May 21, 2019

Tenth Circuit: Interlocutory Appeal of Preliminary Injunction Related to 2014 Elections Moot

The Tenth Circuit Court of Appeals issued its opinion in Fleming v. Gutierrez on Tuesday, May 5, 2015.

The 2012 general election in Sandoval County, New Mexico, was fraught with problems. Some voters waited more than five hours to vote, and others left before casting their ballots. Following the disastrous election, the Sandoval County Board of Commissioners passed two resolutions condemning the handling of the 2012 election and designating more voting centers for the 2014 election.

Several voters filed suit in federal district court after the 2012 elections, alleging equal protection and due process § 1983 violations and a violation of New Mexico’s constitutional free-and-open-elections clause. In September 2014, the district court entered a preliminary injunction against the county that essentially made any discretionary aspects of the Board’s resolutions non-discretionary. The injunction explicitly stated it was to apply through the November 2014 elections, at which point the court would reevaluate the case. The county filed an interlocutory review, seeking vacation of the injunction on the grounds that the voters lacked standing and were unlikely to prevail on the merits, and also seeking expedited review. The Tenth Circuit declined expedited review and the November 2014 election occurred under the bounds of the preliminary injunction.

The voters requested the Tenth Circuit to dismiss the appeal as moot. The county argued the election did not moot the injunction because it falls within the exception to the mootness doctrine for issues capable of repetition yet evading review, and because the injunction remains relevant to the issue of the prevailing party’s attorney fees. The Tenth Circuit addressed each contention in turn.

The Tenth Circuit held that the November 2014 election mooted the interlocutory appeal, finding any decision about the district court’s order would have no present day effect on the parties because the election and the effective time for the injunction had passed. The Circuit further found the exception to the mootness doctrine for issues capable of repetition yet evading review did not apply to the preliminary injunction, though it could apply to the case as a whole. Because the complaint, in which the voters sought permanent injunctive relief as to all future elections, was still pending in the district court, the issues were capable of review.

As to the attorney fee award, the Tenth Circuit found that the voters were the prevailing party as to the preliminary injunction but may not prevail on the suit in district court. Because no fee request had been filed, the Tenth Circuit lacked jurisdiction to address the issue.

The Tenth Circuit granted the voters’ motion to dismiss the appeal as moot and dismissed the appeal for lack of jurisdiction.

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