Rose Bogaert v. Terri Land ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0365p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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ROSE BOGAERT,
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Plaintiff-Appellee,
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Nos. 08-2130/2131/2140
v.
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TERRI LYNN LAND, Individually and in her official -
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capacity as Michigan Secretary of State,
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Defendant-Appellant (08-2130),
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ANDREW DILLON,
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Intervenor-Appellant (08-2131),
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WAYNE COUNTY CLERK CATHY M. GARRETT;
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WAYNE COUNTY ELECTION COMMISSION,
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Intervenors-Appellants (08-2140).
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Filed: October 8, 2008
Before: CLAY, GILMAN, and ROGERS, Circuit Judges.
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ORDER
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The plaintiff is the sponsor of a petition to recall a Michigan state legislator from office. In
June 2008, Michigan Secretary of State Terri Lynn Land, invoking the provisions of M.C.L.
§ 168.957, declared that the plaintiff had not obtained the required number of votes to put the recall
issue on the ballot. The plaintiff then filed this civil rights action asserting that M.C.L. § 168.957
violated the First Amendment. She also filed a motion for a preliminary injunction ordering
Secretary Land to re-examine the recall petitions without applying the challenged state statute.
Representative Andrew Dillon, the subject of the recall petition, was permitted to intervene, as were
Wayne County Clerk Cathy M. Garrett and the Wayne County Election Commission – the latter two
being responsible for the final preparation of the ballot in the state legislative district represented
by Dillon.
On August 27, 2008, the district court granted a preliminary injunction directing Secretary
Land to re-examine the submitted petitions without applying M.C.L. § 168.957, and, if she found
that the plaintiff had submitted sufficient signatures, to certify the recall initiative for placement on
the November 2008 general election ballot. Secretary Land and the intervenors (hereinafter
collectively referred to as “the appellants”) filed notices of appeal and moved this court for a stay
of the preliminary injunction pending appeal. This court denied those motions in an order of
1
Nos. 08-2130/2131/2140 Bogaert v. Land et al. Page 2
September 9, 2008. Secretary Land subsequently completed her re-examination of the submitted
petitions and certified the recall initiative for placement on the general election ballot. That ballot
has now been prepared and sent to the printers.
In light of the above developments, the plaintiff now moves for the dismissal of all three
appeals on the ground of mootness. The plaintiff argues that Secretary Land has fulfilled all of the
obligations required of her under the preliminary injunction, that her actions are irrevocable, and that
this court can no longer render relief in the immediate appeals. The appellants oppose such
dismissal by arguing that this court could still award relief to them through the November election
and until such time as the ballots are tabulated and certified as final. The Wayne County intervenors
also argue that there is still time to inform voters that the recall initiative has been removed from the
ballot or to program scanning equipment not to count any votes cast on the recall initiative.
All parties agree that the specific steps required by the preliminary injunction have been
completed and that those steps cannot be undone at this time. The concerns expressed by our
dissenting colleague appear to us to fall outside the scope of the preliminary injunction, which we
do not view as “revocable” simply because the future course of the litigation could alter its effects.
Dismissal of these preliminary-injunction appeals, of course, does not render moot the underlying
district court litigation. Should there be a dispute as to further steps in the election process that were
not addressed in the preliminary injunction, the parties are free to seek interim relief in the district
court. Should the district court enter further orders or a judgment in the action pending before it,
an adversely affected party or parties may seek further review in this court as permitted by the
normal appellate process.
Furthermore, the appellants’ argument that their appeals are not moot is based solely on the
possibility that this court may render, before the date of the general election, an opinion that will
negate the preliminary injunction entered by the district court. This hypothetical opinion would
presumably require the appellants to take measures affecting the voting process or the tabulation
of votes such that the recall vote would have no effect. The appellants, however, have thus far
sought only a stay of the preliminary injunction – a remedy this court denied in its order of
September 9, 2008. They did not seek reconsideration of that order and did not move for expedited
consideration of their appeals or request expedited briefing schedules. As a result, the briefing
necessary for full appellate review in this matter will not have been completed until well after the
general election has taken place and the votes tabulated. What may be possible in theory does not
conform to the realities of the situation before us. We therefore conclude that the pending appeals
are moot.
It therefore is ORDERED that the motions to dismiss are granted.
Nos. 08-2130/2131/2140 Bogaert v. Land et al. Page 3
CLAY, Circuit Judge, dissenting. Just three weeks ago, this Court resorted to legal
technicalities to deny appellants’ emergency motions seeking to stay the district court’s preliminary
injunction. In my opinion, that decision improperly deprived Representative Dillon and Secretary
of State Land of their right to have their claims considered on the merits. Today, the Court adopts
that same approach, and in doing so once again improperly deprives the litigants, and indeed the
citizenry of the State of Michigan, of a forum for the proper consideration of these important issues.
According to the majority, these appeals are now moot because appellants have not yet
requested expedited consideration of their appeals and thus their opposition to the present motion
rests merely on the “possibility that this court may render, before the date of the general election,
an opinion that will negate the preliminary injunction entered by the district court.” In other words,
the majority finds these appeals moot because, absent expedited consideration, the normal course
of briefing provided for in Rule 31 will not be completed before the election. But that cannot be the
legal test for determining mootness. Mootness is a jurisdictional question that serves to define the
reach of the federal courts. Mootness thus turns on the nature of the claims presented and whether
the courts can offer meaningful relief to the parties, not on guesswork regarding what course briefing
may take in a case. This Court’s jurisdiction to hear an appeal certainly does not turn on whether
the briefing schedule provided for in Rule 31 can be followed.
Contrary to the characterization of the majority, appellants are not arguing that it is the
possibility that this Court may issue an opinion before the November election that defeats mootness
here, but rather the capability of this Court to still render meaningful relief up until that time. At
this point, the Court simply does not know whether appellants will seek expedited briefing or choose
to pursue other legal maneuvers to have their claims considered before the election. But what we
do know is that appellants’ papers make clear that meaningful relief may still be had up until the
election has occurred and the results have been finalized. Until such time as meaningful relief is no
longer available, dismissing these appeals as moot would be premature. At a minimum, the Court
should either request further briefing on the availability and practicality of alternative relief, or at
least advise appellants that the Court is inclined to dismiss the appeals unless expedited briefing is
requested immediately.
Because the majority’s dismissal order is predicated on an overly narrow understanding of
the mootness doctrine and apparent guesswork regarding the future course of briefing, I respectfully
must dissent.
I.
Representative Andrew Dillon represents the 17th House District in the Michigan House of
Representatives. He also is the Speaker of the House. Plaintiff-Appellee Rose Bogaert is a resident
of the 17th House District. On October 1, 2007, Representative Dillon voted in favor of an increase
in the state income tax and to extend the state sales tax to certain services. Based on this vote,
Plaintiff initiated a campaign to recall Representative Dillon.
On October 12, 2007, Plaintiff filed a recall petition against Representative Dillon with the
Wayne County Clerk. Under M.C.L. § 168.952(3), the Wayne County Election Commission (the
“Commission”) is charged with determining whether the recall petition is “of sufficiently clarity.”
On November 1, 2007, the Commission determined that the recall petition was not sufficiently clear,
and rejected the petition. As provided for under M.C.L. § 168.952(6), Plaintiff filed an appeal from
the Commission’s decision in Wayne County Circuit Court. On January 18, 2008, the circuit court
approved Plaintiff’s recall petition as sufficiently clear for purposes of M.C.L. § 168.952(3).
Representative Dillon appealed that decision to the Michigan Court of Appeals. While that appeal
was pending, Plaintiff moved forward with the recall petition drive.
Nos. 08-2130/2131/2140 Bogaert v. Land et al. Page 4
Following the approval of a recall petition, Michigan law affords a party 90 days to collect
a sufficient number of signatures to place the recall on the ballot. In this case, Plaintiff apparently
had until May 2, 2008 to collect sufficient signatures. Under Michigan law, 8,724 valid
signatures—a figure equal to one-quarter of the number of people that voted in the last gubernatorial
election in the 17th District—were required to place the recall on the ballot. 1On May 1, 2008,
Plaintiff submitted 15,737 signatures to the Secretary of State for review. Under M.C.L.
§ 168.961a(2), Representative Dillon and other opponents of the recall had 30 days to challenge the
validity of the submitted signatures, including the 2,053 signatures at issue here. Representative
Dillon contends that, because he relied on the Secretary’s anticipated enforcement of M.C.L.
§ 168.957, he did not conduct a substantive review of those signatures that were collected by recall
petition circulators who were not registered to vote in the 17th District, and instead focused his
attention on challenging the validity of the other 13,000 signatures.
Based on her review of the submitted signatures, and after considering Representative
Dillon’s various 2challenges, the Secretary concluded that the petition was support by only 7,948
valid signatures, 776 less than the number required to place the recall on the ballot, and thus
rejected the petition on June 5, 2008. In particular, the Secretary determined that 2,053 signatures
were invalid under M.C.L. § 168.957 because they were collected by petition circulators who were
not registered to vote in the 17th District.3 Specifically, the Secretary determined that 14 circulators
were not registered to vote in the district and 4 other circulators registered sometime after they began
collecting signatures. Plaintiff claims that her own signature in support of the recall petition was
among the signatures rejected by the Secretary under M.C.L. § 168.957.
One day later, on June 6, 2008, Plaintiff filed an emergency motion in the Michigan Court
of Appeals seeking a writ of mandamus to compel the Secretary to reexamine the 2,053 petition
signatures she found facially invalid under M.C.L. § 168.957. In an order issued on June 10, 2008,
the Michigan Court of Appeals denied without comment Plaintiff’s mandamus motion. Plaintiff
immediately sought leave to appeal to the Michigan Supreme Court. On June 11, 2008, the
Michigan Supreme Court denied Plaintiff’s application for leave to appeal, stating only that the court
was “not persuaded that the questions presented should be reviewed by this Court.” Bogaert v. Sec’y
of State, 749 N.W.2d 743 (Mich. 2008). On June 13, 2008, the Michigan Supreme Court issued a
second order again denying leave to appeal and reiterating that the court was “not persuaded that
the questions presented should be reviewed by this Court.” Bogaert v. Sec’y of State, 749 N.W.2d
751 (Mich. 2008).
With the state courts having washed their hands of the issue, Plaintiff filed the instant action
on July 18, 2008 in the United States District Court for the Western District of Michigan. Plaintiff
moved pursuant to 42 U.S.C. § 1983 for a preliminary injunction to compel Terri Lynn Land, in her
official capacity as the Michigan Secretary of State, to reexamine the 2,053 contested signatures and
to certify all signatures that she determined to be otherwise valid. Plaintiff’s motion rested primarily
on the claim that M.C.L. § 168.957 violates the First Amendment. Representative Dillon moved to
intervene, as did Wayne County Clerk Cathy M. Garrett and the Wayne County Election
1
The Secretary of State is charged with determining the sufficiency of signatures appearing on all recall
petitions submitted for review within 35 days of filing, and to declare the sufficiency or insufficiency of the petition.
M.C.L. § 168.963.
2
The Secretary rejected as invalid 5,736 signatures for reasons not at issue in the instant lawsuit.
3
M.C.L. § 168.957 specifies that each petition must contain a Certificate of Circulator stating that the circulator
attests to being a “qualified and registered elector of the election district of the official sought to be recalled.” The
certificate explains that a circulator making a false statement in completing the certificate may be guilty of a
misdemeanor.
Nos. 08-2130/2131/2140 Bogaert v. Land et al. Page 5
Commission (collectively the “Wayne County Intervenors”). Without awaiting a response from
Plaintiff, the district court granted the motions for intervention. Bogaert v. Land, No. 1:08-CV-687,
2008 WL 2952006 (W.D. Mich. Jul 29, 2008).
After receiving full briefing from the parties, the district court held a hearing and permitted
argument on July 31, 2008. After that hearing, the district court informed the parties that it would
accept supplemental briefing on the issue. The parties submitted supplemental briefs two weeks
later. On August 27, 2008, the district court granted Plaintiff a preliminary injunction based on its
conclusion that M.C.L. § 168.957 likely violated the First Amendment. Bogaert v. Land, ___ F.
Supp. 2d ___, 2008 WL 3915148 (W.D. Mich. Aug. 27, 2008). The injunction ordered the Secretary
to reexamine the 2,053 signatures at issue, and to certify any of those signatures that were not
invalid for other reasons. Id. at *22. Because the Secretary previously determined that 7,948 of the
signatures submitted by Plaintiff in support of the recall petition were valid, the district court’s order
obviously held the potential to require the Secretary to reinstate more than the 776 additional
signatures necessary to place the special recall election on the November ballot.
On August 28, 2008, Representative Dillon filed an emergency Rule 60(b) motion for
reconsideration challenging the court’s conclusions. Representative Dillon’s motion also raised a
Due Process claim challenging whether the contested signatures could be reexamined without also
permitting him time to make additional challenges to their validity under M.C.L. § 168.961a. The
Secretary then moved in the district court to stay the injunction, but only if the district court
“grant[ed] in whole or in part” Representative Dillon’s motion for reconsideration. On August 29,
2008, the district court denied Representative Dillon’s 60(b) motion, holding that “Michigan law
does not guarantee that state representatives will be given a second opportunity to challenge recall
petitions[.]” Bogaert v. Land, ___ F. Supp. 2d ___, 2008 U.S. Dist. LEXIS 66481, at *3 (W.D.
Mich. Aug. 29, 2008). Having denied Representative Dillon’s motion for reconsideration, the
district court dismissed the Secretary’s conditional motion to stay as moot. Id. at *4.
On August 28, 2008, the Secretary filed a Notice of Appeal to this Court. On September 2,
Representative Dillon also filed a Notice of Appeal. Neither party, however, moved for expedited
consideration. Instead, Representative Dillon and the Secretary filed separate emergency motions
in this Court seeking to stay the preliminary injunction. Significantly, however, neither the
Secretary nor Representative Dillon first moved in the district court for a stay of the injunction. On
September 9, 2008, despite the extraordinary circumstances of this case and the fact that the
Secretary’s motion specifically explained why moving in the district court first would have been
impracticable, this Court, over my objection, denied the motions for failure to comply with Rule 8
of the Federal Rules of Appellate Procedure.
A week later, Plaintiff filed the instant motion seeking to dismiss the pending interlocutory
appeals as moot on the grounds that the Secretary now has fully complied with the terms of the
district court’s preliminary injunction order and, critically, that the Secretary’s actions are
irrevocable.4 The Secretary and the Wayne County Intervenors oppose the motion to dismiss,
arguing that the effect of the Secretary’s certification is not irrevocable until the election is
completed and the results are tabulated and certified.
4
Although Plaintiff’s motion to dismiss seems to designate that she is moving only in Case No. 08-2130, and
in fact was filed in that case only, it is apparent from the parties identified in the caption and the substantive arguments
in the motion that Plaintiff seeks dismissal of all three appeals related to this matter, including Representative Dillon’s
appeal in Case No. 08-2131, and the Wayne County Intervenors’ appeal in Case No. 08-2140.
Nos. 08-2130/2131/2140 Bogaert v. Land et al. Page 6
II.
Shortly after the district court denied Representative Dillon’s 60(b) motion and the
Secretary’s conditional motion to stay the injunction, the Secretary began the court-ordered
reexamination of the 2,053 previously stricken recall petition signatures. On September 5, 2008,
the Secretary of State’s Director of Elections informed Representative Dillon that the reexamination
had been completed and that the Secretary had determined that 958 of the 2,053 contested signatures
were deemed valid. Adding these signatures to the previously-certified total, the Secretary
concluded that the recall petition is supported by 8,903 valid signatures, 179 more than necessary
to place the recall on the November ballot. Pursuant to M.C.L. § 168.963, the Secretary declared
that the recall petition was supported by sufficient signatures, and thus directed that the special recall
election of Representative Dillon be placed on the November ballot.
On September 8, 2008, the Secretary certified the November 4, 2008 ballot and submitted
it to the 83 county election commissions. The Wayne County Election Commission then informed
Representative Dillon that the special recall election would be placed on the ballot, and solicited his
“justification of conduct in office” statement as provided for under M.C.L. § 168.966(2). After
Representative Dillon submitted his justification statement, Plaintiff filed a complaint and
emergency motion for a temporary restraining order in Michigan’s Third Judicial Circuit Court. On
September 12, 2008, the circuit court granted Plaintiff’s motion and ordered 3 sentences be stricken
from Representative Dillon’s justification statement. On September 15, 2008, the Wayne County
Clerk and Election Commission approved the ballot and submitted it to the printer. Although the
present status of the ballots is unclear from the parties’ submissions, the parties seem to agree that,
as of September 15, 2008, the printer already had begun printing the ballots.
The question before us now is whether the Secretary’s actions to comply with and fulfill the
terms of the district court’s preliminary injunction order render the appellants’ interlocutory appeals
from that order moot.5 For the reasons set forth below, I am forced to conclude that the appeals are
not moot and thus dissent from the majority’s order granting Plaintiff’s motion to dismiss.
III.
Because the exercise of judicial power under Article III of the Constitution depends on the
existence of a live case or controversy, U.S. CONST. art. III § 2, mootness is a jurisdictional question.
The Constitution’s case or controversy requirement precludes courts from rendering advisory
opinions and confines the jurisdiction of the courts to “real and substantial controvers[ies] admitting
of specific relief through a decree of a conclusive character. . . .” North Carolina v. Rice, 404 U.S.
244, 246 (1971) (citation omitted). Accordingly, the courts lack jurisdiction to consider any case
or issue that has “lost its character as a present, live controversy” and thereby becomes moot. Hall
v. Beals, 396 U.S. 45, 48 (1969). “‘Simply stated, a case is moot when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’” International Union
v. Dana Corp., 697 F.2d 718, 720-21 (6th Cir. 1983) (quoting Powell v. McCormack, 395 U.S. 486,
496 (1969)).
5
It is important to note that the parties agree, and the majority recognizes, that the case before the district court
is not moot because future recall drives may confront the same constitutional issues. As to the matter now before this
Court, however, there is no contention that the interlocutory appeals from the preliminary injunction fall within the
“capable of repetition, yet evading review” exception. See Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515
(1911). Nor would that exception apply here in any event. That doctrine applies only if there is “a reasonable
expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423
U.S. 147, 149 (1975). While some short-term injunctions might fall within this doctrine, this is not such a case because
there is no reasonable basis for expecting that Representative Dillon or the Secretary will be subjected to a similar
preliminary injunction before the merits of the underlying controversy are resolved by the district court.
Nos. 08-2130/2131/2140 Bogaert v. Land et al. Page 7
In the context of an appeal from a preliminary injunction order, the Supreme Court has
declared that such an appeal becomes moot when “the terms of the injunction . . . have been fully
and irrevocably carried out.” University of Texas v. Camenisch, 451 U.S. 390, 398 (1981). The
relevant question here then is whether the terms of the preliminary injunction have been “fully” and
“irrevocably” carried out.
The party asserting mootness bears the burden of demonstrating these elements. Cleveland
Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 530-31 (6th Cir. 2001). In fact, the moving
party bears a “heavy burden” and must show that “subsequent events make it absolutely clear that
the allegedly wrongful behavior cannot reasonably be expected to recur and ‘interim relief or events
have completely and irrevocably eradicated the effects of the alleged violation.’” Id. at 530-31(emphasis added) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). Accord
United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953) (The burden of demonstrating mootness
“is a heavy one.”).
IV.
Although the parties seem to agree that the facial terms of the district court’s order have been
fulfilled, appellants dispute whether the Secretary’s actions are irrevocable. Specifically, the
Secretary and Wayne County Intervenors contend that, even if the certified ballot cannot be revoked
or reprinted, the potential for this Court to grant alternative relief precludes dismissing the appeals
as moot.
As to the first factor, I agree that the Secretary has fully complied with the terms of the
district court’s preliminary injunction order. The district court ordered the Secretary to
(1) reexamine the signatures submitted in support of the recall petition without the constraints
imposed by M.C.L. § 168.957; and (2) if she determined that the petition was supported by sufficient
valid signatures, to certify the recall petition and place the special recall election on the November
4, 2008 ballot. There is no real dispute that the Secretary has fulfilled both of these directives.
On September 5, 2008, the Secretary completed the reexamination ordered by the district
court. Based on that review, the Secretary determined that the recall petition was supported by
enough valid signatures to be placed on the November ballot. The Secretary then certified the ballot
and submitted it to the various county election boards. After receiving Representative Dillon’s
justification statement, the ballot was submitted to the printer. Thus, there seems little doubt that
the Secretary already has complied with the facial requirements of the injunction order.
As to the second issue, however, the parties dispute whether the Secretary’s actions are
“irrevocable.” Plaintiff maintains that it is too late to remove the special recall election from the
November ballots. Neither the Secretary nor the Wayne County Intervenors contend that the
Secretary has the authority or the ability to somehow revoke or otherwise cancel the ballot at this
juncture, let alone that there is sufficient time to resubmit an amended ballot to the printers at this
late date. Absent that, it appears that the Secretary’s compliance with the facial requirements of the
district court’s order cannot be undone.
Nevertheless, the Secretary and Wayne County Intervenors contend that this Court, should
it determine that the preliminary injunction was improperly granted, still has the ability to provide
meaningful relief from the effects of the Secretary’s actions. Given the availability of meaningful
relief, the Secretary and the Wayne County Intervenors argue that the Secretary’s actions are not
irrevocable until after the election has occurred and the results of the special recall election have
been tabulated and finalized.
Specifically, the Wayne County Intervenors explain that Wayne County now employs optical
scanning equipment to tabulate election results. The County thus claims to be able to program the
Nos. 08-2130/2131/2140 Bogaert v. Land et al. Page 8
tabulation equipment to not count the results of specific ballot issues, in this case, the special recall
election of Representative Dillon. In addition, the County also contends that this Court could order
notices be posted in voting precincts to warn voters that their votes on the recall will not be counted.
Relying on State of Michigan v. Wayne County Clerk, 648 N.W.2d 202 (Mich. 2002), the County
argues that such at-precinct warnings can be used “to inform prospective voters that [an issue] has
been removed from the ballot by court order and that votes on it will not be counted.” Id. at 205.
In addition, there may even be post-election challenge procedures that could provide an avenue for
meaningful relief.
Given the potential availability of meaningful relief, and in light of the “heavy burden” that
Plaintiff bears, I am forced to conclude that dismissing these appeals as moot would be premature
at this juncture. To be clear, my conclusion that dismissal is premature does not imply that I believe
the alternative relief options identified by the Secretary and Wayne County Intervenors are
warranted, viable, or practical. But considerations regarding the practicality of granting such relief
have no bearing on whether the appeals are moot, which is a jurisdictional question, separate and
distinct from the propriety of granting any such relief. Therefore, as to the narrow issue before us,
I conclude only that the potential availability of such relief demonstrates that further review by this
Court can still have a meaningful effect on the parties. See International Union, 697 F.2d at 721(dismissing appeal as moot where parties incorporated injunction terms into settlement agreement
because “review of the propriety of the injunction would have no effect on the parties”).
This Court and other Circuits repeatedly have held that an appeal from a preliminary
injunction ordering an issue or candidate to be placed on or stricken from a ballot becomes moot
when the election is completed and the results final. See, e.g., Operation King’s Dream v. Connerly,
501 F.3d 584, 591 (6th Cir. 2007) (“The Plaintiffs’ request for injunctive relief has become moot.
Proposal 2 was certified for the ballot; Proposal 2 was included on the ballot; the November 2006
election took place; the Michigan voters approved Proposal 2; and Michigan’s constitution was
accordingly amended. Simply put, the opportunity to keep Proposal 2 off the November 2006
general election ballot has long since passed.”); Padilla v. Lever, 463 F.3d 1046, 1049 (9th Cir.
2006) (“The plaintiffs[’] . . . claim for injunctive relief [preventing the election] has become moot.
The recall election has occurred, and the term of office filled by that election has expired.”);
Gjersten v. Bd. of Election Comm’rs, 751 F.2d 199, 202 (7th Cir. 1984) (“[I]f we now order the
injunction vacated, as the defendants ask us to do, it will be too late to take the plaintiffs’ names off
the ballot and run the primary without them, as the primary is over and done with, and the
defendants do not ask that it be ordered rerun.”). As these cases demonstrate, an appeal from a
preliminary injunction under these circumstances becomes moot after the election has occurred and
the results have been finalized. Plaintiff has offered no authority—and I am aware of none and the
majority certainly points to none—that suggests that an appeal from a preliminary injunction in these
circumstances becomes moot before the election occurs and where meaningful relief is potentially
available.
The fact that the election has yet to occur presents a unique situation where the Secretary has
complied with the facial requirements of the district court’s order, and yet meaningful relief may still
be available. The fundamental question is whether these alternative means of relief could provide
meaningful relief to the parties in the event that the Court determines that the preliminary injunction
was improperly granted. It seems apparent that notifying voters that the special recall election has
been stricken from the ballot and not tabulating election results would effectively nullify the
Secretary’s compliance with the district court’s order. Because relief remains available, I must
conclude that the appeals are not moot. See Rice, 404 U.S. at 246 (mootness arises only where the
court’s resolution of the questions presented “cannot affect the rights of litigants”).
Simply put, the majority’s finding of mootness is based on an overly restricted view of the
mootness doctrine, not to mention premature guesswork about the future course of these appeals.
Nos. 08-2130/2131/2140 Bogaert v. Land et al. Page 9
As this Court has stated, an appeal becomes moot only where subsequent events “have completely
and irrevocably eradicated the effects of the alleged violation.” City of Parma, 263 F.3d at 530-31.
To dismiss these appeals simply because the Secretary has complied with the facial requirements
of the order, even though the suggested alternatives may provide meaningful relief from the effects
of those actions, is contrary to settled precedent. And to do so based on nothing more than mere
supposition that the parties will not seek to expedite the briefing schedule is premature at best.
At a minimum, the Court should request further briefing on the proposed relief alternatives
suggested by the Secretary and the Wayne County Intervenors, or at least advise appellants that we
are inclined to dismiss the case as moot unless they request expedited consideration forthwith. Such
an order is well within this Court’s inherent authority. See, e.g., Professional Air Traffic Controllers
Org. v. Fed. Labor Relations Auth., 685 F.2d 547, 556 (D.C. Cir. 1982) (“In recognition of the
urgency of the case and the public interest in a prompt disposition, the court ordered sua sponte
expedited briefing and oral argument.”). As Justice Marshall noted in dissent in Honig v. Students
of California School for Blind, 471 U.S. 148 (1985) (per curiam):
Although I agree with the majority that a case such as this could be moot if the full
burden imposed by the preliminary injunction has passed, it is not at all clear that
that is the situation here. If this case is moot, the facts making it moot occurred
subsequent to the Court of Appeals decision, and so do not appear on the record. . . .
Since the Court has not requested any supplemental information or argument from
the parties, the Court is determining that the case is moot without a clear
understanding of the facts of the case or their precise legal implications for the
parties. I cannot accept that the Court can simply assume, as a factual matter, that
mootness exists. We should inform the parties of our suspicion as to mootness and
allow briefing on the issue. Absent this procedure, I dissent.
Id. at 150 (Marshall, J., dissenting). Such an approach seems all the more appropriate here where
the basis of the dismissal order seems to hang on appellants’ failure to request expedited briefing
and the possibility of alternative relief has not been fully briefed by the parties. For the majority to
conclude that these appeals are moot without giving due consideration to these issues is
irresponsible. Therefore, I respectfully dissent.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
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Clerk