# Opposition Brief — Fox v. Board of Trustees of the State University

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1169

## Text

fa } oe
Z/ Supreme Court,
No. 94-1819 ee *

IN THE JUN 2 1995

Supreme Court of the United:States: 1

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.

against

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 A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT.

BRIEF OF RESPONDENTS IN OPPOSITION
TO PETITION FOR A WRIT OF CERTIORARI

DENNIS C. VACCO

Attorney General of the State of New York
Attorney for Respondents

The Capitol

Albany, NY 12224

(518) 473-0903

VICTORIA A. GRAFFEO
Solicitor General
Counsel of Record

PETER H. SCHIFF
Deputy Solicitor General

DANIEL SMIRLOCK
Assistant Attorney General

Of Counsel
Dated: June 1, 1995

THE REPORTER CO., INC.- Walton, NY 13856 - 800-252-7181
Syracuse Office, University Building, Syracuse, NY 13202 - 315-426-1235
NYC Office - 30 Vesey St., New York, NY 10007 - 212-732-6978 - 800-800-4264

(1082 — 1995)
Printed on Recycled Paper

i
Counterstatement of Questions Presented

1. Whether this Court should grant certiorari to review a
decision of the United States Court of Appeals for the Second
Circuit, holding that because plaintiffs, former students at the
State University of New York ("SUNY") who challenged a
SUNY regulation as an infringement of their First Amendment
rights as students, are no longer affiliated with SUNY, their case
is moot, when the decision below was based on the well-
established principles that the mootness doctrine is constitu-
tional in nature, that a case's mootness deprives a federal court
of subject matter jurisdiction, and that students who challenge
a regulation of an academic institution with which they are no
longer affiliated lack a personal stake in the outcome of the
litigation, which is therefore moot.

2. Whether this Court should grant certiorari to review a
decision of the United States Court of Appeals for the Second
Circuit, which affirmed the district court's dismissal of this
action on the ground of mootness, when the plaintiffs, former
students challenging a regulation of a university with which they
have had no affiliation for more than six years, have no continu-
ing stake in the outcome of the case, which has not yet been
resolved on its merits and has remained before the federal courts
solely because plaintiffs’ counsel are seeking attorney's fees
pursuant to 42 USC § 1988.

nat 5

TABLE OF CONTENTS

Page
Counterstatement of Questions Presented .............. i
|. eee er rrr Fe cy ili
RE GE GUND 6k 6s bn eck xedéhe ce eee eee 2

REASONS FOR DENYING THE WRIT

I. The decision below creates no "conflicts" or "confusion"
with respect to the mootness doctrine ............ 8

Il. The mootness doctrine was properly applied to
GGUS oc a ckcccizetccssiéesaseeaeee 17

a ee ee 24

iii
TABLE OF AUTHORITIES.
Pages
CASES:
Alexander v Yale University, 631 F2d 178 (2d Cir 1980) 11

Ahmed v. University of Toledo, 822 F2d 26 (6th Cir
ESE ee a ee oe

American Future Systems, Inc. v State University of New
York College at Cortland, 565 F Supp 754 (NDNY
RO etaons 60044 00s 00 Pr re PP er ee 3

Bender v Williamsport Area School District, 741 F2d 538,
(3d Cir 1984), vacated, 475 US 534 (1986)..... 12,13

Board of License Commissioners v Pastore. 469 US 238
et cha cwedekben: 19

Board of School Commissioners of the City of Indianapo-
lis v Jacobs, 420 US 128 (1975) ........... . $443

Board of Trustees of the State University of New York v
eis ak a wy ey ow WW Ke ew Ore 1 4

Cook v Colgate University, 992 F2d 17 (2d Cir 1993) ... 11
DeFunis v Odegaard, 416 US 312 (1974) ............ 1]

Doe v Marshall, 622 F2d 118 (Sth Cir 1980) ........ 12

iV

Field v Volkswagenwerk AG, 626 F2d 293 (3d Cir
SEE. S&S ONERAS RASS ReS Rewer

Fox v Board of Trustees of the State University of New
York, 649 F Supp 1393 (NDNY 1986) ...........

Fox v Board of Trustees of the State University of New
York, 695 F Supp 1409 (NDNY 1988) ...........

Fox v Board of Trustees of the State University of New
York, 841 F2d 1207 (2d Cir. 1988) ..............

Fox v Board of Trustees of the State University of New
York, 764 F Supp 747 (NDNY 1991) ............

Fox v Board of Trustees of the State University of New
York, 148 FRD 474 (NDNY 1993) ..............

Fox v Board of Trustees of the State University of New
York, 42 F346 135 (26 Cie. 19948) 20. cc ccc scscccss

Franks v Bowman Transportation Co., 424 US 747
| Re ere ae en rater eee are et ge ee

Gomes v Rhode Island Interscholastic League, 604 F2d
pcg es 42%... IRpeegnpepepernmpy tT nuMeny ine eee

Graves v Walton County Bd. of Educ., 686 F2d 1135 (Sth
Car Se soos Ub ekeedkansuaeeaese ese enue

Honig v Doe, 484 US 305 (1988) ............. ec eeee

Jones v Illinois Dept. of Rehabilitation Services, 689 F2d
preg 1 gp. : SAP reper pare mere

20

Vv

Kerr v Compagnie De Ultramar, 250 F2d 860 (2d Cir
eae MELEE PETE OS CT TT POP OEE OPE Sage ae 20

Lewis v Continental Bank Corp., 494 US 472
Se td sGesiun hides coeur passim

McFarlin v Newport Special Sch. Dist., 980 F2d 1208
Ge SOs 65040 67) SOA 12

Pasedena City Bd. of Educ. v Spangler, 427 US 424
| RT Pre rey nrc tip ria 15, 16

Pressroom Unions-Printers League Income Security Fund
v Continental Assurance Co., 700 F2d 889 (2d Cir),

cert denied, 464 US 845 (1983) ................ 21
Princeton University v Schmid, 455 US 100 (1982) ..... 21
Rhodes v Stewart, 488 US 1 (1988) ................ iB:

Summit Office Park v United States Steel Corp., 639 F2d
iE re vee) ear pee 21

Trachtman v Anker, 563 F2d 512 (2d Cir 1977), cert
Genied, 435 US 925 (1978)... ccc cccccccccce 16

U.S. Bancorp Mortgage Co. v Bonner Mall Partnership,
___US__, 115 S. Ct 386, 130 L Ed 2d 233
Se eek aie ky ence hehe ecuwalk, 10, 18

Washegesic v Bloomingdale Public Schools, 33 F2d 679
(6th Cir 1994), cert denied, US __, 115 S Ct
oe + |.) ee 14

vi
Williams v Spencer, 622 F2d 1200 (4th Cir 1980) ...... 12

Wilson v State of Nevada, 666 F2d 378 (9th Cir 1982) .. 12

CONSTITUTION:
i CP Eos cs os ce ete koe cas dees passim
STATUTES:
NY a ts Sh ee es Ce ae 4,21
te eek le a 3, 20
ok 8 I reer Treen
2 ge ener Peer ere rr aa. 22

No. 94-1819

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 AN-
THONY, DIEGO MUNOZ, EDWARD FAGAN, BAYCAN
FIDELI, JODIE GREEN and JEFFREY LUKS,

Petitioners,
- against -

THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY
OF NEW YORK, and CLIFTON R. WHARTON, JR., individu-
ally 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 UNI-
VERSITY 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

2

POTSDAM, and HUMPHREY TOMKIN, individually and as
President of the College of Arts and Sciences at Potsdam,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT.

BRIEF OF RESPONDENTS IN OPPOSITION
TO PETITION FOR A WRIT OF CERTIORARI

Statement of the Case

Resolution 66-156 of the Board of Trustees of the State
University of New York ("SUNY") prohibits the "operat[ion]"
of "private commercial enterprises" on SUNY campuses (206).
American Future Systems, Inc. ("AFS") is a Pennsylvania
corporation engaged in selling cookware, china and tableware to
college students through group demonstrations of its products in
college and university dormitory rooms (258). In October 1982,
AFS representative Kathy Rapp ("Rapp"), in the process of
consummating sales after a dormitory-room demonstration of
AFS products at SUNY-Cortland, was asked to leave by campus
authorities. When she refused, she was arrested (218-19).
Subsequently, Todd Fox ("Fox"), a SUNY-Cortland student,
sought and was denied permission to host an AFS demonstration
(39-40).

On December 2, 1982, AFS, Rapp and Fox commenced this
action pursuant to 42 USC § 1983 in the United States District

'Parenthetical citations are to the Joint Appendix submitted by the parties
in the court below.

3

Court for the Northern District of New York, naming as
defendants SUNY-Cortland, the SUNY Board of Trustees, and
five individuals affiliated with SUNY-Cortland (20, 22-23).
Plaintiffs sought declaratory and injunctive relief and contended,
inter alia, that they had been deprived of their "right to freedom
of speech" under the First Amendment (29-30). On June 3,
1983, the District Court (McCurn, J.) preliminarily enjoined
SUNY from enforcing Resolution 66-156 by barring group
product demonstrations in dormitory rooms. American Future
Systems, Inc. v State University of New York College at
Cortland, 565 F Supp 754 (NDNY 1983) (174).

On August 28, 1984, plaintiffs filed an amended complaint,
naming as additional plaintiffs certain students at SUNY-
Cortland and SUNY-Albany, and adding as defendants SUNY-
Potsdam, SUNY-Albany, SUN Y-Binghamton and the Presidents
of those three institutions (46-49). Rapp thereafter withdrew as
a plaintiff. On December 23, 1985, plaintiffs moved pursuant
to Fed R Civ P 15 and 21 to amend their complaint again, now
seeking to add certain plaintiffs, drop certain defendants, and
add and withdraw allegations (77). In an affidavit accompany-
ing the motion, plaintiffs' counsel explained that he proposed to
add students from SUNY-Cortland and SUNY-Albany "as
student plaintiffs so that they may preserve and continue to
litigate the student-related issues already raised in this action
against" those institutions (79, 80). The District Court granted
plaintiffs' motion to amend the complaint on January 7, 1986.

The case was tried without a jury during September and
October, 1986. On December 12, 1986, the District Court
dissolved its preliminary injunction and upheld SUNY 's
regulation, applying a "public forum" analysis to the case and
treating the regulation as a valid effort to preserve public
property in the face of an incompatible use. Fox v Board of °

4

Trustees of the State University of New York, 649 F Supp 1393
(NDNY 1986) (84). The student plaintiffs only, and not AFS,
appealed to the United States Court of Appeals for the Second
Circuit. On March 11, 1988, the Second Circuit, in a 2-1]
decision, reversed the decision of the District Court and re-
manded the case to that court, rejecting the public forum
analysis and instead analyzing the SUNY regulation as a
government restriction on commercial speech. 841 F2d 1207
(2d Cir 1988) (106). According to the Second Circuit, such a
restriction was constitutionally required to be the "least restric-
tive means" of achieving SUNY's purpose (110-113).

On October 3, 1988, this Court granted defendants' petition
for a writ of certiorari. 488 US 15 (1988). An inquiry by
SUNY's counsel at the time the petition was granted revealed
that at least one student plaintiff was currently registered at
SUNY (584). On the same day certiorari was granted, the
District Court issued a decision on remand, invalidating
Resolution 66-156 as "not the least restrictive means for meeting
the proffered state interests" (175, 183-84). 695 F Supp 1409
(NDNY 1988). Defendants then moved in the District Court
pursuant to Fed R Civ P 52 and 59 to amend the District Court's
findings of fact and its judgment. On November 23, 1988, the
District Court issued an order staying all proceedings until after
this Court had acted.

On June 29, 1989, this Court reversed the Second Circuit's
judgment and remanded the case for further proceedings.
492 US 490 (1989) (76a).2 The Court found that its prior
decisions upholding government regulation of commercial
speech could not "be reconciled with a requirement of least

*Parenthetical citations followed by "a" are to the Appendix to the Petition
for Writ of Certiorari.

5

restrictive means" (86a). The Court remanded the case to the
Second Circuit for determination of the validity of the SUNY
regulation both as applied and in terms of overbreadth (418).
On September 25, 1989, the Second Circuit in turn remanded
the case to the District Court (422).

At the time of this remand to the District Court, counsel for
defendants learned that none of the plaintiffs was a SUNY
student any longer and thus that the case had become moot
(584-85). Defendants’ brief on remand called this fact to the
District Court's attention. Plaintiffs’ brief on this subject
contained a footnote "request[ing] leave to amend their com-
plaint to join as plaintiffs" four students who were currently
enrolled at SUNY. On May 24, 1991, the District Court issued
a memorandum-decision and order concluding that the case was
moot and that it did not fit within the exception to the mootness
doctrine for matters capable of repetition but evading review,
but granting plaintiffs leave to amend their complaint pursuant
to Fed R Civ P 15(a). 764 F Supp 747 (NDNY 1991) (54a).
Plaintiffs accordingly filed an amended complaint naming
current SUNY students as plaintiffs (454).

Defendants moved in the District Court for reconsideration of
the court's order permitting amendment of the complaint. On
May 7, 1993, the District Court issued an opinion reaffirming its
conclusion that the case was moot, finding that its 1991 decision
was otherwise "in clear error," rejecting plaintiffs’ suggestion
that the complaint could be amended pursuant to either Fed R
Civ P 15 or 21 to add new plaintiffs, and dismissing the com-
plaint. 148 FRD 474 (NDNY 1993) (23a). With respect to Rule
21, which deals with nonjoinder and misjoinder, the District
Court opined that the rule was "not enacted as a means for a
party to avoid dismissal on mootness grounds," for "[i]f that
were so, no case would ever become moot," "thus rendering the

6

mootness doctrine a legal fiction" (43a-47a). As to Rule 15, the
District Court overturned its prior grant of leave to amend,
noting that the rule "allows only a 'party' to amend 'the party's
pleading,'" but that "the original plaintiffs are no longer ‘parties’
to this action because the case has become moot as to them,"
such that "the court lacks jurisdiction” and is "without power to
act" (49a-50a). Plaintiffs’ motion for reconsideration of the
District Court's entry of judgment for defendants was denied on
June 23, 1993 (588).

Plaintiffs then appealed to the Second Circuit, which on
December 9, 1994 issued a decision affirming the District
Court's judgment. 42 F3d 135 (2d Cir 1994) (6a). The court
first rejected plaintiffs' argument that defendants had "waived"
their right to assert a defense based on mootness. As the Second
Circuit noted, this "argument ignores the jurisdictional nature of
the Article III] requirement that federal courts adjudicate only
'Cases' and 'Controversies'" (14a). When a case becomes moot,
the court below observed, federal courts lack subject matter
jurisdiction over the action, and "[d]efects in subject matter
jurisdiction cannot be waived and may be raised at any time
during the proceedings” (15a). Because the plaintiffs had
departed SUNY, "[t]he relief sought in the Complaint could
provide no legally cognizable benefits to Plaintiffs," "th[e] case
was moot," and the District Court lacked subject matter jurisdic-
tion (16a).

The Second Circuit next considered and rejected the several
arguments by which plaintiffs sought to circumvent the
mootness of their case. The failure of the complaint to request
nominal damages or anything other than declaratory and
injunctive relief meant that plaintiffs’ newly-asserted claim for
nominal damages did not "suffice to avoid mootness when
[their] claims for injunctive and declaratory relief have become

J

moot" (18a-19a). Nor, said the court below, could plaintiffs
keep their moribund case alive by contending that they are
"litigating in a representational capacity" on behalf of other
SUNY students (19a). They had neither conducted the case as
a class action nor otherwise "explicitly asserted [in the
pleadings] that [they] were acting in a representative Capacity on
behalf of themselves and other students similarly situated"
(19a-20a).

The case likewise did not fall within "the ‘capable of repeti-
tion, yet evading review’ exception to mootness" (20a). The
case, said the Second Circuit, did not typically evade review
because "there is no reason to believe that the issue presented by
this case could not be litigated in the four-year span of a
standard undergraduate education,” especially "[{n]ow that the
Supreme Court has defined the applicable rule" to be applied on
the merits (20a). Nor did the court below detect a "reasonable
expectation” that the case would repeat itself with the present
plaintiffs. Although several plaintiffs, none of whom has been
affiliated with SUNY since 1988, had sought to supplement the
record on appeal with affidavits suggesting that they might
return to SUNY "'within the next few years,'" and their motion
was denied, in any event this "bare statement of intention [was]
insufficient to escape mootness," particularly in view of the fact
that "the expressed intention to return to the SUNY system is
not solely within plaintiffs’ power to accomplish" (21a-22a).°

’Because plaintiffs allude (Petition, pp 6, 19) to "evidence" suggesting that
some of them may wish someday to return io SUNY as students, it is
necessary to note that there is no such evidence in the record. After they had
filed their main brief in the Second Circuit, some plaintiffs sought to
supplement the record pursuant to Fed R App P 10(e) with affidavits

claiming, as they had not at any earlier point in the litigation, that there was
(Continued on next page.)

8

Finally, the Second Circuit upheld the District Court's refusal
to permit plaintiffs to amend their complaint by adding current
SUNY students as plaintiffs. The court validated "the reasons
[for this refusal] stated in the thorough analysis of [the] district
court in its opinion" (22a). According to the court below, "[t]he
district court correctly concluded that once a case is moot, it is
no longer justiciable in federal court and must be dismissed,"
and cannot be kept alive artificially by means of a transfusion of
new plaintiffs (22a).

REASONS FOR DENYING THE WRIT

I. The decision below creates no "conflicts" or "confusion"
with respect to the mootness doctrine.

Relying on well-established legal principles, the courts below
recognized the inescapable fact that, once plaintiffs departed
SUNY, their case became moot. Article III, § 2, cl 1 of the
Constitution limits the federal "judicial power" to "Cases" and
"Controversies." When there is no case or controversy, an
action is moot and a federal court lacks subject matter jurisdic-
tion over it. The "confusion" and "conflicts" plaintiffs purport
to detect in this area of law, and on which they premise their
petition for certiorari, are simply nonexistent.

*(Continued from previous page.)
a reasonable probability they would return to SUNY as students. As Judge

Mahoney explained, although he granted this motion "prior to oral argument,
subject to reconsideration by the panel, as a matter of administrative
convenience," the motion was ultimately denied by the panel, for "this
evidence is not a proper supplement to the record as contemplated by Fed R
App P 10(e)" (21a). "In any event," the court below noted, "consideration of
the affidavits would not affect the outcome of this case” (21a).

9

Plaintiffs’ central argument (Petition, pp 8-16) is based on
nothing more than a truncated, selective, and therefore inaccu-
rate reading of this Court's decisions. Thus, according to
plaintiffs, the question of whether the mootness doctrine is
rooted in the constitutional "cases and controversies" require-
ment or in prudential considerations remains "unresolved" and
must now be addressed by this Court. Plaintiffs’ sole basis for
this contention is the case of Honig v Doe, 484 US 305, 317
(1988), in which a six-judge majority noted that "[u]nder
Article III of the Constitution this Court may only adjudicate
actual, ongoing controversies." Similarly, Justice Scalia, joined
by Justice O'Connor in dissent, opined that the mootness
doctrine is constitutionally based: "I cannot believe that it is only
our prudence, and nothing inherent in the understood nature of
'The judicial Power,’ [cit om] that restrains us from pronouncing
judgment in a case that" has become moot. 484 US at 341
(Scalia, J. dissenting). Only Chief Justice Rehnquist, concurring
in Honig, suggested that the mootness doctrine may be rooted in
prudential rather than constitutional considerations. 484 US at
329-332 (Rehnquist, C.J., concurring).

As the court below recognized (14a-15a), any conceivable
confusion as to the meaning of Honig and the constitutional
source of the mootness doctrine was resolved by this Court's
unanimous rulings in two subsequent cases, neither of which
plaintiffs acknowledge. In Lewis v Continental Bank Corp.,
494 US 472 (1990), the Court, rejecting any suggestion that
mootness is prudential, held squarely that mootness derives from
"Article III of the Constitution." 494 US at 477. As the Court
explained,

Article III denies federal courts the power "to decide
questions that cannot affect the rights of litigants in
the case before them" [cit om], and confines them to

10

resolving "'real and substantial controvers|ies]
admitting of specific relief through a decree of a
conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical
state of facts.'"

Id. (cit om). Similarly, in U.S. Bancorp Mortgage Co. v Bonner
Mall Partnership, _US ___ , 115 S Ct 386, 389, 130 L Ed 2d
233 (1994), the unanimous court alluded to "the limitations on
the judicial power conferred by Article III" and added that
federal courts lack authority "to decide the merits of a legal
question not posed in an Article III case or controversy.”

Thus, notwithstanding the law review articles plaintiffs cite
in lieu of jurisprudence, there is no ongoing controversy as to
the source of the mootness doctrine in Article III of the Constitu-
tion. There is disagreement among law professors, but not
among courts. And this in turn means, as the court below
recognized, that the absence of a live case or controversy
absolutely deprives a federal court of subject matter jurisdiction,
regardless of when the defense of mootness is raised by a party
or indeed of whether the defense is raised at all.

Nor is there any question as to how the mootness doctrine
applies either to this case or more generally to cases discussing
what plaintiffs (Petition, p 18) call "the significance of a student
plaintiff's graduation from a defendant institution.” As the court
below understood, it is entirely clear that a student plaintiff's
departure, through graduation or otherwise, from a school with
which he at one time had a live controversy moots the case.
A plaintiff who ceases to be a student retains no personal stake

1]

in the outcome of a suit challenging a school's treatment of its
students, and may not maintain such a suit.

Thus, in Board of School Commissioners of the City of
Indianapolis v Jacobs, 420 US 128 (1975), plaintiffs were
students seeking to have certain regulations of the Board
declared unconstitutional. By the time of oral argument, all the
plaintiffs had graduated. To the Court, this made it "clear that
a case or controversy no longer exists between the named
plaintiffs and the petitioners with respect to the validity of the
rules at issue," and the case was therefore moot. 420 US at 129.
In other words, the Court subsequently observed, the plaintiffs
in Jacobs "no longer possessed a personal stake in the outcome
at the time the case reached this Court for review." Franks v
Bowman Transportation Co., 424 US 747, 754 n.6 (1976).
Similarly, in DeFunis v Odegaard, 416 US 312 (1974), the
plaintiff was shortly to graduate from the law school whose
admissions policies originally prompted his suit. Since the
plaintiff would therefore not "be affected by any view this Court
might express on the merits of this controversy,” the Court
concluded that it could not "consistently with the limitations of
Art. III of the Constitution, consider the substantive constitu-
tional issues tendered by the parties." 416 US at 317, 319-20.

The cases of the courts of appeals, far from embodying the
"conflicts" which according to plaintiffs require this Court's
intervention in the present case, in fact follow from the decisions
in Jacobs and DeFunis. Thus, there is no conflict in the
decisions of the Second Circuit, which in similar circumstances
has invariably reached the same conclusions it reached in the
present case. See, Cook v Colgate University, 992 F2d 17, 19
(2d Cir 1993) (graduation of plaintiffs "before the district court's
order can affect them" rendered case moot); Alexander v Yale
University, 631 F2d 178, 184 (2d Cir 1980) (plaintiffs' gradua-

12

tion rendered challenge to university's policy moot, for "[nJone
of [them] at present suffers from the alleged injury"). These
decisions in turn comport with the decisions of other courts of
appeals. See, e.g., McFarlin v Newport Special Sch. Dist.,
980 F2d 1208, 1210-11 (8th Cir 1992) (claim for reinstatement
to basketball team rendered moot by graduation); Ahmed v
University of Toledo, 822 F2d 26, 28 (6th Cir 1987) (action
moot with respect to four named plaintiffs after one graduated
and three dropped out); Wilson v State of Nevada, 666 F2d 378,
381-83 (9th Cir 1982) (graduation mooted claim); Williams v
Spencer, 622 F2d 1200, 1204 (4th Cir 1980) (same); Doe v
Marshall, 622 F2d 118, 119 (Sth Cir 1980) (same); Gomes v
Rhode Island Interscholastic League, 604 F2d 733, 736 (1st Cir
1979) (same).

Nor do the cases plaintiffs cite as creating "conflicts" with the
decision below do anything of the sort. There is a well-estab-
lished exception to the mootness doctrine for cases where "the
following two circumstances [are] simultaneously present:
'(1) the challenged action [is] in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party would
be subjected to the same action again.'" Lewis, 494 US at 481
(quoting Murphy v Hunt, 455 US 478, 482 (1982)). This
exception fit the factual circumstances of Jones v Illinois Dept.
of Rehabilitation Services, 689 F2d 724, 728 (7th Cir 1982)
(case was capable of repetition as to plaintiff, whose return as
graduate student to school from which he had graduated was
reasonably probable).* As was obvious to the courts below, a

“To the extent that Bender v Williamsport Area School District, 741 F2d
538, 542 n 4 (3d Cir 1984), vacated, 475 US 534 (1986), may have avoided
mootness through the Third Circuit's recourse to the possibility that the

(Continued on next page.)

i

ee >

13

bare claim that plaintiffs might someday return to SUNY for
further education after having made no effort to do so 5 1/2
(now 7) years since their last affiliation with the university --
even if such a claim had been properly before the court, rather
than asserted untimely on the eve of oral argument via a motion
to supplement the record on appeal -- did not create the requisite
reasonable expectation that these plaintiffs would again be
subject to the university policy of which they complained while
students.

The supposed "conflict" between circuits upon which
plaintiffs principally base their present petition requires that they
boldly disavow their words to this Court in 1988. Plaintiffs at
that time aggressively characterized this case as involving only
the rights of students to host or attend presentations, not the
separate rights of non-student invitees in connection with the
same presentations. Thus, they told this Court, "[a]t all times
throughout the litigation, the only issue raised was that of the
constitutional rights of the students, as invitors, to listen to
speech which they wanted to hear" (Respondents' Brief on Writ
of Certiorari, p 3). In other words, plaintiffs said, they brought
this action "because it is their free speech rights, not the rights

‘(Continued from previous page.)
controversy might be repeated with other parties than the plaintiffs therein,
it was plainly wrong, for this Court has made clear that the exception to
mootness must apply to "the same complaining party." Lewis, 494 US at 481.
There is no reason to review the case at bar simply to demonstrate that the
court below employed the proper standard. In any event, the Third Circuit's
judgment in Bender was vacated on the ground that the appellant in the
circuit court lacked standing, leaving the Third Circuit both “without
jurisdiction to hear the appeal" and "without authority to decide the merits."
475 US at 549. Accordingly, the Third Circuit's decision in that case has no
precedential value and cannot "conflict" with any other decision of any court.

14

of their [non-student] invitees, that have been infringed" (Brief
for Respondents on the Merits, p 1) (emphasis supplied).

Now, seven years later, the same parties in the same case
purport to detect a conflict between the decision below and
Washegesic v Bloomingdale Public Schools, 33 F2d 679 (6th Cir
1994), cert. denied, US ___,115SCt1822,__ LEd 2d
___ (1995). In Washegesic, the Sixth Circuit concluded that a
former high school student who objected on Establishment
Clause grounds to display of a portrait of Jesus Christ in a
school hallway retained the capacity to sue the school district
despite having graduated, for "the portrait of Jesus affects
—students and non-students alike" and the plaintiff "still visits the
school and will confront the portrait whenever he is in the hall."
33 F3d at 681. As the court below recognized (22a n 5),
Washegesic is distinguishable, for in the present case both
plaintiffs’ standing and their substantive claims have been
predicated throughout solely on their status as SUNY students,
not on their asserted role as non-student visitors to SUNY
campuses. Plaintiffs can certainly now bring an action, of
course involving a wholly different set of First Amendment
issues, based on their status as visitors. But that is not the case
they actually brought. Once they lost their status as students,
that case became moot.

Nor are there judicial conflicts or uncertainties concerning
what plaintiffs call (Petition, p 21) "the representative action
exception to the doctrine of mootness." As plaintiffs evidently
conceive of this "exception," it is a class action manqué,
permitting a plaintiff to forego all the procedural requirements
of Fed R Civ P 23, while still forestalling mootness when the
named plaintiff ceases to have a stake in the outcome of the
case. According to plaintiffs (Petition, p 25), whenever "leaders
in student government" sue their schools, they are representing

15

all student bodies present and future, even if they do not bother
to mention this fact to the courts.” Nothing this Court has ever
said authorizes such an action, which of course would render the
class action procedures established by the Federal Rules entirely
superfluous. See, Jacobs, 420 US at 130 (dismissing case
brought on "behalf of all high school students attending India-
napolis public schools" because class was never properly
defined or certified). Indeed, in Pasedena City Bd. of Educ. v
Spangler, 427 US 424 (1976), the original student plaintiffs had
graduated. Plaintiffs' counsel suggested that the case be
regarded as a de facto class action. This, said the Court,

overlook[s] the fact that the named parties whom
counsel originally undertook to represent in this
litigation no longer have any stake in its outcome. As
to them the case is clearly moot. And while counsel

‘Even on their own terms, plaintiffs are mistaken, for by their accounts
they were suing on their own behalf. Stephanie Vaiano "felt that the
[regulation] was an infringement on my rights" (234). Edward Detweiler
joined the case because the regulation "infringes on my right of speech"
(262). James Cullen "became very interested in the case because of th{e]
infringement upon my rights" (263). Steven Gawley "decided before [he]
became a plaintiff" that "this was a right that I would be interested in having"
(252). Jeffrey Zellan "simply felt that | should be able to invite guests that
I choose to invite" (270). Philip Botwinik felt that "the right to be able to do
whatever I want within my own room * * * is very important" (264). And
Botwinik's additional concern with the “constitutional rights of students” is
insufficient under any circumstances to mark the suit as brought in a
representational capacity, even if there were any reason to imagine Botwinik
was empowered to do so. He could not have been, for he was just a man who
“was very active in the student government” (264). Whatever this may mean,
it is not enough to entitle him to represent all SUNY students, present and
future.

16

may wish to represent a class of unnamed individuals
still attending the Pasedena public schools who do
have some substantial interest in the outcome of this
litigation, there has been no certification of any such
class which is or was represented by a named party to
this litigation.

427 US at 430.

If the expedient of a "representative action" were ever
appropriate, Spangler would have been the place to employ it.
Instead, this Court rejected such a device, in terms unmistakably
applicable to the case at bar. As in Spangler, the present
plaintiffs no longer have a stake in the outcome of the litigation.
It is their counsel who "wish to represent" others with an
assertedly “substantial interest in the outcome." But as in
Spangler, counsel's search for clients is not a sufficient reason
to prolong, in the form of a "representative action," a moot case
that has not been certified or even brought as a class action.

Moreover, even if such a "representative" action is viable
under some circumstances, cf Trachtman v Anker, 563 F2d 512
(2d Cir 1977), cert denied, 435 US 925 (1978), there is no
question that, as the court below recognized, plaintiffs cannot
keep the representative nature of the action to themselves until
their case becomes moot and it suits them to reveal it. At no
point before 1989 did plaintiffs, either in their pleadings or
anywhere else, suggest that they were suing on anyone's behalf
but their own. Indeed, the very parties whom plaintiffs claim to
have represented -- the Student Associations at SUNY-Albany
and SUNY-Cortland -- filed amicus briefs on the merits in the
Second Circuit in 1988, proving rather definitively that these
student assoc‘ations did not view plaintiffs as their proxies.

17

Thus, the supposed "conflicts" and "confusions" which
according to plaintiffs justify a writ of certiorari in this case are
completely nonexistent. There is no doubt that the mootness
doctrine is grounded in Article III of the Constitution, that the
doctrine applies to foreclose litigation between students and
their school after the students have departed the institution, that
the exception to the mootness doctrine for actions that are
capable of repetition yet typically eva.’ review does not apply
to students who have had no affiliation with their schools for
many years and demonstrate no reasonable likelihood of
returning, and that a plaintiff cannot avoid mootness by eschew-
ing a Class action but asserting, in the face of a challenge for
mootness, that his case has been maintained sub silentio as a
“representative action" on behalf of others. The decisions of the
courts below did no more then apply these well-established
principles to the case at bar. There is no need for this Court to
grant plaintiffs’ petition merely to restate these principles.

II. The Mootness Doctrine was properly applied to this case.

Eschewing the necessary rigorous demonstration of circum-
stances justifying a grant of their petition, plaintiffs instead
devote a substantial portion of their petition (pp 22-29) to
elaborate special pleading, contending that the mootness
doctrine should not have been applied to their demonstrably
moot case. All they accomplish with this special pleading is a
persuasive showing that the courts below were correct: this case
presents a textbook example of mootness, and any result other
than dismissal on mootness grounds would have worked the
"inequities" of which plaintiffs complain.

Plaintiffs misunderstand the doctrine of mootness, imagining
it can be ignored by federal courts that find it convenient to do
so. As demonstrated in the preceding section, that is simply

18

untrue: a court lacks jurisdiction over a case that becomes moot,
regardless of the stage of the litigation at which mootness arises.
Thus, as a unanimous Court put it in Lewis v Continental Bank
Corp., the "case-or-controversy requirement subsists through all
stages of federal judicial proceedings, trial and appellate."
494 US at 478. If plaintiffs were correct in arguing (Petition,
pp 23-24) that, once having accepted jurisdiction over a case, as
this Court did the present case in 1989, the case can never have
become moot, the result in Rhodes v Stewart, 488 US 1 (1988),
could not have occurred. Although the Court in Rhodes did not
realize the fact when it first remanded the case in 1983, it was
moot at that time. 488 US at 3. In 1988, reversing the District
Court's opinion on remand that the plaintiffs were prevailing
parties, the Court noted that "[t]he case was moot before
judgment issued, and the judgment therefore afforded the
plaintiffs no relief whatsoever." /d. In other words, dismissal
after remand is exactly what should occur in a moot case that
has been heard by this Court. Indeed, even when this Court has
granted a petition for certiorari and "received briefing on the
merits," a turn of events that renders further proceedings
academic "moot[s] the case" and deprives the Court of jurisdic-
tion to decide it on its merits. U.S. Bancorp Mortgage Co.,
115 S Ct at 389 (case rendered moot by settlement agreement).

Plaintiffs further betray their misunderstanding of the
mootness doctrine in their contention (Petition, pp 24-25) that
the case cannot be moot because SUNY was "on notice of the
facts supporting its mootness claim" before this Court's decision
in 1989 and thus asserted the claim "belated[ly]" after remand to
the District Court. As a simple matter of fact, the contention is
false: as demonstrated in the record, to the best of defendants’
knowledge the case was still viable in late 1988 and early 1989;
when, after remand, defendants learned of the case's mootness,
they brought it promptly to the District Court's attention. But

19

quite apart from this, plaintiffs overlook both the nature of
mootness as a legal principle and the duties that the possibility
of mootness imposes on all parties to a litigation. Because
mootness is, as discussed above, a jurisdictional prerequisite, it
cannot be waived or abandoned by a party. Indeed, it can be
invoked sua sponte by a court even if the parties overlook it.
Thus, there is no such thing as a "belated" claim of mootness.
If a case is moot -- even if it has been sc for some time before
the parties or the court realizes it -- it is over.

Moreover, as this Court has made clear, the obligation to
apprise a court of the mootness of a case rests on all parties.
Thus, for example, "when a development after this Court grants
certiorari or notes probable jurisdiction could have the effect of
depriving the Court of jurisdiction due to the absence of a
continuing case or controversy, that development should be
called to the attention of the Court without delay." Board of
License Commissioners v Pastore, 469 US 238, 240 (1985)
(emphasis in original). Plaintiffs (unlike defendants) presum-
ably knew that they were no longer affiliated with SUNY as of
September 1988. By their own reasoning, it is as easy to argue
that they wrongfully suppressed knowledge of the case's
mootness as that SUNY asserted the defense "belatedly." But no
such argument is necessary, for the point of the mootness
doctrine is to prevent courts from doing needless work -- an
object which does not depend on a party's assertion, "timely" or
otherwise, of a mootness claim.

Nor, having failed to employ "[t]wo simply procedural
expedients to avoid mootness" (Petition, pp 25-27) when they
might have kept this action alive, can plaintiffs now request this
Court to exercise these procedures retroactively to resuscitate
their long-dead case. As noted above, having eschewed a class
action lawsuit and having failed at any point before the case

20

became moot to indicate that they were representing anyone's
interests but their own, plaintiffs cannot now rescue their case
with the deus ex machina of a "representative capacity" suit.
Similarly, having failed to amend their complaint to add new
parties with an ongoing stake in the litigation at a time while the
case was still viable, plaintiffs cannot now correct this short-
coming. Plaintiffs’ counsel understood well both the dangers of
mootness in non-class actions involving students and the means
by which these pitfalls could be avoided. In 1985, before trial,
they sought and were allowed to amend the complaint to add
many of the present plaintiffs "as student plaintiffs so that they
may preserve and continue to litigate the student-related issues
already raised in this action." Their unaccountable failure to
seek any further such amendment has rendered this case moot
for roughly half its existence.

Nor, as the courts below understood, are the procedures on
which plaintiffs would rely to rescue their case from mootness
(Petition, p 25) at all suited to belated amendment of a com-
plaint. Fed R Civ P 21 addresses only "Misjoinder and
Non-joinder of Parties." As the Second Circuit has noted, this
Rule "was adopted to obviate the harsh common law adherence
to the technical rules of joinder [cit om], and not in order to deal
with problems of defective federal jurisdiction." Kerr v
Compagnie De Ultramar, 250 F2d 860, 864 (2d Cir 1958). The
rule cannot be used to obtain federal jurisdiction by substitution
of parties where none otherwise exists. See, e.g., Graves v
Walton County Bd. of Educ., 686 F2d 1135, 1138 (Sth Cir 1982)
(in absence of a class action, a case in which student plaintiffs
have all graduated is moot and presents "no viable action” to
which proposed new plaintiffs can be added under Rule 21);
Field v Volkswagenwerk AG, 626 F2d 293, 306 (3d Cir 1980)
(Rule 21 cannot be employed "to substitute a diverse claimant
for a non-diverse plaintiff" and thus obtain federal jurisdiction,

21

for "substitution of parties" is "simply not within the scope of"
the Rule).

Similarly, both courts below understood that Fed R Civ P
15(a), which permits only "a party" to "amend a party's plead-
ing,” cannot be used to amend a complaint in a moot case.
Since the absence of a continuing case or controversy means that
a plaintiff lacks standing to invoke a federal court's jurisdiction,
see, Princeton University v Schmid, 455 US 100, 103 (1982),
then once a case has been recognized as moot, it simply does not
exist any longer, and its plaintiffs may not keep it alive by
substituting new plaintiffs for themselves pursuant to Fed R
Civ P 15(a). See, e.g., Summit Office Park v United States Steel
Corp., 639 F2d 1278, 1282 (Sth Cir 1981) (since original
plaintiff's case was moot and thus "there was no plaintiff before
the court with a valid cause of action, there was no proper party
available to amend the complaint"). Nor, more generally, can
Rule 15(a) be used to permit a plaintiff over whose case the
District Court lacks subject matter jurisdiction to amend its
complaint pursuant to Rule 1 5(a) to substitute a new party with
a viable suit. See, e.g. Pressroom Unions-Printers League
Income Security Fund v Continental Assurance Co., 700 F2d
889, 893 (2d Cir), cert denied, 464 US 845 (1983) (although a
plaintiff may "remedy inadequate jurisdictional allegations," it
may not "substitute a new action over which there is jurisdiction
for one where it did not exist"). The "procedural expedient" of
amendment of a still-viable complaint to add new parties was
readily available to and indeed once employed by plaintiffs
during the first six years of this litigation. Their inexplicable
failure to repeat this well-established and clearly-available
device is no reason for the court to intervene now in order to
consider the application of inappropriate procedural mechanisms
to revive this long-moot action.

22

Nor, finally, is this Court's review necessary in order to
vindicate the right of counsel for the "prevailing party" in cases
brought pursuant to 42 USC § 1983 to recover attorney's fees
under 42 USC § 1988. Plaintiffs argue (Petition, pp 7-8, 27-28)
that certiorari should be granted in order to avoid the supposedly
"chilling effect" that a dismissal on the ground of mootness will
have "on the private bar's willingness to get involved in such
cases." In plaintiffs view, 42 USC § 1988 is the Private
Attorneys’ Relief Act: in § 1983 cases, the private bar's interest
in attorney's fees is so great that an attorney may recover such
fees even when his case becomes moot. There is, however, not
one shred of legislative history suggesting that Congress, in
enacting § 1988, intended that public funds be spent on attor-
ney's fees paid to the private bar in cases that cease to be viable
because plaintiffs no longer have a stake in their outcome.
Indeed, this Court has commented definitively on the fact that
counsel's desire for attorney's fees cannot keep a moot case
alive, noting that an "interest in attorney's fees is, of course,
insufficient to create an Article III case or controversy where
none exists on the merits of the underlying claim." Lewis,
494 US at 480.

While valorizing their own quest for attorney's fees, which
has kept their obviously moot case before the courts for the past
six years, plaintiffs disparage defendants’ efforts to avoid
liability for attorney's fees by calling the mootness of the action
to the courts’ attention. There is, however, nothing either
reprehensible or avoidable about the fact that 42 USC § 1988, by
making attorney's fees available to prevailing parties, affects the
incentives for both sides in civil rights litigation. Plaintiffs
purport to be troubled by the fact that this case, which since
1989 has lacked any plaintiff with a stake in its outcome, has
survived like a tenacious weed solely on the strength of the

23

quest of plaintiffs’ counsel for attorney's fees.° But it is difficult
to understand why, if (as plaintiffs claim) "SUNY 's real motive"
in calling the mootness of the case to the courts’ attention is
avoidance of liability for attorney's fees, the real motive of
plaintiffs or their counsel in prolonging a case that has been
moot for more than six years is not equally and solely the
recovery of counsel fees. It is certainly not defendants who have
"squandered" "judicial resources" by keeping this case alive.
The current plaintiffs, having left SUNY long ago, have no stake
in the outcome of this litigation. As the court below noted, their
successors as SUNY students can count on swift resolution of
their claims should they ever trouble to commence a new action.
Indeed, if plaintiffs’ presumably-available student successors had
simply commenced a new action as soon as this case became
moot, that action would undoubtedly have been resolved on its
merits long ago.

This case, at all times since its remand to the District Court in
1989, has entailed no more than a routine application of the
well-established principles of the mootness doctrine. The
application of these principles may indeed foreclose any claim
by plaintiff's counsel for attorney's fees, but such foreclosure is
itself the unquestionable consequence of the mootness of this
case. A quest for attorney's fees under 42 USC § 1988, without
more, is insufficient to keep a moot case alive. There is no need
for this Court to grant review merely to restate this unexception-
able conclusion.

"Plaintiffs (Petition, pp 28-29 n 14) quote a colloquy to this effect during
oral argument of the case before the Second Circuit between counsel for
defendants and "Judge Winter." Judge Ralph K. Winter, however, was not
a member of the Second Circuit panel that held unanimously in defendants’
favor. Plaintiffs presumably mean to refer to Judge John M. Walker, Jr.

24

CONCLUSION
The petition for a writ of certiorari should be denied.

Dated: Albany, New York
June 1, 1995

Respectfully submitted,

DENNIS C. VACCO

Attorney General of the
State of New York

Attorney for Respondents

VICTORIA A. GRAFFEO
Solicitor General and
Counsel of Record

PETER H. SCHIFF
Deputy Solicitor General

DANIEL SMIRLOCK
Assistant Attorney General

of Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1706%3A2. Public record. Not legal advice.