Christian Coalition of Alabama v. Cole

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
January 8, 2004
No. 03-11305 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 00-00865-CV-CG-L

CHRISTIAN COALITION OF ALABAMA,
Plaintiff-Appellant,

versus

RANDALL L. COLE, in his official capacity
as Commissioner of the Alabama Judicial Inquiry
Commission,
NORMAN E. WALDROP, JR., in his official
capacity as a member of the Alabama Judicial
Inquiry Commission, et al.,
Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(January 8, 2004)

Before CARNES and WILSON Circuit Judges, and HANCOCK*, District Judge.

*
Honorable James H. Hancock, United States District Judge for the Northern District of
Alabama, sitting by designation.
WILSON, Circuit Judge:

The Christian Coalition of Alabama (“CCA”) appeals the district court’s

ruling that the CCA’s case against the members of the Alabama Judicial Inquiry

Commission (“JIC”) is moot. We agree that this case is moot, and affirm the

district court’s order.

BACKGROUND

On August 30, 2000, the CCA distributed a questionnaire to all Alabama

judicial candidates whose names would appear on the November 7, 2000 general

election ballot. The questionnaire originally consisted of thirty questions covering

a number of social and political issues such as abortion, gun control, and the role

of a judge’s religious beliefs in decision making. Before answering the

questionnaire, two sitting judges (neither is a plaintiff in this action) who were

running for re-election in the 2000 general election sought an opinion from the JIC

about the propriety of answering the CCA questionnaire. The JIC is vested by the

Alabama Constitution with authority to enforce the Canons of Judicial Ethics

(“Canons”) against Alabama judges. On September 8, 2000, the JIC issued

Advisory Opinion 00-763 (“Advisory Opinion”), in which the JIC stated that if the

judges answered some of the questions, they would violate specific Canons. The

CCA responded by reducing the number of questions to fifteen. And on

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September 26, 2000 the CCA, along with three candidates on the November 2000

ballot for Alabama judicial office, instituted this suit seeking declaratory and

injunctive relief in federal district court.

On October 10, 2000, the district court enjoined the JIC from enforcing its

Advisory Opinion, but it did not reach the merits. Rather, the district court

abstained and stated that the state courts provided the more appropriate forum to

resolve the First Amendment challenge to the Canons. See Pittman v. Cole, 117

F.Supp. 2d 1285, 1314 (S.D. Ala. 2000).

On appeal, we vacated and remanded with instructions that the district court

certify any state law questions which are outcome determinative to the Alabama

Supreme Court. See Pittman v. Cole, 267 F.3d 1269, 1291 (11th Cir. 2001). We

stated that once the state law questions were answered by the Alabama Supreme

Court, the district court should not abstain from deciding the First Amendment

question. See id. at 1287.

Before the district court was able to certify state law issues to the Alabama

Supreme Court, the United States Supreme Court, on June 27, 2002, issued its

decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002). The

Court held in White that “[t]he Minnesota Supreme Court’s canon of judicial

conduct prohibiting candidates for judicial election from announcing their views

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on disputed legal and political issues violates the First Amendment.” Id. at 788.

On July 19, 2002, the JIC withdrew its Advisory Opinion “in light of the decision

of the United States Supreme Court in [White].”

The JIC members then filed a motion to dismiss on two grounds. First, they

argued that the withdrawal of the Advisory Opinion in response to the White

decision rendered moot all the issues in the case. Second, they stated that the

Alabama Supreme Court Committee on the Canons was considering a change in

the Canons that might be appropriate in response to White. They claimed that

“there is little probability that the Alabama Supreme Court would accept any

certified questions and respond to them under the present circumstances.”

The district court granted the JIC members’ motion to dismiss ruling that

the case is moot. The CCA appeals, asking us to rule that the JIC enforcement

policy violates the First Amendment.

STANDARD OF REVIEW

Questions of mootness are reviewed de novo. United States v. Fla.

Azalea Specialists, 19 F.3d 620, 621 (11th Cir. 1994).

DISCUSSION

Article III of the Constitution limits the jurisdiction of federal courts to the

consideration of “Cases” or “Controversies.” U.S. C ONST. art. III, § 2, cl. 1. The

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“case or controversy” requirement prevents federal courts from deciding a case on

the merits if such a decision could no longer provide “meaningful relief” to the

parties. Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab.

Servs., 225 F.3d 1208, 1217 (11th Cir. 2000). Such a case would be moot, and a

federal court determination of a moot case would constitute an impermissible

advisory opinion. Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001)

(per curiam).

A case is not moot, though, only because a defendant voluntarily ceases the

allegedly improper behavior. See City of Mesquite v. Aladdin’s Castle, Inc., 455

U.S. 283 (1982); United States v. W.T. Grant Co., 345 U.S. 629 (1953); Jews for

Jesus v. Hillsborough County Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998).

Otherwise, a party “could moot a challenge to a practice simply by changing the

practice during the course of a lawsuit, and then reinstate the practice as soon as

the litigation was brought to a close.” Jews for Jesus, 162 F.3d at 629. Only when

“the defendant can demonstrate that ‘there is no reasonable expectation that the

wrong will be repeated’” are federal courts precluded from deciding the case on

mootness grounds. W.T. Grant Co. 345 U.S. at 633 (quoting United States v.

Aluminum Co. of Am., 148 F.2d 416, 448 (2d Cir. 1945); see also Aladdin’s

Castle, 455 U.S. at 289 n.10; Jews for Jesus, 162 F.3d at 629 (holding that the

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airport authority’s change in policy rendered the case moot because the change

was a result of “substantial deliberation” and had been “consistently applied” for

three years). The question we must decide, then, is whether the JIC members can

“reasonably be expected” not to issue another opinion holding that judges who

answer the CCA’s questionnaire would violate the Canons.1

1
The CCA requests that we rule on the constitutionality of the JIC “enforcement policy”
rather than the Canons. This request by the CCA is problematic; we are unclear what that
“policy” actually is. The only evidence the CCA provides of JIC’s “enforcement policy” is the
withdrawn Advisory Opinion. The withdrawn Advisory Opinion based its conclusions on the
Canons. The Canons are currently being reconsidered in light of White. If there is any JIC
“enforcement policy,” it is a policy based on the Canons, the substance and meaning of which
first must be clarified by the Alabama Supreme Court.
In our earlier decision in this case, we said that “it would ‘infringe on the sovereign
immunity of the states’ if federal courts were to ‘deprive the state courts of the opportunity to
construe their own statutes, using the interpretative tools, presumptions, and standards they deem
proper.’” Pittman, 267 F.3d at 1290 (citation omitted). This concern is especially significant
when we are faced with “rules, such as the Canons of Judicial Ethics, that the state supreme court
is not only charged with defining and applying, but that it can also repeal or rewrite as it deems
necessary.” Id. We initially ordered the district court to certify the state law issues in this case to
the Alabama Supreme Court because there were “important, unsettled questions of state law that
may alter or obviate the federal constitutional questions that the federal courts are to decide in
this case.” Id. at 1288.
Subsequent events made certification problematic, and thus the concerns we raised in our
earlier opinion have not been addressed. The JIC’s withdrawal of its Advisory Opinion did not
clarify the “unsettled questions of state law.” Rather, state law is even more unclear than before.
Not only has the Advisory Opinion been withdrawn, but also the Alabama Supreme Court
Committee on the Canons is considering a change in the Canons in response to White. The
CCA’s claim that it is now challenging the JIC’s “enforcement policy” rather than the Canons is
not enough to avoid the concerns we articulated in our earlier opinion.
Despite the lack of clarity regarding the state policy on which we would rule, we need not
again remand to have the district court certify the state law issues to the Alabama Supreme Court.
Subsequent events have rendered this case moot.

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 The CCA argues, pursuant to the Supreme Court’s holding in Aladdin’s

Castle, that we are required to find that the CCA cannot reasonably expect that the

JIC would allow judicial candidates to answer its questionnaire in the future. In

Aladdin’s Castle, a local ordinance was being challenged as unconstitutional.

While the case regarding the ordinance was pending in the appellate court, the city

revised the statute by omitting language from the ordinance that was being

challenged on appeal. The appellate court was not “fully advised” of this change

and ruled that the omitted language was unconstitutional. Aladdin’s Castle, 455

U.S. at 288. The Supreme Court held that even if the appellate court was fully

advised of the revision of the ordinance, the court nonetheless was “under no

duty” to regard the issue as moot. Id. Because “the city’s repeal of the

objectionable language would not preclude it from reenacting precisely the same

provision if the [d]istrict [c]ourt’s judgment were vacated,” the Court held that the

federal courts maintained jurisdiction. Id. at 289. This was especially true given

that the city announced at oral arguments its intention to reenact the same

provision if the district court’s judgment was vacated. Id. at 289 n.11. The CCA

argues, then, that just as the city’s revision of its ordinance in Aladdin’s Castle did

not render moot the case regarding the constitutionality of its ordinance, the JIC’s

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withdrawal of its Advisory Opinion does not render moot the case regarding the

constitutionality of the JIC’s enforcement policy.

The present case, though, is distinguishable from Aladdin’s Castle. Unlike

the defendant in Aladdin’s Castle, the JIC members have stated no intention to

reenact their Advisory Opinion. Instead, the JIC members have professed the

contrary intent, stating in a pleading submitted to the district court that they

“hereby represent that the JIC will not file charges against any judge in connection

with the CCA questionnaire.” The JIC members took this position because they

“acknowledged the superceding import of the United States Supreme Court

decision in [White],” which held that “prohibiting candidates for judicial election

from announcing their views on disputed legal and political issues violates the

First Amendment.” White, 536 U.S. at 788. The JIC members also have

represented that the Alabama Supreme Court Committee on the Canons is

reconsidering existing Canons in light of White, which, if modified, would

necessarily change the JIC position. Such modification would force the JIC to

apply different Canons.

In other words, the JIC members’ representation to the district court that

they “will not file charges against any judge in connection with the CCA

questionnaire” was not made so as to merely avoid a ruling by the federal court.

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Rather, the JIC’s withdrawal of its Advisory Opinion and its representation to the

district court are a result of subsequent events out of the JIC’s control that effected

a change in its position regarding the propriety of answering the CCA

questionnaire. The JIC’s opinions must comply with both the U.S. Constitution

and the Canons. The Supreme Court’s decision in White and the Alabama

Supreme Court’s Committee on the Canons’ decision to reevaluate the Canons in

light of White changed the legal landscape on which the JIC initially based its

Advisory Opinion. Thus, the CCA has every reason to believe that the JIC’s

representation is genuine, and can reasonably expect that the JIC will not issue

another opinion preventing judges from answering the questionnaire at issue in

this case.2

In short, we would be overstepping our judicial authority if we were to rule

on the constitutionality of the JIC’s supposed “enforcement policy” that is

evidenced only by a withdrawn Advisory Opinion that was an interpretation of

2
The CCA also claims that the case is not moot under the “capable of repetition, yet
evading review” doctrine. That doctrine applies when two conditions are met: “(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.” Fla. Right to Life, Inc. v. Lamar, 273 F.3d 1318, 1324 n.6
(11th Cir. 2001) (citation omitted). Our holding that the CCA cannot reasonably expect to be
subjected to the same action again by the JIC precludes application of the “capable of repetition,
yet evading review” doctrine because the second condition is not met. See Jews for Jesus, 162
F.3d at 629-30 n.4.

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Canons that are currently being reconsidered. Not only are there still unsettled

questions of state law, but the CCA can be reasonably certain that the JIC

members will never, according to their own representation, “file charges against

any judge in connection with the CCA questionnaire.” A ruling by us would not

grant a party any meaningful relief, but rather would be an impermissible advisory

opinion about a non-existing “enforcement policy.”

Consequently, we AFFIRM the district court’s determination that this case

is moot.

AFFIRMED.

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