Navigating Through the Problem of Mootness in Corrections Litigation

• Author: Steven B. Dow, J.D., Ph.D.
• Position: Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. PA. L. REV. 639, 662 (1993).
• Pages: 651-677

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 Futu re 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 Arti cle 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, typic ally 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).