Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DOE v. FAHNER

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

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.