McLaughlin, Adams and Gibbons, Circuit Judges. Gibbons, Circuit Judge (dissenting).
In this case, appellants claim three New Jersey welfare programs*fn1 that provide benefits to certain striking workers, violate the federal constitution, federal statutes and state statutes. Appellants,*fn2 alleging that their employees while engaged in an economic strike received aid under the challenged programs, sought an injunction restraining various New Jersey officials, appellees here,*fn3 from continuing to provide payments to the workers under these programs.
It is forcefully contended that these welfare programs directly interfere with free collective bargaining, a federal policy enunciated in the labor acts, 29 U.S.C. §§ 157-158, and are unconstitutional because they contravene the Supremacy Clause of the U.S. Constitution. They further assert that the inclusion of striking employees in the programs abridges the federal statute under which one of the programs is funded,*fn4 and the New Jersey statutes pursuant to which the state officials have promulgated regulations affecting striking employees.*fn5
Critical to our disposition of the case, is the sequence of events. On May 14, 1971, at the conclusion of a three-year contract, negotiations having been to that point unfruitful, the employees began an economic strike. Shortly thereafter, as the employers allege, certain of the employees sought public assistance under one of these welfare programs. On June 10, 1971, the complaint giving rise to this litigation was filed, and on June 14 the District Court ordered that a hearing on the request for a preliminary injunction be held on June 24.*fn6 At that hearing the state officials and the union moved to dismiss the employers' complaint pursuant to Rule 12(b)(6), F.R.Civ.P. The trial judge, persuaded by ITT Lamp Division v. Minter, 435 F.2d 989 (1st Cir. 1970), cert. denied, 402 U.S. 933, 91 S. Ct. 1526, 28 L. Ed. 2d 868, rehearing denied, 404 U.S. 874, 92 S. Ct. 27, 30 L. Ed. 2d 120 (1971), on July 13 dismissed the complaint and the motion for a preliminary injunction.
The union states that the strike "ended immediately prior to the June 24, 1971 hearing." The employers allege that the "employees did not return to work until June 28, 1971." Under either factual situation, a new contract having been accepted and ratified,*fn7 it is clear that the labor dispute undergirding this challenge to the New Jersey programs had been concluded before the trial judge dismissed the action and long before appeals were filed or argued in this Court.
Although many important questions of law have been ably argued and briefed by both sides, it now appears to this Court that the resolution of the underlying labor dispute raises squarely the issue of mootness.
Article III of the Constitution commands that the federal judicial power shall extend only to cases and controversies. Thus, lacking a case or controversy, the federal courts are without jurisdiction. In North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971), the Supreme Court states explicitly that mootness is an Article III jurisdictional issue, setting forth the fundamental considerations:
"Although neither party has urged that this case is moot, resolution of the question is essential if federal courts are to function within their constitutional sphere of authority. Early in its history, this Court held that it had no power to issue advisory opinions, Hayburn's Case, 2 U.S. (2 Dall.) 409, 1 L. Ed. 436 (1792), as interpreted in Muskrat v. United States, 219 U.S. 346, 351-353, 31 S. Ct. 250, 55 L. Ed. 246 (1911), and it has frequently repeated that federal courts are without power to decide questions which cannot affect the rights of litigants in the case before them. Oil Workers Union v. Missouri, 361 U.S. 363, 367, 80 S. Ct. 391, 4 L. Ed. 2d 373 (1960). To be cognizable in a federal court, a suit 'must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S. Ct. 461, 81 L. Ed. 617 (1937). However, 'moot questions require no answer.' Missouri, Kansas & Texas R. Co. v. Ferris, 179 U.S. 602, 606, 21 S. Ct. 231, 45 L. Ed. 337 (1900). Mootness is a jurisdictional question because the Court 'is not empowered to decide moot questions or abstract propositions,' United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S. Ct. 448, 64 L. Ed. 808 (1920), quoting California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S. Ct. 876, 37 L. Ed. 747 (1893); our impotence 'to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.' Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S. Ct. 391, 11 L. Ed. 2d 347 (1964). See also Powell v. McCormack, 395 U.S. 486, 496 n. 7, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). Even in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction. Henry v. Mississippi, 379 U.S. 443, 447, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965). Liner v. Jafco, Inc., supra, 375 U.S. at 304, 84 S. Ct. 391." 404 U.S. at 246, 92 S. Ct. at 404.
Beyond these dictates, however, broad statements about mootness suffer the same infirmity as general discussions about most abstruse subjects.*fn8 Though mootness is a constitutional problem, an articulation of the specific parameters of the doctrine has never been assayed by the Supreme Court.*fn9 Rather, the doctrine of mootness is protean in nature, assuming different shapes at different times. Indeed, the recent cases confronting the issue would appear not to produce a unitary, coherent line.
The problem of mootness presents a recurring refrain in several types of cases. Analysis of them reveals four concerns that the Supreme Court addresses in terms of mootness. They are: that some sort of judicial decree be possible, that the parties remain in a posture sufficiently adverse to insure effective litigation, that the issue in contention continue to be concrete, and that the issue not be one that will recur and yet be unreviewable. Beyond these observations, however, conclusions become difficult. This difficulty is at least in part attributable to the proximity of mootness to several other justiciability precepts, and the tendency of courts to become unclear as to just which doctrine is applicable. For example, the concern with sufficient adversity is related to the question of "standing," and the fear regarding loss of concreteness approaches ripeness. Further beclouding the problem is the seeming congruence, at times, of the jurisdictional requirements for declaratory judgments and the mootness doctrine. See e.g., Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969). In spite of the impediments involved in attempting to draw conclusions about the content of the mootness doctrine, the resolution of this case requires that the concerns to which mootness responds be developed.
The early mootness cases were bottomed on the Court's unwillingness to act unless it could issue a decree that would affect the legal rights of the parties to the litigation. There frequently was no discussion of the underpinning of the concept, but it is clear that the Court considered that the phrase "judicial power" encompassed situations only in which an effective decree could be rendered, or that such a situation was not a "case" or "controversy." In Singer Manufacturing Co. v. Wright, 141 U.S. 696, 12 S. Ct. 103, 35 L. Ed. 906 (1891), a Georgia tax was alleged to discriminate impermissibly between two classes of retailers. Singer brought suit to enjoin collection of the tax as levied against it. Before the appeal reached the Supreme Court, Singer, still pursuing the litigation, paid the tax. Although acknowledging that an action for restitution, which would raise the same issues, might lie, the Supreme Court dismissed the case as moot because nothing remained to be enjoined. See, Commercial Cable Co. v. Burleson, 250 U.S. 360, 39 S. Ct. 512, 63 L. Ed. 1030 (1919). See generally, Note, Mootness on Appeal in the Supreme Court, 83 Harv.L.Rev. 1672, 1674-5 (1970).
Much of the recent motion in the mootness field has occurred in cases involving convicted criminals who have been released from prison. The leading cases, separated by twenty-five years, illustrate the Court's shift from emphasis on an effective decree to a more functional approach in the context of a criminal situation, looking for sufficient interest and adversity between the parties. Both St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910, 87 L. Ed. 1199 (1943), and Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968), were challenges brought by persons whose prison terms had been completed. In St. Pierre, the court dismissed as moot, stating:
"On the argument it was conceded that petitioner had fully served his sentence before certiorari was granted. We are of opinion that the case is moot because, after petitioner's service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate. A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. United States v. Alaska S.S. Co., 253 U.S. 113, 115-116, 40 S. Ct. 448, 64 L. Ed. 808, and cases cited; United States v. Hamburg-American Co., 239 U.S. 466, 475-477, 36 S. Ct. 212, 60 L. Ed. 387." 319 U.S. at 42, 63 S. Ct. at 911.
See Parker v. Ellis, 362 U.S. 574, 80 S. Ct. 909, 4 L. Ed. 2d 963 (1960). Sibron, however, was not held to be moot because, as the Court asserted, the brevity of the sentence made review before release impossible, and the enduring effects of the conviction assured that Sibron would diligently litigate the question, and in a concrete factual context. See Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308, 33 L. Ed. 2d 293 (1972). A lack of concreteness seemed the motivation for a finding of mootness in North Carolina v. Rice, supra. See Aikens v. California, 406 U.S. 813, 92 S. Ct. 1931, 32 L. Ed. 2d 511 (1972).
Another group of cases includes those in which something other than the passage of time creates the mootness problem.*fn10 This class of case involves changed circumstances or voluntary cessation of a questioned activity. Thus, changing conditions have at times led to an invocation of the mootness doctrine. In Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2d 551 (1961), the enactment of an amendment to a Sunday-closing statute, plus the election of a new prosecutor were held to moot an assault on the "Blue Laws." In Golden v. Zwickler, supra, Zwickler, was challenging a New York statute prohibiting the distribution of anonymous handbills. The handbills he desired to distribute attacked Congressman Multer, an incumbent running for reelection in 1964. Before the case was heard by the U.S. Supreme Court, Multer had become a Justice of the Supreme Court of New York. His target thus having been removed from active politics and unlikely to reappear, Zwickler's appeal was held not to be justiciable any longer.*fn11 These two cases exemplify the Court's concern both with the concreteness of the controversy and the continuing adverse nature of the parties. The same elements seem to be operative in SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S. Ct. 577, 30 L. Ed. 2d 560 (1972), where the ruling of the Commission that Dow need not include an anti-napalm proposal in its 1968 proxy solicitations was held no longer reviewable. The finding of mootness was based on Dow's voluntary inclusion of the proposal in its 1971 solicitation, the less-than-3% support that the proposal received at that time, and SEC regulations which permitted Dow to delete for three years a proposal with such limited support.*fn12
The most frequently quoted cases of the voluntary cessation type are United States v. W. T. Grant & Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) and United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1897). Both involved conduct by defendants claimed to be in violation of the antitrust laws. The defendants, in each case, ceasing the allegedly illegal activity, urged that the proceedings brought by the government had thus become moot. In each case the Court, looking to the public interest in enforcement of the antitrust law, and the possibility that the defendants might repeat the questioned activity, held that the cases were not moot. The decisive considerations in Grant and Trans-Missouri are not as clear as in some other mootness cases. Nevertheless, the interest of the government in seeing that its laws not be evaded by the practice of ceasing questioned activity when challenged, assure that the government will be an active litigant. The fact that the questionable activity was being conducted at the start of the litigation appeared to aid the Court by providing a concrete controversy. See United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 21 L. Ed. 2d 344, 89 S. Ct. 361 (1968).
Another line of cases dealing with mootness is comprised of those in which the passage of time has caused the immediate object of the litigation to become unobtainable. Typical are disputes that in some way challenge election laws. In these cases a private citizen is the plaintiff and the government is the defendant. The mootness problem arises because the election has passed. Three cases in which this issue appeared have been held moot, Brockington v. Rhodes, 396 U.S. 41, 90 S. Ct. 206, 24 L. Ed. 2d 209 (1969); Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200, 24 L. Ed. 2d 214 (1969); and Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S. Ct. 1716, 32 L. Ed. 2d 317 (1972). Brockington was a suit brought by a would-be candidate for Congress seeking a writ requiring the election board to list his name on the ballot, a step the board had refused to take since the nominating petitions filed by the aspirant were short of the required number of signatures. The Supreme Court stated that because the election was passed, the case was moot since the only relief sought was now unavailing. Brockington would appear to be a return, perhaps anachronistically, to the "effective decree" standard.
Hall was a challenge to Colorado's six-month residency requirement for voting. An amendment to the statute reducing the requirement to two months, and the passage of the election were held to moot the appeal. Since the amendment reducing the residency requirement would have permitted the plaintiffs to vote, and, they would be eligible to vote in the ...