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Friday, October 12, 2018

Flipping the burden on voluntary cessation

This decision from the Fifth Circuit seems wrong, at least in its analysis. The court found moot a challenge to the New Orleans Public Defender's wait list for non-capital cases, because the state legislature allocated the PD's office sufficient funds and the office eliminated the wait list. The court stated:

we are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude." Absent evidence to the contrary, we are to presume public-spiritedness, says the Supreme Court. Government officials "in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties." So, "[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.

But this seems to flip the burden of persuasion on voluntary cessation, presuming the government will not resume unlawful conduct (because the government is public-spirited) absent evidence from the plaintiff to the contrary. But this seems inconsistent with SCOTUS' insistence that "the defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."

It does not seem possible to reconcile this case with Nike, at least in terms of the stated standard. The unprincipled explanation is that the Fifth Circuit was suspicious of the entire case and so was looking for a way to dump it. The plaintiffs and the defendant (the PD Office) agreed that the wait list was constitutionally invalid and the PD enacted the policy only because the lack of legislative funding tied its hands. The court hints that the entire action is "a coordinated public-relations effort to force funding" rather than a genuine attempt to enforce constitutional rights.

Suspicion aside, this agreed-upon conclusion meant it was unlikely that the PD would reenact the challenged policy on its own. Which may be true and may justify finding the case moot. But the burden remains on the PD to show that, not on the plaintiffs to rebut the assumption.

Posted by Howard Wasserman on October 12, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


It is also a split from the Ninth. See 840 F.3d 1098.

Posted by: Prof X | Oct 15, 2018 3:18:01 PM

The "case or controversy" requirement meabs sometimes a pragmatic approach to mootness is required, particularly where, as here, governmental agents are involved. There is an unfortunate temptation for government officials to deliberately lose such cases, thus locking in their policy choices against future changes. Mootness is one protection against this.

Posted by: Salem Al-Damluji | Oct 14, 2018 6:36:36 AM

My understanding is not that the burden flips, but that certain actions by the government carry that burden more forcefully than others. A state legislature repealing a law is pretty forceful, because it takes so much effort to reenact a law, given the various legislative vetogates. Less force is given to an executive body or office changing policies, because they can be reenacted more easily. The question, I guess, is how we should treat funding as the mooting activity, since funding must be renewed annually and can be easily changed, without having to clear the same vetogates. Either way, the burden is on the government, not the defendant.

Posted by: Howard Wasserman | Oct 12, 2018 12:34:59 PM

I haven't looked at this in several years, but back when I had a few of these cases, my recollection is that the presumption of resumed alleged misconduct flips back the other way when it is a state government doing it (i.e., courts presume the state is acting in good faith), and ESPECIALLY when it is a state legislature changing or rescinding the law being challenged. Nike didn't involve a state government entity, so it's highly distinguishable in that regard. Again, maybe the law has changed in the past several years, but if it hasn't, my understanding is consistent with the Fifth Circuit's analysis.

Posted by: My $0.02 | Oct 12, 2018 12:24:33 PM

Interesting , and although that doctrine of mootness is posing broader philosophical and constitutional issues , yet , I couldn't understand , what seems to be the issue here of the post . For , it is clear , that there is almost perfect match , between the Supreme court standards ( as in the case of " Nike " ) and the current one of the fifth circuit :

What counts , is not to count upon a hypothetical ( emphasizing : hypothetical ) re occurrence of the conduct of defendants ( or even plaintiffs) but , reasonable expectation , that it wouldn't occur in the future . That much :

That the presumption must be , that even a felon , wouldn't engage or repeat again in the future the same criminal conduct , here I quote the fifth circuit :

" Here , there is no " reasonable expectation that the same complaining party will be subjected to the same action again " . Indeed , for that to happen , Appellants would need to violate the law again , be apprehended again , and be placed on a waitlist while in pretrial custody again . Because we must assume that Appellants will follow the law rather the flout it , we cannot deem their claims " capable of repetition " .


Posted by: El roam | Oct 12, 2018 12:23:01 PM

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