Ripeness & what not to file during the pandemic.

Who would’ve guessed that this blog would serve as forum to discuss constitutional issues?

Nobody, that’s who.  Especially not my Con Law professor at GW.

Anyhow, with my 1L year in mind, I’m confident of two things: (1) I’ll get this wrong; and (2) fans of the justiciability doctrines will let me know that I got this wrong.  So, I’ll do what I usually do: use basketball to make my point.

First, for non-legal scholars, and VERY generally, courts rule on actual controversies.  Not theoretical claims.

For instance, many of you are familiar with the saying “that’s a moot point.”  In short, if you bring a claim to court after the controversy has resolved, you’re too late.  Your claim is moot.

Well, the opposite can happen: you can get to court too early.  If you bring your claim before there’s an actual controversy for the court to decide, the court will dismiss your claim as “not ripe.”

(inside lawyer joke: clearly, I loved the nutshells!)

Ripe Tomato Pictures | Download Free Images on Unsplash

For instance, when I was a high school basketball coach, coaches were famous for chatting up the refs before the game.  The friendly banter would often segue from “you are sooooo much better than the other refs in this league,” to “hey, #12 on their team fouls every time.”

Now, even if it’s true that #12 fouls every time, which it is, the ref can’t call a foul on #12 during warm-ups.  The ref has to wait until the game starts and then do what refs do: judge whether #12 fouls, with me yelling suggesting “FOUL!!” and the other coach suggesting  yelling “no, it isn’t.”

Intuitively, most know that if I had waited two or three plays to suggest that #12 had fouled, the ref would’ve asked “what do you want me to do about it now?”  That’s mootness.  Ripeness is me asking the ref to call a foul on #12 during warm-ups.

Ripe Strawberry - Maddcatt Vapors

What a long & winding road to get to the crux of this blog!  Which is this:

Was That Wrong? is one of the more popular features on this blog.  As loyal readers know, I don’t ask Was That Wrong? until a disciplinary sanction has been imposed against a lawyer’s license.  Basically, I’m a mootness guy.

Which is why this post is not a Was That Wrong? entry: the lawyer involved has not been sanctioned.  Thus, there is no controversy before me.  If you askWas That Wrong?, I will dismiss your question as  “not yet ripe.”

Instead, the following is intended to guide lawyers who are trying to figure out which cases to file during a pandemic in which Vermont courts are accepting only emergency filings.

Loyal reader Geoff Bok tipped me off to this post from the FindLaw Blog.  The post links to this March 18 order issued by United States District Judge Steven Seeger.

Trust me, Judge Seeger’s order is well-worth the the time you spent reading to the end of this blog.

Thank you Geoff!

And, yes, in my example, I had standing.  I was the aggrieved coach!

This post is dedicated to Paul Burgoyne.  Don’t take no crap from coaches Paul!



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