Articles Posted in Mootness

Chester Bross Construction Company was the low bidder on a number of Illinois Department of Transportation projects. But instead of awarding Bross the work, the Department suspended Bross from competing for any Department contracts for two years. The suspension was based on a dispute over whether Bross complied with a required internship program.

Bross asked the trial court to review the Department’s two-year suspension order. Bross appealed after the trial court sustained the suspension.

The two-year suspension expired while the case still was pending in the appellate court. So the first question the Fourth District Illinois Court of Appeals had to answer was whether Bross’s appeal was moot. [ “An issue is moot if no actual controversy exists or where events occur which make it impossible for the court to grant effectual relief.”]

Bross argued that the appeal fell under two exceptions to the mootness doctrine – (1) the public-interest exception and (2) the collateral-consequences exception. But the appellate court ruled in favor of the Department, concluded the exceptions did not apply and the case was moot, and dismissed Bross’s appeal.

Bross’s appeal did not qualify for the public-interest exception because “the question in this case is based on specific evidence and actions involving only plaintiff,” so the appeal “does not present a question of a public nature.”

Nor did the collateral-consequences exception apply. The appellate court ruled that Bross had:

. . . not demonstrated any specific or concrete legal impact likely to result from the suspension. As a result, we find this case does not fall within the collateral-consequences exception to the mootness doctrine. Any company ever suspended by IDOT, as well as anyone else ever subject to an adverse ruling by a court or administrative body, could make this same argument. If we allowed a moot appeal to go forward under the collateral-consequences exception in cases such as this, the exception would nearly eliminate the mootness doctrine.

So the appellate court threw out Bross’s appeal. Read the whole case, Chester Bross Construction v Department of Transportation, 2014 IL App (4th) 130164 (3/27/14), by clicking here.

More than 58 percent of the voters in Country Club Hills, Illinois passed a referendum that reduced the number of city aldermen from 10 to five. About three weeks later, a group of unhappy aldermen sued the county clerk. They asked the trial court for a preliminary injunction to void the referendum because, they argued, the clerk exceeded her authority by not including certain language on the ballot.

Two weeks later, the trial court denied the injunction request because the discontented aldermen still had time to file as independent candidates for one of the five alderman positions.

Instead, the aldermen appealed. They asked the appellate court to void the referendum result and to place the question, with the disputed language, on the next ballot. That election, at which the voters elected five aldermen, was held about four months later, while the appeal was still pending.

But the First District Illinois Appellate Court refused to hear the appeal because: (1) the election of the new aldermen to fill the five new positions already had been held, (2) rendering the appeal moot, and (3) an appellate ruling on the denial of the preliminary injunction would not trump the mootness doctrine. The public policy exception to the mootness doctrine did not apply because “an opinion from this court on the trial court’s denial of preliminary relief would not provide an authoritative determination of the issues at the heart lof this case … In the absence of a continuing legal controversy and finding no reason for the exception to the moootness doctrine to apply, we dismiss this appeal.”

Read the whole case, Davis v. City of Country Club Hills, 2013 IL App (1st) 123634, by clicking here.

Melissa Ramskugler had passed Wisconsin’s requirements to qualify as a police officer, but was still in the probationary period required by the Milwaukee Board of Fire & Police Commissioners. Knee injuries prevented her from finishing probation. She was fired because her medical condition prevented her from getting through probation.

Wisconsin statutes have mandatory procedures for terminating police officers. But the Board, taking the position that Ramskugler was not a “member of the force” because she had not completed probation, did not follow the state statutory procedures when it let Ramskugler go. So she and the Milwaukee Police Association sued the Board for depriving her of property without due process.

The Board asked for, and was given summary judgment by the trial court against Ramskugler. She and the Police Association appealed. While the appeal was pending in the Seventh Circuit Court of Appeals, Ramskugler settled her dispute with the Board. The Police Association wanted to continue the appeal despite the settlement. So the settlement allowed the Police Association to continue the appeal in hopes of getting a declaration that the Board did not have authority to ignore the procedures set out in the Wisconsin statutes.

Before reaching the merits of the Police Association’s claims, the appellate court addressed whether the Association had standing in view of Rumskugler’s settlement. That boiled down to a question of whether the settlement mooted the Association’s lawsuit.

The appellate court ruled that the Police Association’s claims were moot because: “If she [Rumskugler] were to file suit today, she would lack standing because she does not have a redressable claim – her Settlement Agreement waived any sort of relief this court could grant her. Without establishing standing in her own right, Ramskugler cannot be used by the MPA [Association] to satisfy the first requirement of associational standing.”

Nor did this case fall into the mootness exception for “challenges to policies with a ‘continuing and brooding presence.’” This is how the court explained it:

To qualify for that mootness exception, the ongoing policy must “by its continuing and brooding presence, cast[] … a substantial adverse effect on the interests of the petitioning parties” … Nothing of that sort exists here. As discussed, the MPA has not proffered any other member who is faced with Ramskugler’s predicament. Further still, the MPA has not referenced someone who was in that position previously, which implies that Ramskugler was merely trapped in a sparsely populated limbo. The MPA has not even pled a single injury-in-fact. As such, the MPA has given us no reason to find the continuing policy of a “brooding presence” over it, much less one with a “substantial adverse effect.”

The appellate court dismissed the Association’s appeal as being moot. The opinion contains instructive discussion about the relationship between standing and mootness, and about ripeness and mootness. Read the whole opinion, Milwaukee Police Association v. Board of Fire & Police Commissioners, No. 11-2314 (7th Cir. 2/26/13), by clicking here.

Michael Hooker suffered a debilitating injury while working for the Chicago Fire Department. After he died two years later, his widow, Elaine, applied to the Retirement Board of the Firemen’s Annuity and Benefit Fund for widow’s benefits. She was awarded a minimum annuity, but she felt the Board did not include all of the money she was entitled to when calculating the amount of the annuity.

The original case went to the appellate court and then back to the trial court. Elaine filed an amended complaint that asked for recalculation of the annuity based upon an Illinois statute that became law after she filed the first complaint. She argued she was entitled to certain retroactive benefits.

The trial court gave summary judgment to the Board on its method of calculating the annuity. Elaine appealed. She died after the appeal was filed, but her estate carried on the appeal.

The First District Illinois Appellate Court assessed whether it had jurisdiction over the appeal in light of Elaine’s death – i.e., whether Elaine’s death abated the right to retroactive benefits. The Board argued against appellate jurisdiction because the question hadn’t been put to the trial court. But the court disagreed, and ruled that appellate jurisdiction existed because the court could “render effective relief.” This is how the appellate court explained it:

This court lacks jurisdiction to decide an appeal if the parties no longer face an actual controversy, as when events make it impossible for this court to render effective relief to the appealing party … This court has jurisdiction to consider whether Elaine’s death makes her appeal moot. However, neither party has suggested that her death moots the appeal, and we see no reason to believe that her death would make her appeal moot. We will not extend our review of our jurisdiction to review an issue that the trial court never addressed, where the issue does not appear to moot the appeal, and where neither party argues that the issue moots the appeal. If the Board fails to pay Elaine’s estate the benefits it withheld from Elaine while she lived, the statutory process for challenging the Board’s refusal to pay benefits it owes should suffice.

In the end, Elaine’s method of calculating the anniuity prevailed too. Read the whole opinion, Hooker v. Retirement Board of the Firemen’s Annuity Benefit Fund of Chicago, 2012 IL App (1st) 111625 (7/18/12).

A group of citizens sued the City of South Bend, Indiana to prevent the city from giving land to a Catholic high school. The citizens claimed that giving the high school land was a gift of property to a religious institution, and violated the U.S. Constitution’s First Amendment’s establishment clause. The federal trial court ordered a preliminary injunction against transferring the property.

Rather than appeal, the City asked the trial court to modify the injunction to allow the City to sell the property to the school at an appraised value. The trial court denied the City’s request, ruling that the property should be sold to the highest bidder.

The City did not appeal that ruling either. Instead, it asked for another modification to open up bidding on the property. The court allowed that request. The school ended up purchasing the property as high bidder, and the trial court dissolved the injunction.

Then the City appealed, but not from the final judgment that dissolved the injunction. The City appealed only from the interlocutory orders that disallowed the original gift and the sale at the appraised value.

The Seventh Circuit Appellate Court dismissed the appeal for two reasons: (1) it was untimely, and (2) it was moot.

The appeal was untimely because an appeal from the final judgment did not extend the time the City had to appeal from the injunction order or the denial of the request to modify. Here’s how the court explained it:

Although the City is thus challenging two appealable orders—the initial injunction and the denial of the first modification that it sought (the modification that if granted would have permitted sale to the high school at the appraised value of the land)—the challenge is untimely. Had the City challenged the district court’s final order, the order dissolving the injunction, it could also have challenged any interim rulings that had not become moot … But the final order—the dissolution of the injunction—was sought by the City. A party cannot appeal a judgment that it won, unless it seeks a modification of the judgment … which the City does not. The only orders the City could have appealed from it failed to appeal from in time.

The appellate court also ruled that the appeal was moot. The court rejected the City’s argument that the issue in the case was capable of repetition but evaded review. The City argued that the trial court’s ruling could affect other similar land deals. But the court ruled “to allow this as a ground for permitting moot cases to be appealed would bring an unmanageable host of such cases into the appellate courts. A court would have to wrestle in every
case with uncertain questions about whether an injunction that had not been appealed had had or would have a future impact that should justify allowing an appeal even though it had become moot.”

Read the whole case, Wirtz v. City of South Bend, No. 11-3811 (7th Cir. 2/7/12), by clicking here.

Joe Rivera tried to run for an elected position as alderman in Chicago. But the Chicago Electoral Board upheld an objection to Rivera’s petition, preventing him from appearing on the election ballot.

Rivera then filed a petition in the trial court for review of the Board’s decision. Rather than serving the petition on the individual Board members or the Objectors, Rivera served their lawyers. The Objectors and the Board asked the trial court to dismiss Rivera’s petition because, they argued, the Illinois Election Code required Rivera to serve them personally, not through their attorneys.

The trial court agreed, and dismissed Rivera’s petition. Rivera appealed, but the election had passed by the time the appellate court considered the case. So the first question was whether the appeal was moot because it was impossible for the appellate court to reinstate Rivera to the election ballot.

The First District Illinois Appellate Court agreed that Rivera’s appeal was moot. But the court ruled it would consider the appeal anyway because it fell into the public-interest exception to the mootness rule. This is how the court explained its ruling.

… [A] reviewing court may address an otherwise moot issue pursuant to one of several exceptions: the public-interest exception, the capable-of-repetition exception, or the collateral-consequences exception … Regarding the public-interest exception, which is particularly applicable to election cases, mootness will be excused if there is a substantially public nature to the question involved, there is a need for an authoritative determination that will help guide our public officers, and there is a likelihood that the question will recur.

We find that the instant cause meets the public-interest exception to the mootness rules. Clearly, it involves questions of election law, “which inherently is a matter of public concern.” … And, the issue is likely to recur in future municipal elections. The sections of the [Illinois Election] Code in question–particularly, section 10-10.1–involve the most basic tenets of the specific legal procedure that must be followed to obtain review from the Board: the time allowed in which to file a petition for judicial review and the steps required to effectuate service. Therefore, an authoritative determination on these issues is desirable to guide public officers. Accordingly, we decline to dismiss the instant appeal as moot.

Rivera ultimately lost the argument over service. He was required to serve the individual Board members and the Objectors, not their attorneys. Read the whole opinion, Rivera v. City of Chicago Electoral Board, 2011 IL App (1st) 11028), by clicking here.

Nicholas L. had been living at the Elmhurst Memorial Hospital for about a month when the State of Illinois filed a petition to administer electroconvulsive therapy and psychotropic medication. The trial court heard testimony on the State’s petition, then ruled in favor of the State.

Nicholas appealed, arguing that the State did not comply with the Mental Health and Disabilities Code because it did not give Nicholas written notification of alternative treatments. The State first argued the appeal was moot because the trial court’s order allowing the State’s petition already had expired. Nicholas argued the appellate court should consider the case anyway because the public-interest exception to the mootness doctrine applied. Because the question in the case involved the State’s compliance with the Mental Health Code, the Second District Illinois Appellate Court agreed with Nicholas and heard the appeal. Here is the appellate court’s rationale.

[T]he question presented by respondent [Nicholas] involves the issue of statutory compliance and thus qualifies as a matter of a public nature. Moreover, the vast number of cases addressing the issue of compliance with section 2-102(a-5) [requiring the State to give the patient information about alternative treatments] … indicates both a need for an authoritative determination for the future guidance of public officers and the likelihood of future recurrence … We also confirm respondent’s assertion that no published opinion in our state has addressed the specific issue of failure to provide written notification solely of alternative treatment options. Accordingly, the public-interest exception is applicable to respondent’s contention regarding statutory compliance.

The appellate court ultimately reversed the trial court because “psychotropic medication is invasive and includes possibly significant side effects, and because involuntary administration implicates important liberty interests, courts must exercise caution in entering such orders and require “firm proof” of the necessary statutory elements.”

Read the whole case, In re Nicholas L., No. 2-09-1181 (2/16/11), by clicking here.

A trial court ruled Benjamin Hernandez was a sexually violent person. Before he could be released from prison, the Illinois Sexually Violent Commitment Act required an outpatient facility to write a conditional release plan. The court ordered the plan to be written, but two years later, it still had not been prepared.

The trial court then ordered that Hernandez “is to be placed on conditional release.” The court also ordered a conditional release plan to be filed within three months.

The State appealed, but filed its notice of appeal before the conditional release plan was filed and before the trial court made a written order of releasing Hernandez. The plan later was accepted by the trial court and Hernandez was released from custody.

But about 20 months later, before the case was considered by the Illinois Supreme Court, Hernandez was returned to the State’s custody for violation of the conditional release plan. He actually was back in custody when the appellate court considered the case, but no one informed the court in briefs or oral argument. So the first question in the supreme court was whether the State’s appeal was moot.

Both parties agreed the appeal was moot because the State had gotten what it wanted: Hernandez’s return to custody. The legal question was whether the public interest exception to the mootness doctrine applied. The supreme court ruled that the exception did not apply in this case because there was no “conflict or disarray” in the law that governs when an appeal from a conditional release under the Sexually violent Commitment Act may be taken.

The supreme court gave two reasons for why there was no “conflict or disarray.”

1. Because the appellate court ruled after Hernandez was back in the State’s custody, the appellate court’s ruling also was moot. And because it was moot, the supreme court vacated the appellate court’s ruling. There was no “conflict or disarray” because there really was no appellate court ruling at all.

2. In addition, the supreme court ruled that the question of the correct time to appeal a ruling under the Act was a question of first impression. A question of first impression, the supreme court said, could not be the basis for “conflict or disarray.”

The State also argued that dismissing its appeal would leave the State not knowing the right time to appeal from a conditional release order under the Act – when the trial court states it will release the offender, or only after a conditional release plan is accepted by the trial court. The supreme court rejected that argument because the State had the option of filing more than one notice of appeal. “… [A]ny time a party is genuinely confused about which of a court’s orders is the final order, it may always protect itself by filing multiple notices of appeal.”

The Illinois Supreme Court dismissed the appeal and vacated the appellate court’s ruling. Read the whole case, In re Commitment of Hernandez, No. 108824 (11/18/10), by clicking here.

John Walsh was the president of his condominium association. Certain members of the association felt the developer committed fraud in connection with the conversion of the apartment building to a condominium. So the association sued the developer.

Two companies and two individuals were involved in the condo conversion – Sixty Thirty LLC; Wright Management LLC; W. Andrew Wright; and James Wright. Andrew and James were members of Sixty Thirty and Wright Management, and another related company, Wright Development Group LLC. The condo association did not sue Wright Development.

About two months after the association filed its fraud lawsuit, the local alderman held a meeting to give the residents “a public forum to communicate the problems they had experienced with developers and contractors building and renovating condominium buildings in the ward.” Walsh attended the meeting, and spoke about problems at the condo and the fraud lawsuit.

During a “mingling” session after the meeting, Walsh was interviewed by a newspaper reporter about the problems at Walsh’s condo . Walsh referred to the developer as Wright Development Group” or “The Wright Group,” “Because that’s what it is. It’s the Wright Group. It’s the Wrights … [W]henever I think of the developer, I think of the Wrights because to me that’s the developer … I think of Andrew and Jamie.”

After Walsh’s interview was published in a local newspaper, Wright Development sued Walsh for defamation, alleging he knew the real identity of the developer was Sixty Thirty LLC, not Wright Development. Walsh asked the trial court to dismiss Wright’s complaint under the Illinois Code of Civil Procedure. Before the trial court ruled on that request, Walsh also asked the court to dismiss the case under the Illinois Citizen Participation Act. That Act prohibits SLAPP lawsuits (Strategic Lawsuits Against Public Participation) – cases against citizens who are sued for their actions in exercising their political rights. Walsh claimed his statements to the reporter were an exercise of his political rights.

The trial court denied Walsh’s request to dismiss under the Citizen Participation Act, but later granted Walsh’s request to dismiss under the Code of Civil Procedure. Walsh appealed the denial of his request under the Act. Even though the case had been dismissed, Walsh complained he was denied statutory immunity and mandatory attorney fees under the Act.

The appellate court ruled Walsh’s appeal was moot, and dismissed it. The appeal was moot, the appellate court stated, because Walsh got his dismissal, “albeit on a different basis” than the Act, so “any action by this [appellate] court would constitute an advisory opinion.”

Walsh then appealed the mootness ruling to the Illinois Supreme Court. The supreme court ruled the appeal was not moot because the Act gave Walsh rights that were not considered by the appellate court. This is how the supreme court explained it:

The instant appellate court’s failure to undertake the question of whether the plaintiff’s [Wright Development] lawsuit could be identified as a SLAPP directly contradicts the legislature’s explicit expression of public policy regarding the efficient process to identify and adjudicate SLAPPs … The mootness finding also contradicted the legislature’s express finding of public policy in favor of an award of attorney fees and costs to prevailing movants [who successfully defend a case under the Act].

Further, there was, in fact, a potential injury to Walsh. Walsh was denied the relief requested in his Act motion to identify Wright Development’s lawsuit as a SLAPP and for a statutory award of attorney fees and costs – an entitlement not available with the mere [Code of Civil Procedure]section 2-615 dismissal.

Ultimately the supreme court ruled Walsh had immunity from Wright’s defamation lawsuit under the Citizen Participation Act, and the case was sent back to the trial court for an award of Walsh’s attorney fees. Read the whole case, Wright Development Group v. Walsh, No, 109463 (10/21/10), by clicking here.

This case involved another dispute about whether an involuntary commitment to a hospital and administration of psychotropic drugs was proper. James H. was diagnosed as schizophrenic. The State’s psychiatrist considered James to be a threat to himself and to the public.

James was admitted to a hospital against his wishes for 90 days. He disputed the commitment, but by the time his case was heard in the appellate court, it was moot because the 90-day commitment period lapsed. So the first question for the appellate court, as it is with so many involuntary commitment cases, was whether the mootness doctrine prohibited the court from considering the dispute.

James argued the collateral-consequences exception to the mootness doctrine allowed the appellate court to review his case. “This exception applies where the respondent [James] could be plagued by the adjudication at issue … Respondent argues if faced with civil commitment again, having once been judged mentally ill and in need of commitment, he would now have a history of mental illness which would work against him.” The record showed that James previously had been hospitalized because of mental problems, but it was unclear whether that hospitalization was involuntary.

In this case, because some of James’s delusions were directed toward President Obama, the United States Secret Service had been informed of James’s condition. The Fourth District Illinois Appellate Court concluded the collateral-consequences exception did not apply because James’s history before this case showed collateral consequences already existed. Here is the court’s reasoning.

… [T]he fact the Secret Service was notified and interviewed respondent prior to the beginning of these commitment proceedings means collateral consequences have already attached. The Secret Service will likely continue to monitor respondent’s whereabouts.

In fact, in the comprehensive psychiatric report admitted into evidence, it is noted the Secret Service asked to be notified when respondent is discharged. Even if the commitment order is reversed, respondent will remain of interest to the Secret Service. The descriptions of his behavior in this case, his earlier hospitalization, and the scrutiny of the Secret Service are now part of respondent’s history.

Contrast this case with In re Joseph P., in which the same appellate court ruled, just a day before the ruling in James’s case, the collateral-consequences exception did apply to a first involuntary commitment. A summary of Joseph’s case, with a link to the opinion, appears two entries below, January 6, 2011. You can read In re James H., 4-10-0260 (12/23/10), by clicking here.