Appeal from the United States District Court, for the Northern District of Indiana, South Bend Division. No. 84 C 330--Allen Sharp, Judge.
Before CUMMINGS, Chief Judge, and BAUER and POSNER, Circuit Judges.
POSNER, Circuit Judge. This appeal from a judgment for the defendants in a suit under section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, requires us to consider perplexing issues concerning the relationship between federal and state courts, arising in an unusual factual setting. A man serving a life sentence in an Indiana prison wants a divorce, and now has turned to the federal courts for assistance in moving the divorce proceeding along to judgment. There was a time when states didn't allow a man to use his crimes as the basis for getting a divorce and when federal courts did 't protect the civil rights of prison inmates. But that time, for good or ill, is past, and this case requires us to strike a delicate balance federal rights and state prerogatives.
In Indiana, conviction of a felony subsequent to marriage is a ground for divorce, Ind. Code § 31-1-11.5-3(a)(2), and the felon can invoke the ground; this appears from the deletion of an earlier provision limiting the right to seek a divorce to the injured party. See Ind. Code § 31-1-12-3 (1971). Lynk's wife had decamped with their two children six years before he filed for divorce. Her whereabouts were and are unknown. Service of the petition for divorce was therefore by publication. The wife made no appearance and filed no answer. In these circumstances there would ordinarily be no difficult getting the divorce. The only hitch is that the Indiana divorce statute may require the divorce court to base its decision on evidence presented in a hearing before the court. See Flora v. Flora, 166 Ind. App. 620, 626 337 N.E.2d 846, 849-50 (1975). We put this proposition tentatively because in Flora evidence was necessary to determine whether the plaintiff had established grounds for divorce; the ground alleged was "irretrievable breakdown" of the marriage, Ind. Code § 31-1011.5-3(a)(1), a matter of fact. Since Indiana does not recognize divorce by consent, the court must satisfy itself that a ground for divorce exists, and if the cited ground requires evidence must therefore insist on evidence. But if the ground can be established by other means than live evidence presented at a hearing, we find nothing in Flora to suggest that there must be a hearing anyway. In the present case the only thing necessary to show entitlement to a divorce would be public records establishing the date of Lynk's marriage and the date of his felony conviction and as a matter of fact these dates are not in any doubt. A hearing would have served no purpose and we doubt that Indiana law requires purposeless hearings.
In his petition for divorce, however, Lynk cited irretrievable breakdown rather than felony conviction as the ground for divorce, and he requested that a date be set for him "to be present in the court room or otherwise appear for a hearing." The state judge to whom the proceeding was assigned scheduled a hearing, and Lynk then requested the judge to issue a writ of habeas corpus ad testificandum to enable him to appear at it. The judge refused, on the ground that Lynk had "failed to show such a fundamental interest in his appearing for hearing in this cause that his being transported to a place outside the place of confinement outweighs the State's interest in avoiding the risks and expense of such transportation." Lynk responded by filing a motion for judgment on the pleadings. This motion disclosed his alternative ground for divorce--that he had been convicted of a felony after his marriage. Nevertheless the motion was denied, without any statement of reasons. Lynk tried to get the Indiana Supreme Court to mandamus the judge to allow him to appear for the hearing, but the court refused, again without a statement of reasons, and the U.S. Supreme Court denied certiorari. Lynk did not have counsel in any of these proceedings.
With the divorce proceeding apparently stalled in the state court, Lynk brought the present suit. In it he asks for a declaration that the Indiana statute, as interpreted to prevent him from getting a divorce because he is in prison and therefore cannot show up at the mandatory hearing, violates his rights under the equal protection clause of the Fourteenth Amendment. On motion by the defendants--the court where the divorce case is pending, the judge assigned to the case, and the attorney general of Indiana, who has general responsibility for enforcing Indiana's laws--the district judge dismissed the case, without prejudice, on the basis of the Younger doctrine, which forbids federal district courts to interfere with certain types of state court proceeding. See, e.g., Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982); W.C.M. Window Co. v. Bernardi, 730 F.2d 486 (7th Cir. 1984). The judge wrote an opinion which consists largely of paragraphs cut out of the defendants' brief and pasted into the opinion without even the courtesy of retyping. We have criticized this judge's practice of copying portions of the winning party's brief into his opinions before. See Walton v. United Consumers Club, Inc., 786 F.2d 303, slip op. at 19-20 (7th Cir. 1986); Andre v. Bendix Corp., 774 F.2d 786, 800-01 (7th Cir. 1985). We shall not repeat these criticisms. We trust the practice will now cease.
It is tempting to turn down Lynk's appeal simply by reference to the principle that the federal courts have no domestic relations jurisdiction, see, e.g., Lloyd v. Loeffler, 694 F.2d 489, 491-92 (7th Cir. 1982); McIntyre v. McIntyre, 771 F.2d 1316, 1319 (9th Cir. 1985); DiRuggiero v. Rodgers, 743 F.2d 1009, 1018-20 (3d Cir. 1984), and by the observation that the plaintiff is asking the district court in effect to grant him a divorce. But the first premise is questionable, and the second wrong. It is true that the courts have created an exception to the diversity jurisdiction in the domestic-relations area, and although the precise scope of the exception is uncertain it clearly embraces actions for divorce. The existence of the exception rests on dubious historical, but powerful pragmatic, grounds. Lloyd v. Loeffler, supra, 694 F.2d at 491-92. But this is not a diversity case, and although the pragmatic objections to a federal court's trying to decree a divorce are very powerful, they would not necessarily prevent the court form doing so as a remedy for a violation of federal rights if no other remedy were feasible. Anyway, Lynk is not asking the district court to grant him a divorce. He is asking it to clear away the procedural roadblocks that are preventing him from getting any action on his divorce proceeding in state court. To this request the invocation of Younger is an inadequate reply.
In Younger the state had brought a criminal proceeding which the defendant tried to get the federal court to enjoin under 42 U.S.C. § 1983 (to which 28 U.S.C. § 2283, which forbids federal courts to enjoin state court proceedings, has been held not to apply, Mitchum v. Foster, 407 U.S. 225, 32 L. Ed. 2d 705, 92 S. Ct. 2151 (1972)). The Supreme Court held that the defendant could not get the injunction. He had an adequate remedy at law (a standard ground for denying an injunction)--to assert his federal claim by way of defense to the prosecution. And the grant of an injunction would have interfered with an essential state function, the prosecution of violators of the state's criminal laws. The Younger doctrine has since been extended to state civil proceedings that are punitive in character, such as a proceeding to attach assets acquired in violation of state criminal law (Trainor v. Hernandez, 431 U.S. 434, 52 L. Ed. 2d 486, 97 S. Ct. 1911 (1977)) or to discipline a lawyer (Middlesex).
l. The obvious but superficial difference is that a divorce suit is not a public action and Lynk's petition for divorce sought no relief against a state officer. Based as it is on a policy of noninterference with proceedings brought by the state itself, the Younger doctrine has little if any direct application to private suits. See Evans v. City of Chicago, 689 F.2d 1286, 1294-95 (7th Cir. 1982); Texaco Inc. v. Pennzoil Co., 784 F.2d 1133, 1149-50 (2d Cir. 1986); Martori Bros. Distributors v. James-Massengale, 781 F.2d 1349, 1355 n. 11 (9th Cir. 1986); Etlin v. Robb, 458 U.S. 1112, 73 L. Ed. 2d 1375, 102 S. Ct. 3496 (1982) (opinion of Justice White, dissenting from denial of certiorari). But in a state such as Indiana that does not permit divorce by consent, the state is in an important sense a party to every divorce suit. Lynk's uncontested divorce is stymied by the refusal of a state judge to grant the divorce notwithstanding the defendant's (the wife's) default; the state is in effect an interested party in the divorce proceeding. Cf. Juidice v. Vail, 430 U.S. 327, 335-36, 51 L. Ed. 2d 376, 97 S. Ct. 1211 (1977); Parker v. Turner, 626 F.2d 1, 4 (6th Cir. 1980).
2. Lynk may have no adequate remedy in state court (compare Juidice v. Vail, supra, 430 U.S. at 337 n. 14)--in major part because he is the plaintiff rather than, as in the usual case where the Younger doctrine is invoked, the defendant. Lynk seems, indeed, to be in a Catch-22 situation--unable to get a divorce to which he is clearly entitled under state substantive law, because he is in prison and therefore cannot attend the divorce hearing; unable to get the estate court either to excuse his presence at the hearing or to allow him to appear for the hearing; and unable to appeal from the refusal to grant him a divorce, because the divorce case remains pending. There is not final order and no prospect that one will ever be entered. Lynk could eliminate all semblance of a Younger problem by dismissing his divorce suit, which he might as well do anyway since it is hopelessly stalled. Then there would be no pending state court action to impede his federal civil rights suit. C. Parker v. turner, supra 626 F.2d at 5. We shall come back to the issue of dismissal.
We hope we will not be thought to be embracing the false syllogism that since the Younger doctrine is designed mainly for cases in which the state is a party, and since there is (though again with exceptions) no requirement of exhausting state remedies in suits brought under 42 U.S.C. § 1983, a party to a private suit in state court who is unhappy with how the suit is progressing can try to derail it, accelerate it, or otherwise interfere with it by suing under section 1983. There are three obstacles to such end runs around pending state court litigation:
1. Quite apart from the Younger doctrine (and the Pullman doctrine, which may also be applicable here, as we shall see), the federal courts can appropriate circumstances abstain in favor of a state court in which a parallel litigation is pending. See, e.g., Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818-19, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976); Evans Transportation Co. v. Scullin Steel Co., 693 F.2d 715 (7th Cir. 1982). A person may have a right to bring parallel suits in different courts but he has no right to force both courts to drop everything and conduct duplicate proceedings at the same time. that is not a problem here, however; there are no active proceedings in the state court.
2. Where the federal suit is equitable, as it is here, the plaintiff, to get relief, must show that he lacks an adequate remedy at law. The idea behind this familiar principle of equity jurisprudence is that an injunction is an extraordinary remedy--more mundanely, a more costly remedy than either damages or (in the case of a defendant who is asking for an injunction) interposing a defense to the plaintiff's suit at law. The principle may therefore seem inapplicable to a case where the alternative remedy--the divorce that Lynk is seeking in state court--is itself equitable in character though not in historical origins. (Historically, divorces were the province of the ecclesiasitical courts, rather than the chancery court, of England.) There is not hierarchy among equitable remedies within the same judicial system. But where the plaintiff is seeking an injunction in one sovereign's courts (the federal courts) against or affecting another sovereign's judicial proceeding, the remedy sought is of extraordinary that the plaintiff's equitable as well as legal alternatives in the second sovereign's courts must be canvassed before the injunction is issued. That is the essential policy behind the Younger doctrine, and it is not limited by the conventional boundaries of that doctrine. The principle of federal equity jurisprudence that only the adequacy of alternative federal remedies is to be considered when an injunction is requested, see Petroleum Exploration, Inc. v. Public Service Comm'n, 304 U.S. 209, 217 82 L. Ed. 1294, 58 S. Ct. 834 (1938); United States v. New York, 708 F.2d 92, 93 (2d Cir. 1983) ...