Appellee Hunt was charged with first-degree sexual assault on a child and three counts of first-degree forcible sexual assault. He appeared on these charges in Omaha Municipal Court where his request for bail was denied.
On June 9, 1980, pending trial on the charges against him, Hunt filed a complaint under 42 U. S. C. § 1983 (1976 ed., Supp. V) in the United States District Court for the District of Nebraska. He claimed that Art. I, § 9, of the State Constitution, limiting bail in cases of first-degree sexual offenses, violated his federal constitutional rights to be free from excessive bail and cruel and unusual punishment, to due process and equal protection of the laws, and to the effective assistance of counsel under the Sixth, Eighth, and Fourteenth Amendments. He sought declaratory and injunctive relief only. On October 17, 1980, the District Court dismissed Hunt's civil rights complaint. Hunt appealed to the Court of Appeals for the Eighth Circuit.
Meanwhile, the prosecutions against Hunt had proceeded. On September 10, 1980 — even prior to the District Court decision — and November 5, 1980, he was found guilty of two of the three first-degree forcible sexual assault charges against him. On November 13, 1980, he was sentenced to consecutive terms of 8-15 years in prison for these offenses.
On May 13, 1981, the Court of Appeals for the Eighth Circuit decided Hunt's appeal from the dismissal of his § 1983 claim. Hunt v. Roth, 648 F.2d 1148 (1981). The court reversed the District Court and held that the exclusion of violent sexual offenses from bail before trial violates the Excessive Bail Clause of the Eighth Amendment of the United
In general a case becomes moot " `when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980), quoting Powell v. McCormack, 395 U.S. 486, 496 (1969). It would seem clear that under this general rule Hunt's claim to pretrial bail was moot once he was convicted.
We have recognized an exception to the general rule in cases that are "capable of repetition, yet evading review." In Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam), we said that "in the absence of a class action, the `capable of repetition, yet evading review' doctrine was limited to the situation where two elements combined: (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." See Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 187 (1979); Sosna v. Iowa, 419 U.S. 393 (1975). Because the Nebraska Supreme Court might overturn each of Hunt's three convictions, and because Hunt might then once again demand bail before trial, the Court of Appeals held that the matter fell within this class of cases "capable of repetition, yet evading review."
The Court has never held that a mere physical or theoretical possibility was sufficient to satisfy the test stated in Weinstein. If this were true, virtually any matter of short duration would be reviewable. Rather, we have said that there must be a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party. Weinstein v. Bradford, supra, at 149. We detect no such level of probability in this case.
Nor is Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), relied upon by the Court of Appeals, to the contrary. In that case we held that the constitutionality of a pretrial restrictive order, entered prior to a criminal trial and that expired once the jury was impaneled, was not moot even though the order had long since expired. The Court found that the controversy between the parties was "capable of repetition" because the defendant's conviction might be overturned on appeal, requiring a new trial and possibly a new restrictive order, and because the dispute between the Nebraska Press Association and the State of Nebraska as to the use of restrictive orders was likely to recur in future criminal trials. It was the combination of these elements, both of which were capable of repetition, that permitted the Court to conclude that the matter was not moot under the standard stated in Weinstein.
Accordingly, we find that the case presented is now moot. Indeed, it was moot at the time of the decisions of both the District Court and the Court of Appeals. The judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals with instructions that the complaint be dismissed.
JUSTICE WHITE, 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).
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
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.
The Court's analysis must therefore rest on the limitation of the Court of Appeals' decision to pretrial detainees.
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. 60
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. III 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.
"We hold, therefore, that the portion of Article I, section 9 of the Nebraska Constitution denying bail to persons charged with certain sexual offenses violates the eighth amendment of the United States Constitution, as incorporated in the fourteenth amendment." 648 F. 2d, at 1164-1165.
The constitutionality of Art. I, § 9, as applied to a person awaiting trial is a question distinct from the constitutionality of that section as applied to a person who has been tried and convicted. The Excessive Bail Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment may well apply differently in the two situations. As the Court has often noted: "Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). Therefore, even assuming that Hunt had raised a claim for bail pending appeal, it would be that claim that the Court should decide — not the related but quite distinct claim for bail by a presumptively innocent person awaiting trial. For the same reasons it cannot be said as a matter of federal law that a decision holding that Hunt was unconstitutionally denied bail prior to trial will have any consequences with respect to his right to bail pending appeal and after conviction.
In short, the fact that Hunt may have a live claim for bail pending appeal, does not save from dismissal his now moot claim to pretrial bail.
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).
"Question: [A]fter 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. Hornstein: 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. Hornstein: 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. Hornstein: No, our position is that it is not moot. I mean, I think both sides agree that it is not moot." Id., at 40.
"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.