                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3290
                                    ___________

John Doe,                              *
                                       *
             Appellant,                *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
Gothriel LaFleur, in his official      * District of Minnesota
capacity as Minnesota Commissioner     *
of Corrections; William Finney,        *
sued as William K. Finney,             *
                                       *
             Appellees.                *
                                  ___________

                              Submitted: May 10, 1999

                                   Filed: June 10, 1999
                                    ___________

Before McMILLIAN, HEANEY and FAGG, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

       John Doe, a Minnesota prisoner, appeals from a final order entered in the United
States District Court for the District of Minnesota granting summary judgment in favor
of the Minnesota Commissioner of Corrections (Commissioner) and holding that the
Minnesota Community Notification Act (MCNA) does not violate the ex post facto
clause as applied to him. Doe v. LaFleur, No. CV 97-1936 (D. Minn. Aug. 3, 1998)
(adopting magistrate judge’s report and recommendation, id. (July 2, 1998) (hereinafter
Report & Recommendation)). For reasons stated below, we dismiss the case.

         Jurisdiction was proper in the district court based upon 28 U.S.C. § 1331.
Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(a).

       The MCNA permits notification of a convicted sex offender’s release into the
community to certain members of the public in areas where the individual is anticipated
to live or work. The individual’s classification as a level I, II, or III sex offender
determines the scope and degree of the community notification. Under the MCNA,
community notification is permitted regardless of whether the individual was convicted
before or after the enactment of the MCNA, which became effective on January 1,
1997.

       Doe pled guilty in 1992 to multiple counts of criminal sexual conduct involving
minors. He served approximately five and one-half years in prison and was scheduled
for release into the community in 1997, upon completion of a residential program at a
halfway house located in St. Paul, Minnesota. Prior to his release from prison to the
halfway house, he was classified as a level III sex offender (i.e., in the highest risk
classification) for purposes of determining the applicable community notification
standards under the MCNA. Doe challenged his level III classification administratively
and, upon being denied relief, brought the present action in federal district court,
alleging that the MCNA violates the ex post facto clause as applied to him.

       While this matter was pending in the district court and Doe was still residing at
the halfway house, he violated the rules of the residential program by having contact
with minors and failing to account for his time going to and from work. Doe’s
supervised release was revoked, and he was returned to prison to serve the remainder
of his sentence, which expires in May of 2000.

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       Notwithstanding Doe’s return to prison, his constitutional challenge to the
MCNA was not dismissed as moot. The magistrate judge to whom the case had been
referred explained: “Neither party believes that the issue presently before the Court is
moot even though the Plaintiff has been reconfined to serve out his sentence. The
Court agrees that, given the Plaintiff’s eligibility for release in November of 1998, the
issue is not moot.” Report & Recommendation at 5 n.3 (citing Honig v. Doe, 484 U.S.
305 (1988); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)).

       At oral argument in the present appeal, which took place on May 10, 1999, the
parties confirmed that, as of that time, Doe had not been released from prison nor was
he scheduled to be released from prison prior to the expiration of his sentence in May
of 2000. We now hold that the present case is moot.

             “Under Article III of the Constitution, federal courts may
      adjudicate only actual, ongoing cases or controversies.” “It is of no
      consequence that the controversy was live at earlier stages in this case; it
      must be live when we decide the issues.” “Mootness has been described
      as the doctrine of standing set in a time frame: The requisite personal
      interest that must exist at the commencement of litigation (standing) must
      continue throughout its existence (mootness).”

             A moot case calls into question Article III’s case or controversy
      requirement; therefore, we must first “consider and rule upon the
      mootness question this case presents.” Further, if this case is indeed
      moot, we must refrain from reaching the merits because any opinion
      issued would be merely “advisory” and rest on hypothetical
      underpinnings.

Missouri v. Craig, 163 F.3d 482, 484 (8th Cir. 1998) (citations omitted).

       We also hold that this case does not fall within the exception to the mootness
doctrine for cases “capable of repetition yet evading review.” Assuming Doe is not
released until sometime around May of 2000, he will have had over two additional

                                           -3-
years in which to benefit from counseling and other rehabilitation programs in prison.
Thus, while there is a distinct possibility that Doe will again be classified as a level III
sex offender prior to his eventual release,1 it is also possible that Doe will be classified
differently. Furthermore, Doe will continue to be subject to the MCNA notification
provisions, if applicable, after his release from prison. Thus, even if he does file
another challenge to the MCNA at that time, his claim will not likely evade our review.
The present case is therefore distinguishable from Honig v. Doe, 484 U.S. at 322-23,2
in which the Supreme Court held that the “capable of repetition yet evading review”
exception applied where the plaintiff would no longer be eligible for the pertinent
statutory protections once the plaintiff reached a certain age. Nor is this case similar
to United States v. W.T. Grant Co., 345 U.S. at 632,3 in which the defendants
voluntarily ceased the challenged conduct. To the contrary, Doe himself was
responsible for the revocation of his impending release into the community and the
Commissioner has at all times been prepared to go forward with the litigation.




       1
         To the extent that Doe’s present constitutional challenge is now based upon the
anticipation that he will, in the future, again be classification as a level III sex offender,
it is not ripe and any disposition by this court would be purely advisory.
       2
        In Honig v. Doe, 484 U.S. 305, 322-23 (1988), the Supreme Court declined to
dismiss as moot a claim brought by an adolescent disabled student alleging violation
of Education of the Handicapped Act (EHA). The Court held that the “capable of
repetition yet evading review” exception applied because there was a reasonable
likelihood that the discipline complained of would be repeated, but any student bringing
such a challenge would be too old to qualify for EHA protection by the time review
could be obtained in the Supreme Court.
       3
       In United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953), the Supreme
Court held that the case was not moot where the defendant corporations, which had
engaged in a business practice alleged by the government to violate the Clayton Act,
voluntarily ceased the challenged practice and disclaimed any intent to revive it.
                                             -4-
       For the reasons stated, we hold that the present constitutional challenge to the
MCNA, under the ex post facto clause, is now a moot issue as applied to Doe.
Accordingly, we vacate the district court’s judgment and remand the case to the district
court with instructions to dismiss the case. See Missouri v. Craig, 163 F.3d at 486
(citing United States v. Munsingwear, 340 U.S. 36, 39 (1950)).

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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