Metropolitan News-Enterprise


Friday, January 24, 2020


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Ninth Circuit Panel Members Differ Over Permissibility of Assuming Standing

Judge Wallace Asserts Mootness May Not Be Declared Absent Justiciable ‘Case of Controversy’


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday dismissed an appeal based on mootness because no relief could be afforded if there were a remand, with a veteran member of the court protesting that the issue of mootness should not be reached without first determining if the appellant has standing.

Senior Circuit Judge J. Clifford Wallace said in a concurring and dissenting opinion that the District Court judge, Maxine M. Chesney of the Northern District of California, correctly determined that a boy challenging school election procedures lacked standing, and Wallace said he would affirm on that basis.

The plaintiff, denominated “K.Y.,” brought his action through his parents ad litem, David and Leilanie Yu, on Feb. 13, 2018, alleged he was a sophomore at San Ramon Valley High School, was “running unopposed” for the office of junior class president, and was unconstitutionally restricted by a rule which banned “inappropriate” campaign materials. Cheney dismissed the action on June 21, 2018, because the youth failed to pinpoint what, in specific, he wanted to do and was precluded from doing.

No Future Candidacy

The majority of the Ninth Circuit’s panel was comprised of Circuit Judge Michelle T. Friedland and District Court Judge Timothy Hillman of the District of Massachusetts, sitting by designation. Their memorandum opinion says that K..Y. is now a senior, will be graduating, and there is no further election in which he could run.

It declares that there is no issue that is “live” and therefore no “case or controversy” to adjudicate, as required by Art. III of the U.S. Constitution for jurisdiction to exist in federal courts.

In a footnote, the U.S. Supreme Court’s 2000 opinion in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. is quoted as saying that courts “may assume without deciding that standing exists in order to analyze mootness.”

Standing Is Essential

Wallace, 91, who has taught at Brigham Young University, the University of San Diego and California Western School of Law, said in a concurring and dissenting opinion:

“I realize that it has been over four decades since I last taught a course on federal jurisdiction. However, standing is one of the few constraints in our system of law, ‘an essential and unchanging part of the case-or-controversy requirement of Article III.’

The quotation was from the 2008 U.S. Supreme Court decision in Davis v. Federal Election Commission and the high court’s 1992 opinion in Lujan v. Defenders of Wildlife.

Threshold Question

 “Enshrined in the constitutional text as a clear limit of our judicial power, standing has been ‘considered a threshold question’ that we must resolve,” Wallace continued, observing:

“Were we to conclude that there was no Article III standing, as I believe we should have, we would have affirmed the district court’s judgment. However, because my colleagues have decided to resolve the case on mootness grounds, the district court’s well-reasoned decision is now vacated….As a former district court judge, I can appreciate the strange result of being correct on the law used to resolve the case––but being reversed.”

The case is K.Y. v. Schmitt, 18-16350.

David and Leilanie Yu were also guardian’s ad litem for their son, Nathan, in litigation at the state and federals levels stemming from discipline imposed on him at the San Ramon Valley High School over a campaign video depicting him rescuing fellow students from supposed Muslim terrorists.


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