Mootness as a strategy to maintain unconstitutional regulations
<p>In the <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-280_m64o.pdf" rel="nofollow noreferrer">U.S. Supreme Court (SCOTUS) arguments</a> for <a href="https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-city-of-new-york-new-york/" rel="nofollow noreferrer">New York State Rifle &amp; Pistol Association Inc. v. City of New York</a> almost all time seemed to be devoted to the question of mootness.</p>

<p>This case is a challenge to New York City's previous regulations preventing people with premise-licenses for guns from traveling outside the city with their guns. The primary challenge was centered on the ability of gun owners to take their guns to second homes or shooting ranges outside the city.</p>

<p>In a five-year process, the City of New York continued to defend the law and won at the appellate court level. The plaintiffs appealed to SCOTUS and were granted certiorari. Once SCOTUS granted certiorari, New York City and the State of New York worked together to eliminate the regulations and placed some new regulations at the state level as well as creating state-level preemption of local regulations.</p>

<p>The City of New York argued that with the elimination of the regulations, the case was moot and any challenge of the new regulations was a new conflict that would need to work its way through the courts.</p>

<p>Plaintiffs argue that the case is not moot and SCOTUS should rule on the merits of the case, including declaring the previous regulations unconstitutional. Defendants argue that the case is moot and there is no need to rule on the merits.</p>

<p>My understanding is that if SCOTUS declares the conflict to be moot then it will remand the case to the lower courts to reverse or vacate the judgments.</p>

<p>An argument can be made that the State of New York and New York City would not have changed their regulations had SCOTUS refused to review the case. Following that logic, New York City got an extra five years of a seemingly unconstitutional regulation (in the transcript counsel for NYC agreed that some of the reasons for their regulation were not sound). If SCOTUS grants NYC's requests in their argument then this case goes away and a new case has to be started regarding the new regulations.</p>

<p>Though the precedent of this particular case may go away, the legal standard established by the second circuit seems to be freely available to any new cases. If SCOTUS ruled the regulations unconstitutional then they would also be setting a new legal standard upon which such regulations would be weighed.</p>

<p>What is to prevent municipalities from implementing mootness as a strategy to maintain unconstitutional regulatory structures?</p>

<p><strong>EDIT to address comments and a vote to close</strong></p>

<p>Gun-related cases, whether second amendment or commerce-clause related, have generated significant circuit splits. <a href="http://www.abajournal.com/news/article/second_amendment_is_a_disfavored_right_in_the_supreme_court_thomas_says_in/" rel="nofollow noreferrer">Significantly</a>, the Supreme Court has not taken cases designed to end the splits.</p>

<p>The second circuit has been seen as friendly to gun-control efforts. That court upheld a ban on <a href="https://caselaw.findlaw.com/us-2nd-circuit/1716013.html" rel="nofollow noreferrer">large capacity magazines and semiautomatic assasult weapons</a>; a case that SCOTUS declined to review. Additionally, the second circuit also upheld New York's <a href="http://www.abajournal.com/news/article/2nd_circuit_upholds_new_yorks_concealed_carry_law_and_its_proper_cause_requ/" rel="nofollow noreferrer">concealed carry law's "proper cause" requirement</a> which SCOTUS declined to review despite a circuit split.</p>

<p>It had been 10 years since SCOTUS had agreed to review a second-amendment related case. Because New York is in the second circuit, and the second circuit has been friendly to gun control efforts in past rulings <em>and</em> SCOTUS has not taken a second amendment related case even when circuits have split, it's not completely unreasonable to assume that New York felt confident in it ability to retain their unique regulation.</p>

<p>Since the <a href="https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller" rel="nofollow noreferrer">Heller</a> ruling, there has been a strategy by governing bodies to avoid SCOTUS review of second-amendment related cases. For this particular law, there's significant mention of New York City's efforts to avoid SCOTUS review in this case:</p>

<p>New York Times: "<a href="https://www.nytimes.com/2019/05/27/us/politics/supreme-court-gun-control.html" rel="nofollow noreferrer">Fearing Supreme Court Loss, New York Tries to Make Gun Case Vanish</a>"</p>

<p>Washington Post: "<a href="https://www.washingtonpost.com/politics/courts_law/new-york-eased-gun-law-hopeful-supreme-court-would-drop-second-amendment-case--but-that-hasnt-happened-yet/2019/08/10/9031682e-bab6-11e9-a091-6a96e67d9cce_story.html" rel="nofollow noreferrer">New York eased gun law hopeful Supreme Court would drop Second Amendment Case...</a>"</p>

<p>Slate: "<a href="https://slate.com/news-and-politics/2019/12/new-york-scotus-gun-control-oral-arguments.html" rel="nofollow noreferrer">The Supreme Court's Second Amendment Revolution May Have to Wait</a>"</p>

<p>And, finally, <a href="https://rules.cityofnewyork.us/content/amendment-premise-handgun-license-rules" rel="nofollow noreferrer">NYC Rules proposal to amend the Premise Handgun License Rules</a> specifically mentions SCOTUS' acceptance of this particular case in their desire to change the rules.</p>

<p>It's not unreasonable to argue that governing bodies located within gun-control-friendly circuits have counted on positive outcomes at the circuit level and lack of review by SCOTUS <strong><em>and</em></strong> governing bodies within circuits that are not gun-control-friendly have withheld appeals to SCOTUS to avoid having laws struck down in a way that would have a nationwide impact.</p>

<p>I did not want this to be about gun control, but, perhaps, this is unique to gun control jurisprudence. I'm truly curious about an overall legal strategy of using the judicial system and mootness to implement regulations in a way so as to avoid SCOTUS review <em>as long as possible</em> by using a strategy as follows:</p>

<p>1) Implement regulation in a circuit friendly to the governing body's position so as to avoid preliminary injunctions</p>

<p>2) Allow the regulation to remain through whatever level of appeal remains friendly</p>

<p>3) Once accepted for review by a potentially unfriendly appeals court, rescind the regulation and look for a declaration of mootness</p>

<p>4) Implement a similar enough regulation to satisfy the governing body but different enough to cause a "new conflict" to exist and start again at step 2</p>

<p>Until the circuit splits are resolved by SCOTUS then it is likely that more cases such as this will arise.</p>

<p>The question remains: Other than SCOTUS settling the issue, what prevents governing bodies from using mootness as a strategy to maintain unconstitutional regulations?</p>

<p>I guess the meat of your question is: If a city enacts an unconstitutional ordinance, can it evade judicial review by repealing the ordinance and arguing for mootness once the judicial proceeding reaches to a point of potential disadvantage, and reenacting the same or a very similar ordinance once the judicial proceeding is dismissed?</p>

<p>I don't know where the bright line is (maybe SCOTUS hasn't drawn a clear line yet), but at least there has been a case in which the SCOTUS rejected the mootness argument by a city that repealed the ordinance at issue during appeal: <a href="https://supreme.justia.com/cases/federal/us/455/283/" rel="noreferrer">City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982)</a>. Two parts of the city's ordinance were at issue: (1) the language of "connections with criminal elements" and (2) "the age restriction." On appeal, the Fifth Circuit declared (1) unconstitutional but upheld (2). The city then repealed (1) and, on appeal to the SCOTUS, argued that the issue of (1) was moot. The mootness argument was rejected. The rejection argument was very short as presented in section I of the majority opinion:</p>

<blockquote>
  <p>It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise, rather than the existence, of judicial power. [Footnote 10] In this case, the city's repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated. [Footnote 11] The city followed that course with respect to the age restriction, which was first reduced for Aladdin from 17 to 7 and then, in obvious response to the state court's judgment, the exemption was eliminated. There is no certainty that a similar course would not be pursued if its most recent amendment were effective to defeat federal jurisdiction. We therefore must confront the merits of the vagueness holding.</p>
</blockquote>

<p>Footnote 11 might be a critical fact in rejecting the mootness argument:</p>

<blockquote>
  <p>Indeed, the city has announced just such an intention. See Tr. of Oral Arg. 18-20.</p>
</blockquote>

<p>Therefore, I think, if a city repeatedly employs your proposed strategy, the SCOTUS is unlikely to declare the case moot.</p>

<hr>

<p><strong>EDIT</strong>: As pointed out by "Just a guy", the mootness part of <em>City of Mesquite</em> is about voluntary cessation, which is a kind of strategy concomitant with mootness arguments. Voluntary cessation does not moot the case unless "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."  <a href="https://supreme.justia.com/cases/federal/us/393/199/#tab-opinion-1947655" rel="noreferrer">United States v. Phosphate Export Assn., 393 U.S. 199 (1968)</a>.</p>

<p>But the point of this answer is not on voluntary cessation in general. It is in the context of <strong>intervening legislation</strong>. A voluntary intervening legislation is usually sufficient to moot a case (e.g., <a href="https://supreme.justia.com/cases/federal/us/491/576/" rel="noreferrer">Massachusetts v. Oakes, 491 U.S. 576 (1989)</a>), but it was not so in <em>City of Mesquite</em> -- that's why it is different from most similar voluntary cessation cases, and resembles more closely to the NYC gun control case. Perhaps because it is a city (and was thus less burdened to reenact the same or a similar ordinance than a state legislature), perhaps because it had declared its intention to reenact, perhaps both. None of these might be controlling precedents. But, <em>City of Mesquite</em> and the state legislature cases like <em>Oakes</em> (because the NY state legislature also acted), are probably at least close ones in the jurisprudence of the SCOTUS at this point of time.</p>

<p>TL;DNR: <strong>Groundhog Day Meets the Second Amendment;</strong> or, A mootness-fueled-nightmare only SCOTUS can prevent!</p>

<p>The strategic use of mootness is not new. As xuhdev points out, bad people have been using mootness to protect themselves from the law for quite a while. His example is not the only one. Mootness has been used strategically in all sorts of litigation. </p>

<p>As with many of the sharper-edged litigation tools, people tend to like mootness when their friends use it, and get outraged about it when the other side uses it.</p>

<p>Sadly, there is no easy fix to this problem. This really is a constitutional quandary: both sides are championing deep constitutional values. </p>

<p>I don't have time to write more or dig up citations right now. For those who want to dig deeper, the wikipedia page on <a href="https://en.wikipedia.org/wiki/Mootness" rel="nofollow noreferrer">mootness</a> is a good place to start, as are the cases mentioned in the oral argument. Many of you probably remember the <a href="https://takecareblog.com/blog/is-the-trinity-lutheran-church-case-moot" rel="nofollow noreferrer">kerfuffle</a> over <a href="https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf" rel="nofollow noreferrer">Trinity Lutheran</a>, which is identical in many ways.</p>

<p>Finally, <strong>City of Mesquite, cited by Xuhdev, is not on point</strong>. The worry there was what is known as "voluntary cessation." In voluntary cessation, plaintiffs sue when a defendant harms (or threatens to harm) them. After the defendants sue, the defendant stops misbehaving, and then argues that the suit must be dismissed as moot. </p>

<p>The danger in voluntary cessation is that after the suit is dismissed as moot, the defendant will start doing (as the Court said in <em>City of Mesquite</em>) <em>precisely the same</em> bad thing again. In response, the plaintiff will file suit again, and then the Court will find itself deciding <em>exactly the same</em> case -- same plaintiff, same defendant, same complaint -- again. When that happens, it's easy to see that the earlier case was not <em>really</em> "moot." </p>

<p>This is not the worry in today's case. Nobody thinks  NYC will re-enact the same ordinance. The worry is that NYC, or some other city, will think up <em>some new deviltry</em> to plague gun owners with. If the today's mootness claim is accepted, the Supreme Court will not be able to declare this class of laws unconstitutional, and there will be no precedent forcing federal courts to strike these new laws down when they are challenged. To make matters worse, when a case does work its way back to the Supreme Court, the offending government will take a page from NY's playbook, repeal the new law, and claim mootness to prevent the Supreme Court from hearing the case and developing precedent. After that, it is, as Yogi would say, "déjà vu all over again."</p>

<p>In other words, the worry today is not <em>voluntary cessation,</em> but some close relative. The issue for the Court is whether the relation is close enough to be covered by <em>City of Mesquite</em> and cases like it. Not surprisingly, each side is certain that the take on whether those cases are precedent that gives the substantive outcome it wants is also the legally correct take.  </p>

<p>The US Constitution places rather tight restrictions on the cases courts can hear. Article 3, Section 2 says</p>

<blockquote>
  <p>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.</p>
</blockquote>

<p>This&mdash;the use of the word "controversies" in particular&mdash;has been interpreted to mean that the only cases courts can hear are those involving concrete claimants/petitioners, who have already suffered, are currently suffering, or are in such imminent danger of suffering that that is itself suffering, under a law or act, and for which the court can provide relief.  No hypothetical cases are allowed, and neither are cases where relief is impossible.  Lack of standing is a frequent cause for the dismissal of a case, for example, as a result. </p>

<p>One of the things that makes relief impossible is when relief has already been provided.  That was part of the arguments on this case before SCOTUS: that everything the claimants wanted had already happened with the repeal, modifications, or guidance on enforcement of the statute.  The court, in essence, has no relief to offer as that's already been provided.  This is normally considered a good thing.  The courts generally prefer it if people, the government in particular, can peacefully resolve their conflicts without requiring the intervention of the Judiciary.  Involving the courts is hoped to be something of a last resort when lesser resolution channels fail. In any case, when relief has already been provided, then the case is moot and the court no longer has constitutional authority to hear and resolve the case, even if there would otherwise be something substantive to say on the matter.  The courts cannot hear and rule on a case simply to get something off their chests, or to nip things in the bud, as it were.</p>

<p>Now one potential counter point that was brought up during the arguments was whether the case would avoid being moot if they sought <em>damages</em> over the original statute, and if that is a valid thing to essentially just tack on now.  Or otherwise adequate for the court to say that, while not sought by the petitioners, it is sufficient to eliminate mootness before them.  The other argument for nullifying a mootness claim was that some of the contested provisions were still on the books, and the only thing protecting people from allegedly unconstitutional incursions are the promises of the State that they would not be enforced in such ways.  Sometimes that's enough to satisfy a court, sometimes it is not, depending on the situation.</p>

<p>One thing the US courts in general do not much care for are legislatures and Executives (or anyone else) that try to game the system so as to subvert the role of the Judiciary. Reasonable suspicion that this is likely can itself be grounds for nullifying a mootness claim.  The answer by xuhdev gives an example where a court ruled the case was not moot at least in part because they had little faith that the legislature and/or executive weren't simply going to reinsert the potentially problematic issues once the case had been resolved.  Some of the SCOTUS arguments on this case touched upon this same issue: do the Justices ultimately accept the assurances and actions of the state as sufficient to render the matters moot, or not?</p>

united-states appeal