The road to mootness is paved with good intentions.  In the Supreme Court of Virginia, counsel in Commonwealth v. Browne told the Court that they did not “object” to the Commonwealth’s petition for appeal because Browne had already served the entire active period of incarceration imposed during his revocation proceeding.  Even though both sides agreed that the matter wasn’t moot, the Supreme Court (“SCV”) nevertheless determined that it was.

The Court emphasized that a case is moot when there is no relief that can be given, a situation which can develop over the course of litigation.  Although there are times when the collateral consequences of a conviction can preclude a finding of mootness, this is not so when the only challenge is to the length of the sentence.  

But isn’t this punishment issue the type of problem that is “capable of repetition but evading review”?  Not as applied to Browne, as he has no suspended time left and he could not be subjected to similar punishment again.

The Supreme Court of the United States (“SCOTUS”) also issued a recent opinion about mootness: FBI v. Fikre.  The facts are worth a read as Mr. Fikre alleges that he was kidnapped and interrogated and put on the government’s No Fly list when he refused to cooperate with an investigation.  

SCOTUS took the case to determine whether the case was moot given the government’s statement that Mr. Fikre “will not be placed on the No Fly List in the future based on the currently available information.”  

Federal courts are, of course, only allowed to decide “cases” or “controversies.”  When a party argues an issue is moot, that party bears the burden to establish that it cannot reasonably be expected to resume its challenged conduct.  SCOTUS emphasized that what matters is not whether one side repudiates its past actions, but instead “what repudiation can prove about its future conduct.”  As a result, the government’s statement was insufficient to show that the issue was moot.

Lawyers, take note!  Mootness is something to consider in similar circumstances.

Have questions about mootness?  Contact me and I may be able to assist.