Loertscher v. Anderson
Opinion of the Court
Tamara M. Loertscher brought this action under
Ms. Loertscher later instituted this federal action against several state and county officials in which she challenged Act 292 on a variety of constitutional grounds. While her action was pending in district court, Ms. Loertscher moved out of Wisconsin. The defendants then filed a motion to dismiss the action on the grounds that the case now was moot; that motion was denied.
On cross motions for summary judgment, the district court concluded that Act 292 was void for vagueness and, therefore, granted injunctive relief to Ms. Loertscher against the state defendants. The court determined, however, that the county defendants were not personally liable, and, therefore, Ms. Loertscher was not entitled to monetary damages. The state defendants appealed the district court's entry of injunctive relief; Ms. Loertscher did not cross appeal the entry of judgment for the county defendants on her damages claims.
We conclude that Ms. Loertscher's case is moot. She has moved out of the State of Wisconsin and has no plans to return. Consequently, it is not reasonably likely that she will again be subject to the Act's provisions. Accordingly, we vacate the district court's entry of judgment against the state defendants and remand with instructions to dismiss the action as moot.
I
BACKGROUND
A.
1.
In 1997, the Wisconsin Supreme Court held, as a matter of statutory construction, that the definition of child in Wisconsin's Children's Code did not include unborn children. See Wisconsin ex rel. Angela M.W. v. Kruzicki ,
The court has exclusive original jurisdiction over an unborn child alleged to be in need of protection or services which can be ordered by the court whose expectant mother habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical *389health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control. The court also has exclusive original jurisdiction over the expectant mother of an unborn child described in this section.
The process of bringing an unborn child and the mother within the jurisdiction of the court begins with a report by a person, usually a physician or relative, "who has reason to suspect that an unborn child has been abused or who has reason to believe that an unborn child is at substantial risk of abuse."
If the report appears accurate, the worker will "offer to provide appropriate services." Id . § 48.981(3)(c)(3). If the expectant mother refuses, the assessment worker must decide whether to pursue a formal petition for an unborn child in need of protective services ("UCHIPS"). Id . If the case proceeds and the mother is held temporarily,
If the UCHIPS petition actually is filed, procedural protections come into play, including a plea hearing, a factfinding hearing before a judge or jury, and a final dispositional hearing. See
2.
In the summer of 2014, Ms. Loertscher went to Taylor County Human Services Department ("the County") to determine if she was pregnant and to seek treatment for her hypothyroidism, which had gone untreated due to her inability to afford her medication. She was referred to the Eau Claire Mayo Clinic Hospital. There her caregivers confirmed her pregnancy, and *390she also tested positive for methamphetamine, amphetamines, and tetrahydrocannabinol.
The following morning, Ms. Loertscher received her thyroid medication. A psychiatrist spoke with her about her thyroid condition and also inquired about her past drug use. Ms. Loertscher stated that she had been self-medicating with marijuana and methamphetamine. Later that evening, Ms. Loertscher met with an obstetrician, Dr. Jennifer Bantz, and admitted to smoking methamphetamine daily, but stated that she had cut back to "two to three times a week" after discovering that she was pregnant.
Ms. Loertscher's condition and drug use was reported to a social worker at the hospital, Corey Everson, who then reported to the County that Ms. Loertscher's behavior was putting her baby in serious danger. Subsequently, a County access worker "screened in" the case. Later, an assessment worker, Julie Clarkson, requested Ms. Loertscher's medical records and also notified her that there was an open investigation. When Clarkson spoke to Ms. Loertscher, she denied recent drug use or any use of alcohol in the prior year. Clarkson informed Ms. Loertscher that the tests indicated drug use within the last few days; at that point, Ms. Loertscher told Clarkson that she did not want to work with the County.
A formal UCHIPS petition was filed, and the County held Ms. Loertscher at the Mayo Clinic Hospital to allow for a temporary custody hearing the following day. The County also appointed a guardian ad litem for Ms. Loertscher's unborn child.
On August 5, the guardian ad litem and county personnel attended a confidential hearing in juvenile court. Hospital staff arranged for Ms. Loertscher to participate in the hearing by phone; Ms. Loertscher stated, however, that she would not continue with the call in the absence of counsel and left the room.
At the hearing, Dr. Bantz testified regarding the consequences of Ms. Loertscher's drug use. She stated that mothers on methamphetamine "tend to be underweight, and [their] babies tend to be smaller at the gestational age."
The state court found probable cause that the statutory standards had been met.
Two weeks after the hearing, Ms. Loertscher still had not complied with the order. As a result, she was held in contempt and placed in county detention.
Ms. Loertscher gave birth to a healthy boy on January 23, 2015.
B.
On December 15, 2014, Ms. Loertscher filed this action against the Wisconsin Attorney General and the Secretary of the Department of Children and Families for the State of Wisconsin. She alleged that Act 292 violated her rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. She requested declaratory relief as well as a preliminary and permanent injunction.
Ms. Loertscher filed an amended complaint on November 6, 2015. In addition to her original demands, the amended complaint sought compensatory and punitive damages against several county defendants under
Following discovery, the parties filed cross motions for summary judgment. The court concluded that the provision of Act 292 that brings expectant mothers under the jurisdiction of the juvenile courts,
The district court, however, entered summary judgment in favor of the county defendants on Ms. Loertscher's damages claims. It concluded that Ms. Loertscher had not identified "a municipal policy, practice, or custom responsible for the alleged constitutional violation."
The state defendants timely appealed the district court's entry of summary judgment against them.
II
Before we address the parties' arguments on the merits, we first must address a threshold question: whether Ms. Loertscher's move out of the State of Wisconsin renders this appeal moot.
A.
"To invoke federal jurisdiction, a plaintiff must show a 'personal stake' in the outcome of the action." United States v. Sanchez-Gomez , --- U.S. ----,
An action seeking to enjoin the operation of an unconstitutional policy or practice may become moot if the plaintiff is removed from the geographical jurisdiction of the issuing authority. For example, in Camreta v. Greene ,
Similarly, in Ortiz v. Downey ,
The same principle applies when injunctive relief has been sought against a state statute or a local ordinance, as opposed to a policy or practice. Cooley v. Granholm ,
The Eleventh Circuit followed the same course in Lucero v. Trosch ,
*394Lucero had sold the Clinic and that he and his family ... no longer liv[ed] in Alabama." Id . at 595. The court held that "[b]ecause Dr. Lucero and his family no longer reside[d] in Alabama and no longer own[ed] or operate[d] the Clinic, any claims for injunctive relief [we]re moot as to them." Id . at 596.
In this case, the only issue before us is the appropriateness of the district court's statewide injunction precluding the operation of Act 292. Ms. Loertscher has moved out of Wisconsin and is no longer subject to Act 292's provisions. In her deposition, she testified that she had no "plans to return back to Wisconsin to live."
B.
Ms. Loertscher maintains that, even if her claim is moot, her claim falls within the exception to mootness for cases "capable of repetition, yet evading review." Sanchez-Gomez ,
Ms. Loertscher does not retain a stake in the outcome of this appeal, which concerns only injunctive relief. Her voluntary and permanent departure from the State, which enacted and administers the law which she challenges, makes the possibility of her once again being subject to the statute a matter of pure speculation.
Ms. Loertscher has no reasonable expectation that she will find herself within the State of Wisconsin at a time when she is both pregnant and under the influence of drugs or alcohol to a severe degree. Ms. Loertscher previously was subjected to Act 292's provisions because of her regular use of illegal substances. Courts "generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury." See Honig v. Doe ,
Determining the applicability of the "capable of repetition yet evading review" exception always has been an exercise of practiced judgment. It is not "an ingenious academic exercise in the conceivable." Preiser v. Newkirk ,
*396Ms. Loertscher has not shown that she has a reasonable expectation that she will again be subject to the provisions of Act 292, and, therefore, she has not satisfied the conditions of establishing the exception to mootness for claims capable of repetition but evading review.
Conclusion
For the reasons set forth in this opinion, Ms. Loertscher's claim for injunctive relief against the state defendants is moot. Because this action became moot through Ms. Loertscher's voluntary departure from the State of Wisconsin, we vacate the district court's entry of summary judgment and injunctive relief in favor of Ms. Loertscher, see Azar v. Garza , No. 17-654, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----,
VACATED and REMANDED with INSTRUCTIONS to DISMISS
See R.169-1 ("Child Protective Services Access and Initial Assessment Standards").
See id . at 22.
The Act provides for temporary custody of the expectant mother if there is an immediate danger to the unborn child. Custody includes placement (1) in the home of an adult friend or relative, (2) in a licensed community-based residential facility, (3) in a hospital, or, in some situations (4) in an emergency treatment facility.
Tetrahydrocannabinol or THC is the active ingredient in marijuana.
R.1-2 at 15.
Id . at 16.
R.169-4 at 12.
Id .
R.1-2 at 7, 9-10.
Id . at 17.
Id .
Id . at 18-19.
See id . at 20-21.
See id . at 28.
See R.1-3 at 4.
See R.1-8 at 25-27.
See R.66 at 25.
See R.118 at 4.
See R.240 at 24-27.
See
The state defendants also filed an emergency motion to stay the district court's injunction, which we denied. The Supreme Court subsequently stayed the district court's injunction pending the outcome of this appeal. See Anderson v. Loertscher , --- U.S. ----,
As previously noted, the only substantive issue before us is the propriety of the district court's injunction. Although Ms. Loertscher's complaint also sought damages against the county defendants, the district court entered summary judgment in favor of the county defendants, and Ms. Loertscher has not appealed that ruling.
Dr. Lucero's claim for monetary relief survived, as did the claim for injunctive relief by All Women's Inc., the entity which had purchased all of the assets of Dr. Lucero's clinic and continued to operate a clinic in much the same manner as Dr. Lucero had. Lucero v. Trosch ,
R.237 at 48 (Loertscher Dep. 174).
Contrary to Ms. Loertscher's assertions in her brief, the record does not support the conclusion that "she has contemplated a move back to the state to be closer to her family." Appellee's Br. 31. The only record material cited in support of this assertion is Ms. Loertscher's deposition testimony, in which the following colloquy took place:
Q Do you have any plans to return back to Wisconsin to live?
A Not to live. No.
...
Q And do you know right now when you have plans to visit Wisconsin again?
A Besides this visit, no.
Q Would you ever consider living in Wisconsin again?
A It's a hard question, because I would like to because my family is there, you know.
...
A ... The question was do I-would I ever live in Wisconsin again?
Q Correct.
A It's a hard question to answer, because I do have some family there that's slightly still supportive that I'd like to see, but I feel like I can't. I guess that's the best way I can answer your question. I can't answer it a yes or a no because it's kind of both.
R.237 at 48 (Loertscher Dep. 174-75) (emphasis added).
Nor is there evidence that Ms. Loertscher "moved out of the state in part because of her fear of harassment or future intervention by local officials related to the issues in this case." See Appellee's Br. 31. Again, the only record evidence in support of this statement is the above deposition testimony which is silent regarding her fear of harassment. Thus, Ms. Loertscher's situation is not analogous to that of the plaintiff in Artway v. Attorney General of New Jersey ,
The general rule applies in circumstances where the plaintiffs are able to "conduct their activities within the law and so avoid prosecution and conviction." City of Los Angeles v. Lyons ,
Ms. Loertscher submits that the second requirement-a reasonable expectation that the same complaining party will be subject to the same action again-should not be applied literally to her circumstances. She relies upon Jones v. Illinois Department of Rehabilitation Services ,
In Jones , the court considered a deaf student's challenge to a state college's failure to provide him with the services of a sign language interpreter. On appeal, this court determined that the action had not been mooted by the student's graduation but was "capable of repetition both as to Jones ... and as to other deaf clients of IDRS who are or will be students at IIT."
Since Jones , however, the Supreme Court has emphasized that the "exception applies 'only in exceptional situations,' where (1) 'the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,' and (2) 'there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.' " Kingdomware Techs., Inc. v. United States , --- U.S. ----,
Similarly, Majors does not persuade us that Ms. Loertscher's situation falls within the exception for cases capable of repetition but evading review. In Majors , we considered the constitutionality of an Indiana law requiring the disclosure of the identity of individuals who paid for certain political ads. As a preliminary matter, we had to consider whether a candidate had standing to challenge the law when the election in which he had run already had occurred and when the candidate had not declared his candidacy for the next election. We held that "[a] candidate plaintiff no more has a duty to run in every election in order to keep his suit alive than an abortion plaintiff has a duty to become pregnant again at the earliest possible opportunity in order to keep her suit alive. Politicians who are defeated in an election will often wait years before running again; obviously this doesn't show they're not serious about their political career." Majors ,
The Majors court, like the Jones court, did not have the benefit of the Supreme Court's later emphasis on the importance of a court's assessing the reasonable expectation that the "same complaining party [will] be subject to the same action again." Kingdomware Techs., Inc.
Reference
- Full Case Name
- Tamara M. LOERTSCHER v. Eloise ANDERSON
- Cited By
- 15 cases
- Status
- Published