate [*50] danger of severe or irreparable injury to the child's health (and prior judicial

authorization is not immediately obtainable) may an official summarily assume custody of a

child from his parents.").

[T]he balance between a child's liberty interest in familial relations and a state's interest in

protecting the child is nebulous at best, social workers and other state actors who cause a child's

removal are entitled to qualified immunity because the alleged constitutional violation will

rarely--if ever--be clearly established. See, e.g., Kiser v. Garrett, 67 F.3d 1166, 1169-74 (5th Cir.

1995); [*58] Hodorowski v. Ray, 844 F.2d 1210, 1216-17 (5th Cir. 1988); Tenenbaum v.

Williams, 193 F.3d 581, 595-96 (2d Cir. 1999); Doe v. State of Louisiana, 2 F.3d 1412, 1416-21

(5th Cir. 1993); Frazier v. Bailey, 957 F.2d 920, 929-31 (1st Cir. 1992). While we agree that that

is generally the case, see e.g., Landstrom v. Illinois Dept. of Children and Family Serv., 892 F.2d

670, 674-78 (7th Cir. 1990); Darryl H. v. Coler, 801 F.2d 893, 907-08 (7th Cir. 1986), as noted

above, some governmental actions are so clearly beyond the pale that a reasonable person should

have known of their unconstitutionality even without a closely analogous case.

Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000) ("the interest

of parents in the care, custody, and control of their children - is perhaps the oldest of the

fundamental liberty interests recognized by this Court").

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The Supreme Court has held that parents have a constitutionally protected liberty interest in

the care, custody and management of their children. See Santosky, 102 S. Ct. at 1397. "As a

general rule, therefore, [*14] before parents may be deprived of the care, custody or

management of their children without their consent, due process -- ordinarily a court proceeding

resulting in an order permitting removal -- must be accorded to them." Tenenbaum v. Williams,

193 F.3d 581, 593 (2d Cir. 1999) (citing Stanley v. Illinois, 405 U.S. 645, 649, 92 S. Ct. 1208,

1212, 31 L. Ed. 2d 551 (1972)).

"Even when blood relationships are strained, parents retain a vital interest in preventing the

irretrievable destruction of their family life." Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed.

2d 599, 102 S. Ct. 1388 (1982).

In Santosky v. Kramer, the Supreme Court made clear that termination of parental rights

impinges upon a liberty interest of which a citizen may not be deprived without due process of

law. 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982).

Cf. Santosky v. Kramer, 455 U.S. 745, 758-59, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982)

("[A] natural parent's desire for and right to the companionship, care, custody, and management

of his or her children is an interest far more precious than any property right.") (internal

quotation marks omitted); Meyer v. Nebraska, 262 U.S. 390, 400-03, 67 L. Ed. 1042, 43 S. Ct.

625 (1923) (holding that the Due Process Clause confers a right to direct a child's education).

In Malik v. Arapahoe County Dep't of Soc. Servs., we held "that it [is] clearly established law

that, except in extraordinary circumstances, a parent has a liberty interest in familial association

and privacy that cannot be violated without adequate pre-deprivation procedures." 191 F.3d

1306, 1315 (10th Cir. 1999).

8

A parent's liberty interest in her relationship with her child is of considerable importance--and

"far more precious . . . than property rights." May v. Anderson, 345 U.S. 528, 533, 97 L. Ed.

1221, 73 S. Ct. 840 (1953); see also Lassiter, 452 U.S. at 27; Santosky v. Kramer, 455 U.S. 745,

759, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Weller, 901 F.2d at 394

Cf. Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) ("It is beyond purview that any

rational teacher could believe that governmental destruction of a family based on fabricated

evidence is constitutionally allowed."); id. at 672 (making knowingly false statements of child

neglect violates clearly established constitutional right to familial relations); Malik, 191 F.3d at

1316 ("It is clearly established law that government official's procurement through distortion,

misrepresentation and omission of a court order to seize a child is a violation of the Fourth

Amendment.")

"Choices about marriage, family life, and the upbringing of children are among associational

rights [the Supreme] Court has ranked as 'of basic importance in our society,' . . . rights sheltered

by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or

disrespect." M. L. B. v. S. L. J., 519 U.S. 102, 116, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996)

(internal citation omitted). Parents therefore have a constitutionally protected liberty interest in

the care, custody and management of their children. See Santosky v. Kramer, 455 U.S. 745, 753-

54, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991);

van Emrik v. Chemung County Dep't of Soc. Servs., 911 F.2d 863, 867 (2d Cir. 1990); see also

Stanley v. Illinois, 405 U.S. 645, 649-52, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (rights to

[*24] conceive and raise one's children have been deemed "essential" and "basic civil rights of

man"); Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944) (the

custody, care and nurture of the child reside first with the parents); Meyer v. Nebraska, 262 U.S.

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390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923) (liberty guaranteed by the Fourteenth Amendment

includes the right to establish a home and bring up children); Duchesne v. Sugarman, 566 F.2d

817, 825 (2d Cir. 1977) (recognizing the right of the family "to remain together without the

coercive interference of the awesome power of the state"). As a general rule, therefore, before

parents may be deprived of the care, custody or management of their children without their

consent, due process -- ordinarily a court proceeding resulting in an order permitting removal --

must be accorded to them. See Stanley, 405 U.S. at 649, 651; Hurlman, 927 F.2d at 79 (such due

process is "generally in the form of a predeprivation hearing"); Robison v. Via, 821 F.2d 913,

921 (2d Cir. 1987) (due process "would generally require a predeprivation [*25] hearing").

Gardiner v. Incorporated Village of Endicott, 50 F.3d 151, 156 (2d Cir. 1995) ("The parties

agree that in light of [a parent's] constitutionally protected liberty interest in the custody of her

child, [the child] could not be removed from school by . . . police officers, absent a court order,

an emergency, or parental consent.").

J.B. v. Washington County, 127 F.3d 919, 928 (10th Cir. 1997) (there may be circumstances

in which a parent has Fourth Amendment standing to challenge the seizure of his or her minor

child).

Gottlieb v. County of Orange, 84 F.3d 511, 520 (2d Cir. 1996) ("It is established . . . that

government officials may remove a child from his or her parents' custody before a hearing is

held where there is an objectively reasonable basis for believing that a threat to the child's health

or safety is imminent.")

The child herself, however, has standing under the Fourteenth Amendment "to assert a claim

that would, if she were successful, result in full compensation for any harm suffered." J.B. v.

Washington County, 127 F.3d 919, 928 (10th Cir. 1997). In addition, "parents may assert their

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children's Fourth Amendment rights on behalf of their children." Hollingsworth v. Hill, 110 F.3d

733, 738 (10th Cir. 1997).

The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or

property, without due process of law." We have long recognized that the Amendment's Due

Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process."

Washington v. Glucksberg, 521 U.S. 702, 719, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997). [*15]

The Clause also includes a substantive component that "provides heightened protection against

government interference with certain fundamental rights and liberty interests." 521 U.S. at 720;

see also Reno v. Flores, 507 U.S. 292, 301-302, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993).

The liberty interest at issue in this case -- the interest of parents in the care, custody, and

control of their children -- is perhaps the oldest of the fundamental liberty interests recognized by

this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed.

1042, 43 S. Ct. 625 (1923), we held that the "liberty" protected by the Due Process Clause

includes the right of parents to "establish a home and bring up children" and "to control the

education of their own." Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535,

69 L. Ed. 1070, 45 S. Ct. 571 (1925), we again held that the "liberty of parents and guardians"

includes the right "to direct the upbringing and education of children under their control." We

explained in Pierce that "the child is not the mere creature of the State; those who nurture him

and direct his destiny have the right, coupled with the high duty, to recognize [*16] and prepare

him for additional obligations." 268 U.S. at 535. We returned to the subject in Prince v.

Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944), and again confirmed that there

is a constitutional dimension to the right of parents to direct the upbringing of their children. "It

is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose

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primary function and freedom include preparation for obligations the state can neither supply nor

hinder." 321 U.S. at 166.

In subsequent cases also, we have recognized the fundamental right of parents to make

decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois,

405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) ("It is plain that the interest of a

parent in the companionship, care, custody, and management of his or her children 'comes to this

Court with a momentum for respect lacking when appeal is made to liberties which derive

merely from shifting economic arrangements'" (citation omitted)); Wisconsin v. Yoder, 406 U.S.

205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) ("The history and culture of Western

civilization reflect a strong [*17] tradition of parental concern for the nurture and upbringing of

their children. This primary role of the parents in the upbringing of their children is now

established beyond debate as an enduring American tradition"); Quilloin v. Walcott, 434 U.S.

246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) ("We have recognized on numerous occasions

that the relationship between parent and child is constitutionally protected"); Parham v. J. R., 442

U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) ("Our jurisprudence historically has

reflected Western civilization concepts of the family as a unit with broad parental authority over

minor children. Our cases have consistently followed that course"); Santosky v. Kramer, 455

U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (discussing "the fundamental liberty

interest of natural parents in the care, custody, and management of their child"); Glucksberg,

supra, at 720 ("In a long line of cases, we have held that, in addition to the specific freedoms

protected by the Bill of Rights, the 'liberty' specially protected by the Due Process Clause

includes the right . . . to direct the education and upbringing of one's children" (citing Meyer and

Pierce)). In light [*18] of this extensive precedent, it cannot now be doubted that the Due

12

Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make

decisions concerning the care, custody, and control of their children.

We have long recognized that a parent's interests in the nurture, upbringing, companionship,

care, and custody of children are generally protected by the Due Process Clause of the

Fourteenth Amendment. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042,

43 S. Ct. 625 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 535, 69 L. Ed. 1070, 45 S. Ct.

571 (1925); Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972);

Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Quilloin v.

Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978); Parham v. J. R., 442 U.S.

584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979); Santosky v. Kramer, 455 U.S. 745, 753, 71 L.

Ed. 2d 599, 102 S. Ct. 1388 (1982); Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d

772, 117 S. Ct. 2258 (1997).

Our decision in Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571

(1925), holds that parents have a fundamental constitutional right to rear their children, including

the right to determine who shall educate and socialize them.

[T]he right of a parent to maintain a relationship with his or her child is among the interests

included most often in the constellation of liberties protected through the Fourteenth

Amendment. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

"[N]atural bonds of affection lead parents to act in the best interests of their children." Parham

v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979); see also Casey, 505 U.S. at

895; Santosky v. Kramer, 455 U.S. 745, 759, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (State

may not presume, at factfinding stage of parental rights termination proceeding, that interests of

parent and child diverge).

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[A] parent's interests in a child must be balanced against the State's long-recognized interests

as parens patriae, see, e.g., Reno v. Flores, 507 U.S. 292, 303-304, 123 L. Ed. 2d 1, 113 S. Ct.

1439 (1993); Santosky v. Kramer, 455 U.S. at 766; Parham, 442 U.S. at 605; Prince v.

Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944), and, critically, the child's

own complementary interest in preserving relationships that serve her welfare and protection,

Santosky, 455 U.S. at 760.

This Court has on numerous occasions acknowledged that children are in many circumstances

possessed of constitutionally protected rights and liberties. See Parham v. J. R., 442 U.S. 584,

600, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (liberty interest in avoiding involuntary

confinement); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74, 49 L. Ed. 2d

788, 96 S. Ct. 2831 (1976) ("Constitutional rights do not mature and come into being magically

only when one attains the state-defined age of majority. Minors, as well as adults, are protected

by the Constitution and possess constitutional rights"); Tinker v. Des Moines Independent

Community School Dist., 393 U.S. 503, 506-507, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969) (First

Amendment right to political speech); In re Gault, 387 U.S. 1, 13, 18 L. Ed. 2d 527, 87 S. Ct.

1428 (1967) (due process rights in criminal proceedings).

As our case law has developed, the custodial parent has a constitutional right to determine,

without undue interference by the state, how best to raise, nurture, and educate the child. The

parental right stems from the liberty protected by the Due Process Clause of the Fourteenth

Amendment. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625

(1923); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925);

Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944); Stanley v.

Illinois, 405 U.S. 645, 651-652, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Wisconsin v. Yoder,

14

406 U.S. 205, 232-233, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Santosky v. Kramer, 455 U.S.

745, 753-754, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982).

Stanley v. Illinois, 405 U.S. 645, 657-658, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (State

cannot rely on presumption of unsuitability of unwed fathers; State must make individualized

determinations of parental fitness)

An abundance of case [**78] law supports the conclusion that plaintiff had a fundamental

liberty interest in the custody of his child. See Hollingsworth v. Hill, 110 F.3d 733, 739 (10th

Cir. 1997) (in a Section 1983 suit brought by a mother whose children were removed from her

custody without prior notice, the mother had "a constitutionally protected liberty interest [in the

custody of her children] which could not be deprived without due process"); Jordan v. Jackson,

15 F.3d 333, 342 (4th Cir. 1994) (in a Section 1983 suit brought by parents whose son was

removed from their custody without prior notice, the court found that there "are few rights more

fundamental in and to our society than those of parents to retain custody over and care for their

children, and to rear their children as they deem appropriate"); Weller v. Dep't. of Soc. Servs.,

901 F.2d 387, 391 (4th Cir. 1990) (in a Section 1983 suit brought by a father whose children

were removed from his custody without prior notice, the father "clearly [had] a protectible liberty

interest in the care and custody of his children"); Robison v. Via, 821 F.2d 913, 921 (2d Cir.

1987) (in a [**79] Section 1983 suit brought by a mother whose children were removed from her

custody without prior notice, "it was clearly established that a parent's interest in the custody of

his or her children was a constitutionally protected interest of which he or she could not be

deprived without due process"); Hooks v. Hooks, 771 F.2d 935, 941 (6th Cir. 1985) (in a Section

1983 suit brought by a mother whose children were removed from her custody without prior

notice, the court found that it is "well-settled that parents have a liberty interest in the custody of

15

their children"); Lossman v. Pekarske, 707 F.2d 288, 290 (7th Cir. 1983) (in a Section 1983 suit

brought by a father whose children were removed from his custody without prior notice, the

father "unquestionably" had a liberty interest in the custody of his children); Duchesne v.

Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) (in a Section 1983 suit brought by a mother whose

children were removed from her custody without prior notice, the court found a liberty interest in

"the most essential and basic aspect of familial privacy, the right of the family to stay together

without the coercive [**80] interference of the awesome power of the state").

It is also clear that plaintiff had a fundamental liberty interest in the custody of his son even

though his estranged wife contested legal custody. Courts have recognized a parent's liberty

interest in the physical custody of a child even when the parent lacks legal custody. For example,

in Farina v. City of Tampa, 874 F. Supp. 383 (M.D. Fla. 1994), prospective adoptive parents

sued the city police after officers returned the child to his biological parents without any prior

notice or judicial proceedings. Id. at 384-85. The defendants conceded the underlying facts and

acknowledged that the operative law provided for notice and opportunity to be heard [*162]

before custody decisions are made. Id. at 385. Defendants argued, however, that plaintiffs had no

protected liberty interest because they had only physical, not legal, custody of the child. The

court flatly rejected that distinction and found "no authority in support of [defendants']

distinction between physical and legal custody for procedural due process purposes." Id. at 386.

On this basis, the court granted partial [**81] summary judgment in favor of the plaintiffs. Id. at

387.

It is well established that the Fourteenth Amendment's Due Process Clause has a substantive

component [*14] that "provides heightened protection against government interference with

certain fundamental rights and liberty interests." Troxel v. Granville, 530 U.S. 57, 65, 147 L. Ed.

16

2d 49, 120 S. Ct. 2054 (2000) (quotation omitted). It is also firmly established that the

substantive component of the Due Process Clause grants parents a fundamental right and liberty

interest in the care, custody, and control of their children. Id. at 65-66. In addition, the Due

Process Clause contains a procedural component, and "the procedural component . . . protects

more than just fundamental rights. It protects all liberty interests that are derived from state law

or the Due Process Clause itself." Mullins v. Oregon, 57 F.3d 789, 795 (9th Cir. 1995).

The Supreme Court has explained that this right includes the ability of adults to make

decisions relating to the right to abortion, Roe, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705;

contraception, Eisenstadt, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 and Griswold, 381 U.S.

479, 14 L. Ed. 2d 510, 85 S. Ct. 1678; marriage, Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d

1010, 87 S. Ct. 1817 (1967); family relationships, Prince v. Massachusetts, 321 U.S. 158, 88 L.

Ed. 645, 64 S. Ct. 438 (1944); procreation, Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed. 1655,

62 S. Ct. 1110 (1942); and child rearing and education, Pierce v. Society of Sisters, 268 U.S.

510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) and Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042,

43 S. Ct. 625 (1923).

While there is no question that parents have a constitutionally protected liberty interest in

making decisions about the care, custody, and control of their children, see, e.g., Troxel v.

Granville, 530 U.S. 57, 65, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000) (plurality opinion); Lee v.

City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001) (citing Kelson v. City of Springfield, 767

F.2d 651 (9th Cir. 1985)), we have never held that any such right extends to grandparents.

The plurality in Troxel relied on a line of cases which recognized the due process right of

parents to make critical decisions about the upbringing of their children. See Troxel, at 65 (citing

Meyer v. Nebraska, 262 U.S. 390, 399-401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923) (holding that

17

the Due Process Clause protects the right of parents to "establish a home and bring up children"

and "to control the education of their own"); Pierce v. Society of Sisters, 268 U.S. 510, 534-35,

69 L. Ed. 1070, 45 S. Ct. 571 (1925) (referring to the right "to direct the upbringing and

education of children under their control"); Prince v. Massachusetts, 321 U.S. 158, 166, 88 L.

Ed. 645, 64 S. Ct. 438 (1944) (recognizing a parental liberty interest in the "custody, care and

nurture of the child")).

Some cases involving due process rights of parents have a procedural component as well. In

Stanley v. Illinois, the Supreme Court invalidated an Illinois statute which presumptively treated

unwed fathers as unfit parents, without an individualized hearing. 405 U.S. 645, 646, 656-57, 31

L. Ed. 2d 551, 92 S. Ct. 1208 (1972). In that case, the father's liberty interest was defined as "the

interest of a parent in the companionship, care, [*19] custody, and management of his or her

children." Id. at 651 (emphasis added). The procedural component of parental due process rights,

therefore, requires rigorous adherence to procedural safeguards anytime the state seeks to alter,

terminate, or suspend a parent's right to the custody of his minor children. See id. at 656-57; see

also Burgos, 807 F.2d at 8. Although the Court in Stanley referred to a parent's interest in the

"companionship" of his children, they did not indicate that it intended to depart from the

framework established in the substantive due process cases, which limited the parental liberty

interest to decisionmaking regarding the care, custody, and control of minor children. See

Butera, 235 F.3d at 655.

The interest of parents in the care, custody, and control of their children" has been described

as "perhaps the oldest of the fundamental liberty interests recognized" by the Supreme Court.

Troxel, 530 U.S. at 65; see Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526

(1972); Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944); Meyer v.

18

Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923). The Supreme Court has

consistently reaffirmed that the contours of substantive due process apply to hem in the state's

power to interfere with a parent's right to custody and control of her child. See Troxel, 530 U.S.

at 66 ("In [*28] light of the extensive precedent, it cannot now be doubted that the Due Process

Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions

concerning the care, custody, and control of their children.").

The converse, it seems to me, is self-evident -- a state official runs afoul of a parent's

fundamental liberty interest in the care, custody and control of her child when the official

removes the child without any reason to believe the child is suffering abuse or is in imminent

danger of serious harm. I am hard pressed to think of executive conduct that is more arbitrary or

abusive. See, e.g., Suboh v. District Attorney's Office of Suffolk, 298 F.3d 81, 92-93 (1st Cir.

2002); Brokaw v. Mercer County, 235 F.3d 1000, 1019 (7th Cir. 2000); Hatch v. Dep't for

Children, Youth & Families, 274 F.3d 12, 20-24 (1st Cir. 2001); Croft v. Westmoreland County

Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997); Wallis v. Spencer, 202 F.3d 1126,

1138 (9th Cir. 2000); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991).

Noting that both parents and children have a procedural due process liberty interest in

maintaining family integrity, id. at 235, 237-38, the District Court held that [*25] a

governmental entity cannot simply presume, but must actually prove in each case, that the parent

has committed conduct that renders them unfit to serve as the child's guardian. Id. at 237 (citing

Stanley v. Illinois, 405 U.S. 645, 656-58, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972)).

Similarly, the District Court pointed to cases identifying substantive due process protections

for the family relationship. Id. at 242 (citing Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir.

1999)).

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"As a general rule . . . before parents may be deprived of the care, custody, or management of

their children without their consent, due process--ordinarily a court proceeding resulting in an

order permitting removal--must be accorded to them." Tenenbaum v. Williams, 193 F.3d 581,

593 (2d Cir. 1999); see also Batten v. Gomez, 324 F.3d 288, 295 (4th Cir. 2003) (citing

Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965); [*45] Jordan

by Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994)).

The government must offer "objectively reasonable" evidence that harm is imminent. Gottlieb

v. County of Orange, 84 F.3d 511, 520 (2d Cir. 1996); Hurlman v. Rice, 927 F.2d 74, 81 (2d Cir.

1991).

The parents have, perhaps, a better procedural than substantive due process claim. Again,

though, there is a antecedent question of New York law. The basic merits of the constitutional

argument derive from what is sometimes referred to as the "irrebutable presumption" cases. Most

pertinently, in Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), the

Court upheld a father's challenge to an Illinois law conclusively presuming that, because he was

not married to the mother of his children at the time of her death, he was not a suitable custodial

parent for the children. Stanley raised an equal protection [*57] claim, id. at 646, but the Court's

decision rested instead on the Due Process Clause, id. at 650, 656-57. The Court conducted a

balancing test, analyzing Stanley's parental interest, id. at 651, the state's interest in presuming

Stanley was unfit, id. at 652-57, and the likelihood that the presumption would produce errors,

id. at 654-55. Summing up, the Court said:The State's interest in caring for Stanley's children is

de minimis if Stanley is shown to be a fit father. It insists on presuming rather than proving

Stanley's unfitness solely because it is more convenient to presume than to prove. Under the Due

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Process Clause that advantage is insufficient to justify refusing a father a hearing when the issue

at stake is the dismemberment of his family.

Id. at 657-58. In other words, the father has a procedural due process interest in an

individualized determination of fitness.

For reasons explained below, those conclusions were erroneous as a matter of law. Second,

the district court misapprehended the legal standard applicable to purported substantive due

process rights that - like the right to consent to medical treatment for oneself and one's minor

children - may be "objectively, deeply rooted in this Nation's history and tradition." Washington

v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772, 117 S. Ct. 2302 (1997);

Collins v. City of Harker Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992);

Moore v. City of East Cleveland, 431 U.S. 494, 503, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977). It

is not implausible to think that [*19] the rights invoked here - the right to refuse a medical exam

and the parent's right to control the upbringing, including the medical care, of a child - fall within

this sphere of protected liberty. See Cruzan v. Director, Missouri Department of Health, 497 U.S.

261, 278, 111 L. Ed. 2d 224, 110 S. Ct. 2841 (1990) (the "principle that a competent person has a

constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred

from our prior decisions"); Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 2060, 147 L. Ed.

2d 49 (2000) ("the interest of parents in the care, custody, and control of their children - is

perhaps the oldest of the fundamental liberty interests recognized by this Court"). While the

"shocks the conscience" standard applies to tortious conduct challenged under the Fourteenth

Amendment, County of Sacramento v. Lewis, 523 U.S. 833, 848-51, 140 L. Ed. 2d 1043, 118 S.

Ct. 1708 (1998), it does not exhaust the category of protections under the Supreme Court's

21

substantive due process jurisprudence, or eliminate more categorical protection for "fundamental

rights" as defined by the tradition [*20] and experience of the nation.

The Troxel Court appears to be the first to use the phrase "care, custody, and control," rather

than the very similar "care, custody, and management," Stanley v. Illinois, 405 U.S. 645, 651, 31

L. Ed. 2d 551, 92 S. Ct. 1208 (1972), in the context of a parent's right concerning his or her

children. Prior to Troxel, the phrase was typically used with respect to physical property, for

example, in criminal statutes, see, e.g., Fischer v. United States, 529 U.S. 667, 675, 146 L. Ed.

2d 707, 120 S. Ct. 1780 (2000) (quoting 18 U.S.C. § 666 which prohibits theft or bribery

concerning programs receiving federal funds), and in the context of insurance policies, see, e.g.,

First Investors Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 167 n.6 (2d Cir. 1998) (quoting a

portion of an insurance policy which read, "The loss, depreciation in value, or damage to any real

or personal property, including, but not limited to, money, securities, negotiable instruments or

contracts representing money, held by or in the care, custody or control of the insured."). After

Troxel, federal courts of appeals have begun to employ the phrase to refer to parental rights. See,

e.g., Batten v. Gomez, 324 F.3d 288, 295 (4th Cir. Feb. 24, 2003) (seizure of child violated

mother's due process interest "in the companionship, care, custody, and control of her child");

Hatch v. Dep't for Children, Youth and Their Families, 274 F.3d 12, 20 (1st Cir. 2001) ("The

interest of parents in the care, custody, and control of their children is among the most venerable

of the liberty interests embedded in the Constitution.") (citing Troxel, 530 U.S. at 65); Littlefield

v. Forney Indep. Sch. Dist., 268 F.3d 275, 288 (5th Cir. 2001) ("One of 'the fundamental liberty

interests' recognized by the Court is the 'interest of parents in the care, custody, and control of

their children.'") (quoting Troxel, 530 U.S. at 65-66).

22

Article III standing requirements preclude claims in which the plaintiff has failed to make out

a case or controversy between himself and the defendant. Lynch v. Baxley, 744 F.2d 1452, 1455-

56 (11th Cir. 1984). A plaintiff will generally have standing where three criteria are met: (1) the

plaintiff has experienced injury in fact; (2) the injury is fairly traceable to the defendant's

conduct; and (3) the plaintiff's harm is likely to be redressed should the court order relief. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351

(1992). [*11] Appellants' claims in this case easily satisfy the first two criteria. Parents

have a fundamental right to the custody of their children, and the deprivation of that right

effects a cognizable injury. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388,

1397, 71 L. Ed. 2d 599 (1982). (emphasis added).

The very existence of so many federal cases negates any and all proffered

immunities or abstentions in this similar case to determine unconstitutionality of

standard practices or procedures by the Defendant’s family courts.

Again, the above authorities are derived from not only the United States Supreme Court, but

also from the various Circuit Courts of Appeals, and even some from lower district courts.

The decisions involve challenges involving rights and interests regarding adoption, paternity,

child support, biological custody, foster custody, de facto custody, juvenile delinquency, and

other such matters that are based on United States citizens pitted against state governments over

constitutional determinations in the rightful custody of minor children. A simple Lexis® search

using the terms “parent”, “liberty interest”, “custody”, and/or etc., results in hundreds of federal

cases dedicated to determining such matters on the merits of constitutional adherence, and this

Notice of Supplemental Authority could have easily held pages numbered well into three digits.

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The point is that every level of the federal court system has repeatedly weighed in for

decisions based upon the merits in regards to various alleged unconstitutional practices by the

states in unlawfully depriving United States citizen parents of rightful custody of their children.

With such a wealth of controlling caselaw from the various federal courts in each and every

Circuit, and more importantly regarding the fact that all of these cases were decided upon their

merits, it is clear that any and all attempts by the defending states in those matters to allege

procedural defenses to suit, as have been attempted in this case, were not seriously taken, and

indeed, that any such proffered immunities by a state would necessarily have been denied.

Such a wealth of binding authority is also controlling in this case, as to the veracity of any

supposed immunities that the State has offered in its defense, and all such defenses must fail, for

it is abundantly clear that federal district courts do have well-established jurisdiction to decide –

upon the merits – the sufficiency, or not, of due process protections that are guaranteed to United

States citizen parents in regards to the making of any custody determinations by state courts.

WHEREFORE, the undersigned Plaintiff, David B. Witte, individually, and also on behalf of

all persons so similarly situated in this action (together, “the Class”), respectfully notifies the

Court of the above controlling law, requests judicial notice of the same, and moves to set the

future course of this case accordingly, and for all other relief just and proper in the premises.

Dated: February 15, 2005

Respectfully submitted,

David B. Witte P. O. Box 582552

Minneapolis, Minnesota 55458

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Assistance of Counsel: Frank Arend Schulte 617 Snelling Ave South St. Paul, Minnesota 55116 Bar Number: 244934 (651) 274-0093