847 F. 2d 310 - Speer v. City of Oregon J

Ruth Speer, plaintiff herein, resides in the City of Oregon, Ohio, and has so resided since July 1986. Speer moved from California to Oregon, Ohio. She sought to have her name placed on the ballot for the September 1987 election as a candidate for the City of Oregon City Council. The Lucas County Board of Elections, which had jurisdiction over this election, refused to allow her name to be placed on the ballot because of the two year residency requirement contained in the City of Oregon's City Charter, Art. III Sec. 2. Speer promptly filed suit in district court, alleging that the two year residency requirement violated her rights to freedom of expression, to freedom of association, and to travel under 42 U.S.C. Sec. 1983. Speer also sought declaratory relief and preliminary and permanent injunctions with respect to defendants' refusal to put her name on the ballot. The district court heard the case under Fed.R.Civ.P. 65(a)(2) and found that the residency requirement did not violate Speer's constitutional rights.

We must first consider the threshold question of mootness in addressing this appeal, since it appears that no actual controversy still exists between the parties. We must decide whether the "case or controversy" jurisdictional requirement of Article III of the United States Constitution is met. See Rettig v. Kent City School District, 788 F.2d 328, 330 (6th Cir.), cert. denied, 478 U.S. 1005, 106 S.Ct. 3297, 92 L.Ed.2d 711 (1986). "Mootness results when events occur during the pendency of a litigation which render the court unable to grant the requested relief." Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir.1986). In the instant case, plaintiff sought to have her name placed on the ballot for an election that occurred in September 1987. If we cannot now effect the requested relief, any opinion that this court might render on the underlying dispute would be merely advisory, for plaintiff may no longer have any legally cognizable interest in the outcome. See Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969).

A case will not be found moot if it raises issues that are "capable of repetition, yet evading review." See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); DeFunis v. Odegaard, 416 U.S. 312, 318-19, 94 S.Ct. 1704, 1706, 1707, 40 L.Ed.2d 164 (1974). This doctrine applies in exceptional situations in which two conditions exist: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again."1 Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975). In Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the Court made it clear that the named plaintiff has the responsibility of making a reasonable showing that she will again be subjected to the challenged action; otherwise, no actual controversy exists. Id. at 109, 103 S.Ct. at 1669, 104, 103 S.Ct. at 1666.

In the instant appeal, the first prong of Weinstein is easily met. Little more than two months passed between the time when plaintiff learned that her name was not being placed on the ballot and the occurrence of the Oregon election. The second prong, however, has not been met. Speer has made no showing that she reasonably can be expected again to be denied a place on a ballot because of the durational residency requirements in question. Indeed, by the time the next election for the City of Oregon City Council is held, Speer will satisfy Oregon's two year residency requirement.2 Because Speer cannot again be subjected to the claimed illegality, we are persuaded that her claim should be deemed moot.3 Accord Henderson v. Forth Worth Independent School District, 526 F.2d 286, 288 n. 1 (5th Cir.1976).

We raised the mootness issue sua sponte at oral argument since neither party addressed the issue in its brief. We afforded the parties an opportunity to respond both orally and, subsequently, by brief. The parties have responded to this invitation by filing supplemental briefs, which we have carefully considered.

Speer no longer has a continuing interest in the election that has been held.4 Her name was not placed on the Republican primary ballot, and the general election for the positions on the City Council has since taken place. Plaintiff has not argued that this court should displace any person duly elected to the Oregon City Council. These events that have occurred have for all intents and purposes "completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). A case cited as authority for Speer's position, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), dealt with an asserted voting right, not the right to be a candidate for public office. The right to vote generally compels much stricter scrutiny as a fundamental right than does the right to offer one's self as a candidate for public office. See Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 855, 856, 31 L.Ed.2d 92 (1972). Dunn, moreover, unlike the instant case, involved a plaintiff representing a class. We do not, therefore, consider Dunn to be applicable to the situation before us with respect to mootness.

We conclude that the case has been rendered moot and that the "capable of repetition, yet evading review" principle does not apply to these circumstances.

Accordingly, we DISMISS this appeal.