In re The Bright Ideas Co.

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CV-1032
IN RE: THE BRIGHT IDEAS COMPANY, INC., APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(CAT-5718-19)
(Hon. Anthony C. Epstein, Reviewing Judge)
(Argued October 26, 2021 Decided November 10, 2022)
John A. Galbreath for appellant.
Mary L. Wilson, Senior Assistant Attorney General at the time, with whom
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan,
Solicitor General at the time, Caroline S. Van Zile, Principal Deputy Solicitor
General at the time, and Carl J. Schifferle, Deputy Solicitor General, were on the
brief, for appellee.
Before BECKWITH, EASTERLY, and DEAHL, Associate Judges.
DEAHL, Associate Judge: This appeal, while superficially about a $100
speeding ticket, raises far more important stakes about an institutional litigant’s
strategic attempts to evade this court’s review. After successfully defending a $100
speeding ticket through two layers of agency review and before the Superior Court,
the District of Columbia asked this court to summarily affirm and uphold the ticket.
2
When we denied that motion, and instead asked for supplemental briefing and
indicated we would hear oral argument in the matter—preliminary indications that
the challenge to the ticket may have some merit—the District “voided” the ticket,
tried to refund the already-paid fine, and now urges us to dismiss the appeal as moot.
We decline that invitation. Appellant, the Bright Ideas Company, has raised
constitutional and regulation-based challenges to how the District enforces its traffic
laws. The District’s decision to void its ticket at the twenty-fifth hour—in this rare
challenge to a speeding ticket that persists all the way to this court—has not rendered
those challenges moot. The voluntary cessation doctrine instructs that one party’s
“voluntary cessation of a challenged practice does not moot a case unless
‘subsequent events make it absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.’” Trinity Lutheran Church of Columbia,
Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (quoting Friends of the Earth, Inc.
v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). We have no such
assurance here, as the District has given us no reason to think it has changed the
enforcement practices Bright Ideas now challenges. Rather, the District has made it
reasonably clear that it has not altered its challenged enforcement practices at all and
that its one-off act of voiding this ticket was done only to avoid a potential precedent-
setting loss. This court will not indulge such strategic attempts to evade review,
3
particularly where the District already took a bite at the apple when it unsuccessfully
sought summary affirmance.
On the merits, we agree with the Bright Ideas Company that the District
misapplied its traffic regulations in upholding the issued citation. When the District
cites a driver for violating a posted speed limit, as here, a viable defense is that the
posted speed limit sign is not “sufficiently legible to be seen by an ordinarily
observant person.” 18 D.C.M.R. § 2000.5. The District’s contrary view, that
whenever the posted limit is illegible, it may always resort to enforcing the so-called
default speed limit, see 18 D.C.M.R. § 2200.6, is not a reasonable interpretation of
the pertinent traffic regulations. We therefore reverse the agency’s order upholding
the citation.
I.
This case stems from a ticket issued after an automated traffic camera
photographed a car registered to Bright Ideas speeding on the 2900 block of Military
Road NW. Bright Ideas is a Maryland company whose sole proprietor was driving
the vehicle and would later represent his company as counsel throughout the legal
proceedings, including in this appeal. The ticket listed the car’s speed as 36 mph,
the “Posted Speed” as 25 mph, the infraction as “Speed 11-15” mph over the limit,
4
and the fine as $100. Bright Ideas challenged the ticket before a Department of
Motor Vehicles Adjudication Services Hearing Examiner, arguing that there was “no
clear signage of the speed limit” on that stretch of road, where the lone speed limit
sign was poorly positioned and partially obscured by tree branches. The hearing
examiner upheld the ticket, reasoning that “[i]n the District of Columbia, if you do
not know what the posted speed limit is, the law requires you to travel at 25 miles
per hour.” See 18 D.C.M.R. § 2200.6 (2019).
Bright Ideas appealed to the Department of Motor Vehicles’ Traffic
Adjudication Appeals Board, which also upheld the ticket. In its decision, the
Appeals Board considered two traffic regulations. First, it cited 18 D.C.M.R.
§ 2200.2 for the proposition that the 25 mph posted speed limit on this stretch of
Military Road was set by the Mayor and “determined to be safe and reasonable under
the conditions found to exist at the location.” Second, and in the alternative, it
looked to 18 D.C.M.R. § 2200.6, which at the time provided that “[o]n all streets
and highways, unless otherwise designated in accordance with [18 D.C.M.R.]
§ 2200.2, the maximum lawful speed shall be twenty-five miles per hour (25 mph).” 1
1
In June 2020, this regulation was amended to reduce the default speed limit
to 20 mph. See 67 D.C. Reg. 7539 (June 12, 2020) (emergency rulemaking); 67
D.C. Reg. 11238 (Sept. 25, 2020) (final regulation).
5
Echoing the hearing examiner’s rationale, the unanimous three-member Appeals
Board reasoned that if Bright Ideas’ driver “did not observe a speed limit sign stating
otherwise, he should have observed the 25 mph [default] limit under the
regulations.”
Bright Ideas next petitioned the Superior Court for leave to challenge the
Appeals Board’s decision. See D.C. Code § 50-2304.05. In its petition, the company
asserted for the first time that the District was engaged in an unconstitutional practice
of “conduct[ing] speed camera surveillance and ticketing in locations where speed
limits are not reliably posted, and where drivers would not reasonably expect the
speed limit to be just 25 mph.” Bright Ideas contended that when drivers then
challenge the speed limit as improperly posted, the District “sidesteps the protests
by stating that it does not matter whether the speed limit is properly posted, because
any street in the District has a speed limit of just 25 mph if not posted” under 18
D.C.M.R. § 2200.6. The company argued that this scheme violated its due process
rights because, for speed limits, fair notice “means reliably posting those limits so
that drivers can regulate their behavior accordingly.”
The Superior Court denied Bright Ideas’ petition, finding that the “adequacy
of the signage” was “not legally relevant.” Citing the default speed limit, see 18
6
D.C.M.R. § 2200.6, it reasoned that if a speed limit sign “did not notify Bright Ideas
of the speed limit,” District law “imposed a 25-mph speed limit.” The court likewise
rejected Bright Ideas’ constitutional arguments, concluding that drivers have
sufficient notice of the District’s default speed limit.
Bright Ideas now appeals to this court. After Bright Ideas filed its opening
brief, the District asked us to summarily affirm the trial court’s order. See Carl v.
Tirado, 945 A.2d 1208, 1209 (D.C. 2008) (summary affirmance is proper when the
movant shows that “the basic facts are both uncomplicated and undisputed, and that
the lower court’s ruling rests on a narrow and clear-cut issue of law”). We denied
the District’s motion and directed it to file a supplemental brief concerning the
constitutional issues raised by Bright Ideas. We also informed the parties that the
case would be scheduled for argument on the regular calendar. 2
2
This court’s internal operating procedures explain that cases may be placed
on the summary calendar, which means they will be submitted without oral argument
unless otherwise ordered, or on the regular calendar, which means we will hear
argument unless otherwise ordered. D.C. App. I.O.P. VI. A minority of appeals are
placed on the regular calendar, which is reserved for cases where it appears that “the
decisional process will be significantly aided by oral argument,” after considering
factors like whether the case raises “an issue of first impression,” whether “an
existing rule of law may be criticized or questioned,” and whether “a substantial
issue as to the constitutionality of a statute may be raised.” Id. at VI-B.
7
The District did not submit the supplemental brief as directed. Instead, after
seeking and receiving multiple extensions to file, it notified this court that it was
“taking steps to provide the relief [Bright Ideas] request[ed]” by commencing the
process to void the speeding ticket and refund Bright Ideas the already-paid $100
fine. The District then filed a motion to dismiss the appeal as moot, stating that it
had provided “all the relief available to the Company in this action.” Bright Ideas
opposed the motion, arguing that the District was attempting to “sidestep” judicial
review of its practices. 3
We now consider the District’s motion to dismiss this appeal as moot, and
because we conclude the appeal is not moot, we address the merits of Bright Ideas’
challenge to the speeding ticket.
II.
We begin with the question of mootness. “A case is moot when the legal
issues presented are no longer ‘live’ or when the parties lack a legally cognizable
interest in the outcome.” Cropp v. Williams, 841 A.2d 328, 330 (D.C. 2004) (citation
3
Bright Ideas further stated that it never received a refund check from the
District, a claim renewed at oral argument. We need not resolve this factual dispute,
however, as the status of the District’s refund check does not affect our analysis.
8
omitted). Thus, while an appeal is pending, “an event that renders relief impossible
or unnecessary also renders that appeal moot.” Settlemire v. D.C. Off. of Emp’t
Appeals, 898 A.2d 902, 905 (D.C. 2006) (quoting Vaughn v. United States, 579 A.2d
170, 175 n.7 (D.C. 1990)). 4
There are several important exceptions to this rule, however. As relevant here,
“it is well established that ‘voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case.’” Mbakpuo v.
Ekeanyanwu, 738 A.2d 776, 782 (D.C. 1999) (quoting United States v. W.T. Grant
Co., 345 U.S. 629, 632 (1953)). This exception “traces to the principle that a party
should not be able to evade judicial review, or to defeat a judgment, by temporarily
altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531
U.S. 278, 284 n.1 (2001). A party claiming mootness because of its voluntary
cessation of conduct faces “the heavy burden” of demonstrating that its challenged
activity will not resume, so that “there is no reasonable expectation that the wrong
4
The District’s courts are Article I courts and are not bound by Article III’s
strictures to resolve only “cases” or “controversies.” Animal Legal Def. Fund v.
Hormel Foods Corp., 258 A.3d 174, 181 (D.C. 2021). While we thus enjoy some
“flexibility in regard to mootness not possessed by the federal courts,” we
nevertheless hew closely to the jurisdictional decisions of Article III tribunals “to
promote sound judicial economy.” Atchison v. District of Columbia, 585 A.2d 150,
153 (D.C. 1991) (quoting District of Columbia v. Walters, 319 A.2d 332, 338 n.13
(D.C. 1974)).
9
will be repeated.” Mbakpuo, 738 A.2d at 783 (quoting W.T. Grant Co., 345 U.S. at
633).
Our bottom-line inquiry under the voluntary cessation doctrine is thus whether
the District has carried its burden of making “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S.
at 189 (citation omitted). While we have a scarcity of our own precedents
elucidating the voluntary cessation doctrine’s contours, federal courts of appeals
further scrutinize whether the purported cessation “appears to be the result of
substantial deliberation, or is simply an attempt to manipulate jurisdiction.” Nat’l
Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297,
1310 (11th Cir. 2011) (“NABP”); see also Alaska v. U.S. Dep’t of Ag., 17 F.4th 1224,
1229-30 (D.C. Cir. 2021) (declining to apply voluntary cessation exception to
mootness because the appellant “has not argued, nor could it plausibly argue,” that
appellees “acted in order to manipulate the judicial process”). We agree with those
10
courts that this is a crucial aspect of the overarching inquiry, and consider it in Part
II.B.
A.
The core of our voluntary cessation inquiry is whether we have sufficient
assurances that the District has unambiguously ceased the challenged conduct—i.e.,
that it has stopped enforcing the default speed limit when there is an otherwise
posted, but purportedly illegible, speed limit sign. 5 The reason for this inquiry is
5
One wrinkle in this appeal is that the default speed limit at the time of this
citation was the same as the posted speed limit on a supposedly illegible sign. The
District now points to that fact for the first time on appeal, arguing that at least in
that limited circumstance—when the posted sign and the default speed limit are the
same—the District can enforce the default speed limit when the posted sign is
illegible. That may be a plausible reading of the relevant regulations, but it is not
the one adopted by the hearing examiner or the Appeals Board (or the Superior
Court). They instead adopted the sweeping reasoning that whenever a speed limit
sign is illegible, the default speed limit applies. Because, with rare exceptions not
implicated here, “an administrative order can only be sustained on the grounds relied
on by the agency,” Abramson Assocs., Inc. v. D.C. Dep’t of Emp’t Servs., 596 A.2d
549, 554 (D.C. 1991) (quoting Long v. D.C. Dep’t of Emp’t Servs., 570 A.2d 301,
302 (D.C.1990)), we do not consider this alternative basis for affirmance urged for
the first time on appeal. See Sewell v. Walker, 278 A.3d 1175, 1177 (D.C. 2022)
(“We ordinarily do not consider issues raised for the first time on appeal.” (citation
omitted)). Under different circumstances we might remand this more nuanced
reading of the regulations for the agency’s consideration, but here, no party has asked
for such a remand, and we see little point in one given the voided ticket and
apparently refunded fine.
11
that without strong evidence that a dispute has come to a complete and permanent
end, a court would risk leaving a defendant “free to return to his old ways” when
dismissing a case. Laidlaw, 528 U.S. at 189 (citation omitted). As the party
asserting mootness, the District bears the “heavy burden” of establishing that it has
ceased the challenged conduct. Id.In this case, there is no evidence that the District has ceased the challenged
conduct. All signals and representations are to the contrary. The District never
represented in its pleadings, nor could it represent when pressed at oral argument,
that it has undertaken some formal (or even informal) change in its traffic
enforcement practices. Cf. Ragsdale v. Turnock, 841 F.2d 1358, 1365-66 (7th Cir.
1988) (finding a consistent, albeit unpublicized, policy of non-enforcement
sufficient to render a challenge moot). It has not amended the traffic regulations at
issue in any relevant way. 6 Cf. N.M. Health Connections v. U.S. Dep’t of Health &
Hum. Servs., 946 F.3d 1138, 1161 (10th Cir. 2019) (finding challenge moot after an
agency replaced the challenged regulations). Indeed, the only action the District
appears to have taken is to void the lone ticket in this case, an action that it
acknowledges it “will not necessarily [do] in future cases.” Far from “persuading
6
As noted supra note 1, the District has reduced the default speed limit to 20
mph, but that is not material to the issue at hand.
12
the court that the challenged conduct cannot reasonably be expected to start up
again,” Laidlaw, 528 U.S. at 189 (citation omitted), we are left with the firm
impression that the District continues its challenged enforcement practices.
The District makes four arguments in response, none of which is persuasive.
First, it stresses that “there is no evidence of any systemic illegality or routine
reliance on the default speed limit that could recur.” But that places the burden on
the wrong party. Because this is a case of voluntary cessation, it is the District’s
burden to prove that the allegedly wrongful conduct will not recur, not Bright Ideas’
to prove that it will. See Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 980 (D.C.
Cir. 2016) (criticizing a similar argument by the District as “ignor[ing] the Supreme
Court’s command that ‘the party asserting mootness’ must carry the ‘heavy burden’
of proving mootness through cessation” (quoting Laidlaw, 528 U.S. at 189)). So
long as “there exists some cognizable danger of recurrent violation,” it is the
District’s burden to make it absolutely clear that there will be no such recurrence.
Mbakpuo, 738 A.2d at 782 (citation omitted). The District’s bald assertion that “this
is not a legal issue that arises frequently . . . in this Court” fails to provide such
13
clarity. 7 And in any case, the danger of recurrence is readily cognizable given the
ubiquity with which the District issues automated speeding citations; in just the first
half of this fiscal year, the District issued over 600,000 tickets based on images
captured by traffic cameras, including 4,866 to drivers captured by the same camera
as Bright Ideas (i.e., eastbound on the 2900 block of Military Road NW). 8 Within
this panopticon, speeding tickets have become a question of “when” and “how
often,” not “if,” for many of the District’s drivers. 9 Some of them are bound to
complain about a posted speed limit’s legibility.
This appeal to uncertainty falls especially flat coming from the District, which
is uniquely positioned to represent what its practices are, whether they have changed,
and how frequently it enforces its traffic regulations in the manner now under attack.
7
The time and resources necessary to raise a challenge to a civil traffic
infraction all the way to this court are orders of magnitude higher than simply paying
the ticket, making such challenges vanishingly rare.
8
These data were reported to the Council pursuant to D.C. Code § 50-2209.21.
See District Dep’t of Transp., Automated Traffic Enforcement Semi-Annual Report
11-12 (Sept. 28, 2022), https://lims.dccouncil.gov/downloads/LIMS/51300/
Introduction/RC24-0222-Introduction.pdf; https://perma.cc/54MF-8U7Y.
9
The record also makes clear that Bright Ideas itself stands a cognizable
danger of being in this same place again if we do not rule on its current challenge.
When Bright Ideas made its initial appearance before the hearing examiner, it
learned that a mere fifteen days after the challenged ticket was issued, it received
another traffic citation that it had yet to receive notice of.
14
Yet it has never sought to supplement the record with any evidence that it has ceased
the challenged conduct, nor has it represented in its pleadings or at oral argument
that it has ceased its challenged enforcement practices. See Wright v. Thomas D.
Walsh, Inc., 856 A.2d 1108, 1110 n.6 (D.C. 2004) (refusing to consider proffered
evidence of mootness where the parties had never moved to supplement the record
with evidence of it); Brown v. Hornstein, 669 A.2d 139, 141 (D.C. 1996) (same). Its
unwillingness to do so is not a point in its favor. The record before us also suggests
this is, in fact, a recurring issue at the agency level. Neither the hearing examiner
nor the Appeals Board hinted that this was some novel issue of first impression.
Both invoked the default speed limit with virtually no analysis of the relevant
regulations—the hearing examiner without so much as citing a regulation—as if they
had done so before. Neither intimated that this was their first time addressing the
defense of an illegible speed limit sign, and there are indications to the contrary.
Second, the District notes that some courts afford a “presumption of good
faith” to public officials and asks that we likewise treat its claims of cessation with
“some solicitude.” See Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th
Cir. 2009). Neither this court nor the Supreme Court has recognized such a
presumption, however, and it has forceful critics. See Joseph C. Davis & Nicholas
R. Reaves, The Point Isn’t Moot: How Lower Courts Have Blessed Government
15
Abuse of the Voluntary-Cessation Doctrine, 129 Yale L.J. F. 325, 328 (2019) (“[A]
hard look at both the theoretical and practical justifications for the voluntary-
cessation doctrine suggests [the good-faith presumption is unfounded]. Government
officials have stronger incentives and a greater ability to engage in the strategic
mooting of cases that this doctrine is designed to prevent.”).
At a more basic level, the District has not actually made a claim of cessation
to which we might afford a presumption of good faith. Even if we were to recognize
this presumption, it does not operate when the government’s change-of-heart is
“mere litigation posturing.” Sossamon, 560 F.3d at 325. Instead, it typically only
comes into play when there is some formal change in government policy, typically
via legislative or regulatory amendment, which will “usually [be] enough to render
a case moot, even if the legislature possesses the power to reenact the statute after
the lawsuit is dismissed.” Libertarian Party of Ark. v. Martin, 876 F.3d 948, 951
(8th Cir. 2017) (quoting Teague v. Cooper, 720 F.3d 973, 977 (8th Cir. 2013));
accord N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525,
1526 (2020) (per curiam). The presumption does not extend to bare promises amidst
litigation that some practice has been permanently abandoned. Wall v. Wade, 741
F.3d 492, 498 (4th Cir. 2014) (“[B]ald assertions of a defendant—whether
governmental or private—that it will not resume a challenged policy fail to satisfy
16
any burden of showing that a claim is moot.”). And even if it did, the District has
made no such promise. At oral argument, counsel for the District disclaimed any
change in enforcement policy. That hamstrings its mootness claim. See 13C Charles
Allen Wright & Arthur R. Miller, Federal Practice and Procedure Jurisdiction §
3533.7 (3d ed., 2022 update) (“Discontinuance claims present little difficulty when
it is shown that the challenged activities in fact continue.”).
Third, the District cites to Thorn v. Walker, 912 A.2d 1192 (D.C. 2006), as an
example of a case that we found to be moot despite one party’s voluntary cessation
of challenged activity. Thorn is inapposite. That case concerned a suit to compel
the sale of real property in which the seller, after losing in the trial court and before
we considered her appeal, voluntarily transferred the property to the buyer, yet still
sought to maintain her appeal. Id. at 1196. It was the buyer who argued that the
transfer mooted any further litigation and we agreed, finding that the seller’s transfer
left her with no relief to seek on appeal. Id. at 1196-97. In other words, Thorn is
the inverse of this situation, where the party who voluntarily ceased the challenged
conduct wanted the appeal to proceed, despite the other party urging that the case be
dismissed as moot. The concerns that the voluntary cessation doctrine is designed
to address are not implicated in that scenario, so it is no wonder that the doctrine was
not discussed in Thorn. There is no chance that the seller was trying to strategically
17
moot the case with her voluntary conduct where she, in fact, was the only party who
wanted the appeal to proceed.
Far more analogous is Hardaway v. D.C. Housing Authority from the D.C.
Circuit, a case in which the D.C. Housing Authority initially denied a plaintiff’s
request for a “two-bedroom voucher” that would permit her to house a live-in aide.
843 F.3d at 976. The plaintiff sued, and more than two months later while the suit
was still pending, the Authority did an about-face, granted her the requested two-
bedroom voucher, and then asked the trial court to dismiss the case as moot. Id. The
trial court agreed that the case was moot because the Authority had “acquiesced to
plaintiffs’ desired living arrangement.” Id. at 977. The D.C. Circuit reversed,
concluding that the Housing Authority’s “act of administrative grace” was
insufficient to moot the case where it “retain[ed] authority to revoke that voucher at
any time.” Id. at 979; see also Fikre v. Fed. Bureau of Investigation, 904 F.3d 1033,
1040 (9th Cir. 2018) (refusing to dismiss a case after the FBI removed the plaintiff
from its No Fly List, describing the Bureau’s actions as “an exercise of discretion”
and finding that “the government has not assured [the plaintiff] that he will not be
banned from flying for the same reasons that prompted the government to add him
to the list in the first place”). In short, it was not “absolutely clear” to the court that
18
the challenged conduct “could not reasonably be expected to recur.” Hardaway, 843
F.3d at 979 (quoting Laidlaw, 528 U.S. at 189). So too here.
Finally, the District argues that this case is moot because its “decision to void
the ticket . . . provides all the relief available to the Company in this action.” While
that would likely be enough to strip a party of standing before the inception of
litigation, it will not always suffice to moot a case once underway. As the Supreme
Court has emphasized, mootness is not simply “standing set in a time frame.”
Laidlaw, 528 U.S. at 190 (quoting Henry P. Monaghan, Constitutional Adjudication:
The Who and When, 82 Yale L.J. 1363, 1384 (1973)). Rather, once standing has
been established at the outset of litigation, courts may retain jurisdiction even where
the complained-of injury has abated in circumstances when there is some degree of
“likelihood that [the appellant] will again suffer the deprivation of [] rights that gave
rise to this suit.” Honig v. Doe, 484 U.S. 305, 318 (1988) (discussing the capable of
repetition yet evading review exception). 10
10
We have previously taken this inquiry one step further, holding that in cases
involving “a matter of importance,” the question of repetition extends beyond “the
particular appellant . . . to others similarly situated.” Tyler v. United States, 705
A.2d 270, 273 (D.C. 1997) (en banc). While a $100 ticket is hardly a matter of great
importance, the scale on which the District issues and enforces speeding tickets, see
infra, and the infrequency with which challenges to civil traffic violations reach this
court render this a matter of importance that is likely to recur and affect a significant
number of others similarly situated if not addressed in this appeal.
19
When that is the case, our exercise of jurisdiction remains justified when, for
instance, the injury is “so inherently transitory” that it evades review, County of
Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (citation omitted), or in these
circumstances, where the allegedly offending party has voluntarily abated the
injury. 11 The relevant question is thus not whether the District has granted all the
relief that Bright Ideas has sought in this particular action, but whether it has
demonstrated that there is no cognizable danger of the injury’s recurrence. We have
already answered that dispositive question in the negative.
B.
The District’s litigation tactics drive home the need for our review. While its
failure to demonstrate that it has ceased the challenged practices would, by itself,
11
Because civil traffic citations are so ubiquitous, the principle that courts will
generally not apply a mootness exception where the danger of recurrence stems from
the possibility that a party will “violat[e] the law, get[] caught, and be[] convicted,”
see Spencer v. Kemna, 523 U.S. 1, 15 (1998), has no force here. That principle has
force in the context of somebody who has committed a serious crime, where we
might reasonably expect them not to do so again. But the District issues more
automated traffic citations each year than the number of residents who live within
its borders, so that the cognizable danger of recurrence for any once-caught driver is
evident. Additionally, Bright Ideas’ contention is that it did not, in fact, break the
law as properly understood, which is an additional reason this principle has no
application here.
20
convince us that this case is not moot, we further note that there are strong reasons
for courts not to incentivize strategic litigation conduct that is merely “an attempt to
manipulate jurisdiction.” NABP, 633 F.3d at 1310. For one thing, “strategic,
litigation-related acts” are unlikely to endure beyond the conclusion of the litigation,
significantly increasing the likelihood that the plaintiff “will be subject to the same
action in the future.” Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729,
740 (8th Cir. 2005). But apart from that, we have a strong prudential interest in
ensuring that litigants are not permitted to “manipulate the formation of precedent.”
In re Nexium Antitrust Litig., 778 F.3d 1, 2 (1st Cir. 2015) (citation omitted); see
also Harrell v. Fla. Bar, 608 F.3d 1241, 1267 (11th Cir. 2010) (noting the
“substantial possibility that the defendant has changed course simply to deprive the
court of jurisdiction, which itself prevents us from finding the controversy moot”)
(cleaned up).
In this case, the District’s strategic motivations are not in dispute. The District
has never offered an alternative explanation for voiding Bright Ideas’ ticket, and it
has expressly referred to this decision as an attempt to “moot out the case.” The
timing of the District’s attempt to moot this case gives us special concern. Recall
that the District voided Bright Ideas’ ticket only after (1) it asked us to rule on the
merits of this dispute via a motion for summary affirmance, (2) we denied its motion
21
for summary affirmance, and (3) we informed the parties that this case would be
scheduled for oral argument. These actions, while not precisely tipping our hand on
the merits of Bright Ideas’ appeal, at least signaled our preliminary disagreement
with the District’s characterization of this case as “simple and straightforward.” The
District’s subsequent about-face—after defending its ticket for eighteen months
through two levels of administrative review and before two courts—is best
understood as a reaction to that signal.
What likely animates the District’s litigation tactics is the fact that challenges
to traffic tickets rarely make it up to this court for review. If it scuttles this challenge,
a similar challenge is unlikely to make it our way any time soon, so that it can expect
to continue its enforcement practices free from this court’s scrutiny. Few parties
have the resources or wherewithal to run the gauntlet of multiple rounds of
administrative review, Superior Court review, and this court’s review simply to
challenge the comparatively small sum of money that accompanies civil traffic
tickets. It is far easier to pay the ticket and be done with it. As best we can tell, we
have only one prior published opinion, from about a decade ago, where a party
challenged a single civil traffic infraction, DeVita v. District of Columbia, 74 A.3d
714, 718 (D.C. 2013), plus a few others where parties challenged a considerable
number of these infractions, but those cases too are rare, see, e.g., Avis Rent-A-Car
22
Sys., Inc. v. District of Columbia, 679 A.2d 492, 493 (D.C. 1996) (challenging “some
900 notices of infraction”); Agomo v. Fenty, 916 A.2d 181, 187-88 (D.C. 2007)
(alleging violation of constitutional rights where one plaintiff faced “at least
eighteen” tickets and the other “over 100”). The rarity of these challenges in this
court gives the District a strong incentive to try to evade review. There is little upside
if it wins ($100) and potentially enormous downside if a precedent-setting loss
upsets its established enforcement practices on a grand scale.
The District’s efforts to moot this case resemble those cases in which a
defendant tries to “pick off” a lead plaintiff in a certified class action in an attempt
to moot a case. Under those circumstances, federal courts have generally held that
the case is not moot, expressing prudential concerns that are likewise present here.
See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980) (“To deny the
right to appeal simply because the defendant has sought to ‘buy off’ the individual
private claims of the named plaintiffs would be contrary to sound judicial
administration.”); see also Wilson v. Gordon, 822 F.3d 934, 951 (6th Cir. 2016);
Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1250 (10th Cir. 2011);
Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011); Weiss v. Regal
Collections, 385 F.3d 337, 347 (3d Cir. 2004), abrogated on other grounds by
Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016); Zeidman v. J. Ray McDermott
23
& Co., 651 F.2d 1030, 1050 (5th Cir. Unit A 1981). In those cases, like this one, the
stakes for any individual plaintiff or challenger are typically so small that their
opponent might buy them out for a modest sum and—if that were sufficient to moot
a case—thereby avoid the potentially enormous downstream consequences of an
adverse result if the case were to proceed. The incentives for strategic mooting are
immense in both instances, and the reasons for applying the voluntary cessation
exception to mootness are at their most potent.
To be sure, institutional litigants have vast discretion in choosing which cases
to pursue and thereby have considerable influence in shaping which cases come
before our courts. See Malcolm L. Stewart, United States Appeals: Strategic and
Policy Considerations, U.S. Attorney’s Bulletin, Jan. 2013, at 13, 15 (“[T]he
government generally takes particular care to select favorable ‘vehicles’ for
appellate consideration of recurring legal issues. The best vehicles are cases in
which the facts present the government’s position in a favorable light, maximizing
the likelihood that the government’s view will strike judges as intuitively fair.”).
That discretion extends to the initiation of a case (the District did not have to issue
the ticket here), to the decision of whether to appeal an adverse result, and to the
pursuit of discretionary review. Id. But that discretion is not unbounded. Once
those litigants have chosen to initiate court proceedings, or defend themselves
24
therein, the voluntary cessation doctrine prevents them from abandoning ship at the
first whiff of an adverse result. It would be a disservice to the District’s courts and
the parties who appear before us to allow institutional litigants to subvert the orderly
development of precedent though such strategic maneuvering.
Because the District has failed to demonstrate that there is no cognizable
danger of its challenged conduct recurring and once again injuring Bright Ideas or
those similarly situated, we deny its request to dismiss this appeal as moot.
III.
We turn now to the merits. “Although this is an appeal from a review of
agency action by the Superior Court rather than a direct appeal to us, we review the
administrative decision as if the appeal had been heard initially in this court.”
DeVita, 74 A.3d at 719 (quoting Pub. Emp’t Rels. Bd. v. Wash. Tchrs.’ Union Local
6, 556 A.2d 206, 207 (D.C. 1989)). While our review of legal issues is de novo, we
generally “defer to the agency’s interpretation of the statute and regulations it is
charged by the legislature to administer, unless its interpretation is unreasonable or
is inconsistent with the statutory language or purpose.” Id. (quoting D.C. Off. of
Hum. Rts. v. D.C. Dep’t of Corr., 40 A.3d 917, 923 (D.C. 2012)). Bright Ideas
argues that it did not violate the pertinent regulations when the posted speed limit
25
sign was illegible, and that the District violated its constitutional right to fair notice
when the District enforced an unposted default speed limit that most drivers would
be unaware of.
We begin by considering Bright Ideas’ challenge to how the District
interprets the relevant traffic regulations. That is because constitutional adjudication
is a matter of “great gravity and delicacy,” so our practice is to avoid ruling on
constitutional questions unless we have “no other choice.” Blodgett v. Univ. Club,
930 A.2d 210, 217 (D.C. 2007) (quoting Lewis v. Hotel & Rest. Emps. Union,
Local 25, 727 A.2d 297, 301 (D.C. 1999)). 12
Bright Ideas argues that because the speed limit sign “is not reliably posted”
where its driver was ticketed, but instead “mounted extraordinarily high” and
“obscured by tree branches,” the District cannot enforce the posted speed limit and
may not resort to enforcing the default speed limit either. The District does not
dispute the first part of that argument—that it may not enforce the posted speed limit
12
This principle is so strong that even when the parties present solely
constitutional questions, courts sometimes still “avoid deciding the constitutional
issues and decide the case on a non-constitutional ground if reasonably possible.”
See VNA Hospice of Md. v. Dep’t of Health & Mental Hygiene, 961 A.2d 557, 569-
72 (Md. 2008) (collecting cases).
26
when it is not fairly legible. But it disputes the second part of it and defends the
Appeals Board’s conclusion that the default speed limit applies and may be enforced
whenever a posted speed limit sign is illegible.
We agree with Bright Ideas that the District’s interpretation of the relevant
regulations is untenable. The traffic regulations permit the Mayor, for any public
roadway, to “determine and declare a reasonable and safe speed limit which shall be
effective . . . when appropriate signs giving notice of the speed limits are erected.”
18 D.C.M.R. § 2200.2. Once a speed limit for a stretch of roadway has been so
designated in accordance with § 2200.2, then that speed limit cannot be enforced
against a driver if the speed limit sign is obscured or blocked. See 18 D.C.M.R.
§ 2000.5 (“No provision of this subtitle for which signs are required shall be
enforced” unless the sign is “in proper position and sufficiently legible to be seen by
an ordinarily observant person.”). And, contrary to the Appeals Board’s reasoning,
the regulations do not permit the District to simply enforce the default speed limit
when a designated speed limit applies but is not legibly posted. The default speed
limit provided in 18 D.C.M.R. § 2200.6 applies only when a speed limit is not
“otherwise designated in accordance with § 2200.2.” 13
13
The District makes a belated suggestion that this stretch of Military Road
was not “otherwise designated in accordance with § 2200.2,” as that phrase is used
27
The Appeals Board’s contrary interpretation of the regulations not only
contravenes the regulations’ plain language but also gives rise to a host of
absurdities. Imagine a stretch of road where the Mayor had determined under
§ 2200.2 that the reasonable speed was 45 mph and had signs posted to that effect.
Under the Appeals Board’s and the District’s reading of the regulations, if the
relevant signage were obscured, a driver traveling at 51 mph on that stretch of road
would face a ticket not for traveling 6 mph above the designated speed limit, but for
traveling more than 30 mph over the speed limit (with the default now at 20 mph)
and face criminal liability and the prospect of up to 90 days’ imprisonment for
traveling at such speeds. See 18 D.C.M.R. § 2200.12. Similarly, if the District were
correct that the same driver must obey the 20 mph default speed limit where the
posted 45 mph sign is illegible, the compliant driver would likely run afoul of 18
D.C.M.R. § 2200.10, which provides that “[n]o person shall drive a motor vehicle at
such a slow speed as to impede or block the normal and reasonable movement of
traffic.” Such an interpretation would violate the principle that statutes and
in 18 D.C.M.R. § 2200.6, because the posted speed limit matches the default speed
limit. As we have explained, supra note 5, we do not foreclose that possible
interpretation of the regulations, because it is enough to say that no argument like
that was made before the agency and it does not resemble the Appeals Board’s
reasoning, making it a non-viable alternative grounds for affirmance.
28
regulations must be interpreted to avoid “absurd results” and “obvious injustice.”
Corbin v. United States, 120 A.3d 588, 597 (D.C. 2015) (citation omitted).
The District counters with its own posited absurdity, arguing that under the
view we adopt here, an obstructed speed limit sign would result in a free-for-all. By
its telling, a 15 mph side street would be transformed into the Autobahn if, in place
of the posted (but obstructed) speed limit, the default limit could not be enforced.
That is incorrect. Elsewhere in its traffic regulations, the District mandates that “[n]o
person shall drive a vehicle on a street or highway at a speed greater than is
reasonable and prudent under the conditions.” 18 D.C.M.R. § 2200.3. Thus, where
the posted limit is illegible or otherwise obstructed, the District can still cite drivers
for traveling at an unreasonable and imprudent speed—precisely what Bright Ideas
argued the District was required to show in this case. What the District may not do
is enforce either (1) a speed limit posted under 18 D.C.M.R. § 2200.2 where the
signage is illegible, see 18 D.C.M.R. § 2000.5, or (2) the default speed limit where
a speed limit has been “otherwise designated in accordance with § 2200.2,” 18
D.C.M.R. § 2200.6. Because the Appeals Board’s contrary interpretation of the
traffic regulations was unreasonable, we reverse its decision upholding Bright Ideas’
ticket.
29
IV.
For the foregoing reasons, the Appeals Board’s decision is reversed.
So ordered.