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CRS Annotated Constitution

Article III -- Table of ContentsPrev | Next

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


Footnotes

462 E.g., United States v. Munsingwear, 340 U.S. 36 (1950); Golden v. Zwickler, 394 U.S. 103, 108 (1969); SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972); Roe v. Wade, 410 U.S. 113, 125 (1973); Sosna v. Iowa, 419 U.S. 393, 398–399 (1975); United States Parole Comm. v. Geraghty, 445 U.S. 388, 397 (1980), and id., 411 (Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 (1987); Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990).

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.

463 Lewis v. Continental Bank Corp., 494 U.S. 472,477–478 (1990) (internal citations omitted). The Court’s emphasis upon mootness as a constitutional rule mandated by Article III is long stated in the cases. E.g., Liner v. Jafco, 375 U.S. 301, 306 n. 3 (1964); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974); Sibron v. New York, 392 U.S. 40, 57 (1968). See Honig v. Doe, 484 U.S. 305, 317 (1988), and id., 332 (Justice Scalia dissenting). But compare Franks v. Bowman Transp. Co., 424 U.S. 747, 756 n. 8 (1976) (referring to mootness as presenting policy rather than constitutional considerations). If this foundation exists, it is hard to explain the exceptions, which partake of practical reasoning. In any event, Chief Justice Rehnquist has argued that the mootness doctrine is not constitutionally based, or not sufficiently based only on Article III, so that the Court should not dismiss cases that have become moot after the Court has taken them for review. Honig, supra, 329 (concurring).

Supplement: [PP. 679, add to n.463:]

Consider the impact of Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993) .

464 But see Steffel v. Thompson, 415 U.S. 452, 470–472 (1974); id., 477 (Justice White concurring), 482 n. 3 (Justice Rehnquist concurring) (on res judicata effect in state court in subsequent prosecution). In any event, the statute authorizes the federal court to grant “[f]urther necessary or proper relief” which could include enjoining state prosecutions.
465 Award of process and execution are no longer essential to the concept of judicial power. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
466 E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. (54 U.S.) 518 (1852); United States v. Alaska Steamship Co., 253 U.S. 113 (1920); Hall v. Beals, 396 U.S. 45 (1969); Sanks v. Georgia, 401 U.S. 144 (1971); Richardson v. Wright, 405 U.S. 208 (1972); Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972); Lewis v. Continental Bank Corp., 494 U.S. 481 (1990). But compare City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288–289 (1982) (case not mooted by repeal of ordinance, since City made clear its intention to reenact it if free from lower court judgment).

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).

467 Atherton Mills v. Johnston, 259 U.S. 13 (1922) (in challenge to laws regulating labor of youths 14 to 16, Court held case two–and–one–half years after argument and dismissed as moot since certainly none of the challengers was now in the age bracket); Golden v. Zwickler, 394 U.S. 103 (1969); DeFunis v. Odegaard, 416 U.S. 312 (1974); Dove v. United States, 423 U.S. 325 (1976); Lane v. Williams, 455 U.S. 624 (1982). Compare County of Los Angeles v. Davis, 440 U.S. 625 (1979), with Vitek v. Jones, 445 U.S. 480 (1980).

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.

468 E.g. Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919); Oil Workers Local 8–6 v. Missouri, 361 U.S. 363 (1960); A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961); Preiser v. Newkirk, 422 U.S. 395 (1975); County of Los Angeles v. Davis, 440 U.S. 625 (1979).
469 Sibron v. New York, 395 U.S. 40, 50–58 (1968).

Supplement: [P. 680, add to n.469:]

But compare Spencer v. Kemna, 523 U.S. 1 (1998) .

470 Benton v. Maryland, 395 U.S. 784, 790–791 (1969). The cases have progressed from leaning toward mootness to leaning strongly against. E.g., St. Pierre v. United States, 319 U.S. 41 (1943); Fiswick v. United States, 329 U.S. 211 (1946); United States v. Morgan, 346 U.S. 502 (1954); Pollard v. United States, 352 U.S. 354 (1957); Ginsberg v. New York, 390 U.S. 629, 633–634 n. 2 (1968); Sibron v. New York, 392 U.S. 40, 49–58 (1968); but see Lane v. Williams, 455 U.S. 624 (1982). The exception permits review at the instance of the prosecution as well as defendant. Pennsylvania v. Mimms, 434 U.S. 106 (1977). When a convicted defendant dies while his case is on direct review, the Court’s present practice is to dismiss the petition for certiorari. Dove v. United States, 423 U.S. 325 (1976), overruling Durham v. United States, 401 U.S. 481 (1971).
471 Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452 (1911); Carroll v. President & Comrs. of Princess Anne, 393 U.S. 175 (1968). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974) (holding that expiration of strike did not moot employer challenge to state regulations entitling strikers to state welfare assistance since the consequences of the regulations would continue).
472 United States v. Trans–Missouri Freight Assn., 166 U.S. 290 (1897); Walling v. Helmerich & Payne, 323 U.S. 37 (1944); Porter v. Lee, 328 U.S. 246 (1946); United States v. W.T. Grant Co., 345 U.S. 629 (1953); Gray v. Sanders, 372 U.S. 368 (1963); United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 202–204 (1969); DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles v. Davis, 440 U.S. 625, 631–634 (1979), and id., 641–646 (Justice Powell dissenting); Vitek v. Jones, 445 U.S. 480, 486–487 (1980), and id., 500– 501 (Justice Stewart dissenting); Princeton University v. Schmidt, 455 U.S. 100 (1982); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288–289 (1982).
473 United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d. Cir., 1945)).
474 United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). But see A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961).
475 Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).
476 Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v. Hunt, 455 U.S. 478, 482 (1982). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125–126 (1974), and id., 130–132 (Justice Powell dissenting). The degree of expectation or likelihood that the issue will recur has frequently divided the Court. Compare Murphy v. Hunt, supra, with Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); compare Honig v. Doe, 484 U.S. 305, 318–323 (1988), with id., 332 (Justice Scalia dissenting).

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).

477 Sibron v. New York, 392 U.S. 40, 49–58 (1968). See Gerstein v. Pugh, 420 U.S. 103 (1975).
478 Carroll v. President & Comrs. of Princess Anne, 393 U.S. 175 (1968). See Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976) (short–term court order restricting press coverage).
479 E.g., Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5 (1973); Storer v. Brown, 415 U.S. 724, 737 n. 8 (1974). Compare Mills v. Green, 159 U.S. 651 (1895); Ray v. Blair, 343 U.S. 154 (1952).
480 Roe v. Wade, 410 U.S. 113, 124–125 (1973).
481 Sosna v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman Transp. Co., 424 U.S. 747, 752–757 (1976). A suit which proceeds as a class action but without formal certification may not receive the benefits of this rule. Board of School Comrs. v. Jacobs, 420 U.S. 128 (1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the characterization of these cases in United States Parole Comm. v. Geraghty, 445 U.S. 388, 400 n. 7 (1980). Mootness is not necessarily avoided in properly certified cases, but the standards of determination are unclear. See Kremens v. Bartley, 431 U.S. 119 (1977).
482 United States Parole Comm. v. Geraghty, 445 U.S. 388, 396 (1980).
483 Id., 403. Justices Powell, Stewart, Rehnquist, and Chief Justice Burger dissented, Id., 409, arguing there could be no Article III personal stake in a procedural decision separate from the outcome of the case. In Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), in an opinion by Chief Justice Burger, the Court held that a class action was not mooted when defendant tendered to the named plaintiffs the full amount of recovery they had individually asked for and could hope to retain. Plaintiffs’ interest in shifting part of the share of costs of litigation to those who would share in its benefits if the class were certified was deemed to be a sufficient “personal stake,” although the value of this interest was at best speculative.
484 The named plaintiff must still satisfy the class action requirement of adequacy of representation. United States Parole Comm. v. Geraghty, 445 U.S. 388, 405–407 (1980). On the implications of Geraghty, which the Court has not returned to, see Hart & Wechsler, op. cit., n.250, 225–230.
485 Geraghty, supra, 445 U.S., 404 and n. 11.
486 Id., 419–424 (Justice Powell dissenting).
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