By Lisa Soronen
In an amicus brief in Uzuegbunam v. Preczewski, the State and Local Legal Center (SLLC) argues that when a government entity changes a policy after a lawsuit has been filed and the plaintiff only asks for nominal damages the case is moot.
Two Georgia Gwinnett College students sued the college over its Freedom of Expression policy, which only allowed students to engage in expressive activities in two designated areas after getting a permit. They sought an injunction preventing the college from enforcing its policy and nominal damages of $1. The college then changed the policy.
The 11th Circuit concluded that the students’ claims for nominal damages don’t keep this case alive. Circuit precedent reasoned that nominal damages have no practical effect absent “a well-pled request for compensatory damages.” The students didn’t ask for compensatory damages. The parties disagree over whether they may have been entitled to them.
The SLLC amicus brief argues that “[w]hen only nominal damages are at stake, because a law or policy has been changed and there has been no actual injury, a judicial determination will not redress anything and the case is moot. That judicial determination would be no more than an advisory opinion that at best would provide some measure of psychic satisfaction to one of the parties.”
The brief also argues that federalism supports a finding of mootness in this case. “Governmental entities must often make difficult judgment calls affecting the constitutional rights of individuals under circumstances in which the law is not clear. If a state, local government, or school district later determines that a law or policy should be rescinded or modified because the circumstances have changed, competing interests have been reevaluated, or the constitutionality of the law or policy has been questioned, it should not be punished by facing expensive and time-consuming litigation when there has been no compensable harm.”
Patrick M. Kane, Kip D. Nelson and Christopher McNamara of Fox Rothschild wrote the SLLC amicus brief which the following organizations joined: NCSL, Council of State Governments, National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, Government Finance Officers Association and National School Boards Association.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.