Mootness and Tory v. Cochran
on Mar 30, 2005 at 9:42 pm
I’ve been asked whether I think that the death of Johnny Cochran will moot this case, a defamation action in which a California state court enjoined the petitioner from saying anything about Cochran. If this were a defamation case in federal court (say, on diversity jurisdiction) and the injunction were that simple, I would say “yes” because the case only seeks prospective injunctive relief and defamation claims do not carry beyond death.
But the case has two complications. First, the injunction is broader. It prohibits Tory from saying anything about Cochran or his law firm, which presumably continues to operate for the time being. (But to add a further layer of complication, this aspect of the injunction was entered despite the fact that the law firm wasn’t even a party to the defamation case.) The injunction also doesn’t say anything about expiration upon Cochran’s death. Indeed, the petitioner flagged this issue in his opening brief.
Second, the Court’s jurisprudence on state court cases becoming moot is muddled. Here is the most recent substantial statement on the issue, from ASARCO v. Kadish, 490 U.S. 605 (1989):
“The Court’s treatment of cases that become moot on review from the lower federal courts, as distinct from those that become moot on review from state courts, is illuminating on this point. In the former situation, the settled disposition of a case that has become entirely moot is for this Court to ‘vacate the judgment below and remand with a direction to dismiss.’ United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). The power to make that disposition is predicated on our ‘supervisory power over the judgments of the lower federal courts,’ which ‘is a broad one.’ Id., at 40. In the latter situation, on review of state judgments, the same disposition is not made. Traditionally, where the entire case had become moot, the Court vacated the judgment below and remanded for such further proceedings as the state court might deem appropriate, as in DeFunis v. Odegaard, 416 U.S. 312 (1974), since the state courts, not bound by Article III, were free to dispose of the case in a variety of ways, including reinstatement of the judgment. More recently, however, the regular practice in the latter situation has been to dismiss the case and leave the judgment of the state court undisturbed, which evinces a proper recognition that in the absence of any live case or controversy, we lack jurisdiction and thus also the power to disturb the state court’s judgment. See, e. g., Kansas Gas & Elec. Co. v. State Corp. Comm’n of Kan., 481 U.S. 1044 (1987); Times-Picayune Pub. Corp. v. Schulingkamp, 420 U.S. 985 (1975).â€
My view is that if the Justices are anxious to decide the case, they will say that it is sufficient for Article III purposes that the injunction extends to Cochran’s law firm. That would be consistent with the Court’s suggestion Erie, PA v. Pap’s A.M., 529 U.S. 277 (2000), that the relevant question in these circumstances is whether the petitioner retains an interest in having the state court’s judgment overturned. (Justice Scalia’s dissent in Pap’s has the better of the argument in my opinion.) If the Justices are less certain, they will remand for the California courts to address the scope of the injunction and the possible mootness of the case.
For other views on this question, see these posts of Howard Bashman and Eugene Volokh. Also, see this article by Tony Mauro (via How Appealing). And this Explainer piece on Slate.
