Date: 06-27-2018

Case Style:

Case Number: 17-1936

Judge: Ripple

Court: United States of Appeals for the Seventh Circuit on appeal from the Western District Wisconson (Dane Conuty)

Plaintiff's Attorney:

Personal Injury Lawyer Directory

Defendant's Attorney: Karla Z. Keckhaver and Maria S. Lazar for J.B. Van Hollen
In his official capacity as Attorney General of the State of Wisconsin and Brad D. Schimel In his official capacity as Attorney General of the State of Wisconsin

Jennifer Lynn Vandermeuse and Jody J. Schmelzer for Eloise Anderson
In her official capacity as Secretary of the Department of Children and Families

Description: Tamara M. Loertscher brought this
action under 42 U.S.C. � 1983 challenging the constitutionality
of 1997 Wisconsin Act 292 (�Act 292� or �the Act�), a legislative
measure designed to address the effects of prenatal substance
abuse. Act 292 brings unborn children and their mothers
within the jurisdiction of the juvenile courts if the mothers
exhibit a habitual lack of self‐control with respect to alcohol
or drugs that raises a substantial health risk for their unborn
2 No. 17‐1936
children. Ms. Loertscher was subjected to the provisions of
the statute when, after seeking treatment at a county health
facility, her caregivers determined that she was pregnant and
that she had tested positive for methamphetamine, amphetamines,
and tetrahydrocannabinol. Pursuant to the provisions
of the Act, the state court ordered Ms. Loertscher to report to
an alcohol and drug abuse treatment center for assessment
and possible treatment. When she failed to comply with the
order, the court found her in contempt and placed her in
county detention. She eventually agreed to participate in the
program.
Ms. Loertscher later instituted this federal action against
several state and county officials in which she challenged
Act 292 on a variety of constitutional grounds. While her action
was pending in district court, Ms. Loertscher moved out
of Wisconsin. The defendants then filed a motion to dismiss
the action on the grounds that the case now was moot; that
motion was denied.
On cross motions for summary judgment, the district
court concluded that Act 292 was void for vagueness and,
therefore, granted injunctive relief to Ms. Loertscher against
the state defendants. The court determined, however, that the
county defendants were not personally liable, and, therefore,
Ms. Loertscher was not entitled to monetary damages. The
state defendants appealed the district court�s entry of injunctive
relief; Ms. Loertscher did not cross appeal the entry of
judgment for the county defendants on her damages claims.
We conclude that Ms. Loertscher�s case is moot. She has
moved out of the State of Wisconsin and has no plans to return.
Consequently, it is not reasonably likely that she will
No. 17‐1936 3
again be subject to the Act�s provisions. Accordingly, we vacate
the district court�s entry of judgment against the state defendants
and remand with instructions to dismiss the action
as moot.
I
BACKGROUND
A.
1.
In 1997, the Wisconsin Supreme Court held, as a matter of
statutory construction, that the definition of child in Wisconsin�s
Children�s Code did not include unborn children. See
Wisconsin ex rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729, 740
(Wis. 1997). In response, the Wisconsin Legislature enacted
Act 292 �[t]o ensure that unborn children are protected
against the harmful effects resulting from the habitual lack of
self‐control of their expectant mothers in the use of alcohol
beverages, controlled substances or controlled substance analogs,
exhibited to a severe degree.� Wis. Stat. � 48.01(2)(bm).
The law effectuates this purpose by bringing within the jurisdiction
of the juvenile courts unborn children and their mothers
when the mothers� consumption of alcohol or controlled
substances places their unborn children at risk. Specifically,
Wisconsin Statutes section 48.133 provides:
The court has exclusive original jurisdiction
over an unborn child alleged to be in need of
protection or services which can be ordered by
the court whose expectant mother habitually
4 No. 17‐1936
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. The court also has
exclusive original jurisdiction over the expectant
mother of an unborn child described in
this section.
The process of bringing an unborn child and the mother
within the jurisdiction of the court begins with a report by a
person, usually a physician or relative, �who has reason to
suspect that an unborn child has been abused or who has reason
to believe that an unborn child is at substantial risk of
abuse.� Wis. Stat. � 48.981(2)(d). Wisconsin Statutes section
48.981 sets forth the process that follows the report, which has
been implemented by the Wisconsin Department of Children
and Families.1 Specifically, a case worker must decide if there
is reasonable suspicion to believe that the conditions of section
48.133 are met. If there is reasonable suspicion, then the
report will be �screened in.�2 At that point, an assessment
worker �shall initiate a diligent investigation to determine if
the unborn child is in need of protection or services.� Wis.
Stat. � 48.981(3)(c)(1)(a).
1 See R.169‐1 (�Child Protective Services Access and Initial Assessment
Standards�).
2 See id. at 22.
No. 17‐1936 5
If the report appears accurate, the worker will �offer to
provide appropriate services.� Id. � 48.981(3)(c)(3). If the expectant
mother refuses, the assessment worker must decide
whether to pursue a formal petition for an unborn child in
need of protective services (�UCHIPS�). Id. If the case proceeds
and the mother is held temporarily,3 a court intake
worker reviews the case to decide if it should go forward. At
this point, there are several ways that the case might be resolved
informally; these include the mother�s submitting to
counseling, alcohol or drug abuse assessment, or outpatient
treatment. Wis. Stat. � 48.245(1), (2)(a).
If the UCHIPS petition actually is filed, procedural protections
come into play, including a plea hearing, a factfinding
hearing before a judge or jury, and a final dispositional hearing.
See Wis. Stat. �� 48.30, 48.31. At this stage, the mother is
entitled to counsel regardless of ability to pay. See Wis. Stat.
�� 48.27(4)(b)(2), 48.243(1)(e). If the court finds that the unborn
child is in need of protection or service, it must order the
least restrictive care and treatment plan sufficient to protect
the well‐being of the child. See Wis. Stat. �� 48.347, 48.355(1).
Among the options are counseling, treatment, supervision,
placement at the home of an adult relative or friend, or, at
most, inpatient alcohol or drug treatment. See Wis. Stat.
� 48.347. Inpatient treatment can be ordered only if an assessment
has been conducted by an approved treatment facility.
See Wis. Stat. �� 48.31(4), 48.547(4).
3 The Act provides for temporary custody of the expectant mother if there
is an immediate danger to the unborn child. Custody includes placement
(1) in the home of an adult friend or relative, (2) in a licensed communitybased
residential facility, (3) in a hospital, or, in some situations (4) in an
emergency treatment facility. Wis. Stat. � 48.207(1m).
6 No. 17‐1936
2.
In the summer of 2014, Ms. Loertscher went to Taylor
County Human Services Department (�the County�) to determine
if she was pregnant and to seek treatment for her hypothyroidism,
which had gone untreated due to her inability to
afford her medication. She was referred to the Eau Claire
Mayo Clinic Hospital. There her caregivers confirmed her
pregnancy, and she also tested positive for methamphetamine,
amphetamines, and tetrahydrocannabinol.4
Ms. Loertscher told the treating physician that she intended
not to use drugs during her pregnancy so that she could have
a healthy child. That evening, Ms. Loertscher was voluntarily
admitted to the Mayo Clinic Behavioral Health Unit.
The following morning, Ms. Loertscher received her thyroid
medication. A psychiatrist spoke with her about her thyroid
condition and also inquired about her past drug use.
Ms. Loertscher stated that she had been self‐medicating with
marijuana and methamphetamine. Later that evening,
Ms. Loertscher met with an obstetrician, Dr. Jennifer Bantz,
and admitted to smoking methamphetamine daily, but stated
that she had cut back to �two to three times a week� after discovering
that she was pregnant.5 Ms. Loertscher also reported
that she had used marijuana throughout her pregnancy and
had consumed alcohol �a few times,� but could not provide
Dr. Bantz with �a specific amount.�6
4 Tetrahydrocannabinol or THC is the active ingredient in marijuana.
5 R.1‐2 at 15.
6 Id. at 16.
No. 17‐1936 7
Ms. Loertscher�s condition and drug use was reported to
a social worker at the hospital, Corey Everson, who then reported
to the County that Ms. Loertscher�s behavior was putting
her baby in serious danger. Subsequently, a County access
worker �screened in� the case. Later, an assessment
worker, Julie Clarkson, requested Ms. Loertscher�s medical
records and also notified her that there was an open investigation.
When Clarkson spoke to Ms. Loertscher, she denied
recent drug use or any use of alcohol in the prior year. Clarkson
informed Ms. Loertscher that the tests indicated drug use
within the last few days; at that point, Ms. Loertscher told
Clarkson that she did not want to work with the County.7
Clarkson asked Ms. Loertscher to agree to an inpatient drug
treatment facility, but Ms. Loertscher refused.8
A formal UCHIPS petition was filed, and the County held
Ms. Loertscher at the Mayo Clinic Hospital to allow for a temporary
custody hearing the following day. The County also
appointed a guardian ad litem for Ms. Loertscher�s unborn
child.
On August 5, the guardian ad litem and county personnel
attended a confidential hearing in juvenile court. Hospital
staff arranged for Ms. Loertscher to participate in the hearing
by phone; Ms. Loertscher stated, however, that she would not
continue with the call in the absence of counsel and left the
room.9
7 R.169‐4 at 12.
8 Id.
9 R.1‐2 at 7, 9�10.
8 No. 17‐1936
At the hearing, Dr. Bantz testified regarding the consequences
of Ms. Loertscher�s drug use. She stated that mothers
on methamphetamine �tend to be underweight, and [their]
babies tend to be smaller at the gestational age.�10 She stated
that, for those children, �there is a suggestion of cognitive
problems later on.�11 Dr. Bantz also stated that
Ms. Loertscher�s continued use of methamphetamine could
put her child at risk for cognitive problems and would �directly
affect her ability to � make good decisions� related to
nutrition and prenatal care.12 Finally, she testified that she did
not believe Ms. Loertscher would avail herself of voluntary
treatment options because Ms. Loertscher had refused prior
offers of treatment.13
The state court found probable cause that the statutory
standards had been met.14 The court ordered Ms. Loertscher
to report to an alcohol and drug abuse treatment center for an
assessment and possible treatment.15
Two weeks after the hearing, Ms. Loertscher still had not
complied with the order. As a result, she was held in contempt
and placed in county detention.16 Ms. Loertscher even‐
10 Id. at 17.
11 Id.
12 Id. at 18�19.
13 See id. at 20�21.
14 See id. at 28.
15 See R.1‐3 at 4.
16 See R.1‐8 at 25�27.
No. 17‐1936 9
tually agreed to participate in a drug assessment and was released.
After the assessment, her treatment plan involved attending
prenatal appointments and submitting to random
drug tests one to three times per week.
Ms. Loertscher gave birth to a healthy boy on January 23,
2015.
B.
On December 15, 2014, Ms. Loertscher filed this action
against the Wisconsin Attorney General and the Secretary of
the Department of Children and Families for the State of Wisconsin.
She alleged that Act 292 violated her rights under the
First, Fourth, Fifth, Ninth, and Fourteenth Amendments. She
requested declaratory relief as well as a preliminary and permanent
injunction.
Ms. Loertscher filed an amended complaint on November
6, 2015. In addition to her original demands, the amended
complaint sought compensatory and punitive damages
against several county defendants under 42 U.S.C. � 1983.17
The amended complaint also brought to light that
Ms. Loertscher had moved out of the State of Wisconsin. In
response, the defendants filed a motion to dismiss on the
ground that Ms. Loertscher�s move rendered the case moot.
The district court denied the motion on the ground that
Ms. Loertscher�s action fell within the exception to mootness
for cases capable of repetition but evading review.18
17 See R.66 at 25.
18 See R.118 at 4.
10 No. 17‐1936
Following discovery, the parties filed cross motions for
summary judgment. The court concluded that the provision
of Act 292 that brings expectant mothers under the jurisdiction
of the juvenile courts, Wis. Stat. � 48.133, was void for
vagueness. According to the district court, the first part of section
48.133, which requires that the expectant mother �severely
and habitually lack self‐control in the use of alcohol,
controlled substance, or controlled substance analogs,� is
vague because it does not specify how much of the prohibited
activity brings an expectant mother within the Act�s coverage.
19 The district court also concluded that the second part of
the statute, directed to a �substantial risk� of harm to the unborn
child, is �doubly indeterminate� because �substantial�
and �risk� are matters of degree.20 The court particularly was
troubled by the inability of the physician witnesses to quantify
a precise amount of drug use that would put an unborn
child in jeopardy. The district court therefore declared Act 292
unconstitutional, granted summary judgment to
Ms. Loertscher against the state defendants, and issued a
statewide injunction against Act 292�s operation.
The district court, however, entered summary judgment
in favor of the county defendants on Ms. Loertscher�s damages
claims. It concluded that Ms. Loertscher had not identified
�a municipal policy, practice, or custom responsible for the
alleged constitutional violation.�21 Instead, Ms. Loertscher
19 See R.240 at 24�27.
20 Id. at 27.
21 See id. at 33�39 (citing Monell v. Dep�t of Soc. Servs. of New York, 436 U.S.
658 (1978)).
No. 17‐1936 11
simply was trying to hold the county defendants liable for implementing
a state mandate.
The state defendants timely appealed the district court�s
entry of summary judgment against them.22 Ms. Loertscher
did not cross appeal the entry of judgment in favor of the
county defendants on her damages claims.
II
Before we address the parties� arguments on the merits,
we first must address a threshold question: whether
Ms. Loertscher�s move out of the State of Wisconsin renders
this appeal moot.23 The question whether Ms. Loertscher�s departure
from Wisconsin rendered her claim for injunctive relief
moot is a question of law that we review de novo. See Freedom
from Religion Found., Inc. v. Concord Cmty. Sch., 885 F.3d
1038, 1045 (7th Cir. 2018) (�We also consider legal questions
of mootness de novo � .�).
22 The state defendants also filed an emergency motion to stay the district
court�s injunction, which we denied. The Supreme Court subsequently
stayed the district court�s injunction pending the outcome of this appeal.
See Anderson v. Loertscher, 137 S. Ct. 2328 (2017).
23 As previously noted, the only substantive issue before us is the propriety
of the district court�s injunction. Although Ms. Loertscher�s complaint
also sought damages against the county defendants, the district court entered
summary judgment in favor of the county defendants, and
Ms. Loertscher has not appealed that ruling.
12 No. 17‐1936
A.
�To invoke federal jurisdiction, a plaintiff must show a
�personal stake� in the outcome of the action.� United States v.
Sanchez‐Gomez, 138 S. Ct. 1532, 1537 (2018) (quoting Genesis
HealthCare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)). �This requirement
ensures that the Federal Judiciary confines itself to
its constitutionally limited role of adjudicating actual and
concrete disputes, the resolutions of which have direct consequences
on the parties involved.� Id. (quoting Genesis
HealthCare, 569 U.S. at 71). Moreover, this requirement must
be met �at all stages of review.� Id. (quoting Preiser v. Newkirk,
422 U.S. 395, 401 (1975)). �Article III, � 2 of the Constitution
grants jurisdiction to federal courts to adjudicate only �actual,
ongoing controversies.�� Brown v. Bartholomew Consol. Sch.
Corp., 442 F.3d 588, 596 (7th Cir. 2006) (quoting Honig v. Doe,
484 U.S. 305, 317 (1988)). �There is thus no case or controversy,
and a suit becomes moot, �when the issues presented are no
longer �live� or the parties lack a legally cognizable interest
in the outcome.�� Chafin v. Chafin, 568 U.S. 165, 172 (2013)
(quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). In
an action seeking injunctive relief, the requirement of a live
controversy �ordinarily means that, once the threat of the act
sought to be enjoined dissipates, the suit must be dismissed
as moot.� Brown, 442 F.3d at 596.
An action seeking to enjoin the operation of an unconstitutional
policy or practice may become moot if the plaintiff is
removed from the geographical jurisdiction of the issuing authority.
For example, in Camreta v. Greene, 563 U.S. 692 (2011),
as part of a child abuse investigation, a student was interviewed
at her school by a caseworker and a prosecutor. The
No. 17‐1936 13
student�s mother challenged the constitutionality of the interview
on Fourth Amendment grounds. The Ninth Circuit
ruled that the caseworker and prosecutor had violated the
Fourth Amendment, but concluded that they were entitled to
qualified immunity. The caseworker and the prosecutor then
sought a writ of certiorari challenging the appellate court�s
determination that their actions were illegal. Following the
grant of certiorari, the Supreme Court discovered that the student
had moved to Florida and had no intention of returning.
In light of this move, and the fact that the student was �only
months away from her 18th birthday,� the student could �no
longer claim the plaintiff�s usual stake in preserving the
court�s holding� because �she face[d] not the slightest possibility
of being seized in a school in the Ninth Circuit�s jurisdiction
as part of a child abuse investigation.� Id. at 710�11.
The Court therefore concluded that the case was moot and
vacated that part of the Ninth Circuit�s opinion concerning
the constitutionality of the interview.
Similarly, in Ortiz v. Downey, 561 F.3d 664 (7th Cir. 2009),
we held that an inmate�s claim for injunctive relief against the
allegedly unconstitutional actions of prison officials was
mooted by his transfer out of that facility. We observed that,
following his transfer �[t]here [wa]s no realistic possibility
that Mr. Ortiz will again be incarcerated in the same state facility
and therefore be subject to the actions of which he complain[
ed] here.� Id. at 668. Consequently, �[a]ny relief that our
judgment might permit would be purely speculative in nature.�
Id.
The same principle applies when injunctive relief has been
sought against a state statute or a local ordinance, as opposed
to a policy or practice. Cooley v. Granholm, 291 F.3d 880 (6th
14 No. 17‐1936
Cir. 2002), is one example. In Cooley, two physicians challenged
a Michigan statute banning physician‐assisted suicide.
While the action was pending, one of the physicians retired
and the other moved to California, but planned to �return to
Michigan to practice sometime in the future if he c[ould] find
a suitable job.� Id. at 882. The Sixth Circuit held that, because
neither physician practiced medicine in Michigan any longer,
�the case ha[d] completely lost �its character as a present live
controversy of the kind that must exist if [the Court is] to
avoid advisory opinions on abstract propositions of law.�� Id.
at 883 (second alteration in original) (quoting Hall v. Beals, 396
U.S. 45, 48 (1969)). The physicians had �no �legally cognizable
interest in the outcome,�� and, therefore, the case was moot.
Id. (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).
The Eleventh Circuit followed the same course in Lucero v.
Trosch, 121 F.3d 591 (11th Cir. 1997). There, a physician, who
owned a health clinic that provided reproductive services including
abortions, brought an action against abortion protestors
under both federal law and Alabama nuisance law. The
district court denied the physician�s request for a preliminary
injunction under federal law, but granted a preliminary injunction
on the nuisance claim. Both parties appealed. After
oral argument, the court discovered that �Dr. Lucero had sold
the Clinic and that he and his family � no longer liv[ed] in
Alabama.� Id. at 595. The court held that �[b]ecause
Dr. Lucero and his family no longer reside[d] in Alabama and
no longer own[ed] or operate[d] the Clinic, any claims for injunctive
relief [we]re moot as to them.� Id. at 596.24
24 Dr. Lucero�s claim for monetary relief survived, as did the claim for injunctive
relief by All Women�s Inc., the entity which had purchased all of
No. 17‐1936 15
In this case, the only issue before us is the appropriateness
of the district court�s statewide injunction precluding the operation
of Act 292. Ms. Loertscher has moved out of Wisconsin
and is no longer subject to Act 292�s provisions. In her deposition,
she testified that she had no �plans to return back to
Wisconsin to live.�25 The threat that she may be subjected to
Act 292 is no longer existent. Thus, Ms. Loertscher is no
longer in need of any protection from the operation of the statute.
26 Ms. Loertscher�s claim for injunctive relief�the only
one before us�has been mooted as a result of her move.
the assets of Dr. Lucero�s clinic and continued to operate a clinic in much
the same manner as Dr. Lucero had. Lucero v. Trosch, 121 F.3d 591, 596�97
(11th Cir. 1997).
25 R.237 at 48 (Loertscher Dep. 174).
26 Contrary to Ms. Loertscher�s assertions in her brief, the record does not
support the conclusion that �she has contemplated a move back to the
state to be closer to her family.� Appellee�s Br. 31. The only record material
cited in support of this assertion is Ms. Loertscher�s deposition testimony,
in which the following colloquy took place:
Q Do you have any plans to return back to Wisconsin
to live?
A Not to live. No.
�
Q And do you know right now when you have
plans to visit Wisconsin again?
A Besides this visit, no.
Q Would you ever consider living in Wisconsin
again?
16 No. 17‐1936
B.
Ms. Loertscher maintains that, even if her claim is moot,
her claim falls within the exception to mootness for cases �capable
of repetition, yet evading review.� Sanchez‐Gomez, 138
A It�s a hard question, because I would like to because
my family is there, you know.
�
A � The question was do I � would I ever live in
Wisconsin again?
Q Correct.
A It�s a hard question to answer, because I do have
some family there that�s slightly still supportive that I�d
like to see, but I feel like I can�t. I guess that�s the best way
I can answer your question. I can�t answer it a yes or a no
because it�s kind of both.
R.237 at 48 (Loertscher Dep. 174�75) (emphasis added).
Nor is there evidence that Ms. Loertscher �moved out of the state in
part because of her fear of harassment or future intervention by local officials
related to the issues in this case.� See Appellee�s Br. 31. Again, the
only record evidence in support of this statement is the above deposition
testimony which is silent regarding her fear of harassment. Thus,
Ms. Loertscher�s situation is not analogous to that of the plaintiff in Artway
v. Attorney General of New Jersey, 81 F.3d 1235 (3d Cir. 1996). There, a sex
offender, who had been released from prison, �lived in New Jersey�
where he established a home, a family, and a job��until New Jersey enacted
a mandatory registration system for sex offenders. Id. at 1246. He left
shortly after the law was passed so that he did not have to register, but
had �sworn to his desire to return if [the law] [wa]s invalidated.� Id.
Ms. Loertscher has not established that Act 292 prompted her departure
from Wisconsin or that the fear of Act 292�s provisions is preventing her
from returning to Wisconsin.
No. 17‐1936 17
S. Ct. at 1540 (internal quotation marks omitted). This doctrine
applies only in �exceptional situations,� Spencer v.
Kemna, 523 U.S. 1, 17 (1998) (internal quotation marks omitted),
when two conditions are met: �(1) the challenged action
is in its duration too short to be fully litigated prior to its cessation
or expiration, and (2) there is a reasonable expectation
that the same complaining party will be subjected to the same
action again,� Sanchez‐Gomez, 138 S. Ct. at 1540 (quoting
Turner v. Rogers, 564 U.S. 431, 439�40 (2011)); see also Spencer,
523 U.S. at 17. When these requirements are met, the plaintiff
retains a personal stake in the outcome of the appeal.
Ms. Loertscher does not retain a stake in the outcome of
this appeal, which concerns only injunctive relief. Her voluntary
and permanent departure from the State, which enacted
and administers the law which she challenges, makes the possibility
of her once again being subject to the statute a matter
of pure speculation.
Ms. Loertscher has no reasonable expectation that she will
find herself within the State of Wisconsin at a time when she
is both pregnant and under the influence of drugs or alcohol
to a severe degree. Ms. Loertscher previously was subjected
to Act 292�s provisions because of her regular use of illegal
substances. Courts �generally have been unwilling to assume
that the party seeking relief will repeat the type of misconduct
that would once again place him or her at risk of that injury.�
See Honig v. Doe, 484 U.S. 305, 320 (1988); Sanchez‐Gomez, 138
S. Ct. at 1541.27 Therefore, we will not assume that
27 The general rule applies in circumstances where the plaintiffs are able
to �conduct their activities within the law and so avoid prosecution and
conviction.� City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (quoting
18 No. 17‐1936
Ms. Loertscher again will engage in the consumption of illegal
substances, such as methamphetamine.
Determining the applicability of the �capable of repetition
yet evading review� exception always has been an exercise of
practiced judgment. It is not �an ingenious academic exercise
in the conceivable.� Preiser v. Newkirk, 422 U.S. 395, 403 (1975)
(quoting United States v. SCRAP, 412 U.S. 669, 688 (1973)). Rather,
we make a practical judgment as to whether the circumstances
alleged in the complaint have �evaporated or disappeared�
or �by [their] continuing and brooding presence,�
continue to cast �a substantial adverse effect� on the plaintiff.
Super Tire Eng�g Co. v. McCorkle, 416 U.S. 115, 122 (1974).28
O�Shea v. Littleton, 414 U.S. 488, 497 (1974)). It follows that, where the plaintiff
has made a showing of an �inability to conform his conduct to socially
acceptable norms,� the general rule does not apply. Honig v. Doe, 484 U.S.
305, 320 (1988) (stating that the Court had �[n]o reluctance� in assuming
that a student�s inability �to govern his aggressive, impulsive behavior�
would result in future expulsions from the classroom that would implicate
the State�s challenged response).
28 Ms. Loertscher submits that the second requirement�a reasonable expectation
that the same complaining party will be subject to the same action
again�should not be applied literally to her circumstances. She relies
upon Jones v. Illinois Department of Rehabilitation Services, 689 F.2d 724 (7th
Cir. 1982), and Majors v. Abell, 317 F.3d 719 (7th Cir. 2003), to support her
argument.
In Jones, the court considered a deaf student�s challenge to a state college�s
failure to provide him with the services of a sign language interpreter.
On appeal, this court determined that the action had not been
mooted by the student�s graduation but was �capable of repetition both
as to Jones � and as to other deaf clients of IDRS who are or will be students
at IIT.� 689 F.2d at 728. Regarding Jones, the court determined that,
�[a]lthough he disclaim[ed] any current intent to attend graduate school,
No. 17‐1936 19
that [wa]s a possibility that [could not] be discounted in today�s society
and in his highly technical profession.� Id. Moreover, �[t]he case [wa]s also
capable of repetition by other hearing‐impaired IIT students who [we]re
IDRS clients.� Id.
Since Jones, however, the Supreme Court has emphasized that the �exception
applies �only in exceptional situations,� where (1) �the challenged
action [is] in its duration too short to be fully litigated prior to cessation or
expiration,� and (2) �there [is] a reasonable expectation that the same complaining
party [will] be subject to the same action again.�� Kingdomware
Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (alterations in original)
(emphasis added) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).
Additionally, Jones�s legal action, unlike Ms. Loertscher�s, was mooted by
the passage of time, not his voluntary departure from the school.
Similarly, Majors does not persuade us that Ms. Loertscher�s situation
falls within the exception for cases capable of repetition but evading review.
In Majors, we considered the constitutionality of an Indiana law requiring
the disclosure of the identity of individuals who paid for certain
political ads. As a preliminary matter, we had to consider whether a candidate
had standing to challenge the law when the election in which he
had run already had occurred and when the candidate had not declared
his candidacy for the next election. We held that �[a] candidate plaintiff
no more has a duty to run in every election in order to keep his suit alive
than an abortion plaintiff has a duty to become pregnant again at the earliest
possible opportunity in order to keep her suit alive. Politicians who
are defeated in an election will often wait years before running again; obviously
this doesn�t show they�re not serious about their political career.�
Majors, 317 F.3d at 722�23.
The Majors court, like the Jones court, did not have the benefit of the
Supreme Court�s later emphasis on the importance of a court�s assessing
the reasonable expectation that the �same complaining party [will] be subject
to the same action again.� Kingdomware Techs., Inc. 136 S. Ct. at 1976. Moreover,
as with Jones, Majors presents facts very different from those presented
by Ms. Loertscher. The candidate in Majors had not left Indiana; he
still resided there and, if he pursued office again, would continue to be
subject to the law. Ms. Loertscher, however, permanently has removed
20 No. 17‐1936
Ms. Loertscher has not shown that she has a reasonable
expectation that she will again be subject to the provisions of
Act 292, and, therefore, she has not satisfied the conditions of
establishing the exception to mootness for claims capable of
repetition but evading review.
Conclusion
For the reasons set forth in this opinion, Ms. Loertscher�s
claim for injunctive relief against the state defendants is moot.
Because this action became moot through Ms. Loertscher�s
voluntary departure from the State of Wisconsin, we vacate
the district court�s entry of summary judgment and injunctive
relief in favor of Ms. Loertscher, see Azar v. Garza, No. 17‐654,
2018 WL 2465222, at *2 (U.S. June 4, 2018), and remand to the
district court with instructions to dismiss the action as moot.

* * *

herself from Wisconsin, and there is no longer a threat that she will be
subject to Act 292�or any other Wisconsin law.

Outcome: VACATED and REMANDED with INSTRUCTIONS to DISMISS

Plaintiff's Experts:

Defendant's Experts:

Comments: