Whether government defendants must satisfy the 'absolutely clear' standard under the voluntary cessation exception to mootness

QUESTIONS PRESENTED 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 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, admittedly desire to carry out again. App. at 15, 43. In a divided decision that conflicts with many rulings of this Court and other circuits, the en banc Sixth Circuit dismissed Petitioners’ claim as moot, leaving Petitioners without any relief and as noted in two dissenting opinions, prior to the government truly ceding its offending behavior. App. at 15, 43. Roman Catholic Diocese v. Cuomo rejected mootness when parties “remain under a constant threat” that the government may re-issue the challenged regulations. 141 8. Ct. 63, 68 (2020). Yet, the Sixth 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 ii “absolutely clear” standard and, if not, to what extent should the government be treated differently from private defendants? 2. Whether the government is owed a presumption of good faith under the voluntary cessation exception to mootness when it retains the authority and interest to reimpose its challenged policy? 3. Whether a claim is capable of repetition yet evading review when the government retains the authority to re-issue a restriction that imposes the same harm in the same way?