Children's Healthcare is a Legal Duty, Inc. v. Deters

Decision Date20 September 1996
Docket NumberNo. 95-3850,95-3850
Citation92 F.3d 1412
PartiesCHILDREN'S HEALTHCARE IS A LEGAL DUTY, INC.; Steven Brown; Eve Brown; and Hillary Brown; and on behalf of a class of children in the state of Ohio similarly situated, Plaintiffs-Appellees, v. Joseph T. DETERS, Hamilton County, Ohio, Prosecutor; Fay Dupuis, Cincinnati, Ohio, City Solicitor, et al., Defendants, Betty Montgomery, Attorney General of Ohio, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Scott T. Greenwood (briefed), Greenwood & Hudson, Cincinnati, OH, Robert J. Bruno (argued), Robert J. Bruno, Ltd., Burnsville, MN, for Children's Healthcare is a Legal Duty, Inc., Steven M. Brown.

Susan E. Ashbrook (argued and briefed), David A. Oppenheimer, Office of the Attorney General of Ohio, Columbus, OH, for Betty Montgomery.

Before: MARTIN and BATCHELDER, Circuit Judges; WISEMAN, District Judge. *

BATCHELDER, J., delivered the opinion of the court in Part I, in which MARTIN, J., and WISEMAN, D.J., joined, and also delivered a separate opinion in Parts II and III (pp. 1418-25).

BATCHELDER, Circuit Judge.

The plaintiffs filed this action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of Ohio against several defendants. The district court, inter alia, rejected the contention of Ohio Attorney General Betty Montgomery, one of the defendants, that the plaintiffs lacked standing to bring this action, and held that the Eleventh Amendment to the United States Constitution does not bar the action against General Montgomery. Children's Healthcare is a Legal Duty, Inc. v. Deters, 894 F.Supp. 1129, 1130-34 (S.D.Ohio 1995). General Montgomery appeals. 1

The plaintiffs in this prospective class action are Children's Healthcare is a Legal Duty, Inc., an organization which says it fights "child abuse and neglect associated with religious practices," and Steven Brown and his minor children, Eve and Hillary. Brown's ex-wife and the children's mother, now known as Kim Strubbe, is a Christian Scientist. She believes in spiritual treatment of children's illnesses through prayer alone and does not allow the medical treatment Brown believes the children need. One of the daughters, Eve, has congenital kidney disease.

The plaintiffs allege that certain provisions of OHIO REV.CODE §§ 2919.22(A) 2 and 2151.03(B) 3 violate the First, Fifth, and Fourteenth Amendments to the United States Constitution. Plaintiffs specifically object to the second sentence of § 2919.22(A) and the first sentence of § 2151.03(B), which establish exemptions from the duty to provide adequate care for children and from prosecution for failure to provide such care, for persons who treat, by spiritual means, physical or mental illness or defect in children under their care. Plaintiffs contend that these provisions violate the Establishment Clause of the First Amendment, 4 which the Supreme Court since Everson v. Board of Educ., 330 U.S. 1, 8-16, 67 S.Ct. 504, 508-12, 91 L.Ed. 711 (1947), has said applies to the states through the Fourteenth Amendment. The plaintiffs further assert that the exemptions in the Ohio statutes deny equal protection and due process to the class of children in the charge of the exempted persons, as well as to parents and guardians who are not exempted.

I. THE ELEVENTH AMENDMENT

The district court held that the Attorney General would represent the state's interest in this action. 894 F.Supp. at 1131. Ex parte Young, 209 U.S. 123, 155-58, 28 S.Ct. 441, 452-53, 52 L.Ed. 714 (1908), carves out an exception to Eleventh Amendment immunity. E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984) (citing Young ). 5 The district court found that the exception applied and denied General Montgomery's motion to dismiss. See 894 F.Supp. at 1134. 6 We conclude, however, that this action against the Attorney General of Ohio is barred by the Eleventh Amendment.

A

Under Young,

individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.

209 U.S. at 155-56, 28 S.Ct. at 452; see also Western Union Tel. Co. v. Andrews, 216 U.S. 165, 166, 30 S.Ct. 286, 287, 54 L.Ed. 430 (1910) (holding that Young applies precisely when a statute charges prosecutors with enforcement and they threaten and are about to commence proceedings to enforce the statute); Dombrowski v. Pfister, 380 U.S. 479, 483, 85 S.Ct. 1116, 1119, 14 L.Ed.2d 22 (1965) (calling Young "the fountainhead of federal injunctions against state prosecutions" and noting that federal judicial power is properly exercised when state officers "threaten and are about to commence proceedings" (quoting Young )); Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 17, 68 L.Ed. 255 (1923) (citations omitted); Cavanaugh v. Looney, 248 U.S. 453, 456, 39 S.Ct. 142, 143, 63 L.Ed. 354 (1919) (citations omitted); Greene v. Louisville & I.R. Co., 244 U.S. 499, 506, 37 S.Ct. 673, 677, 61 L.Ed. 1280 (1917) (quoting Young ); Allinder v. Ohio, 808 F.2d 1180, 1184 (6th Cir.) (Eleventh Amendment immunity does not "shield a state official attempting to enforce an unconstitutional act." (citing Young )), appeal dismissed, 481 U.S. 1065, 107 S.Ct. 2455, 95 L.Ed.2d 865 (1987); but see Allied Artists Picture Corp. v. Rhodes, 679 F.2d 656, 665-66 n. 9 (6th Cir.1982) (disregarding Young in action against a governor because "substantial public interest in enforcing trade practices legislation" significantly obliged him to enforce state laws using his general authority (citations omitted)).

Courts have not read Young expansively. E.g., Pennhurst, 465 U.S. at 102, 104 S.Ct. at 909 (citing Edelman v. Jordan, 415 U.S. 651, 666-67, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974)). Young does not apply when a defendant state official has neither enforced nor threatened to enforce the allegedly unconstitutional state statute. 1st Westco Corp. v. School Dist. of Philadelphia, 6 F.3d 108, 113 (3d Cir.1993) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1209 n. 9 (3d Cir.1988)); see Long v. van de Kamp, 961 F.2d 151, 152 (9th Cir.1992) (requiring "a connection between the official sued and enforcement of the allegedly unconstitutional statute [and also] a threat of enforcement" (citing Young )); Kelley v. Metropolitan County Bd. of Educ., 836 F.2d 986, 990-91 (6th Cir.1987) (declining to apply Young when defendants were not threatening to enforce any unconstitutional act), cert. denied, 487 U.S. 1206, 108 S.Ct. 2848, 101 L.Ed.2d 885 (1988); Sperry-Hutchinson Co. v. Kuhn, 212 F. 555, 556 (E.D.Mich.1912) (declining to apply Young when an attorney general was not charged with enforcing a statute and had not threatened to enforce it (citing Young; Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535 (1899))).

Young abrogates a state official's Eleventh Amendment immunity when a suit challenges the constitutionality of a state official's action. Pennhurst, 465 U.S. at 102, 104 S.Ct. at 909; Banas v. Dempsey, 742 F.2d 277, 287 (6th Cir.1984) (Young applies only when it is alleged state officials are acting contrary to federal law), aff'd on other grounds, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1986); Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 459 n. 9 (6th Cir.1982) (recognizing that "an action against a state official must be 'based on a theory that the officer acted beyond the scope of his statutory authority or, if within that authority, that such authority is unconstitutional' in order to avoid the bar of the Eleventh Amendment" (quoting Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 689-90, 102 S.Ct. 3304, 3317, 73 L.Ed.2d 1057 (1982))). Young "was based on a determination that an unconstitutional state enactment is void and that any action by a state official that is purportedly authorized by that enactment cannot be taken in an official capacity...." Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). 7 The reason for this "action" requirement is plain: In Young, the state officers held no

special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the state, a case could be made for ... testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general.... That would be a very convenient way for obtaining a speedy judicial determination of ... constitutional law ..., but it is a mode which cannot be applied to the states ... consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons....

In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional ... such officer must have some connection with the enforcement of the act, or else it is merely making ... the state a party....

The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact....

Young, 209 U.S. at 157, 28 S.Ct. at 452-53.

Consistent with the Young requirement of action on the part of the state official, we note that the phrase "some connection with the enforcement of the act" does not diminish the requirement that the official threaten and be about to commence proceedings. See, e.g., id. at 155-56, 28 S.Ct. at 452. "General...

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