Saturday, January 20, 2018

Who’s on Your Ballot?

Decisions, decisions . . .
Paige v. State, 2017 VT 54

By Eric Fanning

Get ready, SCOV Law readers, 2016 is back . . . with a vengeance!

Appellant H. Brooke Paige is a Vermont voter, and was a candidate in the state’s 2016 presidential Republican primary. Back in December of 2015, when primary season was in full swing, he filed a declaratory judgment action and asked for a temporary restraining order against the State of Vermont, the Secretary of State, and the Attorney General. 

Paige sued to block the inclusion of Senators Marco Rubio and Ted Cruz on the Republican primary ballot on the basis that they were not qualified to run for President of the United States (Paige is playing the you’re-not-a-natural-born-citizen card). His complaint claimed that, by putting unqualified candidates on the ballot, he would be deprived of his 5th and 14th Amendment rights as a citizen, and, as a candidate, he would “suffer the prudential debilities of having to contend with candidates who are not qualified” like competing for signatures, money, media coverage, votes, and all that jazz.

The litigation took a few twists and turns before finally being dismissed by the Washington Superior Court on May 12, 2016, almost two and a half months after the primary election. The court dismissed Paige’s lawsuit for two reasons: (1) he lacked standing to bring the suit because the alleged injury was not unique to him personally, and (2) the court lacked jurisdiction to assess the qualifications of Cruz and Rubio because such matters constitute “political questions.”

Standing and political questions are concepts of justiciability that tend to make lawyers and constitutional scholars giddy—and as much as I would love to let newcomers to constitutional law in on the fun, I’m afraid I won’t explain those concepts today. I can hear it already: “Eric, why are you being so mean as to deprive us of this exciting constitutional knowledge?” Rest assured I’m not doing this out of malice. I’m sparing these topics for today’s blog simply because SCOV decided Paige’s appeal on a different basis altogether: his case is moot.

A case becomes moot, as SCOV notes, when there ceases to be any actual controversy, or where the parties no longer have a legally cognizable interest in the outcome of the case. This is a fancy lawyer way of saying you need to continue to have skin in the game, or a dog in the hunt, or [insert idiom here]. Let me put it this way, your case is probably moot if, after getting a favorable judgment, this is your reaction.

By the time Paige’s appeal was heard by SCOV, the general election had already happened, so it’s easy to see why SCOV thinks this case is moot. Even if SCOV ruled in his favor, and ordered Cruz’s and Rubio’s names off the ballot, it wouldn’t matter, because the election is already over, and Donald Trump is president.

Also, a real live controversy is required throughout every stage of litigation, including the appeal. So, if you file a lawsuit at a time when a real controversy exists, and then something happens that ends the controversy, the case becomes moot, and you’re done. SCOV finds such an intervening event, i.e. the election. When Paige started the lawsuit, the election was still ongoing, and Vermont had not yet had its primary. However, by the time the case reached SCOV, the election had happened, and Donald Trump had been sworn in as president. Ergo, no more real, live controversy.

But we don’t stop there, folks, because Paige says, okay, maybe there’s no existing controversy, but my case should still be heard on the merits because exceptions can be made in my case. There are two well-established exceptions to the mootness doctrine that Paige argues apply to this case: (1) the exception for cases that are capable of repetition but evading review, and (2) the exception for negative collateral consequences.

SCOV notes the two elements of the exception for capable of repetition but evading review: (1) “the challenged action must be in its duration too short to be fully litigated prior to its cessation of expiration,” and (2) “there must be a reasonable expectation that the same complaining party will be subjected to the same action again.” A very famous example of this exception is Roe v. Wade (as Justice Robinson notes in her concurring opinion). At the time that case was heard by SCOTUS, Norma McCorvey (Jane Roe’s real name) had already given birth to her child. The case was allowed to proceed because the issue giving rise to the litigation, McCovey’s pregnancy, was of short duration, and dismissing the case after she gave birth would essentially mean that she’d never have an opportunity to litigate her case.

SCOV says that Paige hasn’t shown with any “demonstrated probability” that Rubio and Cruz will run for president again, so he hasn’t satisfied the second prong. While it’s true that Rubio and Cruz could run again in 2020, Paige’s argument that he’ll be subject to the same challenged action again is merely speculation, and that’s not good enough for SCOV.

SCOV likewise holds that Paige hasn’t satisfied the exception for negative collateral consequences. This exception to the mootness doctrine will only stick if the litigant can show that the challenged action will continue to have negative consequences if left unaddressed. In such a situation, there may not actually be a live controversy, however, dismissing the case would leave the challenging party with lingering negative effects. SCOV cites a case involving an order for involuntary hospitalization to illustrate this exception. In that situation, the case was allowed to proceed even though the order had expired because it could have resulted in “legal disabilities” and “social stigmatization” for the patient.

SCOV fails to see a parallel between an order for involuntary hospitalization and having Senators Cruz and Rubio on the ballot. In particular, Paige can’t demonstrate how the consequences of having them on the ballot would be specific to him, and you need more than a generalized grievance to succeed on a claim of negative collateral consequences (this is more of an issue of standing, but is nevertheless crucial to SCOV’s analysis).

SCOV holds that Paige’s case no longer involves a live controversy, he no longer has a legally cognizable interested in its outcome, and doesn’t meet any exception to the mootness doctrine, so the dismissal by the trial court is affirmed, and Paige is left holding his breath for 2020.

Justice Robinson concurs with the majority, but issues a separate opinion. She writes separately to argue that SCOV’s “demonstrated probability” standard for the “capable of repetition” prong goes far beyond the more relaxed “reasonable expectation” standard that SCOV has held in the past. On that basis, she says, the majority was wrong to suggest that the possibility of Cruz and Rubio running again was too remote to satisfy the “capable of repetition standard.” But since Justice Robinson agrees that Paige didn’t meet the “evading review” prong, she concurs in the outcome.

1 comment:

  1. 2020 will be on us soon enough and it is a certainty that at least one of the candidates in the Republican primary battle will have a "natural born citizen" issue.

    I wish to acknowledge, the indispensable legal assistance of Mario Apuzzo, Esq. in the prosecution of this case.

    H, Brooke Paige
    Plaintiff, pro se.