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DOE v. FAHNER

United States District Court, Northern District of Illinois, Eastern Division


June 8, 1981

JANE DOE, ETC., ET AL., PLAINTIFFS,
v.
TYRONE C. FAHNER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Jane Doe, as mother and next friend to Mary Doe and as grandmother and next friend to Baby Boy Doe, has brought this individual and class action attacking the constitutionality of Ill.Rev.Stat. ch. 38, §§ 81-27, 81-28 and 81-31(a). Those sections of the Illinois Abortion Law treat the situation in which a live birth occurs during an attempted voluntary abortion.

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")
  23; and

    (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"
  still exists.

    (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 justiciability.

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 requirement
  embodied in Sections 598.6 and 598.9 of the Code of
  Iowa.

When the named plaintiff's claim became moot the Court found a continuing live controversy because "it is clear that they [Iowa officials] will enforce it against those persons in the class that appellant sought to represent. . . ." (419 U.S. at 400, 95 S.Ct. at 558).

True enough, the Sosna court found Article III satisfied without actually ascertaining whether any people residing within the state of Iowa for less than one year wanted to seek marital dissolutions. But the parties there had stipulated "that there were in the State of Iowa `numerous people in the same situation as plaintiff'" (419 U.S. at 397, 95 S.Ct. at 556). Implicit in the Court's statement about Iowa's continuing readiness to enforce its statute was the concept that unnamed class members were actively affected by the challenged statute. Indeed that is the clear tenor of the Court's opinion (419 U.S. at 402, 95 S.Ct. at 558):

  Our conclusion that this case is not moot in no way
  detracts from the firmly established requirement that
  the judicial power of Art. III courts extends only to
  "cases and controversies" specified in that Article.
  There must not only be a named plaintiff who has such
  a case or controversy at the time the complaint is
  filed, and at the time the class action is certified
  by the District Court pursuant to Rule 23, but there
  must be a live controversy at the time this Court
  reviews the case. SEC v. Medical Committee for Human
  Rights [404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560]
  supra. The controversy may exist, however, between a
  named defendant and a member of the class represented
  by the named plaintiff, even though the claim of the
  named plaintiff has become moot.

In effect the very nature of the class affected by the statute compelled the conclusion as a matter of human experience that there were substantial numbers of real though unidentified class members at all times — a kind of judicial notice obviating the need for proof. Gerstein too reflected the same notion (420 U.S. at 111 n.11, 95 S.Ct. at 861 n.11):

  Moreover, in this case the constant existence of a
  class of persons suffering the deprivation is
  certain. The attorney representing the named
  respondents is a public defender, and we can safely
  assume that he has other clients with a continuing
  live interest in the case.

Most recently, in United States Parole Commission v. Geraghty,
445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980), the Court spoke to the same effect:

  It is clear that the controversy over the validity of
  the Parole Release Guidelines is still a "live" one
  between petitioners and at least some members of the
  class respondent seeks to represent. This is
  demonstrated by the fact that prisoners currently
  affected by the guidelines have moved to be
  substituted, or to intervene, as "named" respondents
  in this Court.

This Court's reading of Sosna, Gerstein, and Geraghty (and the same is true of all other class action mootness cases) is supported by fundamental principles of justiciability under Article III. At the core of federal courts' concern about mootness is their felt need to limit themselves "to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). No class that is entirely prospective in nature can adequately fulfill the adversary role necessary to present a "case" or "controversy" under Article 111.*fn2 And the very nature of the problem posed by this case, dealing as it does with the rarity of a live birth during a voluntary abortion proceeding, precludes the kind of assumption about current class members that underpins the other cases finding a "live" controversy.

Conclusion

This Court finds no present "case" or "controversy," as required by Article III, between the defendants on the one hand and either the named plaintiffs or the plaintiff classes on the other. Accordingly this action must be and is dismissed under Fed. R.Civ.P. 12(h)(3).


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