5. Addressing mootness questions

There is no case law addressing this issue.

Where a reporter chooses to comply with a subpoena, the First Circuit has held that, in the absence of compelling circumstances such as criminal penalties, courts will not later decide whether the subpoena was valid and enforceable, since the issue became moot once the reporter complied with the subpoena.  Boston Teachers Union v. Edgar, 787 F.2d 12, 14 (1st Cir. 1986); United States v. Arthur Anderson & Co., 623 F.2d 720, 725 (1st Cir. 1980).  The First Circuit has further held that the “capable of repetition yet evading review” exception is not available to a subpoenaed party once he has chosen to comply with a subpoena.  Id.

The Second Circuit does not appear to have addressed the issue of mootness when the trial or grand jury session for which a reporter was subpoenaed has ended.

The Third Circuit has held that, as a matter of the dignity of the court and its ability to enforce its orders, a contempt citation does not become moot simply because the proceedings that gave rise to the order have ceased. Criden, 633 F.2d at 351-53.

The Fourth Circuit permits appeal of a contempt order even if the trial or grand jury for which the reporter was subpoenaed has concluded, on the grounds that such a controversy is “capable of repetition but evading review.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); see United States v. Steelhammer, 539 F.2d 373, 378 (4th Cir. 1976) (Winters, J., dissenting), adopted in 539 F.2d 539 (4th Cir. 1977) (review en banc) (“While the case is thus moot in the sense that the reporters have lost the ability to purge themselves, their contentions raise an important point difficult to advance at the appellate level before mootness ensues and likely to arise again in continuing litigation”).

Contempt orders can also be appealed even if the underlying controversy has been resolved if there is a chance of further proceedings. See Shain, 978 F.2d at 853 n.2 (appeal remains live controversy because defendant has been granted a new trial and government has indicated if case is retried it intends to subpoena reporters again).

The Fifth Circuit is obligated to address issues of jurisdiction, including mootness, prior to addressing the merits of an appeal. Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir. 1998).

The Fifth Circuit has held that a contemnor's release from incarceration does not moot his appeal, because that release did not vitiate the district court's contempt order. United States v. Brumfield, 188 F.3d 303, 305 (5th Cir. 1999), overruled on other grounds byUnited States v. Conner, 907 F.3d 316, 317 (5th Cir. 2018). The contempt order continued to limit the contemnor's activities: it restricted his movements and required him to surrender his passport. Id.

In a case in which an attorney and, as an intervenor, his client asserted that the attorney-client privilege precluded the attorney's testimony in response to a grand jury subpoena, the Fifth Circuit ruled the appeal was moot where the district court had denied the attorney and his intervenor-client's motions to quash, but later refused to hold the attorney in contempt, despite the district court's prior orders on the motions to quash. In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423 (5th Cir. 1991). The government, the attorney, and the intervenor-client all appealed from the court's orders denying the motions to quash and for contempt. The Fifth Circuit held that it possessed appellate jurisdiction over all three appeals because the denial of the motion for contempt constituted a final, appealable order. Id. at 1429-30. However, the attorney and intervenor-client's appeals were moot, because the contempt order granted them the relief they sought: that is, the denial of the contempt motion "had the same effect as granting [the attorney and intervenor-client's] motions to quash." Id. at 1430. Essentially, the attorney and intervenor-client sought to obtain a ruling that the relief they obtained in the contempt hearing should have been provided at an earlier date -- during the hearings on their motions to quash. The Fifth Circuit held that such an appeal would call for the court to issue "an advisory opinion, after the conflict has been resolved in their favor, stating that a district court must provide such a hearing prior to an attorney being required to appear before a grand jury." Id. Thus, the favorable ruling on the contempt motion mooted their appeal, because it prevented the court of appeals from providing the attorney or the intervenor-client with any further relief. Id.

There is no statute or case law that addresses the mootness issue in the context of an assertion of reporter's privilege.

Generally, courts have found that appeals concerning motions to quash subpoenas are not moot. Socialist Workers Party v. Grubisic, 604 F.2d 1005, 1008 (7th Cir. 1979) (holding that appeal of trial court's denial motion to quash subpoena is not moot when trial court can release documents to parties at any time). Matter of Special April 1977 Grand Jury, 581 F.2d 589, 591 (7th Cir. 1978) (appeal not moot if the issue could not be fully litigated and is such that the party seeking to quash the motion would be subject to the same action again).

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

In cases that present “federal constitutional questions affecting fundamental personal liberties,” “[a]djudication of those issues should not be thwarted by resort to narrow interpretations of the doctrines of mootness and justiciability.” Bursey v. United States, 466 F.2d 1059, 1088-89 (9th Cir. 1972) (reversing a contempt order against members of the Black Panther Party who refused to answer questions during a grand jury proceeding, holding that the reporter’s privilege issues were not moot even though the term of the grand jury had expired during the pendency of the appeal). “Postponement of the decisions of the[se] important constitutional issues . . . is not in the interests of the public, the Government, or the witnesses.” Id. at 1089.

The Bursey court ruled that a reporter’s privilege appeal was not moot, despite the fact that the grand jury session had concluded, because “the history of this case . . . strongly suggests that the Government will renew its efforts before another grand jury to obtain the information it sought to compel in the case before us.” Id.

There is no Alabama statutory or reported case law addressing whether an appeal becomes moot because the trial or grand jury session for which the reporter was subpoenaed has concluded.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, or matters pertaining thereto such as appropriate procedures for appeals, or the standards for reviewing trial court rulings that are arguably moot, such as rulings on subpoenas to a reporter after the trial or grand jury session for which the reporter was subpoenaed have concluded.

No statutory or case law addresses this issue in the context of cases involving the reporter's privilege. Nevertheless, Arizona recognizes the exception to mootness for cases capable of repetition but evading review. See, e.g., KPNX Broadcasting, 139 Ariz. at 250, 678 P.2d at 435.

The Arkansas Supreme Court has stated numerous times that it will not address moot issues except under limited circumstances. The Court has stated that its duty is to decide actual controversies and that an issue is moot when it has no legal effect on an existing controversy. Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990). The Court will accept an appeal of a moot issue if the issues raised are likely to recur. See Camden Community Dev. Corp. v. Sutton, 339 Ark. 368, 5 S.W.3d 439 (1999). The instances in which the Court has accepted such cases, however, are rare. There are no reported cases specifically addressing a reporter's privilege once the matter in which the privilege was asserted is concluded.

The possibility of mootness often will arise in criminal proceedings, when the trial proceeds without the reporter’s testimony. However, the issues frequently will remain alive because the contempt order is outstanding and the reporter will be subject to punishment if the order is not reversed. E.g., In re Willon, 47 Cal. App. 4th 1080, 1088 n.2, 55 Cal. Rptr. 2d 245 (1996). The Willon court asserted that “[e]ven if the trial court were to withdraw its decision to punish petitioners, this case would not be moot, since it presents important public issues that are ‘capable of repetition, yet evading review.’” Id. (citations omitted).

The mootness issue has not specifically been addressed in Colorado in the context of a subpoena of a newsperson. In general, a case is moot where there no longer is a justiciable, actual controversy, unless the issue is capable of repetition and would otherwise evade review. Humphrey v. Southwestern Development Co., 734 P.2d 637 (Colo. 1987). In the case of People v. Silvers, supra, a trial court judge sentenced a reporter to one day in jail and a $100 fine for refusing to comply with a subpoena, but granted a stay pending appeal. The trial was conducted by a different judge, and the reporter was issued another subpoena to testify. The reporter again moved to quash and the second motion was granted. While it appears that the contempt proceeding ended due to mootness, no confirming record is available.

There is no case law on this subject. In light of the fact that an appeal lies only from a finding of contempt for failure to obey a court order, a finding of criminal contempt would presumably never be moot. Facts and circumstances would determine whether a finding of civil contempt would be considered as “capable of repetition but evading review” if the hearing to which the reporter had been subpoenaed had concluded.

No statutory or case law exists addressing mootness in cases concerning the reporter’s privilege. However, the D.C. Circuit’s general rule is that “[e]ven where litigation poses a live controversy when filed, the doctrine [of mootness] requires a federal court to refrain from deciding it if events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.”  Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc) (citation and internal marks omitted); Office of Thrift Supervision v. Dobbs, 931 F.2d. 956, 957 (D.C. Cir. 1991) (appeal from enforcement of subpoena is moot once party has complied with subpoena).

An action is not moot, however, if the dispute is deemed to be capable of repetition yet evading review.  Clarke, 915 F.2d at 703.  To fall within this exception, a party must show that: “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subject to the same action again.”  Murphy v. Hunt, 455 U.S. 478, 482 (1982).  In estimating whether an event is likely to recur, courts may consider how often it has occurred in the past.  Clarke, 915 F.2d at 704.

When a case is deemed moot while pending appeal, federal courts generally reverse or vacate the judgment below and remand with instruction to dismiss the case.  Clarke, 915 F.2d at 706 (D.C. Cir. 1990) (citing United States v. Munsingwear, 340 U.S. 36 (1950)).

Courts have not addressed whether mootness prevents an appeal when the trial or grand jury session for which a reporter was subpoenaed has concluded.

In a pre-shield law case, Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991), motion to vacate denied, 623 A.2d 1177 (D.C. 1993), the Superior Court denied a motion to quash and held a reporter in civil contempt.  On an expedited appeal, the D.C. Court of Appeals affirmed on the ground that the reporter waived her qualified constitutional privilege by disclosing the identity of the source to two individuals not involved in the newsgathering process.  The parties to the underlying litigation settled during the period in which the reporter could have petitioned for certiorari to the U.S. Supreme Court.  Although the reporter’s need to testify at trial was obviated, she renewed her motion to vacate the prior opinion of the Court of Appeals.  Despite the settlement and the interim passage of the District’s shield law, the Court denied the motion to vacate, concluding that “under the circumstances . . . , the case had reached practical finality and should not be disturbed.”  623 A.2d at 1179.  The Court emphasized that the reporter never moved to stay the issuance of its mandate pending application to the Supreme Court.  Id. at 1178 (citing D.C. Ct. App. R. 41(b)).

In a case in which a subpoena of a journalist had been withdrawn before the journalist gave testimony, Florida’s Fifth District Court of Appeal denied a petition for certiorari as moot. See Ocala Star Banner Corp. v. State, 721 So. 2d 838, 838 (Fla. 5th DCA 1998). But the same court previously granted review in a case in which a reporter covering a hearing had been ordered to take the stand and to testify. See Times Publ’g Co. v. Burke, 375 So. 2d 297, 298 (Fla. 5th DCA 1979). In that case, the court cited the substantial public interest in the issue and the fact that the controversy was capable of repetition yet evading review. Id.

Georgia courts have not addressed the mootness issue in the context of a reporter's privilege case, but they do generally recognize jurisdiction over issues that are “capable of repetition but evading review.”

There is no authority in Hawai'i regarding whether an appeal of an order denying a motion quash a subpoena is moot where the trial or grand jury session for which the subpoena was issued has concluded.

Idaho courts have not considered whether an appeal of a contempt sanction may be pursued under the “capable of repetition but evading review” doctrine, after the relevant trial or grand jury session may have concluded.

Illinois courts have held that an appeal is not moot even when the trial or grand jury session for which a reporter was subpoenaed has concluded. For example, in People v. Palacio, a reporter appealed the trial court’s denial of his motion to quash the subpoena requiring him to testify at the hearing on defendant’s post-trial motion. 240 Ill. App. 3d 1078, 1091, 607 N.E.2d 1375, 1382 (1993). The defendant filed a motion to dismiss the reporter’s appeal as moot, arguing that because the reporter answered the questions put to him after the trial court denied his motion to quash, the court could grant the reporter no relief even if the trial court’s order was incorrect. Id. The court denied defendant’s motion to dismiss the reporter’s appeal as moot, holding that the great public interest exception to the mootness doctrine applies. Id.; see also In re A Minor, 127 Ill. 2d 247, 257, 537 N.E.2d 292, 296 (1989)) (holding that the great public interest exception to the mootness doctrine applied in the case and that “the interest in the publication of newsworthy information-- [is] of surpassing public concern”).

Similarly, a case can still be appealed as a controversy “capable of repetition but evading review” even when the trial or grand jury session for which a reporter was subpoenaed has concluded. To receive the benefit of this exception, the complaining party must demonstrate that: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. People v. Bailey, 116 Ill. App. 3d 259, 261-62, 452 N.E.2d 28, 30-31 (1983) (citing Gannett Co. v. Depasquale, 443 U.S. 368, 377, 99 S. Ct. 2898, 2904 (1979)). In cases involving court-ordered restrictions on the reporting of judicial proceedings, Illinois courts follow the United States Supreme Court which has regularly found the restrictions to be “capable of repetition, yet evading review.” .

For example, in Palacio, the reporter complied with the trial court’s order to testify; the appellate court held the issue before it was one that involved an event of short duration, capable of repetition yet evading review, commenting that, “given the important stakes involved, we decline to require a news media representative to subject himself or herself to the penalties of contempt when challenging an order like the one before us in the blind hope that an appellate court will conclude the underlying order was erroneous and vacate those penalties.” People v. Palacio, 240 Ill. App. 3d at 1091, 607 N.E.2d at 138.

Indiana courts have not addressed the mootness issue when the trial or grand jury session for which a reporter was subpoenaed has concluded. Indiana does recognize an exception to the mootness doctrine when an issue is “capable of repetition but evading review.” See, e.g., Ray v. State Election Bd., 422 N.E.2d 714, 716 (Ind. App. 1981).

No case law or statutory authority addresses the issue.

There is no statutory or case law addressing this issue.

Kentucky courts have not addressed mootness in the context of subpoenas issued to reporters which expired upon dismissal of the grand jury for which they were issued. The Kentucky Supreme Court has, however, discussed the issue in a case involving subpoenas issued to a church which sought disclosure of church records containing privileged communications between parishioners and one of its priests. In Commonwealth v. Hughes, a Roman Catholic Diocese obtained a writ of prohibition from the court of appeals that prevented the respondent from enforcing its order that certain documents from the church archives be submitted to a grand jury. Hughes, 873 S.W.2d 828, 829 (Ky. 1994). The Commonwealth of Kentucky appealed. The Court held that the controversy was rendered moot by dismissal of the grand jury which issued the subpoena for the protected documents. Id. Additionally, the Court found that the facts presented did not provide grounds for reviewing the case under the exception to the mootness doctrine for matters that are capable of repetition but which evade review. Id. at 830-831. The Court found that the action failed both prongs of the test articulated in In re Commerce Oil Co. 847 F.2d 291, 293 (6th Cir.1988), saying:

With respect to the first prong [whether the challenged action is "too short in duration to be fully litigated prior to its cessation or expiration,"] … [t]here is no reason to assume that a different grand jury seeking to discover the same material would be formally discharged before resolution of the privilege issue could be obtained. Even if one were to argue that a grand jury empanelled for a one-month time period involves a process "too short in duration" for this question to be fully litigated, there is nothing to prevent empanelment of a special grand jury of indefinite duration, with the ability, therefore, to litigate this discovery matter to whatever extent necessary.

The above observations also resolve the second prong of the analysis. The very fact that makes this controversy moot (i.e., that the Grand Jury which issued the subpoena has been discharged ) is the fact that precludes a reasonable expectation that the "same complaining party" will again be subject to denial of the discovery materials sought. If this scenario is repeated, it will be because a different grand jury has been impaneled and decides to re-open the presently concluded investigation.

Id. at 831.

In Burns, the "informant voluntarily identified himself when he learned of the contempt proceedings." Burns, 484 So.2d at 658. The Supreme Court of Louisiana nevertheless held that the "trial court erred in holding the reporter's privilege inapplicable." Id. Thus, disclosure of a source's name does not necessarily moot the issue.

The Maine Supreme Court has held that it will not allow important issues that are "capable of repetition but evading review" to be defeated by mootness. See, e.g., A.I. v State, 2020 ME 6 ⁋ 10, 223 A.3d 910 (2020).

Courts may address moot issues in circumstances requiring a decision in the public interest. The Maryland Court of Appeals has held: If the public interest will clearly be hurt if the question is not immediately decided, if the matter is likely to recur frequently and its recurrence will involve a relationship government and its citizens, or a duty of government, and upon any recurrence the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Maryland Court of Appeals may find justification for deciding issues raised by a question which has become moot. Maryland v. Sheridan, 236 A.2d 18 (Md. 1967), quoting Lloyd v. Bd.of Supervisors of Elections, 111 A.2d 379 (Md. 1954).

Although the issue before the court was moot, the Court of Special Appeals of Maryland ruled that a "constitutional right to intervene is not suspended or abrogated merely because of the chronological moment at which it is raised." Hearst Corp. v. State, 484 A.2d 292 (Md. 1984).

A case in which a reporter was held in contempt for refusing to testify to the grand jury was dismissed as moot when the grand jury session expired. See Commonwealth v. Corsetti, 438 N.E.2d 805, 810 (Mass. 1982).

Massachusetts courts will hear appeals of cases when the issue is "capable of repetition but evading review." See, e.g., Cohen v. Bolduc, 760 N.E.2d 714 (Mass. 2002).

Generally, Michigan courts will review a case even if technically moot, if it is likely to recur but evade review. See Federated Publ’ns Inc. v. Lansing, 467 Mich. 98, 112, 649 N.W.2d 383 (2002), abrogated on other grounds by Herald Co. v. E. Mich. Univ. Bd. of Regents, 475 Mich. 463 (2006).

In State v. Brenner, the Minnesota Supreme Court vacated a court of appeals decision regarding reporter's privilege "because there is no underlying criminal prosecution and the issue addressed and decided by the court of appeals is therefore moot." 497 N.W.2d 262, 263 (Minn.1993).

If a criminal case proceeds to trial while the privilege issue is on appeal, the appeal is moot and the district court order will be vacated, depriving it of any further effect. State v. Jenkins, No. A16-0584 (Minn. App., Aug. 30, 2016).

The Official Comment to Miss. R. App. 5 states:

Rule 5(a)(3) provides the Court with flexible authority to grant interlocutory review in situations in which the pertinent interest is the administration of justice. The interest “is that of the proper administration of justice generally--for example, when an order involves a question of procedure that would likely become moot by the time final judgment was entered but should be authoritatively resolved for the purposes of future guidance of courts below.” American Bar Ass'n, Standards Relating to Appellate Courts § 3.12, at 29. See also Wisc. Stat. Ann. § 809.50(c) (1986). By permitting review to resolve conflicts among trial courts in such cases, the rule promotes uniformity and fairness to litigants.

There is no case law addressing this issue.

There is no statutory or case law addressing this issue, and no known instances on the state level.  However, as a general matter, Missouri judges tend to choose to avoid continuing a matter when it is moot, in order to expedite their dockets.

Montana recognizes the doctrine of "capable of repetition but evading review" in allowing appeals.

The Nebraska courts have not addressed mootness issues in the context of subpoenas. In other contexts, the Nebraska Supreme Court has sometimes refused to moot appeals on the ground that the issue is capable of repetition but evading review.

It does not appear that the Nevada Supreme Court has addressed any mootness issues within the context of appeals or writ proceedings concerning the news shield law (NRS 49.275).

There are no cases addressing the mootness issue arising when the trial or grand jury session for which a reporter was subpoenaed has concluded. It should be noted, however, that the Supreme Court accepted, over the State's mootness objection, a petition by the electronic media for courtroom access in a criminal case that had already concluded. Petition of WMUR Channel 9, 148 N.H. 644 (2002).

N.J.S.A.  2A:84A-21.2 provides:

Proceedings pursuant to this act shall take place before the trial, except that the court may allow a motion to institute proceedings pursuant to this act to be made during trial if the court determines that the evidence sought is newly discovered and could not have been discovered earlier through the exercise of due diligence.

The mootness issue does not ordinarily arise in New Jersey.

No New Mexico law specifically addresses this issue in relation to the reporter’s privilege. But see, e.g., State ex rel. N.M. Press Ass'n v. Kaufman, 98 N.M. 261, 265-66, 648 P.2d 300, 304-05 (1982) (reviewing trial court’s restrictions on press coverage of murder trial after trial’s conclusion, because “the issues involved are of substantial public interest and are capable of repetition yet evading appellate review”).

The possibility of mootness will sometimes arise in the criminal context where the trial proceeds without the reporter's testimony or materials or where a grand jury, having previously issued a subpoena to a reporter, disbands before an appeal on a motion to quash the subpoena can be heard. See, e.g., In re Codey, 82 N.Y.2d 521, 606 N.Y.S.2d 661 (1993) (grand jury disbanded prior to appeal). New York’s highest court, the Court of Appeals, has articulated a three-prong test to determine if a given matter presents an exception to the mootness doctrine which, if met, may allow an appeal to proceed. The three elements considered are: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues." Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-15, 431 N.Y.S.2d 400, 402 (1980). While many appellate courts will not be inclined to hear an appeal on a moot issue given their often over full dockets, the possibility of obtaining appellate review still exists. See In re Codey, 82 N.Y.2d 521 (applying three-element analysis articulated in Hearst Corp.); Johnson Newspaper Corp. v. Parker, 101 A.D.2d 1027, 475 N.Y.S.2d 951, appeal dismissed, 63 N.Y.2d 673 (1984).

There are no North Carolina cases which address the issue of mootness in the context of a subpoenaed reporter.

The North Dakota Supreme Court has not addressed the mootness issue when the trial or grand jury session for which the reporter was subpoenaed has concluded.

The Oklahoma courts have not addressed the issue of mootness in the context of the reporter’s privilege.

See State ex rel. Meyers v. Howell, 86 Or. App. 570 (1987) concerning mootness questions in the context of contempt.

In general, an appeal from an order granting a motion to compel or denying a motion to quash is not moot even when the underlying case is concluded because such an order is capable of repetition yet evading review. Kurtzman v. Hankin, 714 A.2d 450, 452 (Pa. Super. 1998); Commonwealth v. Buehl, 462 A.2d 1316, 1319 (Pa. Super. 1983).

For a reporter to appeal an order issued in a grand jury proceeding, there must be a contempt order entered against the reporter. Compliance with a grand jury subpoena, therefore, precludes the possibility of an appeal. In re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505, 509-10 (Pa. 2006).

There is no statutory or case law addressing this issue.

The question of mootness has not been addressed in the context of the shield law, but in other cases involving First Amendment issues the court has been willing to grant review where the action below has ended, but the deprivation complained of is capable of repetition while evading appellate review if the mootness issue were strictly applied.

The South Dakota Supreme Court has shown a willingness to address moot questions that are capable of repetition without timely remedy.

Tennessee courts have not addressed whether issues arising under the shield law are moot if the trial or grand jury session in which a reporter was subpoenaed has concluded. As a general matter, Tennessee recognizes exceptions to the mootness rule for "issues of great public interest and importance to the administration of justice" and "issues capable of repetition yet evading review." Jones v. State, No. 01C01-9711-CR-005481998 WL 855439, 1998 Tenn. Crim. App. LEXIS 1285 (Tenn. Crim. App. Dec. 11, 1998).

Courts have not addressed this issue.

There is no statutory or case law addressing this issue.

Under the mootness doctrine, an individual’s stake in the litigation must continue throughout the entirety of the proceedings including during the pendency of an appeal. In re J.S., 139 Vt. 6, 14, 420 A.2d 870, 874 (Vt. 1980). This is because the Vermont Supreme Court may not issue advisory opinions. Id.

In State v. Tallman, 148 Vt. 465, 469, 537 A.2d 422, 424 (Vt. 1987), the Vermont Supreme Court recognized an exception to the mootness doctrine for a narrow class of cases that are “capable of repetition, yet evading review.” The applicability of this exception is dependent upon the satisfaction of a two-part test established by the U.S. Supreme Court in Weinstein v. Bradford, 423 U.S. 147, 149 (1975). First, the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration; and second, there must be a reasonable expectation that the same complaining party will be subjected to the same action again. Skaskiw v. Vt. Agency of Agric., 2014 VT 133, ¶ 35, 112 A.3d 1277, 1290-1291 (Vt. 2014).  Accordingly, if a reporter’s testimony is no longer sought, the mootness doctrine would preclude appellate review unless the reporter was able to show that he or she reasonably expected to be subpoenaed again with regard to the same issue. This could occur when there are concurrent state and federal proceedings and the reporter’s testimony is sought in both.

In State v. Gundlah, 160 Vt. 193, 196, 624 A.2d 328, 370 (Vt. 1993), the Vermont Supreme Court refused to consider whether a trial court improperly rejected a reporter’s qualified privilege because the criminal trial at which she refused to testify was no longer pending as the defendant had pled no contest to the charges against him. The court found that “[a] repetition of the fact pattern presented seems highly unlikely and certainly does not rise to a reasonable expectation.” Id.

The Supreme Court of Virginia has not addressed the mootness issue that arises when the trial or grand jury for which a reporter was subpoenaed has concluded. However, Virginia appellate courts do recognize that a court may adjudicate a controversy under the capable of repetition but evading review exception to the requirement of standing or justiciability.  Commonwealth ex rel. State Water Control Bd. v. APCO, 12 Va. App. 73, 402 S.E.2d 703 (1991).  The Fourth Circuit has held that these disputes are still ripe under this exception.  See, e.g., In re Shain, 978 F.2d 850, 852 n.2 (4th Cir. 1992).

Washington courts will ordinarily not entertain moot questions.

West Virginia courts have not had occasion to address "mootness" when a trial or grand jury session for which a reporter was subpoenaed has concluded.

No Wisconsin court has addressed the mootness issue when a trial or grand jury session for which a reporter was subpoenaed has concluded.

Courts in Wyoming have not addressed whether an appeal can be undertaken after the material at issue has been disclosed. However, the Wyoming Supreme Court has adopted two exceptions to the mootness doctrine. They are that the issue at hand 1) “is capable of repetition but evading review,” or 2) is of “great public importance.” Either exception could be used to justify an appeal after the reporter's materials have already been disclosed in the trial court.