Thurgood Marshall U.S. Courthouse at 40 Foley Square
Thurgood Marshall U.S. Courthouse at 40 Foley Square (Bjoertvedt/Wikimedia)

The U.S. Court of Appeals for the Second Circuit has declined to intervene in a case where a divorcing father argued it was unconstitutional for a state judge to require him to pay half the cost of a court-appointed attorney for his two children.

Using Sprint Communications v. Jacobs, 134 U.S. 548 (2013) as guidance, a unanimous circuit said its exercise of jurisdiction would interfere with a state court’s ability to appoint attorneys for the child in ongoing divorce and custody proceedings.

The panel said one of principles spelled out in Sprint was that federal courts should resist intervention in civil proceedings involving such orders “uniquely in furtherance of the state courts’ ability to perform their judicial functions.”

The circuit dismissed the complaint, Falco v. Justice of the Matrimonial Parts of the Supreme Court of Suffolk County, 15-863-cv, based on the abstention doctrine announced by the U.S. Supreme Court in Younger v. Harris, 401 U.S. 37 (1971).

Gabriel Falco challenged the legality of a 2013 order by Suffolk County Supreme Court Justice Marlene Budd to pay 50 percent of legal fees for his children’s lawyer.

While the divorce was ongoing, Falco filed the federal suit arguing as unconstitutional state Judiciary Law §35, which allows courts to impose of the cost of attorneys for the child on the parties in matrimonial actions.

In February 2015, Eastern District Judge Gabrial Bianco dismissed Falco’s complaint based on the abstention doctrine and on the Second Circuit’s 2003 ruling in Spargo v. New York State Commission on Judicial Conduct, 351 F.3d 65.

Bianco noted that Spargo laid out three factors as dispositive for invoking Younger: a pending state proceeding involving the same issue brought in the federal case; an important state issue is implicated; and the state proceeding allows the plaintiff judicial review of the same constitutional claim as that made in the federal action.

The circuit said Bianco reached the correct conclusion, dismissal of the complaint based on the Younger abstention doctrine, but he took the wrong legal avenue.

Writing for the panel, Judge Raymond Lohier Jr. said Bianco misinterpreted the three factors enunciated in Spargo. Lohier noted that the Supreme Court cautioned in Sprint—which came 10 years after Spargo but before Bianco’s ruling in the Falco case—that the three factors should be used to define the “exceptional circumstances” where they should abstain from exercising jurisdiction. But the factors are not dispositive, he said.

Looking at the Falco’s claim through the prism of Sprint, Lohier said, the circuit still found that the Younger abstention is warranted.

“Falco’s federal lawsuit implicates the way that New York courts manage their own divorce and custody proceedings—a subject in which ‘the states have an especially strong interest,’” Lohier wrote, quoting Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509 (2nd Cir. 1973).

Lohier said use of the abstention by a federal court is not affected, as Falco argued, by the disagreement among Appellate Division departments about whether the fees for attorneys for the child may be imposed on divorcing parents or must be paid the court.

“Although there is some disagreement among New York courts about whether the fees for such court-appointed counsel should be borne by the public or by the parents … there is no discernible disagreement that orders relating to the selection and compensation of court-appointed counsel for children are integral to the state court’s ability to perform its judicial function in divorce and custody proceedings,” Lohier wrote.

Judges Robert Sack and Susan Carney joined in the circuit’s Nov. 12 ruling.

Assistant Solicitor General Mark Shawhan argued in support of the state judges named as defendants in Falco’s federal civil rights complaint.

The state in its dismissal action argued that a pending matrimonial action “falls squarely” within the Younger abstention doctrine.

The state said the conflict cited by Falco between the Appellate Division, Third Department [see Redder v. Redder, 792 N.Y.S.2d 201 (2005)], which favors public payment, and the Second Department [see Plovnick v. Klinger, 781 N.Y.S.2d 360 (2004)] which favors payment by the parties themselves, was a matter for resolution by the Court of Appeals and not in a federal court civil rights proceeding.

Patricia Weiss of Sag Harbor represented Falco.

Falco’s federal complaint also maintained that Budd ruled against him in other aspects of the matrimonial case because Falco objected to paying the costs for his children’s attorney.

The order from Justice Budd directed that Falco pay a $1,250 retainer for the attorney for the children, Darelle Cairo of Riverhead, and then one-half of Cairo’s hourly rate of $250. The divorce is ongoing and now is before Acting Justice Jeffrey Spinner.