NAVIGATING THROUGH THE PROBLEM OF MOOTNESS IN CORRECTIONS LITIGATION STEVEN B. DOW, J.D., PH.D. * I. INTRODUCTION

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1 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 Future 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), Library/ pdf. 3 See infra Parts II III. 4 See infra Part IV.

2 652 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 Article 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, typically 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 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., (1994) (discussing the standing, ripeness, and mootness doctrines). 12 at at McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1035 (8th Cir. 2004).

3 2015] MOOTNESS IN CORRECTIONS LITIGATION 653 parties lack a legally cognizable interest in the outcome. 15 In order to avoid the moot label, a case must involve a live controversy that is real and substantial. 16 The parties must be personally interested in the outcome. 17 A case becomes moot when the dispute between the parties is no longer embedded in any actual controversy about the plaintiffs particular legal rights. 18 Their interests must be diverse. 19 The parties must have a personal stake, however small, in the outcome of the case. 20 The party seeking redress must have suffered or is threatened with actual injury or loss traceable to the defendant. 21 Those who challenge a law or government policy or action must show that it has an actual impact on them. 22 The nature of the injury or loss must be such that a court could fashion a remedy that would likely provide redress. 23 Moreover, this real controversy must exist at all stages of the litigation, which typically requires that the injury or loss be continuing. 24 Because mootness is linked to the legitimacy of the exercise of federal judicial power the jurisdiction of the federal courts these courts can and do raise the issue on their own, 25 and even if both litigants urge a court to hear their case, the court can still conclude that a case is moot. 26 If a dispute being heard in federal court becomes moot at any point in the litigation, the practice is to dismiss it because a moot case falls outside of a federal court s jurisdiction. 27 In light of the abstractness of all these concepts, it is useful to analyze how they operate in a few of the leading 15 Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quoting Already, L.C.C. v. Nike, Inc., 133 S. Ct. 721, 726 (2013)). 16 Preiser v. Newkirk, 422 U.S. 395, 401 (1975); North Carolina v. Rice, 404 U.S. 244, 246 (1971). 17 DeFunis v. Odegaard, 416 U.S. 312, 349 (1974). 18 Already, L.C.C., 133 S. Ct. at Newkirk, 422 U.S. at 395; Rice, 404 U.S. at 246 (1971). 20 Chafin, 133 S. Ct. at 1023; Camreta v. Green, 131 S. Ct. 2020, 2028 (2011). 21 Chafin, 133 S. Ct. at 1023; United States v. Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (per curiam). 22 Arizonans for Official English v. Arizona, 520 U.S. 43, 48 (1997). 23 Chafin, 133 S. Ct. at 1023; Juvenile Male, 131 S. Ct. at 2864; Spencer v. Kemma, 523 U.S. 1, 7 (1998). 24 Chafin, 133 S. Ct. at 1023; Juvenile Male, 131 S. Ct. at 2864; Spencer, 523 U.S. at 7; U.S. Bancorp Mortg. Co. v. Bonner Mall P ship, 513 U.S. 18, 21 (1994); Newkirk, 422 U.S. at 401; LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 345 (3d ed. 2000). 25 North Carolina v. Rice, 404 U.S. 244, 246 (1971). 26 Arizonans for Official English, 520 U.S. at 73; Sosna v. Iowa, 419 U.S. 393, 398 (1975); Rice, 404 U.S. at Arizonans for Official English, 520 U.S. at 71; Rice, 404 U.S. at 246.

4 654 CAPITAL UNIVERSITY LAW REVIEW [43:651 cases before turning to the discussion on how mootness impacts corrections litigation in federal courts. Several aspects of the mootness doctrine are nicely illustrated in the leading case of Defunis v. Odegard. 28 In this case, Defunis challenged the admissions policy at the University of Washington Law School, claiming that it gave a preference to racial minority applicants in violation of his constitutional right to equal protection. 29 The remedy he sought was admission to the law school. 30 The trial court judge ordered the law school to admit Defunis as a preliminary remedy pending a full hearing of the case. 31 The case slowly worked its way through the state judicial system and by the time the case reached the United States Supreme Court on appeal, Defunis was in the final term of his final year of classes. 32 Significantly, the law school gave assurances that whatever the outcome of the case, Defunis would be permitted to finish this final term. 33 A divided Court ruled that the case had become moot. 34 Defunis s challenge to the admissions policy was moot because in this case he was seeking admission to the law school, but he was already admitted to the school. 35 More importantly, the Court noted that nothing it decided would have any concrete impact on the parties because the school had assured the Court that Defunis would be permitted to finish the term. 36 As between these parties, the dispute had become abstract in the sense that the Court could not provide a meaningful remedy that would affect the parties. 37 What made this case moot was not merely the passage of time; it was the events that transpired during the course of the litigation. 38 What was once an actual, concrete dispute over the admissions policy, which would resolve the ultimate issue of whether Defunis should be admitted to the law school, had become merely an abstract dispute. 39 To be sure, there was still an important legal question: Is the admissions policy unconstitutional? Both Defunis and the law school may have been interested U.S. 312 (1974). 29 at at at at 315 n.2, 316 n.3, at at 317, at at at 318.

5 2015] MOOTNESS IN CORRECTIONS LITIGATION 655 is this legal question. Certainly, state universities all over the country were acutely interested; 40 but with respect to the parties, especially Defunis, it was no longer a concrete dispute for which the Court could fashion a meaningful remedy. 41 Instead, it was merely an abstract question the answer to which would have no practical consequences for the parties. 42 Arizonans for Official English v. Arizona, 43 another leading case, further illustrates some of the basic aspects of the mootness doctrine. In this case, the plaintiff Yniguez was an employee of the State of Arizona at the time a ballot initiative amended the state s constitution to mandate English as the official language of the state and require the use of English in all government functions and actions (with some exceptions). 44 Yniguez, who was fluent in Spanish and English and used both languages in carrying out the duties of her position in state government, brought suit in federal court claiming that the mandate violated her rights under federal law. 45 She sought a declaration that the law was unconstitutional and an injunction barring its enforcement. 46 Yniguez prevailed in the trial court, but while the case was on appeal (over the course of a few years) she voluntarily left her state position and took a job in the private sector. 47 As a result of this move, the United States Supreme Court held that the case had become moot. 48 The Court emphasized that federal courts may only adjudicate challenges to state laws when there is actual impact on the challenger. 49 The Court noted, To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. 50 This was an actual controversy at the time the suit was initiated, but because Yniguez took a job in the private sector where her speech was not governed by the challenged state law, her case was moot. 51 Defunis and Arizonans for Official English point to another important aspect of the mootness doctrine: the specific remedy or remedies the plaintiff 40 at 350 (Brennan, J., dissenting). 41 at U.S. 43 (1997). 44 at at at 48, 54 55, 59 60, at at at 67 (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). 51

6 656 CAPITAL UNIVERSITY LAW REVIEW [43:651 is seeking. In both of these cases, the plaintiff was seeking an injunction 52 an order from a court directing the defendant to do or to stop doing some specific action. 53 An injunction is often characterized as prospective because unlike money damages, which primarily deal with compensation for past injuries or violations of legal rights, an injunction deals with future behavior. 54 With respect to that remedy, the changed circumstances had made the plaintiff s case moot in both Defunis 55 and Arizonans for Official English. 56 If, on the other hand, either of these plaintiffs had made a claim for money damages instead of or in conjunction with their claim for injunctive relief, the case would not have been moot with respect to that claim. 57 This is because a claim for money damages is not considered moot it remains a case or controversy without regard to the plaintiff s changing circumstances, unless the plaintiff has been compensated by the defendant for the past injury or violation of rights. 58 Before discussing how these basic aspects of mootness apply in the context of corrections litigation, it is necessary to first look at the two exceptions to the mootness doctrine because it is here that the doctrine becomes problematic at 50; DeFunis v. Odegaard, 416 U.S. 312, 314 (1974). 53 DAN B. DOBBS, LAW OF REMEDIES: DAMAGES-EQUITY-RESTITUTION 2.1(2) (2d ed. 1993). 54 Steven B. Dow, The Eleventh Amendment and Corrections Litigation: The Impact of Sovereign Immunity on the Religious Land Use and Institutionalized Persons Act, 37 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 247, 261 (2011). 55 See supra notes and accompanying text. 56 See supra notes and accompanying text. 57 See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). 58 Deposit Guaranty Nat l Bank v. Roper, 445 U.S. 326, (1980); Powell v. McCormack, 395 U.S. 486, 496 (1969) (explaining that lawsuit is not moot with respect to claim for back pay); TRIBE, supra note 24, at 347 ( Often, a claim for damages will keep a case from becoming moot where equitable relief no longer forms the basis of a live controversy. ). See also, e.g., Mauwee v. Donat, 407 F. App x 105, 107 (9th Cir. 2010); Neal v. Lucas, 75 F. App x 960, 961 (5th Cir. 2003) (explaining that injunctive claims were moot, but claims for monetary relief were not moot); Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (explaining that claims for injunctive and declaratory relief are moot but damages claim is not moot). 59 See TRIBE, supra note 24, at 347 (discussing the most problematic aspects of the mootness doctrine).

7 2015] MOOTNESS IN CORRECTIONS LITIGATION 657 III. EXCEPTIONS TO THE MOOTNESS DOCTRINE: CAPABLE OF REPETITION, YET EVADING REVIEW AND VOLUNTARY CESSATION Declaring a case moot, which typically necessitates a dismissal, effectively deprives the courts of jurisdiction over the case. 60 In order to maintain a degree of control over the cases it hears, the Court has fashioned two exceptions to the mootness doctrine. 61 If a court determines that one of these exceptions applies, it is permitted to hear the case even though it is seemingly moot. 62 The two exceptions are typically referred to as capable of repetition, yet evading review and voluntary cessation. 63 Both of these exceptions will be explored in this section. The capable of repetition, yet evading review exception deals with a case in which changed circumstances make it moot, but the same situation has arisen or is likely to arise again, each time becoming moot before it can be adjudicated fully. 64 The Supreme Court has specified that this exception applies only when (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. 65 The basic application of this exception can be seen in First National Bank of Boston v. Bellotti. 66 This case involved a Massachusetts statute that prohibited banks and some other corporations from spending money on political advertising to influence the public s vote on referendum proposals unless it would materially impact its business. 67 Some banks and business corporations, wishing to purchase advertising against a ballot referendum that would authorize a graduated state income tax, brought a suit in state court claiming that the statute violated their free speech rights under the First Amendment. 68 When the case was appealed to the United States Supreme Court, the state referendum had already been held 60 See Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997). 61 Kipp D. Snider, The Vacatur Remedy for Case Becoming Moot Upon Appeal: In Search of a Workable Solution for the Federal Courts, 60 GEO. WASH. L. REV. 1642, (1992). 62 at at Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam) U.S. 765 (1978). 67 at at

8 658 CAPITAL UNIVERSITY LAW REVIEW [43:651 (and the proposal defeated) and no referendum was scheduled for the foreseeable future. 69 The threshold issue was whether the lack of a ballot referendum at the time the Court was considering the case made it moot. 70 In other words, the plaintiffs claimed that the statute infringed upon their First Amendment rights to spend money to influence the referendum vote, 71 but the referendum had already been held and there currently were no referenda pending that they wished to influence. 72 This raised the question of whether the case had become moot as a result of this change of circumstances. 73 In holding that the case was not moot, the Court noted that both of the elements of the capable of repetition, yet evading review exception were present in the case. 74 [T]he challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again. 75 With respect to the first element, in the four recent attempts of the state legislature to amend the constitution for this purpose through a referendum, the period of time between the legislative authorization of the graduated income tax ballot proposal and submission of the proposal to the voters was approximately eighteen months. 76 This was clearly not sufficient time to fully litigate this issue in the trial and appellate courts. 77 The matter was not a live case until the proposal had been approved for placement on the ballot; 78 it was arguably no longer a live case once the referendum was held eighteen months later. With respect to the second element of the exception, the Court observed that the four previous attempts by the legislature to obtain this constitutional amendment through the referendum process make it reasonable to expect the legislature to undertake similar attempts in the future. 79 Under these circumstances and because the state statute prohibiting such corporate expenditures in the future was still in effect, the Court found that it was reasonable to expect that the plaintiffs 69 at 769, at at at at at 774 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). 76 at See id. 79 at

9 2015] MOOTNESS IN CORRECTIONS LITIGATION 659 would again be subjected to the allegedly unconstitutional restrictions on their First Amendment rights. 80 As a result, the Court held that the case was not moot. 81 It is important to note that the reasonable expectation concept in the second element is highly problematic because it lacks even the slightest degree of mathematical precision. 82 In various Supreme Court opinions, this concept has been used interchangeably with reasonable likelihood, 83 likely, 84 reasonably likely, 85 reasonably... assumed, 86 and some likelihood, 87 and contrasted with demonstrated probability and more probable than not. 88 Because none of these concepts has been quantified, there is no way to determine whether one entails a different degree of probability than any other, and there is no way to objectively apply them to a case or a set of cases. However, the problematic nature of the reasonable expectation concept does not appear to deter or discourage courts from routinely using the exception in their analysis of mootness claims. 89 The second exception to the mootness doctrine, which is discussed under the rubric of voluntary cessation, deals with the situations where a defendant unilaterally and voluntarily ceases the activity that is allegedly harming the plaintiff. 90 At this point the underlying activity, which caused the plaintiff to file suit, has been stopped, arguably making the case moot. But because the cessation is voluntary and unilateral, the defendant could resume the activity again once the case is dismissed as moot, thus depriving the court of jurisdiction. 91 In order to avoid this result, the Supreme Court fashioned an exception to the mootness doctrine to permit the Court to hear the case in this situation. 92 Otherwise, as the Court has noted, a defendant could engage in unlawful conduct, stop when sued to have the case declared 80 at See cases cited infra notes Honig v. Doe, 484 U.S. 305, 318 (1988). 84 Washington v. Harper, 494 U.S. 210, 219 (1990). 85 Burlington N. R.R. Co. v. Bhd. of Maint. of Way Emps., 481 U.S. 429, 436 n.4 (1987). 86 Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 6 (1986). 87 U.S. Parole Comm. v. Geraghty, 445 U.S. 388, 398 (1980). 88 Honig, 484 U.S. at , 319 n.6 ; TRIBE, supra note 24, at See cases cited supra notes United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953); (citing United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, (1897)).

10 660 CAPITAL UNIVERSITY LAW REVIEW [43:651 moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends. 93 This exception is nicely illustrated by the leading case of United States v. W.T. Grant Co. 94 Here, the United States Government brought a civil suit against Hancock, an individual, and six corporations on whose boards of directors he sat. 95 The Government alleged that this arrangement violated the Clayton Act s prohibition of interlocking directorates of competing companies and asked the Court to order their termination and to issue an injunction against future violations of the Act by the defendants. 96 Soon after the suit was filed, Hancock resigned from the boards of the three companies that were in competition with the other three companies and then all of the defendants simply told the court that the allegedly illegal conduct had ceased and, at the same time, disclaimed any intention to revive it. 97 In ruling that the case was not moot, the Court noted that the voluntary cessation of the allegedly illegal conduct does not make a case moot because in such a case [t]he defendant is free to return to his old ways. 98 A similar result can be found in City of Mesquite v. Aladdin s Castle, Inc. 99 In this case, a city amended the section of an ordinance that had been challenged successfully in state and federal courts. 100 Arguably, this made the case moot because the ordinance that allegedly violated the plaintiff s constitutional rights was no longer in effect. 101 The Court noted, however, that the city s repeal of the ordinance would not preclude it from re-enacting the same provision in the event the suit were to be dismissed as moot. 102 The Court concluded that the case was not moot. 103 A mootness finding would have deprived the Court of jurisdiction and of the opportunity to address the potentially important policy aspects of the case. 104 Additionally, it would have also deprived the plaintiff of an opportunity to obtain the remedy it 93 Already, L.C.C. v. Nike, Inc., 133 S. Ct. 721, 727 (2013) U.S. 629 (1953). 95 at at , at U.S. 283 (1982). 100 at at Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997); Rice v. North Carolina, 404 U.S. 244, 246 (1971).

11 2015] MOOTNESS IN CORRECTIONS LITIGATION 661 sought having the statute declared unconstitutional. 105 The Court was unwilling to permit a defendant to bring about this result by simply discontinuing the challenged activity under circumstances where the activity could be resumed with relative ease once the suit was dismissed. 106 However, recognizing that there may be cases in which the challenged activity that was discontinued by the defendant will not resume, the Court will label a case as moot when there is no reasonable expectation that the wrong will be repeated. 107 The Court has also articulated this concept as when the allegedly wrongful behavior could not reasonably be expected to recur. 108 The defendant has the burden of proof, which is characterized as a heavy one, 109 a stringent one, 110 and formidable. 111 Put another way, the defendant claiming that his or her voluntary cessation of the challenged conduct makes a case moot must make it absolutely clear that it will not recur. 112 This raises the critical issue of under what circumstances is there no reasonable expectation that the wrong will recur. In the W.T. Grant Co., 113 the defendants simply told the court that the interlocking directorates had been terminated and that there was no intention to revive them, 114 but the Court concluded that [s]uch a profession does not suffice to make a case moot. 115 The reasonable expectation concept within the context of this exception is no less problematic than it is in the context of the capable of repetition, yet evading review exception. As will be discussed later in this Article, this creates significant confusion in corrections litigation and disagreement among the courts over what types of assurances might 105 City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 287 (1982). 106 at United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 448 (2d Cir. 1945)). 108 Already, L.L.C. v. Nike, Inc., 133 S. Ct. 721, 727 (2013) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)). 109 W.T. Grant Co., 345 U.S. at Aladdin s Castle, Inc., 455 U.S. at 289 n.10 (quoting United States v. Concentrated Phosphate Exp. Ass n, 393 U.S. 199, 203 (1968)). 111 Already, L.L.C., 133 S. Ct. at Friends of the Earth, Inc., 528 U.S. at 189 (quoting Concentrated Phosphate Exp. Ass n, 393 U.S. at 203) U.S. 629 (1953). 114 at

12 662 CAPITAL UNIVERSITY LAW REVIEW [43:651 satisfy a defendant s heavy burden of convincing a court that there is no reasonable expectation that the wrong will be repeated. 116 IV. BASIC CONCEPTS OF MOOTNESS IN CORRECTIONS LITIGATION In applying the concept of mootness to corrections cases, the Court has developed standard responses to some of the frequently recurring issues. When an incarcerated defendant challenges his conviction, the case or controversy requirement is satisfied because the incarceration is the concrete injury that would be remedied by a court invalidating the underlying conviction. 117 Courts never dismiss this type of case on mootness grounds. 118 On the other hand, when the defendant has already served his or her sentence and has been released from custody, the issue of whether the appeal of their criminal conviction becomes moot is more complicated. Although it could be argued that, at this point, the case is moot because even if a court were to overturn the conviction, no judicial decree could provide an effective remedy for the time the defendant was incarcerated (i.e. restoring the time to the defendant), the Court holds that the presumed collateral consequences of the conviction prevent the case from becoming moot. 119 These collateral consequences, which are equivalent to a continuing injury, include continuing statutory (civil) disabilities such as disenfranchisement, disqualification from certain professions, and disqualification from serving as a juror. 120 Because these collateral consequences may continue well after the defendant has been released from the correctional system, the Court will adjudicate challenges to their conviction unless there is no possibility that the defendant challenging his conviction might suffer any collateral legal consequences See infra Part VI.C. 117 Spencer v. Kemna, 523 U.S. 1, 7 (1998). 118 See id. 119 United States v. Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (per curiam); Lane v. Williams, 455 U.S. 624, 632 (1982); Carafas v. LaVallee, 391 U.S. 234, 237 (1968). 120 Spencer, 523 U.S. at 8; North Carolina v. Rice, 404 U.S. 244, 247, 247 n.1 (1971); Carafas, 391 U.S. at Sibron v. New York, 392 U.S. 40, (1968). This has the effect of creating a presumption of collateral consequences with respect to a criminal conviction, but the presumption could be rebutted by showing that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. See also Spencer, 523 U.S. at 8 ( In recent decades, we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences. ).

13 2015] MOOTNESS IN CORRECTIONS LITIGATION 663 The Court takes the opposite approach in cases where a defendant in a criminal case challenges an expired (i.e. already completed) sentence instead of the underlying conviction. 122 In such a case, the Court refuses to presume the existence of collateral consequences, which means that a defendant wishing to make such a challenge must identify and prove the existence of some collateral consequence that results from the sentence and is likely to be redressed by a favorable judicial decision. 123 The issue of mootness can also arise in cases where an inmate in a correctional facility brings a legal challenge against some aspect of the correctional system. 124 Such challenges might be to one or more conditions of confinement, 125 a transfer to a facility with a higher security level, 126 or some aspect of the parole system, just to name a few. 127 When the inmate is no longer within that facility as the result of either a release or a transfer, or has been released from parole, the case is presumptively moot because there is no longer a live controversy in which the (former) inmate or parolee has a personal stake. 128 For example, in Weinstein v. Bradford, 129 an inmate claimed that he was denied certain procedural rights in conjunction with his application for parole. 130 He was later temporarily paroled and then eventually released from all correctional supervision. 131 The Supreme Court 122 See e.g. Weinstein v. Bradford, 423 U.S. 147, (1975) (per curiam). 123 Juvenile Male, 131 S. Ct. at 2864 (quoting Spencer, 523 U.S. at 7). In Spencer the Court states that once the criminal sentence has been completed, the suit will be dismissed as moot unless the collateral consequences are either proved or presumed. Spencer, 523 U.S. at 8. The Court concluded that the presumption of collateral consequences, which applies to criminal convictions even though the sentence has been completed, does not apply to cases in which the former inmate challenges the revocation of parole. at 12. See also Lane v. Williams, 455 U.S. 624, (1982) (refusing to presume collateral consequences in a case where the parole, which was the subject of the legal challenge, had expired during the legal proceedings so that the respondents were no longer under the control of the department of corrections.); infra notes and accompanying text. 124 See e.g., Weinstein, 423 U.S. at 147 (raising mootness upon respondent's procedural rights claim regarding his parole eligibility). 125 Spellman v. Hopper, 142 F. Supp. 2d 1323, (M.D. Ala. 2000). 126 Preiser v. Newkirk, 422 U.S. 395, 396, 400 (1975). 127 Weinstein, 423 U.S. at RACHEL MEEROPOL & IAN HEAD, JAILHOUSE LAWYER S HANDBOOK: HOW TO BRING A FEDERAL LAWSUIT TO CHALLENGE VIOLATIONS FOR YOUR RIGHTS IN PRISON 95 (5th ed. 2010), available at U.S. 147 (1975) (per curiam). 130 at at 148.

14 664 CAPITAL UNIVERSITY LAW REVIEW [43:651 noted that at that point he [could] have no interest whatever in the procedures followed by petitioners [the parole board] in granting parole. 132 After rejecting the argument that one of the exceptions to mootness applies, the Court held that the case was moot and ordered that the complaint be dismissed. 133 Presumably, the former inmate still had an interest in the issue, but the Court s decision shows that this was not sufficient to avoid the moot label. The former inmate s interest was not sufficiently concrete to give him a personal stake in the outcome of the case. 134 Moreover, once he was released from the correctional system, any judicial decision on the legality of the parole application process, even a decision in his favor, would have no actual, concrete impact on him. 135 The Court follows the same approach with respect to litigation relating to the violation and revocation of parole. 136 Once the parolee has been released from the correctional system, the collateral consequences rule does not save this type of case from being moot because the Court refuses to presume that collateral consequences attach to parole revocation and finds that there are no significant statutory disabilities associated with violating parole to overcome mootness. 137 In addition, the Court believes that any non-statutory or discretionary consequences, such as difficulty in obtaining employment, are not sufficient to give the former parolee a personal stake in the outcome of the litigation over parole revocation. 138 Inmate transfers within a facility and to another higher security level facility are the subject of much litigation in the federal courts. 139 Here again, the case is presumptively moot at the point where the inmate who challenged the transfer has been transferred back to his original unit or has been released and is no longer under the control of the correctional system. For example, in Preiser v. Newkirk, 140 an inmate at a medium-security facility was suspected of involvement in promoting a prisoner s union. 141 Without being charged with any specific rule violation and without being given an opportunity to give his account of the matter, the inmate was transferred to at at Lane v. Williams, 455 U.S. 624, (1982). 137 at at See also Spencer v. Kemna, 523 U.S. 1, (1998). 139 See, e.g., Preiser v. Newkirk, 422 U.S. 395, (1975) U.S. 395 (1975). 141 at 397.

15 2015] MOOTNESS IN CORRECTIONS LITIGATION 665 a maximum-security facility, located at a much greater distance from his family than the medium-security facility. 142 The inmate and some other prisoners who had been transferred under the same circumstances challenged the transfer in federal court. 143 While the case was pending in federal district court, the inmate was transferred back to the mediumsecurity facility and no further action was taken against him. 144 Moreover, the medium facility s superintendent placed a memorandum in the inmate s file noting that the initial transfer was not for disciplinary reasons and was not to have any impact on decisions relating to parole or eligibility for good time early release. 145 By the time the case reached the Supreme Court, the inmate had been transferred to a minimum-security facility and was eligible for parole within a matter of days. 146 Rejecting the argument that the exceptions to mootness applied, the Court held that the case was moot and ordered that the complaint be dismissed. 147 In cases such as these in which the Court refuses to presume collateral consequences, a plaintiff is permitted to prove such consequences in an effort to overcome mootness, 148 but in practice this is difficult to do. The most significant problem a plaintiff faces in such cases is the matter of probability, which comes up in a manner similar to the reasonable expectation concept discussed above under the capable of repetition, yet evading review exception to mootness. 149 When a plaintiff argues that the case is not moot because he or she might be subjected to the same parole system or corrections unit in the future, the Court typically rejects this claim as remote and speculative. 150 Such a claim is contingent upon a plaintiff violating the law, getting caught, and being convicted and then being returned to the correctional system. 151 The Court finds the concurrence of these events speculative. 152 Other than these insufficient speculative contingencies, plaintiffs are typically unable to offer evidence to show a sufficiently high probability that they will end up back in the same facility, 142 at at at 399, at at at See supra notes and accompanying text. 149 See supra notes 82 88and accompanying text. 150 Preiser, 422 U.S. at Spencer v. Kemna, 523 U.S. 1, 15 (1998). 152

16 666 CAPITAL UNIVERSITY LAW REVIEW [43:651 unit, or parole system that they originally challenged. 153 Plaintiffs could, of course, offer recidivism data to show the likelihood that the plaintiff will be subjected to the same injurious conditions in the future, although the appellate reports indicate that this has not been done. 154 Overall, data show a high probability that convicted offenders will re-offend once released from the correctional system and be returned to the system (perhaps multiple times). 155 Although the Court has not addressed this issue, it is reasonable to expect that it would not find such evidence persuasive. The Court has not been receptive to social science data as a general matter. 156 Moreover, it would very likely be troubled by the fact that the data does not show the probability that a specific individual will re-offend and be returned to the system. The other significant problem the plaintiff faces in such cases is that the Court believes the plaintiff controls his or her future to a significant degree. 157 When a plaintiff argues that he or she may be subjected to the same parole system or corrections unit in the future, or that the denial or revocation of parole could be used against him or her in the future, the Court often responds by stating that such events are contingent upon [the plaintiff] violating the law, getting caught, and being convicted, 158 However, the probability of these events is diminished by the fact that the plaintiff is able and indeed required by law to prevent such a possibility from occurring. 159 The Court assumes that the plaintiffs will conduct their activities within the law and, therefore, not re-offend and end up back in the system, 160 even though such an assumption is at odds with the recidivism data and also may be at odds with the plaintiff s personal criminal record. 161 Moreover, as will be discussed below, the Court is selective in its use of this assumption. 162 It fails to use the assumption, or even mention it, in cases 153 See infra notes See, e.g., Francis T. Cullen, et al., Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science, 91 PRISON J. 48, (2011) Steven B. Dow, Rethinking Legal Research: Preparing Law Students for Using Empirical Data, 2011 MICH. ST. L. REV (2011). 157 Spencer v. Kemna, 523 U.S. 1, 15 (1998) ; Lane v. Williams, 455 U.S. 624, 633 n.13 (1982); O Shea v. Littleton, 414 U.S. 488, 497 (1974). 160 O Shea, 414 U.S. at See supra note 154 and accompanying text. 162 See infra notes and accompanying text.

17 2015] MOOTNESS IN CORRECTIONS LITIGATION 667 where the voluntary cessation of the defendant s wrongful behavior makes the case presumptively moot and the Court considers the voluntary cessation exception. 163 V. EXCEPTIONS TO THE MOOTNESS DOCTRINE IN CORRECTIONS LITIGATION Each case that has become presumptively moot raises the issue of whether one of the exceptions to mootness applies. The complications that surround the application of these exceptions in mootness cases also are found in corrections litigation. 164 Both of the exceptions will be considered in this Section. The bulk of corrections litigation consists of cases in which an inmate or parolee challenges some aspect of the correctional system, such as conditions of confinement, transfer to a higher security facility, or some aspect of the parole system. 165 If, at any point during the litigation, the inmate s or parolee s transfer to another unit or facility or release from correctional supervision makes the case presumptively moot, they may argue that the injury is capable of repetition, yet evading review and, therefore, should not be dismissed as moot. 166 Weinstein v. Bradford, 167 discussed above, 168 is an often-cited case on this defense as it relates to challenges against some aspect of the parole system. In response to the government s argument that an inmate who has been released from correctional supervision does not have a sufficiently concrete interest in the parole application procedures to give him a personal stake in the matter, the former inmate argued that he may in the future be subjected to the same parole application procedures at issue in the present suit. 169 In response, the Court concluded that the former inmate failed to meet the second element of the defense: a reasonable expectation that the same complaining party would be subjected to the same action again. 170 The Court noted that while the challenged procedures are still in place and apply to other parole applicants, there is no demonstrated probability that [Weinstein] will again 163 See infra notes and accompanying text. 164 See supra Part II. 165 See supra Part II. 166 See supra Part II U.S. 147 (1975) (per curium). 168 See supra notes and accompanying text. 169 Weinstein, 423 U.S. at at 149.

18 668 CAPITAL UNIVERSITY LAW REVIEW [43:651 be among that number. 171 The problem that this former inmate faced the speculative nature of his claim that he might be subjected to the same parole system in the future is essentially the same problem that plaintiffs face when they attempt to prove collateral consequences to overcome the government s argument that the case is moot. 172 The Court took a similar approach in Spencer v. Kemna 173 regarding the speculative nature of a former inmate s or parolee s claim that he would again be subjected to the process or conditions that he challenged. In Spencer, a parolee challenged the revocation of his parole. 174 By the time the case was before the Court, the parolee had already served the remaining portion of his sentence and had been released from correctional supervision. 175 In response to his argument that he might be subjected to having his parole revoked in a similar manner in the future, the Court found that the parolee had not demonstrated a reasonable likelihood that he [would] once against be paroled and have that parole revoked and, therefore, failed to meet the second element of the capable of repetition, yet evading review exception. 176 In some Supreme Court cases there is no possibility that the same complaining party would be subjected to the same action again, thereby removing any speculation about the second element of this exception. For example, in United States v. Juvenile Male, 177 a juvenile offender challenged a special condition of juvenile supervision, specifically a requirement that he register as a sex offender until his supervision ended at age By the time the case reached the Supreme Court, the offender had turned 21 years of age. 179 As a result, the Court concluded that he was not able to establish the second element of the exception because he was over 21 and he will never again be subject to an order imposing special conditions of juvenile supervision. 180 In Lane v. Williams, 181 defendants in criminal cases claimed that their Due Process rights were violated when they were not advised that See id. at U.S. 1 (1998). 174 at at at S. Ct (2011) (per curiam). 178 at at at U.S. 624 (1982).

19 2015] MOOTNESS IN CORRECTIONS LITIGATION 669 a plea arrangement they had accepted contained a mandatory three-year parole requirement. 182 By the time their cases reached the Supreme Court, they had both been released from the State s department of corrections. 183 In holding that the cases were moot and the capable of repetition, yet evading review exception did not apply, the Court reasoned that because the former inmates were acutely aware of the fact that a criminal sentence in Illinois will include a special parole term; any future guilty plea will not be open to the same constitutional attack. 184 This is because now that they are aware of the special parole term, they will never be subjected to a failure to be advised of that term. 185 Because there are so few Supreme Court decisions dealing with this exception to mootness, it is difficult to generalize with respect to how it applies. 186 To better understand these exceptions to mootness, it is necessary to explore federal courts of appeals decisions. First, however, a complete discussion of Supreme Court decisions examining the voluntary cessation exception in corrections litigation is useful. Preiser v. Newkirk, 187 which has already been discussed, 188 is one of the very few Supreme Court cases that deal with the voluntary cessation exception in a corrections context. 189 After an inmate filed a lawsuit in federal court over his transfer from a medium-security facility to a maximum-security facility, corrections officials transferred him back to his original unit and placed a letter in his file stating that the initial transfer was not for disciplinary reasons and was not to have any negative effect on his eligibility for early release. 190 Prison officials took no further adverse actions against him. 191 The inmate was subsequently transferred to a minimum-security facility, which, according to the Court, showed that correction authorities harbor[ed] no animosity toward the inmate, 192 and at the time the case was being considered by the Court he would be eligible 182 at at at See infra Part V U.S. 395 (1975). 188 See supra notes and accompanying text. 189 Preiser, 422 U.S. at at at

20 670 CAPITAL UNIVERSITY LAW REVIEW [43:651 for parole within a matter of days. 193 The Court concluded that under these circumstances the case involved more than a [m]ere voluntary cessation of allegedly illegal conduct. 194 The Court found that there [was]... no reasonable expectation that the wrong [would] be repeated. 195 This conclusion is surprising in light of the fact that the state department of corrections had the heavy burden of making it absolutely clear that such a transfer would not be made again. 196 Other than an assurance from corrections officials, there was really nothing preventing them from again transferring the inmate to a higher security facility, removing the letter from his file, or taking other adverse actions against him. 197 Moreover, in the decision in United States v. W.T. Grant Co., 198 the Court made it clear that such an assurance does not suffice to make a case moot. 199 It apparently did suffice in the Preiser case. The matter of assurances by corrections officials and whether these suffice to make a case moot will be considered in the final Section of this Article, which discusses the practical strategies that corrections administrators can employ in the effort to prevail on the mootness issue in litigation. VI. NAVIGATING THROUGH THE PROBLEM OF MOOTNESS Now that the basic principles of the mootness doctrine and its primary exceptions have been reviewed, this final Section will consider strategies that corrections officials can employ during the course of litigation to obtain whatever advantages might be available under this doctrine. The bulk of corrections litigation arises out of the conditions of confinement, corrections policies and practices, and actions taken pursuant to those policies and practices, along with decisions relating to parole and other types of conditional release. 200 There are several occurrences in these situations that would make a case presumptively moot. Each of these will be discussed below. 193 at at 402 (quoting United States v. Concentrated Phosphate Exp. Ass n., 393 U.S. 199, 203 (1968)). 195 (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 448 (2d Cir. 1945)). 196 Concentrated Phosphate Exp. Ass n., 393 U.S. at Preiser, 422 U.S. at U.S. 629 (1953). 199 at Margo Schlanger, Inmate Litigation: Results of a National Survey, LJN EXCHANGE 1, 3 (2003).

21 2015] MOOTNESS IN CORRECTIONS LITIGATION 671 A. Release of an inmate. Release of an inmate is more a matter of entitlement than of discretion, based on an objective calculation of his or her sentence adjusted in an objective manner according to policies such as good time. 201 If an inmate has been released from a correctional system during the course of litigation, it is highly likely that the court will dismiss the case as moot, regardless of how far the litigation has progressed. 202 The plaintiff may argue that the case should nevertheless be heard under the capable of repetition, yet evading review exception, 203 but courts are unlikely to apply this exception because of the highly speculative nature of the plaintiff s claim regarding the likelihood that he would be subjected to the same conditions, policies, or practices in the same unit or facility. 204 While release is typically nondiscretionary, a discretionary release to the extent that such a release is permitted would have the same effect. 205 If an inmate is released from one correctional system and then immediately transferred to the custody of another correctional system, either another state or a federal facility, the outcome would be the same rejection of the defense. 206 The fact that the plaintiff is currently confined in a different correctional system makes it even more unlikely that he would re-offend and be re-incarcerated in the facility in which the alleged constitutional or statutory violations occurred. 207 If, on the other hand, the plaintiff s suit includes a claim for money damages arising out of constitutional or statutory violations, such a claim does not become moot upon the release (or release and transfer) of the plaintiff. 208 The claim becomes moot only if compensation has been received for the injury or loss. 209 It is important to add that corrections 201 Steven L. Chanenson, The Next Era of Sentencing Reform, 54 EMORY L.J. 377, 383 (2005). 202 See, e.g., Cain v. Mich. Dep t. of Corrs., No , 2011 U.S. App. LEXIS 26173, at *2 3 (6th Cir. Nov. 23, 2011). See also supra notes and accompanying text. 203 See supra Part III. 204 See, e.g., Edwards v. Dewalt, 681 F.3d 780, 788 (6th Cir. 2012). 205 See Chanenson, supra note 201, at See, e.g., Barrett v. Belleque, 475 F. App x 653, 654 (9th Cir. 2012). 207 at See supra note 58 and accompanying text. 209 See supra note 58 and accompanying text.