Mooting Unilateral Mootness.

• Author: MacGuidwin, Scott T.

Several situations cause a case to be moot. These include settlement agreements, party collusion, changes in litigant status, and extrinsic circumstances thwarting the court from granting any relief. The final reason is unilateral mootness--when a defendant ends a lawsuit against a plaintiff's wishes by giving them everything for which they ask. In practice, this allows defendants to strategically stop lawsuits when it is clear they are not going to win. By doing so, they prevent the court from handing down adverse precedent and preserve the opportunity to engage in similar behavior with impunity. Courts have established a series of mootness exceptions to limit such gamesmanship. These exceptions are based on vague standards, which do little to guide judges making mootness decisions. The result is that some cases are heard on the merits, while other, nearly identical ones are dismissed. Unilateral mootness fails as a prudential doctrine. It struggles to limit disparate outcomes, prevent defendant gamesmanship, or save judicial resources, and alternative solutions do not fully address these three problems. This Note argues that the best recourse is to scrap unilateral mootness completely. Barring a settlement, collusion, or impossibility of relief, judges should never dismiss a case as moot.

TABLE OF CONTENTS INTRODUCTION I. UNILATERAL MOOTNESS AS A PRUDENTIAL DOCTRINE A. Categories of Mootness B. Unilateral Mootness Does Not Implicate Article III Adversity Concerns of Underincentivized Parties C. Unilateral Mootness Does Not Implicate the Concreteness Concerns of Advisory Opinions D. Unilateral Mootness Does Not Implicate Separation of Powers Concerns II. VAGUENESS IN MOOTNESS DOCTRINE LEADS TO DISPARATE OUTCOMES A. Vague and Arbitrary Mootness Exceptions Lead to Disparities in Which Cases Are Heard on the Merits 1. Collateral Consequences 2. Issues Capable of Repetition but Evading Review a. Challenged Action Is Inherently Short-Lasting b. Injury Likely to Happen to the Plaintiff Again 3. Voluntary Cessation 4. Class Actions B. Unpredictable Nominal Damages after Uzuegbunam III. HARMS OF UNILATERAL MOOTNESS TO THE PUBLIC AND PLAINTIFFS A. Vague Standards and Disparate Outcomes Harm Judicial Legitimacy 1. Dismissal of Moot Cases Stymies the Public from Assessing the Legality of These Cases on the Merits. 2. Disparate Outcomes Resulting from Vague Mootness Standards Harms the Public Perception of Courts B. Unilateral Mootness Permits Government Gamesmanship C. Unilateral Mootness Permits Corporate Gamesmanship D. Unilateral Mootness Fails to Save Judicial Resources IV. ALTERNATIVE SOLUTIONS FAIL TO FULLY ADDRESS VAGUE STANDARDS A. Simplifying the Doctrine Is Not Enough 1. Abandoning Mootness at the Supreme Court 2. Factor-Based Analyses of Mootness 3. "Real Effects" Model of Mootness B. Expanding the Mootness Exceptions Is Unwise 1. Expanding Voluntary Cessation 2. Expanding Collateral Consequences: Expressive Remedies C. Eliminating Unilateral Mootness Is the Best Solution 1. Mooting Mootness Is Good Policy 2. Mooting Mootness Does Not Impact Concerns over Adversity CONCLUSION We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.

--Chief Justice John Marshall (1)

INTRODUCTION

Chike Uzuegbunam was a student who wanted to share his Christian faith with classmates at Georgia Gwinnett College. (2) Uzuegbunam regularly handed out religious literature and spoke with interested students at the campus's outdoor plaza. (3) A campus police officer told him to stop. (4) School officials then informed Uzuegbunam that he needed to secure a permit to use one of two "free speech expression areas." (5) Combined, these zones accounted for only about 170 square feet of the eleven-million-square-foot campus. (6) The zones were open for two or four hours per weekday and were entirely dosed during the weekend. (7) Undeterred, Uzuegbunam got a permit and went to a free speech zone to discuss his religious beliefs. (8) Police stopped him after twenty minutes. (9) The officer told Uzuegbunam that his speech was disturbing the peace and comfort of others. (10) Disruptive speech violated the student code of conduct. (11) Uzuegbunam decided to sue. (12)

Uzuegbunam sued college officials in federal court, alleging multiple First Amendment violations. (13) First, he argued that limiting students to tiny free speech zones violated his free speech rights in the traditional public forum of the campus outside of these zones. (14) Next, he alleged that the school's permit procedures were unconstitutional prior restraints. (15) The school lacked standards by which permits would be granted. (16) The school also lacked standards for campus officers to follow when silencing students. (17) Then, Uzuegbunam alleged that banning speech that causes student complaints constitutes unconstitutional viewpoint discrimination. (18) He sought an injunction to stop the university from enforcing the speech policy, a declaration that the actions violated the First Amendment, and an award for nominal damages. (19)

College officials, perhaps realizing they were wrong (or likely to lose), changed their free speech policies midway through the lawsuit. (20) The officials argued that with this policy change, Uzuegbunam received everything he wanted. (21) They moved to dismiss the case as moot, and the district court agreed. (22) Uzuegbunam appealed to the Eleventh Circuit, arguing that he was still entitled to nominal damages. (23) The Eleventh Circuit disagreed with Uzuegbunam, affirming the lower court. (24) To be clear, for the purposes of the appeal, Georgia Gwinnett College did violate Uzuegbunam's First Amendment rights. (25) Without an injunction or reprimand from the Eleventh Circuit, the college would be free to later return to its original policy. If it did, Uzuegbunam could not sue it again. By the time of the Eleventh Circuit's decision, he was no longer a student, (26) so he would not be affected by this new policy.

Mootness is a doctrine requiring judges to dismiss some cases rather than reach their merits. A case is moot when there are no live issues, parties lack a legally cognizable interest in the outcome, or a court cannot grant any relief. (27) Governments and large corporations use mootness as a tool to vacate unfavorable decisions and avoid precedent limiting their unlawful actions. (28) Mootness prevents plaintiffs from vindicating their rights and impact litigation attorneys from establishing favorable precedent. (29)

The Supreme Court ultimately decided that Uzuegbunam's nominal damages claim could prevent mootness. (30) While this is good news for students challenging First Amendment violations, the outcome is unsatisfying. What exactly constitutes nominal damages? Some courts have valued nominal damages as being worth a single dollar. (31) Could defendants moot cases by paying plaintiffs this single dollar of "nominal damages"? (32)

Uzuegbunam continues a long trend of courts establishing exceptions when a case would otherwise be moot. (33) These exceptions help individuals vindicate their rights. In practice, however, plaintiffs do not advance their cases evenly. Similarly situated plaintiffs face different outcomes within and among circuits. These disparate outcomes stem from the vague doctrinal standards embodied in the mootness exceptions. Vagueness is particularly concerning in the mootness context because it harms judicial legitimacy, encourages defendant gamesmanship, and reduces judicial efficiency.

This Note proposes a novel solution: when constitutionally permitted, eliminate the mootness doctrine entirely. These are cases in which the defendant acts to moot a case despite the plaintiff's desire to continue litigating. I will refer to this as "unilateral mootness." (34) Unilaterally moot cases should either be heard on the merits or dismissed on other grounds, such as collusion, standing, or ripeness. Eliminating unilateral mootness would allow plaintiffs to vindicate their rights equally. And it would better address the concerns underlying existing mootness exceptions while imposing fewer costs on the doctrine itself.

In Part I, I argue that unilateral mootness is not a constitutional requirement. In Part II, I describe how vague standards in mootness exceptions lead to disparate dismissals among similarly situated litigants. In Part III, I outline the harms of unilateral mootness to the public, litigants, and the judicial system. Finally, in Part IV, I conclude that alternative solutions fail to fully address the harms of unilateral mootness and do not provide meaningful benefits over eliminating mootness entirely.

1. UNILATERAL MOOTNESS AS A PRUDENTIAL DOCTRINE

   Given this Note's goal of undermining the prudential bases of mootness, I must first show that dismissing moot cases is not a constitutional requirement. (35) Mootness as a prudential doctrine is not a novel concept. (36) This Note does not provide a full attack on the constitutional model of mootness. Instead, I aim to summarize prior arguments to establish a prima facie case that many moot cases do not constitutionally require dismissal. To do so, I first divide mootness into several discrete categories. Next, I show that the purported constitutional bases for mootness largely do not apply to unilateral mootness.

   1. Categories of Mootness

      Mootness arises in five situations: (1) the plaintiff agrees to end the lawsuit (voluntary dismissal); (2) the court can no longer grant any relief (defunct remedies); (3) the identity or motives of the litigants change in a way that undermines the adversarial process (collusion); (4) the status of the plaintiff changes, but not in a way...