The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
After an emergency hearing when suit was initially filed, on May 9,
1981 this Court:
(1) certified classes of both plaintiffs*fn1 and
defendants after hearing argument on the applicability
of the criteria established by Fed.R.Civ.P. ("Rule")
(2) entered a ten-day temporary restraining order
against enforcement of the statutes.
While the TRO was in effect the Court conducted a hearing on plaintiff's
application for a preliminary injunction. Following the hearing the TRO
was extended to May 29 to permit the Court to render its decision.
Before the TRO had expired and while the Court's opinion and decision
were in preparation, plaintiffs' counsel informed the Court of the
unfortunate death of Baby Boy Doe. That poses a serious question as to
the continued existence of a justiciable controversy. There is of course
no longer a possibility of juvenile court proceedings as to the child
— the focal point of the challenged statutes and of plaintiffs'
attack — so that the claim of the named plaintiffs is moot. Thus
the threshold issue that must be dealt with is that of possible mootness
of the class action aspect of this litigation.
Once certified, a class acquires an independent legal status separate
from that of its named representative and the interest she asserts. Sosna
v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975). In
Sosna and other cases the Supreme Court has established a three-step
analysis for ascertaining the viability of a class action after the claim
of the named representative becomes moot:
(1) It must be determined whether a "live
controversy" remains between the unnamed class members
and the defendants. Sosna, 419 U.S. at 401-02, 95
S.Ct. at 558. This is an Article III jurisdictional
issue: the question whether a "case" or "controversy"
(2) It must be determined whether the remaining
controversy is an appropriate one for passing on
constitutional questions. This is a policy
consideration usually, but not necessarily, controlled
by the "capable of repetition, yet evading review"
standard. Id. at 399-400, 95 S.Ct. at 557; Franks v.
Bowman Transportation Co., 424 U.S. 747, 756 n.8, 96
S.Ct. 1251, 1260 n.8, 47 L.Ed.2d 444 (1976).
(3) It must be determined whether the named
plaintiff can continue "fairly and adequately [to]
protect the interests of the class" (the Rule 23(a)
standard). Sosna, 419 U.S. at 403, 95 S.Ct. at 559.
Courts have not been forced to treat with the first step of the
analysis in any depth. Typically there have been other existing and
identifiable class members in the same situation as the named plaintiff.
See, e. g., Gerstein v. Pugh, 420 U.S. 103, 110 n.11, 95 S.Ct. 854, 861
n.11, 43 L.Ed.2d 54 (1975) (class of pretrial detainees); Sosna (class of
persons resident in Iowa for less than one year wishing to commence
marriage dissolution actions). In contrast the plaintiff classes
certified by this Court are prospective in nature, for there is no
evidence of any now-living infant who has survived an attempted
abortion. While it is clear that defendants continue to intend to enforce
the challenged statutes if the situation again arises, every litigation
requires present real adversaries to meet the need for Article III
Sosna is perhaps the most instructive precedent on that point. There
the District Court certified a class consisting of (419 U.S. at 397, 95
S.Ct. at 556):
those residents of the State of Iowa who have resided
therin for a period of less than one year and who
desire to initiate actions for dissolution of marriage
or legal separation, and who are barred from doing so
by the one-year durational residency ...