“It is axiomatic that if, during the course of litigation, an action becomes moot, it should usually be dismissed.” In re Peoples, 296 N.C. 109, 148, 250 S.E.2d 890, 912 (1978).
Key word in the above quote? “Usually.”
In an opinion issued by the Court of Appeals on Tuesday in Anderson v. North Carolina State Board of Elections, the Court addressed the issue of mootness and when it is appropriate for a court to substantively rule on a case that has become technically moot. Anderson involved a challenge to the plan for early voting in Watauga County adopted by the Board of Elections in advance of the November 2014 general election. The petitioners sought an early voting site on the campus of Appalachian State University, something that did not exist in the plan adopted by the Board. The superior court granted the petitioners’ requested relief and ordered the Board of Elections to adopt a plan consistent with the petitioners’ request. The Board complied but appealed the order.
Since the 2014 general election was completed by the time the case reached the Court of Appeals, and the petitioners had been granted the relief they sought, the Court had to determine whether the case was moot. After a thoroughly detailed analysis of the mootness doctrine, its differing application in state and federal courts, and the constitutional underpinnings of the doctrine, the Court addressed whether the case met either of two “exceptions” to the general rule—the “capable of repetition, yet evading review” exception and the “public interest” exception.
With respect to the first, the Court noted that the exception requires two elements: (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. The majority held that this exception did not apply because there was not a “reasonable expectation” that the Board would be subject to the “same action again.” The majority also noted that the Board, as the defendant in this case, did not fall within the ordinary definition of a “complaining party,” as that contemplates a plaintiff, not a defendant The Court did acknowledge the possibility of scenarios in which a defendant might be able to invoke this exception, but no North Carolina court had ever applied the exception to a defendant. In a dissenting opinion, Judge Dillon indicated his belief that a similar issue is likely to occur prior to the 2016 election and that, therefore, the Court should review the merits of the technically moot case.
As to the “public interest” exception, the majority also rejected its application to this case. “A court may consider a case that is technically moot if it ‘involves a matter of public interest, is of general importance, and deserves prompt resolution.’” Anderson (quoting N.C. State Bar v. Randolph, 325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989)). The majority characterized the Board’s request for review of the moot case as seeking legal “guidance” on a speculative issue that did not satisfy the requirement of needing “prompt resolution.” Further, the Court held that the Board did not identify how resolution of the case would further a greater public interest, as opposed to simply further the Board’s own interests. Judge Dillon dissented on this point as well, writing that even if the “capable of repletion, yet evading review” exception did not apply, he believed that the “public interest” exception would apply because the case presented substantial issues regarding the integrity of the election process.
Although not at issue in Anderson, the North Carolina appellate courts have recognized at least three other exceptions to the general rule that moot cases should be dismissed.
In In re Hatley, 291 N.C. 693, 231 S.E.2d 633 (1977), the Supreme Court of North Carolina recognized an exception when there are “collateral legal consequences of an adverse nature.” In Hatley, this exception arose in the context of someone having been adjudged mentally ill and involuntarily committed. The case because moot when the person was released from the involuntary commitment. However, because there are possible ongoing legal consequences of having been adjudicated mentally ill, the Court could address the appeal of that finding despite the involuntary commitment having been terminated.
In Shell Island Homeowners Ass’n v. Tomlinson, 134 N.C. App. 286, 517 S.E.2d 401 (1999), the Court of Appeals recognized that a court may review an otherwise moot case when the defendant voluntarily ceases the challenged act. This exception to mootness was set forth by the United States Supreme Court in City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982), in which the Court stated, “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power.”
Finally, in Simeon v. Hardin, 339 N.C. 358, 451 S.E.2d 858 (1994), the Supreme Court of North Carolina advised that in class action litigation, even if the class representatives’ claims are terminated, the claims of the unnamed class members are not mooted and may still be reviewed.
The takeaway here? Just because a case is technically moot, that does not automatically mean that the appellate court loses the ability to rule on the issue or issues that the case presents.