FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VASHON TYRONE JACKSON,
Petitioner-Appellant,
No. 03-17068
v.
D.C. No.
CA DEPT. OF MENTAL HEALTH; CV-00-00274-
JOHN DEMORALES, Executive LKK/PAN
Director; CALIFORNIA ATTORNEY
OPINION
GENERAL,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
August 13, 2004—San Francisco, California
Filed February 28, 2005
Before: Harry Pregerson and Alex Kozinski, Circuit Judges,
and John S. Rhoades, Sr.,* District Judge.
Opinion by Judge Kozinski
*The Honorable John S. Rhoades, Sr., Senior United States District
Judge for the Southern District of California, sitting by designation.
2251
2254 JACKSON v. CA DEPT. OF MENTAL HEALTH
COUNSEL
David M. Porter, Assistant Federal Defender, Sacramento,
California, for the petitioner-appellant.
Craig S. Meyers, Deputy Attorney General, Sacramento, Cali-
fornia, for the respondents-appellees.
OPINION
KOZINSKI, Circuit Judge:
Petitioner Jackson challenges California’s jurisdiction to
confine him under its Sexually Violent Predator Act (SVPA).
Before he filed his federal habeas petition, his SVPA confine-
ment term expired, and he voluntarily recommitted himself.
We consider whether he had standing to bring this challenge.
I
California’s SVPA, see Cal. Welf. & Inst. Code § 6600 et
seq., allows the state to confine particularly dangerous indi-
viduals who have been convicted of multiple sexual offenses.
In order to confine a person under the SVPA, the state must
petition a state court to commit him, see id. § 6601(i), and the
court (or a jury, if either party so requests) must determine
that he is a “sexually violent predator,” see id. § 6604.1 An
1
The SVPA defines “sexually violent predator” as “a person who has
been convicted of a sexually violent offense against two or more victims
JACKSON v. CA DEPT. OF MENTAL HEALTH 2255
SVPA petition may be filed only if the person named in the
petition is “in custody . . . at the time the petition is filed.” Id.
§ 6601(a)(2).
The SVPA took effect on January 1, 1996, when Jackson
was in prison for a parole violation. At the time, his release
was scheduled for February 25, 1996. Because Jackson had
multiple rape convictions, state officials began considering
him for confinement under the SVPA. The state Board of
Prison Terms (BPT), perhaps concerned that it would not be
able to satisfy the prerequisites for filing an SVPA petition
before Jackson’s scheduled release, placed a three-day hold
on his release. According to Jackson, this hold was not autho-
rized by state law.2
On February 27, the day before Jackson’s new release date
and two days after his original one, the BPT determined that
there was probable cause that he was a sexually violent preda-
tor. It therefore placed a 45-day hold on his release pursuant
to Cal. Code Regs. tit. 15, § 2600.1. While this second hold
was in force, the Sacramento County District Attorney filed
a petition to commit Jackson under the SVPA. A jury deter-
mined that Jackson was a sexually violent predator, and he
was ordered committed for two years at Atascadero State
Hospital (ASH).
and who has a diagnosed mental disorder that makes the person a danger
to the health and safety of others in that it is likely that he or she will
engage in sexually violent criminal behavior.” Cal. Welf. & Inst. Code
§ 6600(a)(1).
2
To justify the hold, the state relied on Cal. Pen. Code § 3056, which
provides that “[p]risoners on parole . . . shall be subject at any time to be
taken back within the inclosure of the prison.” Jackson argues that this
provision was inapplicable to him, because he had already been “taken
back within the inclosure of the prison” for a parole violation. The state
responds that the hold was also proper under Cal. Code Regs. tit. 15,
§ 2600.1(b), which allows the BPT to “order imposition of a temporary
hold on [a] . . . parolee in revoked status for up to three (3) working days
pending a probable cause hearing by the board.” Given our disposition of
the case, we need not decide whether the hold was valid.
2256 JACKSON v. CA DEPT. OF MENTAL HEALTH
While his direct appeal was pending, Jackson filed a state
habeas petition. He argued that the three-day hold on his
release was illegal, see note 2 supra, and that the state was
required to release him on February 25 under California’s
“mandatory kick-out” rule, see Cal. Pen. Code § 3000(a)(4)
(1996) (“[A]t the end of the maximum statutory period of
parole . . . the inmate shall be discharged from custody.”).
Thus, Jackson claimed, he was not lawfully in custody when
the SVPA petition was filed. Reading the SVPA’s require-
ment that the person named in the petition be “in custody” as
referring only to lawful custody, Jackson contended that the
state court did not have jurisdiction to order him confined. See
Cal. Welf. & Inst. Code § 6601(a)(2). The California Court of
Appeal summarily denied his habeas petition, and the Califor-
nia Supreme Court denied a subsequent petition.
Jackson then petitioned for federal habeas relief. The dis-
trict court denied the petition on the ground that it could not
grant a habeas petition that claimed only that a state court
lacked jurisdiction under state law. Jackson appeals.
II
The state court ordered Jackson confined for two years.
When his term expired in 1999, Jackson voluntarily recom-
mitted himself for an additional two-year period. After his
voluntary recommitment, Jackson filed the habeas petition at
issue here in February 2000. Before we may consider the mer-
its of Jackson’s petition, we must decide whether it presents
a case or controversy under Article III of the Constitution. See
Allen v. Wright, 468 U.S. 737, 750 (1984).
[1] Article III imposes two important limitations on the
type of interest that a litigant must have for a federal court to
adjudicate his case. First, Jackson must have had standing to
bring his claim. In other words, Jackson must have suffered
(1) an “injury in fact” that is (2) “fairly traceable” to the state
court’s commitment order that he challenges, and (3) that is
JACKSON v. CA DEPT. OF MENTAL HEALTH 2257
“likely [to be] redressed by a favorable decision.” See Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 180-81 (2000). Second, after the case is filed, Jack-
son must maintain a continuing interest in it to keep the case
from becoming moot. Id. at 191-92.
In Hubbart v. Knapp, 379 F.3d 773, 777-78 (9th Cir. 2004),
decided the day we heard argument in Jackson’s case, we
considered this latter requirement in a challenge to confine-
ment under the SVPA. Like Jackson, Hubbart argued that his
confinement was unlawful because he had not legally been in
custody at the time the SVPA petition was filed.
Hubbart had petitioned for habeas during his initial SVPA
confinement, but, by the time the case reached us on appeal,
his term had ended. Id. at 777. However, Hubbart had not
been released after his term expired. Although SVPA confine-
ments last only two years, the state may petition for an addi-
tional two-year confinement period. As the second period
ends, the state may seek a third, and so forth. This is what
happened with Hubbart: When his initial SVPA term expired,
the state successfully petitioned to commit him for a second
two-year term. Id. at 777 n.1.
Each two-year confinement term is based on a distinct pro-
ceeding, see Burris v. Hunter, 290 F. Supp. 2d 1097, 1101
(C.D. Cal. 2003); see also Butler v. Superior Court, 93 Cal.
Rptr. 2d 468, 473-74 (Ct. App. 2000), which requires a fresh
determination of the confinee’s mental health and a new find-
ing that he is a sexually violent predator, see Cal. Welf. &
Inst. Code § 6605(d). The state therefore argued that Hub-
bart’s case was moot: He had challenged only the state’s juris-
diction to order his initial confinement, which had already
expired, so he no longer had any interest in remedying the
order.
We nevertheless held that we had jurisdiction to consider
Hubbart’s case because it fell into an exception to mootness
2258 JACKSON v. CA DEPT. OF MENTAL HEALTH
for cases that are “capable of repetition, yet evading review.”
Hubbart, 379 F.3d at 777. The harm Hubbart alleged was
capable of repetition because he had already been subject to
a second commitment proceeding, and a third petition to com-
mit him was pending when we decided the case. Further, the
harm evaded review, as Hubbart’s two-year term was so short
that he could not pursue his claim through the federal appel-
late process before the term expired.
Relying on Hubbart, Jackson argues that we have jurisdic-
tion to consider his habeas petition even though his initial
term of commitment has expired. But Hubbart does not apply
here. Hubbart’s initial SVPA term expired two weeks after he
petitioned the district court for habeas relief. See 379 F.3d at
777. Thus, he clearly had standing to bring the case; at the
time he filed his habeas petition, he was confined under an
order he claimed the state lacked jurisdiction to enter. Cf.
Spencer, 523 U.S. at 7 (“[T]he incarceration . . . constitutes
a concrete injury, caused by the conviction and redressable by
invalidation of the conviction.”). The issue we addressed in
Hubbart was mootness—whether, after the case had been
brought, something happened to cause Hubbart to lose his
continuing interest in the case.
Here, by contrast, Jackson’s initial SVPA term expired
before he brought his federal habeas petition. When the dis-
trict court first considered his case, Jackson was no longer
confined under the order he claims the state lacked jurisdic-
tion to enter. The relevant question is not whether Jackson’s
challenge became moot at some point, but whether he had
standing when he brought it.
[2] Standing and mootness are similar doctrines: Both
require some sort of interest in the case, and both go to
whether there is a case or controversy under Article III. Yet,
the doctrines have important differences. “Standing doctrine
functions to ensure . . . that the scarce resources of the federal
courts are devoted to those disputes in which the parties have
JACKSON v. CA DEPT. OF MENTAL HEALTH 2259
a concrete stake.” Friends of the Earth, 528 U.S. at 191.
Mootness issues arise later in the case, when the federal
courts are already involved and resources have already been
devoted to the dispute. See id. at 191-92. The Supreme Court
has therefore been willing to recognize exceptions to moot-
ness that do not apply to standing. Most important among
these is the exception we applied in Hubbart for cases that are
capable of repetition, yet evading review. This exception is
not applicable to the standing question we address here: “[I]f
a plaintiff lacks standing at the time the action commences,
the fact that the dispute is capable of repetition yet evading
review will not entitle the complainant to a federal judicial
forum.” Id. at 191. Accordingly, we must determine whether
Jackson had standing to raise his claim in the first place.3
III
[3] Jackson argues that the state court lacked jurisdiction
under the SVPA to commit him. But he clearly could not rely
on his expired SVPA term for standing to raise this claim.
Even if the district court were to agree with him that the state
court lacked jurisdiction, it could not remedy an expired com-
mitment term.
[4] Jackson may nonetheless have had standing if the state
court’s SVPA commitment order still carried with it “some
concrete and continuing injury other than the now-ended
incarceration.” Spencer, 523 U.S. at 7. The Supreme Court
has applied this doctrine in its mootness cases, recognizing
that collateral consequences may be “adequate to meet Article
III’s injury-in-fact requirement” to avoid mootness. Id. at 14.
For instance, some disabilities that a defendant suffers
because of his conviction are sufficient to keep his appeal of
the conviction from becoming moot, even if his sentence
expires during the appeal. See North Carolina v. Rice, 404
3
We do not decide whether, if the issue here were mootness, Hubbart
would control even though Jackson voluntarily committed himself.
2260 JACKSON v. CA DEPT. OF MENTAL HEALTH
U.S. 244, 247 (1971) (per curiam). There is no conceptual
reason why the collateral consequences doctrine should not
extend to standing in a case like Jackson’s. Continuing effects
of Jackson’s commitment may be significant enough to satisfy
the injury in fact requirement for standing, and a decision
invalidating the state court’s order would remedy those con-
tinuing effects.
But Jackson must demonstrate that such consequences exist.4
The SVPA itself does not provide any statutory disabilities
akin to those arising out of a criminal conviction, such as
restrictions on owning a firearm or voting. Cf. Rice, 404 U.S.
at 247 n.1 (examples of disabilities). Nor are we aware of any
other statutes that impose such disabilities on former SVPA
confinees.
[5] There are, however, other injuries that Jackson suffers
or has suffered that might be consequences of the state court’s
determination that he is a sexually violent predator: (1) the
voluntary confinement term he was serving when he filed his
4
In its mootness cases, the Supreme Court has been willing to presume
that a criminal conviction gives rise to collateral consequences. See Spen-
cer, 523 U.S. at 8. However, the Court has noted that presuming collateral
consequences is difficult to square with the rule that the party seeking the
exercise of jurisdiction has the burden of showing that jurisdiction is
proper, as well as the rule that the basis for standing must appear in the
record. See id. at 10-11 (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215,
231 (1990)). The Court therefore cabined the presumption of collateral
consequences to criminal cases, emphasizing that, in such cases, “the pre-
sumption . . . is likely to comport with reality.” Id. at 12.
Jackson was civilly confined under the SVPA, not pursuant to a crimi-
nal conviction. See, e.g., People v. Calhoun, 13 Cal. Rptr. 3d 166, 169-170
(Ct. App. 2004); see also Hubbart, 379 F.3d at 777, 780. We are aware
of no adverse legal consequences that the confinement entails, see page 10
infra, and it is certainly not an “obvious fact of life” that such conse-
quences exist, see Sibron v. New York, 392 U.S. 40, 55 (1968). Mindful
of the Supreme Court’s cautions about presuming the basis for jurisdic-
tion, we decline to presume that Jackson has suffered or will suffer collat-
eral consequences from his SVPA commitment.
JACKSON v. CA DEPT. OF MENTAL HEALTH 2261
habeas petition; (2) the possibility that he will be involuntarily
confined in the future; and (3) the reputational harm associ-
ated with the SVPA determination. We consider each of these
in turn.
Current Voluntary Confinement
When Jackson’s initial SVPA term expired in 1999, the
state did not petition to commit him for a second two-year
term; he voluntarily recommitted himself. As a result, Jackson
was still confined at ASH when he filed his habeas petition.5
But while his confinement was clearly an injury in fact, it is
hardly clear that it was “fairly traceable to the challenged
action” of the state. Friends of the Earth, 528 U.S. at 180.
It is possible that Jackson committed himself because the
state would otherwise have asked a court to recommit him
involuntarily. If he stood little chance of defeating such a
request, but would incur some hardship in trying, perhaps we
would be willing to say that his decision to voluntarily recom-
mit himself was traceable to the state court’s initial decision
to confine him. However, that is not the only possible expla-
nation for Jackson’s decision to recommit himself, and it is
not our duty to hypothesize circumstances under which juris-
diction might have been proper. Instead, it was Jackson’s bur-
den, as the “party who [sought] the exercise of jurisdiction in
his favor,” McNutt v. Gen. Motors Acceptance Corp., 298
U.S. 178, 189 (1936), “clearly to allege facts demonstrating
that he is a proper party to invoke judicial resolution of the
dispute,” Warth v. Seldin, 422 U.S. 490, 518 (1975); see also
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990).
[6] Jackson’s pleadings below did not explain why he
decided to voluntarily recommit himself. His habeas petition
5
Jackson remains committed at ASH. After he filed his federal habeas
petition, Jackson voluntarily recommitted himself twice more—in 2001
and 2003.
2262 JACKSON v. CA DEPT. OF MENTAL HEALTH
listed his first voluntary confinement term as a future sen-
tence, even though he was currently serving it, and indicated
only that he “waived his second trial” under the SVPA. Jack-
son’s memorandum in support of his habeas petition did not
mention any events that occurred after the state court ordered
him confined. And his supplemental memorandum in support
of the habeas petition ignored the difference between his ini-
tial, involuntary SVPA term and his voluntary confinement,
claiming that a “string of administrative and judicial proceed-
ings” resulted in Jackson’s incarceration at ASH, “where he
remains confined today.” No other part of the record before
the district court contained an explanation of Jackson’s deci-
sion to recommit himself.6 There is therefore no basis other
than speculation for saying that Jackson’s decision was fairly
traceable to the state court’s order confining him under the
SVPA.
Possibility of Future Confinement
Another possibility is that Jackson had standing because he
might in the future be confined involuntarily. If Jackson had
never voluntarily recommitted himself, but had instead been
committed under successive SVPA petitions, his initial SVPA
confinement would have served as a prerequisite for a second
petition, the second petition as a prerequisite for a third, and
so forth. Thus, any future petition to recommit him could be
traced back, through preceding petitions, to his initial confine-
ment.
6
Nor, for that matter, does the record before us reveal any additional
information that would support Jackson’s standing. At oral argument,
Jackson’s counsel claimed that Jackson committed himself because he
believed challenging a second SVPA petition would have been futile and
that he would be transferred to jail—where he did not want to go—while
an involuntary petition was pending. There is no support in the record for
either belief. And even though we asked counsel to submit supplemental
briefs addressing jurisdiction, Jackson made no effort to explain the cir-
cumstances of his voluntary confinement, let alone an offer to expand the
record with evidence to support the assertions at oral argument.
JACKSON v. CA DEPT. OF MENTAL HEALTH 2263
[7] But Jackson’s case does not involve such a chain. If the
state petitions to recommit him, the prerequisite for the peti-
tion would be his current voluntary confinement. Since we
cannot say that this current confinement is traceable to the
state court’s SVPA confinement order, we likewise cannot
trace any future confinement petitions back to the order.
Reputational Harm
[8] Finally, we have little doubt that Jackson’s adjudication
as a sexually violent predator carries with it consequences to
his reputation. Although it is not clear how much of the harm
is attributable to the SVPA designation as such—as opposed
to the sexual crime convictions that provided the basis for the
designation—the designation itself is an injury. Moreover,
some of this harm could be remedied by a judgment that the
state court lacked jurisdiction under the SVPA. But not all
injuries amount to injuries in fact that can support standing.
[9] The Supreme Court has consistently held that reputation
is not a sufficient interest to avoid mootness. See Spencer, 523
U.S. at 16 n.8 (“We have obviously not regarded [an interest
in vindicating reputation] as sufficient [to avoid mootness] in
the past—even when the finding was not that of a parole
board, but the much more solemn condemnation of a full-
dress criminal conviction.”). Any interest that would not be
enough to keep the case from becoming moot is necessarily
insufficient to confer standing.7 Otherwise, the case would
immediately be moot. Thus, Jackson did not have standing to
7
The converse is not necessarily true. Because of the Court’s concerns
about the litigation costs incurred by the time mootness becomes an issue,
see page 8 supra, an interest may be sufficient to keep the case from
becoming moot even if it could not have supported standing to bring the
case in federal court. Cf. Friends of the Earth, 528 U.S. at 190 (“[T]here
are circumstances in which the prospect that a defendant will engage in (or
resume) harmful conduct may be too speculative to support standing, but
not too speculative to overcome mootness.”).
2264 JACKSON v. CA DEPT. OF MENTAL HEALTH
challenge the state court’s jurisdiction in order to vindicate his
reputation.
* * *
[10] Because Jackson did not demonstrate that he had
standing to challenge the state court’s jurisdiction to order his
confinement, the district court lacked jurisdiction to consider
his habeas petition. The judgment of the district court is
vacated, and the case is remanded with instructions that the
petition be dismissed.
VACATED AND REMANDED.