CRS Annotated Constitution
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Mootness.—It may be that a case presenting all the attributes necessary for federal court litigation will at some point lose some attribute of justiciability, will, in other words, become “moot.” The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply at the date the action is initiated.462 “Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. . . . Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them, . . . and confines them to resolving ‘real and substantial controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ . . . This case–or–controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals. . . . The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.”463 Since, with the ad[p.680]vent of declaratory judgments, it is open to the federal courts to “declare the rights and other legal relations” of the parties with res judicata effect,464 the question in cases alleged to be moot now seems largely if not exclusively to be decided in terms whether an actual controversy continues to exist between the parties rather than some additional older concepts.465
Cases may become moot because of a change in the law,466 or in the status of the parties,467 or because of some act of one of the parties which dissolves the controversy.468 But the Court has developed several exceptions, which operate to prevent many of the cases in which mootness is alleged from being in law moot. Thus, in criminal cases, although the sentence of the convicted appellant has been served, the case “is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.”469 The “mere possibility” of such a consequence, even a “remote” one, is enough to find that one who has served his sentence has retained the req[p.681]uisite personal stake giving his case “an adversary cast and making it justiciable.”470 This exception has its counterpart in civil litigation in which a lower court judgment may still have certain present or future adverse effects on the challenging party.471
A second exception, the “voluntary cessation” doctrine, focuses on whether challenged conduct which has lapsed or the utilization of a statute which has been superseded is likely to recur.472 Thus, cessation of the challenged activity by the voluntary choice of the person engaging in it, especially if he contends that he was properly engaging in it, will moot the case only if it can be said with assurance “that ‘there is no reasonable expectation that the wrong will be repeated.”’473 Otherwise, “[t]he defendant is free to return to his old ways” and this fact would be enough to prevent mootness because of the “public interest in having the legality of the practices settled.”474
Still a third exception concerns the ability to challenge short– term conduct which may recur in the future, which has been denominated as disputes “capable of repetition, yet evading review.”475 Thus, in cases in which (1) the challenged action is too short in its duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same[p.682]complaining party would be subjected to the same action again, mootness will not be found when the complained–of conduct ends.476 The imposition of short sentences in criminal cases,477 the issuance of injunctions to expire in a brief period,478 and the short–term factual context of certain events, such as elections479 or pregnancies,480 are all instances in which this exception is frequently invoked.
An interesting and potentially significant liberalization of the law of mootness, perhaps as part of a continuing circumstances exception, is occurring in the context of class action litigation. It is now clearly established that, when the controversy becomes moot as to the plaintiff in a certified class action, it still remains alive for the class he represents so long as an adversary relationship sufficient to constitute a live controversy between the class members and the other party exists.481 The Court was closely divided, however, with respect to the right of the named party, when the substantive controversy became moot as to him, to appeal as error the denial of a motion to certify the class which he sought to represent and which he still sought to represent. The Court held that in the class action setting there are two aspects of the Article III mootness question, the existence of a live controversy and the existence of a personal stake in the outcome for the named class representative.482 Finding a live controversy, the Court determined that the named plaintiff retained a sufficient interest, “a personal[p.683]stake,” in his claimed right to represent the class in order to satisfy the “imperatives of a dispute capable of judicial resolution;” that is, his continuing interest adequately assures that “sharply presented issues” are placed before the court “in a concrete factual setting” with “self–interested parties vigorously advocating opposing positions.”483
The immediate effect of the decision is that litigation in which class actions are properly certified or in which they should have been certified will rarely ever be mooted if the named plaintiff (or in effect his attorney) chooses to pursue the matter, even though the named plaintiff can no longer obtain any personal relief from the decision sought.484 Of much greater potential significance is the possible extension of the weakening of the “personal stake” requirement in other areas, such as the representation of third–party claims in non– class actions and the initiation of some litigation in the form of a “private attorneys general” pursuit of adjudication.485 It may be that the evolution in this area will be confined to the class action context, but cabining of a “flexible” doctrine of standing may be difficult.486
Supplement: [P. 679, add to n.462:]
Munsingwear had long stood for the proposition that the appropriate practice of the Court in a civil case that had become moot while on the way to the Court or after certiorari had been granted was to vacate or reverse and remand with directions to dismiss. But, in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) , the Court held that when mootness occurs because the parties have reached a settlement, vacatur of the judgment below is ordinarily not the best practice; instead, equitable principles should be applied so as to preserve a presumptively correct and valuable precedent, unless a court concludes that the public interest would be served by vacatur.
Supplement: [PP. 679, add to n.463:]
Consider the impact of Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993) .
Supplement: [P. 680, add to n.466:]
Following Aladdin’s Castle, the Court in Northeastern Fla. Ch., Assoc. Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 660–63 (1993) , held that when a municipal ordinance is repealed but replaced by one sufficiently similar so that the challenged action in effect continues, the case is not moot. But see id. at 669 (Justice O’Connor dissenting) (modification of ordinance more significant and case is mooted).
Supplement: [P. 680, add to n.467:]
In Arizonans For Official English v. Arizona, 520 U.S. 43 (1997) , a state employee attacking an English–only work requirement had standing at the time she brought the suit, but she resigned following a decision in the trial court, thus mooting the case before it was taken to the appellate court, which should not have acted to hear and decide it.
Supplement: [P. 680, add to n.469:]
But compare Spencer v. Kemna, 523 U.S. 1 (1998) .
Supplement: [P. 682, add to n.476 following Super Tire citation:]
Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. Ct. 693, 708–10 (2000).
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