Petition for Writ of Certiorari — Fox v. Board of Trustees of the State University

Supreme Court brief1995

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FIL&D

No 9 41819 MAY 21995

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SUPREME COURT OF THE UNITED STATES

October Term, 1994

TODD FOx, EDWARD R. DETWEILER, STEPHANIE VAIANO,

JAMES B. CULLEN, CHRISTINE MARIE ODELL, STEVEN

GAWLEY, DANIEL ALTMAN, PHILIP JAY BOTWINIK,

JEFFREY S. ZELLAN, JACLYN BERNSTEIN, GLEN

MAGPANTAY, WILLIAM WEITZ, COREY ANTHONY,

DIEGO MUNOZ, EDWARD FAGAN, BAYCAN FIDELI,

JODIE GREEN and JEFFREY LUKS,

Petitioners,

THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF

NEW YORK, and CLIFTON R. WHARTON, JR., individually

and as Chancellor of the Board of Trustees, and THE STATE

UNIVERSITY OF NEW YORK COLLEGE AT CORTLAND, and

JAMES M. CLARK, individually and as President of the

College at Cortland, and THE STATE UNIVERSITY OF NEW

YORK AT BINGHAMTON, and CLIFFORD D. CLARK,

individually and as President of the State University of

New York at Binghamton, and THE STATE UNIVERSITY

OF NEW YORK AT ALBANY, and VINCENT O’LEARY,

individually and as President of the State University of

New York at Albany, and THE STATE UNIVERSITY OF

NEW YORK COLLEGE OF ARTS AND SCIENCES AT

POTSDAM, and HUMPHREY TOMKIN, individually and as

President of the College of Arts and Sciences at Potsdam,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

Henry T. Reath

Counsel of Record

Wayne A. Mack

Marc H. Perry

James C. King

DUANE, MORRIS & HECKSCHER

One Liberty Place

Philadelphia, PA 19103-7396

(215) 979-1000

Attorneys for Petitioners

PACKARD PRESS® / APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000

QUESTION PRESENTED FOR REVIEW

This is an important constitutional case that was started

over twelve years ago, by a group of students and representa-

tive leaders in student government at a state university, to vin-

dicate their first amendment rights. The case was decided by

this Court almost six years ago in June, 1989, when the Court

ruled in substantial part in the students’ favor, finding that the

challenged regulation infringed on the students’ pure free

speech rights. The Court remanded the case to the court

below to resolve the commercial speech issues under a modi-

fied standard of first amendment analysis.

Due to incredible delays, all plaintiffs had graduated or

withdrawn from the defendant university by the time the case

came back to the District Court on remand. The District

Court originally permitted plaintiffs to amend the complaint

to add new parties, but then some 22 months later reversed its

order and dismissed the case as moot under Article III for

lack of a case or controversy. The Second Circuit Court of

Appeals affirmed.

The Question Presented for Review is whether the moot-

ness doctrine:

e isa rigid and inflexible jurisdictional bar in every case,

regardless of circumstances, based solely on the “case

or controversy” provision of Article III of the US.

Constitution, as held by the court below; or whether it

® has sufficient flexibility to permit a case challenged for

mootness to remain under federal jurisdiction to final

judgment, for example, by permitting an amendment

of the complaint to substitute new plaintiffs, as this

Court and other courts have ruled; and

¢ avoid premature termination of a case, that could

deny plaintiffs their opportunity, not only to fully pre-

vail on the merits, but also, as the prevailing parties, to

recover their legal fees; — thereby putting at risk con-

gressional intent encouraging private litigation to pre-

serve individual constitutional rights.

LIST OF PARTIES

Plaintiffs are Todd Fox, Edward R. Detweiler, Stephanie

Vaiano, James B. Cullen, Christine Marie Odell, Steven Gaw-

ley, Daniel Altman, Philip Jay Botwinik, Jeffrey S. Zellan,

Jaclyn Bernstein, Glen Magpantay, William Weitz, Corey

Anthony, Diego Munoz, Edward Fagan, Baycan Fideli, Jodie

Green and Jeffrey Luks.

Defendants are The Board of Trustees of the State Uni-

versity of New York, and Clifton R. Wharton, Jr., individually

and as Chancellor of the Board of Trustees, and the State

University of New York College at Cortland, and James M.

Clark, individually and as President of the College at Cort-

land, and the State University of New York at Binghamton,

and Clifford D. Clark, individually and as President of the

State University of New York at Binghamton, and the State

University of New York at Albany, and Vincent O’Leary, indi-

vidually and as President of the State University of New York

at Albany, and the State University of New York College of

Arts and Sciences at Potsdam, and Humphrey Tomkin, indi-

vidually and as President of the College of Arts and Sciences

at Potsdam.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW.......___. i

i SS ii

sAmae GOP AUTHORITIOS......................... vi

Sr 2

STATEMENT OF JURISDICTION.................. 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...................... 3

STATEMENT OF THE CASE....................... 3

REASONS FOR GRANTING THE WRIT........_.. 7

1. This Court Should Grant Certiorari to Resolve Per-

sistent Conflicts Among the Lower Courts Over the

Application of the Mootness Doctrine.........___ 7

2. The Confusion and Conflicts in the Application of

the Mootness Doctrine Are Revealed by Numerous

Cases, Learned Commentaries, and Recent State-

ments by the Justices of this Court............... 8

A. The confusion has been commented on by the

Second and Sixth Circuits .................... 8

B. The confusion has been the subject of many

Send 9

C. The confusion has been recognized in Opinions

EEE SESS Se ae an nee ne 1]

D. The mootness doctrine as historically applied by

this Court is flexible and “riddled with excep-

gt SASS UE i a a 13

E. There are serious and recurring conflicts among

NN nai bork beh ox sac .c... 16

ill

TABLE OF CONTENTS—(Continued)

Page

(1) There are conflicts regarding the significance

of a student plaintiff’s graduation from a

GotemGant WOUTIOR «ww ccc ccc ceccnsees 18

(2) There are conflicts regarding the plaintiffs’

right to amend a complaint to correct an

alleged mootness problem................. 19

(3) There are conflicts regarding the correct

application of the capable of repetition, yet

evading review exception to the mootness

IE os ks 48 occas Wis Webel cen deaens 19

(4) There are conflicts regarding the correct

application of the representative action

exception to the doctrine of mootness ...... 21

(5S) This case presents the Court with the oppor-

tunity to resolve the conflicts ............. p+

3. This Case Illustrates the Inequities and Waste of

Judicial Resources from the Rigid and Inflexible

Application of the Mootness Doctrine............. 22

A. This Court’s resources should not be wasted

once this Court accepts jurisdiction ............ 23

B. A party should not be rewarded for a belated

ge gr ee mr r Pere 24

C. Two simple procedural expedients to avoid

mootness should have been utilized............ 25

(1) Representative capacity. .................. 25

(2) Amendment to add new parties............ 27

LD. FUCGRNE CAMGRGOTURIONI. 2.5 055s cc ccsccesvccenss 27

PE TEE «66% wns ks 0 oe ees ncun cbdeeneedacees 30

TABLE OF CONTENTS—( Continued)

Page

APPENDIX

Timeline of procedural history of case ................ la

Outline of oral argument presented to Second Circuit. . . 3a

Court of Appeals’ Order denying Petition for Rehearing 4a

Fox v. Board of Trustees, 42 F.3d 135 (2d Cir. 1994)..... 6a

Fox v. Board of Trustees, 148 ER.D. 474 (N.D.N.Y.

WOME Adu hese aaneee Kiedis ivackbica 23a

Fox v. Board of Trustees, 764 F. Supp. 747 (N.D.N.Y.

SOE db vSiaeik watches eweiiass cedade none S4a

Fox v. Board of Trustees, 492 U.S. 469 SEs bean kde as 76a

Remand Order by Second Circuit to District Court... .. 96a

Constitutional and Statutory Provisions ............... 98a

TABLE OF AUTHORITIES

Cases: Page

American Party v. White, 415 U.S. 767 (1974) .......... 22

Bender v. Williamsport Area Sch. Dist., 741 F.2d 538 (3d

Cir. 1984), vacated on other grounds, 475 U.S. 534

a kar 5b Kenda eek 640 beGke ber nen eewaa~ens 19

Board of Educ. v. Rowley, 458 U.S. 176 (1982) ......... 15

Brandon v. Board of Educ., 635 F.2d 971 (2d Cir. 1980),

cert. denied, 434 U.S. 1123 (1961)... 2. cececccvess 21

Brock v. Roadway Express, Inc., 481 U.S. 252 (1987).... 15

Burlington N. R.R. Co. v. Brotherhood of Maintenance of

Way Employes, 481 U.S. 429 (1987)............... 15

California Coastal Comm’n v. Granite Rock Co., 480 U.S.

EN 65 kusé0sbne8' 6000 cnsaesaiesaeh ideas 15

Carroll v. Blinken, 768 F. Supp. 1030 (S.D.N.Y. 1991),

aff'd in part, rev'd in part on other grounds, 957 F.2d

991 (2d. Cir. 1992), cert. denied, 113 S. Ct. 300

DP GHikslhokaak sd keiss kas eamwan kena a ewes a 20

Christopher P. v. Marcus, 915 F.2d 794 (2d Cir. 1990), cert.

ee ee Gi. BED CRUE oo hee cccccunvcersane 20

Curtis v. Des Moines, 995 F.2d 125 (8th Cir. 1993) ...... 28

Democratic Party of United States v. Wisconsin, 450 U.S.

SE 6s aw bn keeeeseudk eon tees wean 15

Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991)......... 20

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978)......... 16

Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ........ 16

Globe Newspaper Co. v. Superior Court, 457 U.S. 596

DN. 4 64d See cehdnened eee eaken ans cuaeah eee 15

Heldman v. Sobol, 962 F.2d 148 (2d Cir. 1992).......... 9, 20

Hensley v. Eckerhart, 461 U.S. 424 (1983). ............. 28

TABLE OF AUTHORITIES—(Continued)

Cases: Page

Honig v. Doe, 484 U.S. 305 (1988) ............. 9, 11-12, 23

International Org. of Masters v. Brown, 498 U.S. 466

INE Ui od Gg uuidd Ge bated h cbaue asada us vids dae 14

Johnston-Loehner v. O’Brien, 859 F. Supp. 575 (M.D. Fla.

SE hd sine t uses wt kb kd baa Wl me diinn Woa dob hie de kiec os 20

Jones v. Illinois Dep’t of Rehabilitation Servs., 689 F.2d

We PE AAG RDA he ohnccdenebewuscueons 19

Kellogg v. Shoemaker, 46 F.3d 503 (6th Cir. 1995) ....... 9

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990)... 27

Liner v. Jafco, Inc., 375 U.S. 301 (1964) ............... 13

Meyer v. Grant, 486 U.S. 414 (1988) ........0.00..0.... 15

Moore v. Ogilvie, 394 U.S. 814 (1969) ................. 22

Mullaney v. Anderson, 342 U.S. 415 (1952). .......... 27, 30

Norman v. Reed, 502 U.S. 279 (1992) ................. 15

Pinette v. Capitol Square Review & Advisory Bd., 30 F.3d

675 (6th Cir. 1994), cert. granted, 115 S. Ct. 787

Skchas hn ese cbnndn eeene dais aie bean antes 18

Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) 15

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

Nhe Orit waeedd'ekdasevende aiad os cka sus ua cs 16

Riverside v. Rivera, 477 U.S. 561 (1986) ............... 28

Roe v. Wade, 410 U.S. 113 (1973) ................... 13-14

SEC v. Sloan, 436 U.S. 103 (1978) .................... 16

Smith v. Lower Merion Township, Civ. A. No. 90-7501,

1991 WL 205023 (E.D. Pa. Oct. 7, 1991)........... 26

Sosna v. Iowa, 419 U.S. 393 (1975). .......000.0.00005. 21

United States v. New York Tel. Co., 434 U.S. 159 (1977) . 16

Vii

TABLE OF AUTHORITIES—(Continued)

Cases: Page

United States Parole Comm’n v. Geraghty, 445 U.S. 388

Ad oa: dca heenesawekdueenaceenertnuenens 14, 21

United States v. Frumento, 552 F.2d 534 (3d Cir. 1977)... 16

Vitek v. Jones, 445 U.S. 480 (1980). ........ 0... ee eee 16

Washegesic v. Bloomingdale Pub. Sch., 33 F3d 679 (6th

Cir. 1994), petition for cert. filed, 63 USLW 3644

A Ee SNS a hnneabeeN eka Neeeeedeuseiet cee 18

Wisconsin Dep’t of Industry, Labor & Human Relations v.

Gould, Inc., 475 U.S. ZA2 (19GG). oc cc cccccccsess i

Constitutional Provisions:

ee Re Oe OS Oe lh er Pree er rer ee passim

Statutes and Rules:

Be Se he BREED CATO noes en canny erneesesnceses 2

Be Rs BOE CUE hb vc tee cdininennastvetens 25, 28

i os ais as ba ke al kb baa 5, 27

Re | gp : Se err ere rer 5, 27,

PO es Gat AS be ec ond anes seesacvsaeseusaies 5, 27,20

g Re) fer rer errr Por ery ry ee 26

Miscellaneous:

Currie, Federal Courts (1962). .....0.scccccccccesess ae 5,

13A Charles A. Wright, et al., Federal Practice and Pro-

cedure, §3533.1 (1984 & Supp. 1994)............ 11, 17

Evan Tsen Lee, Deconstitutionalizing Justiciability: The

Example of Mootness, 105 Harv. L. Rev. 605

TABLE OF AUTHORITIES—(Continued)

Miscellaneous: Page

Arthur R. Miller, Comment, Of Frankenstein Monsters

and Shining Knights: Myth, Reality, and the “Class

Action Problem,” 92 Harv. L. Rev. 664 (1979)...... 26

Henry P. Monaghan, Constitutional Adjudication: The

Who and When, 82 Yale L.J. 1363 (1973).......... 17

Gene R. Nichol, Jr., Moot Cases, Chief Justice Rehnquist,

and the Supreme Court, 22 Conn. L. Rev. 703

SNE G5 5 oe bed nado s bad ved dadedciwesks 9,17

William Simon, Class Actions — Useful Tool or Engine of

Destruction, 35 F.R.D. 375 (1972). ...........0000- 26

Corey C. Watson, Comment, Mootness and the Constitu-

tion, 86 Nw. U. L. Rev. 143 (1991)................ 10

Timothy Wilton, The Class Action in Social Reform Liti-

gation: In Whose Interest?, 63 B.U. L. Rev. 597

Saha bee cael coe te is canedéccctivdoe 26

Note, The Mootness Doctrine in the Supreme Court, 88

BG Fev HOE 0d CA PPOD hn ko ob 05.44 0bddn ohccn vas 22

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

TODD FOX, EDWARD R. DETWEILER, STEPHANIE VAIANO,

JAMES B. CULLEN, CHRISTINE MARIE ODELL, STEVEN

GAWLEY, DANIEL ALTMAN, PHILIP JAY BOTWINIK,

JEFFREY S. ZELLAN, JACLYN BERNSTEIN, GLEN

MAGPANTAY, WILLIAM WEITZ, COREY ANTHONY,

DIEGO MUNOZ, EDWARD FAGAN, BAYCAN FIDELI,

JODIE GREEN and JEFFREY LUKS,

Petitioners,

THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF

NEW YORK, and CLIFTON R. WHARTON, JR., individually

and as Chancellor of the Board of Trustees, and THE STATE

UNIVERSITY OF NEW YORK COLLEGE AT CORTLAND, and

JAMES M. CLARK, individually and as President of the

College at Cortland, and THE STATE UNIVERSITY OF NEW

YORK AT BINGHAMTON, and CLIFFORD D. CLARK,

individually and as President of the State University of

New York at Binghamton, and THE STATE UNIVERSITY

OF NEW YORK AT ALBANY, and VINCENT O’LEARY,

individually and as President of the State University of

New York at Albany, and THE STATE UNIVERSITY OF

NEW YORK COLLEGE OF ARTS AND SCIENCES AT

POTSDAM, and HUMPHREY TOMKIN, individually and as

President of the College of Arts and Sciences at Potsdam,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully request that a writ of certiorari

issue to review the judgment entered by the United States

Court of Appeals for the Second Circuit in this proceeding on

February 3, 1995.

OPINIONS BELOW

The opinion of the Court of Appeals for the Second Cir-

cuit of December 9, 1994 is reported at 42 F.3d 135 (2d Cir.

1994), and reprinted in the Appendix (“App.”) to this Petition

at 6a. The February 3, 1995 Order of the Second Circuit deny-

ing plaintiffs’ petition for rehearing or rehearing en banc is

reprinted at App. 4a.

The Second Circuit’s opinion affirmed the May 7, 1993

Order and Opinion of the United States District Court for the

Northern District of New York, which is reported at 148

F.R.D. 474 (N.D.N.Y. 1993), and reprinted at App. 23a. That

decision reversed the District Court’s own prior May 24, 1991

decision, which is reported at 764 F. Supp. 747 (N.D.N.Y.

1991), and reprinted at App. 54a.

This Court’s decision of June 29, 1989, with specific

instructions on remand to the Second Circuit is reported at

492 U.S. 469 (1989), and reprinted at App. 76a. The Second

Circuit’s September 26, 1989 Order remanding the case to the

District Court is reprinted at App. 96a.

The District Court’s decision of June 3, 1983, granting

preliminary injunctive relief is reported at 565 F. Supp. 754

(N.D.N.Y. 1983). The District Court’s decision of June 12,

1986, following trial is reported at 649 F. Supp. 1393 (N.D.N_Y.

1986). That decision was reversed by the Second Circuit Court

of Appeals on March 11, 1989, in a decision reported at 841

F.2d 1207 (2d Cir. 1988).

The District Court’s original decision of October 3, 1988,

on remand from the Second Circuit, is reported at 695 F. Supp.

1409 (N.D.N.Y. 1988).

STATEMENT OF JURISDICTION

The final judgment of the Court of Appeals for the Sec-

ond Circuit was entered on February 3, 1995. On February 3,

1995, plaintiffs’ request for rehearing or rehearing en banc was

denied. See App. at 4a. This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1) (1993).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory provisions involved are

US. Const. Art. Ill, § 2; Fed.R.Civ. P. 1; Fed.R.Civ. P. 15 and

Fed.R.Civ. P. 21. The pertinent text of these provisions is

included in the Appendix at App. 98a-99a.

STATEMENT OF THE CASE

This action involves the constitutionality of a regulation,

which was enacted by the Board of Trustees of the State Uni-

versity of New York (SUNY), and which prohibits students

and their guests from meeting and hearing commercial presen-

tations by business invitees and non-commercial presentations

by professional invitees, such as lawyers, doctors or tutors.

The regulation applies across all SUNY campuses, including in

the students’ rented dormitory rooms.

This case was previously before this Court in 1989, when

the Court held that both commercial and pure free speech

rights were at issue and remanded to the Court of Appeals to

decide whether the regulation passed muster under the stan-

dards announced in that opinion. 492 U.S. 469, 486 (1989),

App. at 92a. Incredibly, these issues have never been resolved

and the past six years have been spent litigating the issue of

mootness.'

1982 — The Original Action

The case began more than twelve years ago in December,

1982. On December 3, 1983, the District Court preliminarily

enjoined the SUNY regulation on the ground that it infringed

on the students’ commercial speech rights. 565 F. Supp. 757,

771 (N.D.N.Y. 1983). The District Court concluded that

although SUNY may have legitimate purposes for the policy,

it was apparently premised on “undifferentiated fear or appre-

hension.” Id. at 765. Thus, there was no evidence that the

“blanket prohibition” directly advanced those purposes OF

1. A timeline of the procedural history of this case detailing the

extraordinary delays over the last thirteen years is attached at App. la.

that the purposes could not be served as well by less restric-

tive restraints on speech. 565 F. Supp. 754.

Following a non-jury trial on the merits, the District

Court on December 12, 1986, dissolved its preliminary injunc-

tion and sustained the SUNY policy. 649 F. Supp. 1393.

(N.D.N.Y. 1986). Although the District Court found that there

was evidence of less restrictive measures that would further

the intended purposes of the ban, the Court concluded that

the regulation affected only commercial speech and was thus

sustainable under the rational basis analysis. Jd. at 1401-02.

1986-1988 — Appeal to the Second Circuit

On appeal, the Second Circuit reversed and remanded,

ruling that the “SUNY Regulation survived constitutional

scrutiny below only because the First Amendment nghts of

students were ignored.” 841 F.2d 1207, 1214 (2d Cir. 1988).

The Court rejected the rational basis analysis applied by the

District Court in favor of a “least restrictive means” test. Jd.

1988 — First Remand to the District Court

On October 3, 1988, the District Court on remand struck

down the SUNY regulation as a violation of the students’

commercial speech rights. 695 F. Supp. 1409, 1413 (N.D.NLY.

1988). The District Court found that the regulation did not

directly advance the state’s interests and that the regulation

was more extensive than necessary. Jd. at 1414.

1989 — Decision and Remand Order by this Court

A writ of certiorari, sought by SUNY, was granted by this

Court on the same day that the District Court issued its opin-

ion striking down the regulation. Following receipt of briefs

and oral argument on February 22, 1989, this Court issued its

decision on June 29, 1989. Justice Scalia writing for the major-

ity held that Resolution 66-156 not only prohibits commercial

speech, but also pure non-commercial speech, which is entitled

to the fullest protection of the First Amendment. 492 U‘S. at

481-82, App. 88a-89a. The Court declined to enter judgment

for the plaintiffs on this issue because they had not filed a

cross-petition for certiorari. It remanded the case to the Sec-

ond Circuit for determination of:

¢ the validity of the application of the regulation to pure

non-commercial speech;

e whether the regulation was narrowly tailored in its

application to commercial speech; and

e¢ whether Resolution 66-156 may be constitutionally

infirm due to “its substantial overbreadth.”

492 US. at 486, App. at 92a.

Justice Blackmun, in a dissenting opinion, readily found

the resolution to be substantially overbroad and stated it

should be struck down immediately “in order to avoid chilling

protected speech during the pendency of proceedings on

remand.” 492 U.S. at 488-89, App. at 94a-95a (Blackmun, J.,

dissenting).

1989-1993 — Remand to the District Court and

Dismissal for Mootness

On June 26, 1989, the Second Circuit rejected plaintiffs’

application for that court to decide the open issues, and

remanded this case to the District Court, explicitly quoting the

remand instructions in the Supreme Court opinion. App. at

97a.

On May 24, 1991, nearly two years after the case was

remanded from this Court, the District Court ruled the case

was moot because the plaintiffs were no longer SUNY stu-

dents. 764 F. Supp. 747, 757 (N.D.N.Y. 1991), App. at 71a.

However, the Court granted plaintiffs leave to amend their

Complaint to add current SUNY students as plaintiffs, recog-

nizing that granting plaintiffs leave to amend would cause no

prejudice to defendants and would advance the resolution of

this case on the merits.? 764 F. Supp. at 758, App. at 73a-74a.

Plaintiffs in turn filed an amended complaint naming current

SUNY students as plaintiffs.

2. See Fed. R. Civ. P., 1, 15(a), and 21, reprinted in App. at 98a-99a.

On May 7, 1993 (nearly four years after the remand

order), the District Court issued an opinion which reversed its

prior opinion that had permitted plaintiffs to amend their

Complaint to add new plaintiffs. The District Court dismissed

the case as moot because of the absence of a “case or contro-

versy” under Article III of the Constitution. 148 F.R.D. 474,

489 (N.D.N.Y. 1993), App. at 53a. The court ruled that it had

“no leeway” to permit an amended complaint, suggesting that

plaintiffs should have brought a class action lawsuit or should

now institute a new action. 148 F.R.D. at 483-84, App. at 41a-

42a.

1994-1995 — Appeal to the Second Circuit:

Dismissal Affirmed and Petition for Rehearing Denied

Plaintiffs appealed the order and decision of the District

Court to the Second Circuit Court of Appeals, which affirmed

the District Court’s ruling. 42 F.3d 135 (2d Cir. 1994), App. at

6a. The Court of Appeals ruled that the mootness doctrine

was based on the case or controversy requirement of Article

III of the Constitution and, as a result, the Court applied the

doctrine rigidly. Although several plaintiffs filed affidavits

indicating that they wished to re-enroll at SUNY to complete

their education or to obtain graduate degrees, the Court of

Appeals held that the case was not “capable of repetition, yet

evading review”. 42 F.3d at 143, App. at 21a-22a. The Court

agreed with the District Court that it did not have the power

to allow plaintiffs to amend their complaint to join additional

students as plaintiffs once the case became moot. 42 F.3d at

144, App. at 22a. On February 3, 1995, without opinion, the

Court denied Plaintiffs’ Petition for Reargument. App. at 4a.

In its opinion, the Court rejected plaintiffs’ argument,

based on the cases discussed below, that the mootness doctrine

e “prudential and flexible, not rigid;” and that

e “there are strong reasons to override the mootness doc-

trine where a case, rooted in federal jurisdiction, is

accepted by the U.S. Supreme Court.”

3. See Outline of Oral Argument, Points #1 and 9, App. at 3a. This

REASONS FOR GRANTING THE WRIT

1. This Court Should Grant Certiorari to Resolve Persistent

Conflicts Among the Lower Courts Over the Application

of the Mootness Doctrine.

This Court should once and for all clear up the disagree-

ment in this Court, and conflicts below, regarding the basis for

and the application of the mootness doctrine. Because of the

current state of confusion regarding the mootness doctrine, its

application can as demonstrated by this case:

¢ Constitute an incredible waste of judicial resources and

squander the valuable expertise and time of dedicated judges,

particularly the members of this Court, where, as here, follow-

ing briefs and oral argument, the Court handed down a major

decision and remanded for further review which has not yet

taken place.

¢ Reward defendants for delaying and prolonging litiga-

tion rather than changing their unconstitutional conduct. In

this case, SUNY, the party which sought certiorari did not

raise the mootness claim until after it had lost its principal

issue on appeal, when it had notice of the facts supporting its

mootness argument before the case was argued before this

Court. By this delay, defendants were able to continue to this

day their unconstitutional conduct and prevent the plaintiffs

from establishing their right to relief and possibly to recover

fees for their counsel as prevailing parties.

¢ Require further costly litigation to resolve issues this

Court directed be resolved six years ago, which could have

been avoided by two simple procedural expedients:

brought in a representative capacity; and

21 to add additional parties.

¢ Finally, there are adverse judicial consequences, where

the mootness doctrine is unfairly applied to parties, who are

not responsible for the long delays as in this case.

outline was presented to the panel and opposing counsel at the time of oral

argument and all points #1-9 were stressed by plaintiffs’ counsel throughout

the argument.

It can further undermine an already waning public confi-

dence in the judicial system’s will and ability to decide impor-

tant public issues promptly and efficiently. This is particularly

so with regard to the student plaintiffs in this case, as repre-

sentative leaders in student government, in their first exposure

to the U.S. legal system, and the over 1,500,000 students from

colleges and universities throughout the country, on whose

behalf amicus briefs were filed in 1989 in this Court.‘

Furthermore, permitting a defendant to prematurely ter-

minate an action by asserting a mootness defense, may pre-

clude plaintiffs from seeking recovery of legal fees as the pre-

vailing party. This will have a “chilling effect” on the

willingness of the private bar to make legal services available

to such students, particularly where, as here, there is no claim

asserted for monetary damages.‘

2. The Confusion and Conflicts in the Application of the

Mootness Doctrine Are Revealed by Numerous Cases,

Learned Commentaries, and Recent Statements by the

Justices of this Court.

A. The confusion has been commented on by the Second

and Sixth Circuits.

This case raises a critical, debated and unresolved issue

regarding the doctrine of mootness. Hundreds of cases are

decided by the federal courts each year involving the doctrine

of mootness and a wide array of constitutional issues. Because

the precise contours of the doctrine remain in dispute, how-

ever, it has been applied in an inconsistent and totally unpre-

dictable manner by the courts.

Both the Second and Sixth Circuit Courts of Appeals

have recently observed that the basis for and application of

the mootness doctrine are much in dispute:

4. See Amicus brief filed in this action in this Court on December 20,

1988, on behalf of Student Association of the State University of New York,

Inc.; Arizona Students’ Association; California State Student Association;

Colorado Student Association; Connecticut Student Association; Michigan

Collegiate Coalition, Inc.; Oregon Student Lobby; Rutgers College Govern-

ing Association; Rutgers University Legislative Affairs Council; and United

Council of University of Wisconsin Student Government, Inc.

5. See further discussion below at Section 3.D., pp. 27-29.

¢ Former Chief Judge Oakes of the Second Circuit has

stated that “[rjecently, members of the Supreme Court and

commentators have questioned the nexus between the moot-

ness doctrine and Article III.” Heldman v. Sobol, 962 F.2d * 48,

154 n. 7 (2d Cir. 1992).

¢ The Sixth Circuit raised similar questions regarding the

mootness doctrine even more recently, noting that “consider-

able controversy surrounds the mootness doctrine” after this

Court’s decision in Honig v. Doe, 484 U.S. 305 (1988). Kellogg

v. Shoemaker, 46 F.3d 503, 507 (6th Cir. 1995). There the Court

of Appeals summarized the competing views of mootness:

¢ Article III Based: One view holds that the mootness

doctrine “is fundamentally tied to the case and contro-

versy language of Article Ill, and, therefore, the court

may only review if there is a justiciable issue.” Jd.

(emphasis added).

¢ Prudential Doctrine: Another view is that the moot-

ness doctrine “is more flexible, and may be used to

accomplish prudential concerns to avoid the squander-

ing of judicial resources after the decisional process is

underway.” Jd. (emphasis added).

B. The confusion has been the subject of many legal

commentaries.

Legal commentaries have also noted the ongoing debate

in the courts regarding the doctrine of mootness:

¢ One commentator has stated that “mootness law is

both internally inconsistent and, more often, difficult to square

with other aspects of federal justiciability law.” Gene R.

Nichol, Jr., Moot Cases, Chief Justice Rehnquist, and the

Supreme Court, 22 Conn. L. Rev. 703, 708 (1990). According

to Dean Nichol, “[t]rying to square a constitutional aversion

to moot cases with the reality that at least several members of

the Supreme Court have likely meant to reach the merits of

the substantive dispute, or else they would not have accepted

the case for review, has caused eminent jurists — with some

frequency — to say very silly and indefensible things . . . Insti-

tutionally, it can do the Court little good for such arguments

to find their way into published opinions.” Jd. at 708-10.

¢ Another commentator has described the court’s treat-

ment of mootness as “unprincipled and chaotic.” Corey C.

Watson, Comment, Mootness and the Constitution, 86 Nw.

U. L. Rev. 143, 145 (1991). According to this author, the core

of the dispute is the constitutional question: “Is mootness

rooted to article III of the Constitution, or is it a prudential

doctrine, a product of judicial policy?” Jd. at 146.

¢ Yet another commentator has stated that the Supreme

Court has come close to “reexamining the supposed constitu-

tional underpinnings of justiciability” in mootness cases and

“hinted that it might be willing to make incursions into the

orthodox view that Article III lies at the core of justiciability.”

Evan Tsen Lee, Deconstitutionalizing Justiciability: The

Example of Mootness, 105 Harv. L. Rev. 605, 609 (1992). Pro-

fessor Lee has argued that “imparting constitutional status on

the justiciability doctrines is inconsistent with the venerable

principle that the federal courts should reserve for Congress a

significant role in overseeing the contours of their jurisdic-

tion.” Jd. at 609. Professor Lee has further noted that the text,

history and structure of Article III do not support the position

that the mootness doctrine is constitutionally based. Jd. at 608-

09, 636-43.

¢ Professors Wright, Miller and Cooper in their treatise

on Federal Practice and Procedure have also noted the confu-

sion in the courts regarding the doctrine of mootness. They

have written that resort to Article III language does not

resolve the confusion:

Despite the clear separation in received theory between

mootness principles mandated by Article III, and prin-

ciples merely of remedy or judicial administration, most

decisions do not undertake any explanation of the

sources drawn upon. ...

The core of both Article II] and remedial doctrines, in

short, is a search for the possibility that granting a

present determination of the issues offered, and perhaps

the entry of more specific orders, will have some effect in

the real world. Resort to Article III language does not

advance the search, and there is little prospect that clear

lines will be drawn between constitutional and prudential

doctrines.

13A Charles A. Wright, et al., Federal Practice and Procedure,

§ 3533.1, at 225-26 (1984 & Supp. 1994) (footnotes omitted).

C. The confusion has been recognized in Opinions of this

Court.

The basis for and application of the mootness doctrine

has also been recently debated by members of this Court.

Chief Justice Rehnquist has observed that if Article ITI is truly

the basis for mootness, there can be no exceptions to the doc-

trine because Article III has no exceptions. Honig v. Doe, 484

U.S. 305, 330 (1988) (Rehnquist, C.J., concurring). The Chief

Justice explained in Honig that:

If it were indeed Art. III which — by reason of its

requirement of a case or controversy for the exercise of

federal judicial power — underlies the mootness doc-

trine, 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. III itself. we would

have no moxe power to decide lawsuits which are “moot”

but which also raise questions which are capable of rep-

etition but evading review than we would to decide cases

which are “moot” but raise no such questions.

Id. (Rehnquist, C.J., concurring) (emphasis added). The Chief

Justice went on to state: “The logical conclusion to be drawn

from these [mootness] cases, and from the historical develop-

ment of the principle of mootness, is that while an unwilling-

ness to decide moot cases may be connected to the case or

controversy requirement of Art. III, it is an attenuated con-

nection that may be overridden where there are strong rea-

sons to override it.” Jd. at 331 (Rehnquist, C.J., concurring)

(emphasis added).

The decision in Honig dramatically illustrates the diffi-

culty a court faces when dealing with a mootness issue and the

perceived connection to Article III. The plaintiff in Honig

alleged that he was denied educational services to which he

was entitled under the Education of the Handicapped Act. By

the time the case worked its way to this Court, the plaintiff

had dropped out of school. Obviously, tremendous resources

had been expended in litigating the case and the Court

deemed the issues involved worthy of certiorari.

Accordingly, although there was no affirmative showing

that the plaintiff would re-enter the state school system, the

Court ruled that the case was not moot because there was a

“reasonable expectation” that he would seek to complete his

education. /d. at 318 n.6.

Justice Brennan, writing for the majority of the Court,

held that the courts will maintain jurisdiction where there is a

reasonable (not probable) likelihood that the litigant will

again be wronged in a similar way and that any resulting claim

will otherwise evade review. Jd. at 319-320. The majority

explained that the concern in such cases is whether the contro-

versy is “capable of repetition and not ... whether the claim-

ant had demonstrated that a recurrence of the dispute was

more probable than not.” Jd. at 319 n.6.

Justice Scalia and Justice O’Connor dissented from the

majority’s opinion in Honig. Their opinion cautioned that the

majority’s opinion was “fraught with potential for future mis-

chief,” and that the majority’s interpretation of a “reasonable

expectation” had been “deprived of all meaning,” for the

Court was free to “give it whatever application it wishes with-

out fear of effective contradiction.” Jd. at 333, 337 (Scalia and

O’Connor, J.J., dissenting). The dissent argued that the

“capable of repetition” exception was limited to exceptional

cases in whicn there is a demonstrated probability that the liti-

gant will suffer the same problem that created the litigation.

Id. at 333 (Scalia and O’Connor, J.J., dissenting).

Chief Justice Rehnquist took issue with both the majority

and the dissent. In his concurring opinion, he concluded that

mootness “may be overridden where there are strong reasons

to override it.” Jd. at 331 (Rehnquist, C.J., concurring). For

example, where a case became moot after a grant of certiorari,

the Chief Justice argued that the doctrine of mootness should

be abandoned altogether or relaxed. The Chief Justice

stressed the unique resources squandered in such cases and

the responsibility of the Supreme Court to decide the law of

the land as it affects all the people, not just the litigants. Jd. at

332 (Rehnquist, C.J., concurring).

D. The mootness doctrine as historically applied by this

Court is flexible and “riddled with exceptions.”

Even the most cursory review of this Court’s decisions

regarding mootness confirms Chief Justice Rehnquist’s view

that the connection between mootness and Article III is an

attenuated one that may be overridden where there are strong

reasons to do so.

The Supreme Court’s first mention of Article III in con-

nection with mootness did not come until a 1964 case, Liner v.

Jafco, Inc., 375 U.S. 301 (1964), which the Court found not to

be moot at all. See Lee, Deconstitutionalizing Mootness, 105

Harv. L. Rev. at 611. As support for the Article III linkage, the

Court cited two law review articles. “One of these articles was

quite equivocal about the Article III linkage, and the other

was content to rely entirely on the proposition that a moot

case is neither a case nor a controversy in the constitutional

sense — a claim that is far from self-evident.” Jd. at 612.

Seven years later in Roe v. Wade, 410 U.S. 113 (1973), the

Court again dealt with the issue of mootness. The plaintiff in

Roe was pregnant when she began her suit in 1970 and that

pregnancy obviously had ended by the time the Supreme

Court rendered its decision in 1973. Responding to the argu-

ment that the case was moot, Justice Blackmun’s majority

opinion explained that if the termination of the pregnancy

deprived the Court of jurisdiction, there could never be an

appellate review of decisions on abortion laws. Jd. at 125. The

majority opinion did not explain, however, how the plaintiff

retained a personal stake in the outcome of the case so as to

satisfy Article III. Once her pregnancy ended, the plaintiff in

Roe had no more personal stake in the outcome of the case

a RR IR

than any other child-bearing woman in the jurisdiction. Nev-

ertheless, the case was found not to be moot. /d.

In United States Parole Commission v. Geraghty, 445 U.S.

388 (1980), this Court continued to debate the relationship

between mootness and the “case or controversy” requirement

of Article III. There it held that an action brought on behalf

of a class does not become moot on the expiration of the

named plaintiff’s substantive claim. Jd. at 404. Justice Black-

mun, writing for the majority, explained that the mootness

doctrine had a “flexible character.” Jd. at 400. “Art. III justi-

ciability is ‘not a legal concept with a fixed content or suscep-

tible of scientific verification,” but “‘one of uncertain and

shifting contours.’ ” Jd. at 400-01 (citation: omitted).

The Court stated that it was rejecting a “strict, formalistic

view of Art. III,” noting that the mootness doctrine is “riddled

with exceptions ... and in creating each exception, the Court

has looked to practicalities and prudential considerations.” /d.

at 404-06 & n. 11 (emphasis added). “The resulting doctrine

can be characterized, aptly, as ‘flexible’.” Id.

Roe and Geraghty are not unusual opinions in this

respect. As demonstrated below, on at least seventeen other

occasions, this Court has held that when significant constitu-

tional issues are at stake, the mootness doctrine is flexible.

The Court has found a wide range of possible issues capable

of repetition. Not one of these important constitutional deci-

sions would have been rendered were Article III an absolute

bar.

ISSUE FOUND TO BE

CAPABLE OF

CASE REPETITION

Norman v. Reed, 502 U.S. 279, Unsuccessful candidate may

287-88 (1992) again run for election and be

denied the right to use party

name on ballot

International Org. of Masters v. Unsuccessful candidate may

Brown, 498 U.S. 466, 473 (1991) again run for union office and

be denied the right to union’s

mailing list

CASE

Meyer v. Grant, 486 U.S. 414,

417-18 n.2 (1988)

Burlington N. R.R. Co. v. Broth-

erhood of Maintenance of Way

Employes, 481 U.S. 429, 436

(1987)

Brock v. Roadway Express, Inc.,

481 U.S. 252, 257-58 (1987)

California Coastal Comm’n v.

Granite Rock Co., 480 U.S. 572,

578 (1987)

Press-Enterprise Co. v. Superior

Court, 478 U.S. 1, 6 (1986)

Wisconsin Dep’t of Industry,

Labor & Human Relations v.

Gould, Inc., 475 U.S. 282, 285

n.3 (1986)

Board of Educ. v. Rowley, 458

U.S. 176, 186-87 n.9 (1982)

Globe Newspaper Co. v. Supe-

rior Court, 457 U.S. 596, 602-03

(1982)

Democratic Party of United

States v. Wisconsin, 450 U.S.

107, 115 n.13 (1981)

ISSUE FOUND TO BE

CAPABLE OF

REPETITION

Proponents of initiative may

again wish to pay petition cir-

culators to obtain signatures

On initiative petition

Union may again find itself

involved in labor dispute and

wish to picket secondary rail-

roads not involved in dispute

Company may again attempt

to discharge employee in

retaliation for refusing to oper-

ate an unsafe vehicle without

allowing employee an eviden-

tiary hearing

Company may again submit

mining pians for national for-

est that would trigger con-

tested permit requirement

Newspaper may again seek

access to and be denied access

to transcript of preliminary

hearing

Company may again violate

the NLRA three times and be

debarred from doing business

in the state

School district may again enact

plan with similar deficiencies

Press may again wish to attend

and be excluded from rape

trial involving a victim under

State may again wish to use

prohibited process in choosing

delegates for national conven-

ition

ISSUE FOUND TO BE

CAPABLE OF

CASE REPETITION

Richmond Newspapers, Inc. v. Press may again wish to attend

Virginia, 448 U.S. 555, 563 and be prohibited from attend-

(1980) ing trial

Vitek v. Jones, 445 U.S. 480, Prison may again attempt to

486-87 (1980) transfer prisoner to mental

hospital without evidentiary

hearing

Gannett Co. v. DePasquale, 443 Press may again wish to attend

U.S. 368, 377-78 (1979) and be excluded from pretrial

hearing

SEC v. Sloan, 436 U.S. 103, Investor may again hold stock

108-10 (1978) of company subjected to sum-

mary suspension order by SEC

First Nat’! Bank v. Bellotti, 435 Company may again wish to

U.S. 765, 774-75 (1978) contribute money in an effort

to influence voters

United States v. New York Tel. Company may again be forced

Co., 434 U.S. 159, 165 n.6 to allow pen register surveil-

(1977) lance

It is clear from the above-cited cases and countless others

that this Court has treated mootness as a prudential doctrine

to enable it to decide cases on appeal whenever a decision on

the merits would help give true and concrete meaning to

important public values. The exceptions to the mootness doc-

trine have been created and applied as a means to that end,

not as the end itself. As the Third Circuit has stated, the

exceptions to the mootness doctrine have been found “so as to

satisfy the true governing consideration behind the Court’s

decision—that of having review available when significant

interests are at stake.” United States v. Frumento, 552 F.2d 534,

540 (3d Cir. 1977) (emphasis added).

E. There are serious and recurring conflicts among the

Circuits.

As this Court has debated the issue of mootness, the

lower federal courts have been in a quandary to balance pru-

dential concerns with the rigid “case or controversy”

approach. The recognized “exceptions” to the mootness doc-

trine have been interpreted and applied by the lower courts in

conflicting manners to achieve varying ends. In the process,

Article III, which is of great significance in other contexts, has

been trivialized.®

In certain cases, the doctrine has been applied rigidly and

inflexibly in order to avoid reaching the merits of the case.

One commentator has stated that “mootness is a convenient

tool for avoiding ‘hard’ cases.” Henry P. Monaghan, Constitu-

tional Adjudication: The Who and When, 82 Yale LJ. 1363,

1384 n. 141 (1973). Another has stated similarly that only

“[dlifficult cases are moot.” Currie, Federal Courts 89 n.3

(1982). The underlying issues in such cases remain unresolved

and, instead of spending time analyzing the merits of the case,

the appellate court is left to debate the nuances of the doc-

trine of mootness.

In other cases, the courts have strained for ways to avoid

mootness by relying on a number of inconsistent exceptions to

allow the case to proceed to the merits. Professors Wright,

Miller and Cooper have stated that courts will “conjure up” a

possibility or recurrence to accomplish such ends. 13A Charles

A. Wright, et al., Federal Practice and Procedure, § 3533.1, at

226 (emphasis added). Another commentator has remarked

that eminent jurists often “say very silly and indefensible

things” to fit an otherwise moot case within an exception.

Nichol, Moot Cases, Chief Justice Rehnquist and the Supreme

Court, 22 Conn. L. Rev. at 703.

The end result is that the doctrine of mootness is applied

by the lower courts in an illogical and incoherent manner.

Both plaintiffs and defendants are subject to the whim of a

particular judge as to whether the mootness challenge will

succeed or fail. The appellate process has become bogged

down with deciding mootness issues, rather than the underly-

ing constitutional issues involved. Because those underlying

issues are not resolved, new litigation ensues. The result is

quite simply confusion at worst and inconsistency at best.

6. Article III is reprinted in App. at 98a.

(1) There are conflicts regarding the significance of

a student plaintiff's graduation from a defen-

dant institution.

Second Circuit vs. Sixth Circuit

The claims of the students in this case were found by the

Second Circuit to be moot because they left the defendant

institution while the case was on appeal. This result conflicts

with Washegesic v. Bloomingdale Public Schools, 33 F.3d 679

(6th Cir. 1994), petition for cert. filed, 63 USLW 3644 (Feb 15,

1995), where a student brought an action to compel his high

school to remove a portrait of Jesus Christ from being dis-

played in the hallway of the school. Because the student-

plaintiff graduated during the pendency of the appeal, the

defendants moved to dismiss the case as moot. The Sixth Cir-

cuit concluded that the case was not moot because “any par-

ent, employee or former student who uses the school facilities

and suffers actual injury would have standing to sue.” Jd. at

683.7

The facts of Washegesic and the facts of the instant case

are indistinguishable. Plaintiffs’ Amended Complaint in this

case specifically alleges that the challenged regulation

infringes upon the plaintiffs’ rights to both “host and/or attend

in the privacy of their own or another student’s dormitory

room a meeting to discuss with a business invitee such topics

as the students, in the exercise of their own free choice, decide

that they want to participate in.” Amended Complaint, {28

(emphasis added). The students could return as visitors like

the student in Washegesic and be subject to the same uncon-

stitutional regulation.

7. The Sixth Circuit appears to have taken a very liberal approach to

the mootness issue. See, e.g., Pinette v. Capitol Square Review & Advisory

Bd., 30 F.3d 675 (6th Cir. 1994), cert. granted, 115 S. Ct. 787 (1995) (claims

brought by KKK not moot even though activity terminated because KKK or

some other organization may seek access in the future).

(2) There are conflicts regarding the plaintiffs’

right to amend a complaint to correct an

alleged mootness problem.

Second Circuit vs. Third Circuit

The Second Circuit ruled in this case that mootness pre-

vented plaintiffs from amending their complaint to add new

students as plaintiffs. 43 F3d at 144, App. at 22a.

This conflicts with the Third Circuit’s decision in Bender

v. Williamsport Area School District, 741 F.2d 538 (3d Cir.

1984), vacated on other grounds, 475 U.S. 534 (1986), where

that Court held that where students who had brought a com-

plaint had since graduated, it was appropriate to allow an

amendment to the complaint to substitute new student-

plaintiffs. Jd. at 542 n.4. The Court reasoned that because the

significant constitutional issue was capable of repetition and

because there was no prejudice to the school district, leave to

amend to substitute new student plaintiffs should be granted.

Id.

(3) There are conflicts regarding the correct appli-

cation of the capable of repetition, yet evading

review exception to the mootness doctrine.

Second Circuit vs. Seventh Circuit

The Second Circuit ruled that issues in this case were not

capable of repetition although there was evidence that the

student plaintiffs contemplated re-enrolling at SUNY to pur-

sue their education. For example, one student had left SUNY

only two credits shy of graduation. He filed an affidavit indi-

cating that he “definitely plan[ned]” to return to SUNY to

complete his degree. Other students filed affidavits stating that

they intended to take graduate courses at SUNY.

Other courts have found similar facts to satisfy the

capable of repetition exception. In Jones v. Illinois Department

of Rehabilitation Services, 689 F.2d 724, 727-28 (7th Cir. 1982),

the Seventh Circuit held that a case brought by a deaf college

student who graduated before appeal was not moot where

there was a possibility that student could continue or attend

graduate school. The Court of Appeals stated that “although

[plaintiff] disclaims any current intent to attend graduate

school, that is a possibility that cannot be discounted in today’s

society ...” Id. at 728.8

Conflicts within the Second Circuit

Even the same court has entered conflicting decisions on

the application of the mootness doctrine in the very factual

issue scenario raised in Honig. Compare Heldman v. Sobol,

962 F.2d 148, 157 n.9 (2d Cir. 1992) with Christopher P. v. Mar-

cus, 915 F.2d 794, 803-04 (2d Cir. 1990), cert. denied, 498 U.S.

1123 (1991), where the Second Circuit reached opposite con-

clusions regarding the mootness of claims brought by handi-

capped children who were no longer enrolled in the defendant

schools.

Conflicts Among Current Justices While Sitting

on the Circuit Court of Appeals for the District of Columbia

The disagreement regarding the correct application of the

capable of repetition exception is perhaps best illustrated by

the debate between two current members of this Court while

sitting on the Circuit Court of Appeals for the District of

Columbia.

Justice, then Circuit Judge, Ginsburg, wrote the majority

opinion in Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991),

8. See also Johnston-Loehner v. O’Brien, 859 F. Supp. 575, 578 (M.D.

Fla. 1994) (Suit brought by elementary school student challenging certain

school policy on constitutional grounds. After suit was filed student trans-

ferred to private school. Court found that there was a reasonable expecta-

tion that the student could switch schools again and be subject to the same

policy as before); Carroll v. Blinken, 768 F. Supp. 1030, 1031 n.1 (S.D.N_Y.

1991), aff’d in part, rev’d in part on other grounds, 957 F.2d 991 (2d Cir.

1992), cert. denied, 113 S. Ct. 300 (1992) ( SUNY students sought to enjoin

aS unconstitutional certain allocations of a student activity fee. After the

trial was concluded, plaintiff was academically dismissed from SUNY. The

court found the case not moot because the student would not be prohibited

from re-applying to SUNY at a later date and being re-admitted, at which

time the student would face the same allocation of a student activity fee).

where a serviceman brought an action challenging an FDA

interim regulation permitting the Defense Department to use

unapproved drugs on military personnel in the Desert Storm

operation. Although the Desert Storm operation was con-

cluded by che time the case reached to the appellate court, the

majority held that the case was not moot because it was

capable of repetition. The Court, through Circuit Judge Gins-

burg, recognized the flexible character of the mootness doc-

trine and the need to apply the standard prudentially and

without excessive stringency. Id. at 1379. Acknowledging that

the “recurrence prospect here does not qualify as a strong

probability”, the Court relied on Honig to support the appli-

cation of the exception under these circumstances. Jd. at 1378

n.13.

Justice, then Circuit Judge, Thomas strongly dissented.

He reasoned that the case was moot because there was no

showing that the plaintiff may again be involved in a war in

which he would face a medical threat that requires the admin-

istration of investigational drugs. Jd. at 1386 (Thomas, J., dis-

senting).

(4) There are conflicts regarding the correct appli-

cation of the representative action exception to

the doctrine of mootness.

Further confusion exists regarding the exception to the

doctrine of mootness for representative actions:

e In Sosna v. Iowa, 419 U.S. 393, 401 (1975), this Court

held that the mootness of a named plaintiff's individual claim

after a class had been certified does not render the action

moot.

e In United States Parole Commission v. Geraghty, 445

U.S. 388, 404 (1980), the Court extended this exception to

actions brought on behalf of a class even though the class was

never certified.

e In this case, the Court of Appeals ruled that such an

exception only applied where the case was initially filed as a

class action. 42 F.3d at 142, App. at 19a-20a. This ruling con-

flicts with other decisions, such as Brandon v. Board of Edu-

cation, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123

(1981), where the case, which started as a class action but was

never so declared, was held not moot despite the students’

graduation because the students were acting in a representa-

tional capacity for members of the organization Jd. at 973

n.1.9

(5) This case presents the Court with the opportu-

nity to resolve the conflicts.

In sum, the Second Circuit’s decision in this case not only

reveals a sharp and persistent split among the federal circuit

courts of appeal on the exceptions to the mootness doctrine,

but also creates a split as to whether a party has a right to

amend to remedy the mootness. There is no clear and concise

standard determining when one case is moot and when

another is not. The effect of this situation is that persons who

reside in different jurisdictions might see their significant con-

stitutional issues decided on the facts of their case while indi-

viduals in other jurisdictions with the same set of facts might

not be afforded the same opportunity.

Accordingly, in order to promote a more cohesive, less

acrimonious and more consistent circuit court system, this

Court should grant the Petition for Writ of Certiorari not

solely for the benefit of the parties here, but for the benefit of

all litigants who seek guidance from this Court on fundamen-

tal constitutional issues such as are presented in this case.

3. This Case Illustrates the Inequities and Waste of Judicial

Resources from the Rigid and Inflexible Application of

the Mootness Doctrine.

The mootness doctrine was never intended to be used as

a sword or a shield to legitimize unconstitutional conduct. The

system suffers, the Constitution is tarnished, and litigants and

society lose confidence in the ability and independence of the

9. One commentator has noted that “nothing in the [representational

capacity] rationale itself precludes its application to cases involving group

interests in which the plaintiff did not file suit on behalf of a class.” Note,

The Mootness Doctrine in the Supreme Court, 88 Harv. L. Rev. 373, 388

(1974); see also American Party v. White, 415 U.S. 767, 770 n.1 (1974); Moore

v. Ogilvie, 394 U.S. 814, 816 (1969).

courts. This applies particularly to the instant case where uni-

versity students’ good faith efforts to vindicate an unconstitu-

tional infringement of their First Amendment rights, have

been made a mockery of by the delays in this case, which now

drags on into its 13th year.

The case, which was started in 1982, is still undecided, and

is now under the cloud of a mootness defense, asserted for the

first time by SUNY on remand to the district court, and only

after it lost its principal argument on appeal to this Court.

A. This Court’s resources should not be wasted once this

Court accepts jurisdiction.

Once this Court has assumed jurisdiction, this Court’s

valuable resources should not be wasted and disregarded by

the application of the mootness doctrine. This Court should

make clear that once it has decided to hear an important case,

receive briefs and oral argument, write a definitive opinion,

and remand the case to be decided under a modified standard

of review, a party should not be permitted to assert a moot-

ness defense, thereby prevailing on the court below to avoid

deciding the very issues as remanded by this Court.

This position, based on common sense and judicial

economy, has been advocated by Mr. Chief Justice Rehnquist,

concurring in Honig v. Doe. There, he concluded his concur-

rence with the following statement:

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.”

484 U.S. at 332 (Rehnquist, C.J., concurring) (emphasis

added).

Chief Justice Rehnquist, in an earlier section of his con-

currence, explained the rationale for the rule posited above.

Cautioning against “squandering” the “unique resources” of

time spent by the Court on briefs, oral argument and confer-

ring, he stated:

To me the unique and valuable ability of this Court to

decide a case — we are, at present, the only Art. III 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.

Id. (Rehnquist, C.J., concurring) (emphasis added).

B. A party should not be rewarded for a belated claim of

mootness.

A party who seeks certiorari should not be permitted to

prevail on a mootness defense that it asserted only after it lost

its principal argument on appeal, particularly when it had

notice of the facts supporting its claim of mootness before oral

argument in this Court.

It was the defendant university, SUNY, that sought certio-

rari review and lost: — contending that its right to restrict its

students’ free speech should be measured by the “rational

basis” test under the “public forum analysis.” This Court dis-

agreed, ruling that pure speech rights were involved and

adopting a more rigorous standard for analysis of restrictions

on commercial speech. The Court held that on remand, SUNY

had the burden to affirmatively establish that its regulation

directly advanced its interests and was no more extensive than

necessary. 492 U.S. at 480, App. at 87a.

In other words, as Mr. Justice Scalia wrote for the Court,

there must be a “ ‘fit? between the legislature’s ends and the

means chosen to accomplish those ends,” and the regulation

must be “narrowly tailored to achieve its desired objective.”

Id.

Additionally, the record in the court below established

that defendant SUNY, was on notice of the facts supporting its

mootness claim, (i.e., that by August 1988, all of the student

plaintiffs had either graduated or withdrawn) well before this

case was finally briefed and argued before this Court on Feb-

ruary 22, 1989.

However, as the party seeking review in this Court,

SUNY did not assert this defense in the District Court until

February 5, 1990, some 7 months after this Court came down

with its decision and remand order of June 29, 1989, and after,

as noted above, SUNY had lost the principal issue it had

raised on appeal.

Furthermore, SUNY should not be rewarded by being

allowed by an assertion of mootness to continue to this day

(i) its unconstitutional conduct infringing on its stu-

dents’ pure free speech rights;!°

(ii) to prevent the student plaintiffs from establish-

ing their rights to total relief and thereby;

(iii) avoid having to pay plaintiffs, as the prevailing

parties, the attorneys’ fees incurred."

As noted in section 1 above, such action by a defendant,

particularly where as here, no damage claims are brought,

could have serious public policy consequences by the “chilling

effect” on the private bar’s willingness to get involved in diffi-

cult constitutional cases. To the contrary, as the Congress has

declared in adopting 28 U.S.C. § 1988, one of its principal rea-

sons was to promote the “private attorney general” concept to

encourage the private bar to get involved in just these kinds of

cases.

C. Two simple procedural expedients to avoid mootness

should have been utilized.

The mootness issue in this case could easily have been

avoided by two simple expedients:

(1) Representative capacity: The Court refused to recog-

nize as was vigorously argued below, that the action was

brought by responsible leaders in student government as rep-

resentatives of the student body, that included two elected

presidents of student government, one elected vice president

and a number of other elected representatives of the student

10. See fn. 15 below, containing colloquy at oral argument where Judge

Winter inquired why SUNY had not modified its Regulation, — at least with

respect to its limitations on pure free speech declared unconstitutional by

this Court almost 6 years ago - June 29, 1989.

11. See discussion below at fn. 14.

association. Such a representative action should be found to

survive a mootness claim and avoid, as noted below, the cum-

bersome, expensive and needless class action procedural

device. This Court should make clear that an individual plain-

tiff or group of plaintiffs can sue in a representative capacity:

* to vindicate fundamental, constitutional rights;

* that will effect all others similarly situated;

* to continue with the lawsuit, even after graduation, if

necessary, until it is resolved;

¢ without being forced to seek monetary damages or to

resort to the cumbersome and expensive’? class action

device of Fed. R. Civ. P. 23, as a procedural device sim-

ply to avoid having the mootness defense invoked.

A contrary rule encourages and promotes costly and com-

plex class action litigation, with frequently spurious claims for

damages, to resolve claims w'ch could be more easily and

appropriately resolved on an individual basis.

12. The class action procedural device, used principally in antitrust and

tort damage cases, has been the subject of much criticism, in part because of

its procedural complexities, with class certification, notice and opt out pro-

visions. See William Simon, Class Actions — Useful Tool or Engine of

Destruction, 55 F.R.D. 375, 389 (1972); and Arthur R. Miller, Comment, Of

Frankenstein Monsters and Shining Knights: Myth, Reality, and the “Class

Action Problem”, 92 Harv. L. Rev. 664 (1979).

More germane to actions such as this, seeking to establish constitutional

rights where no damage claims are sought, is a thoughtful article by Timo-

thy Wilton, The Class Action In Social Reform Litigation: In Whose Inter-

est?, 63 B.U. L. Rev. 597 (1983).

There, the author at page 599 stresses two fundamental points:

¢ First, plaintiffs may recover the same relief and attorneys’ fees in a

non-class action against the government agency as they could in a

class action.

* Second, the only significant difference between class and non-class

litigation is the binding effect on the class if the plaintiff loses.

To the same effect, see Smith v. Lower Merion Township, Civ. A. No.

90-7501, 1991 WL 205023 (E.D.Pa. Oct. 7, 1991) (Court denies class action

certification in a challenge to the constitutionality of a zoning ordinance in

order to avoid “the full panoply of procedural paper work” involved in a

class action. The court stated the pivotal issue — the ordinance’s legality “is

nerfectly amenable to resolution by one individual test case.”).

(2) Amendment to add new parties: This Court should

reassert the broad discretionary power of judges to allow the

amendment of a complaint to add additional parties under

Fed. R. Civ. P. 15a) and 2113 in the interest of securing “the

just, speedy, and inexpensive determination of every action.”

Fed. R. Civ. P 1. In Mullaney v. Anderson, 342 U.S. 415

(1952), this Court permitted a similar amendment to substitute

new plaintiffs for a plaintiff who did not have standing, rea-

soning that

“to dismiss the present petition and require new plaintiffs

to start over in the district court would entail needless

waste and run counter to effective judicial administra-

tion.”

Id. at 417. See also Lewis v. Continental Bank Corp., 494 U.S.

472, 482 (1990) (moot case remanded to district court to allow

amendment of complaint). There is no reason why a similar

amendment should not have been permitted here.

D. Judicial Considerations

By way of summation, there are as noted above other

important judicial considerations impacted by the application

of the mootness doctrine in a case such as this:

e Judicial resources are squandered and wasted on need-

less debates concerning mootness rather than the underlying

issues. Litigants and courts strain to find reasons to demon-

strate that the case is capable of repetition, often damaging

their own credibility.

e The litigants face needless expense and delay More-

over, costly and unnecessary class action litigation (See fn. 12

above) is brough to avoid mootness issues.

° The public confidence in the will and ability of the jus-

tice system to promptly decide important public issues is fur-

ther undermined. This is particularly so with respect to the

young people in our colleges and universities who find their

case moot, while other individuals pressing other claims are

found to fall within an exception.

13. Fed. R. Civ. P. 15(a) states that leave to amend “shall be freely

granted” and Fed. R. Civ. P. 21 grants the power to add parties “at any stage

of the action.”

e Finally, as noted in section 1 above, such action by

defendant can defeat a plaintiff's claims as a prevailing party

under 28 U.S.C. 1988; and could have serious consequences by

“its chilling effect” on the private bar’s willingness to get

involved in such cases.!4

In fact, the record at oral argument on December 16,

1993, in this very case, before a panel of the Second Circuit

Court of Appeals, on plaintiff’s appeal from the District

Court’s finding of mootness, establishes this very point —

SUNY’s real metive, in pressing its mootness defense so vig-

orously, was to avoid the State’s liability to plaintiffs for legal

fees, extending over a twelve year period.!5

14. As Congress has declared in adopting 28 U.S.C. § 1988, one of its

principal reasons was to promote the “private attorney general” concept to

encourage the private bar to get involved in just these kinds of cases:

See Riverside v. Rivera, 477 U.S. 561, 577 (1986), (“Congress enacted

§ 1988 specifically to enable plaintiffs to enforce the civil rights laws

even where the amount of damages at stake would not otherwise make

it feasible for them to do so.”); Hensley v. Eckerhart, 461 U.S. 424, 429

(1983) (Congressional purpose in enacting § 1988 was to ensure effec-

tive access to the judicial process for persons with civil rights griev-

ances); Curtis v. Des Moines, 995 F.2d 125, 129 (8th Cir. 1993) (clear

Congressional intent and purpose of § 1988 was to encourage attorneys

to prosecute constitutional violations).

15. During argument by SUNY’s counsel, the electronic transcript of

the record furnished by the Clerk’s Office for the Second Circuit Court of

Appeals shows that Judge Winter perceptively identified one of the under-

lying critical issues in this case, when he stated to SUNY’s counsel:

BY JUDGE WINTER: The real problem in this case is that the case has

gone on for twelve years and if the mootness argument prevails, the

state gets to hang onto legal fees that the plaintiffs would be entitled to

in a losing first amendment case, and obviously we can see why this

point is very heavily litigated.

BY MR. SMIRLOCK: You talk about a losing First Amendment case.

So far not so your honor. We are back in the District Court from adju-

dication. Obviously legal fees are at issue here. (emphasis added)

Almost at the very end of SUNY’s counsel’s argument, Judge Winter

asked SUNY why the State was taking such a “rigid position” in not modi-

fying the Regulation at least as to pure free speech.

The colloquy below, and particularly SUNY’s counsel’s answer as high-

lighted, further corroborates the concern regarding a rigid application of the

mootness defense to a case such as this.

Such misapplication of the mootness doctrine is neither

right nor fair and should be corrected by this Court.

BY JUDGE WINTER: I just have one other question. What is wrong

with reforming the statute to exclude from its coverage people such as

doctors, lawyers and others who might be invited on the campus to per-

form a service, particularly an emergency service, to allow it? Why is

the state taking such a rigid position on the regulation?

BY MR. SMIRLOCK: I think partly because of the attorney's fees,

Your Honor. I will be glad to submit the brief that we have put in the

District Court on the merits. I think strategically we’re taking the posi-

tion for the same reason they’re taking the position and just not start-

ing over with new plaintiffs.

CONCLUSION

For the foregoing reasons, Petitioners respectfully pray

that the Court issue a Writ of Certiorari to review the judg-

ment of the Court of Appeals for the Second Circuit.'®

Respectfully submitted,

DUANE, MORRIS & HECKSCHER "’

Henry T. Reath

Counsel of Record

Wayne A. Mack

Marc H. Perry

James C. King

One Liberty Place

Philadelphia, PA 19103-7396

(215) 979-1000

Attorneys for Petitioners

16. This Court may wish to consider summary disposition of this mat-

ter, in light of the argument and cases cited at Section 2.C. pp. 11-13, par-

ticularly Chief Justice Rehnquist’s concurrence in Honig v. Doe, discussed

above at Section 3.A. pp. 23-24, to the effect that once this Court assumes

jurisdiction and receives briefs and hears oral argument, the case should

remain in the federal judicial system until all the issues are decided.

Alternatively, the Court could order that plaintiffs are permitted to

amend their complaint to join new plaintiffs under Fed. R. Civ. P. 15(a) and

21, as was done by this Court in Mullaney v. Anderson, 342 U.S. at 417. See

also discussion in Section 3.C. (2) above at p. 27.

17. Counsel of Record wishes to acknowledge and thank Judith

Bernstein-Baker, Director of the Public Service Program at the University

of Pennsylvania Law School, and the following students at the Law School,

who have provided valuable pro bono assistance, through the Public Service

Program, by conducting extensive legal research for this Petition:

Hessup Chung

Robert K. Khedouri

APPENDIX

Time Line — Fox v. Board of Trustees

12/2/82 - Action Filed

6/3/83 — Opinion and Order of District Court granting preliminary injunction (565 F.

Supp. 754)

9/10/84 — Amended Complaint filed

9/24/86 to 10/1/86 — Trial

12/12/86 — Opinion and Order of Judge McCurn dismissing the complaint

(649 F. Supp. 1393)

4/7/87 — Plaintiffs’ Notice of Appeal filed with Second Circ uit

3/11/88 — Opinion and Order U. S. Court of Appeals for the Second

Circuit reversing and remanding (841 F. 2d 1207)

6/9/88 — Petition for Writ of Certiorari in the United States

Supreme Court filed by defendants

10/3/88 — Writ of Certiorari granted by the United States

Supreme Court (488 U. S. 815)

10/3/88 — Opinion and Order of District Court striking

down Resolution 66-156 (695 F. Supp. 1409)

6/29/89 — Opinion and Remand Order by the United

States Supreme Court ( 492 U. S. 469)

9/26/89 - Remand Order by the U. S. Court of

Appeals for the Second Circuit to the

District Court

12/13/89 — Telephone conf. with District Court

re: procedure / briefing schedule for

resolution of case

2/5/90 — Briefs filed with District Court

+— '82-’87 —» <— 1988 —» <’8§9-'’W +

Time Line — Fox v. Board of Trustees

5/24/91 — Opinion and Order of District Court ruling case moot but granting plaintiffs’

leave to amend the Complaint (764 F. Supp. 747)

6/5/91 — Defendants’ Motion For Order Reversing Prior Order To Allow Plaintiffs To

Amend Complaint Or Certifying Prior Order For Immediate Appeal

6/20/91 — Amended Verified Complaint adding new student plaintiffs filed

7/2/9\ — Plainuffs’ Brief in Opposition to Defendants Motion for

Reconsideration filed

5/7/93 — District Court reverses order permitting arnendment of parties, and

dismisses case for mootness (148 F.R.D. 474)

5/20/93 — Plaintiffs’ Motion For Reconsideration filed with District Court

6/23/93 — Plaintiffs’ Motion for Reconsideration denied by the

District Court

7/7/93 — Plaintiffs’ Appeal filed with the United States Court of

Appeals for the Second Circuit

12/19/94 — Court of Appeals’ Decision affirming District

Court dismissal of case as moot (42 F. 3rd 135)

2/3/95 — Court of Appeals denies Petition for Rehearing

5/2/95 — Plaintiffs file Petition for Certiorari with the

Supreme Court

Revised

-—1991 + 1993 + 1995 113

Outline of Oral Argument Presented to The Second Circuit

NINE REASONS WHY THIS CASE IS NOT MOOT

1. ARTICLE 1 — PRUDENTIAL AND FLEXIBLE, NOT

RIGID [Honig, Gerraghty, Brotherhood of Teamsters, Held-

man] Appellants’ Brief at 13-16, Reply Brief at 5-7.

2. “REASONABLE LIKELIHOOD” ISSUES WILL

RECUR — EVADE REVIEW [Honig, Carroll] Appellants’

Brief at 17-19, Reply Brief at 8-14.

3. PLAINTIFFS, AS INVITEES NOT DEPENDENT ON

STATUS AS STUDENTS Appellants’ Brief at 16-17, Reply

Brief at 14-16.

4. SIGNIFICANT CONSTITUTIONAL INTERESTS AT

STAKE [Super Tire, Brotherhood of Teamsters] Appellants’

Brief at 20-21, Reply Brief at 7-8.

5. A REPRESENTATIONAL CAPACITY [Brandon,

Trachtman] Appellants’ Brief at 33-35, Reply Brief at 14-17.

6. WAIVER AND DISTRICT COURT DELAY [cf. Honig]

Appellants’ Brief at 16-24, Reply Brief at 15-21.

7. RIGHT TO AMEND TO ADD ADDITIONAL PLAIN-

TIFFS UNDER FED. R. CIV. P 15 AND 21 [Mullaney, Hack-

ner, Diffenderfer, Bender] Appellants’ Brief at 24-27, 31-32,

Reply Brief at 21-23.

8. PLAINTIFFS WERE ENTITLED TO NOMINAL DAM-

AGES UNDER FED. R. CIV. P. 54(b) [Beyah, Sapp] Appel-

lants’ Brief at 28-31, Reply Brief at 21-23.

9. “STRONG REASONS” TO OVERRIDE MOOTNESS

DOCTRINE: — e.g. WHERE CASE ROOTED IN FED.

JURISDICTION IS ACCEPTED BY U.S. SUPREME

COURT — Chief Justice Rehnquist — Concurrence in Honig;

(See Attached Concurring Opinion)

cf. Heldman, (Oakes, C.J.) 962 F.2d 148, at 153 fn. 7.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

GEORGE LANGE Ill

CLERK

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse

in the City of New York, on the 3rd day of February, one

thousand nine hundred and ninety-five.

TODD FOX, EDWARD R. DETWEILER,

STEPHANIE VAIANO, JAMES B. . UNITED STATES COURT

CULLEN, CHRISTINE MARIE ODELL,_ : OF APPEALS

STEVEN GAWLEY, DANIEL ALTMAN, : FILED

PHILIP JAY BOTWINIK, JEFFREY S. ,

ZELLAN, JACLYN BERNSTEIN, GLEN. FEB 03 1995

MAGPANTAY, WILLIAM WEITZ, . GEORGE LANGE III.

COREY ANTHONY, DIEGO MUNOZ, : CLERK

EDWARD FAGAN, BAYCAN FIDELI,__: :

JODIE GREEN and JEFFREY LUKS, , SECOND CIRCUIT

Plaintiffs-Appellants, .

v. °

THE BOARD OF TRUSTEES OF THE

STATE UNIVERSITY OF NEW YORK :

and CLIFTON R. WHARTON, JR., : Dkt No: 93-7715

individually and as Chancellor of the :

Board of Trustees and THE STATE

UNIVERSITY OF NEW YORK

COLLEGE AT CORTLAND, and JAMES:

M. CLARK, individually and as President of :

the College at Cortland, and THE STATE:

UNIVERSITY OF NEW YORK AT

BINGHAMTON, and CLIFFORD D.

CLARK, individually and as President of

the State University of New York at

Binghamton, and THE STATE

UNIVERSITY OF NEW YORK AT

ALBANY, and VINCENT O’LEARY,

individually and as President of the State :

University of New York at Albany, and THE :

STATE UNIVERSITY OF NEW YORK

COLLEGE OF ARTS AND SCIENCES

AT POTSDAM, and HUMPHREY

TOMKIN, individually and as President of

the College of Arts and Sciences at

Potsdam, :

Defendants-Appellees. :

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by the

appellants Todd Fox et al.

Upon consideration by the panel that decided the appeal,

it is Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc

has been transmitted to the judges for the court in regular

active service and to any other judge that heard the appeal

and that no such judge has requested that a vote be taken

thereon.

FOR THE COURT

GEORGE LANGE III, Clerk

By: _/s/ Carolyn Clark Campbell

Carolyn Clark Campbell,

Chief Deputy Clerk

Todd FOX, Edward R. Detweiler, Stephanie Vaiano, James B.

Cullen, Christine Marie Odell, Steven Gawley, Daniel Alt-

man, Philip Jay Botwinik, Jeffrey S. Zellan, Jaclyn Bern-

stein, Glen Magpantay, William Weitz, Corey Anthony,

Diego Munoz, Edward Fagan, Baycan Fideli, Jodie Green

and Jeffrey Luks, Plaintiffs-Appellants,

The BOARD OF TRUSTEES OF THE STATE UNIVER-

SITY OF NEW YORK and Clifton R. Wharton, Jr., indi-

vidually and as Chancellor of the Board of Trustees and the

State University of New York College at Cortland, and

James M. Clark, individualy and as President of the College

at Cortland, and the State University of New York at Bing-

hamton, and Clifford D. Clark, individually and as President

of the State University of New York at Binghamton, and the

State University of New York at Albany, and Vincent

O’Leary, individually and as President of the State Univer-

sity of New York at Albany, and the State University of New

York College of Arts and Sciences at Potsdam, and Hum-

phrey Tomkin, individually and as President of the College

of Arts and Sciences at Potsdam, Defendants-Appellees.

No. 780, Docket 93-7715.

United States Court of Appeals,

Second Circuit.

Argued Dec. 16, 1993.

Decided Dec. 9, 1994.

Students brought action against state university seeking

declaratory and injunctive relief on First Amendment grounds

against regulation that operated to bar private commercial

businesses from engaging in sales demonstrations in students’

dormitory rooms. The United States District Court for the

Northern District of New York, 649 F.Supp. 1393, entered

judgment denying relief. The Court of Appeals reversed and

remanded, 841 F.2d 1207. State university and related parties

petitioned for certiorari. Thereafter, the District Court granted

relief to students, 695 F.Supp. 1409, but those proceedings

were stayed when Supreme Court granted petition for certio-

rari. The Supreme Court, 492 U.S. 469, set forth appropriate

standard and remanded matter for determination of validity of

regulation. The Court of Appeals, 764 F.Supp. 747, issued

mandate remanding matter. The District Court, Neal P.

McCurn, J., dismissed case as moot, 148 F.R.D. 474, and stu-

dents appealed. The Court of Appeals, Mahoney, Circuit

Judge, held that: (1) claim of mootness could not be waived;

(2) action was moot because students were no longer enrolled

at university; (3) claim for nominal damages or claim of rep-

resentational capacity would not be read into complaint to

preclude mootness; and (4) complaint was not within excep-

tion to mootness doctrine for issues capable of repetition, yet

evading review.

Affirmed.

Mootness was matter of subject matter jurisdiction that

could not be waived and that could be raised at any time.

U.S.C.A. Const. Art. 3, § 2, cl. 1.

Defects in subject matter jurisdiction cannot be waived

and may be raised at any time during proceedings. U.S.C.A.

Const. Art. 3, § 2, cl. 1; Fed.Rules Civ. Proc.Rule 12(h)(3) 28

U.S.C.A.

Action by students seeking declaratory and injunctive

relief on First Amendment grounds against state university

regulation that operated to bar private commercial businesses

from engaging in sales demonstrations in students’ dormitory

rooms was moot, where students were no longer enrolled at

university; relief sought in complaint could provide no legally

cognizable benefits to students once they had left state univer-

sity system. U.S.C.A. Const. Art. 3, § 2, cl. 1; Amend. 1

Case is “moot,” and accordingly federal courts have no

jurisdiction over litigation, when parties lack legally cogni-

zable interest in outcome; plaintiff must have “personal stake”

in litigation to have legally cognizable interest. U.S.C.A

Const. Art. 3, § 2, cl. 1.

See publication Words and Phrases for other judicial con-

structions and definitions.

Nominal damages are available in actions alleging viola-

tions of constitutionally protected rights.

Request for nominal damages would not be read into stu-

dents’ complaint challenging constitutionality of state univer-

sity regulation barring private commercial businesses from

engaging in sales demonstrations in students’ dormitory

rooms, so as to stave off dismissal for mootness based upon

fact that students were no longer enrolled at university, as it

appeared that available Eleventh Amendment and qualified

immunity defenses would have precluded any successful claim

for money damages and there was no final judgment pursuant

to which complete relief could be granted. U.S.C.A. Const.

Art. 3, § 2, cl. 1; Amends. 1, 11; Fed.Rules Civ.Proc.Rule 54(c),

28 U.S.C.A.

Students challenging constitutionality of state university

regulation barring private commercial businesses from engag-

ing in sales demonstrations in students’ dormitory rooms

would not be regarding as having litigated case in representa-

tional capacity, so as to stave off dismissal for mootness based

upon fact that students were no longer enrolled at university,

where students did not make any attempt to have class certi-

fied and in fact never alleged in their pleading that they were

bringing action on behalf of themselves and all other similarly

situated. U.S.C.A. Const. Art. 3, § 2, cl. 1; Fed.Rules

Civ.Proc.Rule 23, 28 U.S.C.A.

Students’ suit challenging under First Amendment state

university regulation barring private commercial businesses

from engaging in sales demonstrations in students’ dormitory

rooms did not come within exception to mootness doctrine,

after students were no longer enrolled at university, for issues

capable of repetition, yet evading review, as there was no rea-

son to believe that issue presented could not be litigated in

four-year span of standard undergraduate education and there

was no reasonable expectation beyond bare statement of

intention of reenrollment that same students would be sub-

jected to same action again. U.S.C.A. Const. Art. 3, § 2, cl. 1;

Amend. 1.

Once case was moot, it was no longer justiciable in fed-

eral court and had to be dismissed, and plaintiffs could not be

permitted to amend their complaint to add additional parties.

US.C.A. Const. Art. 3, § 2, cl. 1.

Henry T. Reath, Philadelphia, PA (Wayne A. Mack, Rich-

ard W. Riley, Marc H. Perry, Duane, Morris & Heckscher, of

counsel), for plaintiffs-appellants.

Daniel Smirlock, Asst. Atty. Gen. of the State of New

York, Albany, NY (Robert Abrams, Atty. Gen. of the State of

New York, Peter H. Schiff, Deputy Sol. Gen. of the State of

New York, Nancy A. Spiegel, Asst. Atty. Gen. of the State of

New York, of counsel), for defendants-appellees.

Before: MAHONEY and WALKER, Circuit Judges,

and EGINTON, District Judge.*

MAHONEY, Circuit Judge:

Plaintiffs-appellants (“Plaintiffs”), individuals who at or

following the commencement of this action were students in

the State University of New York (“SUNY”) system, appeal

from a judgment entered May 11, 1993 in the United States

District Court for the Northern District of New York, Neal P.

McCurn, Judge, that dismissed as moot their amended com-

plaint (the “Complaint”) seeking declaratory and injunctive

relief on First Amendment grounds against a SUNY regula-

tion that operated to bar private commercial businesses from

engaging in sales demonstrations in students’ dormitory

rooms, and denied leave to file and amended complaint. See

Fox v. Board of Trustees of the State Univ., 148 FR.D 474

(N.D.N.Y.1993) (“Fox VI’) (opinion supporting judgment).

In a prior memorandum-decision and order entered May

24, 1991, the district court had concluded that Plaintiffs’ claims

were moot because all of the Plaintiffs were no longer SUNY

students and thus could not benefit from the declaratory and

injuctive relief sought in the Complaint, rejecting various con-

tentions by Plaintiffs to the contrary that are reiterated on this

appeal and addressed subsequently in this opinion. See Fox v.

Board of Trustees of the State Univ., 764 F-Supp. 747, 751-57

(N.D.N.Y.1991) (“Fox V”). The court has also ruled, however,

that Plaintiffs could further amend the Complaint by adding

additional plaintiffs who could benefit from declaratory or

*The Hon. Warren W. Eginton, United States District Judge for the

District of Connecticut, sitting by designation.

10a

injunctive relief, and thus stave off dismissal. See id. at 757-59.

On June 10, 1991, defendants-appellees (“Defendants”)

moved for modification of this order, seeking dismissal of the

Complaint due to mootness without leave to amend to cure

the defect. See Fox VJ, 148 FR.D. at 476. The court reaffirmed

its finding that the claims was moot, but granted Defendants’

motion to modify the court’s prior order, denied leave to

amend the Complaint, and dismissed the Compalint. See Fox

VI, 148 FR.D. at 489.

On this appeal, Plaintiffs argue that the district court

erred in: (1) dismissing the Complaint as moot; (2) failing to

altow amendment of the Complaint; and (3) failing to enter

judgment in Plaintiffs’ favor. We conclude that because the

relief sought in the Complaint could provide no benefit to

Plaintiffs’ once they were no longer students in the SUNY

system, and because this case does not fall within any excep-

tion to the doctrine of mootness, the district court properly

dismissed the case as moot. Further, we conclude that the

absence of any remaining Plaintiffs with a legally cognizable

personal interest in the outcome of the litigation precludes any

amendment of the Complaint to add additional plaintiffs.

We accordingly affirm the judgment of the district court.

Background

The facts of this case have been extensively detailed sev-

eral times during the course of this protracted litigation, and

will be recounted here only as necessary to elucidate the issues

presented on this appeal. This case arose when Todd Fox, a

student at SUNY Cortland, was deined permission to host, in

his dormitory room on the SUNY Cortland campus, a cook-

ware demonstration sponsored by American Future Systems,

Inc. (“AFS”), “a corporation engaged in selling cookware . . .

to college students through group demonstrations.” Fox V, 764

F.Supp. at 749 n. 1. Fox was denied permission to host such an

event pursuant to SUNY Resolution No. 66-156 (the “Resolu-

tion”), which provides in pertinent part that:

No authorization will be given to private commercial

enterprises to operate on State University campuses or in

lla

facilities furnished by the University other than to pro-

vide for food, legal beverages, campus bookstore, vend-

ing, linen supply, laundry, dry cleaning, banking, barber

and beautician services and cultural events.

Fox V, 764 F.Supp. at 749.

Following the denial of permission for Fox to host the

demonstration, AFS, an AFS representative, and Fox com-

menced this action, claiming that the Resolution violated their

First Amendment rights and seeking a preliminary injunction

premitting Fox to host an AFS-sponsored cookware demon-

stration in his dormitory rooms. See id.; see also Fox v. Board

of Trustees of the State Univ., 841 F.2d 1207, 1208 (2d Cir.1988)

(“Fox IT”), rev’d and remanded, 492 U.S. 469, 109 S.Ct. 3028,

106 L.Ed.2d 388 (1989). The district court initially concluded

that the Resolution would not satisfy the requirements set

forth by the Supreme Court for the regulation of commercial

speech in Central Hudson Gas & Electric Corp. v. Public Ser-

vice Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341

(1980), because the Resolution did not “directly advance the

governmental interests asserted,” and was “more extensive

than necessary to service such interests.” American Future Sys.

v. State Univ., 565 F.Supp. 754, 767 (N.Y.D.N.Y.1983) (“AFS V.

SUNY”); see also Fox V, 764 F.Supp. at 749-50. Accordingly,

the court issued the preliminary injunction sought by the

plaintiffs in that case. See AFS v. SUNY, 565 F.Supp. at 770-71;