No Prudential Exceptions: Mootness Is a Jurisdictional Bar in Kansas — State v. Phipps (Kan. 2025)

Introduction

In State v. Phipps, the Kansas Supreme Court announced a sweeping recalibration of the State’s mootness doctrine and its constitutional foundations. Writing for the Court, Justice Stegall held that mootness is a strict jurisdictional limitation under the Kansas Constitution’s separation-of-powers framework. As a result, Kansas courts may not invoke any “prudential exceptions” to reach the merits of otherwise moot issues. In so holding, the Court expressly overruled State v. Roat, 311 Kan. 581, 466 P.3d 439 (2020), and any other precedent suggesting courts could decide moot issues in the name of public importance or issues “capable of repetition yet evading review.”

The case began as a routine sentencing appeal. Jason W. Phipps pleaded no contest in 2022 to two felonies and two misdemeanors. He challenged the inclusion of a 2010 criminal threat conviction in his criminal history score, arguing it fell under a statute later deemed unconstitutional in State v. Boettger, and thus could not be used under K.S.A. 21-6810(d)(9). While his appeal was pending, the U.S. Supreme Court decided Counterman v. Colorado, suggesting recklessness suffices for threat prosecutions under the First Amendment. The Court of Appeals affirmed, reasoning that Counterman effectively overruled Boettger. After the Kansas Supreme Court granted review, Phipps completed his sentence, prompting the Court to direct briefing on mootness and the viability of Roat’s prudential exceptions.

The central issues thus became:

Whether Phipps’ completion of his sentence mooted his appeal.
If so, whether Kansas courts may nevertheless decide moot issues under prudential exceptions recognized in Roat and its predecessors (e.g., matters of public importance or capable of repetition yet evading review).
Whether the Court could or should resolve the tension between Boettger and Counterman within a mooted case.

Summary of the Opinion

The Court dismissed the appeal as moot. In doing so, it announced and applied several core holdings:

The Kansas Constitution (art. 3, § 1) vests “judicial power” in the courts, meaning the power to hear and determine actual controversies between adverse litigants.
A case is moot when it is clearly and convincingly shown that the actual controversy has ended, any judgment would be ineffectual for any purpose, and it would not affect any party’s rights (reaffirming the traditional Kansas definition).
Once a court determines an issue is moot, courts lack constitutional authority to review that issue; mootness is a jurisdictional bar.
Any Kansas decisions suggesting courts may nonetheless decide moot issues via prudential exceptions are overruled, including Roat.
On the facts, Phipps’ completion of his sentence mooted his sentencing appeal. Neither party identified a concrete, continuing effect of the sentence that a decision could remedy, and both largely sought “guidance”—i.e., an advisory opinion the Court lacks power to issue.
Phipps’ criminal-history challenge did not avoid mootness: Kansas law anticipates a new presentence investigation for any future sentencing, and the State bears the burden anew (see State v. Tracy). Thus, a ruling now would not affect Phipps’ rights or bind a future court.
Because the case is moot and mootness is jurisdictional, the Court declined to address whether Counterman overruled Boettger.

Analysis

Precedents Cited and Their Influence

The Court’s opinion is dense with precedent that marks a long-running tension in Kansas mootness jurisprudence:

Foundational Kansas constitutional cases:
- Baker v. Hayden, 313 Kan. 667 (2021), and State ex rel. Brewster v. Mohler, 98 Kan. 465 (1916): Judicial power is the power to resolve actual controversies.
- Rivera v. Schwab, 315 Kan. 877 (2022), and Gannon v. State, 298 Kan. 1107 (2014): Kansas derives its case-or-controversy constraint from separation of powers, not a textual “case or controversy” clause like Article III.
Advisory opinions are constitutionally forbidden:
- State v. Cheever, 306 Kan. 760, 786 (2017): Kansas courts cannot issue advisory opinions—a proposition the majority treats as a structural separation-of-powers limit.
- NEA-Topeka, Inc. v. U.S.D. No. 501, 227 Kan. 529 (1980): Advisory opinions violate separation of powers; the majority leans on this lineage to frame prudential mootness exceptions as unconstitutional.
Definition of mootness:
- Sierra Club v. Stanek, 317 Kan. 358 (2023), and its predecessors (Roat; Montgomery; McAlister): A case is moot when judgments would be ineffectual and rights unaffected.
Conflicting historical treatments of mootness:
- Cases treating mootness as jurisdictional or constitutional: Miller v. Ins. Mgt. Assocs., 249 Kan. 102 (1991); Allenbrand v. Contractor, 253 Kan. 315 (1993); Sheila A. v. Finney, 253 Kan. 793 (1993); State ex rel. Morrison v. Sebelius, 285 Kan. 875 (2008).
- Cases casting mootness as policy with prudential exceptions: Moore v. Smith, 160 Kan. 167 (1945); Knowles v. State Board of Education, 219 Kan. 271 (1976); State ex rel. Stephan v. Johnson, 248 Kan. 286 (1991); and ultimately Roat (2020).
Stare decisis standards:
- Jarmer v. Kansas Department of Revenue, 318 Kan. 671 (2024); State v. Clark, 313 Kan. 556 (2021): Depart from precedent when the older rule was originally erroneous or no longer sound and departure does more good than harm.
- Helvering v. Hallock, 309 U.S. 106 (1940): Stare decisis is a policy, not a mechanical command—especially in collision with more fundamental constitutional doctrine.
- Miller v. Johnson, 295 Kan. 636 (2012) (Beier, J., concurring/dissenting): Stare decisis is at its weakest in constitutional cases.
- The Court emphasizes courts’ duty to police their jurisdiction sua sponte: In re I.A., 313 Kan. 803 (2021); State v. Hillard, 315 Kan. 732 (2022).
Application to Phipps:
- State v. Williams, 298 Kan. 1075 (2014): Appeal not moot when postrelease supervision carried concrete collateral consequences (e.g., possible life sentence effect). The majority distinguishes Williams because neither party identified any comparable continuing effect on Phipps.
- State v. Tracy, 311 Kan. 605 (2020): Each sentencing includes a new presentence investigation; the State bears the burden anew on criminal history. Thus, a present ruling would not bind a future court or affect Phipps’ rights.
Federal touchstones and their limits:
- Chief Justice Rehnquist’s concurrence in Honig v. Doe, 484 U.S. 305 (1988), describing federal mootness’ “attenuated” connection to Article III—used in Roat to justify exceptions. The majority now rejects that fluidity as inconsistent with Kansas’ structural constraints.
- Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting): Cited for the centrality of separation of powers in preserving constitutional equilibrium; the majority uses it to frame advisory opinions as executive power, not judicial power.

Legal Reasoning

The majority’s framework proceeds in three steps:

Constitutional grounding. Although the Kansas Constitution lacks a textual “case or controversy” clause, the Court locates that limitation in the Constitution’s separation-of-powers architecture. Judicial power is limited to deciding actual controversies; advisory opinions are beyond judicial power. Given this, “prudential” discretion to decide moot questions is incompatible with the Constitution’s structural limits.
Doctrinal clarification and stare decisis. The Court surveys its own inconsistent treatments of mootness across more than a century. It characterizes the line of cases culminating in Roat as a “misstep” that drifted toward discretionary policy. Because the question goes to the courts’ power to act at all, stare decisis carries reduced weight, and the Court must correct course. It therefore overrules Roat and any prior decisions suggesting moot issues may be decided.
Application to Phipps. With Phipps having completed his sentence, the appeal presents no live controversy as to his sentence. Neither party identified any concrete, ongoing consequence that a decision could alter; both sought “guidance,” which would be advisory. As to criminal history, Tracy confirms Phipps could litigate his history anew in any future case; a present ruling would neither bind a future court nor affect Phipps’ current rights. Because mootness is jurisdictional, the Court cannot reach the merits—including whether Counterman abrogated Boettger.

Impact and Prospective Effects

The decision resets Kansas mootness doctrine along structural constitutional lines, with several immediate and longer-term implications:

End of prudential mootness exceptions. Kansas courts may no longer decide moot issues under exceptions such as “capable of repetition yet evading review,” “issues of great public importance,” or other policy-based justifications. Issues that became cornerstones of Kansas public law under those exceptions (e.g., media access, school finance, probation practices) must now meet the non-mootness criteria—i.e., a decision must affect the parties’ rights or have concrete remedial effect.
Collateral consequences remain—but as non-mootness, not exceptions. The majority’s definition of mootness preserves the traditional out: if any judgment could have a meaningful effect on a party’s rights, the case is not moot. Collateral consequences, ongoing disabilities, or concrete legal exposures can still sustain jurisdiction. The key shift is conceptual: courts will treat those circumstances as showing the case is not moot, rather than as prudential grounds to reach an otherwise moot issue.
Uncertainty on “voluntary cessation”. The Court did not address whether Kansas recognizes the federal “voluntary cessation” doctrine. Properly understood, voluntary cessation often goes to whether the controversy has truly ended. Given the majority’s “clearly and convincingly shown” standard for mootness and its insistence on preserving separation-of-powers limits while avoiding advisory opinions, litigants should argue voluntary cessation as evidence that the controversy remains live unless it is absolutely clear the challenged conduct cannot reasonably recur.
Election and time-sensitive litigation. Without a “capable of repetition yet evading review” exception, election, pregnancy, public-health, and other short-fuse controversies will be harder to litigate through appeal unless plaintiffs secure preliminary relief, maintain claims for damages or sanctions, or otherwise show ongoing effects on their rights. Absent a live stake for the parties, courts cannot use public-importance rationales to reach merits.
Criminal appeals and sentencing. Completing a sentence will often moot challenges to that sentence unless the appellant can demonstrate concrete collateral consequences—e.g., immigration effects, firearm disabilities, registration obligations, or comparable legal restraints. In the specific context of criminal history scoring, Tracy makes clear that history is relitigated at each sentencing; past disputes rarely avoid mootness absent present-day legal effects.
Open records and administrative enforcement. If the government voluntarily produces records or lifts an order mid-litigation, plaintiffs must identify enduring legal interests (civil penalties, fee entitlement, expungement, record-keeping consequences) to avoid mootness.
Unresolved merits: Boettger vs. Counterman. By declining to reach whether Counterman abrogates Boettger, the Court leaves a significant First Amendment and sentencing-guidelines question open. Until the Kansas Supreme Court addresses it in a live case, tension will persist regarding the constitutional status of Kansas’ reckless criminal threat post-Counterman and the consequences for criminal-history scoring under K.S.A. 21-6810(d)(9).

The Dissents: Competing Visions of Judicial Power and Justiciability

Two dissents—by Justice Biles (joined by Justice Rosen) and by Justice Standridge—offer contrasting counterarguments that will likely inform future advocacy.

Justice Biles’ Dissent

Justice Biles sharply criticizes the majority for abandoning a long-recognized set of exceptions that allowed Kansas courts to address questions of public importance and issues capable of repetition yet evading review. He argues:

The majority misreads Kansas precedent and the Constitution. Kansas courts have broad jurisdiction conferred by statute; mootness historically functioned as a prudential doctrine, not a jurisdictional bar.
Eliminating prudential exceptions invites strategic mooting—allowing government actors or well-resourced parties to infringe rights so long as the conduct ceases before appellate review.
The majority’s separation-of-powers framing goes too far: deciding a well-developed but time-limited dispute is not the same as issuing an advisory opinion in the executive sense (e.g., attorney general opinions under K.S.A. 75-704).
The decision threatens important domains—election law, abortion-related litigation, and others—where time constraints inherently risk mootness.
Stare decisis was not properly engaged; the Court disrupts a century of Kansas practice without sufficient justification and risks destabilizing prior decisions.

Justice Standridge’s Dissent

Justice Standridge proposes a middle path. Accepting that post-Morrison Kansas treats justiciability as jurisdictional, she would preserve flexibility within the mootness inquiry itself:

Maintain a jurisdictional case-or-controversy requirement but recognize that a case remains justiciable if a decision can still serve a legitimate purpose—especially when issues are capable of repetition and of public importance or when collateral consequences continue to affect a party’s rights.
Adopt a burden-shifting approach (akin to Roat): the party asserting mootness must make a prima facie showing; the opposing party may rebut by demonstrating continuing legal effects or the specified criteria.
On this record, she would evaluate whether jurisdiction persists and, if so, whether the case should proceed to the merits under those criteria.

In short, Justice Standridge would preserve the functional flexibility historically embedded in Kansas mootness practice, but within a jurisdictional frame that honors separation-of-powers concerns without imposing a rigid, bright-line cutoff.

Complex Concepts Simplified

Mootness: A case is moot when the real-world dispute has ended, and any court decision would have no practical effect on the parties’ rights. In Kansas post-Phipps, if a matter is determined moot, courts lack constitutional power to decide it—no policy-based exceptions remain.
Prudential Exceptions: Historically, Kansas courts sometimes decided moot issues if they were capable of repetition yet evading review or of public importance. Phipps abolishes these exceptions as beyond judicial power.
Collateral Consequences: Ongoing legal effects (e.g., registration obligations, civil disabilities, fee/sanction exposure) can keep a case alive because they show a decision would still affect rights. This is not an “exception” after Phipps; it is a reason the case is not moot.
Advisory Opinions: Statements of law not tied to resolving an actual dispute between adverse parties. Kansas courts cannot issue them; that authority belongs to the executive (e.g., attorney general opinions), not the judiciary.
Voluntary Cessation: When a defendant stops the challenged conduct mid-case. Often, the case is not moot if the defendant could reasonably resume the conduct—because the controversy has not truly ended. Phipps does not expressly address this doctrine, but its definition of mootness and burden to show mootness “clearly and convincingly” may accommodate it as a reason the case is not moot.
Modified Categorical Approach: A sentencing method allowing courts to consult a limited set of record documents to determine which alternative element a prior conviction involved (e.g., intentional vs. reckless threat) when a statute lists multiple elements.
Kansas Sentencing Guidelines—Criminal History: Prior convictions are scored to compute a criminal history category (e.g., “B”), which affects sentencing severity. K.S.A. 21-6810(d)(9) prohibits counting convictions under statutes later declared unconstitutional.

Practical Guidance After Phipps

Build a record of concrete, continuing effects. If a party completes a sentence or a government rescinds the challenged action, identify specific ongoing legal consequences to avoid mootness (e.g., registration duties, civil penalties, fee entitlements, record expungement stakes, firearm or immigration disabilities).
Seek preliminary relief and expedited review. In time-sensitive disputes (elections, public health, school discipline), pursue temporary restraining orders, preliminary injunctions, or stays, and ask for expedited consideration to keep a live controversy through appeal.
Preserve damages and fee claims. Claims for damages or statutory fees may preserve a live stake even if injunctive relief becomes unnecessary. Confirm whether state statutes support independent fee or penalty remedies to defeat mootness.
Argue “voluntary cessation” as non-mootness. If the respondent ceases challenged conduct mid-case, argue the controversy remains live unless it is clear the conduct cannot reasonably recur—framing this as going to whether the “actual controversy” has truly ended.
Criminal-history disputes. Recognize that Tracy anticipates relitigation of criminal history at each sentencing; without present collateral consequences, such appeals will often be moot once the sentence ends.
Anticipate uncertainty on Boettger/Counterman. Because the Court declined to reach that issue, expect continued litigation over whether Kansas’ reckless criminal threat remains unconstitutional under Boettger in the wake of Counterman. Preserve both federal and state constitutional arguments for a future live case.

Conclusion

State v. Phipps is a structural decision about the judicial power in Kansas. By declaring mootness a jurisdictional bar and abolishing prudential exceptions, the Court reanchors justiciability in the Constitution’s separation-of-powers design and rejects policy-based discretion to decide academic or time-lapsed disputes. The majority frames this as a necessary correction to preserve the judiciary’s limited role and to avoid advisory opinions.

The dissents warn of serious costs: the loss of a safety valve for recurring, time-sensitive controversies and a potential incentive for strategic mooting by powerful actors. Justice Standridge offers a middle-ground approach that treats mootness as jurisdictional but flexible, preserving narrow pathways for issues of public importance and collateral consequences.

In the end, the ruling’s significance is twofold. First, it redefines the boundary of judicial authority: once a case is truly moot, Kansas courts cannot decide it—period. Second, it recalibrates litigation strategy across domains where time or government action frequently extinguishes live disputes. Going forward, Kansas litigants must carefully demonstrate concrete, continuing effects to keep controversies justiciable. And the constitutional status of reckless criminal threat under Counterman vs. Boettger remains open, awaiting a live case squarely presenting the question under the new jurisdictional regime.

No Prudential Exceptions: Mootness Is a Jurisdictional Bar in Kansas — Commentary on State v. Phipps (Kan. 2025)