Defendant Gets the Moot

By Daniel Richardson

In re Unnamed Defendant, 2011 VT 25 (Mem.)

One of the important concepts in the law is the need for an active issue before a court can make a ruling.  Unlike comic books, parties cannot petition the court to resolve “What if?” cases.  But the multiverse’s loss is our gain as we do not have to pay the court to run through a bunch of hypotheticals or suffer a judgment “because we came up with it in a simulation.”  Courts decide cases one at a time, based on the facts on the ground and what is really at issue.

Sometimes, as in the present case, this limit leaves parties without the ability to play through their appeal before mootness removes the case from the SCOV’s jurisdiction.  Defendant challenged his conviction for resisting arrest.  Although the SCOV omits the facts behind this charge, the important detail is that Defendant was sentenced to a six-month deferred sentence that, following successful completion of probation, would, along with the entire conviction, be expunged from the record.  In other words, if Defendant followed the terms of his probation, everything would disappear. 

This is exactly what happened as Defendant was appealing the conviction.  Thus, by the time the SCOV got a hold of the case, it was done, over, finis,.  Defendant, still seeking justice (or the foundation of a civil-rights claim) sought to have his appeal reviewed under one of the two exemptions to the mootness doctrine.  The first is a claim that there were negative collateral consequences to the arrest.  Oh, says the SCOV, like what?  Defendant’s reply of, “Well, there might be a record of this somewhere that could somehow follow me, and you know, be a record . . .” is quickly dismissed. 

The second exemption is where an underlying situation is capable of repetition, yet evades review (think Roe v. Wade).  Here Defendant must satisfy two prongs: (1) show the underlying action was too short to allow judicial review, and (2) show that it is likely to be repeated.  While Defendant can show the first, he is unable to show the second as this was apparently an aberration in an otherwise-sterling record (and hence his desire for vindication in the first place).  Too bad says the SCOV.  Go home.