# D.S.A. v. Circuit Court Branch 1, Rock County Juvenile Probation Department, John Whitcomb and Donald Hanaway > Court of Appeals for the Seventh Circuit · September 5, 1991 · 942 F.2d 1143 URL: https://www.frixlaw.com/law-library/cases/9482011 ## Case - **Full name:** D.S.A., Petitioner-Appellant, v. CIRCUIT COURT BRANCH 1, Rock County Juvenile Probation Department, John Whitcomb and Donald Hanaway, Respondents-Appellees - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** September 5, 1991 - **Citations:** 942 F.2d 1143; 1991 U.S. App. LEXIS 20787; 1991 WL 169306 - **Precedential status:** Published - **Opinion:** Dissent by Easterbrook - **Judges:** Cudahy, Easterbrook, Ripple - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482011 ## How later opinions describe it (automated extraction) - noting a case is moot “when the Court can offer no relief because the harm is done and cannot be undone ... [and] the Court no longer has jurisdiction to hear it.” - noting that the Supreme Court in Finley “refused to extend the due process clause to post-conviction proceedings that were purely collateral attacks on the conviction” ## Opinion text EASTERBROOK, Circuit Judge, dissenting. Before giving the judges and other pub-lie officials of Wisconsin our views about what the Constitution requires of them, we should be sure that we have done what the Constitution requires of us. As it happens, we have not. This case is moot. In issuing a judgment that cannot alter anyone's legal entitlements, we claim a power Article III does not allow federal judges to exercise. Between 1985 and 1988 Wisconsin treated D.S.A. as a "child in need of protection and services" after a judge concluded that at age 11 she participated in a murder. On November 11, 1988, the day before Wisconsin terminated all custody over her, D.S.A. filed a petition for a writ of habeas corpus. Wisconsin practices forgiveness; under Wis.Stat. § 48.35(1)(a) the judgment "is not a conviction of a crime [and] shall not impose any civil disabilities". No one may know about the decision unless a court orders the information released (a rule we have respected by concealing D.S.A.'s name). So far as Wisconsin is concerned, the adjudication counts no more in D.S.A.'s future life than does a spanking. From its outset, this litigation has had nothing to do with the restrictions Wisconsin imposes; it *1154 was filed at the last instant only to obtain an advisory opinion. Carafas v. LaVallee, 391 U.S. 234 , 88 S.Ct. 1556 , 20 L.Ed.2d 554 (1968), and Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968), hold that collateral consequences of a criminal conviction may prevent the expiration of imprisonment from mooting a request for collateral relief. Carafas, for example, was barred from holding certain offices, voting in state elections, and serving as a juror. D.S.A. suffers no such disabilities. She argues, instead, that if she commits a future crime the sentencing judge may learn about the adjudication (although under § 48.35(1)(b)(1) it may not be the basis of a recidivism enhancement), that the adjudication may be brought out in cross-examination if in the future she is called as a witness in someone else’s trial, and that potential employers may react adversely to the adjudication if they should happen to learn about it. None of these things, however, is a legal disability imposed by the government. See United States v. Bush, 888 F.2d 1145 (7th Cir.1989); Wickstrom v. Schardt, 798 F.2d 268, 270 (7th Cir.1986). None is “custody”, Maleng v. Cook, 490 U.S. 488 , 109 S.Ct. 1923 , 104 L.Ed.2d 540 (1989), and the writ runs only in favor of persons held in custody in violation of the Constitution or federal law. What to do about an unrealized possibility of adverse effects was the subject of Lane v. Williams, 455 U.S. 624, 631-34 , 102 S.Ct. 1322, 1326-28 , 71 L.Ed.2d 508 (1982), which dismissed a collateral attack on the revocation of parole. Before the case could be decided, the prisoners were released; the Court held the case moot because there were no collateral consequences. “At most, certain nonstatutory consequences may occur; employment prospects, or the sentence imposed in a future criminal proceeding, could be affected.” 455 U.S. at 632 , 102 S.Ct. at 1327 . Lane holds these insufficient to keep the case alive, because they are not legal consequences of the decision under challenge. As the Court observed, “discretionary decisions that are made by an employer or a sentencing judge ... are not governed by the mere presence or absence of a recorded violation of parole; these decisions may take into consideration, and are more directly influenced by, the underlying conduct”. Id. at 632-33 , 102 S.Ct. at 1327-28 . Lest doubt linger, Lane remarked that the parolees could avoid enhancement by refraining from violating the law again, and continued, id. at 633 n. 13, 102 S.Ct. at 1328 n. 13: “Collateral review of a final judgment is not an endeavor to be undertaken lightly. It is not warranted absent a showing that the complainant suffers actual harm from the judgment that he seeks to avoid.” Every feature said to keep D.S.A.’s case alive was present in Lane and held insufficient. Granted, Evitts v. Lucey, 469 U.S. 387 , 391 n. 4, 105 S.Ct. 830 , 833 n. 4, 83 L.Ed.2d 821 (1985), complicates matters, for it deemed adequate to stave off mootness the prospect of enhanced sentencing for future crimes, one of the possibilities deemed inadequate in Lane — and without citation to Lane . It hardly follows, as my colleagues believe, that Lane has been overruled by silence. We cannot resolve a conflict in a higher court’s decisions. But we can, and should, hold that the possibility of collateral legal consequences from D.S.A.’s adjudication is vanishingly small. A case is moot unless there is a “reasonable expectation”, Murphy v. Hunt, 455 U.S. 478, 482 , 102 S.Ct. 1181, 1183 , 71 L.Ed.2d 353 (1982), that this judgment will again haunt these litigants. What this phrase means is a subject of recurring dispute, driven by inability to quantify probabilities. Compare Honig v. Doe, 484 U.S. 305, 317-23 , 108 S.Ct. 592, 600-04 , 98 L.Ed.2d 686 (1988), with Riverside County v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 1667 , 114 L.Ed.2d 49 (1991). But we do know that either a low probability or doubt about the context of future disputation requires a court to dismiss the case. Renne v. Geary, — U.S. -, 111 S.Ct. 2331, 2338-40 , 115 L.Ed.2d 288 (1991). We also know that the pertinent inquiry is whether these litigants will encounter the same dispute. Weinstein v. Bradford, 423 U.S. 147, 149 , 96 S.Ct. 347, 348 , 46 L.Ed.2d *1155 350 (1975). My colleagues do not articulate their definition of mootness, but their catalog of potential effects implies a view that a case is not moot unless there is zero probability that the judgment will ever affect the future interaction of the parties, or the relations between one of the parties and some stranger. That is not the test stated in Lane, Honig, Renne, or any other decision of the Supreme Court, and it certainly is not implied by the brief footnote in Evitts . The conviction questioned in Evitts might have led to a recidivist enhancement; the same parties again would be embroiled in disputing the validity of the conviction. Nothing of the sort lies in store for D.S.A. and Wisconsin. The state has promised through § 48.35 that there will be no future legal consequences. Although it has not forbidden a judge to consider the adjudication if there should be some future custody dispute concerning D.S.A. and her own children (should she have any), there are so many “ifs” and “buts” and “maybes” between here and there that both the possibility of a dispute and the form it will take are hopelessly conjectural. What juries will think of D.S.A.’s testimony in a stranger’s case (her adjudication cannot be used to cross-examine her should she be a party) has nothing to do with any dispute between her and the state. It is always possible that someone, somewhere, sometime will learn about the adjudication and hold it against D.S.A. Lane held such a possibility insufficient; Evitts did not disagree. Using teensy possibilities of extra-legal effects to find a continuing case or controversy between D.S.A. and Wisconsin abolishes the mootness doctrine. I put it to my colleagues: If this case is not moot, please describe one that is. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482011. Public record. Not legal advice.