Judy Parejko v. Dunn County Circuit Court and State of Wisconsin

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 15, 2006*
Decided December 15, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1578
JUDY PAREJKO,
Plaintiff-Appellant,
v.
DUNN COUNTY CIRCUIT COURT
AND STATE OF WISCONSIN,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin
No. 05-C-267
Barbara B. Crabb,
Chief Judge.
O R D E R
The facts relevant to this appeal are brief. Judy Parejko’s husband filed for
divorce in Wisconsin state court under Wisconsin’s “no-fault” divorce laws, WIS .
S TAT . §§ 767.07, 767.12, and 767.085(4), arguing that their marriage was
“irretrievably broken.” Parejko, who does not want the marriage dissolved,
responded with this suit in federal court challenging the constitutionality of
Wisconsin’s divorce laws and seeking declaratory and injunctive relief. The district
court dismissed the case under the abstention principle of Younger v. Harris, 401
U.S. 37 (1971). We review de novo the district court's decision to abstain under
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

-- 1 of 4 --

No. 06-1578 Page 2
Younger, Majors v. Engelbrecht, 149 F.3d 709, 712 (7th Cir. 1998); Trust & Inv.
Advisers, Inc. v. Hogsett, 43 F.3d 290, 294 (7th Cir. 1994), and affirm.
Although the Supreme Court has cautioned that abstention is the exception
rather than the rule, see New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491
U.S. 350, 358-59 (1989), the Court has also emphasized that “Younger . . . and its
progeny espouse a strong federal policy against federal court interference with
pending state judicial proceedings absent extraordinary circumstances.” Middlesex
County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982). In
Middlesex, the Supreme Court explained that the Younger abstention doctrine
requires federal courts to abstain from enjoining ongoing state proceedings that (1)
are judicial in nature, (2) implicate important state interests, and (3) offer an
adequate opportunity for review of constitutional claims, (4) so long as no
extraordinary circumstances exist which would make abstention inappropriate. 457
U.S. 423, 432, 437 (1982); see also Green v. Benden, 281 F.3d 661, 666 (7th Cir.
2002).
Our analysis of this case under Middlesex is straightforward. First, Parejko
does not dispute that the state court divorce proceedings are “judicial in nature.” Nor
could she, given that her husband’s divorce action will result in a judgment by a
court of law. See BLACK’ S LAW D ICTIONARY 1241 (8th ed. 2004) (defining “judicial
proceeding” as “any proceeding initiated to procure an order or decree, whether in
law or in equity”).
The second prong is satisfied because the federal courts have long recognized
that domestic relations litigation—from marriage to divorce—is an area of
significant state concern from which the federal judiciary should generally abstain
under Younger. See Moore v. Sims, 442 U.S. 415, 435 (1979) (noting that “[f]amily
relations are a traditional area of state concern”); see also 31 Foster Children v.
Bush, 329 F.3d 1255, 1260, 1275 (11th Cir. 2003) (agreeing that state has important
interest in its own foster care system); Morrow v. Winslow, 94 F.3d 1386, 1388, 1397
(10th Cir. 1996) (finding that pending adoption proceedings affect important state
interest); Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir. 1995) (finding that state has
important interest in pending divorce litigation); Liedel v. Juvenile Court, 891 F.2d
1542, 1546 (11th Cir. 1990) (explaining that pending child abuse proceedings are of
vital state concern).
Next, we turn to Middlesex’s third prong. The pending state proceeding
provides an adequate forum in which to adjudicate Parejko’s constitutional claims
and Parejko does not argue otherwise. State courts are equally capable of enforcing
federal constitutional rights as federal courts. See Middlesex County Ethics Comm.,
457 U.S. at 431; Barichello v. McDonald, 98 F.3d 948, 954-55 (7th Cir. 1996);
Brunken v. Lance, 807 F.2d 1325, 1331 (7th Cir. 1986). And when the constitutional

-- 2 of 4 --

No. 06-1578 Page 3
challenges can affect pending state proceedings, as they do here, “proper respect for
the ability of state courts to resolve federal questions presented in state-court
litigation mandates that the federal court stay its hand.” Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1, 14 (1987).
Finally, Parejko's federal complaint does not fall within any recognized
exceptions to Younger. The Supreme Court has stated that a court should not
abstain under Younger where the pending state proceeding was motivated by a
desire to harass or is conducted in bad faith, see Huffman v. Pursue, Ltd., 420 U.S.
592, 611 (1975); see also Ramsden v. AgriBank, FCB, 214 F.3d 865, 871 (7th Cir.
2000), or where the plaintiff has demonstrated “an extraordinarily pressing need for
immediate equitable relief” that, if not granted, will irreparably injure her, see
Moore, 442 U.S. at 433 (quoting Kugler v. Helfant, 421 U.S. 117, 124-25 (1975));
accord Younger, 401 U.S. at 46 (noting that even irreparable injury is insufficient
unless it is “both great and immediate”); Brunken, 807 F.2d at 1331.
There is no indication, nor does Parejko argue, that the underlying divorce
proceedings are motivated by a desire to harass or are being conducted in bad faith.
Likewise, although Parejko argues that Younger does not apply because it is “self-
evident” that “the challenged statutes patently and flagrantly violate the substantive
and procedural due process protections” of the Constitution, she cites not a single
case in support of that far-from-obvious conclusion. See Younger, 401 U.S. at 53-54
(noting that “the possible unconstitutionality of a statute ‘on its face’ does not in
itself justify an injunction against good-faith efforts to enforce it”); Arkebauer v.
Kiley, 985 F.2d 1351, 1361 (7th Cir. 1993). Lastly, she makes no claim that she
would experience severe or irreparable losses while challenging the divorce statutes
in state court.
In her brief, Parjeko largely avoids any discussion of the Middlesex prongs.
Instead, she contends that Younger does not apply because she is not seeking to
enjoin an ongoing judicial proceeding. She says she would seek an injunction “only
after the entry of a declaratory judgment that the challenged statutes are
unconstitutional.” But that contention is self-defeating. Parejko’s promise that she
will seek an injunction if the federal district court holds that the challenged statutes
are unconstitutional is precisely what offends Younger. And the cases that Parjeko
relies upon do not support a contrary conclusion. See Sosna v. Iowa, 419 U.S. 393,
396 n.3 (1975) (noting concern that the federal courts should have abstained under
Younger but allowing case to proceed on merits where both parties urged Court not
to abstain); Loving v. Virginia, 388 U.S. 1, 3-4 (1967) (pre-Younger case in which
Supreme Court reviewed highest state court’s final decision).
Parejko also argues that abstention was inappropriate because her state court
proceeding is a civil divorce action between private individuals. But the Supreme

-- 3 of 4 --

No. 06-1578 Page 4
Court has determined that as long as important state interests are involved, as they
are here, Younger abstention applies to even civil cases between purely private
parties. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13, 14 n.12, 17 (1987); see also
Kelm, 44 F.3d at 419-20 (finding Younger abstention appropriate where pending
divorce proceeding between private parties implicated important state interests).
As a final matter, we note that the State of Wisconsin enjoys sovereign
immunity from being sued without its consent. Hence, the district court should have
dismissed the claims against it for lack of subject matter jurisdiction. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99 (1984); Edelman v. Jordan, 415
U.S. 651, 662-63 (1974); see also Quern v. Jordan, 440 U.S. 332, 342 (1979). So
modified, the judgment of the district court is AFFIRMED.

-- 4 of 4 --