DeFunis v. Odegaard

Finley, J.

(concurring in part; dissenting in part) — On April 23, 1974, the United States Supreme Court ruled per curiam that our decision in DeFunis v. Odegaard, 82 Wn.2d 11 , 507 P.2d 1169 (1973), had become moot and thus could not be reviewed on the merits. The Supreme Court then by an order vacated our judgment and remanded the cause for “such proceedings as . . . may be deemed appropriate.” (Italics mine.) DeFunis v. Odegaard, 416 U.S. 312 , 40 L. Ed. 2d 164, 170-71 , 94 S. Ct. 1704, 1707 (1974).

Notwithstanding the apparently entrenched practice of the Supreme Court of vacating state court judgments that become moot on appeal or certiorari, I have reservations as to the jurisdiction of that court to do so. Although mootness was originally a product of common-law jurisprudence, it is now axiomatic that the federal mootness doctrine is of constitutional dimension and derives from the case or controversy requirement of article 3 of the United States Constitution. When litigation becomes moot, the case or controversy ceases to exist as to the Supreme Court and accordingly that court loses jurisdiction over the matter. See North Carolina v. Rice, 404 U.S. 244 , 30 L. Ed. 2d 413 , 92 S. Ct. 402 (1971); Liner v. Jafco, Inc., 375 U.S. 301 , 306 n.3, 11 L. Ed. 2d 347 , 84 S. Ct. 391 (1963). See also Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U. Pa. L. Rev. 125 (1946); Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U. Pa. L. Rev. 772 (1955). Consequently, the notion that the Supreme Court can vacate a *630 state court judgment*-thereby affecting the legal-relations between the parties, after the court has determined the case to be-moot seems- to me rather dubious to say the least. 3 Neither the cases nor the literature has articulated a sound jurisdictional base for the assertion of the power to vacate state court judgments. See, e.g., R. Stern & E. Gressman, Supreme Court Practice § 18.3 (4th ed. 1969); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 273 (2d ed. 1951); Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U. Pa. L. Rev. 125 (1946); Comment, Disposition of Moot Cases by the United States Supreme Court, 23 U. Chi. L. Rev. 77 (1955); Note, Mootness on Appeal in the Supreme Court, 83 Harv. L. Rev. 1672 (1970); Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U. Pa. L. Rev. 772 (1955).

■ Nevertheless, ever since Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 , 4 L. Ed. 97 (1816), it has been estab-^ lished that the United States Supreme Court is the final arbiter of the Constitution. See also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 , 5 L. Ed. 257 (1821); Ableman v. Booth, 62 U.S. (21 How.) 506 , 16 L. Ed. 169 (1859). Accordingly, we must respect and abide by the mandates of the Supreme Court,

In accordance with the court’s mandate in the instant. case the issue now before this court is what action, if any, is now appropriate. Two motions, one by each adversary litigant, have been presented for our consideration.. The plaintiffs below have moved to make the matter a class action (for the benefit of all persons similarly situated to the position of plaintiff-respondent Marco DeFunis) to re *631 hear the -ease and to affirm the judgment of the trial court. I'concur with the majority that no proper basis exists upon which to now convert this matter to a class action.

The motion of the defendants below is that this court should reinstate its original judgment, or alternatively, remand the cause to superior court with directions to dismiss the cause as now being moot. The majority opinion concludes that'we should reinstate our judgment in DeFunis, supra. I dissent.

For the most part, the tenor of the majority opinion is cast in terms of power, and with the conclusion of the majority that this court possesses the power to reinstate, I agree. However, under the clear mandate from the Supreme Court, our duty is to focus upon the appropriateness of such action.

Manifestly, reinstatement of DeFunis will ensure that if future litigation ensues challenging the minority admissions program at the University of Washington School of Law, a superior court would be compelled to grant a summary judgment in favor of the University pursuant to CR 56 or to dismiss the cause of action pursuant to CR 12(b) (6) for failure to state a claim upon which relief can be granted. The substantial federal question involved presumably would thus be channeled to the United States Supreme Court on a bare complaint, unaccompanied by a fully particularized set of facts. Reinstatement by this court would thus operate to deprive the Supreme Court of the factual basis so often necessary to cogently frame the issues and upon which to predicate a well-reasoned and well-articulated opinion. For reasons to be hereinafter developed, I do not believe it appropriate for this court to create such an unnecessary and undesirable hiatus in our federal system.

At the core of the existing theory of federalism is the proposition that state court decisions passing on federal constitutional issues are susceptible to judicial review by the Supreme Court. Moreover, the Founding Fathers contemplated that the state courts in a sense would be essentially quasi auxiliaries of the Court of Last Resort — Su *632 preme Court — when they rule on issues of constitutional import. See The Federalist No. 82 (A. Hamilton). Therefore, one of our obligations in a federal system is to refrain from actions not commensurate or consistent with the doctrine of judicial review by the Supreme Court. Since reinstatement would impinge upon the viability and efficacy of that review, I do not believe that we would fulfill our obligations to the federal aspects of our dual court system by reinstating our DeFunis decision.

Of course, this court does have other obligations beyond those to federalism. One such duty, correctly identified by the majority, is to articulate and provide definitive rulings on issues of broad public concern. Indeed, the sole justification offered by the majority in support of reinstatement is the argument that we would abdicate our obligation to the public not to now render a definitive ruling in this protracted litigation. Perhaps this obligation may seem inconsistent with our obligation to the federalist system, but I consider these seemingly divergent obligations and values reconcilable, or at least resolvable. It appears to me that when this court initially ruled in DeFunis, supra, it then completely fulfilled its duty to the public. Now, as I see it, we are at a chronologically different and analytically distinct stage of the litigation process in which considerations of federalism assume paramount significance and displace considerations of ruling on matters of public interest. Accordingly, in this case we should refrain from reinstating our original judgment absent a stronger countervailing consideration than informing the public generally.

Of course, aberrational cases may arise in the future in which it may be proper for a state court to reinstate or reverse its prior judgment. However, the predicate for reinstatement should not be simply to solve an issue of public interest. Rather, the pivotal consideration usually will be whether res judicata or collateral estoppel effect should be given to the state supreme court judgment. Apparently, the underlying motivation behind the trend of the Supreme *633 Court to vacate moot appeals is to afford it and state courts some flexibility in determining whether justice as between the parties would best be served by giving or denying res judicata effect to a prior state judgment. See Comment, Disposition of Moot Cases by the United States Supreme Court, 23 U. Chi. L. Rev. 77 , 82-83, 93 (1955). Consequently, reinstatement or reversal would arguably be proper when the one or the other is necessary to insure justice to the litigants before the court.

For instance, in Dyer v. City Council, 250 Wis. 613 , 27 N.W.2d 733 (1947), 333 U.S. 825 , 92 L. Ed. 1111 , 68 S. Ct. 450 (1948), 252 Wis. 249 , 32 N.W.2d 333 (1948), the Wisconsin Supreme Court denied the appellant a license to sell milk. The case was rendered moot when the appellant was granted a license pending appeal. After vacation and remand by the Supreme Court, the Wisconsin court then reversed its prior decision — apparently to ensure that the license granted to the appellant could not be withdrawn on the basis of the original Wisconsin judgment. See Comment, Disposition of Moot Cases by the United States Supreme Court, 23 U. Chi. L. Rev. 77 , 87 (1955). Arguably, such a situation provides a sound basis for a state court to render a judgment notwithstanding a prior vacation by the Supreme Court since the interests of federalism should yield when necessary to prevent gross injustice.

However, under the particular facts of the instant case, I can see no injustice to the University of Washington that would be engendered by our refusal to reinstate our prior judgment and make this matter res judicata as between it and Marco DeFunis. In its brief, the University urges that it will suffer injustice because its minority admissions program will no longer have the sanction of our prior decision. But, of course, this is not a res judicata consideration but merely a stare decisis consideration which I have previously concluded is subordinate to the interest subsequently of ensuring review by the Supreme Court on a complete set of facts. Therefore, I conclude that the De- *634 Funis litigation in its entirety should simply be rendered null and void.

As the state of affairs now exist, little action is required on our part to accomplish this end. Conceptually, the judgment of the trial court became a nullity — “mere wastepaper” — the moment we reversed it in our DeFunis ruling. 2 Freeman, Law of Judgments 2416 (5th ed. 1925). The proceedings were then placed in the posture that they occupied prior to the rendition of the trial court judgment. Market v. Transamerica Title Ins. Co., 103 Ariz. 353 , 442 P.2d 97 (1968); Doughty v. State Dep’t of Pub. Welfare, 233 Ind. 475 , 121 N.E.2d 645 (1954); Phebus v. Dunford, 114 Utah 292 , 198 P.2d 973 (1948);

The vacation of our judgment by the Supreme -Court effected no change in that posture. While a trial court judgment, reversed by an intermediate court, may be revived by a subsequent reversal (i.e., a ruling on the merits) * by a higher appellate court, Clough v. Greyhound Corp., 92 Ga. App. 558, 88 , S.E.2d 700 (1955); Coit v. Sistare, 85 Conn. 573 , 84 A. 119 (1912), the same effect' cannot logically .be accorded to a mere vacation which is essentially a neutral disposition. If a vacation effected a revival, then the Supreme Court would have made a de facto, albeit sub silencio, ruling on the merits. Since the court expressly disclaimed the power to rule on the substantive issues, it necessarily follows that the vacation should not result in a revival. Rather, the vacation simply nullified our state Supreme Court judgment and everything incorporated in it— including the trial court judgment.

Conceptually, then, we are left with no judgment, either of the trial court or of our state Supreme Court to vacate, or with which to be concerned, although technically the proceedings in the trial court prior to its judgment are still, in existence. Therefore, I would simply remand to the trial court with directions to dismiss the complaint.

Wright and Brachtenbach, JJ., concur with Finléy, J.

Cf. State ex rel. Columbia Broadcasting Co. v. Superior Court, 1 Wn.2d 379 , 96 P.2d 248 (1939), 310 U.S. 613 , 84 L. Ed. 1389 , 60 S. Ct. 1085 (1940), 5 Wn.2d 711 , 105 P.2d 70 (1940), where the Supreme Court vacated the Washington Supreme Court judgment which became moot pending appeal, but on remand this court also vacated its own judgment. Although the precise.-issue was not discussed, this court implicitly questioned the validity of the vacation by the. Supreme Court. Otherwise, the second vacation by this court would be superfluous. • ’-