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PLANNED PARENTHOOD ASS'N CHICAGO AREA v. KEMPINERS

August 9, 1983

PLANNED PARENTHOOD ASSOCIATION CHICAGO AREA, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, PLAINTIFF,
v.
WILLIAM L. KEMPINERS, INDIVIDUALLY AND AS DIRECTOR OF THE ILLINOIS DEPARTMENT OF PUBLIC HEALTH, DEFENDANT, AND CARE CENTER OF SPRINGFIELD, INC., INTERVENOR-DEFENDANT.



The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

MEMORANDUM OPINION

This case is before us on remand from the United States Court of Appeals. See Planned Parenthood Association v. Kempiners, 700 F.2d 1115 (7th Cir. 1983) (per curiam), vacating and remanding 531 F. Supp. 320 (N.D.Ill. 1981). At issue is the constitutionality of Ill.Rev.Stat. ch. 111 1/2, § 4604-100 (1981), which prohibits from receiving grants under the Illinois Problem Pregnancy Health Services and Care Act any applicant that engages in abortion counseling or referral activities.

I

The court of appeals was unable to produce a single opinion in the appeal from our initial decision in plaintiff's favor. Judge Cudahy was of the view that the judgment should be affirmed. Judge Eschbach was of the view that the judgment should be vacated and the case remanded to this court with directions that the complaint be dismissed on the ground that plaintiff lacked standing to challenge the statute. Judge Posner was of the view that the judgment should be vacated and the case remanded for a hearing on the question of plaintiff's standing. The court's brief per curiam opinion indicates that to enable the case to be decided by a majority vote, Judge Cudahy agreed to defer to Judge Posner's view that additional evidence should be taken on the issue of plaintiff's standing. Accordingly, the court remanded the case for an evidentiary hearing to explore the questions of standing raised in Judge Posner's separate opinion.

In his separate opinion, Judge Posner began by noting that the question of plaintiff's standing hinged on the question whether plaintiff might realize some tangible benefit if the statute was struck down. See 700 F.2d at 1135. Judge Posner noted that, in 1981, when plaintiff first applied for funds under the Act, its application was denied for the stated reason that the applicants who had successfully applied for funds in 1980 had priority over plaintiff. If plaintiff's lack of success as an applicant was due to its failure to apply for funds in 1980, rather than the challenged statute, Judge Posner believed that plaintiff would lack standing to challenge the statute. See id. at 1136-37. However, he also noted that the likelihood that plaintiff in fact was not injured by the statute was probably remote. He described the probable course of events that led to the denial of plaintiff's application as follows.

  An alternative and more realistic hypothesis runs
  along the following lines. Nonprofit
  organizations in general and Planned Parenthood
  in particular are always on the lookout for new
  sources of money. The eligibility criteria of
  Illinois' "problem pregnancy" program fit Planned
  Parenthood like a glove except for the
  disqualification of organizations that do
  abortion counseling, and therefore the only
  reason Planned Parenthood did not apply for funds
  under the program at the outset was that it knew
  it was disqualified by the allegedly
  unconstitutional statutory provision. But when
  Planned Parenthood geared up to bring this
  lawsuit it decided (in retrospect misguidedly)
  that its standing to sue would be improved if it
  gave the state a concrete application for funds.
  It did not realize that it was handing the state
  a golden opportunity to deny it funds on an
  apparently independent, constitutionally
  permissible basis, but one that is not really
  independent if as I am now assuming Planned
  Parenthood did not apply earlier only because an
  unconstitutional provision disqualified it from
  applying. I further assume that although Planned
  Parenthood's application for funds included
  abortion counseling, as it had to if Planned
  Parenthood wanted to challenge the statute as a
  violation of its constitutional

  right to use state funds for this purpose,
  Planned Parenthood will reapply for funds and
  agree not to use them for abortion counseling if
  the statute is invalidated on the narrower ground
  (also pressed by Planned Parenthood) that it
  penalizes organizations which provide such
  counseling with their own money. Planned
  Parenthood will agree to this because any funds
  that it receives from the state, restricted
  though they may be, will free up other funds to
  use in paying the costs of abortion counseling.

Id. at 1137.

Judge Posner's opinion stated, for the court, that on remand it should be determined if the above hypothesis were correct. He concluded,

  Planned Parenthood will have shown that it has
  standing to raise all of the issues it has tried
  to raise before us if on remand it shows (1) that
  it did not apply for funds promptly upon passage
  of the statute because it thought it was
  disqualified by the abortion-counseling program,
  and (2) that if that provision is held to be
  unconstitutional only when used to prevent an
  applicant from using its own funds for abortion
  counseling Planned Parenthood will submit a
  proposal that does not involve abortion
  counseling or referral.

700 F.2d at 1137-38.

The evidentiary hearing described by Judge Posner was held on May 25, 1983. The only witness was Norman Levine, plaintiff's executive director. Mr. Levine testified that plaintiff did not apply for funding in 1979 or 1980 because it assumed that it was not eligible for funding because of the challenged statute. T. 5. When it did apply in 1981, it did so on the advice of counsel, solely for the purpose of bringing this lawsuit. T. 6-7. He also testified that Planned Parenthood would be willing to submit an application for funds that did not involve state funding of abortion counseling or referral, if the state were to remove its disqualification from state funding. T. 7-8, 21. This uncontroverted testimony indicates both that plaintiff did not promptly apply for funds solely because it thought it was ineligible because of the allegedly unconstitutional statute, and that plaintiff is willing to prepare an application which would not involve the use of state funds for abortion counseling and referral services if the statute is held to be unconstitutional only when it disqualifies applicants that seek to use their own funds for abortion counseling and referral.*fn1 Under Judge Posner's opinion, plaintiff has standing to raise all the arguments it seeks to raise, despite its failure to submit an application for funds promptly after the Act's passage.*fn2

II

At the hearing, counsel for defendant Kempiners raised the possibility that this case might be moot since, because of fiscal pressures, defendant would not request that any money be appropriated under the Act for the coming fiscal year, meaning that there may be no money for grants under the program during the coming fiscal year. T. 25-28. Counsel at no point argued that the case was moot, or even assured us that there was no realistic possibility that funds would be appropriated under the Act this year. Rather, counsel merely raised the possibility of mootness, without taking the position that the case actually was moot. We invited defendant Kempiners to submit a brief arguing that the case was moot, T. 29-30, but defendant declined our invitation. Nevertheless, since the issue of mootness goes to our subject matter jurisdiction over the case, we consider the question on our own motion.*fn3

"Simply stated, a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969).*fn4 There can be no doubt that this case still presents a "live" controversy. The challenged statute remains in effect, and the parties continue to disagree as to its constitutionality. The parties remain in an adversarial posture over the merits of this litigation, hence the dispute over the statute's constitutionality remains "live." See Franks v. Bowman Transportation Co., 424 U.S. 747, 755-57, 96 S.Ct. 1251, 1259-61, 47 L.Ed.2d 444 (1976); Virginia ex rel. Coleman v. Califano, 631 F.2d 324, 326-27 (4th Cir. 1980). Rather, the question ...


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