H. Brooke Paige
State of Vermont, Secretary of State James Condos, Attorney General William Sorrell, Rafael Edward Cruz and Marco Antonio Rubio
Court On Appeal from Superior Court, Washington Unit, Civil
Division Timothy B. Tomasi, J.
Timothy B. Tomasi, J. H. Brooke Paige, Pro Se, Washington,
and Mario Apuzzo, Jamesburg, New Jersey, for
William H. Sorrell, Attorney General, and Todd W. Daloz and
Katherine L. Pohl, Assistant Attorneys General, Montpelier,
for Defendants-Appellees State and Condos.
Gregory D. Cote, Boston, Massachusetts, for
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. In this case, appellant-a Vermont voter and candidate in
the state's 2016 presidential primary-challenges whether
U.S. Senators Ted Cruz and Marco Rubio are constitutionally
qualified to run for President of the United States. The
trial court dismissed the suit on the grounds that appellant
lacked standing and the court lacked jurisdiction to assess
the qualifications of the Senators to run for president.
Appellant now appeals both holdings, but we affirm the
dismissal for a different reason: the case is now moot.
2. Appellant's case began on December 9, 2015, when he
filed a declaratory judgment action against the State, the
Secretary of State, and the Attorney General. This action
sought, in relevant part: (1) a declaration of "the
precise meaning of the phrase 'natural-born Citizen'
"; (2) an order requiring the Secretary of State to
determine the qualifications of presidential candidates to
serve as president, and (3) an injunction to prohibit the
Secretary of State from printing the Vermont presidential
primary ballots with the names of allegedly
"constitutionally unqualified candidates, "
including Senators Cruz and Rubio. Appellant argued that if
the Secretary of State allowed "one or more unqualified
candidates" on the ballot for president, then,
"in his capacity as a citizen, " appellant
would be deprived of "his rights under the Fifth and
Fourteenth Amendment[s] to life, liberty, and property
without due process of law" and "as a candidate
for the office of President" he would
"suffer the prudential debilities of having to contend
with candidates who are not qualified, " such as
competing for signatures, campaign funds, media coverage, and
votes. (Emphases added).
3. On January 4, 2016, appellant moved for a temporary
restraining order to prevent the distribution of the
state's presidential primary ballots. On January 12, he
amended his complaint to remove the Attorney General as a
defendant and to add Senators Cruz and Rubio as defendants.
After holding a hearing on this motion on January 15, the
court denied the motion because it reasoned that
appellant's "concern that only constitutionally
qualified candidates appear on the primary ballot is not
particular to him"; "[t]he fact that he has
professed a desire to be a presidential primary candidate for
the Republican party does not increase the nature of the
alleged harm"; he did not establish that the inclusion
of the Senators on the ballot prevented him from obtaining
the required number of signatures or "would thwart his
attempt to win the primary as a write-in candidate"; and
appellant "has little chance of success on the
4. The State and the two Senators then filed motions to
dismiss the case, and appellant moved to amend his complaint
again, largely reiterating his initial complaint and
responding to the motions to dismiss. The day after the
primary election-which took place on March 1, 2016- appellant
moved for another temporary restraining order to prevent
certification of the results, which were split between Ohio
Governor John Kasich and now-President Donald Trump. The
court denied this request on March 4, and the results were
certified on March 10. On May 12, the court finally dismissed
the case, reiterating two of its key reasons for denying
appellant's two motions for temporary restraining orders
before and after the primary election: (1) appellant lacked
standing "because he is unable to point to any injury
that sets him apart from the public generally" and (2)
the court lacked jurisdiction to assess the qualifications of
the Senators "because [appellant] is trying to get the
judiciary to resolve a matter committed to Congress, a
so-called political question."[*]
5. Appellant now appeals the trial court's two holdings.
However, as noted previously, we affirm the dismissal for an
entirely different reason. We find that the case is now moot
because the election is over-neither Senator won the
presidency or even Vermont's primary election-and it
would be speculative to address the issues raised by
appellant because neither Senator is seeking the presidency.
Moreover, no exception to the mootness doctrine applies.
6. We review the court's dismissal of appellant's
case de novo. See Town of Bridgewater v. Dep't of
Taxes, 173 Vt. 509, 510, 787 A.2d 1234, 1236 (2001)
(mem.) ("We review a trial court's dismissal for
lack of subject matter jurisdiction de novo . . . .")
(quotation omitted). For this Court to have jurisdiction over
an appeal, the appeal must involve an actual controversy
arising between adverse litigants who have a legally
cognizable interest in the outcome of the case. See Paige
v. State, 2013 VT 105, ¶ 8, 195 Vt. 302, 88 A.3d
1182 ("In order for the Court to rule on substantive
issues, an appeal must involve either a live controversy, or
the parties must have a legally cognizable interest in the
outcome of the case throughout the entire proceeding."
(quotations omitted)); Chase v. State, 2008 VT 107,
¶ 11, 184 Vt. 430, 966 A.2d 139 (2008) ("It is
well-settled that this Court has jurisdiction to decide only
actual controversies arising between adverse litigants, duly
instituted in courts of proper jurisdiction."
(quotations omitted)). Otherwise, any opinion issued by this
Court would merely be advisory, and would not be within our
constitutional authority to render. Doria v. Univ. of
Vt., 156 Vt. 114, 117, 589 A.2d 317, 318 (1991)
("Unless an actual or justiciable controversy is
present, a declaratory judgment is merely an advisory opinion
which we lack the constitutional authority to render.").
7. A case becomes moot-and this Court loses jurisdiction-when
there no longer is an actual controversy or the litigants no
longer have a legally cognizable interest in the outcome of
the case. See In re S.H., 141 Vt. 278, 280, 448 A.2d
148, 149 (1982) ("The general rule is that a case
becomes moot 'when the issues presented are no longer
"live" or the parties lack a legally cognizable
interest in the outcome.' ") (quoting U.S.
Parole Comm'n v. Geraghty, 445 U.S. 388, 396
(1980)). Stated another way, a case becomes moot when this
Court "can no longer grant effective relief."
Paige, 2013 VT 105, ¶ 8 (quotation omitted).
Importantly, even if a case was not moot when it was first
filed, intervening events since its filing can render it
moot. See In re Moriarty, 156 Vt. 160, 163, 588 A.2d
1063, 1064 (1991) ("Even though there was once an actual
controversy, a change in the facts can render an issue or
entire case moot.").
8. Here, appellant's case does not present an actual
controversy because the election is over. Since appellant
filed his initial complaint, both Senator Cruz and Senator
Rubio were included on Vermont's presidential primary
ballot. But neither Senator earned any delegates from
Vermont, neither won the Republican Party's presidential
nomination, and neither is currently seeking the presidency.
Indeed, the general election is over, and President Trump is
now in office. The entire purpose of appellant's case was
to prevent the inclusion of the Senators on the primary
ballot, and the Court cannot now grant appellant any relief
that will undo the inclusion of the Senators on the ballot or