Metropolitan News-Enterprise


Monday, November 15, 2021


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Ninth Circuit Restores Contest to $5 Million Bond Order

Under Contra Costa Superior Court Order, Father Must Post That Amount As Condition of Access to His Son; Panel Says Dismissal Was Proper Under Abstention Doctrine, but Should Have Been With Leave to Amend


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday ordered reinstatement of an action by a man who claims that an order requiring him to post a $5 million bond before visiting his son is violative of substantive due process, with the decision coming in the unusual context of affirming an order in response to a motion by a judge of a California superior court.

While the Ninth Circuit affirmed the dismissal of Gyorgy Matrai’s suit against Contra Costa Superior Court Judge Joni T. Hiramoto, as well as Matrai’s wife, it declared that the dismissal should have been with leave to amend.

A memorandum opinion signed by Circuit Judge Michelle T. Friedland, Senior Circuit Judge Richard R. Clifton, and District Court Judge Michael J. McShane of the District of Oregon, sitting by designation, expresses agreement with District Court Judge Maxine M. Chesney of the Northern District of California that dismissal of the civil rights action under 42 U.S.C. §1983 was required under the Younger Abstention Doctrine. In the 1971 case of Younger v. Harris, the Supreme Court declared “a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.”

Disputing the applicability of the doctrine, Matrai insisted that California lacks an interest in enforcement of the order which, he claimed, barred him from having access to his son. The Ninth Circuit panel said:

“The State has a valid interest in taking precautions, such as requiring a bond prior to visitation, to ensure that one parent does not abduct a child and flee to a more favorable jurisdiction during divorce proceedings.”

 Exception Invoked

Matrai argued that an exception to the doctrine exists where “the danger of irreparable loss is both great and immediate.” He argued that he and his son, M.M., “will suffer irreparabl[e] injury so long as the bond order prevents them from seeing one another in violation of their constitutionally protected right to substantive due process.”

The opinion responds:

“That narrow exception, however, applies ‘where the District Court properly finds that the state proceeding is motivated by a desire to harass or is conducted in bad faith.’…The district court here made no such finding. Additionally. Matrai does not allege, or even argue, that Judge Hiramoto acted in bad faith in entering the bond order. To the contrary, the transcript of the hearing confirms that after Matrai failed to appear at the hearing. Judge Hiramoto set the bond amount based on the sworn testimony from Matrai’s wife that, despite tax returns indicating relatively modest means, Matrai had access to over $10,000,000 and had purchased their $3,000,000 home in cash.

“Because Younger abstention applies and no exceptions exist, and because Matrai seeks only injunctive relief, as opposed to damages, on the § 1983 claim, the district court did not err in dismissing that claim.”

Hague Convention

The panel also said Chesney properly rejected Matrai’s contention that his rights under the Hague Convention on the Civil Aspects of International Child Abduction were breached, citing the United Kingdom’s Children’s Act of 1989 and U.K. common law. Matrai, who has business interests in several nations, has proclaimed his desire to have M.M. visit him in the U.K.

Matrai grounded a claim under 22 U.S.C. § 9001(a) which recognizes the Hague Convention. (The motion of the mother seeking child abduction prevention order was pursuant to that section, as well as California’s Family Code §3048 which also references that convention.)

Hiramoto protested in her motion for dismissal:

“…M.M’s habitual residence has always been at his home in Contra Costa Comity where he has resided his entire life….M.M. has never resided in the United Kingdom where plaintiff wants M.M. to visit and which law plaintiff claims should apply. Accordingly, plaintiff cannot state a claim under 22 U.S.C. § 9001 and the motion to dismiss should be granted.”

In her ruling, Chesney agreed: “As Judge Hiramoto points out…, relevant rights of access that are enforceable under the Hague Convention…are those provided under the laws of the child’s ‘habitual residence,’ i.e., ‘where a child’s home was at the time of removal or retention.’ ”

The Ninth Circuit made note of that point, but added:

“Even assuming the law of the United Kingdom was relevant to Matrai’s access claim. Matrai initially did not dispute evidence presented in the state family court proceedings that he had access to fluids to post a bond for visitation. He then moved to set aside the child abduction prevention order within the state court system, but he did not wait for the state court to resolve that motion before filing this federal action. Under these circumstances, any claim that his access rights under the Hague Convention were violated is not ripe.” The panel did not approve of the dismissal without leave to amend. It said:

“Although we agree that dismissal was appropriate, we also conclude that dismissal of the case with prejudice was an abuse of discretion….Dismissal based on ripeness or on Younger abstention is not a determination on the merits but rather a decision reflecting lack of jurisdiction…, and should thus be without prejudice….We therefore affirm the district court’s dismissal of this case but remand with instructions that the district court enter a dismissal without prejudice.”

Hiramoto contended that she no longer has power to enforce her order because she has been moved from a family law department—where she was presiding over proceedings in the dissolution of the marriage of Matrai and Michelle Gonzana Uriarte Uriarte—to a criminal department. In light of that, she maintained, the appeal should be dismissed as moot.

The opinion counters:

“The order at issue here, however, was issued by Judge Hiramoto and remains in effect. Review of a judge’s order cannot be evaded by simply moving the judge to another department within the courthouse. In any event, Federal Rule of Appellate Procedure 43(c)(2) provides: ‘When a public officer who is a party to an appeal or other proceeding in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate. The public officer’s successor is automatically substituted as a party.’ ”

The case is Matrai v. Hiramoto, 21-15084.


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