M. S., on Behalf of Herself and All Others Similarly Situated v. Robert Wermers, Doty Brown, John Mitchell, Ira Wintrode, Stewart Steele, Donald Kelly, N. R. Whitney, J. T. Elston and Pat TlustosM. S., on Behalf of Herself and All Others Similarly Situated v. Robert Wermers, Doty Brown, John Mitchell, Ira Wintrode, Stewart Steele, Donald Kelly, N. R. Whitney, J. T. Elston and Pat Tlustos
John K. Konenkamp, Deputy State‘s Atty., Pennington County, Rapid City, S. D., for appellees.
Before WEBSTER and HENLEY, Circuit Judges, and VAN PELT, Senior District Judge.*
WEBSTER, Circuit Judge.
M.S., an otherwise unidentified minor female, appeals from the order of the District Court dismissing her action following her refusal to give notice to her parents of a pending proceeding for the appointment of a guardian ad litem in connection with her complaint for declaratory judgment. At the time the action was filed appellant was fifteen years of age and unmarried.
In her complaint, appellant sought to maintain a class action on behalf of herself and all minors residing in Pennington County, South Dakota, who are denied contraceptive services or supplies by the Pennington County Health Department Family Planning Clinic because such minors lack parental consent to receive such services.1 She brought her action under
The District Court dismissed the action without having reached the merits of appellant‘s claim. The court concluded that a guardian ad litem should be appointed for appellant and that her parents should be notified. Dismissal of the action occurred when appellant declined to give such notice.2 In this appeal, appellant contends that the District Court abused its discretion (1) in refusing to let her proceed without appointment of a guardian ad litem and (2) in dismissing the action for failure to give her parents notice of the guardianship proceedings.
We think it should be obvious at the outset that if appointment of a guardian ad litem is required, or even permitted by law, then it was not error for the District Court to order a hearing for such purpose.
South Dakota law provides that “(a) minor may enforce his rights by civil action * * * in the same manner as a person of full age, except that a guardian must be appointed to conduct the same.”
While we have found cases upholding a district court‘s finding that no guardian ad litem was necessary in a given situation, see Laundry Workers Union, Local 93 v. Mahoney, 491 F.2d 1029, 1033 (8th Cir.) (en banc), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 49 (1974); T H v. Jones, 425 F.Supp. 873, 877 (D.Utah 1975), aff‘d, 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976); Baird v. Bellotti, 393 F.Supp. 847, 850 n.5 (D.Mass.1975), vacated on other grounds, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Jacobs v. Board of School Comm‘rs, supra, 490 F.2d at 604, our attention has been directed to no case holding that a district court abused its discretion in ordering such appointment.
Our inquiry does not end here, however, because the District Court ordered, over appellant‘s objection, that notice of the hearing on the court-ordered application for guardian ad litem be given to the parents of the minor. When she refused to give such notice, the case was dismissed on the court‘s own motion. We conclude, under the circumstances here presented, that the order of dismissal was an abuse of discretion and must be vacated.
A district court has power to dismiss an action for failure of the plaintiff to comply with “any order of court.”
One approach is to ask whether there has been “a clear record of delay or contumacious conduct by the plaintiff * * *.” Graves v. Kaiser Aluminum & Chemical Co., 528 F.2d 1360, 1361 (5th Cir. 1976). It can hardly be suggested that such conduct was present in this case. While she opposed the appointment of a guardian ad litem and sought to demonstrate that no guardian was required or needed under either state or federal law, appellant in the alternative asked that her counsel be appointed as guardian ad litem or that a former director of family planning services, Jean Dooner, L.P.N., be appointed. When these alternatives were rejected, appellant respectfully informed the court that she would suffer dismissal rather than abandon the claims to privacy which her lawsuit sought to vindicate.
Another legitimate inquiry is whether dismissal was bottomed upon the plaintiff‘s refusal to obey an invalid or improper order. See Allied Air Freight, Inc. v. Pan American World Airways, Inc., 393 F.2d 441 (2d Cir.), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968); Michael v. Clark Equipment Co., 380 F.2d 351 (2d Cir. 1967); Original Ballet Russe v. Ballet Theater, Inc., 133 F.2d 187 (2d Cir. 1943). See also First Iowa Hydro Electric Coop. v. Iowa-Illinois Gas & Electric Co., 245 F.2d 613, 628 (8th Cir.), cert. denied, 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76 (1957); 15 A.L.R.Fed. 407, 428-30 (1973).
Appellant contends that her parents could not properly act as guardians ad litem for her in this case because their interests are adverse to hers in that appellant claims the right to obtain prescription contraceptives free from their consent. When there is a potential conflict between a perceived parental responsibility and an obligation to assist the court in achieving a just and speedy determination of the action, parents have no right to act as guardians ad litem. See Fong Sik Leung v. Dulles, 226 F.2d 74, 82 (9th Cir. 1955) (Bolt, J., concurring). District courts have been alert to recognize and guard against this type of conflict. See, e. g., United States v. E. I. DuPont deNemours & Co., 13 F.R.D. 98, 105 (N.D.Ill.1952); Swift v. Swift, 61 F.R.D. 595, 598 (E.D.N.Y.1973); Marlin v. Texas Co., 26 F.Supp. 611, 614 (N.D.Texas 1939), rev‘d on other grounds, 109 F.2d 305 (5th Cir. 1940); United States v. Noble, 269 F.Supp. 814, 816 (E.D.N.Y.1967).
Appellant brought this action anonymously, and to require her to disclose her participation to her parents at this stage would substantially nullify the privacy right she seeks to vindicate. See Roe v. Ingraham, 364 F.Supp. 536, 541 n.7 (S.D.N.Y.), rev‘d on other grounds, 480 F.2d 102 (2d Cir. 1973). See also N.A.A.C.P. v. Alabama, 357 U.S. 449, 459, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). We think that the minor‘s asserted interest in privacy, which would be undercut by such notice, must outweigh any desire on the part of the District Court to accommodate parental concerns, at least at this stage of the proceedings.6 Since the refusal to obey was thus not caused by indifference to or neglect of proper procedural orders, but was compelled in order to protect the integrity of the minor‘s claimed right to privacy, the order of dismissal was an abuse of discretion.
We decline the invitation of the litigants to predict our views on the merits of this case. We simply hold that the appointment of appellant‘s parents as guardians ad litem would be clearly inappropriate; that notification to the parents of the guardian ad litem proceeding would compromise appellant‘s claimed right of privacy before it could be established and should not have been ordered; and that dismissal for refusal to obey an improper order in these circumstances was an abuse of discretion. The order of dismissal is vacated. On remand, the District Court is free to appoint a guardian ad litem capable of preserving appellant‘s anonymity or to appoint no guardian at all if it should choose to reconsider its finding that a guardian ad litem is necessary.7
HENLEY, Circuit Judge, dissenting.
I agree with the majority opinion that it was proper for the district court to consider the appointment of a guardian ad litem for the minor plaintiff, and that the court clearly had the power to appoint one in her behalf. I respectfully disagree that it was an abuse of discretion for the court to dismiss the action for failure to provide plaintiff‘s parents with notice of the guardianship proceedings.
While it may be inappropriate to appoint parents to act as guardians ad litem in litigation challenging a grant of parental veto power, it does not follow that it is equally inappropriate to condition the further progress of the lawsuit upon notification to the parents of the hearing on the appointment of a guardian ad litem. There is a crucial distinction between appointing parents to serve as guardians ad litem and notifying them that their minor child is involved in serious litigation for which a guardian ad litem may be appointed. Of course, both of these are an additional step removed from the merits of this matter concerning the requirement of parental consent to obtain prescription contraceptives against which the plaintiff seeks to assert a right of privacy.
Plaintiff, an unmarried fifteen year old female, seeks judicial declaration of an untrammeled constitutional right at public expense1-1 to fornicate with benefit of prescribed contraceptive supplies. Stated otherwise, she seeks vindication of an alleged constitutional right to put contraceptives to their intended use, notwithstanding the combined objection of both her parents and the state.2-1
It must be conceded that a number of fundamental constitutional rights have been expressly extended to minors in recent years. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). See also Jones v. T. H., 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976). However, not all constitutional rights have been made equally applicable to minors as to adults, and it is well established that the activities of children may be more highly regulated than those of adults. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, reh. denied, 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887 (1968); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, reh. denied, 321 U.S. 804, 64 S.Ct. 784, 88 L.Ed. 1090 (1944). In particular, a state may determine that a child is not possessed of full capacity for individual choice.
South Dakota law contains numerous provisions designed to protect minors in matters of sex. It is observed that a minor female is deemed incapable of consenting to marriage prior to age sixteen.
The legality of such statutes is not in question here and they are perhaps typical of state enactments in the field.
In addition to restriction by the state, minors are subject to parental custody and control. “Constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic to the structure of society. It is cardinal that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Carey v. New York, 431 U.S. 678, 97 S.Ct. 2010, 2028, 52 L.Ed.2d 675 (1977).
Judicial decisions have enveloped the sanctity of the family and parental authority with constitutional protection because the institution of the family has long been recognized as a cornerstone of our law. Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Ginsberg v. New York, supra; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).
The right to custody and control over a minor child accrues to parents in reciprocation for their duty to support, educate and protect that child. Consonant with this right, parents may need to know that their minor child has embarked upon a course of litigation, particularly where they probably will not serve as guardians ad litem and where the outcome of the action need not be fatally affected by their awareness of it. Assuming that a minor‘s institution of litigation without parental knowledge marks a fracture in the family structure, it is clearly within the scope of their protected power for parents to attempt to make amends and reinforce the family unit. They may seek to reopen closed lines of communication with their child or to rehabilitate common interests they once shared.
The narrow issue presented at this time is whether in the circumstances of this case the fifteen year old plaintiff has an absolute right to conduct litigation free from her parents’ knowledge in order to avoid an alleged chilling effect parental knowledge might have on the right of privacy she ultimately wishes to establish. Considering the cautious recognition by courts of constitutional rights that may be independently asserted by a minor, coupled with the protective nature of South Dakota‘s policy toward fifteen year old girls, I remain unconvinced that the minor plaintiff‘s participation in this lawsuit is fully protected by a right of privacy.4-1 On balance, a minor‘s right to conduct litigation in private, or be protected from the chill of notice to the parents does not outweigh the parents’ right and duty to advise and protect their child, and to preserve the integrity of the family.
Limited parental participation would be in no way determinative of the merits in this case, even though a similar balancing procedure may be employed when hearing on the merits is reached. The court at this juncture is called upon only to weigh the right of a minor to institute a legal action in private against her parents’ right to know that their child has become a party plaintiff. Correspondingly, a determination of the merits will require a balancing of the minor plaintiff‘s right of privacy to obtain prescription contraceptives against the right of her parents to exercise a veto power upon her acquisition of such contraceptives pursuant to the policy of the county health clinic. Though the two decisions may involve the analysis of similar elements, a finding in favor of the parental right at this stage of the proceedings would not preclude a different finding upon consideration of the merits of the case.
Until a decision on the merits has been reached, both the minor‘s asserted right of privacy involving access to prescription contraceptives, and the parents’ right to custody and control over their daughter should be protected to the fullest extent possible. The minor‘s right to litigate could be protected by appointing someone other than the parents as guardians ad litem. The parents’ right could be protected by informing them of the legal action instituted by their child. To permit parents to remain unaware of major litigation involving their child not only prevents them from counselling with the child but also imparts to the whole proceeding an overcast of deception undermining family solidarity and making suspect the court itself.
Experience teaches that wilful children dread parental confrontation. I would not elevate that dread to constitutional status and would prefer to find no abuse of discretion in the district court‘s order requiring notice to the parents. I would reverse only insofar as the judgment dismisses with prejudice.