Capable of repetition, yet evading review

The "capable of repetition, yet evading review" exception to the mootness doctrine was first laid down by the United States (US) Supreme Court in the 1911 case of Southern Pacific Terminal Co. v. Interstate Commerce Commission. (219 U.S. 498, 1911) There, a challenge was made against an Order of the Interstate Commerce Commission (ICC) prohibiting the terminal from granting a particular shipper preferential wharfage charges. By the time the US Supreme Court was ready to decide the case, the cease and desist order, which had a validity period of only two years, had already expired. In rejecting the motion to dismiss the case on the ground of mootness, the Court held that:

In the case at bar the order of the Commission may to some extent (the exact extent it is unnecessary to define) be the basis of further proceedings. But there is a broader consideration. The question involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar), and these considerations ought not to be, as they might be, defeated, by short-term orders, capable of repetition, yet evading review, and at one time the government, and at another time the carriers, have their rights determined by the Commission without a chance of redress.

Southern Pacific Terminal Co. was first cited in Our jurisdiction in the 1997 case of Alunan III v. Mirasol. (G.R. No. 108399, July 31, 1997) There, the Court held that the question of "whether the COMELEC can validly vest in the DILG the control and supervision of SK (Sangguniang Kabataan) elections is likely to arise in connection with every SK election and yet the question may not be decided before the date of such elections." Alunan cited, among other cases, Roe v. Wade (410 U.S. 113, 1973), where the petitioner, a pregnant woman, brought suit in 1970 to challenge the anti-abortion statutes of Texas and Georgia on the ground that she had a constitutional right to terminate her pregnancy. Though the case was not decided until three years later, long after the termination of petitioner's 1970 pregnancy, the US Supreme Court refused to dismiss the case as moot:

[W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of non-mootness. It truly could be "capable of repetition, yet evading review."

Also cited were Moore v. Ogilvie, 394 U.S. 814 (1969), which involved a challenge to signature requirement on nominating petitions which the US Supreme Court had yet to decide before the election was held, and Dunn v. Blumstein, 405 U.S. 330 (1972), where the US Supreme Court decided merits of a challenge to durational residency requirement for voting even though Blumstein had in the meantime satisfied that requirement.

Over the years, however, the US Supreme Court has increasingly limited the application of the "capable of repetition, yet evading review" exception. Beginning in the 1975 case of Sosna v. Iowa, 419 U.S. 393 (1975), a class action challenging the Iowa durational residency requirement for divorce, the US Supreme Court held:

In Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 (1911), where a challenged ICC order had expired, and in Moore v. Ogilvie, 394 U. S. 814 (1969), where petitioners sought to be certified as candidates in an election that had already been held, the Court expressed its concern that the defendants in those cases could be expected again to act contrary to the rights asserted by the particular named plaintiffs involved, and in each case the controversy was held not to be moot because the questions presented were "capable of repetition, yet evading review.'' That situation is not presented in appellant's case, for the durational residency requirement enforced by Iowa does not at this time bar her from the Iowa courts. Unless we were to speculate that she may move from Iowa, only to return and later seek a divorce within one year from her return, the concerns that prompted this Court's holdings in Southern Pacific and Moore do not govern appellant's situation. But even though appellees in this proceeding might not again enforce the Iowa durational residency requirement against appellant, it is clear that they will enforce it against those persons in the class that appellant sought to represent and that the District Court certified. In this sense the case before us is one in which state officials will undoubtedly continue to enforce the challenged statute and yet, because of the passage of time, no single challenger will remain subject to its restrictions for the period necessary to see such a lawsuit to its conclusion.

In the subsequent case of Weinstein, et al. v. Bradford, 423 U.S. 147 (1975), the US Supreme Court rejected a plea to resolve an issue alleged to be "capable of repetition, yet evading review." Bradford sued the members of the Parole Board claiming that he was constitutionally entitled to certain procedural rights in connection with the latter's consideration of his eligibility for parole. Petitioners Weinstein, et al. brought the case before the Supreme Court after the Court of Appeals ruled in Bradford's favor. At the time, however, Bradford had already been granted parole.

The Court found that the suit did not involve a class action—as in fact the District Court refused Bradford's earlier motion to have it declared as such—and that there is no demonstrated probability that Bradford will again be subjected to the parole system. Thus, following Sosna, "the capable of repetition, yet evading review" exception was limited to the situation where two elements must concur:

(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. The instant case, not a class action, clearly does not satisfy the latter element. While petitioners will continue to administer the North Carolina parole system with respect to those who at any given moment are subject to their jurisdiction, there is no demonstrated probability that respondent will again be among that number.[29] (Emphasis supplied.)

The requirement that these two elements must concur has continuously been reiterated in a number of later US cases such as Murphy v. Hunt, 455 U.S. 478 (1982); Lewis v. Continental Bank Corp., 494 U.S. 472 (1990); Spencer v. Kemna, 523 U.S. 1 (1998); United States v. Seminole Nation, 316 U.S. 286 (1942); Hain v. Mullin, 327 F.3d 1177, 1180 (10th Cir. 2003).

ALSO READ: RAMA V. MOISES (G.R. NO. 197146. DECEMBER 06, 2016).

In the case of Madrilejos v. Gatdulal (G.R. No. 184389, September 24, 2019), the Supreme Court expressly adopted the two-requirement rule in this jurisdiction. There, it was emphasized that there was already legal literature on this matter, starting with Justice Brion's Concurring and Dissenting Opinion in the En Banc Decision in Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (G.R. No. 183591, October 14, 2008). Dissenting, Justice Brion wrote:

Finally, let me clarify that the likelihood that a matter will be repeated does not mean that there will be no meaningful opportunity for judicial review so that an exception to mootness should be recognized. For a case to dodge dismissal for mootness under the "capable of repetition yet evading review" exception, two requisites must be satisfied: (1) the duration of the challenged action must be too short to be fully litigated prior to its cessation or expiration; and (2) there must be reasonable expectation that the same complaining party will be subjected to the same action again.

The time constraint that justified Roe v. Wade, to be sure, does not inherently exist under the circumstances of the present petition so that judicial review will be evaded in a future litigation. As this Court has shown in this case, we can respond as fast as the circumstances require. I see nothing that would bar us from making a concrete ruling in the future should the exercise of our judicial power, particularly the exercise of the power of judicial review, be justified.[32] (Citations omitted.)

The 2008 case of Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain involved several suits filed to, among others, prohibit the scheduled signing of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) between the Government and the Moro Islamic Liberation Front (MILF). The majority opinion held that although certain developments (such as the non-signing of the MOA-AD and the eventual dissolution of the Government of the Republic of the Philippines [GRP] panel) have mooted the case, there was a "reasonable expectation that petitioners will again be subjected to the same problem in the future as respondents' actions are capable of repetition, in another or any form," hence, the exception to mootness was applied.

Two years later, in 2010, the Court En Banc would categorically adopt the two-requirement rule in Pormento v. Estrada (G.R. No. 191988, August 31, 2010), to wit:

While there are exceptions to this rule, none of the exceptions applies in this case. What may most probably come to mind is the "capable of repetition yet evading review" exception. However, the said exception applies only where the following two circumstances concur: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. The second of these requirements is absent in this case. It is highly speculative and hypothetical that petitioner would be subjected to the same action again. It is highly doubtful if he can demonstrate a substantial likelihood that he will "suffer a harm" alleged in his petition.

This ruling in Pormento would be affirmed in the later cases of International Service for the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia (G.R. No. 209271, July 26, 2016) and Philippine Association of Detective and Protective Agency Operators v. COMELEC (G.R. No. 223505, October 3, 2017).

Madrilejos v. Gatdulal (G.R. No. 184389, September 24, 2019) taught that what has developed and prevailed over time, therefore, is a legal consensus that the "capable of repetition, yet evading review" exception to mootness is not meant to be applied literally. In the cases where the exception was correctly applied, time constraint was a significant factor. As the US Supreme Court would later caution in Murphy v. Hunt, 455 U.S. 478 (1982), a mere physical or theoretical possibility was never sufficient to satisfy the two-part test. If this were true, virtually any matter of short duration would be reviewable. There must be a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party.

The cases of David v. Macapagal-Arroyo (G.R. No. 171396, May 3, 2006) and Belgica v. Ochoa, Jr. (G.R. No. 208566, November 19, 2013) show very different circumstances calling for the application of the exception.

First. David involved suits challenging Proclamation No. 1017 and General Order No. 5 issued by then President Gloria Macapagal-Arroyo declaring a state of national emergency and calling out the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) to prevent and suppress acts of terrorism and lawless violence in the country. Despite the lifting of said state of emergency one week later, the Court refused to dismiss the case and justified its assumption of jurisdiction over the matter as follows:

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

All the foregoing exceptions are present here and justify this Court's assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the public's interest, involving as they do the people's basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees. And lastly, respondents' contested actions are capable of repetition. Certainly, the petitions are subject to judicial review.

As observed by Justice Brion, David properly applied the principle owing to the history of "emergencies" which had attended the administration of President Macapagal-Arroyo since she assumed office. Given such history, it was not far-fetched for the then President to again make a similar declaration in the future, or to possibly "act contrary to the rights asserted by the particular named plaintiffs involved."

In Belgica, on the other hand, the Supreme Court rejected the view that the constitutionality issues related to the assailed Priority Development Assistance Fund (PDAF) in the 2013 General Appropriations Act had been rendered moot and academic by the reforms undertaken by the Executive Department and former President Benigno Simeon S. Aquino III's declaration that he had already "abolished the PDAF." The Court held that the application of the "capable of repetition, yet evading review" exception was called for because the preparation and passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence:

The relevance of the issues before the Court does not cease with the passage of a PDAF free budget for 2014. The evolution of the "Pork Barrel System," by its multifarious iterations throughout the course of history, lends a semblance of truth to petitioners' claim that "the same dog will just resurface wearing a different collar." In Sanlakas v. Executive Secretary, the government had already backtracked on a previous course of action yet the Court used the "capable of repetition but evading review" exception in order "to prevent similar questions from re-emerging." The situation similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which certain public funds are spent, if not resolved at this most opportune time, are capable of repetition and hence, must not evade judicial review.