United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, UNITED STATES DISTRICT JUDGE
28, 2015, a Circuit Court of Cook County judge found
Petitioner Barry Ehlers in contempt of court for failing to
pay some $43, 000 in child and spousal support owed as a
result of his November 2014 divorce. On a court finding that
he willfully failed to comply with the order, Ehlers was
taken into custody on November 17, 2015. Ehler has exhausted
state-court challenges to his confinement and now seeks a
writ of habeas corpus from this court pursuant to 28
U.S.C. § 2254. Ehlers seeks relief on several grounds,
including (1) that procedures used by the trial court during
the contempt hearing, including failing to appoint counsel
and failing to state explicit findings regarding
Petitioner's ability to pay, violated his due process
rights, (2) that the bench trial violated his Seventh
Amendment right to a trial by jury, and (3) that his
incarceration pursuant to a finding of civil contempt, rather
than a conviction for a crime, violates the Thirteenth
Amendment's prohibition of involuntary servitude and
slavery. Respondent Amanda Gallegoshas moved to dismiss
Ehlers's petition pursuant to Federal Rule of Civil
Procedure 12(b)(1) as moot, or alternatively, for lack of
jurisdiction under Younger v. Harris. Because
Respondent made the Younger abstention argument for
the first time in her reply brief, the motion to dismiss is
stayed pending Petitioner's response to that argument.
The court also notes, however, its concerns about the merits
of any of Petitioner's claims and directs that he respond
to those concerns and to Respondent's the
Younger argument within 21 days.
petition for a writ of habeas corpus arises out of
Petitioner Ehlers's November 2014 divorce. The Circuit
Court of Cook County divided marital property between
Petitioner and his former wife, Tammy Wallace, and ordered
Petitioner to pay spousal maintenance and child support.
(Pet. for Writ of Habeas Corpus (“Habeas Pet.”)
 at 2.) Petitioner has not paid all of his support
obligations and, as a result, has twice been held in contempt
of court on his ex-wife's motion. (Pet'r's Resp.
to Mot. to Dismiss (“Pet'r's Resp.”) 
¶ 3.) The first time was on February 9, 2012 (presumably
arising out of a violation of a pre-decree order), but that
first contempt finding was dismissed after Petitioner paid
$11, 698 toward his support obligations. (Id.)
28, 2015, Petitioner was again found in contempt of court for
failing to pay $43, 600 in outstanding support.
(Id.) The Circuit Court of Cook County held a
four-day hearing on the contempt finding. See Ehlers v.
Ehlers, 2017 IL 150293-U, 2017 WL 4399843, at *3
(Ill.App.Ct. 1st Dist. Sept. 29, 2017). Ehlers contended at
this hearing that he was unable to pay support obligations
because he had lost his job. Id. at *14-15. In its
oral ruling, however, the court “made express findings
that [Ehlers] had the resources to pay”; for example,
it recounted that Petitioner had deposited $99, 377.84 into
his checking account between July 15, 2014 and March 20,
2015. Id. The court also considered evidence
“that [Ehlers] had purposely chosen to pay other
obligations instead.” Id. at *3. The state
trial judge gave Petitioner two weeks to meet his
obligations, and when he did not, ordered Petitioner's
incarceration starting on November 17, 2015. (Id. at
*15; Pet'r's Resp. ¶ 3.) Petitioner was held in
Cook County jail for seven months- from November 17, 2015 to
June 22, 2016. (Pet'r's Resp. ¶ 10.) He then
remained under electronic home monitoring until April 28,
2017, when his family paid the amount required to purge
Ehlers of the contempt order. (Id. at ¶ 3.)
July 2, 2018, Petitioner still had outstanding obligations
pursuant to the November 2014 divorce judgment. The Circuit
Court of Cook County issued an attachment order directing the
Cook County Sheriff to bring Petitioner before the court to
answer his ex-wife's petition to show cause.
(Id. at ¶ 3; Attach. Order, Ex. 2 to
Pet'r's Resp. .) That order stated that
Petitioner still owed $10, 881 for his children's health
insurance premiums; $67, 000 in unpaid child support, spousal
maintenance, and college contributions; $50, 000 in
attorney's fees incurred by his former wife; and a $535,
400 debt arising from a home equity line of credit assigned
to him in the divorce judgment. (Attach. Order.) Petitioner
has not appeared in the Circuit Court of Cook County to
respond to this petition to show cause,  and alleges that,
to his knowledge, the attachment order is still outstanding.
(Pet'r's Resp. ¶ 3.) To this date, Petitioner
has unpaid spousal maintenance and child support obligations,
but alleges that he does not have the means to pay as he has
“no net income and no assets” and has filed for
personal bankruptcy. (Id. at ¶ 11, 19; In re
Ehlers, No. 3:18-bk-32997-SHB (E.D. Tenn. filed Sept.
9, 2015, Petitioner filed a petition for a writ of habeas
corpus in this court. Petitioner seeks relief on several
grounds. First, he alleges that his due process rights were
violated in several ways during the contempt proceedings
including by the Circuit Court of Cook County's failure
to state its findings regarding Petitioner's ability to
pay the support obligations in the contempt order or order of
incarceration,  the court's failure to appoint an
attorney during the contempt proceedings, the lack of notice
that ability to pay was a critical issue in the contempt
proceedings, the court's failure to use a standardized
form to elicit relevant financial information from him, and
the lack of access to a social worker. (Habeas Pet. at 28,
30, 37, 39-40.) Second, Petitioner alleges that the court
violated his Seventh Amendment right to a trial by jury by
conducting a bench trial. (Id. at 100.) Third,
Petitioner alleges that his incarceration pursuant to a
finding of civil contempt, rather than conviction for a
crime, violates the Thirteenth Amendment's prohibition of
involuntary servitude and slavery. (Id. at 108.) On
September 7, 2016, this court stayed further proceedings on
the habeas petition pending Petitioner's
exhaustion of state court remedies. See Ehlers v.
Reynolds, No. 16-CV-05092 (N.D. Ill. June 8, 2016) .
Petitioner notified the court that he had exhausted his
direct appeals on July 2, 2018. (Notice of Exhaustion  at
moved to dismiss the petition on September 5, 2019 for lack
of subject-matter jurisdiction. (Mot. to Dismiss  at 1;
Fed.R.Civ.P. 12(b)(1).) Respondent alleges that Ehlers's
petition is moot because he is no longer in custody.
(Id. at 2-3.) Then in a reply memorandum, Respondent
argued, in the alternative, that the court should decline to
exercise jurisdiction over the petition under the abstention
principles of Younger v. Harris, 401 U.S. 37 (1971).
(Resp't Reply to Pet'r's Resp. (“Resp't
Reply”)  at 3.) Petitioner responds that his
petition is not moot because it falls under the exception to
mootness for cases that are capable of repetition, yet
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) challenges the court's jurisdiction over the
complaint's subject matter. In considering a motion to
dismiss, the “court must accept as true all
well-pleaded factual allegations and draw all reasonable
inferences in favor of the [petitioner].” St.
John's United Church of Christ v. City of Chicago,
502 F.3d 616, 625 (7th Cir. 2007) (quoting Long v.
Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.
1999)). The “party asserting federal jurisdiction when
it is challenged has the burden of establishing it”
because of the presumption that “federal courts lack
jurisdiction unless the contrary appears affirmatively from
the record.” DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 342 n.3 (2006) (quoting Renne v.
Geary, 501 U.S. 312, 316 (1991)). If the motion to
dismiss denies the truth of the allegations asserting
jurisdiction, “the district court may properly look
beyond the jurisdictional allegations of the complaint and
view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction
exists.” St. John's, 502 F.3d at 625
(quoting Long, 182 F.3d at 554).
the Supreme Court's decision in Lane v.
Williams, 455 U.S. 624 (1982), courts have stressed the
importance of focusing on the relief sought by a
habeas petitioner when determining questions of
jurisdiction. See D.S.A. v. Circuit Court Branch 1,
942 F.2d 1143, 1147 (7th Cir. 1991) (citing Port v.
Heard, 764 F.2d 423, 428 (5th Cir. 1985)). In
Lane, for example, the Court denied a petition for a
writ of habeas corpus as moot because the
petitioners challenged only their sentences, rather than the
underlying convictions. 455 U.S. at 631. Because the
sentences had been fully served and could not be undone,
there was no available remedy.
Ehlers requests three forms of relief: (1) release from
custody, (2) “[d]amages for false imprisonment and any
other damages Petitioner may be entitled to under law,
” and (3) “such relief as is just.” (Habeas
Pet. at 14.) In 2017, Petitioner paid the amount required to
purge the state court's finding of contempt and is no
longer in custody. Because his fully-served sentence cannot
be undone, nor can the court vacate an already-dismissed
contempt judgment, Petitioner's first request for relief
is moot. Moreover, a district court may not award money
damages even if it grants a petition for a writ of habeas
corpus. See Nelson v. Campbell, 541 U.S. 637,
646 (2004) (noting that “damages are not an available
habeas remedy”). Thus, Petitioner's second
requested form of relief is not available, and in fact, that
request was dismissed by this court in an earlier order.
See Ehlers, No. 16-CV-05092 , at *2.
a district court has some flexibility in fashioning
habeas relief, but this flexibility is not
unlimited. Petitioner requests “such other relief as is
just, ” but in light of Petitioner's release from
custody, the only relief the court could award would
presumably relate to the procedures used in threatened or
pending contempt proceedings to enforce Petitioner's
underlying divorce judgment. The court has no jurisdiction to
award relief to the extent that Petitioner seeks to challenge
the Circuit Court of Cook County's divorce judgment,
including the support obligation and allocation of marital
property. (Pet'r's Resp. ¶ 25.) Federal courts
have no jurisdiction to alter state court decisions granting
a divorce, allocating marital property, or granting child or
spousal support. See Kowalski, 893 F.3d at 995;
Ankenbrandt, 504 U.S. at 693-704 (explaining the
domestic relations exception to federal jurisdiction).
Additionally, “a contempt proceeding does not open to
reconsideration the legal or factual basis of the order
alleged to have been disobeyed and thus become a retrial of
the original controversy.” United States v.
Rylander, 460 U.S. 752, 756 (1983) (quoting Maggio
v. Zeitz, 333 U.S. 56, 69 (1948)). Accordingly, a
collateral challenge to the contempt hearing is not an
appropriate avenue to dispute the state court's findings
underpinning the divorce judgment. See Maggio, 333
U.S. at 69 (“[T]he [original] order is subject only to
direct attack, and [ ] its alleged infirmities cannot be
relitigated or corrected in a subsequent contempt
light of the above, whether this court has subject-matter
jurisdiction depends on three separate inquiries: first,
whether Petitioner meets the custody requirement of 28 U.S.C.
§ 2254; second, whether the petition is moot now that
Petitioner has been released from custody; and third, whether
the court should nonetheless abstain from exercising
jurisdiction over the petition.
obtain federal habeas relief under the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”), a petitioner must establish that
“he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Satisfaction of the custody requirement is
determined at the point when the petition is first filed.
Spencer v. Kemna, 523 U.S. 1, 7 (1998); Carafas
v. LaVallee, 391 U.S. 234, 238 (1968). Incarceration
pursuant to a state court judgment of civil contempt
qualifies as custody for purposes of § 2254(a).
Puchner v. Kruziki, 111 F.3d 541, 543 (7th Cir.
1997); see also Duncan v. Walker, 533 U.S. 167, 176
(2001) (“federal habeas corpus review may be available
to challenge the legality of . . . a state court order of
civil contempt”). Petitioner filed his petition for a
writ of habeas corpus on May 9, 2016 while he was
still incarcerated in the Cook County Jail and almost a year
before his electronic home monitoring ended. Because
Petitioner was incarcerated at the time he filed this
petition, he has satisfied the statutory custody requirement
despite his subsequent release.
release from custody does not necessarily moot his petition,
but to avoid dismissal, his petition must present a
“case or controversy” under Article III, § 2
of the Constitution. “To invoke federal jurisdiction, a
[petitioner] must show a ‘personal stake' in the
outcome of the action.” United States v.
Sanchez-Gomez, 138 S.Ct. 1532, 1537 (2018) (quoting
Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 71
(2013)). That is, the petitioner “must have suffered,
or be threatened with, an actual injury traceable to the
[respondent] and likely to be redressed by a favorable
judicial decision.” Spencer, 523 U.S. at 7
(quoting Lewis v. Cont'l Bank Corp., 494 U.S.
472, 477 (1990)); see also Allen v. Duckworth, 6
F.3d 458, 460 (7th Cir. 1993) (“This action for habeas
corpus is moot if winning it would give the petitioner
are two exceptions to mootness that may apply to a
habeas petition brought by someone who has been
released from custody. The first is when a petitioner suffers
“collateral consequences” as a result of the
incarceration or conviction that give rise to a
“concrete and continuing injury.”
Spencer, 523 U.S. at 7; Puchner, 111 F.3d
at 543. The second exception applies when the challenged
action is “capable of repetition, yet evading
review.” Spencer, 523 U.S. at 17;
Eichwedel v. Curry, 700 F.3d 275 (7th Cir. 2012).
The court addresses the availability of those two exceptions
habeas petitioner has been released from custody,
“some concrete and continuing injury other than the
now-ended incarceration or parole-some ‘collateral
consequence' of the conviction-must exist if the suit is
to be maintained.” Spencer, 523 U.S. at 7. In
Carafas v. LaVallee, the Supreme Court listed
examples of consequences burdensome enough to give a
petitioner who has been released from custody an ongoing
stake in the controversy: an inability to vote in a state
election, to serve as a juror, or to engage in certain
businesses. 391 U.S. at 237; see also D.S.A., 942
F.2d at 1146. There is a presumption that criminal
convictions have collateral consequences. Eichwedel,
700 F.3d at 279 (citing Spencer, 523 U.S. at 9-10;
Sibron v. New York, 392 U.S. 40, 54-57 (1968)). This
presumption does not extend to other contexts, however, such
as prison disciplinary proceedings, Cochran v. Buss,
381 F.3d 637, 640-41 (7th Cir. 2004), or to the revocation of