Torres, Chelsea et al v. Rhoades, Kitty

Filing 65

OPINION and ORDER granting in part 48 Second Motion to Certify Class under Rule 23. Camilla Bronwen Taylor, Christopher R. Clark and Kyle Anthony Palazzolo of Lambda Legal Defense and Education Fund, Inc. and Tamara Beth Packard of Cullen Weston P ines & Bach LLP are APPOINTED as class counsel. The parties shall adhere to the following schedule for the remainder of the case: Dispositive motions: No later than June 6, 2016. Discovery cutoff: September 30, 2016. Final pretrial submissions: October 31, 2016. Trial: November 14, 2016. Signed by District Judge Barbara B. Crabb on 4/4/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CHELSEA TORRES and JESSAMY
TORRES, individually and as next friends and
parents of A.T., a minor child, on behalf of
themselves and all others similarly situated,
OPINION and ORDER
Plaintiffs,
15-cv-288-bbc
v.
KITTY RHOADES, in her official capacity as
Secretary of the State of Wisconsin
Department of Health Services,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiffs Chelsea Torres, Jessamy Torres and A.T. brought this proposed class action
to challenge the constitutionality of several Wisconsin statutory provisions relating to
parental rights on the ground that the provisions discriminate against same-sex married
couples and their children. Now before the court is plaintiffs’ second motion for class
certification. Dkt. #48. I denied plaintiffs’ first motion for class certification without
prejudice on the ground that the named plaintiffs were not adequate representatives to
obtain all of the relief they were seeking and gave plaintiffs an opportunity to file an
amended motion that included additional class representatives or narrowed the scope of their
requested relief. Dkt. #48.
In their new motion, plaintiffs have not sought to add more class representatives, but

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they have narrowed the scope of their proposed class somewhat. For the reasons explained
below, I conclude that plaintiffs’ proposed class is still too broad because it includes couples
who conceived their children under different circumstances. Accordingly, I am granting
plaintiffs’ motion in part, but I am limiting the class to families like plaintiffs who conceived
a child through artificial insemination but did not comply with one or more requirements
in Wis. Stat. § 891.40, the statute that governs the situation under which a married couple
who conceived a child through artificial insemination may list both spouses as parents on the
birth certificate.

OPINION
In their first motion for class certification, plaintiffs sought to represent the following
class:
All same-sex couples who legally married in Wisconsin or in another
jurisdiction, at least one member of whom gave birth to a child or children in
Wisconsin on or after June 6, 2014, and who request birth certificates for such
children listing both spouses as parents, regardless of whether they have
already received birth certificates listing only one spouse as a parent ("Plaintiff
Parents"); and all children born to such couples on or after June 6, 2014
("Plaintiff Children").
Am. Cpt. ¶ 16, dkt. #11.

Plaintiffs sought an injunction requiring defendant to treat a

same-sex spouse of a birth mother the same way that a husband is treated under Wis. Stat.
§ 69.14(1)(e)1, under which “the name of the husband of the mother shall be entered on the
birth certificate as the legal father of the registrant.”
Defendant objected to plaintiffs’ motion for class certification on the ground that the

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proposed class included three disparate groups of people. The first group includes couples
who conceived their child through artificial insemination and complied with Wis. Stat. §
891.40, which requires that (1) the artificial insemination be performed “under the
supervision of a licensed physician”; (2) the spouse not being inseminated give “consent
[that is] in writing and signed by” both spouses; and (3) the physician supervising the
procedure filed the written consent with the Department of Health Services. The second
group includes couples who conceived the child through artificial insemination but did not
comply with § 891.40. The third group includes couples who conceived the child through
heterosexual intercourse.
Defendant argued that different class representatives were needed for each of those
groups because the reasons for granting or denying a two-parent birth certificate were
different for each group. With respect to the first group (same-sex couples who complied
with the artificial insemination statute), defendant conceded that heterosexual and lesbian
couples are similarly situated because, in either case, the biological father does not have any
parental rights.

Wis. Stat. § 891.40(2) ("The donor of semen provided to a licensed

physician for use in artificial insemination of a woman other than the donor's wife is not the
natural father of a child conceived, bears no liability for the support of the child and has no
parental rights with regard to the child."). For this reason, defendant agreed that members
of the first group are entitled to relief now that same-sex marriage is legal in Wisconsin.
With respect to the second group (same-sex couples who conceived through artificial
insemination but did not comply with § 891.40), defendant’s position was that, again,

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heterosexual couples and lesbian couples are similarly situated and, for that reason, lesbian
couples are not entitled to include the nonbirth parent on the birth certificate because
fathers are not included on the birth certificate in that circumstance.

Wis. Stat. §

69.14(1)(g) (“If the registrant is born as a result of artificial insemination which does not
satisfy the requirements of s. 891.40, the information about the father of the registrant shall
be omitted from the registrant's birth certificate.”).
With respect to the third group (same-sex couples who conceived through
heterosexual intercourse), defendant argued that the nonbirth parent is not entitled to be
placed on the birth certificate without going through adoption proceedings because the "birth
certificate statutes cannot be casually applied to same-sex couples as if the rights of biological
fathers did not exist." Dft.'s Br., dkt. #36, at 12. I understood defendant's argument to be
that the same-sex spouse of a birth mother is not similarly situated to a husband because §
69.14(1)(e)1 is premised on a presumption that the husband is the biological father of the
child, but it is known that the same-sex spouse of the birth mother is not a biological parent.
In an order dated December 21, 2015, I agreed with defendant that the differences
among the groups justified the creation of three subclasses, each of which required its own
class representative. It appeared from the parties’ submissions that it was undisputed that
the named plaintiffs fell within the first group of individuals who used artificial insemination
and complied with Wis. Stat. § 891.40. As a result, I gave plaintiffs the choice of finding
additional class representatives for the other two groups or limiting the class to individuals
who conceived a child through artificial insemination and complied with § 891.40.

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In their renewed motion for class certification, the named plaintiffs say that they do
not belong in the group of individuals who complied with § 891.40 because plaintiff Jessamy
Torres (the nonbirth parent of A.T.) never gave written consent for the insemination of
plaintiff Chelsea Torres. As a result, plaintiffs no longer seek to represent the individuals
who complied with § 891.40. Instead, they seek to represent same-sex couples who did not
comply with § 891.40, regardless whether the couple’s child was conceived through assisted
reproductive technology or heterosexual intercourse. In particular, plaintiffs propose the
following class definition:
All members of same-sex couples who, while legally married in Wisconsin or
in another jurisdiction, at least one member of the couple gave birth to a child
or children in Wisconsin on or after June 6, 2014, providing that the
pregnancy or pregnancies resulting in the birth of such child or children
was/were achieved in a manner inconsistent with one or more of the
requirements of Wis. Stat. § 891.40 for “artificial insemination,” and who
request birth certificates for such children listing both spouses as parents,
regardless of whether they have already received birth certificates listing only
one spouse as a parent (“Plaintiff Parents”); and all children born to such
couples on or after June 6, 2014 (“Plaintiff Children”).
(June 6, 2014 is the date that this court declared that the Wisconsin laws banning same-sex
marriage were unconstitutional. Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014).)
Having reviewed the parties’ briefs, I adhere to my conclusion that subclasses are
needed because the named plaintiffs are not in the same situation as the entire class. Again,
with respect to class members such as plaintiffs who conceived through artificial
insemination but did not comply with the requirements of Wis. Stat. § 891.40, defendant’s
position is that same-sex couples are not entitled to a birth certificate naming both spouses
as parents because different-sex couples in that situation are not entitled to list both spouses

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either. With respect to same-sex couples who conceived their child through heterosexual
intercourse, defendant’s argument is that same-sex spouses are not entitled to a birth
certificate naming both spouses because the state must consider the interests of the biological
father and, unlike with different-sex couples, it makes no sense to “presume” that the spouse
not giving birth is a biological parent.
In response, plaintiffs say that there is no real difference between the two subclasses
because the state does not enforce Wis. Stat. § 891.40 against different-sex couples.
However, that is an argument about the merits, not class certification. Fed. Rule Civ. P. 23,
Advisory Committee's 2003 Note on subd. (c)(1) ("[A]n evaluation of the probable outcome
on the merits is not properly part of the certification decision."). See also Amgen Inc. v.
Connecticut Retirement Plans and Trust Funds, 133 S.Ct. 1184, 1194-95 (2013) (“Rule 23
grants courts no license to engage in free-ranging merits inquiries at the certification stage.”);
Bell v. PNC Bank, National Association, 800 F.3d 360, 376 (7th Cir. 2015) (“[T]he default
rule is that a court may not resolve merits questions at the class certification stage.”).
Defendant is not conceding at this stage of the case that § 891.40 is not enforced against
different-sex couples. Dft.’s Ans. ¶ 30, dkt. #58 (denying that defendant “issues two-parent
birth certificates to children born to married different-sex couples regardless of whether those
children were born as a result of artificial insemination that did not satisfy the requirements
of Wis. Stat. § 891.40(1), or as the result of nonmarital intercourse”).
Further, even if plaintiffs’ allegation is true, it would not mean that all the class
members have the same claim. Rather, one set of class members would have a claim that

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defendant is applying Wis. Stat. § 69.14(1)(g) (relating to children conceived through
artificial insemination) in a discriminatory fashion. Another set of class members would
have a claim that defendant is applying Wis. Stat. § 69.14(1)(e)1 (relating to children not
conceived through artificial insemination) in a discriminatory fashion. In addition, the
defenses to the two claims are not the same. With respect to § 69.14(1)(g), defendant
admits that same-sex and different-sex couples are similarly situated, so her only potential
defense is to deny that she is engaging in discriminatory enforcement. With respect to §
69.14(1)(e)1, defendant admits that she is discriminating against same-sex couples, but she
says the discrimination is justified because different-sex couples and same-sex couples are not
similarly situated in this context. These are obviously different claims and defenses.
Plaintiffs say that any differences among their claims are inconsequential because all
of the potential class members are entitled to relief under the Supreme Court’s decision in
Obergefell v. Hodges, 135 S. Ct. 2584 (2015), but, again, that is an issue related to the
merits, not class certification. As I stated in the December 21 order, it is well established
that a named plaintiff is not an adequate representative for a class if she is not raising the
same claims as the other class members or if her claim is subject to a different defense. CE
Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 724-25 (7th Cir. 2011); 5
Moore’s Federal Practice § 23.25[2][b][iv] (3d ed. 2007).

Plaintiffs cite no contrary

authority in their renewed motion.
Accordingly, I am granting plaintiffs’ motion for class certification, but only as to
those who are in plaintiffs’ situation. In other words, I will certify a class as to the same-sex

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couples who conceived a child through artificial insemination but did not comply with all
the requirements in Wis. Stat. § 891.40.
A few loose ends need to be tied up. First, plaintiffs say that the three original
subclasses proposed by defendant exclude couples who conceived a child through in vitro
fertilization because in vitro fertilization is not a kind of artificial insemination and therefore
is not subject to the requirements of Wis. Stat. § 891.40. Plts.’ Br., dkt. #51, at 7 n.4 (“[A]
a woman who uses IVF is not ‘inseminated artificially with semen,’ and therefore that
pregnancy does not fall within the purview of Wis. Stat. § 891.40.”). Defendant does not
respond to this argument, so I construe her silence to mean that she agrees with plaintiffs.
As a result, it appears that families who used in vitro fertilization are excluded from the class
as well. This is because what sets plaintiffs apart from other potential class members is not
just that they used some form of assisted reproductive technology but that Wisconsin has
a statutory scheme in place for determining how birth certificates should be prepared when
a child is conceived through artificial insemination. If in vitro fertilization does not qualify
as artificial insemination within the meaning of the Wisconsin statutes, then that means in
vitro fertilization is treated the same as sexual intercourse under Wisconsin law for the
purpose of preparing a birth certificate.

If either side believes that § 891.40 can be

construed as including all forms of assisted reproductive technology, they should develop
that argument in their summary judgment submissions.
Second, defendant says that plaintiffs are not adequate representatives because they
have failed to make an attempt to meet the requirements of § 891.40. It is undisputed that

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plaintiffs’ artificial insemination was supervised by a physician but that Jessamy Torres (the
nonbirth parent) never consented in writing to the procedure. Defendant reads § 891.40
and § 69.14 as allowing a spouse to provide written consent even years after conception and
criticizes plaintiffs for not preparing a consent now and asking the physician who supervised
the insemination to file the consent.
Defendant cites no authority for her interpretation of the statutes.

Because §

69.14(1)(g) relates to the preparation of the birth certificate at the time of the birth, it
makes sense that a couple who conceived through artificial insemination would need to
comply with § 891.40 by that time in order to receive a birth certificate under § 69.14(1)(g).
In any event, even if defendant’s interpretation is correct, I see no reason to preclude
plaintiffs from serving as class representatives simply because there might be a way that they
could comply with the requirements of the statute now.
A plaintiff cannot sue over manufactured or self-inflicted injuries, Clapper v. Amnesty
International USA, 133 S. Ct. 1138, 1151 (2013); Parvati Corp. v. City of Oak Forest,
Illinois, 630 F.3d 512, 517-18 (7th Cir. 2010), but that obviously is not what happened in
this case. When Chelsea Torres gave birth, the state was not issuing two-parent birth
certificates under § 69.14(1)(g) to any same-sex couples. Rather, it was only after plaintiffs
filed this case that defendant suggested that plaintiffs could receive a birth certificate with
both spouses listed as parents. Whelan Aff. ¶ 6, dkt. #37. In fact, defendant offered to give
plaintiffs an amended birth certificate even before she knew whether plaintiffs had complied
with § 891.40, but defendant has not suggested that she made such an offer to any other

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same-sex couple. Defendant cannot moot plaintiffs’ case by trying to “pick off” the named
plaintiffs with an individual offer. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 670
(2016). Further, defendant has not identified any reason to believe that the plaintiffs’
rejection of her offer makes them inadequate representatives. If anything, it shows their
resolve to obtain relief for the class as a whole.
Third, Fed. R. Civ. P. 23(g)(1) requires the court to appoint class counsel in any order
granting a motion for class certification. In their motion, plaintiffs discuss the knowledge
and experience of the Lambda Legal Defense and Education Fund, Inc. as well as the law
firm of Cullen Weston Pines & Bach LLP. I agree with plaintiffs that both entities are more
than capable of serving as class counsel. However, plaintiffs say nothing in their motion
about Lovell-Lepak Law Office, which also appears on plaintiffs’ briefs. In the absence of
any discussion about Lovell-Lepak, I will assume that plaintiffs are not seeking to include
that firm as class counsel.
Fourth, the parties agree that class notice is not required in this case. Randall v.
Rolls-Royce Corp., 637 F.3d 818, 820 (7th Cir. 2011) (in case seeking injunctive and
declaratory relief only, “notice to unnamed class members is optional”). I agree as well.
Now that the class will be limited to those families in plaintiffs’ situation, “the interests of
the class members are cohesive and homogeneous such that the case will not depend on
adjudication of facts particular to any subset of the class nor require a remedy that
differentiates materially among class members.” Lemon v. International Union of Operating
Engineers, Local No. 139, AFL-CIO, 216 F.3d 577, 580 (7th Cir. 2000). This lessens the

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need “to enable class members to challenge the class representatives or otherwise intervene
in the suit.” Johnson v. Meriter Health Services Employee Retirement Plan, 702 F.3d 364,
370 (7th Cir. 2012). Accordingly, I will allow the class to proceed without notice.
Finally, in the December 21, 2015 order, I noted that plaintiffs had included in their
request for relief a declaration that Wis. Stat. § 891.41 is unconstitutional. That statute
creates a presumption that the husband of the birth mother is the “natural father” of the
child. However, plaintiffs had not explained how they were being harmed by § 891.41. The
only issue plaintiffs raised in their complaint related to birth certificates, which are governed
by Wis. Stat. § 69.14. This raised the question whether plaintiffs had standing to challenge
§ 891.41.
In their brief in support of class certification, plaintiffs argue that § 891.41 and §
69.14 are intertwined because § 69.14 “merely documents the legal parentage established
by Wis. Stat. § 891.41.” Dkt. #51 at 11-12. In other words, plaintiffs seem to believe that
they cannot obtain a birth certificate with both spouses’ names on it unless they receive the
presumption in § 891.41. The problem with this argument is that plaintiffs cite no authority
to support it. Section 69.14 makes no reference to § 891.41. Further, as I noted in the
December 21 order, the case law applying § 891.41 seems to involve issues that arise well
after the creation of the birth certificate. E.g., Hendrick v. Hendrick, 2009 WI App 33, ¶¶
6-7, 316 Wis. 2d 479, 485, 765 N.W.2d 865, 868 (considering effect of spousal
presumption of parentage on child support claim); Matter of Estate of Schneider, 150 Wis.
2d 286, 441 N.W.2d 335 (Ct. App. 1989) (relying on spousal presumption of parentage in

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§ 891.41 to reject inheritance claim of alleged child). See also In re Paternity of T.J.D.C.,
2008 WI App 60, ¶ 10, 310 Wis. 2d 786, 793, 750 N.W.2d 957, 961 (“The presumption
of paternity does not put [a man’s] name on [a child’s] birth certificate.”).
Because neither side suggests that § 891.41 would affect the named plaintiffs any
differently from anyone else in the class, it is not an issue relevant to class certification, so
I need not resolve it now. However, if plaintiffs prevail in this case, they will not be entitled
to a declaration that § 891.41 is unconstitutional unless they show that they cannot obtain
a two-parent birth certificate without that relief. To the extent that § 891.41 may be
relevant to other issues that may arise later, plaintiffs may have forfeited those issues by
failing to include them in their amended complaint.

ORDER
IT IS ORDERED that
1. The motion for class certification filed by plaintiffs Chelsea Torres, Jessamy Torres
and A.T., dkt. #48, is GRANTED IN PART. The following class is certified:
Members of same-sex couples and their children who meet all of the following
criteria: (1) at least one member of the couple gave birth to one or more
children in Wisconsin on or after June 6, 2014; (2) the couple was legally
married at the time of the birth; (3) the couple conceived that child or those
children using artificial insemination within the meaning of Wis. Stat. §
891.40; and (4) the couple did not comply with one or more requirements in
Wis. Stat. § 891.40.
2. Camilla Bronwen Taylor, Christopher R. Clark and Kyle Anthony Palazzolo of
Lambda Legal Defense and Education Fund, Inc. and Tamara Beth Packard of Cullen

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Weston Pines & Bach LLP are APPOINTED as class counsel.
3. The parties shall adhere to the following schedule for the remainder of the case:
Dispositive motions: No later than June 6, 2016.
Discovery cutoff:

September 30, 2016

Final pretrial submissions: October 31, 2016
Trial: November 14, 2016
Entered this 4th day of April, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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