Divided Court rules a moot appeal of health insurance rates can not be decided as a case “capable of repetition yet evading review.”

 

In re Blue Cross and Blue Shield 2022 Individual & Small Group Market Filing, 2022 VT 53 (filed 11/4/2022)

CARROLL, J. Blue Cross Blue Shield of Vermont (Blue Cross) appeals from the Green Mountain Care Board’s (GMCB) decision modifying its proposed health-insurance rates for 2022. The case is moot because health-insurance rates for 2022 cannot now be changed. Because Blue Cross cannot demonstrate that this kind of case is capable of repetition yet evading review or subjects it to continuing negative collateral consequences, Blue Cross fails to meet the exceptional thresholds necessary for us to reach the merits in a moot case. We affirm.

We have recognized the mootness exception for cases that are capable of repetition yet evading review. The exception applies when two conditions are met: (1) “the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration, and [(2)] there must be a reasonable expectation that the same complaining party will be subjected to the same action again.” Price v. Town of Fairlee, 2011 VT 48, ¶ 24, 190 Vt. 66, 26 A.3d 26.

In considering the first prong, “we have examined whether, in the future, the complaining party ‘would not be able to challenge [the action] effectively.’ ” In re Vt. Dep’t of Pub. Serv. (Vermont Yankee), 2008 VT 89, ¶ 11, 184 Vt. 613, 959 A.2d 564 (mem.) (quoting Hunters, Anglers & Trappers Ass’n of Vt., 2006 VT 82, ¶ 16); see also Hamamoto v. Ige, 881 F.3d 719, 723 (9th Cir. 2018) (per curiam) (“The question . . . [is] whether the underlying action is almost certain to run its course before . . . the [court] can give the case full consideration.” (quotation omitted)).

If a litigant “could have taken actions to expedite the appellate process” but did not, the matter does not fit within this exception. State v. Rooney, 2008 VT 102, ¶ 12, 184 Vt. 620, 965 A.2d 481 (mem.); see Paige v. State, 2017 VT 54, ¶¶ 4 n.*, 9, 205 Vt. 287, 171 A.3d 1011 (explaining that appellant filed motions to extend time to file main brief and reply brief and waited until long after event mooting appeal before requesting oral argument from Supreme Court); Hamamoto, 881 F.3d at 723 (concluding capable-of-repetition-but-evading-review exception was not met in case where plaintiffs did “not demonstrate[] that expedited review would have been unavailable”).

We have not established a firm period of time that is “too short” to allow judicial review, though our cases draw broad parameters. In State v. Rooney we held that less than four months was sufficient time to complete appellate review. 2008 VT 102, ¶ 12 In Vermont Yankee, we held that ten months was sufficient time to complete appellate review. 2008 VT 89, ¶ 11. However, in Price, we applied this exception where the statutes at issue created a ninety-day window to review the challenged action at both the trial and appellate levels. 2011 VT 48, ¶¶ 24-25. We also applied the exception to a six-month window for judicial review at both trial and appellate levels. In re Durkee, 2017 VT 49, ¶¶ 10-13, 205 Vt. 11, 171 A.3d 33.

In this case, the Department of Vermont Health Access (DVHA) apparently required Blue Cross to provide its final approved rates eleven days after GMCB’s August 5 approval so that it could review and certify the health insurance plans, incorporate final plan information into brochures and comparison tools, and then update, populate, and test the online exchange system in time for customers to browse plans by October 15. However, it is not clear from the record which of these events may constitute a firm deadline, if any, for completion of appellate review. Blue Cross never alerted the Court to the matter’s expedient nature. if it had immediately appealed the GMCB’s August 5 decision and requested an expedited timeline under Rule 2, the Court most likely would have had sufficient time to decide the appeal. The ten weeks which elapsed between August 5 and October 18 was enough to complete appellate review.

To prevail the second prong, Blue Cross must “show that there is a reasonable expectation” that it “will be subjected to the same action again.” The circumstances surrounding the pandemic were, as Blue Cross concedes, “extraordinary,” resulting in a “year like no other.” Accordingly, Blue Cross simply cannot demonstrate that it is more than a “theoretical possibility” it “will become embroiled again in this same situation.” Even if this case did not evade review it is also not capable of repetition.

Because Blue Cross cannot demonstrate that this kind of case is capable of repetition yet evading review or subjects it to continuing negative collateral consequences, Blue Cross fails to meet the exceptional thresholds necessary for us to reach the merits in a moot case.

COHEN, J., dissenting. I agree that this matter is technically moot because Blue Cross’s 2022 rates can no longer be changed, but I disagree with the majority’s conclusion that this case does not meet the mootness exception for matters capable of repetition but evading review.

Assuming for the sake of argument that Blue Cross should have foregone reconsideration, the review period began on August 5, 2021, when the GMCB issued its initial decision. This appeal became effectively moot on August 16—when the DVHA required insurers to provide their final rates—or very shortly thereafter.  Insofar as the majority is suggesting that appeals from the GMCB could be briefed, argued, and decided in a couple of weeks or less, and that this timetable should be the new bar for satisfying the evading-review prong, I disagree.

Because the timeline for health-insurance-rate regulation and administration remains essentially the same year to year, this case inherently evades review The fact that Blue Cross did not take steps to expedite its appeal should not be relevant because there would have been insufficient time for review even if the appeal were expedited as much as possible. The first prong of the mootness exception is met.

There is also “a reasonable expectation that [Blue Cross] will be subjected to the same action again,” and thus the second element of the mootness exception is met here. Blue Cross has presented a discrete legal question regarding a criterion that the GMCB is legally obligated to consider in every annual-rate review: whether the GMCB misinterpreted the term “excessive.” Nowhere does the GMCB claim that its interpretation of the term “excessive” depended on the pandemic’s extraordinary factual circumstances. In other words, the GMCB does not contend that the way it applied “excessive” was a one-time anomaly justified by the pandemic. Instead, the GMCB argues that , properly interpreted, its governing rules and statutes require it to consider nonactuarial evidence in determining whether a proposed rate is excessive. This legal position would be relevant in any rate year. Though the specific facts will change year to  year, our case law compels us to reach the merits of this appeal. Blue Cross has presented a novel legal issue that is nearly certain to affect future rate proceedings.

Because in my view the majority opinion effectively forecloses appellate review of a recurring issue, I respectfully dissent. I am authorized to state that Chief Justice Reiber joins this dissent.

 

PCR statute applies to juvenile delinquency proceedings.

In re D.C., Juvenile, 2016 VT 72 (filed June 24 2016)

DOOLEY, J. The Vermont Constitution provides, "The Writ of Habeas Corpus shall in no case be suspended. It shall be a writ issuable of right; and the General Assembly shall make provision to render it a speedy and effectual remedy in all cases proper therefor." VT Const. CH II, § 41.

Petitioner appeals the dismissal of a complaint for post-conviction relief (PCR) under 13 V.S.A. § 7131 alleging that the change-of-plea hearing that preceded his adjudication of juvenile delinquency was constitutionally inadequate. The superior court held that the PCR statute does not apply to juvenile delinquency proceedings and that the remedy available to petitioner under 33 V.S.A. § 5113 and Vermont Rule of Civil Procedure 60(b), was foreclosed because petitioner’s claim was not timely raised. On appeal, petitioner argues the fact he is over the age of majority and no longer committed to state custody does not moot the case, and that the PCR statutes permit juveniles to collaterally attack their adjudications. We agree, reverse the superior court’s order dismissing petitioner’s PCR complaint, and remand for further proceedings.

The State -- as appellee -- can raise mootness for the first time on appeal. Town of Charlotte v. Richmond, 158 Vt. 354, 357-58, 609 A.2d 638, 640 (1992) .

In a criminal case “when a petitioner moves under § 7131 to challenge a conviction while still in custody for that challenged conviction, the trial court possesses jurisdiction to hear the claim and the expiration of the custodial term will not render the cause moot.” In re Chandler, 2013 VT 10, ¶ 6. Adverse collateral consequences of a criminal conviction are presumed and need not be proven in the individual case to avoid mootness. 2013 VT 10, ¶ 13. The Chandler rule applies here because juvenile delinquency proceedings have significant collateral consequences. We hold that petitioner’s PCR case is not moot under Chandler.

Accordingly, we proceed to the question of whether a juvenile can challenge a delinquency adjudication using the PCR statute to collaterally attack an unconstitutional delinquency conviction, or a delinquency conviction based on a guilty plea that did not comply with Criminal Procedure Rule 11, or whether the juvenile must rely exclusively on 33 V.S.A. § 5113 for any post-conviction review challenge.

In consideration of the history and significance of the Great Writ, the construction of the applicable statutes, and case law from Vermont and other jurisdictions, we conclude a person adjudicated a juvenile delinquent may bring a PCR petition to challenge an admission of guilt based on due process and Criminal Procedure Rule 11 and that the availability of PCR relief was not impliedly eliminated by the enactment of 33 V.S.A. § 5113 and Civil Procedure Rule 60.

Like other citizens of this state, juveniles have a constitutional right to petition for relief from unlawful restraint from the government, Vt. Const. ch. II, § 41, a right that does not evanesce simply due to “the condition of being a boy.” In re Gault, 387 U.S. at 28. See Shuttle v. Patrissi, 158 Vt. 127, 129-30, 605 A.2d 845, 847 (1992) (noting Vermont’s Constitution guarantees writ “ ‘shall in no case be suspended’ ” and that, while originally limited to situations resulting in immediate release from custody, habeas corpus today protects “broad range of liberty interests” (quoting Vt. Const. ch. II, § 41)); Shequin v. Smith, 129 Vt. 578, 581, 285 A.2d 708, 710 (1971) (“While a legislature may regulate the procedure with respect to habeas corpus, and to some extent, the purposes for which it may be used, the writ may not be abrogated or its efficiency curtailed by legislative action.”).

Reversed and remanded for proceedings consistent with this opinion.

Indemnity. Dismissal of third party claim as “moot” affirmed, despite loss later sustained by appeal and settlement of primary claim.

The Stratton Corporation v. Engelberth Construction, Inc., 2015 VT75 [Filed May 29, 2015.]
SKOGLUND, J.,This appeal arises from dismissal of third-party claims in a construction contract dispute. Owner sued Engelberth Construction, Inc., the project's general contractor. Engelberth filed third-party complaints for indemnification against its subcontractors. The trial court granted summary judgment to Engelberth on Owner’s claims, finding the claims barred by the statute of limitations. Given its summary judgment ruling, and without objection, the court dismissed Engelberth's third-party claims as moot.

Owner’s appeal was also dismissed pursuant to the parties' stipulation. After notification that Owner and Engelberth had settled on appeal, the court issued an entry order on dismissing all claims of whatever sort asserted by any party in this matter. Engelberth sought to amend the dismissal order to provide that the third-party claims were dismissed without prejudice. The court denied its request, and Engelberth appeals. We affirm.

Engelberth maintains that its settlement with Owner after Owner appealed the summary judgment constituted a cognizable loss for which the third-party defendants were contractually responsible. We disagree.

 It is clear that Engelberth's claims were derivative of Owner’s claims against Engelberth. As we have stated, "[i]f the third-party plaintiff prevails against the principal plaintiff and incurs no liability, the third-party defendant in turn incurs no liability to the third-party plaintiff." Riblet Tramway Co. v. Marathon Elecs.-Avtek Drive Div., 159 Vt. 503, 506, 621 A.2d 1274, 1275 (1993). The trial court determined that Engelberth had no liability to Owner on the statute of limitations. At that point, the court reasonably concluded that Engelberth's third-party claims were moot and should be dismissed.

Rule 41(b)(3) expressly provides that: unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision operates as an adjudication upon the merits. We do not address Engelberth's assertion, raised for the first time on appeal, that a dismissal on mootness grounds is not an adjudication on the merits under Rule 41. Engelberth sought to amend the dismissal order to be "without prejudice," but not for any of the reasons it now advances on appeal, Engelberth raised no timely objection to the dismissal of its claims. "[H]aving slept on its rights," we will not now do for Engelberth "what by orderly procedure it could have done for itself." U.S. v. Munsingwear, Inc., 340 U.S. 36, 41 (1950).

Given the absence of any appeal or any other modification of the underlying decision, it is the law of the case that Engelberth has no liability to Owner, and thus, Engelberth has no basis upon which to assert any third-party claims.

SCOVT note:

May a party who incurs attorney’s fees and defense costs who is not liable to the principal plaintiff recover against a third party on a theory of implied indemnity after prevailing against the plaintiff?

Insurers expressly agree to indemnify against groundless claims. Does the obligation of implied indemnity ever extend this far?

The opinion in Stratton v Engelberth suggests the answer is "no." It quotes Riblet Tramway Co. for a general rule that "If the third-party plaintiff prevails against the principal plaintiff and incurs no liability, the third-party defendant in turn incurs no liability to the third-party plaintiff.” Riblet Tramway Co. v. Marathon Elecs.-Avtek Drive Div., 159 Vt. at 506.

The actual holding of Riblet is based on res judicata.

In Riblet the third party plaintiff’s failure to appeal the court's dismissal of its third party claim became a final adjudication of the claim. The case is very similar factually to Stratton v Engelberth in that the defendant/ third party plaintiff prevailed against the plaintiff on grounds of statute of limitations, and then the court dismissed the third party claim. The Riblet Court said defendant should have opposed the dismissal and, if unsuccessful, appealed.

 The Riblet Court expressly said it had no views as to whether dismissal of the main claim mandated dismissal of the third party claim. 159 Vt. at __ n. 1.

Stratton v Engelberth, likewise, should not be viewed as merits ruling that a defending party who incurs no liability cannot recover fees and costs on a theory of implied indemnity. The ruling is grounded in the failure of Engelberth to raise timely objection to the dismissal of its claims and its failure to appeal.  See also Knappmiller v. Bove, 2012 VT 038 (mem.) (party exonerated on main claim who requested  indemnification for attorney’s fees did not preserve issue because it did not object to in instruction that jury was to reach indemnity claim only if plaintiff prevailed).

Appeal from expunged conviction is moot.

In re Unnamed Defendant, 2011 VT 25 (mem.)

Defendant challenges his conviction for resisting arrest on the grounds that the police did not have probable cause to arrest him.  We do not address defendant’s challenge as we find it is moot.

Defendant received a six-month deferred sentence on his resisting arrest conviction.  When he complied with the probation conditions the trial court was obligated to strike the adjudication of guilt, and order expunged all records and files related to the arrest, citation, and investigation, and charge, adjudication of guilt, criminal proceedings, and probation.  Because § 7041(e) erases any record of defendant’s arrest and conviction “this Court can no longer grant effective relief.”

There are no negative collateral consequences. The mere fact that defendant was arrested once for resisting arrest without probable cause does not mean this is “capable of repetition yet evading  review.” The challenge to theconviction is moot.

Defendant’s appeal of his resisting arrest conviction is dismissed.  On remand, the Superior Court shall expunge defendant’s records and files in accordance with 13 V.S.A. § 7041(e).