MANUFACTURING SOVEREIGN STATE MOOTNESS.

• Author: Bruce, Daniel

TABLE OF CONTENTS INTRODUCTION 288 I. MOOTNESS DOCTRINE AND ITS EXCEPTIONS 290 A. Capable of Repetition, Yet Evading Review 291 B. Voluntary Cessation 292 II. VOLUNTARY CESSATION APPLIED TO GOVERNMENT DEFENDANTS 295 A. Legislative-Like Action by Elected Officials 295 B. Discretionary Action by Unelected Officials 298 1. Killeen and the Good Faith Presumption 299 2. The Defects of Good Faith 301 III. MANUFACTURED MOOTNESS AND STATE SOVEREIGNTY 302 A. Popular Sovereignty vs. Government Sovereignty 302 B. Sovereignty and Mootness 306 IV. INSIGHTS FROM SOVEREIGN STATE STANDING 307 A. Shared Purposes and Rationales of Standing Doctrine 308 B. Sovereign Interests, State Standing, and Sovereign State Mootness 309 1. Overview of State Interests 309 2. Manufactured Sovereign State Standing 311 3. Sovereign Interests and Manufactured Mootness 314 V. PUTTING IT ALL TOGETHER: WHEN MAY STATES MANUFACTURE MOOTNESS? 316 A. Legislative-Like Action by Elected Officials 316 B. Discretionary Action by Unelected Officials 317 CONCLUSION 318 INTRODUCTION

The lead-up to the Supreme Court's Fall 2019 term was steeped in controversy. The Court's first gun rights case in nearly a decade, New York State Rifle & Pistol Ass'n v. City of New York, quickly became more about the far less exciting justiciability doctrine of mootness and the legitimacy of the Court than the Second Amendment. (1) Promptly after the Court granted certiorari, in a clear attempt to prevent the Court from creating unfavorable precedent, New York City repealed and amended its stringent gun transportation rule. (2) Then, for good measure, the state legislature passed a law rendering the city's old rule illegal. (3) To pile onto the controversy, a group of five United States senators submitted an unprecedented amicus brief ordering the Court to drop the case or face potential restructuring. (4) In a brief per curiam opinion, six Justices held that the city's repeal of the rule successfully rendered the case moot. (5) In his dissenting opinion arguing that the case was not moot and that New York's rule violated the Second Amendment, Justice Alito warned that the Court has "been particularly wary of attempts by parties to manufacture mootness in order to evade review." (6)

Despite Justice Alito's admonition, lower federal courts have not been so skeptical of defendants' attempts to evade review. This is particularly true in cases involving voluntary cessation by government defendants. Voluntary cessation, a general exception to the mootness doctrine, provides that a case does not become moot merely because the defendant ceases the challenged conduct. (7) However, many courts held that government defendants are entitled to a presumption that they act in good faith when strategically mooting cases by voluntarily ceasing the challenged conduct. (8) For instance, in a recent case, Speech First, Inc. u. Killeen, the Seventh Circuit held that state university officials were presumed to have acted in good faith when, mere days into litigation, they repealed a challenged university policy limiting students' free speech on campus. (9) Therefore, the students' challenge was moot. (10) These two cases--New York Rifle and Killeen--present the central question that motivates this Note: to what extent should public defendants be treated differently than private defendants when manufacturing mootness to evade judicial review?

The idea that public defendants should receive any special treatment in the mootness context has been subject to intense criticism among commentators. Most notably, in the lead-up to the New York Rifle decision, Joseph Davis and Nicholas Reaves--two prominent First Amendment litigators from the Becket Fund for Religious Liberty--urged the Supreme Court to take the opportunity to correct the lower courts' practice of blessing government abuse of the voluntary cessation doctrine. (11) Indeed, the Supreme Court has never adopted a presumption in favor of government defendants such as the one applied by the Seventh Circuit in Killeen, (12) and it failed to do so in New York Rifle. Rather, lower courts have created the presumption out of whole cloth, "invok[ing] purely prudential concerns about the supposed public-spiritedness of government litigants." (13) While this prudential, good-faith presumption would be anathema to Framers like James Madison who knew that government is composed of men and not angels, (14) institutional concerns related to state sovereignty may justify the different treatment afforded to public defendants.

This Note attempts to fill a void in the literature by advocating for a presumption in favor of government defendants in voluntary cessation cases rooted more in structural, rather than merely prudential, justifications. In particular, the Note pulls from a more fully developed body of literature surrounding sovereign state standing to argue that the same principles of sovereignty that grant states broad standing to sue require courts to give more weight to exercises of state lawmaking authority to moot certain cases. However, this special treatment cannot exist in perpetuity. Once the state action becomes far enough removed from the sovereign lawmaking process--action by a university official, for instance--this structural justification no longer holds, and public litigants should be held to the same mootness standards as private defendants.

Part I of this Note summarizes the mootness doctrine and its various exceptions. Part II analyzes the varying approaches taken by federal courts in applying the voluntary cessation exception to public defendants. Part III provides an overview of state sovereignty and how that sovereignty applies in the mootness context. Part IV draws on principles of state sovereignty in the standing context to advocate a new standard to apply to voluntary cessation cases: the sovereignty standard. Finally, Part V applies the sovereignty standard to define the bounds of manufactured sovereign state mootness.

1. MOOTNESS DOCTRINE AND ITS EXCEPTIONS

   It is well settled that a federal court may only exercise jurisdiction over a case if an actual controversy persists throughout each stage of litigation. (10) If the dispute disappears after the filing of the suit, the case is considered moot. (16) Therefore, if a criminal defendant dies (17) or a student challenging a university's admission procedures completes his or her studies during appeal, (18) the federal court is without jurisdiction to hear the case.

   The mootness doctrine is derived from both constitutional and prudential grounds. Article III of the Constitution extends federal jurisdiction only to "Cases" and "Controversies" and generally prohibits courts from issuing advisory opinions. (19) Therefore, a case that is moot does not present a justiciable controversy, and further resolution would cause the court to run afoul of that prohibition. (20) However, prudential factors, including conserving judicial resources and preserving the adversarial process, also animate the mootness doctrine. (21) Therefore, the Supreme Court has often taken a flexible approach to mootness by establishing a few exceptions to the doctrine, (22) particularly for those issues that are capable of repetition yet evading review and those that are resolved by a party's voluntary cessation of the challenged conduct.

   1. Capable of Repetition, Yet Evading Review

      Perhaps the most notable exception to mootness is for illegal conduct that is "capable of repetition, yet evading review." (23) This exception permits judicial review of certain injuries that are more likely to evade the litigation process because of their limited duration. (24) For the challenged illegal conduct to fit within this exception, it must (1) be reasonably likely to happen to the plaintiff again and (2) be so limited in duration that it is always likely to become moot before the litigation process is complete. (25)

      This exception may be applied in a variety of contexts, but examples of its application in election and education law are instructive. In Federal Election Commission v. Wisconsin Right to Life, Inc., the Supreme Court held that a challenge to a federal law restricting corporate expenditures in elections was not moot, despite the fact that the election had passed. (26) The Court reasoned that the organization was likely to run similar targeted ads in future elections and that the Federal Election Commission (FEC) was unlikely to refrain from prosecuting future violations. (27) However, in DeFunis v. Odegaard, the Court held that a student's challenge to a university's admissions procedure was moot because he was in his final semester of law school by the time the litigation reached the Supreme Court. (28) The Court reasoned that the challenged admissions procedure was unlikely to be applied to the petitioner again, and it was not likely to evade review because other students would bring a similar challenge if the procedures were not changed. (29) Therefore, a federal court may still exercise jurisdiction over a case that is reasonably likely to arise with the same plaintiff again.

   2. Voluntary Cessation

      Another consequential exception to the mootness doctrine--and the principal focus of this Note--is voluntary cessation. This exception states that a case will not become moot merely because the defendant voluntarily ceases the challenged behavior if he or she is free to continue it at any time. (30) However, if "there is no reasonable expectation that the wrong will be repeated," the case will be rendered moot. (31) Although the exception seems relatively simple, courts have struggled to articulate how likely the possibility of recurrence needs to be and what parties, if any, are entitled to a greater presumption of good faith.

      In general, the defendant bears the burden of proving the challenged conduct is unlikely to recur. Justice Ginsburg characterized this burden as "stringent," noting that "[t]he...