Allen v. LikinsAllen v. Likins
Michael R. Saeger, Sp. Asst. Atty. Gen., St. Paul, Minn., for appellees.
HENLEY, Circuit Judge.
The plaintiff, a former inmate of the Minnesota Correctional Institute for Women, seeks to maintain a class action challenging the constitutionality of a Minnesota statute under which her children were found to be “dependent” on the State of Minnesota and thus subject to the custody of the Blue Earth County Welfare Board.1 Plaintiff asserts that a finding of dependency within the meaning of the statute constitutes a deprivation of a parent‘s Ninth and Fourteenth Amendment rights when that determination is basеd solely on the fact of the parent‘s incarceration and when less stringent alternatives are available to the State. The issue presented on appeal is whether a “case” or “controversy” still exists within the meaning of
In 1970 plaintiff was convicted of aggravаted assault and placed on probation for five years. Her probation was revoked on July 28, 1973 and she was incarcerated at the Minnesota Correctional Institute for Women оn August 2, 1973. Pursuant to
On February 7, 1974 plaintiff filed a motion for а preliminary injunction and a motion for class action certification pursuant to
It is axiomatic that a “case” or “controversy” must exist at all stаges of the litigation and not merely at the time the complaint is filed. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Whether a “controversy” exists within the meaning of the Declaratory Judgment Act depends on
. . . whether the faсts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment.
Likewise, the federal courts’ impotence to review moot cases derives from the Art. III requirement that judicial power shall extend only to “cases” and “controversies.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). To be cognizable in a federal court, any action
. . . must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from аn opinion advising what the law would be upon a hypothetical state of facts.
Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937).
Indeed, the “controversy” requirement of the Declaratory Judgment Act аnd Art. III appear to be synonymous. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Steffel v. Thompson, 415 U.S. 452, 458-60, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
On appeal, plaintiff argues that the threat of again losing custody of her children is of “sufficient immediаcy and reality” to warrant a finding that a live issue still exists between the parties on her request for a declaratory judgment. We conclude, however, that the district court correctly found thаt any threat of a future loss of custody is a remote and speculative possibility. Here, four contingencies must occur before plaintiff will lose custody of her children. First, she must violate the conditions of her parole; second, her parole must be revoked; third, the welfare board must initiate dependency proceedings; and, fourth, the county juvenile court must make а finding of dependency. Three of these contingencies involve the exercise of governmental discretion, and one is under the exclusive control of plaintiff. In the circumstancеs, we cannot say that the threat of again losing custody of her children is a real and immediate danger.
Nevertheless, plaintiff argues that her case is to be excepted from the mootness doctrine. She claims that the “collateral consequences” flowing from the past judicial finding of dependency constitutes a substantial injury which serves to keep this case аlive. Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). These collateral consequences are said to be: (1) that the past record of dependency may be used in future dependency proсeedings against plaintiff; and (2) that plaintiff and her children are undergoing emotional and psychological stresses as a result of their past separation. Whether
While mere voluntary cessation of allegedly illegal conduct does not moot a case, United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), we believe this rule to be inapplicable here. The defendants cannot resume their allegedly illegal conduct until plaintiff voluntarily commits an act justifying her parole revocation. Unlike Grant, resumption of the challenged conduct does not depend solely on the defendants’ capricious actions by which they are “free to return to (their) old ways.” Id. at 632, 73 S.Ct. at 897.
We recognize that a class action may continue to bе a “case” or “controversy” under Art. III and the Declaratory Judgment Act if the claim of the named plaintiff becomes moot after class action certification. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Here, of course, the named plaintiff‘s claim became moot before the district court had certified the case as a class action pursuant to
As stated, plaintiff filed her separate motion for class action certification on February 7, 1974. The district court heard the motion on March 4, 1974, but before the court issued a ruling the plaintiff regained custody of her children on April 3, 1974. Since plaintiff‘s individual case became moot on April 3 her attorney cannot claim any prejudice to the purported class due to the district court‘s failure to rule after that date. In the circumstances, we do not find that the court failed to rule on plaintiff‘s motion “as soon as practicable,” and so dismissаl of the entire action was proper. Commissioners of the City of Indianapolis v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975).
Were we to hold that the district court abused its discretion in failing to certify the case as a class action before April 3, 1974, the case still would be moot since the issues involved here are not “capable of repetition, yet evading review.” Sosna, supra, 419 U.S. at 401, 95 S.Ct. at 558; Jacobs, supra, 420 U.S. at 129, 95 S.Ct. at 850.
Affirmed.
Notes
“Dependent child” means a child:
(a) Who is without a parent, guardian, or other custodian . . . .
If the court finds that the child is neglected or dependent, it shall enter an order making any of the following dispositions of the case:
(a) Place the child under the prоtective supervision of the county welfare board or child placing agency in his own home under conditions prescribed by the court directed to the correction of the neglect or dependency of the child;
(b) Transfer legal custody to one of the following:
(1) a child placing agency;
(2) the county welfare board . . . .