Peters v. Noonan
Filing
26
DECISION AND ORDER DENYING 4 MOTION for Temporary Restraining Order and finding that no hearing is required to deny the motion. Counsel for plaintiff Joan Peters and defendant Robert Noonan shall file responses to the motion to intervene of Thomas W. Peters or notice of their consent to his intervention as a plaintiff by 5:00 p.m. on May 21, 2012. Counsel shall appear for a Status Conference on 5/22/2012 09:30 AM before Hon. Richard J. Arcara. Signed by Hon. Richard J. Arcara on 5/18/2012. (JMB)
UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
JOAN PETERS,
Plaintiff,
DECISION AND ORDER
12-CV-234-A
v.
ROBERT C. NOONAN, New York
State Acting Supreme Court Justice,
County of Genesee, and Genesee
County Court and Surrogate Judge,
Defendant.
The plaintiff, Joan Peters, has moved pursuant to Fed. R. Civ. P. 65(b) and
42 U.S.C. § 1983 for a temporary restraining order against the defendant, Judge
Robert C. Noonan, Genesee County Surrogate Judge, to stop Judge Noonan
from probating a will made by her son, David C. Peters. The will purports to
bequeath to various persons, pursuant to New York law, land and other property
that is located within reservation territory of the sovereign Tonawanda Band of
Seneca Indians (the “Nation”) to which plaintiff Joan Peters claims rights under
the Nation’s laws that are superior to the rights of her deceased son. The plaintiff
alleges that Judge Noonan’s exercise of jurisdiction over the property of her son’s
estate located within reservation territory violates her rights as a member of the
Nation that are granted or reserved to her by the United States Constitution and
by two Native American Treaties. The will of David C. Peters also purports to
bequeath substantial property located outside reservation territory.
In support of her motion for a temporary restraining order, plaintiff Joan
Peters asserts that she may be evicted from her residence and a family business
if Judge Noonan continues to probate the will of David C. Peters. She also
alleges that, if she follows the laws of the Nation regarding inheritance, as she
must, she risks criminal prosecution by New York authorities for not submitting to
Judge Noonan’s asserted authority under New York law. She seeks the
temporary restraining order to protect her civil rights from irreparable harm
pursuant to 42 U.S.C. § 1983.
For the reasons stated below, the Court denies plaintiff Joan Peters’ motion
for a temporary restraining order on the parties’ written submissions and without a
hearing pursuant to Fed. R. Civ. P. 79(b). The plaintiff asserts that she will suffer
irreparable harm, but she is unable to establish that she will suffer a redressable
injury that is within the Court’s subject matter jurisdiction. Counsel for the parties
and for the proposed intervenor, Thomas W . Peters, are directed to appear for a
status conference on May 22, 2012, at 9:30 a.m., to set a schedule for
submissions on why the case should not be dismissed for lack of subject matter
jurisdiction and to address other matters.
2
BACKGROUND
On March 22, 2012, plaintiff Joan Peters filed a Complaint alleging
violations of her rights under the U.S. Constitution and two Native American
Treaties by Judge Noonan in his capacity as Genesee County Surrogate Judge
as he probated the will of David C. Peters. The plaintiff invokes this Court’s
federal-question jurisdiction pursuant to 28 U.S.C. § 1331 and its civil-rights
jurisdiction pursuant to 28 U.S.C. § 1343.
Plaintiff Joan Peters is an enrolled member of the Tonawanda Band of
Seneca Indians. The plaintiff’s son, David C. Peters, was an enrolled member of
the Nation before he passed away in 2011. Thomas W . Peters is a co-executor
of the estate of David C. Peters, his brother, and is also a son of plaintiff Joan
Peters. Thomas W . Peters is also an enrolled member of the Nation. Among the
primary beneficiaries of the will of David C. Peters that is being probated by
Judge Noonan in Genesee County Surrogate’s Court is Coreen Thompson, David
C. Peters’ daughter, who is the plaintiff’s granddaughter. Coreen Thompson is
also an enrolled member of the Nation.
Plaintiff Joan Peters alleges in her Complaint that the Nation is duly
recognized as retaining sovereign authority to self-government, including the
authority to determine uses of reservation lands1 and to determine lines of
1
Some history of the reservation territory of the Tonawanda Band of Seneca
Indians is summarized in United States v. National Gypsum Co., 141 F.2d 859, 860-61
(2d Cir. 1944) and Hatch v. Luckman, 64 Misc. 508, 512-515 (N.Y.Sup. 1909).
3
inheritance among its members. The plaintiff maintains that the Nation’s authority
over these matters is exclusive and that the courts of New York state lack
jurisdiction to probate any part of an estate of a member of the Nation involving
property on or within reservation territory.
Plaintiff Joan Peters alleges that her son, David C. Peters, passed away on
August 10, 2011. She alleges that she and her son had together managed and
operated a family business known as the Arrowhawk Smoke and Gas Shop,
located on premises within reservation territory in Genesee County, New York, for
which the plaintiff holds Native American title. She alleges that her son also
maintained a residence on premises within reservation territory to which she
holds Native American title. The plaintiff specifically alleges and represents that
she has valid and superior claims to allotment, ownership and inheritance under
laws of the Nation that provide for matrilineal descent — inheritance through the
maternal line — of the real property and the business of Arrowhawk Smoke and
Gas Shop, of the premises of David C. Peters’ residence on reservation territory,
and of all other property of her son’s that is located within reservation territory.
Plaintiff Joan Peters alleges that the will made by her son, David C. Peters,
was offered for probate in the Genesee County Surrogate’s Court, before Judge
Noonan, on about September 19, 2011. The will provides, in part:
I[, David C. Peters,] direct that the Indian Tribal Council or
Chiefs Council shall not control any portion of my estate
administration other than any property rights, heirship or
4
title restrictions, which can be controlled or governed only
by Native American or Seneca law. In the event of any
apparent possible or alleged conflict of laws, the laws of
the State of New York shall prevail and all matters herein
referred to shall be controlled according to New York State
law. I make this decision, not because of any lack of
respect and honor for my sovereign nation, the Seneca
Nation of Indians, nor my status as a Native American, but
because of my desire that all of my property be controlled
by one set of laws no matter where the property (real or
personal) may be located and that my entire estate be
administered consistent with my overall financial plan.
This provision specifically acknowledges that disposition of some property of the
estate of David C. Peters may be subject to exclusive control of the Nation. It
purports to choose New York law over Native American or Seneca Nation of
Indians law and follows a paragraph that chooses New York Surrogate’s Court as
the venue for probate of the will.
The will of David C. Peters bequeaths to various beneficiaries real and
personal property that is located both on and off reservation territory. The will
also contains a no-contest clause purporting to disinherit any beneficiary who
opposes either probate of the will or the disposition of property of the estate
according to the terms of the will. Plaintiff Joan Peters asserts that she is not
contesting the will, even though she disputes that any of her deceased son’s
property on or within reservation territory is subject to New York law and even
though she disputes that Judge Noonan, or any New York court, has jurisdiction
over any of that property.
5
Plaintiff Joan Peters represents that the Genesee County Surrogate’s
Court has issued testamentary letters to co-executors named in the will and that
Judge Noonan has taken other steps to probate the will of David C. Peters
pursuant to an assertion of concurrent jurisdiction under 25 U.S.C. § 233, N.Y.
Indian Law § 5, and other New York laws2 . Some of Judge Noonan’s actions to
probate the will have been taken because of motions filed in Genesee County
Surrogate’s Court before Judge Noonan by legal counsel for Coreen Thompson,
David C. Peters’ daughter, the plaintiff’s granddaughter, and a named beneficiary
of land, the Arrowhawk Smoke and Gas Shop, and other property located on
reservation territory purportedly disposed of by the will. Among other orders,
Judge Noonan directed that a hearing be held for an allocation of assets and
profits of the Arrowhawk Smoke and Gas Shop. On May 2, 2012, Judge Noonan
ordered that books and records of the Arrowhawk Smoke and Gas Shop be made
available to Coreen Thompson.
Plaintiff Joan Peters has not formally intervened as a party in the probate
proceedings before Judge Noonan in the Genesee County Surrogate’s Court, but
she filed a written request that Judge Noonan refer the matter to the Nation so
that the Nation could dispose of any property of her son’s estate on or located
2
Title 25 U.S.C. § 233 and N.Y. Indian Law § 5 purport to confer concurrent
jurisdiction in New York state courts over civil matters involving Native Americans. See
e.g., In re Jimerson’s Will, 68 Misc.2d 945 (Erie Co. Sur. 1972) (Surrogate Court of first
filing of will assumed concurrent jurisdiction to probate the will over later-invoked
concurrent jurisdiction of Seneca Nation forum).
6
within reservation territory under the Nation’s law. Judge Noonan denied the
plaintiff’s request, but he directed that the plaintiff seek to intervene in the probate
proceedings before him. She has declined to do so. The plaintiff has not
explained why she has not appeared in the probate proceedings to make her
jurisdictional arguments in the Genesee County Surrogate’s Court.
In support of her motion for a temporary restraining order, plaintiff Joan
Peters relies upon 42 U.S.C. § 1983, and this Court’s preliminary injunction
decision in Bowen v. Doyle, 880 F.Supp. 99, 116 (W .D.N.Y. 1995). The plaintiff
relies upon the Treaty of November 11, 1794, 7 Stat. 44, the Treaty of 1857, 11
Stat. 735, the Commerce Clause, the Indian Commerce Clause, and the Equal
Protection Clause of the United States Constitution. U.S. Const., art I, § 8, cl. 3
and U.S. Const. Amend. V, XIV.
Plaintiff Joan Peters represents that she has taken steps to present her
claims of right to the property identified in David C. Peters’ will to the Tonawanda
Band of Seneca Indians. The plaintiff specifically claims Native American title to
the land and business of the Arrowhawk Smoke and Gas Shop and to premises
on which a residence is located on reservation territory. The plaintiff represents
that she has been directed by her Hawk clan mother, a person she is required by
traditional ways of the Nation to obey, not to permit transfer of any property on or
located within reservation territory by New York courts. The plaintiff represents
that her clan mother agrees with the plaintiff’s claims of superior right to all of the
7
property identified in the will of her son, David C. Peters, that is located on or
within reservation territory. The plaintiff represents that her clan mother
specifically forbade her to allow any of that property to be transferred to a
member of the Bear clan, such as Coreen Thompson, because the transfer would
dilute Hawk clan holdings to the detriment of the standing of the Hawk clan in the
Nation. The plaintiff represents that some members of the Council of Chiefs of
the Nation have discussed the matter.
After plaintiff Peters’ Complaint and motions for a temporary restraining
order and a preliminary injunction were filed, the Court set a schedule for
submissions and held a status conference on April 10, 2012 and directed the
parties to file additional submissions on the adequacy of the remedies at law
available to the plaintiff, whether necessary parties are required to be added, and
describing the case or controversy within the Court’s jurisdiction presented by this
case.
The Court later granted a request by the Nation to file an amicus brief on
any issues the Nation felt would help the Court to determine whether a case or
controversy within the Court’s subject matter jurisdiction exists. The Nation’s
brief asserts that the Nation has exclusive jurisdiction over the disposition of all
property of members within its reservation territory. It indicates that an
adjudicatory process is underway within the Nation to determine the property
rights with respect to real property located on reservation territory purportedly
8
disposed of by the will of David C. Peters that is being probated by Judge
Noonan. It provides no further information about the nature of the process, the
status of the process, the likely time-frame for completion of the process, or the
likely outcome of the process3 . It does not address whether the process may
trigger a tribal-exhaustion rule. The Nation’s brief confirms generally that the
Nation takes the position that land within reservation territory of the Nation is not
owned individually by citizens of the Nation who may be allowed to use and to
occupy it.
The Nation did not confirm in its amicus brief that descent of allotments of
land or of other property located on reservation territory upon a member’s death
is strictly matrilineal and it did not confirm any of the plaintiff’s specific claims of
right to any specific parcels of land, to the Arrowhawk Smoke and Gas Shop, or
to any other property. The Nation did not indicate whether provisional remedies
are available to it, or to its members, in a Nation forum, to compel members to
stay proceedings in Genesee County Surrogate’s Court pending disposition of
competing claims to property under the Nation’s law such as the competing
claims to property within the estate of David C. Peters.
On May 17, 2012, Thomas W . Peters, co-executor of the estate of David C.
3
An affidavit of Chief Roger Hill, a member of the Council of Chiefs of the
Nation, filed with the amicus brief of the Tonawanda Band of Seneca Indians confirms
that the Nation initiated “an adjudicatory process” to determine the rights to the parcels
real property in the estate of David C. Peters pursuant to the Nation’s law.
9
Peters, filed a motion to intervene in this case and to join in the motion of plaintiff
Joan Peters, his mother, for a temporary restraining order against Judge Noonan.
Thomas W . Peters represents that he has been ordered by Judge Noonan to
take steps as co-executor of the estate of David C. Peters to, among other things,
sign and release a deed purporting to transfer real property containing a
residence and other property located within reservation territory to Coreen
Thompson and that he has been specifically directed by the Nation not to comply
with orders of Genesee County Surrogate’s Court. Thomas W . Peters represents
that he faces penalties by New York state if he does not comply with the orders of
the Genesee County Surrogate’s Court, including his removal as co-executor of
the estate and possible contempt proceedings, but that he is bound not to comply
by direction of Chief Roger Hill of the Council of Chiefs of the Nation.
Thomas W . Peters has not informed the Court whether he sought a ruling
as co-executor of the estate of David C. Peters from the Genesee County
Surrogate’s Court that the Nation has exclusive jurisdiction over property within
the estate located on reservation territory. He represents that he may be
removed as co-executor during proceedings in Genesee County Surrogate’s
Court on May 18, 2012, and that he and his co-executor may be replaced as
executors by Coreen Thompson.
10
DISCUSSION
The Standard for a Temporary Restraining Order. A temporary restraining
order is among “the most drastic . . . of remedies.” Grand River Enterprise Six
Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (quoting Hanson Trust PLC
v. SCM Corp., 74 F.2d 47, 60 (2d Cir. 1985)). The party seeking a temporary
restraining order bears the burden to establish “by a clear showing” that the
remedy is necessary and that the essential prerequisites for issuance of the
temporary restraining order are met. Mazurek v. Armstrong, 520 U.S. 968, 972
(1997). A temporary restraining order may only be issued when a plaintiff has
established a likelihood of success on the merits of the plaintiff’s claims and that:
(1) "he is likely to suffer irreparable injury in the absence of an injunction"; (2)
"remedies at law, such as monetary damages, are inadequate to compensate for
that injury"; (3) the balance of hardships tips in his favor; and (4) "the ‘public
interest would not be disserved' by the issuance of [injunctive relief]." Salinger v.
Colting, 607 F.3d 68, 80 (2d Cir.2010) (referring to identical preliminary injunction
standard; citing eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).
An even stronger showing of likelihood of success on the merits and of potential
harm is required when a party seeks mandatory relief beyond an order that would
maintain the status quo. See Abdul W ali v. Coughlin, 754 F.2d 1015, 1026 (2d
Cir. 1985) (preliminary injunction), overruled on other grounds, O’Lone v. Estate
of Shabazz, 482 U.S. 342 (1987). For the reasons that follow, plaintiff Joan
11
Peters is not entitled to the extraordinary relief that she seeks in this case.
Subject Matter Jurisdiction. The Court must begin by addressing its
subject matter jurisdiction. “It is a fundamental precept that federal courts are
courts of limited jurisdiction.” Owen Equipment & Erection Co. v. Kroger, 437
U.S. 365, 374 (1978). Federal courts “possess only that power authorized by
Constitution and statute, which is not to be expanded upon by judicial decree.”
Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 377 (1994).
“It is to be presumed that a cause lies outside [federal courts’] limited jurisdiction .
. . .” Id.
Parties to a federal case cannot waive a lack of federal subject matter
jurisdiction by agreement or by conduct. Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). Neither plaintiff
Joan Peters nor the Court can “avoid addressing the threshold question of
jurisdiction simply because [a] finding that federal jurisdiction does not exist
threatens to prove burdensome and costly . . . .” Herrick Co., Inc. v. SCS
Commc'ns, Inc., 251 F.3d 315, 322 (2d Cir.2001). “If the court determines at any
time that it lacks subject matter jurisdiction, the court must dismiss the action.”
Fed. R. Civ. P. 12(h)(3).
The most fundamental limits on federal courts’ jurisdiction derive from
Article III, § 2, of the United States Constitution which limits federal jurisdiction to
nine categories of “cases” and “controversies.” Among the familiar justiciability
12
doctrines that implement the case and controversy requirements of the
Constitution are the requirements that there be a specific, actual dispute, see
Muskrat v. United States, 219 U.S. 346 (1911); that the plaintiff alleges that the
defendant’s conduct caused harm that is actually redressable by a remedy that
can be ordered by the court, see Allen v. W right, 468 U.S. 737, 751 (1984); and
that federal courts never issue advisory opinions. See Calderon v. Ashumus, 523
U.S. 740 (1998).
It is plaintiff Joan Peters’ burden to establish that the Court has subject
matter jurisdiction over this action and she “must carry throughout the litigation
the burden of showing that [s]he is properly in [this] court.” McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see Chapman v. Houston
W elfare Rights Org., 441 U.S. 600, 612 n.28 (1979) (that subject matter
jurisdiction is a plaintiff’s burden is the “settled rule . . . especially . . . in a court[s]
of limited jurisdiction”). W hen the plaintiff’s jurisdictional allegations are
challenged, she “must support them by competent proof.” McNutt, 298 U.S. at
189; Thomson v. Gaskill, 315 U.S. 442, 446 (1942).
The Case and Controversy. The complaints of plaintiff Joan Peters in this
case are: (1) that New York courts lack concurrent jurisdiction with Nation
authorities to administer property of a deceased member of the Nation when the
property is located within reservation territory; and, (2) that the plaintiff will
unlawfully be deprived of her superior rights under Nation law to inherit certain
13
property located within reservation territory if the defendant, Judge Noonan,
probates the will of her son, David C. Peters. The actual controversy that may
properly be before the Court suffers from some indeterminacy, however.
The will of David C. Peters being probated in the Genesee County
Surrogate’s Court plainly acknowledges that the disposition of some property of
the estate may be subject to exclusive control of the Nation. Nevertheless, the
Genesee County Surrogate’s Court has not been formally asked by a party
before it or an intervenor to defer to a superior jurisdiction of the Nation with
respect to property of the estate located on reservation territory. Neither has a
party to the probate proceeding asked Judge Noonan to apply Nation law to the
will of David C. Peters pursuant to a conflicts of laws analysis. Under these
circumstances, this Court is unable to find that Judge Noonan would refuse to
defer to a claim of superior jurisdiction of the Nation, if it is a legally valid claim.
The Court finds that the Nation, in turn, has begun an adjudicatory process
to determine the property rights with respect to real property located on
reservation territory purportedly disposed of by the will of David C. Peters that is
currently being probated by the Genesee County Surrogate’s Court. Yet the
Court has no information about the nature of this process, the status of the
process, the likely time-frame for completion of the process, or the likely outcome
of the process. The Court can only speculate about the outcome of the Nation’s
process.
14
On this record, plaintiff Joan Peters moves for a temporary restraining
order against Judge Noonan on an assumption that the plaintiff’s claims of the
Nation’s exclusive jurisdiction to adjudicate her claims of superior right to the
property of her deceased son located on reservation territory will be disregarded
by Judge Noonan while her claims of right to the property will be adopted and
enforced by the Nation. Since the Nation has so far not acted to rule on the
plaintiff’s claims, and since the Nation has so far declined to direct that its
members plaintiff Joan Peters, Coreen Thompson, and Thomas W . Peters, coexecutor of the will, cooperate to seek a delay of the Genesee County
Surrogate’s Court probate proceedings to allow the Nation time to rule on the
plaintiff’s claims, the Court finds that the plaintiff’s assumption of vindication
under Nation law to be too speculative. On the record before the Court, the Court
can as readily speculate that the Nation will distribute some or all of the property
and allotments located on reservation territory that within the estate of David C.
Peters outside the maternal line and in accordance with the express wishes of
David C. Peters as reflected in the will that is being probated in the Genesee
County Surrogate’s Court. The controversy before the Court suffers from
indeterminacy.
The Court will not address without input from the parties whether this case
must be dismissed on a justiciability or on another ground or grounds. The Court
expresses no view on that now. Nevertheless, the indeterminacy of the pending
15
controversy informs the Court’s analysis of other significant issues raised by
plaintiff Peters’ motion for a temporary restraining order that have been
overlooked by the parties.
Authority for an Injunction. In support of her motions for a temporary
restraining order and a preliminary injunction, plaintiff Joan Peters relies upon 42
U.S.C. § 1983, and this Court’s preliminary injunction decision in Bowen v. Doyle,
880 F.Supp. 99 (W .D.N.Y. 1995). Section 1983 prohibits conduct which, “under
color of [state law] . . . subjects [a person], or causes [a person] to be subjected
. . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws” of the United States. Id. The Supreme Court authorized
prospective injunctive relief pursuant to section 1983 against judicial officers
acting in an official capacity of the kind that the plaintiff seeks in Pulliam v. Allen,
466 U.S. 522, 541-42 (1984). See also Mireles v. W aco, 502 U.S. 9, 10 n.1
(1991) (judicial immunity did not bar prospective injunctive relief).
However, section 1983 has been amended since Pulliam was decided by
the Supreme Court and since this Court’s decision in Bowen v. Doyle, 880
F.Supp. 99 (W .D.N.Y. 1995). Section 1983 now specifically provides that:
in 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.
Id. See Federal Courts Improvement Act of 1996, § 309(c), Pub.L. No. 104-317,
16
110 Stat. 3847, 3853 (1996). Injunctive relief cannot be granted pursuant to §
1983 “unless a declaratory decree was violated or declaratory relief was
unavailable.” Id.; Huminiski v. Corsones, 396 F.3d 53, 74 (2005); Montero v.
Travis, 171 F.3d 757, 761 (2d Cir.1999).
Neither the parties, nor the Nation in its filings as amicus curiae, have
acknowledged that § 1983 was amended to preclude injunctive relief against
judicial officers, absent special circumstances. Judge Noonan is named in this
action in his official capacity and there are no allegations in the complaint, or in
any of plaintiff Joan Peters’ filings, that a declaratory decree was violated or that
declaratory relief was unavailable to the plaintiff.
More specifically, plaintiff Joan Peters’ Complaint refers to Judge Noonan
by his official title, it alleges at paragraph 4 that all New York courts should be
bound by the injunction that the plaintiff seeks, and it does not seek a damages
remedy. Defendant Noonan has raised no individual-capacity defenses, though it
appears to the Court that he would be immune personally for the actions alleged
in the Complaint. Although a party is not required to plead a party’s capacity,
Fed. R. Civ. P. 9(a)(1), the course of the proceedings in this case so far
demonstrate that Judge Noonan is named in the Complaint in his official capacity.
See e.g., Rodriguez v. Phillips, 66 F.3d 470, 482 (2d Cir. 1995) (course-ofproceedings test of defendant’s capacity). The plaintiff’s Complaint asks for
declaratory relief, though it does not allege a statutory basis for it. The
17
amendment to § 1983 therefore appears to bar plaintiff Joan Peters’ motion for a
injunctive relief against Judge Noonan.
Plaintiff Joan Peters alleges no jurisdictional basis — other than § 1983 —
for the Court to enter injunctive relief against Judge Noonan. The plaintiff does
not allege or argue that she has a private right of action against Judge Noonan
directly under the Commerce Clause, the Indian Commerce Clause, or the Equal
Protection Clause of the U.S. Constitution. U.S. Const., art I, § 8, cl. 3 and U.S.
Const. Amend. V, XIV. She does not allege or argue that she has a private right
of action authorizing injunctive relief directly under the Treaty of November 11,
1794, 7 Stat. 44, or the Treaty of 1857, 11 Stat. 735. And the plaintiff faces still
other substantial threshold issues.
The Probate Exception. Among the limits of the Court’s jurisdiction which
neither party has raised, but which the Court must carefully consider, is the
probate exception to federal subject matter jurisdiction. Pursuant to this
longstanding doctrine, federal courts have no jurisdiction to probate a will, to
annul a will, or to entertain an action that would interfere with a probate court’s
control over property that is in the probate court’s custody. Marshall v. Marshall,
547 U.S. 293, 311-12 (2006). The probate exception bars a federal court from
doing anything to administer a will or to “disturb or affect the possession of
property in the custody of a state court.” Marshall, 547 U.S. at 311 (quoting
Markham v. Allen, 326 U.S. 490, 494 (1946)).
18
Plaintiff Joan Peters’ motion for a temporary restraining order requests that
this Court order Judge Noonan to take no further steps to probate the will of
David C. Peters in so far as the will applies to property located on reservation
territory of the Nation. The plaintiff argues that federal law requires all such
property to be subject to the exclusive jurisdiction of the Nation and beyond the
jurisdiction of the New York state courts.
On the one hand, the temporary restraining order that the plaintiff seeks
from this Court would annul — at least temporarily in order to preserve an
opportunity to do so more permanently — the choice of New York law clause and
the choice of New York forum clause in the will of David C. Peters that is now
being probated by Judge Noonan in favor of application of the Nation’s laws in a
Nation forum. The plaintiff seeks ultimately to annul bequests of property made
in the will of David C. Peters pending in the Genesee County Surrogate’s Court in
favor of disposition of the property to her by operation of the Nation’s laws. The
temporary restraining order would potentially “affect” the possession of property
currently in the custody of the Genesee County Surrogate’s Court by precluding
Judge Noonan from disposing of the property in the course of the probate
proceedings. See Lefkowitz v. Bank of New York, 528 F.3d 102, 107 (2d Cir.
2007). The plaintiff seeks ultimately to have this Court mandate that all property
bequeathed in the will of David C. Peters located on reservation territory be
excluded from the estate and that the property be released from any claim of
19
jurisdiction within the Genesee County Surrogate’s Court probate proceedings.
The temporary restraining order would potentially impinge upon core functions of
the Genesee County Surrogate’s Court in ways that are beyond the limits of this
Court’s subject matter jurisdiction.
On the other hand, a ruling by this Court on the jurisdictional arguments
raised by plaintiff Joan Peters — that 25 U.S.C. § 233, N.Y. Indian Law § 5, and
other New York laws do not confer concurrent jurisdiction of New York courts
over the property that is on reservation territory that is before the Genesee
County Surrogate’s Court as part of David C. Peters’ estate — would likely not
violate the probate exception and could establish the plaintiff’s claims to the
exclusive jurisdiction of the Nation, if those jurisdictional arguments are legally
sound and valid. Lefkowitz, 528 F.3d at 108. Ruling on the purely jurisdictional
arguments would not, in theory, require the Court to take over any aspect of
administration of the estate of David C. Peters. Judge Noonan, in Genesee
County Surrogate’s Court, and other New York courts could be bound by the
judgment of this Court, if this Court were to find that the Genesee County
Surrogate’s Court lacks authority over some kinds of property in the estate of
David C. Peters on the ground that federal law makes that property subject to the
sole and exclusive jurisdiction of the Nation, and such a judgment would likely not
violate the probate exception.
20
Redressability. The Court recognizes if plaintiff Joan Peters’ jurisdictional
arguments are correct, then the Genesee County Surrogate’s Court has no
jurisdiction over the property of David C. Peters’ estate located on reservation
territory, and this Court would not be interfering with a lawful exercise of New
York jurisdiction by entering a temporary restraining order to preserve the status
quo pending a hearing on a preliminary injunction. In that case, however, and for
the same reasons, not to mention the probate exception to federal subject matter
jurisdiction, this Court will itself have no jurisdiction over the property located on
reservation territory being subjected to the Nation’s adjudicatory process to
determine the heirs who will receive the property. See e.g., Bowen v. Doyle, 880
F.Supp. 99, 116 (W .D.N.Y. 1995) (noting that 25 U.S.C. § 233 does not abrogate
Seneca Nation rights under the Treaty of November 11, 1794, 7 Stat. 44, “to
self-government and exclusive jurisdiction over its internal affairs.”); In re Sac &
Fox Tribe of the Mississippi in Iowa, 340 F.3d 749, 763-64 (8th Cir. 2003) (federal
court lacks jurisdiction over internal tribal matters); W ade v. Blue, 369 F.3d 407,
412 (4th Cir. 2004) ("There is simply no role granted to the federal courts to
adjudicate internal tribal matters.").
Yet the Genesee County Surrogate’s Court will still have undisputed
jurisdiction over the property of David C. Peters’ estate that is located off
reservation territory, and because of the probate exception to federal subject
matter jurisdiction, this Court will have no jurisdiction over any of the off21
reservation property. Under these circumstances, the Court would have no
jurisdiction to compel enforcement of the temporary restraining order that the
plaintiff seeks. The Court would be without authority to compel disposition of any
of the assets of the estate of David C. Peters, no matter which other forum had
assumed jurisdiction over the property. As a practical matter, the temporary
restraining order would be unenforceable and whether it would serve to redress
the potential irreparable injury of which the plaintiff complains would depend upon
the voluntary compliance of beneficiaries of the will of David C. Peters, the
Nation, and the New York courts.
Necessary Parties. Plaintiff Joan Peters’ redressability problem may not be
insurmountable if she seriously addresses the likely need to add necessary
parties, assuming her action can be maintained. The injunctive relief that she
seeks here will “impair or impede [other beneficiaries’] ability to protect” their
interests in probate of the will in accordance with the terms of the will. Fed. R.
Civ. P. 19(a)(1). Neither the plaintiff nor counsel for Judge Noonan seem to
recognize that they must give serious consideration to whether the estate of
David C. Peters is itself a necessary and indispensable party to this action under
federal law.
Largely because of the threshold issues that the Court has identified
above, the Court is unable to find even a likelihood that plaintiff Joan Peters may
be entitled to pursue injunctive relief against Judge Noonan, let alone a likelihood
22
that she will succeed on the merits of her civil rights claims under § 1983. For
this reason alone, she is unable to meet the prerequisites for a temporary
restraining order. See Salinger v. Colting, 607 F.3d 68, 80 (2d Cir.2010).
Further, because of the strictures of the probate exception to federal subject
matter jurisdiction, the Court lacks the authority to enter injunctive relief that
would be broad enough and enforceable enough to actually redress the injuries of
which the plaintiff complains. The Court therefore denies pursuant to Rule 65(b)
the plaintiff’s motion for a temporary restraining order.
CONCLUSION
For all of the reasons that are stated above, the Court denies the motion of
plaintiff Joan Peters pursuant to Fed. R. Civ. P. 65(b) for a temporary restraining
order and the Court finds pursuant to Fed. R. Civ. P. 79(a) that no hearing is
required to deny the motion. Counsel for plaintiff Joan Peters and defendant
Noonan shall file responses to the motion to intervene of Thomas W . Peters, or
notice of their consent to his intervention as a plaintiff, by 5:00 p.m. on May 21,
2012.4
Counsel for the parties and for the proposed intervenor, Thomas W .
Peters, shall appear for a status conference on May 22, 2012, at 9:30 a.m., to set
4
Defendant Noonan’s counsel is advised that further unexcused failures to
comply with Court orders to address legal questions will not be tolerated. See Text
Order 20 concerning such an unexcused failure, a second-chance Order which was
itself not complied with by defendant Noonan’s counsel.
23
a schedule for submissions on why the case should not be dismissed for lack of
subject matter jurisdiction; whether the Complaint may be amended; and, if so, to
again address whether there are necessary, indispensable parties; and whether a
hearing for a preliminary injunction should be scheduled.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: May 18, 2012
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