Charles Clark, III, et al. v. Phil Murphy, Governor of New Jersey, et al.

Courts have struggled with mootness—a problem intensified recently with governments’ hefty issuances of recurrent orders. Improper dismissal of a case as moot enables a government defendant to jockey the court system “in a way that should not be countenanced.” N.Y. State Rifle & Pistol Ass’n v. City of N.Y., 140 S. Ct. 1525, 1527 (2020) (Alito, J., dissenting). What is more, it closes the door to important constitutional claims that deserve their day in court while simultaneously allowing governments to remain unaccountable for the policies they set, carry out, and here, retain the authority to enforce again. In a divided decision that conflicts with many rulings of this Court and other circuits, the Third Circuit affirmed the District Court’s dismissal of Petitioners’ claim as moot, leaving Petitioners without relief. (App. 27). Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63 (2020) rejected mootness when parties “remain under a constant threat” that the government may re-issue the challenged regulations. 141 S. Ct. 63, 68 (2020). Yet, the Fifth Circuit and others find mootness even when governments maintain the power to re-enact the regulations and would again, creating inter-circuit conflict. Brach v. Newsom, 38 F.4th 6, 18 (9th Cir. 2022) (Paez, J., dissenting) (“I would side with the First, Third, Fourth, and Seventh Circuits – and follow the Supreme Court’s guidance”). The questions presented are: 1. Whether under the voluntary cessation exception to mootness a government must satisfy the