Constitutional Law I
Justiciability – Part IV
(Mootness & Ripeness)
Feb. 1, 2006
Mootness
Plaintiff must have live controversy

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when complaint filed, AND
at all stages of litigation
burden on Def’t to establish mootness
Case can become moot
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Parties die, events occur or lapse
Controversy is settled
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Defunis v. Odegaard
(1974)
Claim:

UW affirmative action program violated EP
Injury:

Denied admission
 Can P show nexus between D’s action & this injury?

Denied chance to compete w/o regard to race
Live at all stages of controversy?
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Injury abated (moot) before case became final
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Exceptions to mootness
Voluntary cessation of harm

Friends of the Earth v. Laidlow Env. Services (2000)
 After adverse ruling by Appeals Ct., Laidlaw closed its dump
(but kept open others, using same challenged practices)

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Party asserting mootness has burden of proof to show
The wrong “could not reasonably be expected to recur”
Capable of repetition yet evading review

Moore v. Ogilvie (1969)
 Election controversies are usually over by the time case can
be resolved
 Strict mootness doctrine would preclude review

Roe v. Wade (1973)
 Pregnancy usually over before case decided
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Defunis v. Odegaard
(1974)
Capable of repetition yet evading review
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Law School usually over by time case is final
But dispute not capable of repetition for him
 Thus, he might not have requisite stake in outcome
 Fact or fiction?

Should inevitability of same case again be an
exception to mootness?
 May depend on whether doctrine is based on Art. III
or is Prudential in nature?
Should case have been filed as class action?
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Class Action Suits
At least 1 member
of class must have
live controversy at
all stages of case


Need not be named
class representative
If class cert. sought
before case is moot
 Substitute in new
class representative,
 Or appeal denial of
certification
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Ripeness
Principle: avoidance of premature litigation
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Premature if harm lies in future without fair
degree of certainty that it will occur
Premature if facts are yet to gel, such that
precise contours of controversy are unknown
Retrospective relief (damages)
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All facts lie in the past; no conjecture necessary
Prospective relief (injunction; decl. relief)
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Some (all) facts lie in the future; speculative?
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Los Angeles v. Lyons (1983)
Claim for Damages

Past, retrospective injury
proof that injury had in fact
occurred
Claim for Injunctive Relief
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Ongoing or future injury
Alleged official policy to use
lethal chokeholds on suspects
Lyons failed to show that he
would be stopped again, or
If stopped, be subject to illegal
chokehold
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Los Angeles v. Lyons (1983)
1. Injury in Fact:

Does requiring "proof" of future injury abrogate
federal courts' power of judicial review?
 Subsequent to filing of Lyons' complaint, chokeholds
had caused 14 deaths in Los Angeles (12 blacks)

Would it have mattered if the Lyons case had
been filed as a class action?
 Perhaps. See County of Riverside v. McLaughlin, 500
U.S. 44 (1991).

Is “imminence” an element of injunction or
standing?
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Pre-enforcement review
Challenging a bill before it is signed into law
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Casts court in role of Council of Revision
Advisory opinion
Challenging a law after it is enacted, but
before it is enforced against plaintiff
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P files decl. relief before engaging in forbidden
conduct, to avoid risk of sanction (jail).
Uncertainties:
 Will P engage in forbidden act?
 If so, will gov’t actually enforce the law against her?
 If so, what actual acts committed, charged?
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Poe v. Ullman
(1961)
Claim:

Connecticut law prohibiting use or
prescribing birth control violates right of privacy
Injury:
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Prosecution always satisfies injury & causation
Fear of prosecution?
 How well-founded?
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If unlikely, what purpose does litigation serve?
No prosecutions since 1879
Except to intimidate clinics ???
Loss of income (from counseling services)?
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Younger v. Harris
(1971)
Harris’s case was ripe
Currently under prosecution in state court
 “Abstention” precluded federal review of CA law

Our Federalism: no interference w. pending state case
Hirsch & Broslowsky’s case not ripe

No injury yet (no forbidden conduct, or charges)
Must they risk prosecution (& then abstention barred)
What if there was no uncertainty re their conduct?
Steffel v. Thompson (1974)
Stopped leafleting after companion arrested
 Neither unripe nor barred by Younger abstention
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Abbott Labs v. Gardner
(1967)
Claim:

Secretary of HEW exceeded statutory power in
promulgating drug labeling regulation
Injury:

Compliance would be expensive & affect sales
Ripe?
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Are facts sufficiently concrete even without
violation and subsequent prosecution?
Declaratory judgments are discretionary
Administrative Procedure Act

Requires “Final Agency Action”
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