« Tacit Citation Cartel Between U.S. Law Reviews: Considering the Evidence | Main | Imagine if There Were No Grades »

Thursday, September 13, 2018

Yet evading review

Mootness can be overcome* if the claim is capable of repetition yet evading review. One important limitation on this doctrine, that often gets confused or overlooked, is that the harm must be reasonably likely to recur as to this plaintiff, not generally and not as to someone else.

[*] I do not like to speak of it as an "exception" to mootness because I subscribe to Scalia's argument that a case that is C/R/E/R is simply not moot.

The Eighth Circuit held that a an action by a Democratic elector challenging Minnesota's faithless-elector law was not C/R/E/R. The court held that it did not evade review because the plaintiff waited too long to file suit, thereby shortening the time period. Rather than suing on November 8 (right after the election) or November 29 (when the results were certified), he waited until December 19, the day his vote (for Bernie Sanders) was discounted and he was removed as an elector. That left only 2 1/2 weeks to litigate, whereas a lawsuit on December 8 would have allowed almost two months for expedited litigation in both the trial court and court of appeals.

But that assumes the court would have found standing and ripeness on November 8, which is not certain. The plaintiff would have argued then that he intended to vote for Sanders and that the faithless-elector law would disqualify his vote. But courts are so inconsistent about standing that it is hard to know whether that would work. Moreover, the evading-review applies when the time is too short to litigate the issue fully, which must included SCOTUS review. So while the "district court plainly was prepared to resolve the matter with dispatch (it convened a hearing within three days and ruled on the fourth), and this court has demonstrated that it can expedite appeals in time-sensitive cases," that does not account for SCOTUS, which may have wanted a crack at a case declaring invalid a faithless-elector law. The notion that two months would have been enough time to fully litigate this issue, had the plaintiff only not sat on his rights, seems dubious.

It also is unnecessary, because the better argument is that this is not reasonably capable of repetition as to this person. The plaintiff could not show a "reasonable expectation" that he would be subject to this law again. It is doubtful the Minnesota Democratic Party will appoint him as an elector. And he cannot show that he plans to vote for someone other than the popular-vote winner so as to have the law enforced against him; that is too unknown to constitute a remediable injury at this point.

Posted by Howard Wasserman on September 13, 2018 at 07:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Indeed , he who wants , can access the link I have left , for this is the case addressed in the post .

But the point is , that such jurisprudence , deals with , or focus solely on " case " or " person " or " controversy " , yet , ignore the federalism , or , constitutionality per se . For a federal court, is also , a constitutional court . As such , needs to deal , with constitutional issues , touching the constitution and nationwide as such . Here article III , dictates clearly :

The judicial power shall extend to all cases, in law and equity, arising under this Constitution.....

So , it is simply ignoring the what is dictated : " arising under this constitution ...... " . If a case , is becoming or would become then theoretical , between both parties , or for one party , that is not to say , that it doesn't arise from the constitution . It doesn't mean also , that it wouldn't repeat itself , maybe not for current litigator , but for others , future ones . So , it would repeat itself , causing harm over and over , and sometimes :

Would always become theoretical anyway ( due to inherent shortage of time ) . Suppose , that an issue is raised during detention or pre trial proceedings (United states v. Sancez Gomez ) and due to it . Until prevailed , detention would be over . As such , wouldn't be ripe never ever . Yet , harm would be repeated , and touching constitutional issue . But never ever be solved then .But that is the inherent duty of a constitutional court simply .

And by the way , the Supreme court , held another particular exception , I quote from Gomez ( concerning personal incompetence of the persons ) :

" Our decisions in those civil cases rested on the litigants' inability , for reasons beyond their control . "


P.S : Wasserman , you may find great interest in that ruling I guess :


Posted by: El roam | Sep 13, 2018 11:40:06 AM

Wasserman , it seems that the link put there in the post ( to the ruling ) is inaccessible ( due to need for registration there ) but it seems that this is the ruling indeed ( check it out ) here :



Posted by: El roam | Sep 13, 2018 10:08:13 AM

The comments to this entry are closed.