One of Alan Drury’s political novels is called “Capable of Honor.” I’m proud that our City of St. Augustine Mayor, lawyer Joseph Boles, has wisely decided to withdraw from a planned 13-day Sunshine violation by four Commissioners in Spain.
This does not cure the problem. City Commissioners have for decades used taxpayer funds to travel, together, including trips to New York City (as well as Spain). These trips waste money and involve Sunshine violations and the potential for them.
Commissioners at one time referred to their quadrennial trip to New York as “the class trip.”
Former St. Augustine City Attorney Geoffrey Dobson once advised St. Augustine Commissioners flying to NYC to travel on separate airplanes (they ignored his advice).
Sunshine violation plagued trips to NYC involved the pretext of meeting with bonding companies (or signing bonds).
The St. Augustine Record documented several years ago that a bond rating can be had by faxing paperwork, and does not require five Commissioners, the City Manager, spouses and significant others to be wined and dined for three or four days.
The trips to Spain (and NYC) are “capable of repetition,” and must be remedied. As Wikipedia documents:
Exceptions to mootness
There are three major exceptions to this mootness rule. These are cases of "voluntary cessation" on the part of the defendant; questions that are "capable of repetition, yet evading review"; and questions involving class actions where the named party ceases to represent the class.
[edit] Voluntary cessation
Where a defendant is acting wrongfully, but ceases to engage in such conduct once a litigation has been threatened or commenced, the court will still not deem this correction to moot the case. Obviously, a party could stop acting improperly just long enough for the case to be dismissed and then resume the improper conduct. For example, in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000), the Supreme Court held that an industrial polluter, against whom various deterrent civil penalties were being pursued, could not claim that the case was moot, even though the polluter had ceased polluting and had closed the factory responsible for the pollution. The court noted that so long as the polluter still retained its license to operate such a factory, it could open similar operations elsewhere if not deterred by the penalties sought.
[edit] Capable of repetition, yet evading review
A court will allow a case to go forward if it is the type for which persons will frequently be faced with a particular situation, but will likely cease to be in a position where the court can provide a remedy for them in the time that it takes for the justice system to address their situation. The most frequently cited example is the 1973 United States Supreme Court case of Roe v. Wade, 410 U.S. 113 (1973), which challenged a Texas law forbidding abortion in most circumstances. The state argued that the case was moot because plaintiff Roe was no longer pregnant by the time the case was heard. As Justice Blackmun wrote in the majority opinion:
The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid.
The Court cited Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911), which had held that a case was not moot when it presented an issue that was "capable of repetition, yet evading review". Perhaps in response to increasing workloads at all levels of the judiciary, the recent trend in the Supreme Court and other U.S. courts has been to construe this exception rather narrowly.[citation needed]
Many cases fall under the "capable of repetition" doctrine; however, because there is a review process available under most circumstances, the exception to declaring mootness did not apply to such cases. In Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 8–9 (1978), the court noted that damages claim saves cases from mootness.[4]
[edit] Class action representatives
Where a class action lawsuit is brought, with one named plaintiff actually representing the interests of many others, the case will not become moot even if the named plaintiff ceases to belong to the class that is seeking a remedy. In Sosna v. Iowa, 419 U.S. 393 (1975), the plaintiff represented a class that was challenging an Iowa law that required persons to reside there for a year before seeking a divorce in Iowa's courts. The Supreme Court held that, although the plaintiff successfully divorced in another state, her attorneys could continue to competently advance the interests of other members of the class.
[edit] Mootness and U.S. State Courts
The U.S. state courts are not subject to the Article III limitations on their jurisdiction, and some state courts are permitted by their local constitutions and laws to render opinions in moot cases where the establishment of a legal precedent is desirable. They may also establish exceptions to the doctrine.[5]For instance, in some state courts the prosecution can lodge an appeal after a defendant is acquitted: although the appellate court cannot set aside a not-guilty verdict due to double jeopardy, it can issue a ruling as to whether a trial court's ruling on a particular issue during the trial was erroneous. This opinion will then be binding on future cases heard by the courts of that state.
Some U.S. states also accept certified questions from the federal courts or the courts of other states. Under these procedures, state courts can issue opinions, usually for the purpose of clarifying or updating state law, in cases not actually pending in those courts.[6]
[edit] Mootness in other countries
Although divorced from the U.S. Constitutional limitation, Canada has recognized that considerations of judicial economy and comity with the legislative and executive branch may justify a decision to dismiss an allegedly moot case, as deciding hypothetical controversies is tantamount to legislating. Considerations of the effectiveness of advocacy involved in the adversarial system and the possibility of recurrence of an alleged constitutional violation may sway the court.[7]
[edit] Notes
1. ^ Hall, Mathew I., The Partially Prudential Doctrine of Mootness. University of the Pacific, McGeorge School of Law Review.
2. ^ See, Lochner, Todd, Court Budgets and the Mootness Doctrine The Justice System Journal, pp. 225-226.
3. ^ Hall, supra.
4. ^ "Slip: Alvarez v. Smith (2009)". http://www.supremecourt.gov/opinions/09pdf/08-351.pdf.
5. ^ Prejudice Pushes Aside Mootness Doctrine Hamilton v. Lethem (HSC October 14, 2008).
6. ^ See, e.g., Indiana Rules of Appellate Procedure, Title XI, Rule 64, "Certified Questions of State Law From Federal Courts".
7. ^ Morton, Frederick Lee, (March 2002) Law, politics, and the judicial process in Canada (BPR Publishers) 660pp. ISBN 978-1-55238-046-8.
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