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Pursley v. Ed Lake

United States District Court, W.D. Oklahoma

May 8, 2017

STEPHEN PURSLEY, KRISTA PURSLEY, and SECOND AMENDMENT FOUNDATION, INC., Plaintiffs,
v.
ED LAKE, in his official capacity as Director of the Oklahoma Department of Human Services, Defendant.

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE

         Plaintiffs filed this action for declaratory and injunctive relief asserting that a policy of the Oklahoma Department of Human Services prohibited foster and adoptive parents, from possession of weapons except under certain circumstances is in violation of the Second Amendment to the United States Constitution. The parties filed motions for summary judgment, Plaintiffs asserting they had established the merits of their claims (Doc. Nos. 27, 28, 33), and Defendant argues Plaintiffs' claims are moot because the policy at issue was rescinded in 2015. (Doc. No. 26). Having considered the parties' filings, the Court finds as follows.

         Defendant Lake is the Director of the Department of Human Services, and thus responsible for formulating policies and adopting the rules and regulations for administration of the Department's duties. The Department's responsibilities include administration of the Oklahoma Children's Code and overseeing the placement of children for foster care and adoption. Plaintiffs Stephen and Krista Pursley have provided care for children via the State's foster care program, have adopted a child through the program, and indicate the desire to provide foster care for additional children in the future. They contend, however, that the Weapon Safety Agreement for Foster and Adoptive Family (“WSA”) contained in their 2014 and 2015 re-certification packets violated their rights under the Second Amendment, because it restricted their ability to both possess and use firearms while servings as foster or adoptive parents.[1]

         Although Krista and Stephen Pursley apparently disagreed with the contents of the WSA, they signed a version on September 18, 2015. Defendant contends, however, that on September 25, 2015, the Department's managers and directors were informed to cease using the WSA. Defendant contends that since that time, the WSA has not been in effect.

         Defendant contends that because the WSA is no longer in use that there is no longer a case or controversy, that is that it is moot, thereby depriving this Court of jurisdiction. Defendant further asserts that Plaintiffs lack standing. Finally, Defendant contends he is entitled to judgment as a matter of law for the alleged violation of Plaintiff's federal and state constitutional rights, as well as the contention that the WSA violated the Oklahoma Self-Defense Act, because the Pursleys were free to have chosen not to serve as foster or adoptive parents. In response Plaintiffs contend the dispute is not moot, that they have standing to pursue their claims and that Defendant is not entitled to summary judgment on the merits.

         In general, “a federal court cannot give opinions absent a live case or controversy before it, ” In re Overland Park Fin. Corp., 236 F.3d 1246, 1254 (10th Cir. 2001)(citation and quotations omitted). “[T]he existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction, ” Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir. 2005)(internal quotations omitted)(quoting McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996)). Accordingly, “[m]ootness is a threshold issue.” Id. With regard to a declaratory judgment and mootness, “[t]he crucial question is whether granting a present determination of the issues offered will have some effect on the real world.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010)(internal quotations and emphasis omitted)(quoting Wyoming v. U.S. Dept. of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005).

         There are exceptions to the doctrine of mootness, specifically, a controversy can be capable of repetition yet evading review, in which case judicial consideration remains appropriate. This exception applies where “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.” Brown v. Buhman, 822 F.3d 1151, 1165-66 (10th Cir. 2016), cert. denied, 137 S.Ct. 828, 197 L.Ed.2d 68 (2017). A second exception applies when a defendant voluntarily ceases a challenged action. This exception traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1121 (10th Cir. 2009) (internal quotation and citations omitted); Chihuahuan Grasslands All., 545 F.3d at 892 (“[T]his exception exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct.”).

         In response to the motion, Plaintiffs first assert that because “[t]here is no official ruling or judgment preventing the next OKDHS official from reinstating the WSA . . . this matter is capable of repetition yet evading review.” Doc. No. 41, p. 4. Without elaborating on this exception, Plaintiffs proceed to argue this case falls within the voluntary-cessation exception to mootness, because Defendant revoked use of the WSA only after initiation of the instant litigation. The Court assumes Plaintiffs intend only to rely on the voluntary cessation exception to the mootness doctrine given their failure to fully develop the capable of repetition argument. Having considered the contours of the exception, the Court finds that Defendant has successfully met his burden of establishing that the instant controversy is moot.

         In order for voluntary actions to moot litigation, two conditions must be satisfied: “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County. of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379 (1979). “Voluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.” Rio Grande, 601 F.3d at 1115-16. (citation omitted). “The party asserting mootness bears the ‘heavy burden of persuading' the court that the challenged conduct cannot reasonably be expected to start up again.” Id. at 1116 (internal alteration omitted).

         Although the burden is described as “heavy, ” its impact on government actors is often lightened. See id. (“Laidlaw's heavy burden frequently has not prevented governmental officials from discontinuing challenged practices and mooting a case”). Thus, “withdrawal or alteration of administrative policies can moot an attack on those policies.” Id. at 1117 (alteration and quotations omitted) (quoting Bahnmiller v. Derwinski, 923 F.2d 1085, 1089 (4th Cir. 1991)). “And the ‘mere possibility' that an agency might rescind amendments to its actions or regulations does not enliven a moot controversy.” Id. (citation omitted).

         As set forth above, County of Los Angeles sets forth a two-part test for voluntary cessation. The first factor requires the Court to ascertain whether it can “say with assurance ‘‘that there is no reasonable expectation' that the alleged violation will recur.'” Rio Grande, 601 F.3d at 1117 (quoting County of Los Angeles, 440 U.S. at 631). The declarations of Carlene Harp and Patricia Johnson lead the Court to conclude that there is no reasonable assurance that the Oklahoma DHS will revert to its prior practice of requiring foster and adoptive parents to execute the WSA. Carlene Harp's declaration includes the following:

I am familiar with the “Weapon Safety Agreement for Foster or Adoptive Family “WSA” that was utilized for a short time period by the Oklahoma Department of Human services. The WSA was provided to foster and adoptive applicants and those being re-certified as such. That WSA is no longer in use and has been revoked.

Doc. No. 26-3. Patricia Johnson's Declaration states:

On September 25, 2015, Kim Sober (Child Welfare Field Administrator) emailed me and other managers and directors informing us to immediately stop using the WSA and to inform all staff to cease use of the form. . . . The WSA has been revoked and is no ...

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