H. Brooke Paige v. State of Vermont, Secretary of State James Condos, Attorney General William Sorrell, Rafael Edward Cruz and Marco Antonio Rubio
No. 2016-202
Supreme Court of Vermont
2017 VT 54
2017 VT 54
Timothy B. Tomasi, J.
On Appeal from Superior Court, Washington Unit, Civil Division. November Term, 2016.
NOTICE: This opinion is subject to motions for reargument under
Timothy B. Tomasi, J.
H. Brooke Paige, Pro Se, Washington, and Mario Apuzzo, Jamesburg, New Jersey, for Plaintiff-Appellant.
William H. Sorrell, Attorney General, and Todd W. Daloz and Katherine L. Pohl, Assistant Attorneys General, Montpelier, for Defendants-Appellees State and Condos.
Gregory D. Cote, Boston, Massachusetts, for Defendant-Appellee Cruz.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 2. Appellant‘s case began on December 9, 2015, when he filed a declaratory judgment action against the State, the Secretary
¶ 3. On January 4, 2016, appellant moved for a temporary restraining order to prevent the distribution of the state‘s presidential primary ballots. On January 12, he amended his complaint to remove the Attorney General as a defendant and to add Senators Cruz and Rubio as defendants. After holding a hearing on this motion on January 15, the court denied the motion because it reasoned that appellant‘s “concern that only constitutionally qualified candidates appear on the primary ballot is not particular to him“; “[t]he fact that he has professed a desire to be a presidential primary candidate for the Republican party does not increase the nature of the alleged harm“; he did not establish that the inclusion of the Senators on the ballot prevented him from obtaining the required number of signatures or “would thwart his attempt to win the primary as a write-in candidate“; and appellant “has little chance of success on the merits.”
¶ 4. The State and the two Senators then filed motions to dismiss the case, and appellant moved to amend his complaint again, largely reiterating his initial complaint and responding to the motions to dismiss. The day after the primary election—which took place on March 1, 2016—appellant moved for another temporary restraining order to prevent certification of the results, which were split between Ohio Governor John Kasich and now-President Donald Trump. The court denied this request on March 4, and the results were certified on March 10. On May 12, the court finally dismissed the case, reiterating two of its key reasons for denying appellant‘s two motions for temporary restraining orders before and after the primary election: (1) appellant lacked standing “because he is unable to point to any injury that sets him apart from the public generally” and (2) the court lacked jurisdiction to assess the qualifications of the Senators “because [appellant] is trying to get the judiciary to resolve a matter committed to Congress, a so-called political question.”*
¶ 5. Appellant now appeals the trial court‘s two holdings. However, as noted previously, we affirm the dismissal for an
¶ 6. We review the court‘s dismissal of appellant‘s case de novo. See Town of Bridgewater v. Dep‘t of Taxes, 173 Vt. 509, 510, 787 A.2d 1234, 1236 (2001) (mem.) (“We review a trial court‘s dismissal for lack of subject matter jurisdiction de novo . . . .“) (quotation omitted). For this Court to have jurisdiction over an appeal, the appeal must involve an actual controversy arising between adverse litigants who have a legally cognizable interest in the outcome of the case. See Paige v. State, 2013 VT 105, ¶ 8, 195 Vt. 302, 88 A.3d 1182 (“In order for the Court to rule on substantive issues, an appeal must involve either a live controversy, or the parties must have a legally cognizable interest in the outcome of the case throughout the entire proceeding.” (quotations omitted)); Chase v. State, 2008 VT 107, ¶ 11, 184 Vt. 430, 966 A.2d 139 (2008) (“It is well-settled that this Court has jurisdiction to decide only actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.” (quotations omitted)). Otherwise, any opinion issued by this Court would merely be advisory, and would not be within our constitutional authority to render. Doria v. Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 318 (1991) (“Unless an actual or justiciable controversy is present, a declaratory judgment is merely an advisory opinion which we lack the constitutional authority to render.“).
¶ 7. A case becomes moot—and this Court loses jurisdiction—when there no longer is an actual controversy or the litigants no longer have a legally cognizable interest in the outcome of the case. See In re S.H., 141 Vt. 278, 280, 448 A.2d 148, 149 (1982) (“The general rule is that a case becomes moot ‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ “) (quoting U.S. Parole Comm‘n v. Geraghty, 445 U.S. 388, 396 (1980)). Stated another way, a case becomes moot when this Court “can no longer grant effective relief.” Paige, 2013 VT 105, ¶ 8 (quotation omitted). Importantly, even if a case was not moot when it was first filed, intervening events since its filing can render it moot. See In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991) (“Even though there was once an actual controversy, a change in the facts can render an issue or entire case moot.“).
¶ 8. Here, appellant‘s case does not present an actual controversy because the election is over. Since appellant filed his initial complaint, both Senator Cruz and Senator Rubio were included on Vermont‘s presidential primary ballot. But neither Senator earned any delegates from Vermont, neither won the Republican Party‘s presidential nomination, and neither is currently seeking the presidency. Indeed, the general election is over, and President Trump is now in office. The entire purpose of appellant‘s case was to prevent the inclusion of the Senators on the primary ballot, and the Court cannot now grant appellant any relief that will undo the inclusion of the Senators on the ballot or overturn the primary or general election results in any way. Although there may have been an actual controversy when appellant‘s case began, there is none now. See id. at 163, 588 A.2d at 1064.
¶ 9. Moreover, this “change in the facts” due to the passing of time is not the result of any action or lack of action by the trial
¶ 10. Nevertheless, appellant argues that this issue meets two exceptions to the mootness doctrine: (1) the exception for cases that are capable of repetition but evading review, State v. Condrick, 144 Vt. 362, 363, 477 A.2d 632, 633 (1984) (“A case is not moot when a situation is capable of repetition, yet evades review.“), and (2) the exception for negative collateral consequences. In re P.S., 167 Vt. 63, 67, 702 A.2d 98, 101 (1997) (“[A] case is not moot when negative collateral consequences are likely to result from the action being reviewed.“).
¶ 11. To meet the first exception—the exception for cases that are capable of repetition but evading review—a plaintiff must satisfy a two-prong test: (1) “the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration,” and (2) “there must be a reasonable expectation that the same complaining party will be subjected to the same action again.” Price v. Town of Fairlee, 2011 VT 48, ¶ 6, 190 Vt. 66, 26 A.3d 26. Appellant presents arguments addressing both of these prongs. As to the first prong, he argues that he “did everything that he could to expedite the case in the state court so as to have a decision on his ballot challenge. Despite those efforts, the election has come and passed.”
¶ 12. As to the second prong, appellant recognizes the change in the facts, acknowledging in his brief that “[w]e are beyond the primary election in Vermont.” In response, he re-directs his argument away from the fall 2016 election and toward future elections. First, he maintains that addressing the issue of whether Senators Cruz and Rubio are constitutionally qualified to appear on future ballots not only would redress his injuries but also would be practical for the public as a whole:
The Court can give plaintiff a remedy which will redress his injuries, that remedy being a declaration that Cruz and Rubio are not Article II natural born citizens and that the Vermont Secretary of State is not to place their names on the primary or general election ballot in future presidential elections. . . . At this stage, it will not cause the State of Vermont any inconvenience or extra expense for it to follow a judgment of this Court as to whether the names of Cruz or Rubio should be allowed to be printed on future election ballots. Addressing the issue at this early stage will avoid any confusion or interference with the rights of Vermont voters to cast their ballots during future elections. (Emphasis added)
And later appellant directly argues that the issue is bound to come up again:
The issue of what is a natural born citizen and the state‘s role in answering that question as it applies to placing candidates for president on the state election ballots remains even though the election is over . . . this issue just keeps coming up but is never resolved for one reason or another. (Emphasis added)
¶ 13. Without assessing the first prong of the test for cases that are capable of repetition but evading review, we determine that appellant is unable to satisfy the
¶ 14. A decision by this Court regarding the meaning of the phrase “natural born Citizen” and, ultimately, whether the Senators may run for president in Vermont—cannot be based on mere speculation. Appellant‘s case is similar to those in which we have found that the capable-of-repetition-but-evading-review exception does not apply. See In re P.S., 167 Vt. at 68, 702 A.2d at 101 (holding that appeal of revocation of nonhospitalization order of mental patient who had later been released under separate order did not meet mootness exception because court‘s findings regarding first order were specific to month in which they were made and any future revocations would “be based on new fact patterns“); Doria, 156 Vt. at 119-20, 589 A.2d at 319 (finding that mootness exception did not apply in case in which defeated gubernatorial candidate objected to poll conducted by university professor, because candidate did not “show any reasonable expectation that he will be subjected to the same type of political poll” in future elections); see also State v. Gundlah, 160 Vt. 193, 196, 624 A.2d 368, 370 (1993) (holding that no mootness exception applied in journalist‘s appeal of contempt-of-court conviction for refusing to testify at prosecution of prison escapee who subsequently pleaded no contest, because “[a] repetition of the fact pattern presented seems highly unlikely and certainly does not rise to a reasonable expectation.“).
¶ 15. Appellant‘s case likewise does not meet the second exception to the mootness doctrine, the negative collateral consequences exception. This exception is based on the premise that the Court should still consider a case—even if it no longer involves a live controversy—if the action challenged by the appellant will continue to pose negative consequences for the appellant if it is not addressed. It is a natural extension of the concept that “[t]he central question of all mootness problems is ‘whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties.’ ” All Cycle, Inc. v. Chittenden Solid Waste Dist., 164 Vt. 428, 432, 670 A.2d 800, 803 (1995) (quoting 13A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3533, at 212 (1984)). For example, we have held that the exception applied in a mental health case in which an involuntary hospitalization order—which had expired—nevertheless could have resulted in “legal disabilities” and “social stigmatization” for the patient past its effective date. See State v. J.S., 174 Vt. 619, 620, 817 A.2d 53, 55-56 (2002) (mem.) (“[D]espite [the] appellant‘s continued hospitalization under an order for continued treatment, the negative collateral consequences of being initially adjudicated mentally ill and then involuntarily hospitalized may continue to plague [the] appellant with both legal disabilities and social stigmatization.“).
¶ 17. Appellant‘s case is moot because it no longer involves an actual controversy, appellant no longer has a legally cognizable interest in its outcome, and it does not meet either exception to the mootness doctrine argued by appellant. At this time, any opinion issued by this Court on the issues raised by appellant would merely be advisory, and would not be within our constitutional authority to render. See Doria, 156 Vt. at 117, 589 A.2d at 318. We therefore affirm its dismissal by the trial court.
Affirmed.
FOR THE COURT:
Chief Justice
¶ 18. ROBINSON, J., concurring in the mandate only. The majority holds that the “capable of repetition” prong of an exception to the mootness doctrine is not satisfied in this case because the prospect of Senator Marco Rubio or Senator Ted Cruz running for United States President in 2020 is a mere theoretical possibility unsupported by any statements or legal filings by either indicating an intent to run in 2020. Ante, ¶ 13. This holding distorts the applicable legal standard and defies common experience, and I cannot join the Court‘s reasoning. Because I conclude that this case fails the “evading review” prong of that same exception to the mootness doctrine, I concur in the outcome.
¶ 19. First, the applicable legal standard: In order for a circumstance to qualify as “capable of repetition yet evading review,” its reoccurrence need not be certain, or even more likely than not. Instead, we have required only a “reasonable expectation” or a “demonstrated probability” that same fact pattern will arise again. See, e.g., State v. Fernald, 168 Vt. 620, 621, 723 A.2d 1145, 1146 (1998) (mem.); In re Green Mountain Power Corp., 148 Vt. 333, 335, 532 A.2d 582, 584 (1987); In re S.H., 141 Vt. 278, 281, 448 A.2d 148, 149-50 (1982).
¶ 20. Our most recent application of this standard makes it clear that a “reasonable expectation” is a far more relaxed standard than the majority opinion suggests, and is in no way tantamount to “certain,” “likely,” or even “probable.” In re Durkee, 2017 VT 49, ¶ 13, __ Vt. __, __ A.3d __. In that case, the applicant challenged a decision of the Department for Children and Families disqualifying her from temporary
¶ 21. Even recognizing that the “capable of repetition” factor is evaluated from a person-specific perspective, we concluded that applicant‘s circumstance was capable of repetition. We noted the uncontested facts that applicant was a single mother raising three children, one of whom had special needs, on an income of $776/month. Given these facts, we concluded that it was “entirely reasonable that applicant could once again be given a valid notice of termination without cause and be forced to choose whether to comply with the notice or to await an inevitable court-ordered eviction.” Id. ¶ 13. We reiterated that because applicant was “living on the fringes of homelessness,” and “her family‘s housing situation [was] tenuous for the foreseeable future,” the case was capable of repetition. Even in the absence of any indication that applicant expected that she again would be subject to an eviction without cause, leading her to seek temporary housing benefits from the State, we concluded that the expectation that this circumstance might recur was reasonable enough in that case to support the exception to the mootness doctrine. This application of the “capable of repetition” prong rests on common sense and reasonable probabilities, not evidence that the potential recurrence is currently planned or intended, or is more likely than not.
¶ 22. Our ordinary framework is consistent with the United States Supreme Court‘s approach as articulated in Roe v. Wade, 410 U.S. 113, 125 (1973). In that case, Jane Roe challenged state criminal prohibitions that restricted her access to a legal abortion. By the time of the appeal, she was no longer pregnant. In considering whether her challenge was moot, the Court did not attempt a granular assessment of the likelihood that Jane Roe would face an unwanted pregnancy in the future. Instead, it observed the obvious: “Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be ‘capable of repetition, yet evading review.‘” Id. (quotation omitted). Cf. Paige v. State, 2013 VT 105, ¶ 9, 195 Vt. 302, 88 A.3d 1182 (holding that case challenging President Obama‘s eligibility to be on the ballot for President of the United States in 2012 election was moot where election had passed and President Obama was constitutionally barred from running for election for another term).
¶ 23. The majority‘s assertion that the possibility of Senator Rubio or Cruz running for President in 2020 is too speculative to likewise trigger the exception to the mootness doctrine is unmoored from this standard and flies in the face of common experience. Both Senators ran for President in 2016; that they both have presidential aspirations is not news. Both ran substantial campaigns in the 2016 Republican primary. Senator Cruz won eleven states and placed second overall in bound delegates. CNN Delegate Estimate, http://www.cnn.com/election/primaries/parties/republican (last visited May 5, 2017) [https://perma.cc/5XBK-Z2FY]. Senator Rubio won one state, plus the District of
¶ 24. But, assuming for the sake of discussion only that plaintiff has standing to bring a claim such as this, and that it is justiciable, I am not persuaded that the time frames involved in a challenge like this defy judicial review. The Presidential primary election is held in Vermont on the first Tuesday in March.
¶ 25. Vermont‘s Rules of Civil Procedure allow for expedited timelines both at the trial court and on appeal. See
¶ 26. That this case became moot before this Court could decide it was as much a function of appellant‘s approach to the litigation as the limitations of the judicial process. Appellant‘s complaint reflects that as early as the spring of 2015, he had concerns that Presidential candidates he believed to be constitutionally unqualified were circulating petitions to be included in the 2016 Vermont Presidential primary. By September 2015, he had committed his concerns to writing in a letter to the Vermont Secretary of State and had received a response. Nevertheless, he did not file his complaint in this case until December 9, 2015, and did not actually file a motion
¶ 27. The majority‘s approach renders the applicability of the capable-of-repetition test a crapshoot at best, an exercise in futility at worst. For these reasons, I concur in the result only.
¶ 28. I am authorized to state that Justice Eaton joins this concurrence.
Associate Justice