Editorial

Should the Appellate and Supreme Courts

decide cases that are settled?

 

Section 4038 of the Appellate Rules provides that a withdrawal of appeal may be filed "as of right" prior to oral argument. After oral argument an appeal "may be withdrawn only on motion to the court in which the appeal is pending." Well, surely, one would think, the court would permit withdrawal of an appeal if a case was settled after oral argument but before publication of the decision. Think again. The answer is "maybe not."

I have been involved in four cases in the past ten years which settled after oral argument but before the decision was published. In one the motion to withdraw the appeal was granted. In two the decisions were published, even though the cases settled before publication of the decision. In another major case in dollars as well as legal precedent, the settlement reached was frustrated and the decision in the case was published. The court had decided a case which the parties had reported settled. This practice is wrong and should be changed.

The reason the practice is wrong is illustrated by a recent Eleventh Circuit case, Key Enterprises of Delaware, Inc. v. Venice Hospital, 9 F.3d 893 (CA 11 1993)(en banc). This case contains an excellent discussion of the applicable law where a case becomes moot during the appellate process by reason of settlement. Clear federal precedent mandates that when a case becomes moot on appeal by reason of settlement the appellate court must dismiss the case regardless of whether oral argument has take place. The dismissal order under federal practice should also vacate the district court’s judgment and remand with instructions to dismiss the case as moot. The reasoning is that because the case was settled, there is no longer a "case or controversy" and any opinion issued would be advisory only and thus unconstitutional. This rule is followed by the U.S. Supreme Court. City Gas Company of Florida v. Consolidated Gas Co. of Florida, Inc., 499 U.S. 915, 111 S.Ct. 1300, 113 L.Ed.2d 235 (1991); United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 106-107, 95 L.Ed. 36 (1950); Duke Power Co. v. Greenwood County, S.C., 299 U.S. 259, 267, 57 S.Ct. 202, 205, 81 L.Ed. 178 (1936).

The Key Enterprises court held (9 F.3d at 898):

Precedent in this circuit makes clear that, when a case becomes moot during the appeal process, the proper response is for this court to dismiss the case . . . We have stated that where a case becomes moot after the district court enters judgment but before the appellate court has issued a decision, the appellate court must dismiss the appeal, vacate the district court’s judgment, and remand with instructions to dismiss the case as moot. (citation and quotation marks omitted)

The Connecticut Constitution does not have a "case or controversy" provision as provided in the U.S. Constitution, but our Supreme Court has adopted this requirement in determining standing. In Connecticut Business & Industry Association, Inc. v. CHHC, 218 Conn. 335, 346-347 (1991) the court held:

It is a basic principle of our law . . . that the plaintiffs must have standing in order for a court to have jurisdiction to render a declaratory judgment. . . . Our rules of practice, mirroring the federal constitutional "case or controversy" requirement . . . accordingly provide that no court will render a declaratory judgment on the complaint of a person unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations which requires settlement between the parties. (citation and quotation marks omitted)

Granted that the court alluded to the federal "case or controversy" requirement in the setting of a declaratory judgment. But Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 612-613 (1986) goes further and applies the case or controversy requirement to standing in all cases:

Standing is not a technical rule intended to keep aggrieved parties out of court. . . . Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . The requirements of justiciability and controversy are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. (citations and quotation marks omitted)

Whether lack of standing makes a case moot or deprives the court of subject matter jurisdiction, it seems to us to make no difference. We think it is wrong for an appellate court to decide a case which has been reported to it as settled. Section 4038’s provision requiring permission to withdraw a case after oral argument seems to be based on the "work principle," that is, "we-did-the-work-of-deciding-the-case-and-writing-an-opinion-and-we-are-going-to-publish-it-regardless-of-whether-the-case-is-settled."

The provision regarding permission to withdraw the appeal was added in 1986. Horton & Cormier, Connecticut Rules of Appellate Procedure (1996 Ed.) at 99. Shortly after this rule took effect, the front page of the Supreme Court assignment lists contained the admonition:

Counsel are urged to provide the Supreme Court with a minimum of 48 hours notice in the event an appeal scheduled for full argument is to be withdrawn. See also P.B. §4038.

The court continues this notice on its current assignment lists. The Appellate Court assignment lists contain the following notice:

In the event that your case is settled prior to oral argument, you are ordered to immediately notify the chief clerk. Failure to do so may result in sanctions pursuant to P.B. §§4038, 4184.

Requiring counsel to advise the court if the case is settled is obviously desirable. It saves valuable judge time in reading the record and briefs. But settlement after oral argument is another matter. Sometimes arguments which are considered potential winners are shot down in the first few minutes of oral argument. Moreover, a hot oral argument nearly always discloses the court’s thinking on the issues raised by the case. It is not uncommon for positions to change after oral argument, which may precipitate settlement discussions. If this occurs and the case settles, we believe that the law requires the wishes of the parties to be respected. If the case is settled, there is no longer a case or controversy. The case is moot, and ought not to be decided.