As we all know, courts do not issue
advisory opinions on hypothetical
questions – hence the requirement
of an “actual case or controversy,” even in
a declaratory judgment action. In certain
circumstances, though, an appellate court
may exercise “hypothetical jurisdiction”
in order to reach the merits in an appeal
where appellate jurisdiction is uncertain.
e rationale for exercising hypothetical
jurisdiction is that it promotes judicial
economy by allowing the court to rest
its decision on the most clear-cut of the
dispositive issues, and thus avoid spending
extensive time researching and analyzing
more complex issues, disposition of which is
not essential to resolving the case.
e federal courts have long recognized their
power to exercise hypothetical jurisdiction,
bypassing dicult jurisdictional questions in
cases where the substantive merits are more
clear. e Supreme Court expressly endorsed
this practice in Norton v. Mathews, 427 U.S.
524, 96 S. Ct. 2771 (1976). Later, in Steel
Co. v. Citizens for a Better Environment,
523 U.S. 83, 118 S. Ct. 1003 (1998),
the Court somewhat limited the exercise
of such jurisdiction, nding it improper
in the context of Article III jurisdictional
questions. In cases not involving
constitutional jurisdictional issues, however,
some federal appellate courts have continued
to exercise hypothetical jurisdiction when
they have found it appropriate. e ird
Circuit has done so repeatedly in the years
since the Supreme Court decided Steel Co.
See, e.g., Bond v. Beard, 539 F.3d 256 (3d
Cir. 2008); Bello v. Gonzales, 152 Fed. Appx.
146 (3d Cir. 2005); Bowers v. NCAA, 346
F.3d 402 (3d Cir. 2003).
In the state court system, the Pennsylvania
Supreme Court has not directly addressed
the question of hypothetical jurisdiction.
In a concurring opinion, however, Justice
Saylor expressed approval of the practice,
noting: “In my view, this approach
constitutes a reasonable means of insuring
judicial economy in cases involving
clearly meritless claims, and, furthermore,
it comports with this Court’s similar
WHAT IS “HYPOTHETICAL JURISDICTION” OVER AN APPEAL?
By Debra P. Fourlas
JANUARY 2011
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