# Honig v. Doe > Supreme Court of the United States · January 20, 1988 · 484 U.S. 305 URL: https://www.frixlaw.com/law-library/cases/9431162 ## Case - **Full name:** HONIG, CALIFORNIA SUPERINTENDENT OF PUBLIC INSTRUCTION v. DOE Et Al. - **Court:** Supreme Court of the United States - **Decided:** January 20, 1988 - **Citations:** 484 U.S. 305; 56 U.S.L.W. 4091; 108 S. Ct. 592; 98 L. Ed. 2d 686; 1988 U.S. LEXIS 446 - **Precedential status:** Published - **Opinion:** Concurrence by Rehnquist - **Judges:** Brennan, Rehnquist, White, Marshall, Black-Mun, Stevens, Scalia, O'Connor - **Cited by:** 1,942 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Reported superseded by statute, as recognized in Joshua A. Ex Rel. Jorge A. v. Rocklin Unified School District — not on the Supreme Court's list. - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9431162 ## How later opinions describe it (automated extraction) - holding that the challenge to the school 13 Case: 16-16766 Date Filed: 08/29/2018 Page: 14 of 50 district’s rule allowing the unilateral exclusion of disabled children for dangerous or disruptive conduct was not moot as to one of the plaintiffs because there was a reasonable e… - holding that the challenge to the school district's rule allowing the unilateral exclusion of disabled children for dangerous or disruptive conduct was not moot as to one of the plaintiffs because there was a reasonable expectation that that plaintiff "would once again be subj… - explaining 'that the likelihood of recurrence need not be “established with mathematical precision” as long as the expectation of recurrence is reasonable, and' that- the question is “whether the' controversy was capable of repetition and not ... whether the claimant had demon… - stating that the "stay put" provision of the EHA "effectively creates a presumption in favor of the child’s current edu- cational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to… - stating that the “stay put” provision of the EHA “effectively creates a presumption in favor of the child’s current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to r… ## Opinion text Chief Justice Rehnquist, concurring. I write separately on the mootness issue in this case to explain why I have joined Part II of the Court’s opinion, and why I think reconsideration of our mootness jurisprudence may be in order when dealing with cases decided by this Court. The present rule in federal cases is that an actual controversy must exist at all stages of appellate review, not merely at the time the complaint is filed. This doctrine was clearly articulated in United States v. Munsingwear, Inc., 340 U. S. 36 (1950), in which Justice Douglas noted that “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” Id., at 39 . The rule has been followed fairly consistently over the last 30 years. See, e. g., Preiser v. Newkirk, 422 U. S. 395 (1975); SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972). All agree that this case was “very much alive,” ante, at 317, when the action was filed in the District Court, and very probably when the Court of Appeals decided the case. It is supervening events since the decision of the Court of Appeals which have caused the dispute between the majority and the dissent over whether this case is moot. Therefore, all that the Court actually holds is that these supervening events do *330 not deprive this Court of the authority to hear the case. I agree with that holding, and would go still further in the direction of relaxing the test of mootness where the events giving rise to the claim of mootness have occurred after our decision to grant certiorari or to note probable jurisdiction. The Court implies in its opinion, and the dissent expressly states, that the mootness doctrine is based upon Art. Ill of the Constitution. There is no doubt that our recent cases have taken that position. See Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546 (1976); Preiser v. Newkirk, supra, at 401 ; Sibron v. New York, 392 U. S. 40, 57 (1968); Liner v. Jafco, Inc., 375 U. S. 301, 306, n. 3 (1964). But it seems very doubtful that the earliest case I have found discussing mootness, Mills v. Green, 159 U. S. 651 (1895), was premised on constitutional constraints; Justice Gray’s opinion in that case nowhere mentions Art. III. If it were indeed Art. Ill which — by reason of its requirement of a case or controversy for the exercise of federal judicial power — underlies the mootness doctrine, the “capable of repetition, yet evading review” exception relied upon by the Court in this case would be incomprehensible. Article III extends the judicial power of the United States only to cases and controversies; it does not except from this requirement other lawsuits which are “capable of repetition, yet evading review.” If our mootness doctrine were forced upon us by the case or controversy requirement of Art. Ill itself, we would have no more power to decide lawsuits which are “moot” but which also raise questions which are capable of repetition but evading review than we would to decide cases which are “moot” but raise no such questions. The exception to mootness for cases which are “capable of repetition, yet evading review,” was first stated by this Court in Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 (1911). There the Court enunciated the exception in the light of obvious pragmatic considerations, with no mention of Art. Ill as the principle underlying the mootness doctrine: *331 “The questions involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar) and their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review, and at one time the Government and at another time the carriers have their rights determined by the Commission without a chance of redress.” Id., at 515 . The exception was explained again in Moore v. Ogilvie, 394 U. S. 814, 816 (1969): “The problem is therefore ‘capable of repetition, yet evading review.’ The need for its resolution thus reflects a continuing controversy in the federal-state area where our ‘one man, one vote’ decisions have thrust” (citation omitted). It is also worth noting that Moore v. Ogilvie involved a question which had been mooted by an election, just as did Mills v. Green some 74 years earlier. But at the time of Mills , the case originally enunciating the mootness doctrine, there was no thought of any exception for cases which were “capable of repetition, yet evading review.” The logical conclusion to be drawn from these cases, and from the historical development of the principle of mootness, is that while an unwillingness to decide moot cases may be connected to the case or controversy requirement of Art. Ill, it is an attenuated connection that may be overridden where there are strong reasons to override it. The “capable of repetition, yet evading review” exception is an example. So too is our refusal to dismiss as moot those cases in which the defendant voluntarily ceases, at some advanced stage of the appellate proceedings, whatever activity prompted the plaintiff to seek an injunction. See, e. g., City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283, 289, n. 10 (1982); United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953). I believe that we should adopt an additional exception to our *332 present mootness doctrine for those cases where the events which render the case moot have supervened since our grant of certiorari or noting of probable jurisdiction in the case. Dissents from denial of certiorari in this Court illustrate the proposition that the roughly 150 or 160 cases which we decide each year on the merits are less than the number of cases warranting review by us if we are to remain, as Chief Justice Taft said many years ago, “the last word on every important issue under the Constitution and the statutes of the United States.” But these unique resources — the time spent preparing to decide the case by reading briefs, hearing oral argument, and conferring — are squandered in every case in which it becomes apparent after the decisional process is underway that we may not reach the question presented. To me the unique and valuable ability of this Court to decide a case — we are, at present, the only Art. Ill court which can decide a federal question in such a way as to bind all other courts —is a sufficient reason either to abandon the doctrine of mootness altogether in cases which this Court has decided to review, or at least to relax the doctrine of mootness in such a manner as the dissent accuses the majority of doing here. I would leave the mootness doctrine as established by our cases in full force and effect when applied to the earlier stages of a lawsuit, but I believe that once this Court has undertaken a consideration of a case, an exception to that principle is just as much warranted as where a case is “capable of repetition, yet evading review.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9431162. Public record. Not legal advice.