Extra Innings Venturing beyond the mootness doctrine
By Barbara S. Magen Special to the Law Weekly
When a baseball game is reaching its twilight, and your team is losing by a single run, the
zealous fan is apt to defiantly reflect on Yogi Berra's six words so often uttered when the chips
are down: "it ain't over 'til it's over." Translation: If there is even one pitch remaining, a battle
still exists worth fighting.
It is in this same spirit that litigants often seek to continue a dispute, even when it otherwise
might appear that there is nothing left to contest. An ending, so it seems, may also serve to mark
a new beginning.
Circumstances do legitimately arise where, although a matter has been settled or resolved, a
collateral but significant issue still remains in controversy. Such an occurrence often implicates
the doctrine of mootness, the appellate equivalent of determining whether the game needs to go
into extra innings.
As a general principle, it is widely known that an actual case or controversy must exist at all
stages of the judicial process or, much to the chagrin of the complaining party, a matter will be
dismissed as moot.
This rule, which has come to be known as the mootness doctrine, must initially be distinguished
from the concept of standing. Whereas the standing doctrine ensures that a litigant has a personal
stake in the matter from its outset, the mootness doctrine verifies that a party's interest in the
outcome continues to exist throughout the life of the lawsuit, including during the pendency of
an appeal. Hence, even though a plaintiff originally had standing to assert claims at the birth of
the litigation, an appellate tribunal is sometimes placed in a position of evaluating whether
claims remain as actual controversies or whether they have become moot and no longer
debatable in a court of law.
As Pennsylvania's Superior Court recently acknowledged in a case captioned In re D.A., PICS
Case No. 02-0909 (Pa. Super. June 14, 2002), Bowes, J. (15 pages), the mootness doctrine
"requires that an actual controversy must be extant at all stages of review, not merely at the time
the complaint is filed."
No Advice Given
Enforcing the strictness of the mootness doctrine is critical in order to further the interest of our
courts in refraining from rendering purely advisory opinions. Courts are loathe to review
questions which are abstract or which can be given no true effect. Mere conjecture is not
sufficient. Rulings which will have no impact will not be entertained by the judiciary.
As with all seemingly hard and fast rules, however, certain exceptions do apply. Specifically,
although a claim has otherwise been rendered as moot, a court may still reach the merits of a
question if one (or more) of three exceptions has application.
First, a court may consider the case if it presents a question which is capable of repetition and apt
to otherwise elude appellate review (See Jersey Shore Area School Dist. v. Jersey Shore
Educational Association, 548 A.2d 1202 (Pa. 1988)). Second, a court may hear the matter if a
party to the controversy will suffer a detriment due to the decision of the trial court (See
Commonwealth v. Sal-Mar Amusements Inc., 630 A.2d 1269 (Pa. Super. 1993)). Third and
finally, a tribunal may consider the matter if it involves an inquiry of great public importance,
although this exception is said to have very limited and rare application (See Meyer v. Strouse,
221 A.2d 191 (Pa. 1966)).
Accordingly, despite the general bar on appellate review of questions that are technically moot, if
one of the designated exceptions applies, a reviewing tribunal might be willing to address the
merits of the inquiry. It is left, of course, to the discretion of the court as to whether it will opt to
hear the appeal; a tribunal must ensure that, at every stage of the judicial process, an actual case
or controversy continues to exist.
Setting aside, for the moment, the manner in which Pennsylvania courts have addressed the
doctrine, it should also be recognized that federal courts likewise generally prohibit the hearing
of matters that are technically moot. This limitation is rooted in Article III of the U.S.
Constitution, which forbids the federal judiciary from deciding moot questions through its
language which provides that judicial power shall extend only to cases or controversies. This
restriction is sometimes called "constitutional mootness" (as opposed to "equitable mootness," a
separate principle wherein a determination is made that an appeal should be dismissed, even if
the court has jurisdiction and could fashion relief, since the implementation of that relief would
be inequitable).
Exceptional Exceptions
As the 3rd Circuit U.S. Court of Appeals noted in Abdul-Akbar v. Watson, 4 F.3d 195 (3d Cir.
1993), exceptions to the constitutional mootness doctrine, under the federal standard, demand at
least a "reasonable likelihood" that the challenged action will impact the moving party;
speculation or supposition is not enough. Additionally, although federal courts may hear
otherwise moot questions when they are "capable of repetition, yet evading review," as the 3rd
Circuit acknowledged in County of Morris v. Nationalist Movement, 273 F.3d 527 (3d Cir.
2001), the exemption is considered as "narrow" and is available only in "exceptional
circumstances."
Accordingly, under even the federal standard, the "case or controversy" restriction means that
when a plaintiff institutes an action in federal court, that party must have standing to pursue the
sought-after claims. It also means that if the plaintiff loses standing at any time during the
proceedings (whether in the district court or in the appellate courts), the matter will become
moot, and the tribunal, at that point in time, will lose its jurisdiction. A case will be deemed moot
if the issues presented are no longer live or active, or if the parties are without a legally
cognizable true interest in the outcome.
If a claim is rendered moot prior to the entry of a final judgment at the district court level, the
matter will be dismissed for want of jurisdiction; if an asserted claim becomes moot after the
entry of a final judgment but before the completion or exhaustion of the appellate stages of the
litigation, the appellate tribunal may either dismiss or quash the appeal or it may remand the
matter for the entry of a judgment dismissing the claim.
Hence, whether engaging in a dispute in federal or state court, advocates, while rounding the
bases, must be sure that an active and ongoing controversy continues to survive. When a live
claim ceases to be in existence, the game is most likely at its end. If there is still a viable debate
to be had, however, courts might entertain allowing the dispute to venture into overtime. As Yogi
Berra urged, "when you come to a fork in the road ... take it."