Paige v. State

• Decision Date: 16 June 2017
• Docket Number: No. 16–202,16–202
• Parties: H. Brooke PAIGE v. STATE of Vermont, Secretary of State James Condos, Attorney General William Sorrell, Rafael Edward Cruz and Marco Antonio Rubio
• Court: Vermont Supreme Court

171 A.3d 1011

H. Brooke PAIGE

v.STATE of Vermont, Secretary of State James Condos, Attorney General William Sorrell, Rafael Edward Cruz and Marco Antonio Rubio

No. 16–202

Supreme Court of Vermont.

November Term, 2016

June 16, 2017

Motion for Reargument Denied August 21, 2017

H. Brooke Paige, Pro Se, Washington, and Mario Apuzzo, Jamesburg, New Jersey, for Plaintiff–Appellant.

William H. Sorrell, Attorney General, and Todd W. Daloz and Katherine L. Pohl, Assistant Attorneys General, Montpelier, for Defendants–Appellees State and Condos.

Gregory D. Cote, Boston, Massachusetts, for Defendant–Appellee Cruz.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

REIBER, C.J.

¶ 1. In this case, appellant—a Vermont voter and candidate in the state's 2016 presidential primary—challenges whether U.S. Senators Ted Cruz and Marco Rubio are constitutionally qualified to run for President of the United States. The trial court dismissed the suit on the grounds that appellant lacked standing and the court lacked jurisdiction to assess the qualifications of the Senators to run for president. Appellant now appeals both holdings, but we affirm the dismissal for a different reason: the case is now moot.

¶ 2. Appellant's case began on December 9, 2015, when he filed a declaratory judgment action against the State, the Secretary of State, and the Attorney General. This action sought, in relevant part: (1) a declaration of "the precise meaning of the phrase ‘natural-born Citizen’ "; (2) an order requiring the Secretary of State to determine the qualifications of presidential candidates to serve as president, and (3) an injunction to prohibit the Secretary of State from printing the Vermont presidential primary ballots with the names of allegedly "constitutionally unqualified candidates," including Senators Cruz and Rubio. Appellant argued that if the Secretary of State allowed "one or more unqualified candidates" on the ballot for president, then, "in his capacity as a citizen," appellant would be deprived of "his rights under the Fifth and Fourteenth Amendment[s] to life, liberty, and property without due process of law" and "as a candidate for the office of President" he would "suffer[ ] the prudential debilities of having to contend with candidates who are not qualified," such as competing for signatures, campaign funds, media coverage, and votes. (Emphases added.)

¶ 3. On January 4, 2016, appellant moved for a temporary restraining order to prevent the distribution of the state's presidential primary ballots. On January 12, he amended his complaint to remove the Attorney General as a defendant and to add Senators Cruz and Rubio as defendants. After holding a hearing on this motion on January 15, the court denied the motion because it reasoned that appellant's "concern that only constitutionally qualified candidates appear on the primary ballot is not particular to him"; "[t]he fact that he has professed a desire to be a presidential primary candidate for the Republican party does not increase the nature of the alleged harm"; he did not establish that the inclusion of the Senators on the ballot prevented him from obtaining the required number of signatures or "would thwart his attempt to win the primary as a write-in candidate"; and appellant "has little chance of success on the merits."

¶ 4. The State and the two Senators then filed motions to dismiss the case, and appellant moved to amend his complaint again, largely reiterating his initial complaint and responding to the motions to dismiss. The day after the primary election—which took place on March 1, 2016—appellant moved for another temporary restraining order to prevent certification of the results, which were split between Ohio Governor John Kasich and now-President Donald Trump. The court denied this request on March 4, and the results were certified on March 10. On May 12, the court finally dismissed the case, reiterating two of its key reasons for denying appellant's two motions for temporary restraining orders before and after the primary election: (1) appellant lacked standing "because he is unable to point to any injury that sets him apart from the public generally" and (2) the court lacked jurisdiction to assess the qualifications of the Senators "because [appellant] is trying to get the judiciary to resolve a matter committed to Congress, a so-called political question."^*

¶ 5. Appellant now appeals the trial court's two holdings. However, as noted previously, we affirm the dismissal for an entirely different reason. We find that the case is now moot because the election is over—neither Senator won the presidency or even Vermont's primary election—and it would be speculative to address the issues raised by appellant because neither Senator is seeking the presidency. Moreover, no exception to the mootness doctrine applies.

¶ 6. We review the court's dismissal of appellant's case de novo. See Town of Bridgewater v. Dep't of Taxes, 173 Vt. 509, 510, 787 A.2d 1234, 1236 (2001) (mem.) ("We review a trial court's dismissal for lack of subject matter jurisdiction de novo ....") (quotation omitted). For this Court to have jurisdiction over an appeal, the appeal must involve an actual controversy arising between adverse litigants who have a legally cognizable interest in the outcome of the case. See Paige v. State, 2013 VT 105, ¶ 8, 195 Vt. 302, 88 A.3d 1182 ("In order for the Court to rule on substantive issues, an appeal must involve either a live controversy, or the parties must have a legally cognizable interest in the outcome of the case throughout the entire proceeding." (quotation omitted)); Chase v. State, 2008 VT 107, ¶ 11, 184 Vt. 430, 966 A.2d 139 ("It is well-settled that this Court has jurisdiction to decide only actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction." (quotation omitted)). Otherwise, any opinion issued by this Court would merely be advisory, and would not be within our constitutional authority to render. Doria v. Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 318 (1991) ("Unless an actual or justiciable controversy is present, a declaratory judgment is merely an advisory opinion which we lack the constitutional authority to render.").

¶ 7. A case becomes moot—and this Court loses jurisdiction—when there no longer is an actual controversy or the litigants no longer have a legally cognizable interest in the outcome of the case. See In re S.H., 141 Vt. 278, 280, 448 A.2d 148, 149 (1982) ("The general rule is that a case becomes moot ‘when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.’ ") (quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ). Stated another way, a case becomes moot when this Court "can no longer grant effective relief." Paige, 2013 VT 105, ¶ 8 (quotation omitted). Importantly, even if a case was not moot when it was first filed, intervening events since its filing can render it moot. See In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991) ("Even though there was once an actual controversy, a change in the facts can render an issue or entire case moot.").

¶ 8. Here, appellant's case does not present an actual controversy because the election is over. Since appellant filed his initial complaint, both Senator Cruz and Senator Rubio were included on Vermont's presidential primary ballot. But neither Senator earned any delegates from Vermont, neither won the Republican Party's presidential nomination, and neither is currently seeking the presidency. Indeed, the general election is over, and President Trump is now in office. The entire purpose of appellant's case was to prevent the inclusion of the Senators on the primary ballot, and the Court cannot now grant appellant any relief that will undo the inclusion of the Senators on the ballot or overturn the primary or general election results in any way. Although there may have been an actual controversy when appellant's case began, there is none now. See id. at 163, 588 A.2d at 1064.

¶ 9. Moreover, this "change in the facts" due to the passing of time is not the result of any action or lack of action by the trial court, this Court, or the appellees. See id. The trial court acted seasonably to address appellant's claims, issuing orders within days addressing appellant's motions for temporary restraining orders and dismissing the case just slightly over six months after appellant filed it (and just over two months after the primary). Likewise, this Court scheduled oral argument for November 30, just a little over a month after it received appellant's request for oral argument.

¶ 10. Nevertheless, appellant argues that this issue meets two exceptions to the mootness doctrine: (1) the exception for cases that are capable of repetition but evading review, State v. Condrick, 144 Vt. 362, 363, 477 A.2d 632, 633 (1984) ("A case is not moot when a situation is capable of repetition, yet evades review."), and (2) the exception for negative collateral consequences. In re P.S., 167 Vt. 63, 67, 702 A.2d 98, 101 (1997) ("[A] case is not moot when negative collateral consequences are likely to result from the action being reviewed.").

¶ 11. To meet the first exception—the exception for cases that are capable of repetition but evading review—a plaintiff must satisfy a two-prong test: (1) the challenged action must be "in its duration too short to be fully litigated prior to its cessation or expiration," and (2) there must be a "reasonable expectation that the same complaining party will be subjected to the same action again." Price v. Town of Fairlee, 2011 VT 48, ¶ 6, 190 Vt. 66, 26 A.3d 26 (quotation omitted). Appellant presents arguments addressing both of these prongs. As to the first prong, he argues that he "did everything that he could to expedite the case in the state court so as to have a decision on his ballot challenge. Despite...