By FindLaw Staff | Legally reviewed by Renee Guolee, J.D. | Last updated July 15, 2022
Mootness occurs when there is no longer an actual controversy between the parties to a lawsuit. For example, the problem in the case has already been resolved. If a court were to issue a ruling in such a case, there would be no actual impact on the result. In general, if a case becomes moot the courts can no longer hear it. But as mentioned in our overview of the mootness doctrine, there are exceptions to the rule.
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
The Supreme Court has recognized several exceptions to the general mootness principles. These exceptions are known as the voluntary cessation doctrine and the capable of repetition, yet evading review exception. The Court has also developed special mootness principles that govern criminal cases and class action cases.
First, the Supreme Court has held that a party's voluntary cessation of an unlawful practice will usually not moot its opponent's challenge to that practice.1 Thus, "a defendant cannot automatically moot a case by simply ending its unlawful conduct once sued."2 This exception to the mootness doctrine exists because if a litigant could defeat a lawsuit simply by temporarily ceasing its unlawful activities, there would be nothing to stop that litigant from engaging in that unlawful behavior again after the court dismissed the case3—the litigant would effectively "be free to return to [its] old ways."4
The 1982 case of City of Mesquite v. Aladdin's Castle, Inc. illustrates how this "voluntary cessation" doctrine applies in practice.5 The plaintiff in City of Mesquite challenged the constitutionality of a municipal ordinance.6 While the case was pending, however, the city repealed the offending provisions of the ordinance.7 The Court, explaining that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice," concluded that the city's revision of the ordinance did not render the plaintiff's challenge moot.8 Because "the city's repeal of the objectionable language" in the ordinance "would not preclude it from reenacting precisely the same provision" if the case were dismissed on mootness grounds, the Court concluded that it needed to "confront the merits of the" plaintiff's constitutional challenge.9
DeFunis v. Odegaard, by contrast, exemplifies when the voluntary cessation doctrine will not save a case from dismissal.10 The petitioner in DeFunis claimed that certain law school admissions practices and criteria discriminated against him on the basis of race.11 While the case was pending, however, the petitioner began taking classes at the law school, and had almost completed his law degree by the time the case reached the Supreme Court.12 The Court rejected the petitioner's argument that the voluntary cessation doctrine rendered the case justiciable because the case's mootness had "partially stem[med] from a policy decision on the part of the respondent Law School authorities" to allow the petitioner to complete his law school studies and receive his diploma.13 The Court emphasized that the respondents had not voluntarily ceased the allegedly discriminatory admissions practices that the petitioner challenged as unconstitutional; instead, the case became moot because the petitioner was just a few credits shy of completing his degree.14 In other words, the case was moot not because the school stopped engaging in allegedly unlawful activity, but rather because the petitioner would "receive his diploma regardless of any decision th[e] Court might reach on the merits of th[e] case."15
The Court has clarified several other aspects of the voluntary cessation doctrine. For one, if it is "absolutely clear" that the allegedly wrongful behavior will not recur after the court dismisses the case, then a case can become moot notwithstanding a party's voluntary cessation of that unlawful behavior.16 "The 'heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness."17 To illustrate, in Preiser v. Newkirk, a prisoner claimed that prison officials had unlawfully transferred him from a medium security institution to a more restrictive maximum security institution, and asked the court to order his return to the medium security prison.18 While the case was pending, however, officials transferred the prisoner back to the medium security institution, and then subsequently transferred him to an even less restrictive minimum security institution.19 According to the Court, these subsequent developments made it "clear that correction authorities harbor[ed] no animosity toward" the plaintiff, such that there was "no reasonable expectation that the wrong challenged by the prisoner would be repeated.'"20 The Court therefore deemed the case nonjusticiable even though the prison officials themselves had rendered the case moot by transferring the prisoner to a less restrictive institution.21
Additionally, the voluntary cessation doctrine typically applies only when a party to the case voluntarily discontinues an allegedly unlawful action. If, instead, a case becomes moot because "of the voluntary acts of a third party non-defendant," the voluntary cessation doctrine will usually not save that case from dismissal.22 For instance, in Iron Arrow Honor Society v. Heckler, the Secretary of the Department of Health, Education, and Welfare (Secretary) promulgated a regulation barring recipients of federal funding from "providing significant assistance to any . . . organization . . . which discriminates on the basis of sex."23 The petitioner, an all-male honorary organization at a public university, commenced a lawsuit seeking to prevent the Secretary from interpreting that regulation in a manner that would require the university to ban the organization from conducting activities on campus so long as it continued to exclude women.24 While the lawsuit was pending, however, the university determined that no matter whether the Secretary's regulation required the university to ban the organization, the university's own non-discrimination code independently barred the organization from operating on campus until it discontinued its male-only membership policy.25 Because no judicial ruling with respect to the Secretary's interpretation of the regulation would have any effect on the university's independent decision to ban the organization pursuant to its own non-discrimination policy, the Court concluded that "the dispute as to how the [r]egulation should be interpreted" was "classically 'moot.'"26 The Court concluded that the voluntary cessation doctrine did not save the case from dismissal, as it was "the voluntary acts of a third party non-defendant"—namely, the university—that rendered the case moot, rather than the voluntary acts of the Secretary herself.27
Similarly, the voluntary cessation doctrine will not save a case from dismissal when it is the losing party, rather than the prevailing party, whose voluntary actions render the case moot during the pendency of an appeal.28 Thus, in City News & Novelty, Inc. v. City of Waukesha, a retailer of sexually explicit materials challenged a municipality's decision to deny its adult business license.29 After the lower courts ruled against the retailer, the retailer asked the Supreme Court to review the judgment in the municipality's favor.30 While the appeal was pending, however, the retailer opted to close its business.31 The Court determined that the retailer's decision to cease operations had rendered the case moot because the retailer no longer had any cognizable interest in the outcome of the case.32 Even though the circumstance rendering the case moot was the retailer's voluntary decision to close its business, the Court nonetheless concluded that the voluntary cessation doctrine did not render the case justiciable.33 The Court emphasized that because the lower courts had ruled against the retailer, the retailer "left the fray as a loser, not a winner."34 The Court therefore reasoned that the retailer's voluntary cessation of its business therefore did "not keep [its opponent] under the weight of an adverse judgment" or "reward an arguable manipulation of [the Court's] jurisdiction."35
The Supreme Court has generally declined to deem cases moot that present issues or disputes that are "capable of repetition, yet evading review."36 This exception to the mootness doctrine applies "only in exceptional situations"37 in which (1) "the challenged action is in its duration too short to be fully litigated prior to cessation or expiration;" and (2) "there is a reasonable expectation that the same complaining party will be subject to the same action again."38 According to the Court, if this exception to mootness did not exist, then certain types of time-sensitive controversies would become effectively unreviewable by the courts.39
The classic example of a dispute that is "capable of repetition, yet evading review" is a pregnant woman's constitutional challenge to an abortion regulation.40 Once a woman gives birth, abortion is no longer an option for terminating that particular pregnancy. However, litigation of national political significance can rarely be fully resolved in a mere nine months; "the normal 266-day human gestation period is so short that [a] pregnancy will come to term before" the parties and the court could realistically litigate a constitutional challenge to an abortion statute to its conclusion.41 Thus, if a challenge to an abortion regulation became moot as soon as the challenger gave birth, "pregnancy litigation seldom w[ould] survive much beyond the trial stage, and appellate review w[ould] be effectively denied."42 Because the Supreme Court has decided that "[o]ur law should not be that rigid," the Court ruled in its 1973 opinion in Roe v. Wade that "[p]regnancy provides a classic justification for a conclusion of nonmootness."43 The Roe Court reasoned that, because "[p]regnancy often comes more than once to the same woman, and . . . if man is to survive, it will always be with us," challenges to the constitutionality of abortion statutes usually will not become moot at the conclusion of an individual challenger's pregnancy.44
The Court has deemed certain controversies "capable of repetition, yet evading review" outside the abortion context as well.45 For example, in Federal Election Commission v. Wisconsin Right to Life, Inc., an advocacy organization claimed that restrictions on "electioneering communications" established by the Bipartisan Campaign Reform Act of 2002 unconstitutionally prohibited the organization from broadcasting certain political advertisements shortly before the 2004 election.46 Even though the case did not reach the Supreme Court until long after the 2004 election had passed, the Court nonetheless concluded that the case was not moot.47 The Court reasoned that the organization "credibly claimed that it planned on running 'materially similar' future targeted broadcast ads" in advance of future elections,48 and the period between elections was too short to allow the organization sufficient time to fully litigate its constitutional challenges sufficiently in advance of the election date.49
By contrast, the Court determined that the constitutional challenge in the DeFunis case mentioned above was not "capable of repetition, yet evading review."50 To reiterate, the petitioner in DeFunis claimed that certain law school admissions practices and criteria unconstitutionally discriminated against him on the basis of race.51 While the case was pending, however, the petitioner began taking classes at the law school, and was just about to receive his diploma.52 Unlike the challenger to the abortion statute in Roe, who could very well have become pregnant again in the future,53 the petitioner in DeFunis would "never again be required to run the gantlet of the Law School's admissions process" once he received his juris doctorate.54 The DeFunis Court therefore concluded that the petitioner's constitutional challenges were "not 'capable of repetition' so far as [the petitioner was] concerned."55 The Court further opined that challenges raised by other disappointed applicants would not evade future review either, as the Court had "no reason to suppose that a subsequent case attacking [the law school's admission] procedures w[ould] not come with relative speed to th[e] Court."56
The Supreme Court has also articulated special mootness principles that apply in criminal cases.57 Because criminal sentences are generally limited in duration, courts will sometimes be unable to rule on the merits of a criminal defendant's appeal before that defendant's sentence expires.58 Thus, the Court has ruled that a criminal defendant who "wish[es] to continue his appeals after the expiration of his sentence must suffer some 'continuing injury' or 'collateral consequence' sufficient to satisfy Article III."59 Put another way, if the defendant can point to some "disabilities or burdens (which) . . . flow from" his conviction even after his release from prison, then he retains "a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him" and therefore presents a justiciable controversy.60 If, by contrast, the defendant cannot make such a showing, then the expiration of the defendant's criminal sentence will render the defendant's appeal moot.61 Thus, in Carafas v. LaVallee, the petitioner faced lingering legal "disabilities or burdens" as a result of his conviction even though he had already "been unconditionally released from custody."62 Specifically, the laws of the state in which the petitioner resided prohibited convicted felons from "engag[ing] in certain businesses," "serv[ing] as an official of a labor union," "vot[ing] in any election held in his state of residence," and "serv[ing] as a juror."63 The petitioner therefore retained "a substantial stake" in challenging the validity of his conviction so that he could engage in activities that his criminal record would otherwise prohibit.64 The Supreme Court thus determined that, "[o]n account of these 'collateral consequences'" of his conviction, the petitioner's case was "not moot."65 "When the defendant challenges his underlying conviction," the Supreme Court generally "presume[s] the existence of collateral consequences" sufficient to save the defendant's appeal from dismissal on mootness grounds.66 The Court has justified this presumption on the ground that "most criminal convictions do in fact entail adverse collateral legal consequences."67 The Court has generally declined to presume, however, that collateral consequences will result from other types of criminal sanctions, such as a revocation of parole.68
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