Courts have discretion to consider moot issues on appeal

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The Court of Appeals, in In re S.F., ____ Md. ____, 2022 WL 324890 (February 3, 2022), recently confirmed that, even when an issue is moot, courts still have discretion to consider it. The decision involved a “no suspension from school” probation condition imposed on a minor, who asserted it was impermissibly vague as it provided no specific standards identifying when the minor could be suspended. 

The defendant thus argued that the conditions of probation granted the school board excessive discretion in determining whether the defendant could be suspended and thus in violation of the probation conditions. However, prior to the appellate argument, the minor successfully completed probation, and the State moved for dismissal based on the lack of any controversy between the parties. 

While there was no dispute that the case was moot, the Court noted that dismissal for mootness is, under Maryland Rule 8-602(c)(8), discretionary.  In re S.F., at 16. The Court noted it has “the constitutional authority” to review moot issues “in instances where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest.” Id., citing J.L. Matthews, Inc. v. Maryland National Capital Park and Planning Commission, 368 Md. 71, 96 (2002). 

As the Court held in Lloyd v. Board of Supervisors of Elections of Baltimore City, 206 Md.36, 43 (1954), such “discretionary authority” allows courts to reach the merits of a moot case when “the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty” is likely to again prevent a court decision. In general, even when an issue is moot, the Court of Appeals will still consider it when the Court’s consideration and interpretation “will assist judges” in making decisions involving an issue of public importance that is likely to occur frequently. In re S.F. at 17, citing Coburn v. Coburn, 342 Md. 244, 250 (1996).

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