Loertscher, Tamara v. Schimel, Brad D. et al
Filing
61
OPINION & ORDER denying 40 Motion to Dismiss; denying 48 Motion to Dismiss; granting 15 Second Motion to Seal; granting 54 Motion to Withdraw Preliminary Injunction Motion; striking 13 Motion for Preliminary Injunction; denying as moot 47 Motion for Hearing; denying as moot 59 Motion for Oral Argument or Sur-Reply. Signed by District Judge James D. Peterson on 9/30/15. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TAMARA M. LOERTSCHER,
OPINION & ORDER
Plaintiff,
v.
14-cv-870-jdp
BRAD D. SCHIMEL, in his official capacity
as Attorney General of the State of Wisconsin, and
ELOISE ANDERSON, in her official capacity
as Secretary of the Department of Children and Families,
Defendants.
Pursuant to 1997 Wis. Act 292, state authorities may treat a fetus of any gestational
age as a child in need of protective services (CHIPS) if the “expectant mother’s habitual lack
of self-control in the use of alcohol beverages, controlled substances or controlled substance
analogs, exhibited to a severe degree, [poses] a substantial risk of harm” to the fetus. Wis.
Stat. § 48.193.
Plaintiff Tamara Loertscher filed this case when she was an expectant mother subject
to a state court CHIPS order issued under the authority of the Wisconsin Children’s Code, as
amended by Act 292. Under the authority of the CHIPS order, Loertscher was detained for
several days in a hospital, and later incarcerated for 18 days, until she signed a consent decree
requiring her to submit to drug monitoring and treatment by county authorities. She gave
birth in January 2015. Her consent decree has since expired, and all proceedings against her
have terminated. But Loertscher persists in her challenge to Act 292, which she contends is
facially unconstitutional because it is void for vagueness and because it violates her
substantive due process rights, procedural due process rights, First Amendment rights, Fourth
Amendment rights, and her right to equal protection. She seeks no damages, but she asks this
court to declare Act 292 unconstitutional and to enjoin its enforcement. Loertscher brings
this case under 42 U.S.C. § 1983, which authorizes suits in federal court to redress violations
of federal constitutional or statutory rights by state actors. Loertscher’s allegations, many of
which are fully documented, tell a disturbing story of her treatment by Taylor County
authorities under Act 292.
But before getting to the merits, the court must address two difficult jurisdictional
issues that defendants have presented in motions to dismiss. Dkt. 40 and Dkt. 48. First,
because Loertscher asked this court to enjoin an ongoing state proceeding, defendants
contend that the court must abstain from the matter under Younger v. Harris, 401 U.S. 37
(1971), which limits the authority of federal courts to interfere in certain types of state
proceedings. Second, because the state proceedings against Loertscher have now terminated,
defendants contend that the matter is moot, and so the court must dismiss it for lack of an
actual case or controversy.
The court concludes that this case does not require abstention. The CHIPS
proceeding is a type that the Supreme Court has deemed to be “akin to a criminal
prosecution,” a category commonly requiring abstention. But the weight of well-reasoned
authority indicates that when a proceeding is no longer “ongoing,” the concern motivating
abstention—namely, respecting the independence and autonomy of state courts—is
eliminated. The court also concludes that the case is not moot because it is one “capable of
repetition yet evading review.” Defendants’ motions to dismiss, Dkt. 40 and Dkt. 48, will
therefore be denied on these issues.
Several additional motions are also before the court. Loertscher has moved to make
public the records of the CHIPS proceeding, which under Wisconsin law would be sealed to
2
protect the child. Dkt. 15. The court will grant Loertscher’s motion because the public has a
legitimate interest in knowing how Act 292 has been enforced against her, and defendants
have not shown a significant interest in preventing disclosure. Loertscher has also moved,
without opposition, to withdraw her motion for preliminary injunction. Dkt. 54. That
motion will be granted, and thus the motion for preliminary injunction, Dkt. 13, will be
stricken. Loertscher’s additional motions to be heard, Dkt. 47 and Dkt. 59, will be denied as
unnecessary. Finally, the court will set a schedule for the remainder of this case.
FACTUAL BACKGROUND
The following facts are drawn primarily from the allegations in the complaint, which
are accepted as true for the purposes of a motion to dismiss. Transit Express, Inc. v. Ettinger,
246 F.3d 1018, 1023 (7th Cir. 2001). Where it is useful, the court has supplemented this
background with the history of Act 292.
Under Wisconsin’s Children’s Code, the state Department of Children and Families
and county social service departments have the responsibility to protect children who are
being abused or neglected. If the county social service department deems it necessary, such a
child may be the subject of a petition concerning a child in need of protective services—
commonly known as a CHIPS petition—filed with the juvenile court of that county. If the
court grants the CHIPS petition, then protective services may be ordered for the child. In
severe cases, the child may be removed from the parents’ home and placed in protective
custody.
The Wisconsin Supreme Court held in State ex rel. Angela M.W. v. Kruzicki, 209 Wis.
2d 112, 561 N.W.2d 729 (1997), that a viable fetus was not a “child” within the meaning of
3
the Children’s Code, and thus the Children’s Code did not authorize CHIPS proceedings
directed at expectant mothers who used illegal drugs. In response to the Angela M.W. case,
the Wisconsin legislature passed 1997 Wisconsin Act 292, which amended the Children’s
Code to authorize CHIPS petitions for the benefit of any “unborn child” who might be
endangered by the mother’s habitual use of drugs or alcohol. Act 292 defined “unborn child”
to mean “a human being from the time of fertilization to the time of birth.” Wis. Stat.
§ 48.02(19). The act took effect on January 1, 1998. Under the Children’s Code, as amended
by Act 292, a fetus can be the subject of a CHIPS petition based on the expectant mother’s
habitual use of drugs or alcohol. If the expectant mother refuses services to protect the fetus,
then she may be taken into custody.
Loertscher lives in Taylor County, Wisconsin. In February 2014, Loertscher had just
lost her job and, as a result, her health insurance. She was then 29 years old, with severe
thyroid problems, the symptoms of which included serious depression. She had no
substantial history of drug use, although she had used marijuana a few times. Without her
prescribed medications, Loertscher resorted to methamphetamine to counteract her
depression and she continued occasional use of marijuana. When she thought she might be
pregnant, around the end of July 2014, she stopped her drug use.
On August 1, Loertscher sought treatment for her hypothyroidism and severe
depression from the Taylor County Department of Human Services (TCDHS). TCDHS
recommended that she go to the Mayo Clinic Health System in Eau Claire, and she did so.
She provided a urine sample, which confirmed that Loertscher was pregnant. The specimen
was also tested for drugs (without Loertscher’s knowledge), and it showed traces of
methamphetamine, amphetamine, and marijuana. That evening, she voluntarily admitted
4
herself to the clinic’s Behavioral Health Unit for short-term inpatient psychiatric and medical
care.
Over the next few days, Loertscher learned that her pregnancy was healthy and that
she was approximately 14 weeks along. She was counselled about her drug use. She refused to
sign a release allowing disclosure of her medical records to TCDHS, and when Loertscher
expressed her desire to leave the Behavioral Health Unit, a nursing manager told her that
there was a “hold” on her and that she was not free to leave.
Although Loertscher had not consented to the disclosure of her medical records, clinic
personnel provided Loertscher’s medical information to TCDHS. And while Loertscher was
in the Behavioral Health Unit, Taylor County corporation counsel Courtney Graff prepared a
petition under Wis. Stat. § 48.133, to take physical custody of Loertscher. The Taylor
County juvenile court appointed Michael Shiffler as guardian ad litem (GAL) for Loertscher’s
fetus.
On August 5, Taylor County court commissioner Greg Krug convened a hearing to
determine if there was probable cause to take Loertscher into custody. Loertscher had no
advance notice of the hearing. She was taken to a conference room at the clinic, told that a
judge was on the telephone, and given a copy of the Petition for Protection or Care of an
Unborn Child, which alleged that Loertscher risked endangering her fetus through habitual
lack of self-control in the use of alcohol or controlled substances. Loertscher refused to
participate without a lawyer. The court commissioner deemed Loertscher to have voluntarily
waived her right to participate in the hearing, and the hearing proceeded without her.
The court commissioner took evidence and ordered that Loertscher be placed in
temporary physical custody, requiring Loertscher to stay at the Mayo Clinic until she was
5
“cleared,” and then to be placed at a treatment facility to be selected by her doctors and
TCDHS. Dkt. 1-3. But a day or so later, Loertscher was given prescriptions for thyroid
medication and anti-depressants, and she was released from the Mayo Clinic. It is not clear
whether Commissioner Krug’s order had been provided to Loertscher.
On August 11, the GAL filed a motion for contempt against Loertscher for her failure
to comply with the August 5, 2014, order for temporary physical custody. Dkt. 1-4. On
August 13, Corporation Counsel Graff filed a motion to take Loertscher into custody. The
court granted the motion to take Loertscher into custody and set a hearing on the contempt
order for August 25, 2014, which was later rescheduled for September 4, 2014, after
Loertscher requested a new judge. Dkt. 1-7.
Loertscher appeared voluntarily at the September 4 contempt hearing with her family,
but without counsel. The GAL admitted to the charges against Loertscher on behalf of the
fetus. The court, with Price County Judge Douglas Fox presiding, took testimony from
TCDHS employees and from Loertscher. At the close of the hearing, Judge Fox found
Loertscher in contempt of the August 5, 2014, order for temporary physical custody. He
ordered her to serve 30 days in jail, unless she purged the contempt by submitting to a blood
test and by accepting placement at the Fahrman Center, a drug treatment facility. Dkt. 1-8.
Loertscher believed that she did not need drug treatment and she was unwilling to
place herself at the Fahrman Center. So that evening, September 4, Loertscher surrendered
herself to the Taylor County Jail, where she was held for 18 days. Jail medical staff would not
provide pre-natal care unless Loertscher submitted a urine specimen to confirm her
pregnancy. She refused to provide the specimen, and she received no pre-natal care during
her incarceration, despite the fact that she reported pain, cramping, and vaginal discharge.
6
And after she refused to provide the urine specimen, she was placed in solitary confinement
for 36 hours.
From jail, Loertscher was able to arrange counsel from the Office of the State Public
Defender to represent her in the contempt proceeding. Her counsel negotiated a consent
decree with TCDHS and the GAL, which required Loertscher to schedule an AODA
assessment, comply with AODA-recommended treatment, submit to drug tests, attend
prenatal appointments, seek health insurance, cooperate with the supervision of a social
worker, and agree to release her information. Dkt. 1-13. Loertscher signed the consent
decree, and Judge Fox ordered Loertscher released from jail on September 22. Dkt. 1-12.
On September 29, TCDHS issued to Loertscher a Notice Child Maltreatment
Determination and Right of Appeal. Dkt. 1-14. According to this Notice, TCDHS had
completed its assessment and determined that Loertscher had abused her unborn child
through her habitual use of drugs and alcohol. The notice further stated that the
maltreatment determination could be used to deny Loertscher a license, contract, or
employment involving the care of children or other vulnerable persons unless she successfully
completed a rehabilitation program. Loertscher appealed the determination on October 29;
the determination was affirmed on November 10. Dkt. 1-15.
Loertscher gave birth to a healthy boy on January 23, 2015. The consent decree has
since expired, and Taylor County has rescinded the child maltreatment determination
because it has discovered that the Children’s Code does not authorize such determinations
for alleged maltreatment of a fetus.
7
ANALYSIS
The court begins its analysis with the two threshold jurisdictional issues: whether the
court must abstain under Younger, and whether Loertscher’s claims are moot. After concluding
that Younger abstention is not appropriate and that Loertscher’s claims are capable of
repetition yet evading review, the court will reach the remaining aspects of the parties’
motions.
A. Abstention
Federal courts have a duty to hear and decide cases over which they have jurisdiction.
Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 590 (2013). But they have an equally
compelling duty to decline to take up matters over which they do not have jurisdiction.
The Supreme Court articulated one important limit on federal jurisdiction in Younger
v. Harris, which prohibits federal courts from interfering in ongoing state criminal
prosecutions, absent extraordinary circumstances. 401 U.S. 37, 43-46 (1971). Younger
abstention is rooted in the principle of comity, which is to say that it is “designed to permit
state courts to try state cases free from interference by the federal courts.” FreeEats.com, Inc. v.
Indiana, 502 F.3d 590, 595 (7th Cir. 2007) (citations and internal quotation marks omitted).
In Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05 (1975), the Supreme Court extended
Younger to certain state civil proceedings that the Court regarded as more akin to a criminal
proceedings than ordinary civil litigation between private parties.
But Younger abstention is the exception, not the rule. The Supreme Court clarified
that Younger abstention is appropriate only when ongoing state proceedings fall within one of
three categories: (1) ongoing state criminal proceedings; (2) certain state civil enforcement
proceedings that are “akin to a criminal prosecution”; and (3) pending state civil proceedings
8
involving orders “uniquely in furtherance of the state courts’ ability to perform their judicial
functions.” Sprint, 134 S. Ct. at 591-92. Once a court determines that a case falls into one of
these three categories, it must abstain from interfering when the proceedings are ongoing,
implicate important state interests, and give the plaintiff an opportunity to raise her
constitutional challenges. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.
423, 432 (1982).
The first and third Sprint categories do not apply in this case, but Loertscher’s state
proceedings fall neatly in category two: the CHIPS proceeding and the administrative
proceeding are akin to criminal prosecution for purposes of the court’s Younger analysis.
Under Sprint, the defining characteristics of civil enforcement proceedings akin to criminal
prosecution are: (1) they are often meant to sanction the federal plaintiff for some wrongful
act; (2) a state actor/authority often initiates the proceedings; (3) investigations are
commonly involved; and (4) the investigation typically culminates in the filing of a formal
complaint or charges. 134 S. Ct. at 592. In Sprint, the Supreme Court determined that
Younger abstention was not appropriate because the state proceedings at issue in that case did
not resemble criminal prosecution: a private corporate initiated the underlying proceedings,
and no state authority conducted an investigation or lodged a formal complaint. Id.
Here, the Taylor County proceedings against Loertscher satisfy all four factors. At the
time Loertscher filed her federal complaint, she was subject to two state proceedings: a
CHIPS proceeding, pursuant to Wis. Stat. § 48.133; and an administrative proceeding
concerning Loertscher’s alleged maltreatment of her unborn child. 1 Taylor County actors
1
Although the record before the court indicates that the TCDHS Agency Director affirmed
the administrative maltreatment determination on November 10, 2014, Loertscher indicated
that at the time she filed her federal complaint, she intended to “challenge the child
9
initiated the proceedings; they did so after conducting an investigation; and the investigation
culminated in a formal petition and a maltreatment charge against Loertscher. Although the
primary purpose of the CHIPS proceeding was to protect Loertscher’s fetus, the proceedings
resulted in coercive actions against Loertscher: she was subjected to involuntary medical
treatment, required to attend a plea hearing and enter a plea, and confined in jail for
contempt. The maltreatment determination was plainly a sanction for misconduct. The state
proceedings against Loertscher meet the four factors identified in Sprint and constitute civil
enforcement proceedings akin to criminal prosecution.
The court’s conclusion is confirmed by one of the “category two” examples cited in
Sprint: Moore v. Sims, 442 U.S. 415 (1979). In Moore, Texas authorities initiated a “suit for
emergency protection of the children” after a school reported alleged instances of child abuse.
Id. at 419. While the “suit affecting the parent-child relationship” was pending in Texas state
court, the parents filed an action in federal court challenging the constitutionality of the
applicable state statutes and seeking a temporary restraining order. The Moore Court
determined that Younger abstention was appropriate because the “temporary removal of a
child in a child-abuse context is . . . in aid of and closely related to criminal statutes.” Id. at
423 (citation and internal quotation marks omitted). Essentially, the state proceeding in
Moore was a CHIPS proceeding similar to the one Loertscher faced.
Loertscher attempts to distinguish her case from Moore on the grounds that the
proceedings against her were not “in aid of and closely related to criminal statutes.”
Loertscher is correct that there is no Wisconsin statute criminalizing the precise behavior of
which she was accused. (Drinking while pregnant is not illegal, although possession of
maltreatment finding in an administrative proceeding.” Dkt. 1, ¶¶ 74-75.
10
methamphetamine is, even if one is not pregnant.) But the court is not persuaded that this
distinction makes a difference because Sprint did not mention it. Sprint spelled out four
factors, and they are met here. The court concludes that the Taylor County proceedings are
akin to criminal prosecutions for purposes of Younger abstention.
Before abstaining, however, the court must consider whether the state proceedings
satisfy the three Middlesex factors. The second and third factors are not controversial. With
respect to the second factor, the state proceedings plainly implicated Wisconsin’s interest in
protecting children and families, an interest generally regarded as at the core of state, rather
than federal, concern. The third Middlesex factor—whether the underlying state proceedings
presented an adequate opportunity for plaintiff to challenge the constitutionality of the
applicable statutes—is also satisfied. Defendants persuasively demonstrate that Loertscher
had the opportunity to challenge the constitutionality of Act 292 in state court during or
after either the CHIPS proceeding or the administrative action.
The first factor presents a more difficult question: whether the state proceedings are
“ongoing.” The state proceedings appear to have concluded since Loertscher filed her federal
complaint. But Loertscher initiated her federal case when the state proceedings were ongoing,
expressly asking this court to enjoin the state proceedings. The question is whether the status
of the state proceeding must be judged strictly at the filing of the federal complaint.
Huffman strongly suggests that the status of the state proceedings at the time of filing
dictates whether they are “ongoing” for purposes of Younger abstention:
As a matter of state procedure, the judgment presumably
became final, in the sense of being nonappealable, at some point
after the District Court filing, possibly prior to entry of the
District Court’s own judgment, but surely after the single judge
stayed the state court’s judgment. We need not, however,
engage in such inquiry. For regardless of when the Court of
11
Common Pleas’ judgment became final, we believe that a
necessary concomitant of Younger is that a party in appellee’s
posture must exhaust his state appellate remedies before seeking
relief in the District Court, unless he can bring himself within one
of the exceptions specified in Younger.
420 U.S. at 608 (emphasis added) (rejecting appellee’s argument that Younger abstention did
not apply because by the time the district court acted, the state court proceedings were no
longer “pending”). Huffman also indicated that it made no difference whether state appellate
remedies remained available at the time the district court below issued its permanent
injunction. Id. at 618, n.22 (“[A]ppellee may not avoid the standards of Younger by simply
failing to comply with the procedures of perfecting its appeal within the Ohio judicial
system.”). But Huffman did not concern the precise issue now before the court. Rather,
Huffman considered the implications of a federal court inserting itself into state court
proceedings between the trial and appellate process; the Huffman Court held that the district
court should not have entertained an action to enjoin execution of a state court judgment
prior to exhaustion of state appellate remedies. 2
Other Seventh Circuit authority suggests that a state case may not be ongoing for
Younger purposes if it is resolved during the pendency of the federal litigation. In Leaf v.
Supreme Court of State of Wisconsin, the Seventh Circuit determined that although state
2
Other courts, including the Seventh Circuit, have also taken this approach, evaluating
whether a state proceeding is ongoing at the time of filing. See Crenshaw v. Supreme Court of
Ind., 170 F.3d 725, 728 (7th Cir. 1999) (evaluating whether state proceedings were ongoing
at the time plaintiff filed the federal complaint); see also Tony Alamo Christian Ministries v.
Selig, 664 F.3d 1245, 1250 (8th Cir. 2012) (“[T]he relevant time for determining if there are
ongoing state proceedings is when the federal complaint is filed.”) (citing Beltran v. State of
California, 871 F.2d 777, 782 (9th Cir. 1989)). However, Crenshaw did not concern state
proceedings that concluded after the plaintiff filed a federal complaint but before the court had
the opportunity to address Younger abstention. It addressed state proceedings that may not
have initiated in time to be considered “ongoing” at the time the plaintiff filed the federal
complaint.
12
proceedings were ongoing at one point in the federal litigation, the state proceedings had
resolved by the time the court considered dismissing the action, rendering abstention
inappropriate. 979 F.2d 589, 595-96 (7th Cir. 1992) (“The state proceedings terminated
before the district court’s dismissal and before this decision. Therefore, the time for
abstention has expired.”) (citing Allee v. Medrano, 416 U.S. 802, 817 (1974) (finding no
evidence in the record that state court proceedings were pending at the time the district court
issued its decision)). In Greening v. Moran, the Seventh Circuit recognized that although
abstention would have been appropriate earlier in the case, the court’s opportunity to abstain
expired, so to speak, upon conclusion of the underlying state proceedings. 953 F.2d 301, 305
(7th Cir. 1992) (holding that abstention was “no longer appropriate” after the state court
proceedings had concluded); see also Perkins v. Cnty. of Cook, No. 13-cv-2430, 2014 WL
4783015, at *3 (N.D. Ill. Sept. 24, 2014) (“Shortly after Defendants’ motions to dismiss
were fully briefed, the Circuit Court of Cook County issued a final judgment in favor of
Defendants. Thus, the state court proceedings are no longer ‘ongoing’ and, as a result,
Defendants’ arguments concerning Younger abstention do not apply.”). This is precisely the
factual scenario that the court now confronts.
None of those Seventh Circuit cases considered Huffman in this context. However, the
analogous procedural postures of Leaf and Greening persuade the court that abstention in this
case is no longer appropriate. Not only have Loertscher’s state proceedings concluded, as in
Greening and Leaf, but Younger’s larger policy concerns are no longer at issue: the court is not
at risk of interfering in Loertscher’s state proceedings because the proceedings have
concluded. Accordingly, the court will not abstain.
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B. Mootness
The fact that the state proceedings have ceased raises the question of mootness, which
defendants present in a supplemental motion to dismiss. Dkt. 48. A case is moot when the
underlying problem has resolved or concluded and nothing remains for the court to
adjudicate. Murphy v. Hunt, 455 U.S. 478, 481 (1982). Mootness is a constitutional bar on
this court’s jurisdiction: “the parties must continue to have a personal stake in the ultimate
disposition of the lawsuit. . . . There is thus no case or controversy, and a suit becomes moot,
when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest
in the outcome.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (internal citations and
quotation marks omitted). As the party asserting mootness, defendants bear the burden of
persuasion on the issue. Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 491 (7th Cir. 2004).
Defendants contend that this case is now moot because both the CHIPS proceeding
and the maltreatment determination have been dismissed. But Loertscher responds that her
case falls within the “capable of repetition, yet evading review” exception to the mootness
doctrine. 3 As the Supreme Court articulated the doctrine in Weinstein v. Bradford, cases that
are otherwise moot remain live if: “(1) the challenged action was in its duration too short to
be fully litigated prior to its cessation or expiration, and (2) there was a reasonable
expectation that the same complaining party would be subjected to the same action again.”
423 U.S. 147, 149 (1975) (per curiam). The Court refers to these types of disputes as
3
Loertscher does not raise the “voluntary cessation” exception to mootness. See generally
Dkt. 56. “Voluntary cessation,” which does not moot a case, happens when a defendant
ceases a challenged proceeding or activity for purposes of evading judicial review. See Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Nothing in the
record of this case suggests that defendants terminated or withdrew any action against
Loertscher for the purpose of evading this court’s review.
14
“capable of repetition, yet evading review,” but the doctrine applies only in exceptional
situations. Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal citations omitted). The capable
of repetition exception is “kept under tight control to keep it from swallowing the general
prohibition on deciding moot cases.” Aslin v. Fin. Indus. Regulatory Auth., Inc., 704 F.3d 475,
479 (7th Cir. 2013). The mere possibility of reoccurrence is not sufficient to overcome a
mootness challenge. Murphy, 455 U.S. at 482. Otherwise, “virtually any matter of short
duration would be reviewable. Rather, [the Supreme Court has] said that there must be a
‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur
involving the same complaining party.” Id.
All agree that the first element of the capable of repetition exception is met here: the
challenged action was over before it could be fully litigated. But the second element presents
a more difficult question. In general, the capable of repetition exception requires that the
same plaintiff face a reasonable expectation of repeated injury. Weinstein, 423 U.S. at 149;
Brandt v. Bd. of Educ. of Chi., 480 F.3d 460, 464 (7th Cir. 2007) (“[The plaintiffs] could not
invoke the exception, to the normal rule of mootness, for claims that are ‘capable of
repetition, yet evading review,’ . . . because it requires that the claim be repeatable by the
same plaintiff.”). Although it is theoretically possible that Loertscher could once again face a
petition under the authority of Act 292, she has not shown (or even alleged facts that would
suggest) any reasonable expectation that she will face such a petition in the future. And the
number of contingent events that would have to occur, in sequence, makes it simply too
speculative that Loertscher would again be subjected to the injury that she alleges in this case.
Cf. Eichwedel v. Curry, 700 F.3d 275, 281 (7th Cir. 2012) (assertion of a reoccurring injury
was “based on several interdependent contingencies, each of which is entirely speculative in
15
nature. . . . The possibility of such a situation occurring is, to put it mildly, speculative and
therefore far from the ‘reasonable expectation’ required by the prevailing test”).
The court will not assume that Loertscher might repeat the conduct that led to the
CHIPS petition. C.f. Honig v. Doe, 484 U.S. 305, 320 (1988) (“Our cases reveal that, for
purposes of assessing the likelihood that state authorities will reinflict a given injury, we
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.”). True, she may get
pregnant again (despite her thyroid condition). But this would be only the first of several
steps that would have to occur before Loertscher would suffer the same injury. Once
pregnant, a third-party would have to become concerned enough about Loertscher’s past drug
use to report her to state authorities. Those authorities would then have to decide to initiate
a CHIPS proceeding. Finally, a court commissioner or judge would have to find that
jurisdiction exists under Wis. Stat. § 48.133. The capable of repetition doctrine does not
require Loertscher to show that it is highly probable that she would face a CHIPS petition
again, but she has not explained how her chances rise above a mere theoretical possibility.
Loertscher relies on McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015), to argue
that uncertainty surrounding future CHIPS petitions does not preclude applying the capable
of repetition exception. But this case is not binding precedent and, in any event, it is
distinguishable. McCormack involved a woman who became pregnant and then self-terminated
that pregnancy by taking pills that her sister ordered online. 788 F.3d at 1022. State
prosecutors charged the woman with a felony for “submit[ting] to an abortion in a manner
not authorized by statute.” Id. at 1022 n.2. The criminal charges were eventually dismissed
for lack of probable cause, and prosecutors offered the woman transactional immunity for the
16
abortion. Id. at 1022-23. When the woman filed a civil rights suit, the defendant contended
that the offer of immunity mooted her claim. Id. at 1024. The Ninth Circuit affirmed the
district court’s conclusion that the woman’s claims qualified for the capable of repetition
exception (as well as two other exceptions to the mootness doctrine). Id. at 1025-26.
The string of events that would have had to occur for re-injury in McCormack is of a
different character than the contingencies at issue in this case. For example, in McCormack,
the requisite contingencies, i.e., becoming pregnant, having an abortion, and ordering pills
online, are generally the woman’s own actions. Loertscher’s re-injury depends almost entirely
on the actions of others, including, critically, a judge or court commissioner finding that Act
292’s standard for jurisdiction is satisfied. Loertscher cannot show that she has a reasonable
expectation of being subjected to the alleged injury again in the future.
But this does not end the mootness inquiry. Although Loertscher herself—the
“complaining plaintiff”—is not reasonably expected to face re-injury in the future, the court
recognizes that in some contexts, courts have been less strict with the requirement that an
injury must reoccur with respect to the same complaining party. See Majors v. Abell, 317 F.3d
719, 723 (7th Cir. 2003) (“[W]hile canonical statements of the exception to mootness for
cases capable of repetition but evading review require that the dispute giving rise to the case
be capable of repetition by the same plaintiff . . . the courts, perhaps to avoid complicating
lawsuits with incessant interruptions to assure the continued existence of a live controversy,
do not interpret the requirement literally, at least in abortion and election cases.”) (original
emphasis). Particularly in cases concerning pregnancy and election law, courts have
broadened their reoccurrence inquiries and considered whether there is a reasonable
expectation that a member of the public at large will experience the same injury. See, e.g., Roe
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v. Wade, 410 U.S. 113, 125 (1973) (abortion); Rosario v. Rockefeller, 410 U.S. 752, 756 n.5
(1973) (election law). And the Seventh Circuit has indicated that it is willing to extend this
relaxed inquiry to other types of cases as well. See, e.g., Jones v. Ill. Dep’t of Rehab. Servs., 689
F.2d 724, 728 (7th Cir. 1982) (in the education context).
Loertscher invokes these principles and asks the court to consider whether other women,
generally, stand to incur alleged injuries under Act 292. Defendants protest that this case is
not about abortion rights and does not qualify for the “broadened inquiry” because this case
involves more than just pregnancy, which is the Supreme Court’s “classic justification for a
conclusion of nonmootness.” Roe, 410 U.S. at 125.
This is a close question, but Loertscher has the better argument. Roe held that
when, as here, pregnancy is a significant fact in the litigation,
the normal 266-day human gestation period is so short that the
pregnancy will come to term before the usual appellate process is
complete. If that termination makes a case moot, pregnancy
litigation seldom will survive much beyond the trial stage, and
appellate review will be effectively denied. Our law should not
be that rigid.
Id. This case does not directly involve abortion. However, pregnancy is an absolute
precondition for a proceeding under Act 292—had Loertscher not been pregnant, none of the
injuries alleged in this case would have happened. As in Roe, pregnancy is therefore a
“significant fact” in this case, and the capable of repetition inquiry should therefore entail
examining whether other women in Wisconsin reasonably expect to be subjected to an injury
similar to the one that Loertscher suffered.
Loertscher has cited statistics in official reports concerning the extent to which
Wisconsin has used Act 292’s provisions to institute some sort of proceeding against
pregnant women. See Dkt. 56, at 15. Defendants quibble with the statistics, Dkt. 57, at 5
18
n.2, but they do not dispute that Wisconsin officials are actively implementing Act 292’s
provisions. Moreover, given the confidentiality of CHIPS proceedings, it is difficult to
ascertain the full extent to which Wisconsin is applying the challenged statutes.
Loertscher’s own re-injury may be too speculative to overcome a mootness challenge.
But given the scope of Act 292, it is appropriate to consider whether the public at large has a
reasonable expectation of being subjected to the challenged conduct. The court concludes
that, with this broader perspective, Loertscher’s case is capable of repetition yet evading
review. To conclude otherwise would effectively put Act 292 beyond federal review.
C. Plaintiff’s motion to seal
When Loertscher filed this case, she attached as exhibits to her complaint some of the
records from the underlying CHIPS proceeding. Loertscher’s purpose in filing this suit is to
challenge the constitutionality of the law that authorized the proceeding against her, but she
would also like to tell the story of what happened to her under the auspices of Act 292. Her
story provides a vivid example of what she contends is the abuse of the rights of pregnant
women that inevitably flows from enforcement of the law.
Loertscher would like her story to be open to the public and, for the most part, it
already is—Loertscher describes what happened to her in detail in her complaint, and she has
spoken to the media about her experience. But Loertscher also wants the public to see the
actual records of the underlying proceeding. She was constrained to file those records with a
motion to seal them, Dkt. 2, because under Wisconsin law, proceedings under the Children’s
Code are confidential. Wis. Stat. § 48.396(2). Loertscher has opposed her own motion to seal
the records, asking this court to make them public. The court provisionally granted the
19
motion to seal the records and asked for briefing from both sides concerning whether they
should remain under seal. Dkt. 6.
In a second motion to seal, Dkt. 15, Loertscher requests that some of her own medical
records remain sealed, namely, those submitted as Exhibits B and C with her motion for
preliminary injunction. Dkt. 16-2 and Dkt. 16-3. Defendants do not oppose this request. The
court will allow Loertscher to redact from her medical records any private information that is
not pertinent to the CHIPS proceeding. But Exhibits B and C also include pertinent
documentation of Loertscher’s drug tests, her depression, her evaluation by a clinic physician,
and her response to that evaluation. This material should be part of the public record because
this evidence informed the Taylor County court’s decisions to enforce Act 292 against
Loertscher.
Turning now to the main issue, the court considers whether the records of the
proceedings against Loertscher, which have been filed with this court, should remain under
seal in this case. Defendants contend that both Wisconsin law and federal law require that
those records remain sealed and that this court does not have the authority to unseal them.
Defendants also argue that even if this court has the authority to unseal the records, it should
keep them sealed to protect the interests of Loertscher’s child.
Defendants are correct that under Wisconsin law, the record of a CHIPS proceeding—
like most proceedings involving juveniles—is presumptively confidential. There are
circumstances under which some of the records of a CHIPS proceeding may be disclosed to
specified interested parties, such as a parent or guardian, but there is no provision of
Wisconsin law that would allow the record of a CHIPS proceeding to be disclosed in open
20
court so that the public would have access to it. If Wisconsin law governs, then this court
would have to deny Loertscher’s motion to unseal the CHIPS record.
The court is less persuaded by defendants’ argument concerning federal law. The
federal Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. § 5106a, sets
standards for state child protective programs, and those standards include confidentiality
provisions that limit the disclosure of juvenile records. 42 U.S.C. § 5106a(b)(2). Unlike
Wisconsin’s Children’s Code after Act 292, CAPTA does not apply to proceedings involving
a fetus. Defendants have not pointed to any provision in CAPTA that would prohibit
disclosure of the records of a CHIPS proceeding involving an expectant mother.
Loertscher contends that the confidentiality provisions of Wisconsin’s Children’s
Code do not bind this court, as the court has the inherent authority to seal or unseal its own
filings, guided by the principles expressed in Matter of Continental Illinois Securities Litigation,
732 F.2d 1302, 1314 (7th Cir. 1984). Loertscher cites a well-reasoned district court decision
holding that confidentiality provisions of state child protective laws do not bind a federal
court. Tower v. Leslie-Brown, 167 F. Supp. 2d 399, 404 (D. Me. 2001). The Tower court,
relying on Nixon v. Warner Communications, 435 U.S. 589, 602 (1978), concluded that it was
obligated to identify and balance the interests at stake when deciding whether to seal the
records of a child protective proceeding. First Circuit law concerning the presumption of
access to federal courts is consistent with Seventh Circuit law. Compare Siedle v. Putnam Invs.,
Inc., 147 F.3d 7, 9 (1st Cir. 1998), with Continental, 732 F.2d 1302. The Tower approach is
correct: this court is not automatically obligated to seal the records of Loertscher’s CHIPS
proceeding simply because Wisconsin law provides that such records are confidential.
21
The court begins its balancing analysis with the strong presumption that the records
of this court are open to the public, as it must under Continental. But the confidentiality
provisions of Wisconsin’s Children’s Code constitute a strong expression of Wisconsin’s
interest in the confidentiality of CHIPS proceedings. To decide whether Wisconsin’s general
interest in confidentiality overcomes the presumption of access, the court will consider the
interests at stake in this specific case.
Defendants make a good case that a child involved in a CHIPS proceeding generally
has a strong interest in preventing the disclosure of facts concerning the child’s abuse or
neglect. But that interest is diminished in this case for two reasons. First, Loertscher’s child
did not suffer the type of abuse or neglect that would typically be severely humiliating to a
child if disclosed. Although Loertscher’s child would probably not take pride in the fact that
his mother used drugs while pregnant, this disclosure is simply not on par with allegations of,
for example, sexual abuse or severe neglect. The court will not go so far as Loertscher, who
argues that her child has no interest in the confidentiality of the CHIPS proceeding because
he was not, at the time, an actual child. But the future interests of Loertscher’s child in
maintaining the confidentiality of the CHIPS proceeding involving his mother are highly
attenuated.
Second, and more importantly, keeping the records under seal in this court will not
prevent Loertscher from disclosing the details of the CHIPS proceeding. Wisconsin law does
not prevent the parents in a CHIPS proceeding from talking about what happened to them,
although in most cases they probably would not do so. But this is an unusual CHIPS case in
that Loertscher has willingly disclosed the details of her experience in her complaint and to
22
the media. In light of the fact that Loertscher’s story is already out, keeping the records of the
CHIPS proceeding sealed will not protect Loertscher’s child.
Keeping the records sealed will, however, keep the public from seeing the details of
how Taylor County officials pressed their case against Loertscher. Defendants argue that
these details are unnecessary because Loertscher’s challenge to Act 292 is a facial challenge
that does not depend on her individual circumstances. This will be a fair argument to make
on the merits of Loertscher’s case. But in the context of Loertscher’s motion to unseal the
records of the CHIPS proceeding, it is beside the point. Wisconsin has no legitimate interest
in shielding the work of Taylor County officials from public scrutiny. To the contrary, the
public has a compelling interest in seeing the records of the CHIPS proceeding involving
Loertscher. Public disclosure of those records will not impair any interest that Loertscher’s
child might have in his privacy because the information critical to him has already been
disclosed. The court will grant Loertscher’s motion and unseal the records of the CHIPS
proceeding.
D. Remaining issues in defendants’ motions to dismiss
Because neither abstention nor mootness will prevent this case from going forward,
the court must address the remaining aspects of defendants’ motions to dismiss.
1. Failure to state a claim under 42 U.S.C. § 1983
Defendants contend that Loertscher fails to state a claim under § 1983 because she
has adequate state law remedies. Dkt. 41, at 12-13. 4 By “adequate state law remedies,”
defendants refer to Loertscher’s opportunity to challenge the constitutionality of Act 292 in
4
Defendants appear to abandon this argument because they do not address it in their reply.
See generally Dkt. 57.
23
Wisconsin state court. But this implies an exhaustion requirement that does not exist.
Armstrong v. Daily, 786 F.3d 529, 542 (7th Cir. 2015) (“The federal remedy under § 1983 is
supplementary to the state remedy, and the latter need not be first sought and refused before
the federal one is invoked.”) (internal citations and quotation marks omitted). To bring a
claim under § 1983, a plaintiff need not demonstrate that federal court is her only avenue for
relief.
The requirement that Loertscher have “no adequate remedy at law” to pursue her
claims for equitable relief simply refers to the fact that legal remedies must be unable to
sufficiently address Loertscher’s alleged harm. Loertscher has plausibly alleged that monetary
damages would be insufficient to redress her injury; indeed, she requests only injunctive
relief. At any rate, as Loertscher notes, she also requests declaratory judgment, which is not
subject to the requirement that there be no adequate remedy at law. Thus, the court
concludes that Loertscher’s complaint states a claim upon which relief may be granted under
§ 1983.
2. Proper parties
Defendants contend that Attorney General Schimel is not an appropriate defendant
in this case because he lacks the specific authority to enforce or enjoin Act 292. 5 However, a
recent § 1983 case challenging the constitutionality of a Wisconsin abortion-related statute
and seeking to enjoin its enforcement named then-Attorney General J.B. Van Hollen as a
defendant “involved in enforcing the statute.” See Planned Parenthood of Wis., Inc. v. Van
5
Defendants frame this issue as one of standing, Dkt. 41, at 13, but they do not argue that
Loertscher lacks an injury in fact, a causal connection between her injury and enforcement of
the challenged statute, or redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). They merely argue that the Attorney General is an inappropriate defendant.
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Hollen, 738 F.3d 786, 788 (7th Cir. 2013) (affirming the district court’s preliminary
injunction of the statute), cert. denied, 134 S. Ct. 2841 (2014). That case is very similar to
this one. Like Attorney General Van Hollen once was, Attorney General Schimel is now
Wisconsin’s top law enforcement official. He has the power to enforce a state-wide
injunction, which is exactly the relief that Loertscher seeks. He is therefore a proper
defendant in this case.
3. Failure to provide a short and plain statement of a claim for relief under
Federal Rule of Civil Procedure 8
Finally, defendants contend that Loertscher fails to plead sufficient facts under Rule 8
to give fair notice of her First and Fourth Amendment claims. Loertscher is not required to
plead her legal theories. Hefferman v. Bass, 467 F.3d 596, 599 (7th Cir. 2006). Nevertheless,
defendants contend that Loertscher fails to tie specific facts from her narrative to her
allegations regarding state-coerced speech and an unreasonable search and seizure. Dkt. 41,
at 17. Although it is true that Loertscher does not explicitly tie specific facts to each claim,
she has given defendants fair notice of her allegations and their factual bases and, in her
responsive brief, she identifies paragraphs that relate to her First and Fourth Amendment
claims. The court concludes that Loertscher has plead sufficient facts under Rule 8, and
dismissal is not appropriate on these grounds.
E. Conclusion
Because abstention is no longer appropriate and because Loertscher’s case is capable
of repetition yet evading review, Loertscher’s claims are not moot and will go forward.
Loertscher’s motion to unseal the majority of the records from the CHIPS proceeding,
Dkt. 15, will be granted. Loertscher has moved, without opposition, to withdraw her motion
25
for preliminary injunction. Dkt. 54. That motion will be granted, and thus the motion for
preliminary injunction, Dkt. 13, will be stricken. Loertscher’s additional motions to be heard,
Dkt. 47 and Dkt. 59, will be denied as unnecessary. The court will set a schedule to hear the
merits of her constitutional challenge in a subsequent order.
ORDER
IT IS ORDERED that:
1. Defendants Brad Schimel and Eloise Anderson’s motions to dismiss, Dkt. 40 and
Dkt. 48, are DENIED.
2. Plaintiff Tamara Loertscher’s second motion to seal, Dkt. 15, is GRANTED.
3. Plaintiff’s motion to withdraw her motion for preliminary injunction, Dkt. 54, is
GRANTED.
4. Plaintiff’s withdrawn motion for preliminary injunction, Dkt. 13, is STRICKEN.
5. Plaintiff’s motion for a scheduling conference, Dkt. 47, is DENIED as moot.
6. Plaintiff’s motion for oral argument or sur-reply, Dkt. 59, is DENIED as moot.
Entered September 30, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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