holding, in the distinct but analogous context of the capable-of-repetition-yet-evading-review exception to the mootness doctrine, that “[i]n estimating the likelihood of an event’s occurring in the future, a natural starting point is how often it has occurred in the past”
How later courts described this case
- holding, in the distinct but analogous context of the capable-of-repetition-yet-evading-review exception to the mootness doctrine, that “[i]n estimating the likelihood of an event’s occurring in the future, a natural starting point is how often it has occurred in the past”
- holding that the “voluntary cessation” exception to mootness did not apply when the expiration date of a relevant act was set well before the dispute arose and had nothing to do with the litigation
- vacating as moot an earlier panel opinion that held, pte-Spallone, that Congress could not, consistent with the First Amendment, coerce the votes of the District of Columbia Council; noting that this was an “important” issue “of first impression” that “would carry broad implications” for federal, state, and local governments and might “open[ ] the door to more litigation than we can now appreciate”
- vacating as moot an earlier panel opinion that held, pre-Spallone, that Congress could not, consistent with the First Amendment, coerce the votes of the District of Columbia Council; noting that this was an "important" issue "of first impression" that "would carry broad implications" for federal, state, and local governments and might "open[] the door to more litigation than we can now appreciate"
Written by the judges who cited it.
The opinion
BUCKLEY, Circuit Judge,
with whom D.H. GINSBURG, Circuit Judge, joins, concurring:
I agree with all but one aspect of the court’s excellent opinion, namely, its characterization of the wrong that Congress is alleged to have inflicted on the members of the District of Columbia Council. Because it ignores the critical element of their com *709 plaint, the court’s “capable of repetition” analysis is less convincing than it might be.
The court has defined the alleged wrong as the violation of the Councilors’ First Amendment rights “by conditioning funds on their enactment of particular language.” Court Op. at 704 (emphasis in original). While it is true that Count III of the Complaint refers to the fact that the Armstrong Amendment conditioned funding on the District’s adoption of “particular speech,” the court’s formulation overlooks the essence of the alleged wrong, which is Congress’s use of draconian conditions to compel it to do so:
The Armstrong Amendment coerces plaintiffs to propose and to vote in favor of amending the D.C. Human Rights Act, using the particular language dictated by Congress, ... by threatening to freeze all District expenditures on January 1, 1989 unless the plaintiffs have proposed and voted for that Amendment.
Complaint at Count III, para. 61 (emphasis added).
The basis for the Councilors’ First Amendment claim is not that funding is conditioned on the adoption of particular language, but that the conditions coerce legislative speech. Except for this factor, the Amendment is indistinguishable from a host of grant-in-aid programs in which Congress conditions federal funding on a State’s adoption of specific action. I can see little principled difference between a federal statute that conditions funding on a State’s enactment of legislation qualifying it to participate in a federal program and one that specifies the language that the State must enact in order to do so. On the other hand, there is a world of difference between a statute that, for example, would induce a State to change its legal drinking age rather than “lose a relatively small percentage of certain federal highway funds” and one in which “the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’ ” South Dakota v. Dole, 483 U.S. 203, 211 , 107 S.Ct. 2793, 2798-99 , 97 L.Ed.2d 171 (1987) (citation omitted).
Here, the “financial inducement” offered by the Armstrong Amendment was clearly coercive. Had Congress invoked its constitutional authority to order the District to enact the desired change in its Human Rights Act, see U.S. Const, art. I, § 8, the Councilors would have been called upon to act in a ministerial rather than a legislative capacity. See Spallone v. United States, — U.S. -, 110 S.Ct. 625 , 646 n. 12, 107 L.Ed.2d 644 (1990) (Brennan, J., dissenting) (“voting to implement a remedial decree is best understood as a ministerial step in the process of executing a decision made by government actors with superior authority”). But because Congress elected to provide the District with a Hobson’s choice, the Councilors were able to argue that their legislative speech was being compelled.
Given the above, I would have characterized the alleged wrong as Congress’s violation of the Councilors' First Amendment rights through its use of coercive conditions to compel the District to enact a particular measure. I would then have found the alleged wrong unlikely of repetition because the Armstrong Amendment was aberrational. As the court points out, it is unprecedented. See Court Op. at 704. Moreover, as Congress has the unquestioned power to effect its will either by direct order or through the exercise of its reserved authority, under the District of Columbia Self-Government and Governmental Reorganization Act, to enact laws on behalf of the District, there is no reason to believe that Congress will again seek to achieve by indirection what it can so readily command.