mootness doctrine in Virginia

2025True, a narrow exception to the mootness doctrine provides that a matter is not moot where the dispute is “capable of repetition, yet evading review.” Browne, 303 Va. at 95 (quoting Daily Press, Inc., 285 Va. at 452). “[T]his narrow exception applies when: ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1997)).

2025For another, the capable-of-repetition exception to the mootness doctrine applies “only in exceptional situations.” Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).

2024See Richmond Newspapers v. Virginia, 448 U.S. 555, 563 (1980).

2024An exception to the mootness doctrine applies when an underlying dispute is “capable of repetition, yet evading review.” See, e.g., Daily Press, Inc., 285 Va. at 452 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980)).

2025This is called the “capable of repetition, yet evading review” exception, and it applies only in cases “involving disputes of abbreviated duration where the party seeking review ‘can make a reasonable showing that he will again be subjected to the alleged illegality.’” Williams v. Legere, 77 Va. App. 422 , 439 (2023) (quoting Va. Dep’t of State Police v. Elliott, 48 Va. App. 551, 554 (2006)).

2023This doctrine “should be - 13 - applied sparingly” id., and “‘only in exceptional situations’ involving disputes of abbreviated duration where the party seeking review ‘can make a reasonable showing that he will again be subjected to the alleged illegality,’” Va. Dep’t of State Police v. Elliott, 48 Va. App. 551, 554 (2006) (first quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998); and then quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).

2005See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (noting that, “as a general rule, ‘voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot’” (quoting United States v. W.

2005See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (noting that, “as a general rule, ‘voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot’” (quoting United States v. W.

2026“An exception to the mootness doctrine” may apply if the “underlying dispute is ‘capable of repetition, yet evading review.’” Browne, 303 Va. at 95 (quoting Daily Press, 285 Va. at 452). -7- Here, Hoglan incurred a $25 assessment as a result of his incarceration for the probation violation.7 See generally Code § 15.2-1613.1 (permitting localities to “authorize a processing fee not to exceed $25 on any individual admitted to a county, city, or regional jail following conviction”).

2026“An exception to the mootness doctrine” may apply if the “underlying dispute is ‘capable of repetition, yet evading review.’” Browne, 303 Va. at 95 (quoting Daily Press, 285 Va. at 452). -7- Here, Hoglan incurred a $25 assessment as a result of his incarceration for the probation violation.7 See generally Code § 15.2-1613.1 (permitting localities to “authorize a processing fee not to exceed $25 on any individual admitted to a county, city, or regional jail following conviction”).

2021State Water Control Board v. Appalachian Power Co., 12 Va. App. 73, 76 (1991) (en banc), appellants argue that although the restrictions challenged in Count III have expired, the harm involved falls under the “capable of repetition, but evading review” exception to the mootness doctrine.

2005State Water Control Bd. v. Appalachian Power Co., 12 Va. App. 73, 75 , 402 S.E.2d 703, 705 (1991) (en banc) (quoting Murphy, 455 U.S. at 482 ); In re Times-World Corp., 7 Va. App. at 323 , 373 S.E.2d at 477 . - 11 - Neither exception to the mootness doctrine applies here, however.

2013See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 377 (1979); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 546-47 (1976).

2013See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 377 (1979); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546-47 (1976).

2013See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 377 (1979); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 546-47 (1976).

2013See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 377 (1979); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546-47 (1976).

2006This doctrine, however, “applies only in exceptional situations,” Spencer v. Kemna, 523 U.S. 1, 17 , 118 S.Ct. 978, 988 , 140 L.Ed.2d 43 (1998) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 , 103 S.Ct. 1660, 1669 , 75 L.Ed.2d 675 (1983)), involving disputes of abbreviated duration where the party seeking review “can make a reasonable showing that he will again be subjected to the alleged illegality,” Lyons, 461 U.S. at 109 , 103 S.Ct. at 1669 . *555 We need not examine this mootness exception in any detail here because the VSP’s argument fails at its threshold.

2006This doctrine, however, “applies only in exceptional situations,” Spencer v. Kemna, 523 U.S. 1, 17 , 118 S.Ct. 978, 988 , 140 L.Ed.2d 43 (1998) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 , 103 S.Ct. 1660, 1669 , 75 L.Ed.2d 675 (1983)), involving disputes of abbreviated duration where the party seeking review “can make a reasonable showing that he will again be subjected to the alleged illegality,” Lyons, 461 U.S. at 109 , 103 S.Ct. at 1669 . *555 We need not examine this mootness exception in any detail here because the VSP’s argument fails at its threshold.

2026See Ellis, 84 Va. App. at 546; Thomas v. Commonwealth, 77 Va. App. 613 , 627 (2023).

2026See Ellis, 84 Va. App. at 546; Thomas v. Commonwealth, 77 Va. App. 613, 627 (2023).

2026This fee “cannot stand” because it “stems from an unauthorized sanction.” Matheson, 86 Va. App. at 204-05 (holding that the case was not moot because the appellant was charged the $25 fee based on an improper sentence).

2026This fee “cannot stand” because it “stems from an unauthorized sanction.” Matheson, 86 Va. App. at 204-05 (holding that the case was not moot because the appellant was charged the $25 fee based on an improper sentence).

2025See, e.g., Commonwealth v. Woodward, 249 Va. 21, 23 (1995) (declining to take judicial notice of rules that were not relied on by the circuit court, but not involving a mootness analysis).

2024When a case becomes moot during the pendency of an appeal through no fault of the appellant, “vacatur of [the] lower court judgment[] is generally appropriate.” Ratcliff, 298 Va. at 623; see also Camreta v. Greene, 563 U.S. 692, 712 (2011); United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). “[A] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance[,] . . . ought not in fairness be forced to acquiesce in that ruling.” Ratcliff, 298 Va. at 623 (quoting Camreta, 563 U.S. at 712 ). “[T]he equitable remedy of vacatur ensures that thos

2024When a case becomes moot during the pendency of an appeal through no fault of the appellant, “vacatur of [the] lower court judgment[] is generally appropriate.” Ratcliff, 298 Va. at 623; see also Camreta v. Greene, 563 U.S. 692, 712 (2011); United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). “[A] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance[,] . . . ought not in fairness be forced to acquiesce in that ruling.” Ratcliff, 298 Va. at 623 (quoting Camreta, 563 U.S. at 712 ). “[T]he equitable remedy of vacatur ensures that thos

2024When a case becomes moot during the pendency of an appeal through no fault of the appellant, “vacatur of [the] lower court judgment[] is generally appropriate.” Ratcliff, 298 Va. at 623; see also Camreta v. Greene, 563 U.S. 692, 712 (2011); United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). “[A] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance[,] . . . ought not in fairness be forced to acquiesce in that ruling.” Ratcliff, 298 Va. at 623 (quoting Camreta, 563 U.S. at 712 ). “[T]he equitable remedy of vacatur ensures that thos

2021Although this Court can consider the collateral consequences of a conviction to determine whether the proceeding is moot, E.C., 283 Va. at 536, some such consequences may be too remote or speculative to overcome the mootness claim.

2021See Salvatierra v. City of Falls Church, 35 Va. App. 453, 456-57 (2001) (applying mootness exception when the defendant’s commitment to the Department of Juvenile Justice “was too short to fully litigate the issues through an appeal” and the ruling could impact his future probation status).

2021See id.

2018In describing the mootness doctrine, the Supreme Court has observed, “‘[w]henever it appears . . . that there is no actual controversy between the litigants, or that, if it once existed it has ceased to do so, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case.’” McCarthy Holdings LLC v. Burgher, 282 Va. 267, 275 , 716 S.E.2d 461, 465 (2011) (quoting Hankins v. Town of Virginia Beach, 182 Va. 642, 643 , 29 S.E.2d 831, 832 (1944)).

2018In describing the mootness doctrine, the Supreme Court has observed, “‘[w]henever it appears . . . that there is no actual controversy between the litigants, or that, if it once existed it has ceased to do so, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case.’” McCarthy Holdings LLC v. Burgher, 282 Va. 267, 275 , 716 S.E.2d 461, 465 (2011) (quoting Hankins v. Town of Virginia Beach, 182 Va. 642, 643 , 29 S.E.2d 831, 832 (1944)).

2018See generally, Ingram v. Commonwealth, 62 Va. App. 14, 22 , 741 S.E.2d 62 , 66 (2013) (acknowledging the doctrine, but recognizing that it “should be used sparingly” and in “exceptional situations”) (internal quotation marks and citations omitted).

2018In describing the mootness doctrine, the Supreme Court has observed, “‘[w]henever it appears . . . that there is no actual controversy between the litigants, or that, if it once existed it has ceased to do so, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case.’” McCarthy Holdings LLC v. Burgher, 282 Va. 267, 275 , 716 S.E.2d 461, 465 (2011) (quoting Hankins v. Town of Virginia Beach, 182 Va. 642, 643 , 29 S.E.2d 831, 832 (1944)).

2018In describing the mootness doctrine, the Supreme Court has observed, “‘[w]henever it appears . . . that there is no actual controversy between the litigants, or that, if it once existed it has ceased to do so, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case.’” McCarthy Holdings LLC v. Burgher, 282 Va. 267, 275 , 716 S.E.2d 461, 465 (2011) (quoting Hankins v. Town of Virginia Beach, 182 Va. 642, 643 , 29 S.E.2d 831, 832 (1944)).

1997See City of Virginia Beach v. Brown, 858 F. Supp. 585 (E.D.

1991The intervening events which may render a case moot are of varied character, such as subsequent legislation.... 2 Am.Jur.2d, Administrative Law § 573 (1962); see also Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 148-49 , 57 S.Ct. 407, 412 , 81 L.Ed. 562 (1937); United States v. Alaska Steamship Co., 253 U.S. 113, 115 , 40 S.Ct. 448, 448 , 64 L.Ed. 808 (1920); Church of Scientology Flag Serv.

1991The intervening events which may render a case moot are of varied character, such as subsequent legislation.... 2 Am.Jur.2d, Administrative Law § 573 (1962); see also Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 148-49 , 57 S.Ct. 407, 412 , 81 L.Ed. 562 (1937); United States v. Alaska Steamship Co., 253 U.S. 113, 115 , 40 S.Ct. 448, 448 , 64 L.Ed. 808 (1920); Church of Scientology Flag Serv.

1988The federal circuit courts also have embraced an exception to the mootness doctrine when deciding similar cases concerning closure of a trial to the public. “[T]he United States Supreme Court’s recent mootness decisions suggest that closure orders entered during trial are precisely the kind of rulings which the Southern Pacific mootness exception is meant to protect.” United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985); see also United States v. Edwards, 823 F.2d 111, 114 (5th Cir. 1987), cert. denied sub nom, Times-Picayune Pub.

1988The federal circuit courts also have embraced an exception to the mootness doctrine when deciding similar cases concerning closure of a trial to the public. “[T]he United States Supreme Court’s recent mootness decisions suggest that closure orders entered during trial are precisely the kind of rulings which the Southern Pacific mootness exception is meant to protect.” United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985); see also United States v. Edwards, 823 F.2d 111, 114 (5th Cir. 1987), cert. denied sub nom, Times-Picayune Pub.