Melissa Kay Cook, et al. v. Cynthia Ann Harding, et al.

Petitioner Melissa Cook simultaneously filed a counterclaim in the California family court and a complaint in the federal district court pursuant to 42 U.S.C. §1983, both challenging the constitutionality of California’s surrogacy statute as violative of the Due Process and Equal Protection rights of herself and the three children she carried. The family court held that it lacked jurisdiction to entertain the constitutional claims because the state statute under review forbids its constitutional scrutiny. For that reason, the family court refused to consider the constitutional issues at all, permit Cook to present evidence, or make findings of fact. The federal district court erroneously dismissed Petitioners’ complaint based upon the Younger Abstention Doctrine. The California appellate court subsequently affirmed the family court holding that it lacked authority to entertain the constitutional claims or hold a hearing. The California appellate court held that the statute was consistent with the state’s public policy and, exclusively for that reason, assumed it to be constitutional without directly deciding the federal issues. The Ninth Circuit held that the district court erred by abstaining, but refused to decide the federal questions or remand them, based upon “issue preclusion,” thereby denying Petitioners any hearing on their constitutional claims by any state or federal court. The question presented is: Where a state trial court held that it lacked the jurisdiction to decide federal constitutional issues and refused to consider them, can the federal courts avoid deciding those federal constitutional issues by invoking the doctrine of “issue preclusion” based upon the state appellate court’s illusory consideration of those issues?