In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3528

LOIS JONES,

Plaintiff-Appellant,

v.

THOMAS BRENNAN, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 3285—Charles R. Norgle, Sr., Judge.

____________

SUBMITTED JANUARY 4, 2006—DECIDED AUGUST 14, 2006

____________

Before POSNER, MANION, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. Lois Jones filed this suit pro se in

federal court under 42 U.S.C. § 1983 against several Cook

County, Illinois, probate judges, the county’s public guardian, two of his deputies, and four private lawyers whom the

probate court had appointed to be guardians ad litem. Jones

claimed that the defendants had conspired to deprive her of

property without due process of law in the course of

probate proceedings involving her father’s estate. Her father

was living when the proceedings began, but was incapable

of handling his affairs, apparently because of dementia and

complications of diabetes, and so his property was in the
2 No. 04-3528

control of the probate court. He died in the course of the

proceedings; they continued.

The complaint alleges that the probate judges received

ex parte communications from the guardians, failed to

require the guardians to file appearances or provide an

accounting of their management of the estate, and denied

the plaintiff notice and a hearing before replacing a previous

guardian. The complaint further alleges that one of the

guardians “bargain[ed]” with the plaintiff’s siblings for

property that should have remained in the estate, and

conducted an “illegal search” of her personal belongings,

and that the guardians prevented her from spending

time with her father before he died by making false reports that convinced the court to grant an order of protection against her, and by hastening her father’s death

through neglect. She seeks compensatory and punitive

damages.

The judge dismissed the suit on the pleadings on the

authority of the Rooker-Feldman doctrine. District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker

v. Fidelity Trust Co., 263 U.S. 413 (1923). This was a mistake. The doctrine, which forbids a federal court other

than the Supreme Court to entertain an appeal from a

decision by a state court, is inapplicable when the plaintiff is

not attacking a state court judgment. Exxon Mobil Corp. v.

Saudi Basic Industries Corp., 544 U.S. 280, 291-94 (2005);

TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 591 (7th Cir. 2005).

The plaintiff filed her suit before the litigation in state court

over her father’s estate was completed, and is complaining

(so far as we can determine from the inartfully drafted pro

se complaint), in part anyway, about matters that were not

the subject of the state court judgment, such as the alleged

bargaining between her siblings and the guardians, the
No. 04-3528 3

search, the denial of access to her father, and the defendants’ actions that she contends hastened his death. To the

extent that the Rooker-Feldman doctrine does not apply, the

plaintiff’s claims may be barred by res judicata, 28 U.S.C.

§ 1738, or the anti-injunction act, 28 U.S.C. § 2283, but these

are defenses rather than jurisdictional obstacles and their

applicability remains to be determined.

There is another jurisdictional obstacle to consider,

however, and that is the “probate exception” to the federal

courts’ jurisdiction. See, e.g., Storm v. Storm, 328 F.3d 941,

943-44 (7th Cir. 2003); Dragan v. Miller, 679 F.2d 712, 713-15

(7th Cir. 1982). As recently clarified by the Supreme Court,

the exception “reserves to state probate courts the probate

or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a

state probate court. But it does not bar federal courts

from adjudicating matters outside those confines and

otherwise within federal jurisdiction.” Marshall v. Marshall,

126 S. Ct. 1735, 1748 (2006). The probate exception is usually

invoked in diversity cases, and the courts are divided over

its applicability to federal-question cases, such as this case.

Compare In re Marshall, 392 F.3d 1118, 1131-32 (9th Cir.

2004), rev’d on other grounds under the name Marshall v.

Marshall, supra, and Tonti v. Petropoulos, 656 F.2d 212, 215-16

(6th Cir. 1981), holding it applicable to such cases, with

Goerg v. Parungao, 844 F.2d 1562, 1565 (11th Cir. 1988),

holding it inapplicable. We think it applicable.

It used to be thought that the probate exception, like

the domestic-relations exception, which denies federal

jurisdiction to grant a divorce or exercise the other characteristic powers of a domestic-relations court, Marshall v.

Marshall, supra, 126 S. Ct. at 1746; Ankenbrandt v. Richards,
4 No. 04-3528

504 U.S. 689, 703 (1992); Friedlander v. Friedlander, 149 F.3d

739, 740 (7th Cir. 1998), and is also usually invoked

in diversity cases, was of constitutional dignity. Byers v.

McAuley, 149 U.S. 608, 619-20 (1893); Gaines v. Fuentes, 92

U.S. 10, 21 (1876); Case of Broderick’s Will, 88 U.S. 503, 509

(1875); cf. Andrews v. Andrews, 188 U.S. 14, 32-33 (1903)

(domestic-relations exception). We echoed that view in

Dragan v. Miller, supra, 679 F.2d at 714; see also Akin v.

Louisiana Nat’l Bank of Baton Rouge, 322 F.2d 749, 751 (5th

Cir. 1963); cf. Loubser v. Thacker, 440 F.3d 439, 440 (7th Cir.

2006) (domestic-relations exception). The thought was

that Article III of the Constitution, in limiting the judicial

power of the United States to cases and controversies, had

confined the jurisdiction of the federal courts to “matters

that were the traditional concern of the courts at Westminster.” Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., concurring). Probate and domestic relations

were handled by the English ecclesiastical courts rather than

by the royal courts (both the common law courts and the

Chancery court) at Westminster. Lloyd v. Loeffler, 694 F.2d

489, 491 (7th Cir. 1982); Csibi v. Fustos, 670 F.2d 134, 136 (9th

Cir. 1982); 13B Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 3609, p.

460 (2d ed. 2006); see also 3 William Blackstone, Commentaries on the Laws of England 87-103 (1768).

The accuracy of this historical analysis has been questioned. See 13B Wright, Miller & Cooper, supra, at 491-92; cf.

Lloyd v. Loeffler, supra (domestic-relations exception). The

dominant modern view is that the exceptions are of statutory rather than constitutional origin (except insofar as some

matters within the probate or domestic-relations jurisdictions do not involve disputes and therefore are not cases

or controversies, O’Callaghan v. O’Brien, 199 U.S. 89, 106

(1905); Ellis v. Davis, 109 U.S. 485, 496-97 (1883); Gaines v.
No. 04-3528 5

Fuentes, supra, 92 U.S. at 21-22), and is agnostic about the

accuracy of its remote historical underpinnings.

When Congress in the Judiciary Act of Sept. 24, 1789, § 11,

1 Stat. 73, conferred on the federal courts a diversity jurisdiction limited to “all suits of a civil nature at common law

or in equity,” which is narrower than Article III’s definition

of the federal judicial power, probate and domestic relations

were, the courts interpreting the statute held, excluded

because they were thought to be part of neither common

law nor equity. Marshall v. Marshall, supra, 126 S. Ct. at 1746;

Lloyd v. Loeffler, supra, 694 F.2d at 491; Csibi v. Fustos, supra,

670 F.2d at 136; 13B Wright, Miller & Cooper, supra, at 460.

Congress used the same language when in the Judiciary Act

of March 3, 1875, § 1, 18 Stat. 470, it conferred a general

federal-question jurisdiction on the federal courts, by which

time the probate and especially the domestic-relations

exceptions had become established in the case law. E.g.,

Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859); Case of

Broderick’s Will, supra. The implication is that the exceptions

were probably intended to apply to federal-question cases

too. And there is no indication that the current formula in

both jurisdictional statutes—“all civil actions,” 28 U.S.C.

§§ 1331, 1332(a)—was intended to repeal the exceptions.

Marshall v. Marshall, supra, 126 S. Ct. at 1746; Ankenbrandt v.

Richards, supra, 504 U.S. at 700-01; Dragan v. Miller, supra,

679 F.2d at 713.

There is no good reason to strain to give a different

meaning to the identical language in the diversity and

federal-question statutes. The best contemporary reasons for

keeping federal courts out of the business of probating wills,

resolving will contests, granting divorces and annulments,

administering decedents’ estates, approving child adoptions, and the like are two, and they are as persuasive when
6 No. 04-3528

a suit is filed in federal court on the basis of federal law as

when it is based on state law. First, the proceedings we have

listed, or at least those involving child custody and probate

administration, are in rem in character—they are fights over

a thing of value that is in the court’s control—and another

court should not try to elbow its way into the fight. Second,

state courts are assumed to have developed a proficiency in

these matters, to have procedures tailored to them, and to

work closely with and even employ specialized staff not

found in federal courts. Ankenbrandt v. Richards, supra, 504

U.S. at 703-04; Lloyd v. Loeffler, supra, 694 F.2d at 492; 13B

Wright, Miller & Cooper, supra, at 461. This case, involving

as it does a fight over an estate in the control of the state

probate court, and the deployment of the public guardian,

illustrates both points. See Ankenbrandt v. Richards, supra,

504 U.S. at 703-04. And since state courts are authorized to

decide issues of federal law unless Congress decrees

otherwise, confiding a class of federal-law cases to state

courts does not deprive litigants of their federal rights.

Jones for the most part is complaining simply about the

maladministration of her father’s estate by the Cook County

probate court, and this complaint, brought while the

probate proceedings were in progress though they have

since concluded, was tantamount to asking the federal

district court to take over the administration of the estate.

That clearly would violate the probate exception. Marshall

v. Marshall, supra, 126 S. Ct. at 1748. But she is also accusing

the guardians of having mismanaged the estate, and as

an heir she may have a claim for breach of fiduciary duty by

them. Miller v. Rich, 204 Ill. 444, 451-52 (1903); Estate of Lis v.

Kwiatt & Ruben, Ltd., 847 N.E.2d 879, 886-87 (Ill. App. 2006).

Such a claim does not ask the court in which it is filed to

administer the estate, but rather to impose tort liability on

the guardians for breach of fiduciary duty. Although both
No. 04-3528 7

the public guardians and the guardians ad litem are agents

of the probate court as long as they are acting at the court’s

direction, and so have to that extent absolute quasi-judicial

immunity, e.g., Dornheim v. Sholes, 430 F.3d 919, 925 (8th Cir.

2005); Hughes v. Long, 242 F.3d 121, 127 (3d Cir. 2001);

Fleming v. Asbill, 42 F.3d 886, 889 (4th Cir. 1994), they can be

sued if they step outside the scope of their agency and

engage in self-dealing, as charged by the plaintiff. Dornheim

v. Sholes, supra, 430 F.3d at 925; Cok v. Cosentino, 876 F.2d 1,

2-4 (1st Cir. 1989) (per curiam). In any event, immunity is a

defense rather than a jurisdictional defect, although the

grounds for dismissal in this case based on the probate

exception and the immunity defense merge when guardians

are acting within the scope of their authority because they are

administering a probated estate.

But to establish federal jurisdiction it is not enough that

the plaintiff’s suit may not be entirely barred by the probate

exception. The parties are not of diverse citizenship. The

claim of breach of fiduciary duty clearly is based solely on

state law. The plaintiff is also claiming, however, that the

defendants deprived her of her property interest in her

father’s estate without due process of law. If they did this in

the course of administering the estate, the claim cannot

escape the gravitational pull of the probate exception. It is

too facile a litigation move to recast a claim of

maladministration as a denial of due process. But conceivably some of the alleged misconduct involving the plaintiff’s

claim to a share of her father’s estate occurred outside the

proceedings to administer the estate.

Another federal claim in the complaint is that the plaintiff

was deprived, again without due process of law, of a liberty

interest in her relationship with her father. We suggested in

Russ v. Watts, 414 F.3d 783, 790 (7th Cir. 2005), that parents
8 No. 04-3528

and adult children have some constitutionally protected

interest in being able to associate with each other. See also

Robertson v. Hecksel, 420 F.3d 1254, 1258 (11th Cir. 2005)

(collecting cases). But this claim may also be within the

probate exception if, as appears from the complaint, the

alleged interference was caused by a protection order that

the guardians obtained to prevent the plaintiff from interfering with the probate proceedings.

As for the complaint about the search of the plaintiff’s

personal belongings, the legal basis of the claim is obscure

but the search may have been conducted under a warrant issued by the probate court. In that event it would

be state action that could be challenged under the Fourteenth Amendment as an unreasonable search and

seizure—unless, once again, the warrant was ancillary to the

administration of the estate “in the practical sense that

allowing [the claim] to be maintained in federal court would

impair the policies served by the probate exception.” Dragan

v. Miller, supra, 679 F.2d at 715-16. This we cannot tell from

the complaint.

Though we are dubious that any of the plaintiff’s federal

claims are outside the probate exception, the matter is not so

clear that the judgment dismissing the case on jurisdictional

grounds can be sustained without further probing in the

district court. Unsure that there is federal jurisdiction, we

express no view of the merits of any of the claims but add

that if there is at least one colorable federal claim not barred

by the probate exception, the district court has jurisdiction

over the plaintiff’s state-law claims by virtue of the court’s

supplemental jurisdiction. 28 U.S.C. § 1367.

The judgment is vacated and the case remanded for

further proceedings consistent with this opinion.
No. 04-3528 9

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-14-06