UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

CIVIL ACTION NO. 1:18cv540(WOB) 

STEPHANIE LEIGH WHITAKER, ET AL PLAINTIFFS 

VS. OPINION AND ORDER 

JOSEPH W. KIRBY DEFENDANT 

 This matter is before the Court on a variety of pending 

motions. (Doc. 15, 20, 31). The Court previously heard oral 

argument on these motions and took the matter under submission. 

 After further study, the Court issues the following Opinion 

and Order. 

Factual and Procedural Background

 This unusual case involves a suit against an Ohio probate 

judge for denying a name change for the plaintiffs’ minor child, 

an adolescent who is going through a transgender process.1 

 Under Ohio law, jurisdiction to decide name change 

applications for minors is bestowed on the probate court for the 

                                                            

1 There are two other sets of plaintiffs: one has an application for name change 

pending before the defendant judge, which has not yet come on for hearing. The 

other set alleges that they are contemplating filing for a name change for their 

transgender child, but they have not yet done so. (Doc. 1). Because the 

judicial immunity analysis that follows is dispositive of the claims of these 

plaintiffs as well, the Court will not address defendant’s other arguments as 

to why these plaintiffs’ claims should be dismissed. 
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county in which the applicant resides. Ohio Rev. Code § 

2717.01(B). In determining whether to grant such a name change, 

the probate judge must consider “the best interest of the child.” 

In re Willhite, 706 N.E.2d 778, 782 (Ohio 1999). 

 Here, having filed an application for a change from an 

ordinarily female name to a male name for their child, the parents 

and the adolescent appeared before the defendant judge, who asked 

them several questions concerning the wisdom of seeking a name 

change at that time. (Doc. 1 at 23-48). The questions concerned 

the maturity of the child, the nature and stage of the transgender 

process, and whether or not the child had considered all the 

ramifications. The defendant judge denied the application on the 

ground that the minor plaintiff was too immature to take such a 

drastic step at the present time, and the judge stated that the 

minor could reapply as an adult. (Doc. 1 at 49-60). 

 The parents disagreed with this ruling, as they believe that 

the name change is a critical part of the transgender process. 

Therefore, they timely appealed to the appropriate Ohio Court of 

Appeals. This appeal is now pending and the appellants have filed 

their brief. The defendant judge, through counsel, has advised 

this Court that he does not intend to file a brief in the state 

appeal because he is not a party to the underlying name change 

proceeding. The Court of Appeals has scheduled the appeal for 
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submission for disposition without oral argument on November 21, 

2018. (Doc. 42-1). 

 In addition to filing the state court appeal, plaintiffs filed 

this declaratory judgment action. Plaintiffs have sued the 

probate judge personally for declaratory relief. (Doc. 1). 

Defendant promptly moved to dismiss based upon the Rooker-Feldman 

and other abstention doctrines, as well as on the grounds of 

judicial immunity. (Doc. 15). 

 The Rooker-Feldman doctrine requires a federal court to 

abstain when a final judgment of a state court is sought to be set 

aside in a subsequent federal court action on federal 

constitutional or statutory grounds. 

 In an attempt to avoid application of this doctrine, 

plaintiffs responded that they are not attacking the result reached 

by the probate court, but only the procedures employed by the 

defendant probate judge. (Doc. 19). Among these challenged 

procedures are the practice of the judge in asking extensive 

“embarrassing” questions concerning the medical steps in the 

transgender process and whether or not the parties had carefully 

thought it through. Plaintiffs particularly object to the judge’s 

reference to a celebrity who had undergone a widely publicized 

transgender process a few years before. The judge implied that 

this celebrity’s change had resulted in a fad, which had influenced 

the plaintiffs’ application. 
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 Plaintiffs assert that transgender persons are a protected 

class, and that it is a denial of equal protection for them to be 

asked questions in the name-changing process that would not be 

asked of other applicants. They argue that the probate judge 

denies more, if not all, minor transgender name-change 

applications and requires that all be referred to him rather than 

to a magistrate, as is the usual practice in such cases. 

 In his memoranda, defendant disputes these allegations. 

Analysis

A. Judicial Immunity 

 Plaintiffs have brought this action under 42 U.S.C § 1983, 

which provides generally that persons who claim their federal 

constitutional or statutory rights have been violated “under color 

of state law” may bring an action for redress of such injuries in 

federal court. Here, plaintiffs claim that they have been denied 

“equal protection of the laws” under the 14th Amendment to the 

Constitution of the United States by reason of the procedures 

employed by the defendant in processing petitions for name changes 

for minor transgender persons or those contemplating transgender 

procedures. 

 They assert that defendant asks more questions of minor 

transgender petitioners than other petitioners, refers fewer minor 

transgender petitions to magistrates, and affords “a lower level 

of deference to parental authority and parents’ assessment of their 
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child’s best interests” in applications for transgender minors. 

(Doc. 38-1). 

 Plaintiffs admit that defendant would be entitled to judicial 

immunity from money damages, but they claim that such immunity 

does not apply to the declaratory relief sought in this case. 

Plaintiffs rely on the following language in § 1983: 

 [I]n any action brought against a judicial officer for an 

act or omission taken in such officer’s judicial capacity, 

injunctive relief shall not be granted unless a declaratory 

decree was violated or declaratory relief was unavailable. 

 

42 U.S.C. § 1983. 

 Plaintiffs argue that this statutory language implies that 

they may seek a declaratory judgment against the defendant judge 

without violating judicial immunity. Defendant argues that 

judicial immunity would be violated by permitting declaratory 

relief in this case. 

 Authority interpreting this language is sparse, but there is 

a Sixth Circuit case in point resolving the issue. In Cooper v. 

Rapp, 702 F. App’x 328 (6th Cir 2017), the Court held that an 

action against a state judge alleging that he had made adverse 

rulings against the plaintiffs because of racial bias violated the 

principles of judicial immunity, because no “case or controversy” 

existed between the plaintiffs and the judge. Id. at 333-34. 

 The Court observed that the defendant judge was not an 

adversary of the plaintiffs in the state court proceedings, nor 
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was he acting as a judicial administrator of the statute at issue. 

Id. Instead, the judge “acted as a disinterested judicial 

adjudicator, bound to decide the issues before him according to 

the law.” Id. at 333. 

 Here, Judge Kirby had no personal stake in the grant or denial 

of the name change, but rather he was performing his judicial duty 

to decide whether the name change was in the best interest of the 

child. As such, pursuant to Cooper, he “is not amenable to a suit 

for declaratory relief under § 1983.” Id. 

 In other words, the defense of judicial immunity is valid, 

and this action must be dismissed on that ground. The doctrine of 

judicial immunity is essential to the proper functioning of our 

courts. If not for that immunity, the judge could be sued by the 

losing party in every case, especially if the judge is reversed on 

appeal. This would result in chaos in the court system. For 

similar reasons, legislators, prosecutors, and newspapers which 

accurately report legal proceedings are entitled to similar 

immunity. 

B. Abstention 

 Although the Court has held that defendant is immune from 

suit in this matter, in order to facilitate appellate review, if 

any, the Court will also discuss the additional argument by 

defendant that, even if he were held not to be entitled to judicial 

immunity, the Court ought to abstain from hearing this case. 
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 Our nation is unique in that it is composed of a voluntary 

union of fifty-two sovereign states, rather than a number of 

provinces which are subsidiary units of the national government. 

This distinction has not been easy to apply. Many conflicts have 

arisen concerning the authority of the nation vis à vis the 

sovereignty of the states. One such argument led to the Civil 

War. 

 The national government has its own set of courts, as does 

each state. Frequently state and federal courts will have 

jurisdiction over the same matter, whether it be an automobile 

accident in which the parties are of diverse citizenship, or, as 

here, where federal constitutional rights are at issue. 

 In order to minimize duplication and perhaps conflicting 

rulings in such actions, the federal courts have developed a system 

of rules known as the “abstention” doctrines. If any of these 

doctrines applies, a federal court may (or, in some cases, must), 

depending on which doctrine is applicable, dismiss the case or 

defer ruling on it in deference to the state court. Many cases 

give rise to consideration of these abstention doctrines, which 

encompass a large variety of legal actions and issues. 

 In a highly respected multi-volume text on federal practice, 

121 sections are devoted to the various abstention doctrines. 17A 

James Wm. Moore et al., Moore’s Federal Practice §§ 122.01-122.121 
8

(3d ed. 2018). The Court does not feel the need to discuss them 

all, although at least three are relevant here.

1. Pullman Abstention2

 Under Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 

(1941), “federal courts should abstain when litigants challenge 

state actions on federal constitutional grounds in federal court 

and the answer to an unsettled question of state law might 

eliminate the need to decide the federal constitutional question 

or materially alter the way the federal court would view that 

question.” 17A James Wm. Moore et al., Moore’s Federal Practice

§ 122.20 (3d ed. 2018). 

 This is precisely the case here. Plaintiffs have made the 

same arguments attacking the propriety of defendant’s procedures 

in their state appeal. If the state appellate court agrees with 

plaintiffs’ condemnation of these procedures, it may well hold 

that employing them is improper under state law, thus 

“eliminat[ing] any need to reach the federal constitutional 

issue.” Id. at § 122.21. The Court notes that only a possibility 

that the need to decide the federal question would be eliminated 

is required. Id. at § 122.23(f) (discussing Sixth Circuit cases). 

 If the Ohio Court of Appeals reverses the denial of the name 

change on the ground that the procedures employed were an abuse of 

                                                            

2The abstention doctrines are generally named after the (usually) Supreme Court 

decisions which established them. 
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discretion or violative of state criteria, it would be unnecessary 

for this Court to decide the various constitutional issues that 

have been raised in this federal case. 

2. The Rooker-Feldman Doctrine 

Based on two Supreme Court decisions, the Rooker-Feldman 

doctrine “bars a state-court loser from asking a lower federal 

court to review a state-court judgment directly.” 18 James Wm. 

Moore et al., Moore’s Federal Practice § 133.33[2][e][i] (3d ed. 

2018). To avoid this doctrine, the plaintiffs here have asserted 

that they are not attacking the result reached by the defendant 

judge in the name-change proceeding, but only the procedures used 

by him. This approach does prevent the application of the 

doctrine. See Kovacic v. Cuyahoga Cnty. Dept. of Children and 

Family Servs., 606 F.3d 301, 308-312 (6th Cir. 2010). 

3. Wilton: District Court Has Discretion 

In Wilton v. Seven Falls Co., 515 U.S. 277 (1995), the Supreme 

Court held that a discretionary standard governs a district court’s 

decision to stay or dismiss a declaratory judgment action due to 

the pendency of parallel court proceedings. The Sixth Circuit, 

following Wilton, has likewise applied such a discretionary 

standard and held that the pendency of a state court action with 

the same or similar issues is a sufficient basis for the federal 

court to decline to exercise its discretion under the Declaratory 
10

Judgment Act. See Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 

968-69 (6th Cir. 2000). 

 This Court, in the exercise of its discretion, believes that 

this type of abstention is appropriate because the issues in the 

two cases are virtually identical and the state court can resolve 

them without deciding the federal constitutional issues. 

Conclusion

 The proper way to challenge an adverse judgment is to appeal, 

not to sue the judge. Plaintiffs here have appealed Judge Kirby’s 

decision not to grant their child’s name change to the Ohio Court 

of Appeals. This is the appropriate way to proceed. The Ohio 

court can decide the appeal based on the issue of whether or not 

Judge Kirby abused his discretion in denying the name change. 

Also, it can review Judge Kirby’s procedures, if it thinks that is 

appropriate. This can be done without addressing the complex 

federal constitutional issues, although that court can address 

them, if it so desires. 

 If plaintiffs are aggrieved by the decision of the appellate 

court, they can seek redress from the Supreme Court of Ohio and, 

if necessary, the Supreme Court of the United States. All of these 

options are open to them, but directly suing any of the judges is 

not. 

 Therefore, having heard from the parties, and being 

sufficiently advised, 
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IT IS ORDERED that defendant’s motion to dismiss (Doc. 15) 

be, and is hereby, GRANTED; plaintiff’s motion to expedite (Doc. 

20) be, and is hereby, DENIED AS MOOT; and plaintiffs’ motion for 

leave to file surreply (31) be, and is hereby, GRANTED NUNC PRO 

TUNC. A separate judgment shall enter concurrently herewith. 

 This 30th day of October, 2018.