The opinion
OAKES, Circuit Judge
(dissenting):
I dissent.
This rather incredible case, which commenced November 16, 1971, and first came to the court for decision rendered on April 20, 1973, Nieves v. Oswald (Nieves I), 477 F.2d 1109 (2d Cir. 1973), is now declared moot because the current Commissioner of Correctional Services is said by the State under date of April 3, 1974, on reargument after the second trip to this court, .to take the position that
In sum, the delay of more than two and a half years in conducting disciplinary hearings occassioned [sic] by the court injunction, has destroyed the Department’s ability to properly conduct and enforce internal disciplinary measures against the inmates in question and the Department must defer to the criminal prosecutions.
Defendants-Appellants’ Second Supplemental Brief at 7. 1
I have previously stated in dissent in the second appeal to us, Nieves v. Oswald (Nieves II), supra, 802, 806 et seq., that the majority decision then rendered was “unwarranted in law or authority” and “an abnegation of judicial duty.” There, it will be recalled, the majority sent the case back to the late Chief Judge Henderson to “flesh out the record,” at 806, although the dissent urged rather strongly that the factual setting was quite sufficiently set forth to decide the “grave constitutional issues,” Nieves I, 477 F.2d at 1113 , presented in the case- Nieves II, at 809-811. The dissent previously labored almost tiresomely to get the majority to ask the State its intentions outright and “questioned by what right the majority can suggest to the State a means by which it might destroy the ripeness of plaintiffs’ claims . . . [or] means ... to avoid a possible adverse judgment by destroying the court’s jurisdiction or the justiciability of a claim.” Id. at 812. So now the claim is not justiciable as moot. The State can (and does) blame the federal courts, and the “grave constitutional issues,” certain to arise anew unless now the State changes its procedures and regulations better to conform to the decisions of the day, 2 remain undecided.
*816 I would follow United States v. W. T. Grant Co., 345 U.S. 629 , 73 S.Ct. 894 , 97 L.Ed. 1303 (1953). There, Mr. Justice Clark, with only Justices Black and Douglas dissenting (on other grounds), said the following:
Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. ... A controversy may remain to be settled in such circumstances, e. g., a dispute over the legality of the challenged practices. . . . The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.
345 U.S. at 632 (citations and footnote omitted).
There is nothing here to stop the State of New York, under a new Commissioner of Corrections and Services, from recommencing disciplinary proceedings against any of the plaintiffs’ class here. The disciplinary procedures and regulations of the State remain in force and would govern future proceedings. As said in Gray v. Sanders, 372 U.S. 368, 376 , 83 S.Ct. 801, 806 , 9 L.Ed.2d 821 (1963), “the voluntary abandonment of a practice does not relieve a court of adjudicating its legality, particularly where the practice is deeply rooted and long standing.” Only a few days ago the Court said, “It is settled that an action for an injunction does not become moot merely because the conduct complained of has terminated, if there is a possibility of recurrence, since otherwise the defendants ‘would be “free to return to [their] old ways.’ ” Allee v. Medrano, - U.S. -, 94 S.Ct. 2191, 2198 , 40 L.Ed.2d 566 (U.S. May 21, 1974).
Moreover, if what has happened in this court, see Nieves II dissent, supra, is any sample, this is precisely a case where the issues are “capable of repetition, yet evading review.” Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122 , 94 S.Ct. 1694, 1698 , 40 L.Ed.2d 1 (U.S. Apr. 16, 1974), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 , 31 S.Ct. 279 , 55 L.Ed. 310 (1911). We still have a three-judge court procedure; I had always thought it was cumbersome, intricate and, as I said in a little piece, a “morass and mystery, if not miasma . . . . ” Oakes, The Three-Judge Court and Direct Appeals to the Second Circuit, 48 St. John’s L.Rev. 205, 210 (1973). In comparison to this direct appeal, at least, a straight three-judge court proceeding would have been streamlined.
I would, as the Nieves II dissent intimated, decide this case on the merits, and not — in these days of burgeoning dockets and heavy case loads — pass the judicial buck to another future panel. Accordingly, I dissent — not with the “dismay” of Nieves II — but with wonderment at having witnessed what turns out to be a Punch and Judy show rather than a momentous judicial struggle involving “grave constitutional issues” and yes, real live (and some dead) people.
. It is to be noted that the State consented to a stay of disciplinary proceedings and was not enjoined; had it been enjoined, appeal would have lain only to the Supreme Court.
. In addition to the cases referred to in the Nieves II dissent, note 17, at 812, add the compelling Ninth Circuit opinion of Judge Hufstedler (joined by Judge Tuttle of the *816 Fifth Circuit), Clutchette v. Procunier, 497 F.2d 809 (9th Cir. Apr. 25, 1974). See also Procunier v. Martinez, 416 U.S. 390 , 94 S.Ct. 1800 , 40 L.Ed.2d 224 (U.S. Apr. 29, 1974).