Navigating Through the Problem of Mootness in Corrections Litigation

NAVIGATING THROUGH THE PROBLEM OF MOOTNESS IN CORRECTIONS LITIGATION STEVEN B. DOW, J.D., PH.D. * I. INTRODUCTION Litigation in federal courts has become a routine part of corrections management. 1 This has made it incumbent upon corrections officials to increase their awareness of legal issues that were typically left to corrections counsel in the past. One such issue is the “mootness” doctrine, which is the focus of this Article. While this issue might seem rather esoteric and highly legalistic, that is clearly not the case. Mootness is not just a concern for department of corrections counsel. On the contrary, certain decisions directly related to mootness are frequently made by corrections administrators without consulting corrections counsel. This, in turn, can have a significant impact on the outcome of litigation, especially in federal court. For example, the decision of whether and when to transfer an inmate to a different unit within the same facility or to another facility, decisions on policy changes on an array of matters such as prisoner diets, religious practices, and grooming are squarely within the purview of corrections administrators. 2 Effective corrections management requires corrections officials to understand how these decisions relate to mootness within the context of litigation. The purpose of this Article is to provide an overview and analysis of the doctrine of mootness that will help corrections officials and the lawyers who advise them navigate through the doctrine’s principles and important exceptions. The first two sections of this Article will outline the basic concept of mootness by using some of the leading cases to illustrate the key principles. 3 The Article will next analyze the ways in which mootness impacts corrections litigation. 4 This will include a discussion of the Copyright © 2015, Steven B. Dow, J.D., Ph. D. * Associate Professor School of Criminal Justice, Michigan State University. 1 Susan P. Sturm, The Legacy and Future of Corrections Litigation , 142 U. PA. L. REV. 639, 662 (1993). 2 See Mark D. Martin & Thomas A. Rosazza, Resource Guide for Jail Administrators , U.S. DEP’T OF JUSTICE NAT’L INST. OF CORRECTIONS 21 (Dec. 2004), http://static.nicic.gov/ Library/020030.pdf. 3 See infra Parts II–III. 4 See infra Part IV. 652 CAPITAL UNIVERSITY LAW REVIEW [43:651 important exceptions to the mootness rule—“capable of repetition, yet evading review” and “voluntary cessation,”—and explain why these frequently arise in routine corrections litigation. 5 The final section of the Article will discuss the practical strategies that can be employed with respect to the mootness issue in litigation. 6 II. BASIC CONCEPT OF MOOTNESS With respect to federal courts, the mootness doctrine is anchored primarily in Article III of the United States Constitution, which governs the scope of federal judicial power. 7 Under Article III, that power extends to certain “cases” and “controversies;” 8 that is, federal courts are constitutionally permitted to hear only cases and controversies. 9 By implication, these courts are not permitted to hear a legal matter that is not classified as a case or controversy. 10 The words “cases” and “controversies” are not defined in the Constitution. Instead, the federal courts, especially the Supreme Court, have endeavored to explain their meaning and significance in a number of decisions over the course of our constitutional history. 11 This makes it essential to carefully study these decisions in order to understand the concepts and their impact in federal court litigation. The words “cases” and “controversies” actually encompass several distinct doctrines. 12 The one that is the focus of this Article is mootness. Simply put, a moot case is not a case or controversy and therefore cannot be heard by any federal court. 13 At its most fundamental level, a moot case is one that has become abstract or hypothetical, typically as a result of changed circumstances. 14 A case becomes moot “when the issues presented are no longer ‘live’ or the 5 See infra Part V. 6 See infra Part VI. 7 U.S. CONST. art. III, § 2, cl. 1. 8 Id. See also Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013); Already, L.C.C. v. Nike, Inc., 133 S. Ct. 721, 726 (2013); Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 202 (2000). 9 Camreta v. Green, 131 S. Ct. 2020, 2028 (2011). 10 See id. 11 Robert J. Pushaw, Jr., Article III’s Case/Controversy Distinction and the Dual Functions of the Federal Courts , 69 NOTRE DAME L. REV., 451–57 (1994) (discussing the standing, ripeness, and mootness doctrines). 12 Id. at 447. 13 Id. at 456. 14 McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1035 (8th Cir. 2004). 2015] MOOTNESS IN CORRECTIONS LITIGATION 653 parties lack a legally cognizable interest in the outcome.” 15 In order to avoid the “moot” label, a case must involve a live controversy that is real and substantial. 16 The parties must be personally interested in the outcome. 17 A case becomes moot when the dispute between the parties “is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.” 18 Their interests must be diverse. 19 The parties must have a personal stake, however small, in the outcome of the case. 20 The party seeking redress must have suffered or is threatened with actual injury or loss “traceable to the defendant.” 21 Those who challenge a law or government policy or action must show that it has an actual impact on them. 22 The nature of the injury or loss must be such that a court could fashion a remedy that would likely provide redress. 23 Moreover, this real controversy must exist at all stages of the litigation, which typically requires that the injury or loss be continuing. 24 Because mootness is linked to the legitimacy of the exercise of federal judicial power—the jurisdiction of the federal courts—these courts can and do raise the issue on their own, 25 and even if both litigants urge a court to hear their case, the court can still conclude that a case is moot. 26 If a dispute being heard in federal court becomes moot at any point in the litigation, the practice is to dismiss it because a moot case falls outside of a federal court’s jurisdiction. 27 In light of the abstractness of all these concepts, it is useful to analyze how they operate in a few of the leading 15 Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quoting Already, L.C.C. v. Nike, Inc., 133 S. Ct. 721, 726 (2013)). 16 Preiser v. Newkirk, 422 U.S. 395, 401 (1975); North Carolina v. Rice, 404 U.S. 244, 246 (1971). 17 DeFunis v. Odegaard, 416 U.S. 312, 349 (1974). 18 Already, L.C.C. , 133 S. Ct. at 727. 19 Newkirk , 422 U.S. at 395; Rice , 404 U.S. at 246 (1971). 20 Chafin , 133 S. Ct. at 1023; Camreta v. Green, 131 S. Ct. 2020, 2028 (2011). 21 Chafin , 133 S. Ct. at 1023; United States v. Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (per curiam). 22 Arizonans for Official English v. Arizona, 520 U.S. 43, 48 (1997). 23 Chafin , 133 S. Ct. at 1023; Juvenile Male , 131 S. Ct. at 2864; Spencer v. Kemma, 523 U.S. 1, 7 (1998). 24 Chafin , 133 S. Ct. at 1023; Juvenile Male , 131 S. Ct. at 2864; Spencer , 523 U.S. at 7; U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 21 (1994); Newkirk , 422 U.S. at 401; LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 345 (3d ed. 2000). 25 North Carolina v. Rice, 404 U.S. 244, 246 (1971). 26 Arizonans for Official English , 520 U.S. at 73; Sosna v. Iowa, 419 U.S. 393, 398 (1975); Rice , 404 U.S. at 246. 27 Arizonans for Official English , 520 U.S. at 71; Rice, 404 U.S. at 246. 654 CAPITAL UNIVERSITY LAW REVIEW [43:651 cases before turning to the discussion on how mootness impacts corrections litigation in federal courts. Several aspects of the mootness doctrine are nicely illustrated in the leading case of Defunis v. Odegard . 28 In this case, Defunis challenged the admissions policy at the University of Washington Law School, claiming that it gave a preference to racial minority applicants in violation of his constitutional right to equal protection. 29 The remedy he sought was admission to the law school. 30 The trial court judge ordered the law school to admit Defunis as a preliminary remedy pending a full hearing of the case. 31 The case slowly worked its way through the state judicial system and by the time the case reached the United States Supreme Court on appeal, Defunis was in the final term of his final year of classes. 32 Significantly, the law school gave assurances that whatever the outcome of the case, Defunis would be permitted to finish this final term. 33 A divided Court ruled that the case had become moot. 34 Defunis’s challenge to the admissions policy was moot because in this case he was seeking admission to the law school, but he was already admitted to the school. 35 More importantly, the Court noted that nothing it decided would have any concrete impact on the parties because the school had assured the Court that Defunis would be permitted to finish the term. 36 As between these parties, the dispute had become abstract in the sense that the Court could not provide a meaningful remedy that would affect the parties. 37 What made this case moot was not merely the passage of time; it was the events that transpired during the course of the litigation. 38 What was once an actual, concrete dispute over the admissions policy, which would resolve the ultimate issue of whether Defunis should be admitted to the law school, had become merely an abstract dispute. 39 To be sure, there was still an important legal question: Is the admissions policy unconstitutional? Both Defunis and the law school may have been interested 28 416 U.S. 312 (1974). 29 Id. at 314. 30 Id. 31 Id. at 314–15. 32 Id. at 315. 33 Id. at 315 n.2, 316 n.3, 317. 34 Id. at 319–20. 35 Id. 36 Id. at 317, 319. 37 Id. at 318. 38 Id. at 319. 39 Id. at 318. 2015] MOOTNESS IN CORRECTIONS LITIGATION 655 is this legal question. Certainly, state...