§ 13.3 Mootness

• Jurisdiction: Washington

§13.3 MOOTNESS

"'It is a general rule that, where only moot questions or abstract propositions are involved, . . . the appeal . . . should be dismissed.'" Hart v. State Dep't of Soc. & Health Servs.,111 Wn.2d 445, 447, 759 P.2d 1206 (1988) (quoting Sorenson v. City of Bellingham,80 Wn.2d 547, 558, 496 P.2d 512 (1972)); see also RAP 18.9(c)(2). Although various formulations exist to test whether an appeal is moot, the most commonly stated test is that "'[a] case is moot if a court can no longer provide effective relief.'" In re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004) (quoting Orwick v. City of Seattle,103 Wn.2d 249, 253, 692 P.2d 793 (1984)). Thus, when a development initially subject to a stop-work order was fully built and being sold, and a decision in favor of a developer on appeal would confer no additional relief, review was dismissed as moot. Harbor Lands, LP v. City of Blaine,146 Wn. App. 589, 592-93, 191 P.3d 1282 (2008). The mere fact that an abstract decision on the law could potentially preclude a parallel federal court action was not a sufficient ground to save the review from dismissal for mootness. Id. at 593-94.

In Brown v. Vail, 169 Wn.2d 318, 237 P.3d 263 (2010), the Supreme Court rejected a constitutional challenge to the three-drug lethal injection protocol used by the Department of Corrections (DOC) as moot because the DOC had abandoned the protocol. Although subsequent repeal or amendment of the statute, ordinance, or regulation in dispute will often moot an appeal, Harbor Lands, 146 Wn. App. at 594, if the repeal or amendment is not total, and the originally disputed enactment still carries legal significance, the appeal will not be deemed moot. See, e.g., Amalgamated Transit UnionLoc. 587 v. State,142 Wn.2d 183, 200-01, 11 P.3d 762 (2000), corrected,27 P.3d 608 (2001); Klickitat Cnty. Citizens Against Imported Waste v. Klickitat County,122 Wn.2d 619, 631-32, 860 P.2d 390, 866 P.2d 1256 (1994).

The appellate court may not necessarily dismiss an appeal, even if the parties' dispute is rendered moot by events subsequent to entry of the order under review. Washington appellate courts will consider appeals that "involve matters of continuing and substantial public interest" even if the particular dispute is moot. E.g., Born v. Thompson, 117 Wn. App. 57, 63, 69 P.3d 343 (2003), rev'd on other grounds,154 Wn.2d 749, 117 P.3d 1098 (2005); Eugster v. City of Spokane, 115 Wn. App. 740, 751, 63 P.3d 841 (2003). There are at least three factors to guide the court in application of this exception: (1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur. Hart, 111 Wn.2d at 448; accord Eugster, 115 Wn. App. at 751. In addition, in several decisions the Washington Supreme Court has recognized a fourth factor: (4) whether there is genuine adverseness and the quality of advocacy on the issues. Westerman v. Cary,125 Wn.2d 277, 286, 892 P.2d 1067 (1994); Klickitat Cnty. Citizens v. Klickitat County, 122 Wn.2d at 632; Hart, 111 Wn.2d at 448. Finally, the court has noted a fifth factor for consideration: (5) "'the likelihood that the issue will escape review because the facts of the controversy are short-lived.'" Westerman v. Cary, 125 Wn.2d at 286-87 (quoting City of Seattle v. State,100 Wn.2d 232, 250, 668 P.2d 1266 (1983) (Rosellini, J., dissenting)).

Practice Tip: When attempting to use substantial public interest to overcome a claim of mootness, it is helpful to characterize the issue before the court as one of first impression, if that can reasonably be done. See, e.g., In re Detention of J.S., 138 Wn. App 882, 890, 159 P.3d 435 (2007). In addition, if a technically moot issue implicates due process or free speech rights, there is an increased chance that the court will find substantial public interest in reviewing it. State v. Sansone, 127 Wn. App 630, 637, 111 P.3d 1251 (2005).

Although all these considerations sensibly apply to mootness questions, only the first three directly address the issue of the existence of a matter of continuing and substantial public interest. The so-called "fourth factor" is really derived from one of the policy considerations underlying the mootness doctrine itself, which is "to avoid the danger of an erroneous decision caused by the failure of parties, who no longer have an existing interest in the outcome of a case, to zealously advocate their position." Orwick v. City of Seattle, 103 Wn.2d at 253. In Orwick, the petition for review challenged a CR 12(b) dismissal of declaratory and injunctive relief challenging procedures used by municipal courts to adjudicate traffic citations. The traffic citations issued to the petitioners had been dismissed, and any inconvenience could be remedied by the damages claims, which had been restored on appeal by the Court of Appeals. According to the Supreme Court, the "continuing and substantial public interest" exception had previously been applied only to cases that became moot after a hearing on the merits at which the facts and legal issues had been litigated by parties with a stake in the outcome of a live controversy. By contrast, in Orwick no trial on the merits had been held prior to the case becoming moot. The court thus refused to apply the exception because it would countenance a trial between parties who lacked an existing interest in the outcome. Orwick, 103 Wn.2d at 253-54. In addition, the court observed that there was no waste of judicial resources involved in refusing to decide a moot appeal that had not been tried. 103 Wn.2d at 253.

The fifth element, likelihood that the issue will escape review because the facts of the controversy are short-lived, appears to be a variant on the federal mootness exception for issues that are "'capable of repetition, yet evading review.'" Hart, 111 Wn.2d at 451 (quoting Murphy v. Hunt,455 U.S. 478, 482, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982)). Although the Supreme Court in Hart declined to adopt that exception, it may now be a valid, independent exception to the mootness doctrine in Washington. Westerman v. Cary, 125 Wn.2d at 286-87; see also State v. Beaver, 184 Wn. App. 235, 336 P.3d 654, 657 (2014), aff'd, 2015 WL 5455821 (Sept. 17, 2015) (addressing adverseness and advocacy in addressing trial court's authority to revoke conditional release in the absence of information regarding the acquittee's current mental health condition, despite appellant's release). Burman v. State,50 Wn. App. 433, 439, 749 P.2d 708, review denied, 110 Wn.2d 1029 (1988).

In unlawful detainer cases, a tenant who has vacated the premises, but who does not concede the right to possession, has not rendered review moot by vacating. Truly v. Heuft,138 Wn. App. 913, 158 P.3d 1276 (2007); Hous. Auth. of City of Pasco & Franklin Cnty. v. Pleasant, 126 Wn. App. 382, 387-88, 109 P.3d 422 (2005).

In a class action, mootness as to the named plaintiff is not a bar to deciding the claims of the remaining class members as long as the named plaintiff's claim became moot after the suit was filed and the class was certified. Burman v. State, 50 Wn. App. at 440. When class certification is denied, a subsequent settlement by the plaintiff that releases the defendant from "any and all individual claims" does not preclude appeal of the denial of class certification on grounds of mootness, although in dicta the court indicated that a release of "'any and all' claims . . . 'as a member or representative of the putative class'" would have precluded such appeal. Schwendeman v. USAA Cas. Ins. Co., 116 Wn. App. 9, 17, 65 P.3d 1 (2003).

Representative cases in which the courts have considered whether to address moot issues are summarized in the following sections.

(1) Court declined to decide issue on basis of mootness

The appellate courts have declined to decide an issue based on mootness in numerous civil and criminal cases. Representative cases are summarized below.

(a) Criminal cases

STATE V. DESKINS, 180 Wn.2d 68, 322 P.3d 780 (2014). After convicting defendant ofcruelty to animals, the trial court prohibited defendant from owning or living with animals during a two-year probation and ordered forfeiture of current animals to the state. The appeal was rendered moot because the probation period had passed and no animals had been forfeited.

STATE V. BURETTE, 178 Wn. App. 183, 313 P.3d 1235 (2013). Appellant's arguments for suppression and ineffective assistance of counsel in moving for suppression were moot because the only remedy would be remanding for resentencing, but defendant had served his term of confinement and was not on any type of probation.

IN RE DETENTION OF MCGARY, 175 Wn. App. 328, 306 P.3d 1005, review denied, 178 Wn.2d 1020 (2013). Appellant argued in a personal restraint petition challenging his commitment as a sexually violent predator that he should be evaluated solely on the basis ofpersonality disorder . The Court of Appeals held that his failure to challenge on direct appeal a 2011 commitment ruling, in which the trial court denied his motion to preclude the state from offering evidence of additional diagnoses, rendered appellant's argument moot.

KING COUNTY DEPARTMENT OF ADULT AND JUVENILE DETENTION V. PARMELEE, 162 Wn. App. 337, 254 P.3d 927 (2011), review denied, 175 Wn.2d 1006 (2012), cert. denied,512 U.S. 452, 133 S. Ct. 1732 (2013). Department of detention brought action for declaratory...