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Friday, June 26, 2020

Mootness, departmentalism, and universality

Here is an interesting mootness decision from the Third Circuit (written by Judge Bibas). A lot of good discussion of mootness, as it relates to my current interests in universality and departmentalism. I am not sure I agree with the conclusion, but the opinion is a great read.

The action is a challenge by a group of public-school teachers to Pennsylvania's agency-fee statute. While the action was pending, SCOTUS held in Janus that agency-fee schemes violate the First Amendment. The state and the union told school districts and other public employees to stop deducting fees and to refund fees collected to cover expenses from Janus forward. Although the state agency-fee law remains on the books and agency-fee provisions remain in the contracts, the union insists it has no intention to enforce either in the future. The district court held the case moot and the court of appeals affirmed.

• Bibas tweaks the common description of mootness as "standing set in a time frame," because they are not co-extensive. A plaintiff must show standing at the outset, but it is on the defendant (or someone else) to show mootness once the action has begun. Thus, under new circumstances, while the plaintiff might be unable to establish standing , that does not mean the defendant can establish mootness. As he puts it, "sometimes a suit filed on Monday will be able to proceed even if, because of a development on Tuesday, the suit would have been dismissed for lack of standing if it had been filed on Wednesday. The Tuesday development does not necessarily moot the suit." I am going to use that framing in class.

• He recasts "voluntary cessation" as "volitional cessation." Often, especially in constitutional cases, the government defendant continues to insist on the validity of its actions, even while agreeing to abide by an injunction or precedent knowing that the courts will rule against it. In other words, the cessation is not voluntary, because the government believes he can do something and should be able to do something, if not for some pesky hindrance (such as a court order). The issue is whether government can reasonably be expected to engage in the challenged behavior in the future. So the issue is not whether the cessation is voluntary but whether it is volitional, a deliberate act, regardless of its cause.

• The reasons for cessation are probative of the likelihood of re-engagement in the behavior. The court is more skeptical of a defendant who continues to insist on the validity of the conduct but yields in the face of a court order, while more forgiving of a defendant who yields to new precedent established in a different case. From a judicial-departmentalist standpoint, this gets it backwards. A defendant cannot ignore a court order in the instant case (without immediate consequence) even if it believes the basis for the order incorrect; that case should be moot because the defendant will not re-engage on pain of contempt. A defendant can ignore precedent from another case without immediate consequence, so a promise to abide by precedent should not moot the new case. I made this argument in using judicial departmentalism to justify voluntary cessation as a limit on mootness.

Moreover, if we accept particularity/non-universality as the norm for injunctions, there is no distinction between those situations. If the injunction binds the government only as to the plaintiff, then all future enforcement that is or is not likely to occur is in response to precedent rather than to a court order. There is no difference between Chicago promising not to enforce its law against Y following an injunction barring Chicago from enforcing against X and Chicago promising not to enforce its law against Y following a decision ordering Milwaukee not to enforce its identical law against M.

• Nonetheless, the court found this case moot. The unions conceded the invalidity of agency-fee requirements and forswore collecting fees and there was no indication they will not continue to abide by that position. That agency-fee provisions remain on the books and in the CBAs did not matter and did not create any  injury that a court could redress absent some indicia of intent to enforce.

The plaintiffs tried to avoid mootness by pointing to challenges to campaign-finance laws found not moot following Citizens United and challenges to marriage laws found not moot following Obergefell. The former was a complex decision targeting one campaign-finance provision, uncertain in its application to other laws and provisions. The latter did not address the incidents of marriage challenged in the other cases. Janus was simple--no agency fees allowed--and the case presented no additional issues not covered by Janus.

I think that is a cramped reading of the marriage case.The Eighth Circuit highlighted that Obergefell dealt with laws in states other than Nebraska (thus did not bind Nebraska in any way) and that the ban on same-sex marriage remained in the Nebraska constitution. The court understood, if implicitly, that there remained something for Nebraska to enforce and nothing, other than the state's voluntary (or volitional) acquiescence to stop that enforcement.

Perhaps the analysis is different when it is a private actor, such as the union, rather than a government with departmentalist powers. Others have argued that courts are too-quick to accept government representations of non-enforcement and moot cases. If so, this case gets the balance right--this case is moot based on the union's promise where it might not be moot if the government were making the same promises. Of course, perhaps that distinction collapses when the defendant arguably acts under color, as the unions likely do under these agreements.

• The plaintiffs argued that a live controversy remained based on their request for a declaratory judgment that Pennsylvania's statute is constitutionally invalid. But the union did not intend to enforce the law. And because the constitutional violation is the threat of enforcement rather than the existence of the law (or contract provision), the plaintiffs' rights were not violated and they had "nothing to fear."

The court captures this with a nice civics lesson:

It may seem odd that unconstitutional laws remain on the books. But until a party faces a real threat of enforcement, a statute is mere words on a page.

I like that framing (and added it to a current paper). We can go further: If this were not true, no constitutional action would become moot because no law declared constitutionally invalid disappears without further legislative action, so the threat of departmental enforcement remains.

Posted by Howard Wasserman on June 26, 2020 at 12:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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