Noe v. True, 74-1577

• Decision Date: 05 December 1974
• Docket Number: No. 74-1577,74-1577
• Parties: Nancy NOE, by her guardian ad litem, Plaintiff-Appellant, v. Laurel TRUE, Secretary, Department for Human Resources, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 9

507 F.2d 9

Nancy NOE, by her guardian ad litem, Plaintiff-Appellant, v. Laurel TRUE, Secretary, Department for Human Resources, et

al., Defendants-Appellees.

No. 74-1577.

United States Court of Appeals, Sixth Circuit.

Dec. 5, 1974.

Robert Allen Sedler, Lexington, for appellant.

Ed W. Hancock, Atty. Gen., Frankfort, Ky., Mortimer J. Stamm, Lynn T. Mitchell, Frankfort, Ky., for appellee.

Before WEICK, EDWARDS and ENGEL, Circuit Judges.

PER CURIAM.

Plaintiff-Appellant Nancy Noe appeals from a judgment of the United States District Court for the Eastern District of Kentucky denying her application for injuncitive relief, and dismissing her complaint. Nancy Noe is the pseudonym of a 14-year-old female child committed to the custody of the department of Human Resources of the State of Kentucky, and under the supervision of its Bureau for Social Services. She brought this suit on behalf of herself and all others similarly situated, alleging that she was in the second trimester of pregnancy, had been appropriately counseled, and was desirous of obtaining an abortion. She further alleged that under Kentucky Revised Statute 208.450, the defendant Secretary of the Department of Human Resources was prohibited from consenting to or providing for the payment of her desired abortion and consequently refused her request. Plaintiff Noe sought below:

1. a declaration that the above statute is unconstitutional;

2. an injunction, restraining the enforcement of the statute, and

3. a mandatory injunction directing the defendant to arrange for the furnishing of a medical abortion to plaintiff. The pertinent statute provides: 'When any child committed to the department requires medical or surgical care or treatment, the department may provide the same or arrange for the furnishing thereof by other public or private agencies, and may give consent to such medical or surgical treatment, except for the purpose of abortion or sterilization.'

In her suit below, plaintiff was represented by Attorney Robert Allen Sedler, attorney for Kentucky Civil Liberties Union. Mr. Sedler petitioned the court for appointment of himself as plaintiff's guardian ad litem. That petition, however, was not ruled upon by the trial judge prior to the dismissal of the action.

In dismissing the complaint sua sponte, the trial court observed: 'This court is ill-equipped to weigh the medical, psychological, and social considerations underlying a decision to expend public funds for an abortion . . .' The court further stated that it was 'of the opinion that the complaint did not state a cause of action, and, in order to expedite a possible review of its decision . . . the action should be dismissed.'

We reverse the judgment of the district court and remand with directions which herein follow.

We first note that while plaintiff Noe no longer seeks an abortion of the pregnancy that gave rise to this lawsuit, the passage of time having rendered such an abortion medically unsafe, this fact does not moot her cause of action. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

NECESSITY FOR THREE-JUDGE COURT

The complaint filed sought an injunction restraining enforcement of a state statute, and is thus governed by 28 U.S.C. 2281 and 2284. Section 2281 provides:

'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.'

The single-judge district court was thus without power to dismiss the complaint on its merits for failure to state a cause of action, unless the constitutional attack was insubstantial. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). A claim is insubstantial for purposes of avoiding the three-judge court requirement:

only if 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave (open) no room for the inference that the questions sought to be raised can be the subject of controversy.' Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1972).

The district court's preliminary inquiry is limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case otherwise comes within the requirements of the three-judge statute. Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). We hold that the requirements above stated were met here and that it was error for the district court not to have sought the convening of a three-judge district court, as provided in 28 U.S.C. 2284, Moreover, it is of no consequence that neither the plaintiff nor the defendant in this case sought the convening of a three-judge court. The requirement is jurisdictional and cannot be waived. Grove Press, Inc. v. Flask, 417 F.2d 1062 (6th Cir. 1969).

APPOINTMENT OF GUARDIAN AD LITEM

Although the court was specifically asked to do so, it failed to consider the application for appointment of a guardian ad litem, and did not act in any other way to protect the interests of the minor plaintiff. Rule 17(c) of the Federal Rules of Civil Procedure provides in part:

'If an infant...