the issues which were the bases of plaintiff's claim (that defendants had subjected him to an unconstitutional arrest and search of his vehicle) were the grounds for his motion to suppress in his pending criminal case, the action would be barred by the doctrine of collateral estoppel. In discussing the "mutuality of parties" requirement the court observed that the defendants in the civil rights action were witnesses rather than parties to the criminal proceedings. However, the court found that when a criminal action is brought in the name of the state, all of the law enforcement officers who worked toward the prosecution are, in essence, parties to the action. 354 F.Supp at 89. Therefore, the mutuality of parties requirement would not bar the application of collateral estoppel. However, since the issues were being considered in the state habeas corpus action the court stayed the civil rights action pending the outcome of the habeas corpus action. corpus action. 354 F. Supp. at 90. The court affirmed the dismissal of a diversity action alleging that the defendants had participated in giving perjured testimony against plaintiff in the course of his criminal trial in Cardillo v. Zyla, 468 F.2d 473 (1st Cir. 1973). The court of appeals, observing that collateral estoppel operates only as to matters actually litigated and decided at the prior trial, noted that it had examined the record of the criminal case to determine the issues decided by that judgment. The court found that since the defendant's credibility had been determined in the criminal prosecution the civil claim was barred. 486 F.2d at 475. Observing that the civil action was against individuals who were not "parties" at the criminal trial, the court noted that "mutuality of estoppel" was no longer required in most cases, citing as support BlonderTongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). The court observed: "What is required is that the party against whom the plea of estoppel is asserted [Cardillo] have been a party or in privity with the party to the prior adjudication. 486 F.2d at 475. Similarly in Rosenberg v. Martin, 478 F.2d 520 (2d Cir. 1973), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90, the court stated: "[u]nder modern notions with respect to issue preclusion, it is of no moment that the adverse party in the criminal case was the State rather than the police officer who is the defendant here." 478 F.2d at 525. It has already been observed that res judicata and collateral estoppel apply only to final judgments. 255 However, the failure of a party to take an appeal does not preclude the operation of res judicata or collateral estoppel. 256 Roy v. Jones, 484 F.2d 96 (3d Cir. 1973) observed that, rather than bringing their federal civil rights action under section 1983 urging that their suspensions from office as justices of the peace by the Supreme Court of Pennsylvania were effected without notice and hearing, the plaintiffs could have obtained federal review of the state court's determination by filing an application for a writ of certiorari from the Supreme Court of the United States. Having failed to pursue that course, they were barred by the principles of res judicata from obtaining such review in the lower federal courts. 484 F.2d at 98. Similarly, a plea of guilty admitting the elements of the charged crime precludes a subsequent civil rights action challenging any of the facts which were neces257 sary to the conviction. 257 In Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975), the plaintiffs sought a declaratory judgment that the city loitering ordinance under which they were convicted was unconstitutional. The Supreme Court remanded for a determination as to whether there was a case or controversy within the federal Constitution and the Declaratory Judgment Act. 421 U.S. at 434, 95 S.Ct. at 1696, 44 L. Ed. 2d at 282. The majority opinion did not consider the collateral estoppel issue; however, Justice Powell, dissenting to the remand, joined by Justice Stewart, stated: "The court has never expressly decided whether and in what circumstances § 1983 can be invoked to attack collaterally the state criminal convictions." 421 U.S. at 440, 95 S.Ct. at 1699, 44 L.Ed.2d at 286. Justice Stewart further stated: "I would hold that § 1983 does not allow such deliberate circumvention of the state judicial processes, and that when a state defendant knowingly pleads guilty or fails to invoke state appellate remedies his conviction is not subject to 255. See 1B Moore's Federal Practice, ¶ 409[1], at 1001 (2d ed. 1974). 256. 1B Moore's Federal Practice, ¶ 0.416[5], at 2305 (2d ed. 1974). 257. Brazzell v. Adams, 493 F.2d 489 (5th Cir. 1974). impeachment in a § 1983 action." 421 U.S. at 443, 95 S.Ct. at 1700, 44 L.Ed.2d at 287. Justice Rehnquist, in a concurring opinion, expressed his view that the Court was correct in leaving to the district court on remand the issues treated in Justice Powell's dissenting opinion. 421 U.S. at 435, 95 S.Ct. at 1696, 44 L.Ed.2d at 283. Guerro v. Mulhearn, 498 F.2d 1249, 1255 (1st Cir. 1974) suggested that when the state court action has not yet run its course the federal civil rights action should be dismissed or held in abeyance until the state proceedings are completed. 258 Res judicata was held inapplicable to a fact situation involving a continuing series of acts because generally each act gives rise to a new cause of action in Crowe v. Leeke, 550 F.2d 184, 187 (4th Cir. 1977). The court further found that collateral estoppel did not bar the instant action challenging prison mail procedures which allowed correspondence from attorneys to be opened and inspected outside the presence of the inmate-addressee, although a former class action had challenged the mail regulations. regulations. The judge's opinion in the earlier case did not discuss the precise issue presented, although the mail regulations generally had been found valid. If a plaintiff raises an issue which is the subject of another action and defendants are members of that class, the court may refuse to consider the issue if identical factual and legal issues are raised, 259 Dictum in Hardwick v. Doolittle, 558 F.2d 292, cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978) suggested that res judicata and collateral estoppel could be protected by injunction when necessary to prevent harassment of successful litigants. 258. See also Mastracchio v. Ricci, note 244 supra; Moran v. Mitchell, 354 F.Supp. (E.D. Va. 1973). 259. Bryan v. Werner, 516 F.2d 233, 239 (3d Cir. 1975); Smart v. Jones, 530 F.2d 64, 65 (5th Cir. 1976), cert. denied, 429 U.S. 887, 97 S.Ct. 240, 50 L.Ed.2d 168. C. Case in Controversy Problems; Mootness 260 Article III §2 of the Constitution imposes a threshold requirement that those who seek to invoke the power of a federal court must allege and show the existence of an actual case or controversy. O'Shea v. Littleton, 414 U.S. 488 (1974); Flast v. Cohen, 392 U.S. 83 (1968). The case or controversy must be a continuing one and must be "live" at all stages of the proceedings. Roe v. Wade, 410 U.S. 113 (1973). A case which presents a case or controversy may become moot due to the passage of time or because of some occurrence affecting the status of the parties. If time or events moot the controversy, the federal courts will not decide the substantive issues unless some exception to the mootness doctrine is present. Those exceptions are: 1. A remaining live issue. If one of several issues becomes moot, any remaining live issue may supply the constitutional case or controversy requirement. Powell v. McCormack, 395 U.S. 486, 497 (1969); Memphis Light, Gas and Water Division v. Kraft, 434 U.S. 919 (1978). For instance, if a claim for injunctive relief and monetary damages is made, the damage claim may provide the necessary controversy if the need for the injunction has passed. Sullivan v. Little Hunting Park, 396 U.S. 229 (1969). A claim for declaratory relief may provide the requisite controversy if an accompanying claim for injunctive relief is moot. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974); Preiser v. Newkirk, 422 U.S. 395 (1975). 2. The class action exception. A named party may maintain an action for a class of persons even if the named party's personal claims become moot. However, in order to take advantage of this exception, the named party must be a member of the class at the time it is certified by the court to be a class action, and his or her claims must have been "live" at that time. Sosna v. Iowa, 419 U.S. 393, 402-403 (1975). 260. I acknowledge assistance in the revision of this chapter from Professor Bruce Rogow, Nova University Center for the Study of Law, Ft. Lauderdale, Florida [Ed.]. However, this exception can be rendered useless if a change in events removes the actual controversy between the unnamed class members and the defendant. Kremens v. Bartley, 431 U.S. 119 (1977).. 3. Class action (uncertified) exception. Even if not a member of the class when the class is certified, the named class member can make a case survive the mootness doctrine in exceptional cases where the named party was a member of the class when the action was filed; the claim is one which has a very temporary life; it is certain that a constant class of persons will continue to suffer the complaint of deprivation; and the lawyers representing the plaintiff have other clients with a continuing live interest in the outcome of the case. Gerstein v. Pugh, 420 U.S. 103, 110 n. 11 (1975). 4. The capable of repetition yet evading review exception. A case presenting an occurrence which (1) was too short in duration to be fully litigated before its cessation and (2) will cause injury to the complaining party in the future is saved from the mootness doctrine because the claim is "capable of repetition yet evading review." Southern Pacific Terminal Co., v. Interstate Commerce Commission, 219 U.S. 498 (1911); Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975); Gerstein v. Pugh, supra. 5. The voluntary cessation exception. Voluntary cessation of unlawful conduct by defendants does not necessarily moot a claim where (1) the challenged illegal practice is deeply rooted and longstanding, Gray v. Sanders, 372 U.S. 368 (1963) or a controversy remains, United States v. W. T. Grant, 345 U.S. 639 (1953); (2) there is a danger of recurring violations. It is the defendant's burden to show that the repetition will not occur. United States v. W. T. Grant, supra. These principles and the discussion of some of the cases embodying them are set forth below. Tawwab v. Metz, 554 F.2d 22 (2d Cir. 1977) held that where prison policy allowing only one prisoner at a time to see his attorney had been changed, plaintiffs' claim challenging the policy and requesting injunctive relief was moot. Further, plaintiffs' |