Hagerstown Reproductive Health Services v. Fritz
450 A.2d 906
Md.
1982
Check Treatment

*1 HEALTH HAGERSTOWN REPRODUCTIVE ANN FRITZ and BONNY SERVICES FRITZ v. CHRIS ALLEN Term, 1982.] September [No. September 1982.

Decided submitted to cause was Cole, Smith, Eldridge, Dudley Digges, Associate JJ., J. and Davisdon and Couch, (retired), specially assigned. Judge Appeals of the J., and filed a dissents Order of Court. Eldridge, dissenting opinion page 348 infra.

ORDER dismiss, Upon appellants’ of the motion consideration moot, for the on is now ground cause in the Court writ this heretofore issued to of certiorari cause set Special Appeals, hearing September for cancelled, day it 21st having verbally been ordered is this September 1982,

ORDERED, by Appeals Maryland, major- Court of be, ity concurring, that the motion is denied without as prejudice rights parties argue to the mootness indicated; and it is further hereinafter argued briefed ORDERED that cause be time, ques- to any normal course at which in addition other tions they may relevant, specifically deem are following questions: and argue directed to brief 1) Ann Fritz enjoining Bonny Did the trial court err from the issues performed including subsumed therein:

a) Whether a husband has the under either the Constitution of the United States or the Constitution of the Maryland State of or otherwise law to challenge his wife’s *2 decision to have an abortion.

b) the child Maryland Whether abuse laws of apply to being a fetus aborted.

2) single Maryland appellate Whether a judge is vested authority with the and power stay to the order of a trial court.

3) Whether this cause is moot.

Eldridge, J., dissenting: appellants in this case have manifested an intent to this, appeal.

dismiss their I light require of would not appeal pursued. desires, the the Apart appellants’ from clearly Moreover, the case is moot. it does not fall within the very limited category of moot cases which ought to be decided of a urgency establishing because of the rule in a important matter of I public stay concern. would vacate the order and remand the case to the Court Special Appeals of with that it injunction directions vacate the of the Circuit Washington County Court for and remand the case circuit court with directions that the cause be dismissed as moot.

The sole in this case concerned the of the Fritz, appellant, Bonny Ann who was within first «the pregnancy, light trimester of to have an abortion in of the husband, objection by Chris appellee her County Washington Allen Fritz. The Circuit Court for abortion, Ann and enjoined Bonny Fritz from an Fritz, Bonny Ann along Hagerstown with the Reproductive Services, appeal Special Health took an to the Court of motion, single judge of the Appeals. Upon appellants’ 17, 1982, "stayed” Special Appeals September Court of on following injunction issued the circuit court. On the day, September granted appellee’s this Court stayed the order for a writ of certiorari thereby leaving the Special Appeals, of the Court judge injunction effect. circuit court Bonny 19, 1982, appellants,

Next, September on Services, Health filed Reproductive Hagerstown Fritz "Motion To Dismiss.” entitled pleading this Court a 18, 1982, September that on the motion recites body of Fritz, entered having no notice of the order Bonny Ann to the day, acting pursuant this Court on that Special Court of judge September 17th order out appellants pointed abortion. The Appeals, obtained an The appellants moot. that the abortion rendered cause dismissing an the Writ prayed "[t'lhat order be entered Certiorari.” Court, in motion to ago overruling appellee’s an

Long "The appellant’s appeal, strike out an dismissal of stated: *3 any appeal.” time his Diffenderffer appellant may dismiss (1825). out, points "[t]he v. H. & 4 As Poe Hughes, 7 J. Poe, Pleading 2 appellant may always appeal.” dismiss his (5th 1925). Tiffany § and Practice 831 ed. H. case, technically not present appellants did the the Nevertheless, dismissing their appeal.

enter an order their Dismiss,” To which that Certiorari prays "Motion the Writ dismissed, that obviously an intent the demonstrates are appellate proceedings appellants be dismissed. As abso- lutely appeal they to a if so desire entitled dismissal of their desire, not, I appellants and as have indicated such would filed in upon wording based the technical document Court, consuming this time put expensive them to the issues set forth briefing arguing burden of the various majority’s order. (2) desirous, for academic if were appellants Even on the opinion reasons, an express this Court set case, Court should issues in this I do not believe clearly moot. The is for case briefing argument. case 350 only controversy the appellant

The concerned Bonny have an Fritz to abortion. Mrs. Fritz has now had justiciable longer the abortion. There no exists an actual controversy Schultz, Harford v. parties. County between (1977). 280 Md. 428 now sepa- A.2d are rated, and there no indication that either is has an "interest way one or the other in the outcome of proceeding.” this Schultz, County supra, Harford v. 280 Md. at 85. recently Attorney As reiterated the Court in Gen. v. A. 324, 327, (1979), Bus, 286 Md. A. Co. School A.2d 749 "A court, if, is moot at the time is before question there longer existing parties, is no an between the so any remedy there longer that is no effective which certainly can The instant case to meet provide.” appears test. mootness exception general

It is true that there does exist an not principle appellate that courts do decide moot issues. however, extremely exception, This limited. mere presence of or important legal issues constitutional issues exception. See, e.g., not within bring does case Chase Chase, 472, 473, (1980); Attorney v. 287 Md. 486-490 Gen. ("we A. recognize v. A. Co. School 286 Md. at 328 that this important public case involves matter of concern ....”); Ficker, 500, 506-507, State v. 266 Md. A.2d 231 (1972).

The narrow exception to the appellate rule court will not questions decide moot was Judge re-stated Chief *4 Ficker, in Murphy 507, State v. 266 supra, Md. at as follows: "an appeal, moot, even though will not be dismissed where the urgency establishing of a rule of future conduct in matters of important public is concern imperative both and manifest.” bar, The case at like the majority vast of in this Court cases which have decision, become moot to prior the Court’s simply does not the above-quoted "urgency meet test. The of "imperative not is conduct” of future establishing a rule manifest.” single Maryland appellate "a of whether question stay to authority power with is vested

judge impor- prospective clearly one of not court” is of a trial order had arose, of this Court judges this case tance. Before on Rules of Standing Committee the Court’s that requested recommend this matter and consider Procedure Practice and this case has dealing it. Since with of procedure a rule arisen, judges have renewed majority of this Court’s a Committee on Standing of the Chairman request with Procedure, that the taking position Rules of Practice and by rule. procedural governed be matter should provisions depend upon the will Consequently, future cases Court’s pursuant rule to this procedural adopted to be will not rule-making power. Such cases constitutional case. governed by the decision the instant Bonny scope of Fritz’s constitutional authoritatively during de- the first trimester was States Roe Supreme lineated the United 705, Wade, 113, 93 S.Ct. 35 L.Ed.2d v. U.S. Danforth, 428 Mo. v. U.S.

and Planned Parenthood Cent. (1976). Kindley also v. 96 S.Ct. 49 L.Ed.2d 788 See 620, 627-630, 426 A.2d 908. Maryland, Governor of 289 Md. extent, any, may present if federal and To the that this case opin- Court’s Supreme state issues not law resolved ions, showing any there exists there has been no that is both urgency establishing a rule offuture conduct which A. imperative Attorney Gen. v. A. Co. manifest. 328-329, majority 286 Md. of this School Davidson, Court, speaking through Judge indicated case, there must be before this Court would decide a moot controversy showing "evidence” that the between the likely is complete to recur. There is absence evidence sepa- suggesting controversy between this instant likely Moreover, couple rated to recur. there has been no any groups governmental agencies indication that or have a position respect taken with which likely Cf., recurring Attorney would cause it to be a one. *5 v. A. A.

Gen. Co. School atMd. 332-334 (dissenting opinion).

Since the between husband wife giving exists, rise to this longer judicial case no appropriate against restraint deciding militates the academic issues presented. FOR

PETITION WRIT OF CERTIORARI TO COURT OF SPECIAL APPEALS

OF MARYLAND September Term, 1982 Decided October Submitted to: J., Murphy, Smith, Eldridge, C. Cole, Rodowsky JJ. Davidson, Couch,

ORDER Upon consideration of for a writ of certiorari to the Court of Special Appeals case, in the above entitled