Con Law Quick Tip: Spotting and Analyzing Mootness

Duck?
 
Rabbit?
 
Rabbit?
 
Duck?

In this so-called “ambiguous illusion,” there are 2 images—1 of a duck and 1 of a rabbit. The magic of ambiguous illusions is that a viewer can’t see the multiple images simultaneously. When the viewer is regarding a rabbit, there’s no duck in sight; but when the viewer pays attention to the duck, the rabbit is in absentia.
 
This is how you’re most likely to encounter the justiciability doctrine of mootness on the bar exam. You’re going to see mootness—or you’re not going to see mootness because you’re focused on mootness’s complementary doctrine—ripeness. Duck or rabbit, but not both.

Let’s review. Article III limits the judicial branch’s power to actual cases or controversies. The case-or-controversy requirement prohibits advisory opinions, which are judicial opinions that simply interpret a law without adjudicating a genuine dispute between authentically adverse parties (as opposed to parties who collude to bring a lawsuit to obtain what would otherwise be an advisory opinion).
 
Thus, the doctrine of mootness requires a plaintiff to bring a claim with practical significance that will affect the parties’ legal interests. If a favorable judicial decision will no longer affect the plaintiff, a federal court will dismiss the case as moot.
 

Like the mootness doctrine, the ripeness doctrine also requires a plaintiff to bring a genuine claim against an authentically adverse party. The ripeness doctrine directs federal courts to abstain from adjudicating a speculative dispute over future events that are unlikely to develop, such as a claim based on a vague possibility of general harm or a challenge to a statute that’s never been enforced. In other words, a claim that’s ripe involves either a past injury or a threat of a real and immediate injury that’s not speculative. If a claim doesn’t seek to remedy a past injury or avert a real and immediate injury, the claim is unripe for adjudication and must be dismissed.
 

Simply put, the mootness doctrine bars adjudication of old, stale disputes, whereas the ripeness doctrine bars adjudication of nascent, immature disputes. Thus, a question that presents the readiness of a dispute for judicial resolution implicates these doctrines.
 

The bar exam also commonly tests mootness by testing the exceptions to the doctrine. Even if a case would otherwise be deemed moot, a court will adjudicate it if it falls within one of the three exceptions to the mootness doctrine.
 

The first exception to the mootness doctrine is exceptionally straightforward and has limited applicability. If a plaintiff is a representative member in a class-action lawsuit and that plaintiff’s individual claim becomes moot, a court will adjudicate the matter provided that there are other class members who still have pending claims. This exception often turns up in a fact pattern involving a class action brought by incarcerated persons challenging some aspect of the conditions of their incarceration. During the action’s pendency, the class representative is released from incarceration, thereby mooting the representative’s claim. Although the lawsuit is indeed moot with respect to the released class representative, it isn’t moot with respect to the rest of the class. Thus, a court will hear the case.
 

The second exception to the mootness doctrine is also very straightforward, although it has broader applicability than the class-action-representative exception. If a defendant strategically ceases the challenged conduct to undermine an adverse ruling but is completely free to resume the challenged conduct, a court will adjudicate the parties’ dispute. To dismiss the case for mootness would likely spawn an endless game of cat and mouse.

The defendant would undertake the challenged conduct; the plaintiff would sue;
the defendant would cease the challenged conduct; the court would dismiss the plaintiff’s claim as moot; the defendant would resume the challenged conduct . . . and on and on indefinitely. 
 
This voluntary-cessation exception is often presented in the context of environmental malfeasance, such as scenarios in which a polluter voluntarily stops polluting only because an injured party filed a lawsuit but then commences polluting after the case is dismissed as moot. Courts, not known for their fondness for never-ending litigation, will adjudicate these types of disputes in furtherance of judicial finality.
 

The third exception to the mootness doctrine is the most commonly tested and the most complicated. Under this exception, issues that are capable of repetition but evade review are not moot. Historically, this exception was tested in the context of a pregnant woman’s challenge to an abortion law. Because human gestation takes approximately 40 weeks, any pregnancy is likely to be concluded long before a pregnant challenger to an abortion law could have her claim adjudicated. Thus, because a favorable judicial decision would not affect the no-longer-pregnant challenger, the challenge would be moot. However, if a court treated the challenge as mooted by the challenger’s giving birth, a challenge to the law might never be heard. Thus, courts will not dismiss these types of cases on mootness grounds and will adjudicate them under this exception.
 
(It’s worth noting that because there is no longer a constitutional right to an abortion and abortion challenges are subject only to minimal judicial scrutiny, it’s unlikely that the bar will test this exception in the abortion context in the future.)
 

Now, let’s look at a typical mootness question:
 
Suppose a county owned and operated a utility that supplied natural gas to the county’s businesses and residences. The county implemented a plan to replace the existing gas meters with newer, more efficient meters that permitted the utility to read the meters remotely. The county neither gave advance notice of the plan to property owners nor obtained their consent for the meter replacement. A farmer who opposed the new meter installation sought a hearing on the county’s plan, which was denied. The farmer then blocked the county’s access to his property, obstructing the county’s effort to replace the gas meter. The county responded by threatening to arrest and prosecute the farmer for disorderly conduct. The farmer sued the county in federal district court, challenging the meter-replacement plan on due-process grounds and seeking to enjoin its enforcement. The county moved to dismiss. While the county’s dismissal motion was pending, the county passed an emergency measure requiring both prior notice and property-owner consent before the replacement of any utility meter.
 
Should the court grant the county’s dismissal motion?
 
The answer is yes because the case is moot. It’s moot because while the farmer’s action was pending, the county passed an emergency measure providing precisely the relief the farmer was seeking through his lawsuit. Therefore, because a favorable court ruling would no longer affect the farmer, his claim is moot.
 
With a small tweak to the facts, we can see how the ripeness doctrine applies:
 
Suppose that, instead of implementing the gas-meter-replacement plan, the county was considering a variety of plans to improve gas-meter reading, one of which was the gas-meter-replacement plan. When the farmer learned about the county’s consideration of ways to improve gas-meter reading, the farmer filed the same lawsuit, challenging the gas-meter-replacement plan on due-process grounds and seeking to enjoin the county from replacing any meters. The county moved to dismiss on ripeness grounds.
 
Should the court grant the county’s dismissal motion under these circumstances?
 
Yes, the court should grant the county’s dismissal here as well because the case is not ripe for adjudication. Because the county has not decided which meter plan to implement, if any, the farmer’s claim is based on the vague possibility of some speculative harm. The farmer’s lawsuit neither claims a past injury nor a threat of real and immediate injury; therefore, it’s not ripe.
 

Any bar question that implicates whether a case is ready for adjudication should trigger a quick check for mootness and its complementary doctrine, ripeness. And, just like the duck-rabbit illusion, in which both images cannot be appreciated at the same time, a case cannot be both moot and ripe simultaneously.

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