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Ehlers v. Gallegos

United States District Court, N.D. Illinois, Eastern Division

January 3, 2020

BARRY EHLERS, Petitioner,



         On July 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.[1] Ehlers seeks relief on several grounds, [2] 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 Gallegos[3]has 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.


         This 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.”) [1] 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.”) [61] ¶ 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.)

         On July 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.[4] 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.)

         As of 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. [53].) 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, [5] 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.[6] (Id. at ¶ 11, 19; In re Ehlers, No. 3:18-bk-32997-SHB (E.D. Tenn. filed Sept. 28, 2018)).

         On May 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, [7] 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.[8] (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) [10]. Petitioner notified the court that he had exhausted his direct appeals on July 2, 2018. (Notice of Exhaustion [36] at 1.)

         Respondent moved to dismiss the petition on September 5, 2019 for lack of subject-matter jurisdiction. (Mot. to Dismiss [58] 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”) [62] 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 evading review.


         A 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).


         Since 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.

         Petitioner 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 [10], at *2.

         Finally, 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 proceeding.”)

         In 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.

         I. Custody

         To 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.

         II. Mootness

         Petitioner's 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 nothing.”).

         There 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 below.

         A. Collateral Consequences

         Once a 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 ...

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