Hagerstown Reproductive Health Services v. Fritz Fritz

• Decision Date: 21 September 1982
• Docket Number: No. 80,80
• Citation: 450 A.2d 906,294 Md. 347
• Parties: HAGERSTOWN REPRODUCTIVE HEALTH SERVICES and Bonny Ann Fritz v. Chris Allen FRITZ.
• Court: Maryland Court of Appeals

Page 347

294 Md. 347

450 A.2d 906

HAGERSTOWN REPRODUCTIVE HEALTH SERVICES and Bonny Ann Fritz v. Chris Allen FRITZ.

No. 80.

Court of Appeals of Maryland.

Sept. 21, 1982.

Robert S. Bourbon, Rockville, for petitioner.

Barbara Mello, Baltimore, for respondents.

Submitted to SMITH, ELDRIDGE, COLE, DAVIDSON, COUCH and J. DUDLEY DIGGES, Retired, Specially Assigned, JJ.

ORDER

Upon consideration of the appellants' motion to dismiss, on the ground that the cause, --- Md. ---, 450 A.2d 906, is now moot, the petition for the writ of certiorari in this cause heretofore issued to the Court of Special Appeals, and the hearing set for September 20 having verbally been ordered cancelled, it is this 21st day of September 1982,

ORDERED, by the Court of Appeals of Maryland, a majority concurring, that the motion be, and it is denied without prejudice to the rights of the parties to argue mootness as hereinafter indicated; and it is further

ORDERED that this cause be briefed and argued in the normal course at which time, in addition to any other questions they may deem relevant, the parties are specifically directed to brief and argue the following questions:

1) Did the trial court err in enjoining Bonny Ann Fritz from having an abortion performed including the issues subsumed therein:

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

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

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

3) Whether this cause is moot.

ELDRIDGE, J., dissents.

ELDRIDGE, Judge, dissenting:

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

(1)

The sole controversy in this case concerned the right of the appellant, Bonny Ann Fritz, who was within the first trimester of pregnancy, to have an abortion in light of the objection to the abortion by her husband, the appellee Chris Allen Fritz. The Circuit Court for Washington County enjoined Bonny Ann Fritz from having an abortion, and Bonny Ann Fritz, along with the Hagerstown Reproduction Health Services, took an appeal to the Court of Special Appeals. Upon the appellants' motion, a single judge of the Court of Special Appeals on September 17, 1982, "stayed" the injunction issued by the circuit court. On the following day, September 18, 1982, this Court granted the appellee's petition for a writ of certiorari and stayed the order of the judge of the Court of Special Appeals, thereby leaving the circuit court injunction in effect.

Next, on September 19, 1982, the appellants, Bonny Ann Fritz and Hagerstown Reproductive Health Services, filed in this Court a pleading entitled "Motion To Dismiss." The body of the motion recites that on September 18, 1982, Bonny Ann Fritz, having no notice of the order entered by this Court on that day, and acting pursuant to the September 17th order of a judge of the Court of Special Appeals, obtained an abortion. The appellants pointed out that the abortion rendered the cause moot. The appellants prayed "[t]hat an order be entered dismissing the Writ of Certiorari."

Long ago this Court, in overruling an appellee's motion to strike out an appellant's dismissal of an appeal, stated: "The appellant may at any time dismiss his appeal." Diffenderffer v. Hughes, 7 H. & J. 3, 4 (1825). As Poe points out, "[t]he appellant may always dismiss his appeal." 2 Poe, Pleading and Practice § 831 (5th ed. H. Tiffany 1925).

In the present case, the appellants did not technically enter an order dismissing their appeal. Nevertheless, their "Motion To Dismiss," which prays that the Writ of Certiorari be dismissed, obviously demonstrates an intent that the appellate proceedings be dismissed. As appellants are absolutely entitled to a dismissal of their appeal if they so desire, and as appellants have indicated such desire, I would not, based upon the technical wording of the document filed in this Court, put them to the expensive and time consuming burden of briefing and arguing the various issues set forth in the majority's order.

(2)

Even if the appellants were desirous, for academic reasons, of having this Court express an opinion on the issues in this case, I do not believe that the Court should set the case for briefing and argument. The case is clearly moot. The only controversy concerned the right of the appellant Bonny Ann Fritz to have an abortion. Mrs. Fritz has now had the abortion. There no longer exists an actual justiciable controversy between the parties. Harford County v. Schultz, 280 Md. 77, 371 A.2d 428 (1977). The parties are now separated, and there is no indication that either has an "interest one way or the other in the outcome of this proceeding." Harford County v. Schultz, supra, 280 Md. at 85, 371 A.2d 428.

As recently reiterated by the Court in Attorney Gen. v. A. A. Co. School Bus, 286 Md. 324, 327, 407 A.2d 749 (1979), "A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the Court can provide." The instant case certainly appears to meet this mootness test.

(3)

It is true that there does exist an exception to the general principle that ...