Loertscher v. Anderson, 14–cv–870–jdp
| Citation | 259 F.Supp.3d 902 |
| Decision Date | 28 April 2017 |
| Docket Number | 14–cv–870–jdp |
| Parties | Tamara M. LOERTSCHER, Plaintiff, v. Eloise ANDERSON, Brad D. Schimel, and Taylor County, Defendants. |
| Court | United States District Courts. 7th Circuit. Western District of Wisconsin |
Christopher G. Hanewicz, Danielle Grant–Keane, David J. Harth, Freya Kirsten Bowen, Joshua L. Kaul, Truscenialyn Brooks, David Richter Pekarek Krohn, Jeff J. Bowen, Jesse Jonas Bair, Perkins Coie LLP, Madison, WI, Alyson Zureick, Avram David Frey, Sarah E. Burns, Nyu School of Law, Farah Christina Diaz–Tello, Laura Alyce Hecht–Felella, Lynn Mara Paltrow, Nancy Rosenbloom, National Advocates for Pregnant Women, New York, NY, for Plaintiff.
Jennifer Lynn Vandermeuse, Jody J. Schmelzer, Karla Z. Keckhaver, Wisconsin Department of Justice, Madison, WI, Douglas S. Knott, Ryan M. Wiesner, Leib Knott Gaynor, LLC, Milwaukee, WI, for Defendants.
Under 1997 Wisconsin Act 292, Wisconsin's juvenile courts may treat an unborn child of any gestational age as a child in need of protection or services if the "expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk" of harm to the unborn child. Wis. Stat. § 48.193.
Plaintiff Tamara M. Loertscher filed this case when she was an expectant mother subject to a state-court child in need of protection or services order issued under the authority of Wisconsin's Children's Code, as amended by Act 292. Following a report of unborn child abuse, Loertscher was detained for several days in a hospital, and later incarcerated for contempt of the juvenile court for 18 days, until she signed a consent decree requiring her to submit to drug monitoring and treatment by county authorities. She gave birth in January 2015. Her consent decree has since expired, and all proceedings against her have terminated. But Loertscher persists in her challenge to Act 292, which she contends is unconstitutional both facially and as applied to her.
Loertscher brings this case under 42 U.S.C. § 1983, which authorizes suits in federal court to redress violations of federal constitutional rights by state actors. Loertscher contends that the Act is void for vagueness and that it violates her substantive due process rights, procedural due process rights, First Amendment rights, Fourth Amendment rights, and right to equal protection. She asks this court to declare Act 292 unconstitutional and to enjoin its enforcement. Loertscher also seeks money damages from Taylor County for its hand in enforcing Act 292 against her.
Now before the court are the parties' motions for summary judgment, which address each of the constitutional issues in the case. But the court will decide only two of these issues, which will dispose of this case.
First, the court concludes that the Act is void for vagueness, and it will grant Loertscher's motion for summary judgment on that basis. At the heart of the Act are two concepts: "habitual lack of self-control" and "substantial risk to the physical health of the unborn child." Both concepts are essential components of the jurisdictional and substantive standards in the Act. But, for reasons explained in this opinion, neither of these concepts is amenable to reasonably precise interpretation. Thus, the Act affords neither fair warning as to the conduct it prohibits nor reasonably precise standards for its enforcement. The court will enjoin enforcement of the Act statewide. Because Loertscher will get the injunctive relief she requests as a result of this ruling, the court need not reach the other difficult constitutional questions raised by the parties' motions. The Act's other potential constitutional problems may be ameliorated if its jurisdictional and substantive standards are drawn with adequate clarity.
Second, the court will grant summary judgment in favor of the County as to Loertscher's claim against it under Monell v. Department of Social Services of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Loertscher has failed to show that the manner in which the Act was enforced against her can be traced to decisions by the County itself. As a consequence of this decision, Loertscher is not entitled to monetary damages.
Except where noted, the following facts are undisputed.
Under Wisconsin's Children's Code, the Department of Children and Families and county social service departments are responsible for protecting children who are being abused or neglected. If the county social service department deems it necessary, such a child may be the subject of a petition concerning a child in need of protection or services—commonly known as a CHIPS petition—filed with the juvenile court of that county. If the court grants the CHIPS petition, protective services may be ordered for the child. In severe cases, the child may be removed from the parents' home and placed in protective custody.
In 1997, the Wisconsin Supreme Court held that Wisconsin's Children's Code did not authorize a juvenile court to exercise jurisdiction over an adult pregnant woman in connection with a CHIPS proceeding. See State ex rel. Angela M.W. v. Kruzicki , 209 Wis.2d 112, 561 N.W.2d 729 (1997). And so the legislature set out to change that, by passing 1997 Wisconsin Act 292 (the Act).
Before the legislature passed the Act, the Wisconsin Legislative Council warned the legislature that extending the Act to "all stages of pregnancy" would render its constitutionality "highly doubtful. " Dkt. 179–2, at 2 (emphasis in original). And the Wisconsin Division of Children and Family Services (now the Department of Children and Families), the Division of Public Health's substance abuse bureau, and the City of Milwaukee Health Department opposed the Act. Specifically, the DCFS feared that the Act would scare women away from treatment and vital prenatal care, and the City of Milwaukee Health Department opposed the Act in light of "the serious potential [the Act] has for reducing the length and quality of prenatal care in this state, thereby negatively affecting the health of mothers and children." Dkt. 179–3, at 2. Both organizations were concerned that "a criminal justice approach to maternal and child health is not the best alternative, that it is destructive, and that readily available drug and alcohol treatment for expectant mothers would be preferable to threatening mothers with incarceration and loss of paternal rights." Dkt. 218, ¶ 35.
Regardless of the foregoing, the legislature passed the Act, and it went into effect in June 1998.
The Act grants juvenile courts jurisdiction over "an unborn child" and the "expectant mother" when the mother "habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control." Wis. Stat. § 48.133. The Act extends various aspects of the Children's Code to unborn children in need of protection or services; the court will highlight a few. The Act allows those who enforce it to take a pregnant woman into custody. § 48.193. The Act allows those who enforce it to hold a pregnant woman in custody if there is "probable cause to believe that the adult expectant mother is within the jurisdiction of the court," and to believe that the woman "is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her." § 48.205(1m). The court may appoint a guardian ad litem to "advocate for the best interests of" the unborn child and "[m]ake clear and specific recommendations to the court concerning the best interest of the ... unborn child at every stage of the proceeding." § 48.235(3). The court may order a pregnant woman to submit to inpatient alcohol or drug treatment. § 48.347.
The Child Protective Services Access and Initial Assessment Standards (CPS Standards), drafted by the Department of Children and Families, guide child protective services caseworkers when they screen, investigate, and assess reports of child abuse. The standards provide that an agency that receives a report of unborn child abuse must document the report and make a screening decision—i.e., whether to dismiss the report or pursue it. The screening standard is whether there is reasonable suspicion that the woman is pregnant, that her behavior indicates "a habitual lack of self-control ... in the use of alcohol, controlled substances or controlled substance analogs to a severe degree," and that the abuse could cause physical harm to the unborn child or a risk of serious harm to the child when born. Dkt. 169–1, at 23.
After a report is screened in, the case is assigned to a county initial assessment worker for investigation and assessment. The individual will gather the following information from the reporter:
used during pregnancy.
A description of the prenatal care the expectant mother is receiving, if any, and the name of the doctor and medical clinic where she...
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