dissenting.
Article I, §9, of the Nebraska Constitution states that aside from individuals charged with treason, murder, or forcible rape where the proof is evident or the presumption great, “[a]ll persons shall be bailable.” The section is not limited to persons awaiting trial. Moreover, the Nebraska statute concerning appeals to the State Supreme Court provides that “[n]othing herein shall prevent any person from giving supersedeas bond in the district court. . . nor affect the right of a defendant in a criminal case to be admitted to bail pending the review of such, case in the Supreme Court.” Neb. Rev. Stat. §25-1912 (1979).1 Thus, the provision in' the Nebraska Constitution which allowed Judge Murphy to *485deny appellee Hunt bail pending trial also serves to deny Hunt bail pending appeal of his conviction. Both parties agree that this is so.2
The Court does not dispute that Art. I, §9, of the Nebraska Constitution applies to applications for bail pending appeal. Instead the Court considers this factor irrelevant because Hunt has not requested bail pending appeal and because the Court of Appeals held the Nebraska constitutional provision unconstitutional only as applied to pretrial detainees. Ante, at 481-482, n. 5.
I am not persuaded that the issue can be so lightly dismissed. The claim is plainly presented in this Court that the challenged provision effectively bars bail during Hunt’s appeal to the Nebraska Supreme Court. If § 9 were declared unconstitutional here, Hunt could seek bail pending review of *486his convictions by that court. The fact that he has not yet filed such a request in the state courts cannot be taken as a waiver of the right to request release. Because Hunt was denied bail before trial under § 9, a request for bail after conviction would have been a useless formality. The provision forbids releasing on bail an individual charged with forcible rape where the proof of guilt is evident or the presumption great. Since Judge Murphy found that standard satisfied before Hunt’s conviction, appellant could reasonably conclude that further application under current Nebraska law would be futile.
Because §9 is an independent barrier denying Hunt the ability to obtain bail pending appeal, the question is not whether his pretrial detention is “capable of repetition, yet evading review.” We therefore need not ask whether there is a reasonable expectation that Hunt would again be denied bail prior to trial.3 The unavailability of an opportunity for bail pending appeal may constitute a sufficiently live issue to maintain Hunt’s interest in the outcome of this litigation.
The Court’s analysis must therefore rest on the limitation of the Court of Appeals’ decision to pretrial detainees. *487Even accepting this reading of the Court of Appeals’ opinion, the Court’s point appears to be no more than a restatement of the related observation that Hunt did not, in fact could not at the time this suit was filed, assert a claim to bail pending appeal. The Court of Appeals reasonably ruled no more broadly than required. Nevetheless, the consequences of the court’s decision ruling the Nebraska provision unconstitutional extend to Hunt’s rights to seek bail pending appeal. If the Eighth Amendment is applied to the States and does create an implied right to bail, then the State may not be able to categorically deny bail pending appeal in the manner Nebraska has chosen. If conversely, there is no right to pretrial bail, a fortiori, Hunt would not be able to obtain release under present circumstances4
Because the Court of Appeals found Hunt’s denial of pretrial bail not moot under Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976), it had no cause to consider other reasons why the case remained alive. When this Court has entertained doubt about the continuing nature of a case or controversy, it has remanded the case to the lower court for consideration of the possibility of mootness. Vitek v. Jones, 436 U. S. 407 (1978); Scott v. Kentucky Parole Board, 429 U. S. *48860 (1976); Indiana Employment Security Div. v. Burney, 409 U. S. 540 (1973). A remand is particularly in order where, as here, the mootness issue has not been briefed and both parties agree that the case is not moot.
While couched in terms of justiciability, the effect of the Court’s decision is to vacate the judgment of the Court of Appeals. The restrictions on bail struck down as unconstitutional by the Eighth Circuit are given, new life; consequently, any attempt by Hunt to obtain release pending appeal of his convictions will be denied pursuant to the Nebraska Constitution. Because of Hunt’s undeniable interest in securing his liberty, his interests remain adverse with those of the appellant, and an Art. Ill case or controversy may well exist. I would prefer that the Court of Appeals be allowed to explore the mootness issue further. I therefore dissent.
The “same criteria would remain applicable” to bail pending appeal as bail pending trial; there is no “separate section of our law” for the former. Tr. of Oral Arg. 21. See Neb. Rev. Stat. § 29-901 (1979). Thus, “if bail is to be denied Mr. Hunt... it must be done pursuant to this constitutional provision.” Tr. of Oral Arg. 22.
In addition, the Nebraska Supreme Court has held that Nebraska courts have the inherent power to consider the propriety of bail even without a specific authorizing statute. State v. Jensen, 203 Neb. 441, 279 N. W. 2d 120 (1979).
Probable jurisdiction having been noted, and the parties being in agreement that the case was not moot, the issue was not briefed. At oral argument, however, both Mr. Schaaf, the Assistant State Attorney General, and Mr. Homstein, representing Hunt, directly stated that Art. I, § 9, applied to applications for bail pending appeal.
“Question: [AJfter conviction in a criminal case, is anyone entitled to bail while his case is on appeal?
“Mr. Schaaf: Yes ... .
“Question:... I suppose that this statute would prevent bail while the case is pending on appeal.
“Mr. Schaaf: Yes ... .
“Question: So why is it moot until it is decided?
“Mr. Schaaf: We suggest that it is not [moot].” Tr. of Oral Arg. 19.
“Question: Wouldn’t this constitutional amendment be a basis for denying bail pending appeal?
“Mr. Homstein: I agree with that. Certainly.
“Question: However the factors might sort out under the other statute, this would be independently a reason for denying bail?
“Mr. Homstein: I think it mandates a denial of bail.
“Question: [A]nd as long as the case is pending, this case isn’t moot, is it?
“Mr. Homstein: No, our position is that it is not moot. I mean, I think both sides agree that it is not moot.” Id., at 40.
I am not convinced, however, that the Court is correct in finding that this case does not satisfy the conditions for the “capable of repetition, yet evading review” exception. Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976), suggests that the two bases for finding the events capable of repetition were independent. (“The controversy between the parties to this case is ‘capable of repetition’ in two senses.” Id., at 546.) Moreover, there is language in Gerstein v. Pugh, 420 U. S. 103, 110-111, n. 11 (1975), which suggests that pretrial claims of this type are inherently within the exception when represented by a public defender:
“Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.”
This language, which the Court silently disavows by the result it has reached, may be read to suggest that the formalities of class certification are unnecessary because of the presence of the public defender, who, in effect, represents a continuing class of individuals subject to pretrial detention.
The Court misinterprets the significance of this point. Contrary to the Court’s account, ante, at 481-482, n. 5, it is not that-the Court should now decide whether the provision is unconstitutional with respect to persons requesting bail after conviction. Rather, the point is that deciding whether Hunt was unconstitutionally denied bail prior to trial will have important consequences with respect to Hunt’s right to bail pending appeal — a collateral consequence giving Hunt a continuing stake in the resolution of this case. There is nothing novel in this approach. See, e. g., Sibron v. New York, 392 U. S. 40, 51 (1968) (“mere release of a prisoner does not mechanically foreclose consideration of the merits [of his conviction] by this Court”); Pennsylvania v. Mimms, 434 U. S. 106, 108-109, n. 3 (1977) (“possibility of a criminal defendant’s suffering ‘collateral legal consequences’ from a sentence already served permits him to have his claims reviewed here on the merits”); Powell v. McCormack, 395 U. S. 486 (1969) (remaining claim for back salary justified determining whether Powell was properly excluded from membership in the House of Representatives despite the fact that he had already been seated).