Couey v. Atkins

460 July 16, 2015 No. 26

IN THE SUPREME COURT OF THE

STATE OF OREGON

Marquis COUEY,

an individual,

Petitioner on Review,

v.

Jeanne ATKINS,

in her official capacity as

Secretary of State of Oregon,

Respondent on Review.

(CC 10C14484; CA A148473; SC S061650)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 24, 2014.

Daniel W. Meek, Portland, argued the cause for peti-

tioner on review. Linda K. Williams, Portland, filed the

briefs.

Rolf Moan, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review.

With him on the briefs were Ellen F. Rosenblum, Attorney

General, Anna Joyce, Solicitor General, and Michael S.

Shin, Assistant Attorney General.

Alan J. Galloway, Davis Wright Tremaine LLP,

Portland, argued the cause and filed the brief for amicus

curiae American Civil Liberties Union of Oregon, Inc. With

him on the brief were Timothy R. Volpert and Kevin Díaz.

Robert M. Atkinson, Portland, filed the brief for himself

as amicus curiae.

LANDAU, J.

The decision of the Court of Appeals and the judgment of

the circuit court are reversed, and the case is remanded to

the circuit court for further proceedings.

______________

*  Appeal from Marion County Circuit Court, Claudia M. Burton, Judge. 257

Or App 434, 306 P3d 778 (2013).

Cite as 357 Or 460 (2015) 461

Case Summary:The decision of the Court of Appeals and the judgment of

the circuit court are reversed, and the case is remanded to the circuit court

for further proceedings. Plaintiff, a paid petition circulator, brought an action

against the Secretary of State, challenging former ORS 250.048(9), an election

law prohibiting paid petition circulators form circulating petitions on a paid and

volunteer basis at the same time. During the pendency of the litigation, plaintiff

stopped working as a paid petition circulator and his registration expired. The

trial court granted summary judgment for the secretary, concluding that the case

was moot. The Court of Appeals affirmed. Held: (1) The affidavit submitted by

plaintiff, asserting that he intended to continue working as a paid petition circu-

lator and that he would like to support petitions concerning environmental issues

on a volunteer basis is insufficient to overcome mootness; (2) the action, however,

may be reviewed under ORS 14.175, the statute allowing Oregon courts to hear

otherwise moot cases that are capable of repetition, yet evading review; and (3)

the legislature acted within its authority in enacting ORS 14.175.

The decision of the Court of Appeals and the judgment of the circuit court are

reversed, and the case is remanded to the circuit court for further proceedings.

462 Couey v. Atkins

LANDAU, J.

ORS 250.048(9)1 provides that a person who is regis-

tered with the Secretary of State to collect initiative petition

signatures for pay may not, “at the same time, obtain signa-

tures on a petition or prospective petition for which the per-

son is not being paid.” Plaintiff initiated this action against

the Secretary of State, challenging the constitutionality of

that statute. At the time he initiated the action, he had reg-

istered to collect initiative petition signatures for pay and

had been hired to do just that. At the same time, he wanted

to collect signatures on other measures on a volunteer basis.

He contended that ORS 250.048(9) violated his constitu-

tional rights of freedom of expression and association.

During the pendency of the litigation, however,

plaintiff stopped working as a paid signature collector, and

his registration expired. The secretary moved for summary

judgment on the ground that the action had become moot.

Plaintiff opposed the motion, submitting an affidavit stating

that he intended to work as a paid signature collector in the

future and that he might be interested in collecting signa-

tures on a volunteer basis on other measures at the same

time. He also argued that, even if his action had become

moot, the action nevertheless should proceed because it

is “likely to evade judicial review in the future,” and ORS

14.175 expressly authorizes courts to adjudicate such cases.

The trial court entered summary judgment dis-

missing the action on the ground that the action had become

moot. The court concluded that, because plaintiff had failed

to ask for expedited consideration, his is not the sort of case

that is likely to evade review under ORS 14.175. The Court

of Appeals affirmed, and we accepted plaintiff’s petition for

review.

On review, the case presents the following issues for

us to resolve: (1) whether the averments in plaintiff’s affida-

vit are sufficient to establish that his action is not moot; (2)

even if the action is moot, whether it is nevertheless justi-

ciable under ORS 14.175 because it is likely to evade review

1

In 2013, the statute was renumbered as ORS 250.048(10). Or Laws 2013, ch

519, § 1. Throughout this opinion, we refer to the version of the statute that was

in effect at the time of the filing of the action.

Cite as 357 Or 460 (2015) 463

within the meaning of that statute; and (3) if it is subject to

ORS 14.175, whether the legislature possessed the consti-

tutional authority to enact it. The case thus requires us to

examine the subject of justiciability—in terms of this court’s

own jurisprudence on the rule against deciding moot cases,

the intended meaning of the statutory exception to that rule,

and the legislature’s constitutional authority to enact such a

law. It does not require us to reach the merits.

For the reasons that follow, we conclude that: (1)

plaintiff’s affidavit is insufficient to establish that his

action is not moot; (2) the action nevertheless is likely to

evade judicial review under the standard set out in ORS

14.175, because it is not necessary to request expedited con-

sideration to meet its terms; and (3) the legislature does

possess the constitutional authority to enact the statute.

Accordingly, because we conclude that the case is justiciable

under ORS 14.175, we reverse the decision of the Court of

Appeals, reverse the decision of the trial court, and remand

for further proceedings.

I. BACKGROUND

A.  Regulatory context

We begin with a brief summary of the regulation of

the initiative petition signature collection process to provide

context for our discussion of the relevant facts. The powers of

initiative and referendum reserved by the people in Article

IV, section 1, of the Oregon Constitution allow them to enact

statutes, adopt or reject bills passed by the legislature,

and adopt amendments to the state constitution. The par-

ties who seek to place a statewide initiative measure on an

election ballot, known as the chief petitioners, must submit

to the Secretary of State the text of the proposed measure

along with the required number of sponsorship signatures.

See ORS 250.045(1) (requiring filing of text of prospective

petition with signatures of at least 1,000 electors). There fol-

lows the certification of a ballot title, an impartial summary

of the proposed measure. ORS 250.065 to 250.085. Once

the ballot title has been certified, the chief petitioners are

responsible for collecting signatures from registered voters

who support placing the measure on an upcoming election

ballot. Depending on whether the measure proposes to enact

464 Couey v. Atkins

a statute or to adopt a constitutional amendment, the num-

ber of required signatures varies from six to eight percent

of the total votes cast for governor at the last election. Or

Const, Art IV, § 1(2)(b), (c). Chief petitioners have a limited

time to collect those signatures, which must be submitted to

the Secretary of State at least four months before the date of

the next regularly scheduled general election. Or Const, Art

IV, § 1(2)(e).

The process of collecting initiative petition signa-

tures is regulated by statute and by administrative rules

promulgated by the Secretary of State. Chief petitioners are

authorized to hire paid signature collectors. ORS 250.045(2).

But they must notify the Secretary of State of their intention

to do that, and the petition itself must include a statement

that one or more persons is being paid to collect signatures.

ORS 250.045(2), (7).

Before a person may be paid to collect initiative peti-

tion signatures, he or she must register with the Secretary

of State, specify for which measures signatures will be col-

lected, and complete a training program prescribed by rule

by the secretary. ORS 250.048(1), (2). That registration

remains in effect for a limited time; it expires four months

before the next general election, when initiative petition sig-

natures are due. ORS 250.048(3).

A registered paid initiative petition signature col-

lector may not collect signatures on other measures on a vol-

unteer basis. ORS 250.048(9) provides: “A person registered

under this section [to be a paid collector] may not obtain

signatures on a petition or prospective petition for which the

person is being paid and, at the same time, obtain signa-

tures on a petition or prospective petition for which the per-

son is not being paid.” The statute further provides that the

Secretary of State may not count any signatures that were

collected in violation of that restriction. Id.

B.  Facts

The relevant facts are few and undisputed. We

review them in the light most favorable to plaintiff. ORCP

47 C; Towe v. Sacagawea, Inc., 357 Or 74, 77 n 2, 347 P3d

766 (2015) (on review of summary judgment, evidence is

viewed in light most favorable to nonmoving party).

Cite as 357 Or 460 (2015) 465

Plaintiff obtained registration to work as a paid sig-

nature collector for Initiative Petitions 28 and 70 during the

2010 election cycle, scheduled to end July 2, 2010. He per-

formed that work in the “winter and early spring” of 2010.

During that time, he became interested in collecting signa-

tures for a third measure, Initiative Petition 42, but on a

volunteer basis. He explained that he was interested in the

subject of that measure—environmental protection—and

that he was often at events “where I met people when I was

not being paid as a petitioner, and I could have easily gotten

signatures at those times.” But he was concerned that ORS

250.048(9) did not seem to permit him to do that.

On April 19, 2010, plaintiff initiated this action

against the Secretary of State challenging the constitu-

tionality of ORS 250.048(9). He alleged as the basis for the

action the Declaratory Judgments Act, ORS 28.020, and a

separate statute providing for challenges to actions of the

Secretary of State, ORS 246.910. He asked for a declara-

tion that ORS 250.048(9) is unconstitutionally overbroad,

in violation of his rights of free expression and free associ-

ation guaranteed under Article I, sections 8 and 27, of the

Oregon Constitution, and under the First and Fourteenth

Amendments to the United States Constitution. He alleged

that his uncertainty about the meaning of ORS 250.048(9)—

in particular, what the statute means when it prohibits col-

lecting signatures as a paid collector and a volunteer “at the

same time”—effectively chills his rights of free expression

and free association. He also sought nominal damages and

an injunction to prohibit the secretary from enforcing the

challenged law.

A few weeks later, plaintiff stopped working as

an initiative petition signature collector; he took on a new

restaurant server job and wanted to focus on that new oppor-

tunity. Later that month, however, plaintiff was injured in

an automobile accident and became unable to work at all for

the next several months.

On July 2, 2010, the deadline for submitting ini-

tiative petition signatures arrived, and with it came the

expiration of plaintiff’s registration as a paid signature col-

lector. Several months later, plaintiff received a telephone

466 Couey v. Atkins

call from the Secretary of State’s office to report that the

secretary intended to publish a proposed rule interpret-

ing ORS 250.048(9). Shortly thereafter, plaintiff filed an

amended complaint alleging that “[a]ny rule adopted by [the

Secretary of State] will continue to violate plaintiff’s rights

to obtain signatures as a volunteer on other petitions.”2

The secretary moved for summary judgment on the

ground that plaintiff’s claims had become moot. The secre-

tary argued that plaintiff was no longer a registered paid

initiative petition signature collector and thus “no longer

has a sufficient and present interest in the resolution of this

controversy.” Any remaining interest in the constitutional-

ity of ORS 250.048(9), the secretary argued, is too specu-

lative to support the continuing justiciability of the action

under either ORS 28.020 or ORS 246.910.

Plaintiff opposed the secretary’s motion, arguing

that the action had not become moot. In the alternative, he

argued that, if moot, the action remains justiciable under

ORS 14.175, which authorizes courts to hear moot cases

that are capable of repetition, yet evading review. In sup-

port of his contention that the action had not yet become

moot, plaintiff submitted an affidavit, in which he averred

that he had recently registered as a paid initiative petition

signature collector for the 2012 election cycle, and stated

that “I fully intend to work * * * as a paid circulator in the

future.” He also stated that “[w]hen another measure deal-

ing with protecting the environment starts to circulate, I’d

like to support it.” He said that “I might be willing to have

a volunteer signature while being on hours, as well, but the

2

The secretary ultimately adopted the rule in November 2011. OAR 165-

014-0285. That rule provides:

“Under ORS 250.048(9), a person may not obtain signatures on a petition or

prospective petition for which the person is being paid and, at the same time,

obtain signatures on a petition or prospective petition for which the person

is not being paid. For purposes of ORS 250.048(9), ‘at the same time’ means

during any time period for which the person is being paid to circulate any

petition or prospective petition. ‘At the same time’ does not include any lunch

or other break period for which a person is not paid to circulate any such

petition, as reflected in the person’s payroll records required to be submitted

under OAR 165-014-0100.”

Id. Plaintiff did not amend his complaint following the adoption of that rule to

challenge the validity of that rule.

Cite as 357 Or 460 (2015) 467

main agenda is to be able to collect signatures on a volun-

teer basis outside of my work hours.” According to plaintiff,

“I would like to have the right and freedom to collect signa-

tures on a volunteer basis during my work hours.” Plaintiff

also submitted an affidavit of a chief petitioner on Initiative

Petition 42 (2010), who stated that “we intend to try to cir-

culate another petition” in the coming year.

The trial court granted the secretary’s summary

judgment motion and dismissed the action. The court

explained that, although plaintiff had standing to initiate

the action, the case had become moot:

“The 2010 election is over and plaintiff no longer seeks

relief regarding anything that occurred in that election; he

only seeks prospective relief. * * * [A]lthough he has taken

steps to become registered as a paid petition circulator,

there is no evidence that there is any petition which he

wishes to circulate as a volunteer, or that his prospective

employer for paid petition circulation will permit him to

circulate a volunteer petition ‘at the same time’ (as defined

by the rule) as he is circulating a paid petition.”

The court further concluded that plaintiff was not entitled

to pursue the action under ORS 14.175. The court explained

that plaintiff had failed to demonstrate that the matter

was likely to evade judicial review. The court acknowledged

that the ordinary election cycle generally would not provide

sufficient time to resolve actions such as the one before it.

Nevertheless, the court concluded, plaintiff had failed to

request expedited review, which—if granted—might have

prevented the case from becoming moot.

Plaintiff appealed, and the Court of Appeals affirmed.

Couey v. Brown, 257 Or App 434, 306 P3d 778 (2013). The

court first concluded that the case was indeed moot, as there

was no evidence in the record of a measure for which plain-

tiff wanted to collect initiative petition signatures on a vol-

unteer basis. Id. at 443. The court then concluded that the

case was not subject to the statutory mootness exception

enacted in ORS 14.175. Id. at 444. Like the trial court, the

Court of Appeals acknowledged that, “it is true that cases

typically take more than two years to move from filing to

issuance of an appellate judgment, especially cases that go

468 Couey v. Atkins

to the Supreme Court.” Id. But, also like the trial court,

the Court of Appeals concluded that plaintiff could have

requested expedited consideration of his action, yet failed

to do so. The court noted “the obvious question of whether

[the] statute [ORS 14.175] violates the Oregon Constitution”

under Yancy v. Shatzer, 337 Or 345, 363, 97 P3d 1161 (2004),

in which this court held “in no uncertain terms” that the

judicial power under the Oregon Constitution does not

extend to moot cases that are capable of repetition, yet evad-

ing review. Couey, 257 Or App at 445 n 1. Because the court

ultimately concluded that plaintiff did not qualify for review

under that statute, it did not need to reach that issue. Id.

II. ANALYSIS

A.  Is plaintiff’s action moot?

On review, plaintiff argues that the Court of

Appeals erred in concluding that his action is now moot. He

contends that the court erred in concluding that the declar-

atory judgment portion of the action is moot for essentially

two reasons. First, he argues that the affidavits that he

submitted in opposition to the secretary’s summary judg-

ment motion adequately evince a concrete interest in the

outcome of the case. Second, he argues that, even if that is

not the case, the fact that he has brought claims for uncon-

stitutional overbreadth effectively excuses him from having

to establish the continuing justiciability of his claims. As

for the remaining portion of the action that arises under

ORS 246.910—pertaining to judicial review of actions of the

Secretary of State—plaintiff argues that the court erred in

affirming the dismissal of that claim as well. We address

each of those three arguments in turn.

1.  The action for a declaratory judgment

Plaintiff’s initial argument that the declaratory

judgment portion of his action is not moot is brief and a

bit cryptic. He devotes most of his efforts to his argument

that the overbreath doctrine effectively relaxes justiciabil-

ity requirements. As to the sufficiency of his affidavit, he

argues that, under Oregon law, “there is no case law rule

that ‘hypothetical’ injury renders claims for declaratory

relief per se nonjusticiable merely because the injury has not

Cite as 357 Or 460 (2015) 469

actually yet occurred.” Citing Pendleton School Dist. v. State

of Oregon, 345 Or 596, 200 P3d 133 (2009), he argues that,

if a dispute involves the interpretation of an existing statute

“that could apply to a party in the future,” that is sufficient

to create a justiciable controversy. In plaintiff’s view, his affi-

davit establishes “the likelihood that he and others suffer

continuing chill of political speech, satisfying any personal

stake” requirement the law may impose. Beyond those bare

conclusions, plaintiff does not explain what in his affidavit

establishes that likelihood or how it otherwise demonstrates

that the action is not moot.

The secretary responds that, at the time of her

summary judgment motion, there was no actual contro-

versy based on present facts, as the law requires. At that

time, plaintiff had stopped working as a paid initiative

petition collector. He had registered to work on a measure

in February 2011, but nothing in the record suggests that

he actually performed that work. In addition, nothing in

the record showed that there were any then-existing mea-

sures for which he was presently interested in collecting

signatures on a volunteer basis. Accordingly, the secretary

argues, at that point petitioner was not doing anything that

ORS 250.048(9) prohibited. Nor does the record show that

the challenged statute was actually preventing him from

taking any action.

We agree with the Secretary of State. To maintain

a declaratory judgment action, a plaintiff must establish at

the outset that he or she satisfies the statutory requirements

for standing to bring the action. Morgan v. Sisters School

District # 6, 353 Or 189, 195, 301 P3d 419 (2013). Thereafter,

the plaintiff’s concrete stake in the outcome must continue

throughout the pendency of the case. Savage v. Munn, 317

Or 283, 291-92, 856 P2d 298 (1993). If, after the initiation

of the action, it becomes moot, it will be dismissed for want

of justiciability.3 Barcik v. Kubiaczyk, 321 Or 174, 188, 895

P2d 765 (1995). In this case, there is no dispute that, at least

at the time plaintiff initiated this action, he satisfied the

3

As we explain later in this opinion, this court’s prior cases have not been

consistent about whether dismissal on mootness grounds is required as a matter

of constitutional law or is instead a product of justiciability doctrine that the

court has developed as matter of judicial discretion.

470 Couey v. Atkins

standing requirements of the Declaratory Judgments Act.

The issue is whether, with the passing of certain events, the

action became moot.

As this court explained in Brumnett v. PSRB, 315

Or 402, 405, 848 P2d 1194 (1993), “[d]etermining mootness

is one part of the broader question of whether a justiciable

controversy exists.” In the context of a declaratory judgment

action, a justiciable controversy requires “a dispute based

on present facts,” not facts that may or may not happen in

the future. TVKO v. Howland, 335 Or 527, 534, 73 P3d 905

(2003); see also Brown v. Oregon State Bar, 293 Or 446, 449,

648 P2d 1289 (1982) (“To be justiciable, a controversy must

involve present facts as opposed to a dispute which is based

on future events of a hypothetical issue.”). Thus, plaintiff is

incorrect in stating that “there is no case law rule that ‘hypo-

thetical injury’ renders claims for declaratory relief per se

nonjusticiable.” To the contrary, a justiciable controversy is,

by very definition, one that is not hypothetical. Declaratory

relief is available “only when it can affect in the present some

rights between the parties.” Barcik, 321 Or at 188 (emphasis

in original).

This court’s decision in Pendleton is not to the con-

trary. In that case, 18 school districts brought an action

for a declaration that Article III, section 8, of the Oregon

Constitution requires the legislature to fund the Oregon

public school system at a level sufficient to meet certain

quality standards. They alleged that the legislature had

failed to comply with that obligation during the 2005-07

biennium. They further alleged that they continued to suf-

fer present harm as a result of that past failure and that the

legislature has a ongoing constitutional obligation to fund

schools to meet quality standards. 345 Or at 601. In that

context, this court explained, the fact that the 2005-07 bien-

nium had passed did not render the controversy moot: The

issue remained “whether Article VIII, section 8, imposes a

duty on the legislature to fund the public school system at

a specified level every biennium.” Id. at 606. Whether the

legislature operates under such a continuing obligation, the

court explained, “presents a set of present facts regarding

the interpretation of a constitutional provision.” Id.

Cite as 357 Or 460 (2015) 471

In this case, the only “present facts” established in

the record are that, at the time of the summary judgment,

plaintiff’s registration to circulate petitions during the 2010

election had expired; that he had recently registered with

the Secretary of State to collect signatures on a paid basis

during 2012; that he “fully intended” to work as a paid sig-

nature collector “in the future;” and that, “[w]hen another

measure dealing with protecting the environment starts to

circulate, I’d like to support it.” There is no evidence that, at

that time, plaintiff was actually employed as a paid initiative

petition signature collector. More importantly, there is no

evidence that there existed “another measure dealing with

protecting the environment.” There was evidence that the

chief petitioner of the earlier measure that plaintiff wanted

to support intended to “try to circulate another petition,”

but there is no evidence that the chief petitioner ever took

steps to make that happen, much less that such a measure

reached the stage of signature collection.4 Giving plaintiff

every beneficial inference, the best that the evidence shows

is that, if plaintiff obtained employment as a signature col-

lector, and if another measure dealing with protecting the

environment were filed, and if that measure garnered the

requisite number of sponsors, and if that measure obtained

a certified ballot title, then plaintiff “would like to support

it,” presumably by collecting petition signatures on a volun-

teer basis.

That is the epitome of contingent and speculative

facts. There is no evidence that plaintiff is currently harmed,

or even under current threat of harm, by ORS 250.048(9).

Any suggestion of possible harm is a matter of no more than

speculation, depending entirely on a series of assumptions

unsupported by any evidence in the record. The trial court

and the Court of Appeals correctly concluded that plaintiff’s

affidavit was insufficient to establish that his declaratory

judgment action had not become moot.

2.  The effect of the overbreadth claim

In the alternative, plaintiff argues that, even if his

declaratory judgment action is otherwise moot, the fact that

4

In fact, according the Secretary of State’s records of initiative and referen-

dum petitions, no such petition was filed during the 2012 election cycle.

472 Couey v. Atkins

his claims are based on the asserted unconstitutional over-

breadth of ORS 250.048(9) excuses him from satisfying any

requirement that the claim be justiciable. In plaintiff’s view,

“overbreadth” is a doctrine of substantive First Amendment

law that this court has adopted in free expression cases.

Under that doctrine, he contends, a plaintiff may claim

that a challenged law violates his or her own constitutional

rights or that the law hypothetically could violate the rights

of others. Necessarily, he argues, the doctrine carves out an

exception to any justiciability constraints that otherwise

apply.

The secretary argues that plaintiff misapprehends

overbreadth analysis. In the secretary’s view, although an

overbreadth claim can extend beyond the rights of specific

plaintiffs, even the federal law on which plaintiff in this case

relies holds that such a claim can be asserted in the first

instance only by one with a personal stake in its resolution.

Again, we agree with the Secretary of State. A

party challenging the constitutionality of a statute may con-

tend that the law is unconstitutional in all possible applica-

tions—that is, it is unconstitutional on its face. E.g., State

v. Hirsch/Friend, 338 Or 622, 627, 114 P3d 1104 (2005)

(“[W]hen bringing certain facial challenges to a statute,

the challenger ordinarily must establish that the statute is

unconstitutional in all its applications.”). Or the law may

be challenged on the ground that it is unconstitutional as

applied to a particular individual on a particular set of facts.

E.g., State v. Rodriguez/Buck, 347 Or 46, 78-79, 217 P3d 659

(2009) (75-month mandatory sentence, although not facially

unconstitutional, held unconstitutional as applied to the

facts of that case).

In cases involving regulation of free expression, the

United States Supreme Court has developed an exception to

the ordinary rule that a facial challenge requires a demon-

stration that the challenged law is unconstitutional in all

possible applications. Virginia v. Hicks, 539 US 113, 118,

123 S Ct 2191, 156 L Ed 2d 148 (2003). Instead, because

of the special significance of rights of free expression,

the Court has held that a law regulating free expression

may be unconstitutionally “overbroad” if it prohibits any

Cite as 357 Or 460 (2015) 473

“substantial amount” of constitutionally protected conduct.

Id. at 118-19.5 Moreover, a defendant to whom a challenged

statute applies may assert that the law is unconstitutionally

overbroad even if he or she has not engaged in the consti-

tutionally protected conduct. City Council v. Taxpayers for

Vincent, 466 US 789, 798, 104 S Ct 2118, 80 L Ed 2d 772

(1984). In effect, the overbreadth doctrine thus permits a

party to whom a statute constitutionally applies to argue

that the statute nevertheless is unconstitutional because it

would violate the rights of others. Broadrick v. Oklahoma,

413 US 601, 612, 93 S Ct 2908, 37 L Ed 2d 830 (1973). The

Supreme Court has explained this exception to the pruden-

tial rule against parties asserting the rights of others by

noting the importance of avoiding the “chilling effect” of an

overbroad law:

“We have provided this expansive remedy out of con-

cern that the threat of enforcement of an overbroad law

may deter or ‘chill’ constitutionally protected speech—

especially when the overbroad statute imposes criminal

sanctions. Many persons, rather than undertake the con-

siderable burden (and sometimes risk) of vindicating their

rights through case-by-case litigation, will choose simply

to abstain from protected speech, harming not only them-

selves but society as a whole, which is deprived of the unin-

hibited marketplace of ideas.”

Hicks, 539 US at 119.

It is important to note, however, that although the

law may authorize a party to assert the rights of others,

that does not mean that the party is excused from demon-

strating his or her own standing to bring the claim. Only

a person to whom the statute applies, even if constitution-

ally, may assert an overbreadth challenge. That is to say,

overbreadth may represent a loosening of the ordinary pru-

dential rule that parties cannot assert the rights of others,

but it does not represent a loosening of the federal consti-

tutional requirement that the party asserting the law’s

overbreadth have standing and that the party’s interest

continue throughout the proceeding. See generally Laurence

5

Oregon cases use slightly different phrasing, referring to whether the chal-

lenged law “reaches privileged communication” and “does so more than rarely.”

See, e.g., State v. Rangel, 328 Or 294, 299-300, 977 P2d 379 (1999).

474 Couey v. Atkins

H. Tribe, American Constitutional Law § 12-27, 1024 (2d ed

1988) (“[O]verbreadth does not in fact possess a distinctive

standing component.”); Richard H. Fallon, Jr., Making Sense

of Overbreadth, 100 Yale LJ 853, 869 (1991) (An overbreadth

claim is consistent with justiciability requirements of Article

III because it is asserted by “[a] party who is charged with

violating a statute or threatened with imminent prosecu-

tion” under it.).

In Virginia v. American Booksellers Assn., 484 US

383, 108 S Ct 636, 98 L Ed 2d 782 (1988), for instance, the

plaintiff challenged as unconstitutionally overbroad a state

law prohibiting the display of visual or written materials to

juveniles depicting, among other things, sexual conduct. The

Court’s analysis of the justiciability of the action proceeded

in two distinct steps. First, the Court addressed whether

the plaintiff had satisfied the “irreducible minimum” con-

stitutional requirement of personal injury. Id. at 392. That

is, the Court explained, the plaintiff must show “threatened

or actual injury” resulting from the application of the chal-

lenged statute. Id. Second, the Court said that, once the

constitutional standing requirement has been satisfied, it is

appropriate to address whether the plaintiff could advance

the particular argument, that is, overbreadth. Id. The Court

noted that “the usual rule is that a party may assert only

a violation of its own rights.” Id. But, the Court said, in

the case of overbreadth challenges arising under the First

Amendment, there is an exception to that prudential rule.

Id. at 392-93.

Similarly, in Bigelow v. Virginia, 421 US 809, 816-

17, 95 S Ct 2222, 44 L Ed 2d 600 (1975), the Court held that,

to assert a claim of overbreadth, a party must have standing,

and “in order to have standing, an individual must present

more than ‘allegations of a subjective chill.’ There must be

a claim of specific present objective harm or a threat of spe-

cific future harm” arising from the application of the chal-

lenged statute to the person challenging it. See also Hedges

v. Obama, 724 F3d 170, 204 (2d Cir 2013) (overbreadth doc-

trine “[r]elax[es] the general prudential rule against third-

party standing” but “does not provide a reason to * * * find

injury where none is present or imminently threatened

in the first instance”); Cole v. Oroville Union High School

Cite as 357 Or 460 (2015) 475

District, 228 F3d 1092, 1099 (9th Cir 2000) (“[A] litigant

cannot sustain an overbreadth or jus tertii claim if he no

longer has a personal interest in the outcome which itself

satisfies the case or controversy requirement.”). A plaintiff’s

concrete interest in the outcome of the litigation must con-

tinue throughout the prosecution of his or her overbreadth

claim; if events occur that eliminate that personal interest,

the overbreadth claim becomes moot and will be dismissed

for want of justiciability. Bigelow, 421 US at 817-18.

This court has borrowed federal court overbreadth

doctrine. State v. Robertson, 293 Or 402, 410, 649 P2d 569

(1982). And it continues to refer to federal case law for its

own explanation of the justification and contours of the doc-

trine. State v. Christian, 354 Or 22, 40, 307 P3d 429 (2013).6

In light of that case law, we reject plaintiff’s contention that

the fact that he asserts an overbreadth claim excuses him

from establishing the justiciability of that claim.

3.  ORS 246.910

Plaintiff’s final argument regarding the mootness

of his action is that, even if the declaratory judgment portion

of the action is moot, the remaining action for judicial review

of actions of the Secretary of State under ORS 246.910(1) is

not. That statute provides:

“A person adversely affected by any act or failure to act by

the Secretary of State * * * under any election law, or by any

order, rule, directive or instruction made by the Secretary

of State * * * may appeal therefrom to the circuit court for

the county in which the act or failure to act occurred or in

which the order, rule, directive, or instruction was made.”

Thus, the statute provides for judicial review of an act, or fail-

ure to act, of the Secretary of State under the election laws

6

The court has never explained the source of overbreadth analysis under

the Oregon Constitution. As we have noted, the United States Supreme Court

has justified the doctrine by reference to the particular importance of constitu-

tional rights of free expression. And this court, like the United States Supreme

Court, has limited the application of overbreadth analysis to free speech cases.

Christian, 354 Or at 40. But, at the same time, this court has disclaimed any

interest in recognizing a hierarchy of constitutional rights. See, e.g., Libertarian

Party of Oregon v. Roberts, 305 Or 238, 246, 750 P2d 1147 (1988) (rejecting bal-

ancing of relative importance of different constitutional rights). Because our dis-

position of this case does not involve the merits of plaintiff’s claims, we need not

address that issue.

476 Couey v. Atkins

of the state. See generally League of Oregon Cities v. State

of Oregon, 334 Or 645, 655, 56 P3d 892 (2002) (explaining

requirements of statute). In this case, plaintiff’s complaint

does not target any act, or failure to act, of the secretary.

Rather, its sole target is the constitutionality of the election

law itself, because the law itself “chills” his rights of free

expression and association.7

Moreover, ORS 246.910 provides for such judicial

review only if a person has been “adversely affected” by

such an act or omission of the secretary. In this case, as we

have noted, nothing in the record suggests that plaintiff is

affected, much less adversely affected, by the operation of

the challenged statute, ORS 250.048(9). We reject plaintiff’s

contention that his action is justiciable under ORS 246.910

without further discussion.

B.  If moot, is plaintiff’s action nevertheless justiciable under

ORS 14.175?

Plaintiff argues that, if we conclude that his action

is moot, it is nevertheless justiciable under ORS 14.175. That

statute provides:

“In any action in which a party alleges that an act, pol-

icy or practice of a public body * * * is unconstitutional or is

otherwise contrary to law, the party may continue to pros-

ecute the action and the court may issue a judgment on

the validity of the challenged act, policy or practice even

though the specific act, policy or practice giving rise to the

7

As we noted above, plaintiff’s amended complaint did mention the fact that

the secretary, at that time, had announced her intention to propose a rule imple-

menting ORS 250.048(9). And it further alleged that, “[a]ny rule adopted by [the

Secretary of State] will continue to violate plaintiff’s rights to obtain signatures

as a volunteer on other petitions.” But, as of the time of the filing of that amended

complaint, the secretary had not yet done so. As a result, plaintiff’s amended

complaint purported to challenge the lawfulness of a rule that had not yet been

adopted. Any such claim is classically unripe and thus not justiciable. As this

court explained in Oregon Cry. Mfgs. Ass’n v. White, 159 Or 99, 110, 78 P2d 572

(1938), “We agree that plaintiffs are not obliged to wait until the [d]irector under-

takes to enforce some rule or regulation to their damage. We cannot, however,

concur in the view that there is reasonable ground for complaint before any rules

or regulations have been promulgated.” See also Friends of Columbia Gorge v.

Columbia River (S055722), 346 Or 366, 392 n 24, 213 P3d 1164 (2009) (challenge

to “a possible interpretation of the Act by the Commission * * * was not ripe for

review”); Tillamook Co. v. State Board of Forestry, 302 Or 404, 412, 730 P2d 1214

(1986) (“Challenges to future legislative amendments are not justiciable.”).

Cite as 357 Or 460 (2015) 477

action no longer has a practical effect on the party if the

court determines that:

“(1)  The party had standing to commence the action;

“(2)  The act challenged by the party is capable of repe-

tition, or the policy or practice challenged by the party con-

tinues in effect; and

“(3)  The challenged policy or practice, or similar acts,

are likely to evade judicial review in the future.”

Thus, ORS 14.175 provides that, if a judgment in a case “no

longer has a practical effect on the party” who initiated it—

that is, if a case has become moot—the court is nevertheless

authorized to issue such a judgment if the party can meet

each of the three stated requirements. In this case, the par-

ties agree that plaintiff satisfied the first two requirements

of the statute. They dispute whether he satisfied the third,

that is, that the challenged policy or practice is “likely to

evade judicial review in the future.”

Plaintiff contends that ORS 14.175 requires only

that it is “likely” that such challenges as the one that he

has initiated will evade review in the future. Election law

challenges, he contends, are not likely to be adjudicated

to final judgment within the short, two-year election cycle

that the law provides. Indeed, plaintiff notes that in this

case, the time between the date the law went into effect and

the end of the election cycle was even shorter: six months.

Under the circumstances, it was extremely unlikely that his

claim would not evade review. Plaintiff observes that ORS

14.175 adopts the “capable of repetition, yet evading review”

exception to the rule against deciding moot cases, which fed-

eral courts have embraced for many years. Because of that

borrowing, he argues, federal cases are especially relevant.

And those federal cases make clear that election cases such

as this one are precisely the sort of cases that come within

the exception.

The Secretary of State insists that two years is ade-

quate time to resolve claims such as plaintiff’s. According

to the secretary, plaintiffs advancing such claims may take

advantage of statutory opportunities to request expedited

consideration or certification directly to this court. See ORS

478 Couey v. Atkins

246.910(4) (“The circuit courts and the Court of Appeals,

in their discretion, may give precedence on their dockets

to appeals under this section as the circumstances may

require.”); ORS 19.405(1) (“When the Court of Appeal has

jurisdiction of an appeal, the court, through the Chief Judge

* * * may certify the appeal to the Supreme Court in lieu of

disposition by the Court of Appeals.”). The secretary notes

that, in at least two reported cases, Crumpton v. Roberts,

310 Or 381, 798 P2d 1100 (1990), and Ecumenical Ministries

v. Paulus, 298 Or 62, 688 P2d 1339 (1984), that is precisely

what the parties did, and the courts brought the matters

to completion within two years. Furthermore, the secretary

argues, the remedy of mandamus is available in election

cases.

This time, we agree with plaintiff. Whether such

challenges as plaintiff’s are “likely to evade judicial review”

is a question of statutory construction, which we examine

by applying familiar principles set out in PGE v. Bureau

of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143

(1993), and State v. Gaines, 346 Or 160, 170-73, 206 P3d

1042 (2009). We review the text of the statute, in context,

along with any relevant legislative history and settled rules

of construction.

ORS 14.175 applies when it is “likely” that chal-

lenges such as the one before the court will evade review in

the future. The term is undefined in the statute. Under the

circumstances, we assume that the legislature intended the

term to convey its ordinary meaning. See State v. Dickerson,

356 Or 822, 829, 345 P3d 447 (2015) (“When the legislature

does not provide a definition of a statutory term, we ordi-

narily look to the plain meaning of the statute’s text.”). If

the undefined term is not a term of art, we ordinarily begin

with its dictionary definition. Jenkins v. Board of Parole, 356

Or 186, 194, 335 P3d 828 (2014) (“Because the legislature

has not expressly defined the words in the disputed phrase,

dictionary definitions * * * can be useful.”).

The ordinary meaning of the adjective “likely” is

“of such a nature or so circumstanced as to make some-

thing probable.” Webster’s Third New Int’l Dictionary 1310

(unabridged ed 2002); see also The American Heritage

Cite as 357 Or 460 (2015) 479

Dictionary of the English Language 1017 (5th ed 2011) (defin-

ing adjective “likely” as “possessing or displaying the quali-

ties or characteristics that make something probable: They

are likely to become angry with him.”). The word “probable,”

in turn, is defined as something “that is based on or arises

from adequate fairly convincing * * * evidence or support.”

Webster’s Third New Int’l Dictionary at 1806; see also The

American Heritage Dictionary of the English Language at

1403 (defining “probable” as “likely to happen or be true”).

Thus, on the bare face of things, it appears that the

statute applies when it is probable that a similar challenge

will evade judicial review in the future. Certainty is not

required. Nothing in the context of the statute suggests a

contrary meaning.

The legislative history of ORS 14.175 reveals that

it was enacted in direct response to a decision of this court,

Yancy 337 Or at 363, in which this court held that “judicial

power under the Oregon Constitution does not extend to moot

cases that are ‘capable of repetition, yet evading review.’ ”

The legislature was aware of the doctrine developed by fed-

eral courts that, notwithstanding the rule against deciding

moot cases, courts have authority to decide cases that are

capable of repetition and yet evade review. The legislature

adopted what is now ORS 14.175 to provide Oregon courts

that authority. As the staff measure summary for the bill

that was ultimately enacted as ORS 14.175 explains:

“The federal courts, as well as every state in the union,

recognize an exception to the mootness doctrine for con-

troversies that come up repeatedly, but would never be

reviewed by appellate courts if a strict mootness standard

were to apply. * * * Courts call this the ‘capable of repetition

but evading review’ doctrine. In Yancy v. Shatzer, however,

the Oregon Supreme Court ruled that the judicial power

granted by Article VII, sec. 1, of the Oregon Constitution

does not include the power to hear cases that are capable

of repetition but might evade review. Two years later, the

Court decided Kellas v. Department of Corrections, in which

it ruled that the legislature has the power to grant stand-

ing to a party to initiate litigation even if that person might

not have a personal interest in the litigation. HB 2324

is a response to the Yancy and Kellas opinions. It would

480 Couey v. Atkins

provide that, if a party already has standing to initiate a

lawsuit (i.e., the bill would not give individuals new rights

to initiate litigation), and the action became moot while the

lawsuit was pending, the party still has an interest in the

litigation and the court could issue a judgment if the con-

troversy was capable of repetition but might evade judicial

review if not decided.”

House Judiciary Committee Staff Measure Summary,

House Bill 2324 A, April 25, 2007 (citations omitted; empha-

sis in original); see also Tape Recording, House Judiciary

Committee, HB 2324, April 19, 2007 (statement of Charlie

Hinkle) (explaining capable of repetition exception devel-

oped by federal courts and adopted by courts in 49 states).

The legislature thus borrowed and codified a judi-

cially created doctrine, much as it often borrows legisla-

tion from other jurisdictions. When the legislature borrows

legislation from another jurisdiction, we generally assume

that, in the process, the legislature also borrows existing

controlling case law interpreting that legislation. Lindell v.

Kalugin, 353 Or 338, 355, 297 P3d 1266 (2013). It stands

to reason that, when the legislature borrows the case law

doctrine itself, that case law is highly persuasive evidence of

the legislature’s intentions. Hatley v. Stafford, 284 Or 523,

526 n 1, 588 P2d 603 (1978) (applying “the general rule that

statutes codifying the common law are to be construed in a

manner consistent with the common law”).

There is a wealth of case law concerning the capa-

ble of repetition rule. Although it has deep roots in nine-

teenth-century case law, the first case to recognize the rule

as such was So. Pac. Terminal Co. v. Int. Comm. Comm.,

219 US 498, 31 S Ct 279, 55 L Ed 310 (1911). In that case,

a railway company challenged an order of the Interstate

Commerce Commission to cease and desist giving certain

preferences to a shipper of cottonseed products. By the

time the case reached the United States Supreme Court,

the agency order had expired, and, on that ground, there

was a motion to dismiss the appeal. The Court denied the

motion, however. Orders such as the one at issue, the Court

explained, “are usually continuing (as are manifestly those

in the case at bar), and these considerations ought not to be,

Cite as 357 Or 460 (2015) 481

as they might be, defeated, by shortterm[ ] orders, capable of

repetition, yet evading review.” Id. at 514.

Since So. Pac. Terminal Co., every jurisdiction in

the country, save Oregon, has adopted the capable of repe-

tition rule. See generally Richard H. Fallon, David Shapiro,

and Daniel J. Meltzer, Hart & Wechsler’s The Federal Courts

and the Federal System § 4, 219 (4th ed 1996) (describing

development of doctrine); Erwin Chemerinsky, Federal

Jurisdiction 37-145 (1989) (same); see also Yancy, 337 Or

at 375-83 (Balmer, J., specially concurring) (listing state

courts adopting doctrine).

In that regard, federal law has long been settled that

the capable of repetition exception applies to election-related

challenges. See generally Charles Alan Wright et al, 13C

Federal Practice & Procedure § 3533.9 (3d ed. 2008) (noting

that federal courts frequently apply the capable of repetition

yet evading review exception in election disputes). Meyer v.

Grant, 486 US 414, 108 S Ct 1886, 100 L Ed 2d 425 (1988),

provides an example close in point. In that case, the plain-

tiffs were proponents of a particular initiative measure that

they hoped to get on the state ballot for the November 1984

election. They challenged the constitutionality of a state law

prohibiting the use of paid petition circulators. While the

action progressed, the 1984 election came and went. The

United States Supreme Court explained that, although the

election had passed, the matter was subject to the mootness

exception for cases that are capable of repetition, yet evading

review. Id. at 417 n 2. The Court noted that state law gave

the proponents of the measure only six months to obtain the

necessary signatures, and “[t]he likelihood that a proponent

could obtain a favorable ruling within that time, much less

act upon a ruling in time to obtain the needed signatures, is

slim at best.” Id.

More recently, in Federal Election Comm’n v.

Wisconsin Right to Life, Inc., 551 US 449, 127 S Ct 2652,

168 L Ed 2d 329 (2007), a corporate advocacy group chal-

lenged the constitutionality of a federal law restricting the

right of corporations to broadcast radio and television ads

during the “blackout” period of 30 days before the 2004

Wisconsin primary election. By the time the matter reached

482 Couey v. Atkins

the Supreme Court, the election had passed. The Federal

Election Commission argued that the case had become moot.

Moreover, the agency argued that, because “the 2-year win-

dow between elections provides ample time for parties to lit-

igate their rights,” the matter was not subject to the excep-

tion for cases capable of repetition, yet evading review. Id. at

462. The Supreme Court rejected that argument, concluding

that the case “fit comfortably within the established excep-

tion.” Id. “[I]t would be entirely unreasonable,” the Court

said, “to expect that [the plaintiff] could have obtained com-

plete judicial review of its claims” in that time. Id.8

State courts, likewise, apply the exception to elec-

tion cases. See, e.g., Falke v. State, 717 P2d 369, 371 (Alaska

1986) (applying exception to challenge to election division’s

decision not to strictly implement statutory filing require-

ments for candidates); Urevich v. Woodard, 667 P2d 760,

762 (Colo 1983) (“This case falls, as do so many elections

cases, within the exception to the mootness doctrine that

allows review of matters ‘capable of repetition yet evading

review.’ ”); Gunaji v. Macias, 130 NM 734, 737, 31 P3d 1008,

1101 (2001) (applying exception to challenge to election of

county commissioner whose term had expired); Blum v.

Lanier, 42 Tex Sup Ct J 955, 997 SW 2d 259, 264 (1999)

(applying exception to challenge to election process).

The fact that there is a possibility that a particu-

lar case could obtain expedited consideration is beside the

point. ORS 14.175 applies to types or categories of cases in

which it is “likely” that such challenges will avoid judicial

review. Moreover, the sole statute that the secretary men-

tions as an example of expedited review is ORS 246.910(4),

which applies only to judicial review of actions, or failures to

8

See also Renne v. Geary, 501 US 312, 320, 111 S Ct 2331, 115 L Ed 2d 288

(1991) (noting that mootness exception for cases capable of repetition yet evading

review has been applied in election cases); Masters, Mates & Pilots v. Brown,

498 US 466, 473, 111 S CT 880, 112 L Ed 2d 991 (1991) (applying exception to

challenge to union rule barring mailing of election literature before date of nom-

inating convention); Norman v. Reed, 502 US 279, 287-88, 112 S Ct 698, 116 L

Ed 2d 711 (1992) (issue of eligibility to use political party name on election ballot

mooted by passage of election, but nevertheless reviewable under capable of repe-

tition exception); First National Bank of Boston v. Bellotti, 435 US 765, 774, 98 S

Ct 1407, 55 L Ed 2d 707 (1978) (challenge to statute limiting corporate political

expenditures reviewable even though election had passed).

Cite as 357 Or 460 (2015) 483

act, of the Secretary of State—a statute that we have held

does not apply to this case. Aside from that, the statute only

affords a trial court and the Court of Appeals “discretion”

to give particular cases precedence. The secretary does

not explain, and we do not understand, on what basis the

theoretical availability of a discretionary decision to grant

expedited review makes it not “likely” that a challenge will

evade judicial review.

For the same reason, the fact that this court the-

oretically could accept certification of an appeal from the

Court of Appeals or that it could exercise discretion to

entertain a mandamus action does not establish that cases

such as plaintiff’s are unlikely to evade review. In fact, this

court has noted that, “ordinarily there will be no reason why

issues of election law, like any other, cannot be decided by

the Court of Appeals.” State ex rel Bunn v. Roberts, 302 Or

72, 77, 726 P2d 925 (1986). Certainly, the fact that there

are two reported cases in which parties have successfully

completed litigation within an election cycle is insufficient

to establish the point, at least not without knowing the

number of cases in which the courts denied such expedited

consideration.9

The settled case law concerning the capable of rep-

etition exception persuades us that ORS 14.175 applies to

election cases such as the one before us. We find no indica-

tion from the text of the statute or its history that the legis-

lature intended to include a requirement that the plaintiffs

in each case exhaust every possible avenue of expedition as

a predicate to invoking the statutory exception to the rule

against deciding moot cases. We therefore conclude that the

trial court and the Court of Appeals erred in holding that

plaintiff is not entitled to proceed under ORS 14.175.

9

For example, reported decisions reveal at least three cases involving chal-

lenges under ORS 246.910, each of which took two years or more to bring to final

judgment. Hazell v. Brown, 352 Or 455, 287 P3d 1079 (2012) (involving a declar-

atory judgment action to enforce a voter-approved ballot initiative—decided six

years from filing); League of Oregon Cities, 334 Or 645 (involving a constitutional

challenge to a voter-approved initiative measure—the Court of Appeals certified

appeal to this court and the case was still not decided until nearly two years

after filing); Masters v. Secretary of State, 88 Or App 221, 744 P2d 1309 (1987)

(post-election challenge to voters’ pamphlet statements—decided three years

after filing).

484 Couey v. Atkins

C.  Is ORS 14.175 constitutional?

That brings us to the “obvious question,” as the

Court of Appeals phrased it: whether the statute violates

the Oregon Constitution because it runs afoul of this court’s

decision in Yancy, which held that the “judicial power” that

Article VII (Amended), section 1, of the Oregon Constitution

confers on the courts does not include the authority to decide

moot cases and, in addition, does not include the authority

to recognize any exceptions to that limitation, including an

exception for controversies that are capable of repetition, yet

evade review. The secretary argues that Yancy held only

that the courts lack authority to decide moot cases, not that

the legislature cannot confer such authority. In the secre-

tary’s view, nothing in Yancy forecloses the legislature from

enacting ORS 14.175.

The secretary’s argument cannot be reconciled with

this court’s decisions in Oregon Medical Assn. v. Rawls, 276

Or 1101, 557 P2d 664 (1976) (Oregon Medical Association

I), and Oregon Medical Association v. Rawls, 281 Or 293,

574 P2d 1103 (1978) (Oregon Medical Association II). In

Oregon Medical Association I, the association initiated an

action for a declaration concerning the constitutionality of

a recently enacted statute concerning liability insurance for

medical professionals. The trial court dismissed the action

for want of a justiciable controversy, and this court affirmed.

The court noted that the positions of the parties were not

adverse as to the issue before the court and, moreover, no

party had actually been subject to the law. Id. at 1107-08.

The action, the court held, was not yet ripe. Id. at 1110.

In response, the legislature amended the law that

was at issue in Oregon Medical Association I, adding a provi-

sion that expressly authorized the Insurance Commissioner

and the Oregon Medical Association to initiate an action

for a declaration as to the constitutionality of that statute.

The legislation provided that “ ‘a justiciable controversy ripe

for determination shall be deemed to exist in the event a

complaint is filed.’ ” Oregon Medical Association II, 281 Or

at 296 (quoting Or Laws 1977, ch 269 § 11). The Insurance

Commissioner and the Oregon Medical Association tried

again to obtain a declaration from this court, but, once

Cite as 357 Or 460 (2015) 485

again, this court declared the matter nonjusticiable. The

court explained that “a proceeding that calls upon a court

to conduct its own inquiry into hypothetical applications of

a statute and possible interpretations to save it from hypo-

thetical constitutional attacks cannot be ‘deemed’ a justicia-

ble controversy.” Id. at 300.

By parity of reasoning, if Yancy correctly holds that

the “judicial power” conferred under Article VII (Amended),

section 1, does not permit the courts to recognize a mootness

exception for cases that are capable of repetition, yet evade

review, then that limitation on the judicial power cannot be

“deemed” eliminated by legislative enactment.

The question then becomes whether Yancy was cor-

rect in so holding. Stare decisis does not permit this court to

revisit a prior decision merely because the court’s current

members may hold a different view than its predecessors

about a particular issue. At the same time, stare decisis is

not absolute. See generally Farmers Ins. Co. v. Mowry, 350 Or

686, 697-98, 261 P3d 1 (2011) (“[S]tare decisis is not mech-

anistic. Rather, stare decisis is a prudential doctrine that is

defined by the competing needs of stability and flexibility

in Oregon law.”). Especially in cases involving the interpre-

tation of the state constitution, the value of stability that is

served by adhering to precedent may be outweighed by the

need to correct past errors. This court, after all, “is the body

with the ultimate responsibility for construing our constitu-

tion, and, if we err, no other reviewing body can remedy that

error.” Stranahan v. Fred Meyer, Inc., 331 Or 38, 53, 11 P3d

228 (2000).

Precisely what constitutes an “error” sufficient to

warrant reconsideration of a constitutional precedent can-

not be reduced to a neat formula. But our cases reflect at

least three categories. First, there are cases in which a prior

pronouncement amounted to dictum or was adopted with-

out analysis or explanation. See, e.g., State v. Christian, 354

Or 22, 40, 307 P3d 429 (2013) (overruling prior decisions

that extended, without explanation, overbreadth analysis

beyond free-speech cases). Second, there are cases in which

the analysis that does exist was clearly incorrect—that is,

it finds no support in the text or the history of the relevant

486 Couey v. Atkins

constitutional provision. See, e.g., State v. Mills, 354 Or

350, 370-71, 312 P3d 515 (2013) (overruling prior decisions

that found “no support in the wording of the constitution

* * * [and] no support in the historical circumstances of the

adoption” of the constitutional provision at issue). Third,

there are cases that cannot be fairly reconciled with other

decisions of this court on the same constitutional provision.

See, e.g., State v. Savastano, 354 Or 64, 93-94, 309 P3d 1083

(2013) (overruling prior decision that could not be reconciled

with earlier and subsequent case law).

This case is an example of the third category. As

has been observed for a number of years, this court has not

steered an even course in its justiciability case law. See,

e.g., Utsey v. Coos County, 176 Or App 524, 528, 32 P3d 933

(2001) (“[W]e must be candid: The cases concerning the con-

stitutional requirements of justiciability are murky at best;

at times, they are flatly contradictory.”). In particular, this

court’s decisions in Yancy and Kellas v. Dept. of Corrections,

341 Or 471, 145 P3d 139 (2006), have caused uncertainty

about the extent to which the state constitution imposes jus-

ticiability limitations on the exercise of judicial power by the

courts.

The problem lies in the fact that Yancy and Kellas

reflect two starkly different—and irreconcilable—views of

the power conferred by Article VII (Amended), section 1.

In Yancy, the court addressed whether it should

recognize an exception to the doctrine that the court lacks

constitutional authority to decide moot cases. The court

explained that such issues as standing, ripeness, and moot-

ness are all aspects of justiciability—that is, the authority of

the court to exercise “judicial power” as authorized by Article

VII (Amended), section 1, of the state constitution. 337 Or at

349. The court noted that the relevant test of justiciability

has always been whether “ ‘the court’s decision in the matter

will have some practical effect on the rights of the parties to

the controversy.’ ” Id. (quoting Brumnett, 315 Or at 405). The

court discussed the historical context of the original judicial

power provision of the state constitution, including decisions

of the United States Supreme Court on the authority of fed-

eral courts under Article III of the federal constitution. The

Cite as 357 Or 460 (2015) 487

court concluded that, although it could not derive from that

research a “definitive conclusion regarding the scope of judi-

cial power under the Oregon Constitution,” it nevertheless

believed that “the prevailing view throughout the American

legal landscape in 1857 was that the constitutional grant

of judicial power did not include the power to decide cases

that had become moot.” Id. at 362. It then explained that

the later adoption of Article VII (Amended) “did nothing to

change the earlier understanding of judicial power.” Id. The

court ultimately concluded that the judicial power “does not

extend to moot cases,” not even moot cases that are capable

of repetition, yet evading review. Id. at 363.

Then-Associate Justice (now Chief Justice) Balmer

specially concurred, explaining that he found nothing in the

text, context, or historical background of the constitution to

suggest that the framers intended courts to lack authority to

decide moot cases, particularly those that involve events that

are so brief that they inevitably conclude before the courts

can render a final decision. Id. at 364. In Justice Balmer’s

view, the relevant history and prior case law reflect a prevail-

ing view of “the contours of mootness as a prudential, rather

than a constitutional, matter.” Id. at 367 (emphasis added).

In Kellas, the court took a completely different

approach to justiciability—one easier to reconcile with

Justice Balmer’s specially concurring opinion in Yancy than

with the majority opinion in that case. At issue in Kellas

was the constitutionality of a statute that conferred on “any

person” standing to challenge the validity of administrative

rules, regardless of whether those persons would be affected

by those rules. 341 Or at 473. Given Yancy’s explanation

that standing is an aspect of constitutional justiciability—

which the court said requires a judicial decision to have a

“practical effect on the rights of the parties”—the answer

would seem to have been straightforward: Regardless of an

absence of legislative standing requirements, the constitu-

tion does not permit courts to decide cases unless a judicial

decision would have a practical effect on the rights of the

parties. But that is not how Kellas was decided.

In Kellas, the court cautioned against reading into

the judicial power clause of Article VII (Amended), section

488 Couey v. Atkins

1, “constitutional barriers to litigation with no support in

either the text or history of Oregon’s charter of govern-

ment.” 341 Or at 478. The court noted that the “cases” or

“controversies” clause of Article III, section 2, of the United

States Constitution had given rise to an extensive body

of case law regarding the justiciability of disputes in fed-

eral court, which includes such matters as standing, moot-

ness, and ripeness. But, the court observed, “The Oregon

Constitution contains no ‘cases’ or ‘controversies’ provision.”

Id. For that reason, the court concluded, “we cannot import

federal law regarding justiciability into our analysis of the

Oregon Constitution.” Id. The court noted that, historically,

Oregon courts have avoided imposing justiciability barriers

to litigation and have, instead, left such matters to legisla-

tive prerogative. Id. at 480-82. In the end, the court found no

constitutional impediment to the legislature granting any

person the right to challenge administrative rules, regard-

less of whether a judicial decision on the matter would affect

them. Id. at 486.

Thus, on the one hand, Yancy holds that justicia-

bility is a constitutional doctrine, rooted in the conferral of

“judicial power” under Article VII (Amended), section 1, and

based in part on case law arising under Article III of the

federal constitution. But, on the other hand, Kellas holds

that we should be loath to “import federal law regarding

justiciability into our analysis of the Oregon Constitution” to

erect “constitutional barriers to litigation with no support in

either the text or history of Oregon’s charter of government.”

341 Or at 478. The fact of the matter is that none of the

aspects of justiciability that the majority in Yancy listed—

standing, mootness, or ripeness—finds the sort of direct tex-

tual support that Kellas suggests is required to support a

“constitutional barrier to litigation.” The two decisions can-

not be reconciled.10

10

It could be argued that the two decisions, in fact, are reconcilable because

Yancy concerned mootness and Kellas concerned standing. The argument, how-

ever, is unavailing. First, Yancy itself describes standing as an aspect of the jus-

ticiability required by Article VII (Amended), section 1, contrary to Kellas. Yancy,

337 Or at 349 (describing both standing and mootness as “encompassed” within

justiciability). Second, and more importantly, both opinions broadly discuss the

meaning of the “judicial power” conferred by Article VII (Amended), section 1, in

fundamentally different and incompatible ways. Third, reading Kellas to apply

to standing, but not mootness, makes no sense. It would mean that standing is

Cite as 357 Or 460 (2015) 489

Not surprisingly, Yancy and Kellas have given rise

to uncertainty about the current state of justiciability doc-

trine. See, e.g., LaForge v. Dept. of Human Services, 237 Or

App 500, 502 n 1, 241 P3d 313 (2010) (noting that Yancy

holds that the Oregon Constitution extends “judicial power”

only to justiciable cases, while Kellas holds that “there is

no constitutionally grounded justiciability requirement”);

Pendleton School Dist., 220 Or App at 65 (Yancy and Kellas

“leave the current status of [justiciability] doctrines in some

doubt”); Friends of Columbia Gorge v. Columbia River Gorge,

215 Or App 557, 571, 171 P3d 942 (2007) (following Yancy

and Kellas, “[i]t is not clear to us what remains of the pre-

vious justiciability jurisprudence of this state”); see also

Greg Chaimov, “Justiciability,” in Oregon State Bar, Oregon

Constitutional Law §§ 11.1, 11.4 (2013) (noting “tension” between

Yancy and Kellas).

The uncertainty that Yancy and Kellas have engen-

dered cannot be ignored. As we have noted, if Yancy was

correctly decided, then it would seem necessarily to follow

that ORS 14.175 is unconstitutional. But if Kellas applies,

there would seem to be no constitutional impediment to the

legislature conferring the authority to review otherwise

moot cases that are capable of repetition, yet evading review.

We turn, then, to a reexamination of the “judicial power”

provision of Article VII (Amended), section 1, of the Oregon

Constitution.

not constitutionally required (Kellas), but dismissal for mootness is (Yancy). The

problem with such a reading is that, as the court explained in Yancy, standing

and mootness are inextricably related. Mootness, as it is often observed, is simply

“standing in a time frame.” Henry P. Monaghan, Constitutional Adjudication:

The Who and When, 82 Yale LJ 1363, 1384 (1973) (“[Mootness] is the doctrine of

standing in a time frame. The requisite personal interest that must exist at the

commencement of the litigation (standing) must continue throughout its exis-

tence (mootness).”); see also Arizonans for Official English v. Arizona, 520 US

43, 68 n 2, 117 S Ct 1055, 137 L Ed 2d 170 (1997) (describing mootness as “the

doctrine of standing in a time frame”); Loisel v. Rowe, 233 Conn 370, 378-79, 660

A2d 323, 328 (1995) (“Mootness is the doctrine of standing in a time frame.”);

Realen Valley Forge Greenes Associates v. Upper Merion Twp. Zoning Hearing

Bd., 941 A2d 739, 743 n 7 (Pa 2008) (same). If it were otherwise, then a case in

which the legislature authorized “any person” to bring a challenge to a rule or

statute regardless of personal stake could, upon filing, become instantly moot for

want of a personal stake in the outcome. Hamel v. Johnson, 330 Or 180, 184, 998

P2d 661 (2000) (“Even if a case otherwise is justiciable, if the court’s decision ‘no

longer will have a practical effect on or concerning the rights of the parties,’ then

the matter will be dismissed as moot.” (quoting Brumnett, 315 Or at 406)). Either

justiciability is constitutionally required, or it is not.

490 Couey v. Atkins

As a general matter, we examine the text of the con-

stitution in its historical context, along with relevant cases

interpreting it. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d

65 (1992). In conducting that examination, our purpose is

not to freeze the meaning of the state constitution to the

time of its adoption, but is instead “to identify, in light of the

meaning understood by the framers, relevant underlying

principles that may inform our application of the constitu-

tional text to modern circumstances.” State v. Davis, 350 Or

440, 446, 256 P3d 1075 (2011).

The court has, on occasion, characterized the proper

approach to construing amendments to the state consti-

tution adopted by initiative in slightly different terms. In

Ecumenical Ministries v. Oregon State Lottery Comm., 318

Or 551, 871 P2d 106 (1994), the court held that the interpre-

tation of amendments adopted by initiative should be gov-

erned by the same process that is used in the interpretation

of statutes, as provided in PGE, 317 Or at 610-12. PGE, of

course, imposed a strictly sequential approach to interpre-

tation that did not permit examination of enactment his-

tory in the absence of a demonstrated textual ambiguity.

Analysis of original constitutional provisions under Priest,

in contrast, imposed no such restriction.

More recently, in Gaines, 346 Or at 171-72, this court

abandoned the strictly sequential requirements of PGE. In

consequence, the court has dispensed with the requirement

of establishing an ambiguity before examining the history

of a constitutional amendment adopted by initiative. Now,

as in the case of statutory construction, when construing

constitutional amendments adopted by initiative, we “con-

sider the measure’s history, should it appear useful to our

analysis,” without necessarily establishing the existence of

multiple reasonable constructions of the provision at issue.

State v. Algeo, 354 Or 236, 245, 311 P3d 865 (2013) (citing

Gaines).

The effect of that shift in interpretive approach is

that there remains little, if any, practical distinction between

our approach to the construction of original provisions of the

constitution and our method of interpreting provisions later

adopted by initiative. In all cases, we examine the text, in

Cite as 357 Or 460 (2015) 491

its historical context and in light of relevant case law, to

determine the meaning of the provision at issue most likely

understood by those who adopted it, with the ultimate objec-

tive of identifying “ ‘relevant underlying principles that may

inform our application of the constitutional text to modern

circumstances.’ ” State v. Sagdal, 356 Or 639, 642, 343 P3d

226 (2015) (quoting State v. Davis, 350 Or at 446).

1.  Constitutional text

The “judicial power” vested in the judicial branch

was first described in two provisions of the original 1857

state constitution. Article VII, section 1, provided:

“The Judicial power of the State shall be vested in a Supr[e]

me Court, Circuit[ ] Courts, and County Courts, which

shall be Courts of Record having general jurisdiction, to be

defined, limited, and regulated by law in accordance with

this Constitution.”

And Article VII, section 9, provided:

“All judicial power, authority, and jurisdiction not vested

by this constitution or by laws consistent therewith, exclu-

sively in some other Court shall belong to the Circuit Courts,

and they shall have appellate jurisdiction, and supervisory

authority over the County Courts, and all other inferior

Courts, Officers, and tribunals.”

From the bare text of those provisions, at least two things

are noteworthy. First, nothing in the text of the constitution

itself defined the term “judicial power.” Second, nothing in

the text of the constitution itself imposed any limitations

on its exercise. Neither of the judicial-power provisions was

patterned after the judicial-power provisions of the federal

constitution, which expressly limited the exercise of judicial

power by federal courts to specifically enumerated catego-

ries of “cases” and “controversies.”11 To the contrary, the

11

Article III, section 2, of the United States Constitution provides:

“The judicial Power shall extend to all Cases, in Law and Equity, aris-

ing under this Constitution, the Laws of the United States, and Treaties

made, or which shall be made, under their Authority;—to all Cases affecting

Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty

and maritime Jurisdiction;—to Controversies to which the United States

shall be a Party;—to Controversies between two or more States;—between a

State and Citizens of another State;—between Citizens of different states;—

between Citizens of the same State claiming Lands under Grants of different

492 Couey v. Atkins

1857 constitution vested “[a]ll judicial power” in the courts,

without limitation or qualification.

That departure from the federal pattern was

apparently deliberate. The original Article VII, in fact, was

one of the few provisions of the 1857 constitution to have

been largely drafted from scratch. See Claudia Burton, A

Legislative History of the Oregon Constitution of 1857: Part

II, 39 Willamette L Rev 245, 393-94 (2003).12

In 1910, the voters amended the constitution,

approving a new Article VII, which addressed a number of

different issues pertaining to the courts—in particular, judi-

cial elections and terms of office, jury verdicts in civil cases,

grand juries, and the standard of review of jury verdicts.

The new Article VII also eliminated the original Article VII,

section 9, and reworded section 1 to provide that “[t]he judi-

cial power of the state shall be vested in one supreme court

and in such other courts as may from time to time be cre-

ated by law.”

As with the original Article VII, section 1, the new

version referred to the “judicial power” of the state, but did

not define or otherwise delineate it. Importantly, Article VII

(Amended), section 1—like its predecessor—did not include

any limitations on the “judicial power” that the courts are

authorized to exercise. In particular, like the original, the

1910 judicial power provision omitted any reference to the

sort of “case or controversy” limitations that appear in

Article III of the federal constitution.

2.

Historical context

Because the text of Article VII (Amended), section 1,

offers little help in discerning what its framers understood

States, and between a State or the Citizens thereof, and foreign States,

Citizens or Subjects.”

12

Carey suggests that the source of Article VII was the 1848 Wisconsin

Constitution, apparently based on the similarity of wording. The Oregon

Constitution and Proceedings and Debates of the Constitutional Convention of

1857 475-76 (Charles Henry Carey ed. 1926). Palmer, on the other hand, says

that “the article on the judicial department is a combination of (1) the minds

of the members of the Committee of the Judicial Department, (2) the judicial

system in vogue under the territorial government, and (3) the Wisconsin judicial

system as outlined in Article VII, Wisconsin Constitution of 1848.” W.C. Palmer,

The Sources of the Oregon Constitution, 5 Or L Rev 200, 207 (1926).

Cite as 357 Or 460 (2015) 493

“judicial power” to mean, we must examine the historical

context of its adoption for possible evidence of a settled

understanding of the term.

The judicial power of state courts pre-dates the rat-

ification of the federal constitution. It derives from the com-

mon law. Van Lom v. Schneiderman, 187 Or 89, 119, 210 P2d

461 (1949) (“In determining the extent of the limitations

upon judicial power it is relevant to consider that the power

to grant a new trial is a common law right inherent in all

courts of general common law jurisdiction.”).13

a.  Early common law

English common-law decisions reveal scant, if any,

evidence of concerns about what we would now term “jus-

ticiability.” To the contrary, English courts recognized the

right of “strangers”—those with no personal interest in a

particular dispute—to enforce public rights by prerogative

writs, such as prohibition, certiorari, quo warranto, and

mandamus.14 See generally Raoul Berger, Standing to Sue in

Public Actions: Is It a Constitutional Requirement?, 78 Yale

LJ 816, 827 (1969). As one prominent scholar explained,

“The English tradition of locus standi in prohibition and

certiorari is that a stranger has standing, but relief in

suits by strangers is discretionary. If, however, the official’s

lack of ‘jurisdiction’ * * * appeared on the face of the record,

relief followed as of course. * * * The rule that a stranger

has locus standi has been explained on the ground that a

usurpation of jurisdiction, being an encroachment upon the

13

See also In re Creighton’s Estate, 60 Neb 796, 84 NW 273, 275-76 (1900)

(tracing judicial power to common-law courts of England); Ex parte Steinmetz,

35 Ohio App 491, 496, 172 NE 623, 625 (1930) (judicial power, particularly in

civil cases, “is largely dependent upon the common law”); Gorham v, Robinson,

57 RI 1, 186 A 832, 863 (1936) (“[T]he term ‘judicial power’ in section 1 is to be

interpreted in light of the common law.”); In re Constitutionality of Section 251.18,

Wis. Statutes, 204 Wis 501, 236 NW 717, 718 (1931) (“What constitutes judicial

power, within the meaning of our constitution, is to be determined in the light of

the common law and of the history of our institutions as they existed anterior to

and at the time of the adoption of the constitution.”).

14

The practice may date back even further, to Roman times. See generally

S.A. de Smith, Judicial Review of Administrative Action 423 (2d ed 1968) (“In

Roman law it was open to any citizen to bring an action popularis in respect of a

public delict or to sue for a prohibitory or restitutionary interdict for the protec-

tion of res sacrae and res publicae”).

494 Couey v. Atkins

royal prerogative, caused such concern that it made little

difference who raised the question.”

Louis L. Jaffe, Standing to Secure Judicial Review: Public

Actions, 74 Harv L Rev 1265, 1274 (1961); see also Cass R.

Sunstein, What’s Standing After Lujan? Of Citizen Suits,

“Injuries,” and Article III, 91 Mich L Rev 163, 171 (1992)

(“Before and at the time of the framing [of the federal consti-

tution], the English practice was to allow strangers to have

standing in the many cases involving the ancient preroga-

tive writs.”); Steven L. Winter, The Metaphor of Standing

and the Problem of Self-Governance, 40 Stan L Rev 1371,

1394-95 (1988) (“[T]he English, colonial, and post-constitu-

tional practices suggest [a common understanding consider-

ing] as justiciable actions concerning general governmental

unlawfulness, even in the absence of injury to any specific

person, and even when prosecuted by any common citizen

with information about the alleged illegality.”).

Sir Edward Coke, for example, in the document

now known as Articulo Cleri, recognized the right of per-

sons who we would modernly describe as lacking “standing”

to obtain a writ of prohibition. The matter involved a com-

plaint by certain clergy to the King about what they alleged

to be the unwarranted granting of writs of prohibition by

courts against the exercise of ecclesiastical jurisdiction. In

response to the complaint, the judges of the King’s Bench

said that

“[p]rohibitions by [l]aw are to be granted at any time to

restraine a [c]ourt to intermeddle with, or execute any

thing, which by [l]aw they ought not to hold plea of, and

they are much mistaken that maintaine the contrary. * * *

And the king[‘]s [c]ourts that may award [p]rohibitions,

being informed either by the parties themselves, or by any

stranger, that any [c]ourt [t]emporall or [e]cclesiastical

doth hold plea of that (whereof they have not jurisdiction)

may lawfully prohibit the same, as well as after judgement

and execution, as before.”

Edward Coke, 2 Institutes of the Laws of England 602 (1797).

Blackstone noted the existence of such “popular actions,”

which he explained “were given to the people in general.”

William Blackstone, 3 Commentaries *161 (1765). That

Cite as 357 Or 460 (2015) 495

“strangers” could initiate such popular actions was recog-

nized in England at least through the nineteenth century.

See, e.g., Wadsworth v. Queen of Spain, 17 QB 171, 214 (1851)

(Lord Campbell: “We find it laid down in books of the high-

est authority that, where the court to which prohibition is

to go has no jurisdiction, a prohibition may be granted upon

the request of a stranger, as well as the defendant himself. 2

Coke 607.” (Emphasis in original.)).15

Early American cases likewise reflect little concern

with what we now think of as justiciability. See Winter, 40

Stan L Rev at 1374 (“[A] painstaking search of the histor-

ical material demonstrates that—for the first 150 years of

the Republic—the Framers, the first Congresses and the

[Supreme] Court were oblivious to the modern conception”

of justiciability.). The word “justiciable,” in fact, does not

appear in a single court decision before Oregon’s constitu-

tion was ratified in 1857.16 The sixth edition of Bouvier’s law

dictionary, published in 1856, does not even include an entry

for the word. John Bouvier, A Law Dictionary: Adapted to

the Constitution and Laws of the United States of America

and of the Several States of the American Union (6th ed

1856). So far as we can determine, the term first appeared

in Tyler v. People, 8 Mich 320, 337 (1860), in which a concur-

ring opinion used the term to refer to the extent to which the

courts can provide a remedy, as a matter of substantive law.

Later cases used the term to refer to the extent to which the

court has jurisdiction to decide a matter. See, e.g., Ex parte

15

One author has challenged the notion that English courts did not require

a personal stake in the outcome as a prerequisite to initiating prerogative pro-

ceedings. Bradley S. Clanton, Standing and the English Prerogative Writs: The

Original Understanding, 63 Brook L Rev 1001, 1008 (1997). His argument,

however, does not contest that private parties were permitted to initiate public

actions without a showing of a personal stake; rather it contends that, because

such actions were predicated on the fiction that private parties initiated public

actions in the name of the King, those cases are simply “irrelevant.” Id. at 1033.

As other scholars have noted, that argument does not really undermine the fun-

damental fact that there was no suggestion that the judicial power did not include

the authority to entertain such privately initiated public actions. See, e.g., Edward

A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show

that Standing Doctrine Is Looking for Answers in All the Wrong Places, 97 Mich L

Rev 2239, 2241 n 15 (1999).

16

That is, in English. Two Louisiana Supreme Court decisions used the word

“justiciable,” but they did so in quoting pleadings that had been filed in French.

State v. Martin, 2 La Ann 667 (1847); State v. Grailhe, 1 La Ann 183 (1846).

496 Couey v. Atkins

McNeely, 36 W Va 84, 14 SE 436, 439 (1892) (“But I regard

it a question of jurisdiction arising under the constitution;

and that nowhere in the state can trial be had except in that

county where the offense is committed, and if not enough of

the act occurred in the county of death to enable us to say

that the offense was committed there, then it has no juris-

diction, nor has any county in the state; for I construe the

clause as meant to be co-extensive with all criminal acts

justiciable under the power of the state.”); Thwing v. Great

Western Ins. Co., 111 Mass 93, 97 (1872) (cases “were not

justiciable in Massachusetts”).

Nineteenth-century case law, although perhaps not

using the modern vocabulary of “justiciability,” nevertheless

did touch on the matter in two respects: standing to pursue

prerogative writs and mootness.

b.  Nineteenth-century case law: prerogative writs

Nineteenth-century American case law drew a

distinction between obtaining prerogative writs to enforce

private rights and those to enforce public rights. In the for-

mer case, the authorities required a showing of a personal

legal interest, as a matter of substantive law (not—it bears

some emphasis—as a matter of constitutional authority to

exercise judicial power). In the latter case, the authorities

required no such showing; as with the English authorities,

American courts recognized that strangers with no partic-

ular personal interest could bring such actions to vindicate

public rights. As the Supreme Court of Illinois explained in

Pike County Comm’rs. v. People ex rel. Metz, 11 Ill 202, 207-

08 (1849):

“The question, who shall be the relator * * * depends upon

the object to be attained by the writ. Where the remedy

is resorted to for the purpose of enforcing a private right,

the person interested in having the right enforced, must

become the relator. * * * A stranger is not permitted offi-

ciously to interfere, and sue out a mandamus in a matter

of private concern. But where the object is the enforcement

of a public right, the People are regarded as the real party,

and the relator need not show that he has any legal inter-

est in the result. It is enough that he is interested, as a

Cite as 357 Or 460 (2015) 497

citizen, in having the laws executed, and the right in ques-

tion enforced.”17

Reviewing the case law on the subject several decades later,

the United States Supreme Court noted the Illinois Supreme

Court’s decision and commented that “[t]here is * * * a

decided preponderance of American authority in favor of the

doctrine, that private persons may move for a mandamus to

enforce a public duty, not due to the government as such.”

Union Pacific R.R. v. Hall et al., 91 US 343, 355, 23 L Ed

428 (1875). Whether to grant relief to such private persons

with no personal stake, the court observed, was “discretion-

ary with the court, and it may well be assumed that it will

not be unnecessarily granted.” Id. But, importantly, there

is no mention in that case—or, indeed, in any of the case

law—about a constitutional impediment to granting relief to

persons who lacked such a personal interest in the outcome

beyond an interest in having the law properly enforced.

To be sure, the rule was not universally recognized.

A few courts rejected the idea that one without a personal

interest could bring an action for a prerogative writ.18 In

Sanger v. County Comm’rs., 25 Me 291, 296 (1845), for exam-

ple, the Maine Supreme Court explained that it has for a

very long time been well-settled law in the state that “a

private individual can apply for this remedy only in those

cases where he has some private or particular interest to be

subserved * * * independent of that which he holds in com-

mon with the public at large; and it is for the public officers,

17

See also Hamilton v. State ex rel. Bates, 3 Ind 452, 458 (1852) (“Were this a

case merely for private relief, the relator would have to show some special inter-

est. But here the case is different. * * * It is a case for the enforcement, not of

a private, but of a public right; and it is not necessary, in such cases, that the

relator should have a special interest in the matter, or that he should be a public

officer.”); State ex rel. Rice v. Marshall County Judge, 7 Iowa 186, 187 (1858) (“In

a matter of public right, any citizen may be a relator in application for a writ of

mandamus.”); People ex rel. Case v. Collins, 19 Wend 56, 56 (1837) (“In the matter

of a public right, any citizen of the state may be a relator in an application for a

mandamus, (where that is the appropriate remedy,) to enforce the execution of

the common law or of an act of the legislature; it is otherwise in cases of private

or corporate rights.” (Emphasis in original.)).

18

Modern scholarship explains what was, at the time, the minority view as

a product of misconceptions about the nature of the English precedents, in par-

ticular, the fact that Blackstone discussed mandamus only in the portion of his

Commentaries devoted to private remedies. Winter, 40 Stan L Rev at 1403 n 167.

498 Couey v. Atkins

exclusively to apply where public rights are to be subserved.”19

But the court reached that conclusion as a matter of sub-

stantive law. Again, there is no mention of a constitutional

impediment to courts entertaining actions initiated by par-

ties who lack a personal stake in the outcome. That idea

did not surface in the case law until the twentieth century.

Indeed, as late as 1905, the author of a treatise on admin-

istrative law summarized the law pertaining to obtaining

prerogative writs: “The courts * * * have held with regard

to the quo warranto that it may be issued on the demand of

any citizen of responsibility; and the better rule would seem

to be that in matters of public concern any citizen or tax-

payer may apply for the mandamus.” Frank Goodnow, The

Principles of Administrative Law of the United States 432

(1905).

In short, both in 1857, when the original state con-

stitution was adopted, and in 1910, when the people adopted

Article VII (Amended), section 1, the general rule was that

persons with no personal stake could initiate public actions

to vindicate public rights. The fact that such actions could

be maintained is incompatible with constitutional concep-

tions of standing and justiciability that later developed in

the twentieth century.20 Even in states in which courts held

that a private stake was required, the prerequisite was a

function of substantive law. In no case of which we are aware

did a court conclude that a private stake in the outcome of a

controversy was required for the courts to exercise “judicial

power.”

c.  Nineteenth-century case law: mootness

There is little discussion in nineteenth-century

decisions of dismissing “moot” cases. In large part, that is

because the word “moot” meant something different in that

century than it came to mean in later years. Matthew Hall,

The Partially Prudential Doctrine of Mootness, 77 Geo Wash

19

See also People ex rel. Drake v. Regents of the Univ. of Mich., 4 Mich 98, 103

(1856) (declining to follow New York and Illinois mandamus practice).

20

As Professor Sunstein explains, the first appearance of “standing” in the

sense that we use the term today to connote an aspect of justiciability did not

occur until the early twentieth century, and the constitutionalization of standing

did not occur until even later than that. Sunstein, 91 Mich L Rev at 179-81.

Cite as 357 Or 460 (2015) 499

L Rev 562, 568 (2009). In the early to mid-nineteenth cen-

tury, an argument that was “moot” was one that was open

to argument; when an argument had been “mooted,” that

meant that it had been argued. See Black’s Law Dictionary

1029 (8th ed 2004) (listing “archaic” definitions of “moot”).

Thus, for example, in Leonora v. Scott, 10 La 651, 651 (1855),

the Louisiana Supreme Court noted that, “[s]everal points

were mooted in the court below and generally decided in

favor of the plaintiff.”21 Not until the late-nineteenth and

early twentieth centuries did courts begin to use the term

“moot” in the sense that is familiar to us now.

Still, courts during the nineteenth century con-

fronted the problem that we now describe as “mootness,”

whether because parties “feigned disputes” or because

events rendered actual disputes “abstract” or “hypothetical.”

And the consistent—indeed, so far as we can tell, uniform—

practice of the state courts was to treat the dismissal of moot

cases as a matter of discretion, not constitutional impera-

tive. Hall, The Partially Prudential Doctrine of Mootness,

77 Geo Wash L Rev at 569 (“[N]ineteenth-century decisions

generally do not indicate that the court lacked authority to

hear moot cases. Rather, courts dismissed moot cases using

language suggesting an exercise of discretion.”). We have

been unable to identify a single state-court decision from

the nineteenth century that dismissed a case on the ground

that deciding moot cases exceeded the “judicial power” con-

ferred by the state constitution.

21

See also Logan v. State, 28 Tenn 24, 26 (1848) (“Some other points have

been mooted, but not seriously pressed, in this case; we think there is nothing

in them, and that they need no discussion by the court.”); Swain v. People, 5 Ill

178, 178 (1843) (“[T]hese points are too well settled and established to be ever

mooted in the English courts.”); Vantilburgh v. Shann, 24 NJL 740, 749 (1853)

(“But appellate courts will not reverse for causes not mooted, or objections not

raised in the court below.”); State v. Boehler, 220 Mo 4, 4, 119 SW 385, 385 (1909)

(“In the motion in arrest the constitutionality of the local option law was mooted

for the first time.”); Holland v. Depriest, 130 Mo 89, 89, 31 SW 928, 928 (1895)

(“[T]he constitutionality of [a statute] was not mooted in any manner in the cir-

cuit court.”); Wellborn v. Estes, 70 Ga 390, 404 (1883) (“We do not propose to enter

upon the discussion of the much mooted and stubbornly contested point.”); In re

Wilson, 10 NM 32, 32, 60 P 73, 74 (1900) (“The scope and effect of the commerce

clause of the constitution of the United States has been a much-mooted question

before the courts, both state and federal.”); City of St. Louis v. Flynn, 128 Mo 413,

31 SW 17, 20 (1895) (“This conclusion obviates an inquiry into the various consti-

tutional questions mooted in the briefs.”).

500 Couey v. Atkins

Illustrating the “feigned dispute” category of cases

is Blair v. State Bank of Illinois, 8 Mo 313, 313 (1843), in

which the parties attempted to stipulate to facts that actu-

ally did not exist to obtain a ruling from the court. The

Missouri Supreme Court dismissed the appeal, explaining

that “we do not feel ourselves at liberty to entertain ques-

tions presented in the manner in which this is done.” Id. at

315. Likewise, in Smith v. Cudworth, 41 Mass 196 (1837), the

parties agreed that the court could decide an issue that had

not actually arisen between them. The court dismissed that

appeal, as well, explaining that entertaining the gambit

“would convert the highest tribunal in the State into a

moot court to decide questions which might never arise, or

to lay down rules for the government of cases in which the

real parties would have had no opportunity to be heard.

The members of this [c]ourt * * * have quite labor enough

to perform the duties which necessarily and legally devolve

upon them.”

Id. at 197.

In other types of moot cases, nineteenth-century

and early twentieth-century courts ruled similarly, not on

the basis of a perceived constitutional limitation, but rather

as a matter of prudence and discretion—often stating what

the courts “will not,” or are not “disposed to,” decide. In State

ex rel. Martin v. Sloan, 69 NC 128 (1873), for example, the

business that was the subject of the action had been sold

by the time the case reached the North Carolina Supreme

Court. The court concluded that the business “having been

sold, neither party has any interest in the case except as to

cost. When that is the case, we are not in the habit of decid-

ing the case.”22 Id. at 128. There is no mention of a lack of

constitutional “judicial power” to decide the case.

22

See also Sawyer v. City of Blakely, 2 Ga App 159, 159, 58 SE 399, 400 (1907)

(“Courts will not gratuitously decide moot constitutional questions.”); Aiken v.

City of Columbus, 167 Ind 139, 78 NE 657, 661 (1906) (“In no instance is this

court disposed to decide moot questions.”); Chicago, I. & L. R. Co. v. Indianapolis

& N.W. Traction Co., 165 Ind 453, 74 NE 513, 515 (1905) (“[T]he constitutional

question advanced must be regarded in the nature of a moot question, which this

court will not consider.”); Chicago, R.I & P. Ry. Co. v. Territory, 21 Okla 329, 97

P 265, 266 (1908) (“It has been held * * * that ‘the Supreme Court will not decide

abstract or hypothetical cases disconnected from the granting of actual relief, or

from the determination of which no practical relief can follow.’ ”).

Cite as 357 Or 460 (2015) 501

Precisely because the courts regarded the subject

as one of judicial discretion, in the late-nineteenth and

early twentieth centuries they fashioned exceptions to the

general practice of dismissing moot cases. For example, in

the late-nineteenth century, state courts began to hold that

cases involving issues of particular “public importance”

would be decided, even if otherwise moot. People ex rel. Press

Publ’g. Co v. Martin, 142 NY 228, 36 NE 885 (1894), provides

an illustration of the development. In that case, the relator

challenged the lawfulness of certain election practices. But

by the time the matter came to decision, the election had

already taken place. The court nevertheless addressed the

legal issues presented, explaining that, “while the time has

long since passed when any decision in this matter can have

any practical, efficient operation, we will, in view of the pub-

lic importance of the questions involved, overlook that cir-

cumstance and proceed to the determination of the matter

upon its merits.” Id. at 234.23

Thus, once again, at the time of the framing of the

1857 constitution, as well as the adoption of the 1910 amend-

ments to it, there was no suggestion in the case law that

the “judicial power” that may be exercised by the courts

included a limitation on the authority of the courts to decide

moot cases. To the contrary, courts disposed of moot cases

as a matter of prudence, discretion, and judicial economy.

Consistently with that view of the judicial power, courts by

the time of the adoption of Article VII (Amended) recognized

exceptions to the dismissal of moot cases, especially in cases

of public importance. The existence of such exceptions is

fundamentally incompatible with the idea that the judicial

power excluded the authority to decide moot cases.

23

See also State ex rel. Keltgen v. McMahon, 94 Minn 532, 532, 103 NW 1133,

1133 (1905) (ruling on whether the respondent to the quo warranto action had

unlawfully usurped a public office, even though the term of office had already

expired); Cuyahoga County Department State Sup’rs v. State ex rel. Green, 26 Ohio

CD 521, 523 (1908) (“The first two grounds suggest that any order this court

might make now would be a brutum fulmen; that naught remains but an aca-

demic question. We do not think the point well taken. A proper interpretation

of election laws is of so much importance to all our citizens that the courts must

answer questions with regard thereto when submitted to them, notwithstanding

the fact that the rights of individual are usually determined in such matters

before the reviewing courts can pass upon them, by the holding of an election.”).

502 Couey v. Atkins

d.  Federal case law and justiciability

As we have noted, Article III of the federal consti-

tution limits federal court exercise of judicial power to enu-

merated “cases” and “controversies.” In the latter half of

the twentieth century, federal courts developed a doctrine

of justiciability—embracing various components including

standing, mootness, and ripeness—predicated on that tex-

tual limit on the judicial power. Two points in that regard

are significant for our purposes.

First, the foregoing doctrinal developments were

expressly based on the text of Article III, which limits the

exercise of judicial power to “cases” or “controversies.” As

we have noted, Oregon’s constitution—like nearly all state

constitutions—does not include that textual limitation on

the exercise of judicial power. Rather, it is well settled that

state judicial power, unencumbered by a case-or-controversy

limitation, is “plenary.” See, e.g., Borrego v. Territory, 8 NM

446, 46 P 349, 363 (1896) (“judicial power * * * is thus vested

in plenary terms”); Floyd v Quinn, 24 RI 147, 52 A 880, 881

(1902) (“[T]he vesting of the judicial power is plenary and

exclusive.”).

Second, the development of federal justiciability

doctrine as a constitutional limitation rooted in Article

III did not occur until well into the twentieth century. For

example, the first mention of mootness as a constitutional

impediment to a federal court’s exercise of judicial power did

not occur until 1964, in Liner v. Jafco, Inc., 375 US 301, 306

n 3, 84 S Ct 391, 11 L Ed 2d 347 (1964) (“[O]ur lack of juris-

diction to review moot cases derives from the requirements

of Article III of the [c]onstitution under which the exercise

of judicial power depends upon the existence of a case or

controversy.”).24 Before that time, it had been settled law

24

Especially interesting is the fact that the authorities that the United States

Supreme Court cited in support of that conclusion consisted of two law review

articles, not prior case law. Moreover, the law review articles actually offered

faint support for the proposition for which the Court cited them. The first of the

two articles did not even assert that the rule against deciding moot cases was

constitutionally based. Rather, it said that, “[u]nder the Federal Constitution, the

courts of the United States can render decisions only in ‘cases’ and ‘controversies.’

However, these terms inherently are capable of many varying interpretations

and have never been defined authoritatively. Hence, any restriction of judicial

power created by construction of such terms may properly be termed self-imposed.”

Cite as 357 Or 460 (2015) 503

that “the mootness doctrine was treated simply as a rule of

economy and good sense in judicial administration.” Tribe,

American Constitutional Law § 3-11, at 82 n 1. As with the

state court decisions that we have discussed, federal courts

in the nineteenth and early twentieth centuries certainly

did dismiss moot cases, but they did so for prudential rea-

sons; none mentioned the Constitution or Article III as the

source of the ruling. For example, in Smith v. United States,

94 US 97, 97, 24 L Ed 32 (1876), the defendant in a crim-

inal case absconded from custody during the pendency of

the appeal. The United States Supreme Court declined to

address the merits of the appeal, explaining that, “we are

not inclined to hear and decide what may prove to be only a

moot case.”25

And, also like their state-court counterparts, the

federal courts developed exceptions to the general rule of

dismissal of moot cases. In 1897, for instance, the United

States Supreme Court recognized a public-interest excep-

tion. In U.S. v. Freight Association, 166 US 290, 17 S Ct 540,

41 L Ed 1007 (1897), the federal government challenged

the lawfulness of a price-fixing association of railway com-

panies. The trial court dismissed the action, and the court

of appeals affirmed. The government sought review in the

United States Supreme Court. But, while review was pend-

ing, the members of the association under challenge voted to

dissolve it. They then sought dismissal on the ground that

the matter had become moot. The Supreme Court, however,

declined to grant the dismissal, because deciding otherwise

Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U Pa L Rev 772

(1955) (emphasis added). The other article asserted that a moot case “is neither

a case nor a controversy in the constitutional sense,” without further elaboration

or supporting authority. Sidney A. Diamond, Federal Jurisdiction to Decide Moot

Cases, 94 U Pa L Rev 125 (1946).

25

See also Allen v. Georgia, 166 US 138, 140, 17 S Ct 525, 41 L Ed 949 (1897)

(“[W]e have repeatedly held that we would not hear and determine moot cases.”);

The Richmond &c. Railroad Co. v. Louisa. Railroad Co., 54 US 71, 82, 14 L Ed 55

(1851) (“But however probable as this dispute or contest may be, it is not for this

court to anticipate it, and volunteer an opinion in advance.”); Lord v. Veazie, 49

US 251, 254-55, 12 L Ed 1067 (1850) (“[A]ny attempt, by a mere colorable dispute,

to obtain the opinion of the court upon a question of law which a party desires

to know for his own interest or purposes, when there is no real and substantial

controversy between those who are adverse parties to the suit, is an abuse which

courts of justice have always reprehended.”).

504 Couey v. Atkins

would encourage strategic avoidance of adverse appellate

court decisions on matters of public interest:

“The defendants having succeeded in the court below, it

would only be necessary thereafter to dissolve their associ-

ation and instantly form another of a similar kind, and the

fact of the dissolution would prevent an appeal to this court

or procure its dismissal if taken. This result does not and

ought not to follow.”

Id. at 309. The Court noted that, of course, “private par-

ties may settle their controversies at any time.” Id. In this

instance, however, the Court explained that the voluntary

dissolution of the challenged association did not result in

an “extinguishment of the rights (whatever they are) of

the public, the enforcement of which the government has

endeavored to procure by a judgment of a court.” Id.26

And, in 1911, the Court—relying on its decision in

Trans-Missouri Freight Ass’n.—recognized an additional

exception for cases that otherwise would be moot, but are

capable of repetition and concern a matter of public inter-

est. So. Pac. Terminal Co, 219 US at 514. Importantly, the

Court’s opinion made no mention of the judicial power or any

limitations on it derived from Article III; only that the court

thought it prudent to recognize an exception to its usual

practice of dismissing moot cases.

e.  Federal case law and advisory opinions

An additional bit of historical context must be

addressed, concerning the rule against issuance of advi-

sory opinions, because the rule against advisory opinions

has been invoked as a justification for broader justiciability

doctrines. Historically, the English courts were no strang-

ers to advisory opinions. See generally Stewart Jay, Most

Humble Servants: The Advisory Role of Early Judges 4

26

See also Boise City Irr. & Land Co. v. Clark, 131 F 415, 418-19 (9th Cir

1904) (“It is contended on the part of the appellees that, as the period for which

the rate in question was fixed has expired, the case has become but little, if any,

more than a moot case; but the courts have entertained and decided such cases

heretofore, partly because the rate, once fixed, continues in force until changed as

provided by law, and partly because of the necessity or propriety of deciding some

question of law presented which might serve to guide the municipal body when

again called upon to act in the matter.”).

Cite as 357 Or 460 (2015) 505

(1997) (“For centuries British judges had been called upon

to advise the Crown and its ministries, often by providing

formal advisory opinions on legal questions.”); Evan Tsen

Lee, Deconstitutionalizing Justiciability: The Example of

Mootness, 105 Harv L Rev 603, 639 n 204 (1992) (“Historical

English practice appears to have been quite familiar with

advisory opinions.”). As early as 1575, the government

asked judges to provide advice as to the execution of penal

statutes and the administration of the Poor Laws. See W.S.

Holdsworth, 4 A History of English Law 75 n 4, 76 n 3 (2d ed

1937).

Colonial American governments followed the British

practice, with judges “continually involved in the process of

advising executive and legislative bodies.” Jay, Most Humble

Servants, at 52. Even after the Revolution, at least at first,

the prevalent view was that the President of the United

States had the right to obtain advice from the Supreme

Court. See generally Mel A. Topf, The Jurisprudence of the

Advisory Opinion Process in Rhode Island, 2 Roger Williams

U L Rev 207, 210 (1997); Note, The Advisory Opinion and

the U.S. Supreme Court, 5 Fordham L Rev 94, 102 (1936).

In 1790, for instance, President Washington wrote the

Justices of the Supreme Court requesting their opinions on

the Justices’ duties as circuit riders under the newly formed

judiciary system; the Justices responded that a statutory

requirement that they ride circuit was constitutionally dubi-

ous. Robert P. Dahlquist, Advisory Opinions, Extrajudicial

Activity and Judicial Advocacy: A Historical Perspective, 14

Sw U L Rev 46, 50-51 (1983); see also Stewart Jay, Most

Humble Servants, at 2 (“Supreme Court justices in the 1790s

did counsel the executive on a number of occasions.”).

Later in the 1790s, however, the federal courts con-

cluded that they could not issue advisory opinions in two

categories of cases. The first category involved legislation

that required judges to make decisions that were subject to

review by other branches of government. Hayburn’s Case, 2

US 408, 1 L Ed 436 (1792), involved just such a statute, one

that authorized the federal courts to determine veterans’

disability benefits subject to review by the Secretary of War

and, ultimately, Congress. Three justices of the Supreme

506 Couey v. Atkins

Court, who had been sitting as circuit court judges on cases

arising under that statute, concluded that the statute was

unconstitutional, because it authorized judges to issue deci-

sions reviewable by the executive and legislative branches.

The Attorney General filed a petition for a writ of man-

damus to enforce the law. While the action was pending,

however, Congress changed the statute. The Court declined

to grant relief because, it explained, Congress had already

done so. Id. at 409-10. In other words, the Court concluded

that the case had become moot (although it did not use that

term).

Interestingly, the Court published, as an unnum-

bered footnote, the decision of the three justices declaring

the now-amended statute unconstitutional because “the rea-

sons assigned by the judges, for declining to execute the first

act of Congress, involve a great constitutional question.” Id.

at 410 n *. The note explains that the three justices con-

cluded that the statute was unconstitutional because it ren-

dered their opinions only “advisory,” in the sense that they

are reviewable by a non-judicial government official. The

three justices explained:

“That by the constitution of the United States, the govern-

ment thereof is divided into three distinct and independent

branches, and that it is the duty of each to abstain from,

and to oppose, encroachments on either. That neither the

legislative nor the executive branches, can constitutionally

assign to the judicial any duties but such as are properly

judicial, and to be performed in a judicial manner. That

the duties assigned to the circuit by this act are not of that

description * * * inasmuch as it subjects the decisions of

these courts, made pursuant to those duties, first to the

consideration and suspension of the secretary of war, and

then to the revision of the legislature.”

Id. at n *. Since its publication, Hayburn’s Case has become

known chiefly for the footnoted opinion of the three justices

sitting as circuit court judges, which, in the nineteenth cen-

tury, was cited for the proposition that judges should not

issue “advisory” opinions that were reviewable by other

branches of government. See, e.g., United States v. Ferreira,

54 US 40, 49, 14 L Ed 40 (1852) (a judge who makes decisions

Cite as 357 Or 460 (2015) 507

that are subject to review by other branches of government

is not exercising “judicial power”; citing Hayburn’s Case).

As scholars since have noted, Hayburn’s Case, as

well as Ferreira, involved a very particular type of “advi-

sory” opinion—one that involved a judge rendering an opin-

ion that was subject to review by another branch of govern-

ment, which violated constitutional principles of separation

of powers. See, e.g., Lee, Deconstitutionalizing Justiciability,

105 Harv L Rev at 646 (the circuit courts, in Hayburn’s

Case, concluded that the statute “violated the constitutional

imperative of an independent judiciary in a national govern-

ment of separated powers”).27

The second category of advisory opinions involved

requests for judicial opinions outside the context of any

judicial proceeding. In 1793, President George Washington

asked Chief Justice John Jay to answer 29 questions put to

the Court by concerning the propriety of a policy of neutral-

ity toward France. The Chief Justice declined to answer any

of the President’s questions, explaining that

“the lines of separation drawn by the Constitution between

the three departments of government. These being in cer-

tain respects checks on each other—and our being judges of

a court of the last resort—are considerations which afford

strong arguments against the propriety of our extrajudi-

cially deciding the questions alluded to.”

Letter from Chief Justice John Jay and Associate Justices to

President Washington (August 8, 1793), in 3 Correspondence

and Public Papers of John Jay, 1782- 1793, at 488 (Henry P.

Johnson ed. 1891). Again, the circumstances were particu-

lar—calling for advice, and not a judicial decision—and the

justifications for refusing to address the President’s ques-

tions were couched in terms of judicial independence and

separation of powers.

27

Indeed, the case actually was decided on narrower grounds than that.

Strictly speaking, Hayburn’s Case turned on whether the Attorney General could

prosecute the action without first seeking authorization from the President. See

generally Maeva Marcus and Robert Teir, Hayburn’s Case: A Misinterpretation

of Precedent, 1988 Wisc L Rev 527. Nineteenth-century cases, however, seized

on the footnote and cited the case to support separation-of-powers arguments.

Id. at 541. Importantly, it was not until 1926 that Hayburn’s Case was cited for a

broader “case-or-controversy” rule. Tutun v. United States, 270 US 568, 576, 46 S

Ct 425, 70 L Ed 738 (1926).

508 Couey v. Atkins

f.  Nineteenth-century Oregon cases

Decisions of this court on the subject of justiciabil-

ity generally, and mootness particularly, are few. Without

exception, however, they reflect the view that the judicial

power of the state broadly includes the authority to hear

cases, particularly cases of public importance, without

regard to whether the cases are moot or have been brought

by individuals without a personal stake in the outcome.

In Burnett v. Douglas County, 4 Or 388 (1873), a

county court had issued an order concerning the redemption

of certain county-issued warrants. Several taxpayers sought

a writ of review, challenging the lawfulness of that order in

circuit court. The circuit court denied the writ, and the tax-

payers appealed. This court affirmed. The court explained

that the writ ordinarily would not issue unless the chal-

lenged decision was “judicial” in nature; that is, the chal-

lenged decision must concern the rights of individual parties

who had sought relief from a court. Id. at 391-92. In contrast,

the court said, nonjudicial “general order[s]” are treated dif-

ferently. Id. A “general order,” the court explained, is one that

“d[oes] not and cannot affect any particular person or class

of persons,” but “will continue to operate in a very general

manner upon the entire body of the taxpayers of the county.”

Id. at 392. According to the court, “[i]n all cases where the

proceeding sought to be reviewed involves a matter of public

interest affecting a great number of persons, the allowance

of the writ is in the sound discretion of the [c]ourt, and if

refused, the refusal is not subject to review or appeal.” Id.

Thus, the court’s decision was consistent with the general

rule of nineteenth-century cases that we have described

above, recognizing the justiciability of cases involving a mat-

ter of “public interest,” regardless of whether they were initi-

ated by a person with a personal stake in the outcome.

In State v. Ware, 13 Or 380, 10 P 885 (1886), the

relator sought a writ of mandamus to correct certain election

notices. At oral argument, a question arose about whether

the relator had any personal interest in the outcome of the

matter independent of the interest of the public generally.

The court ultimately decided that the lack of such a per-

sonal stake was no impediment to proceeding to the merits:

Cite as 357 Or 460 (2015) 509

“[T]he decided weight of authority supports the proposition

that, where the relief is merely for the protection of private

rights, the relator must show some personal or special inter-

est in the subject-matter, since he is regarded as the real

party in interest, and his right must clearly appear. On the

other hand, where the question is one of public right, and

the object of the mandamus is to procure the enforcement

of a public duty, the people are regarded as the real party,

and the relator, at whose instigation the proceedings are

instituted, need not show that he has any legal or special

interest in the result.”

Id. at 382-83 (emphasis in original). Again, the court’s

description of the law thus was consistent with the common-

law tradition concerning initiating public actions, dating

back to pre-Revolutionary England. See also State ex rel.

Durkheimer v. Grace, 20 Or 154, 158, 25 P 382 (1890) (“[A]

s the question at bar is one of public right, and the object

of the mandamus is to enforce the performance of a public

duty * * * it is not necessary that the relators should show

any special interest or particular right to be affected by the

result.”).

And to similar effect is David v. Portland Water

Committee, 14 Or 98, 12 P 174 (1886), in which a number of

taxpayers challenged the authority of a statutorily created

“water committee” to issue bonds. At the time they initiated

the action, though, the committee had not yet levied a tax on

the taxpayers. The court noted that “[a] question has been

raised as to the right of the [taxpayers] to maintain the suit,

as to whether they have any standing in court.” Id. at 125.

The court opined that its “impressions” were “adverse to

the right.” Id. Nevertheless, “in view of the importance of

the case, we have concluded not to consider [the standing

issue].” Id.

g.  Significance of the historical context

The foregoing examination of the historical con-

text—of the 1857 constitution and, particularly, of the 1910

amendments—shows a complete absence of evidence that

the framers would have understood the “judicial power”

conferred in either 1857 or in 1910 to have been limited to

510 Couey v. Atkins

what we now term “justiciable” cases. To the contrary, the

relevant case law shows that courts permitted persons with

no personal stake in the outcome to initiate “public actions”

and that, while moot cases could be dismissed, the decision

to do so was one of judicial discretion and could depend on

whether the issues were of particular public importance.

Federal case law was entirely consistent with that state law

practice, culminating in the explicit recognition of excep-

tions to the mootness doctrine for cases of public interest

and cases that are capable of repetition, yet evade review.

The notion that federal courts are without constitutional

authority to decide “nonjusticiable” cases did not emerge

until well into the twentieth century.

To recap the bidding so far, then: Nothing in the text

of Article VII, section 1, or Article VII (Amended), section 1,

imposes any limitations on the exercise of “judicial power.”

In particular, there are no “case or controversy” limitations

of the sort that are imposed under Article III of the United

States Constitution. Nor are there any explicit references to

a lack of constitutional authority to hear cases initiated by

parties lacking a personal stake in the outcome. Moreover,

nothing in the historical context of either provision of the

Oregon Constitution lends support for the notion that the

framers would have understood them to have included such

limitations implicitly because of the very nature of the term

“judicial power,” at least not in public action cases or those

involving issues of “public importance.”

3.  Later Oregon case law

We turn, then, to an examination of Oregon cases

decided after the adoption of the 1910 amendments. As we

have noted, the court has not been consistent in its views

of justiciability generally, and mootness particularly.

Rather, over the course of the last 100 years, the cases have

veered back and forth between regarding justiciability as

a constitutional imperative and treating it as a prudential

consideration.

The court began to address justiciability in the

declaratory judgment context. In Oregon Cry. Mfgs. Ass’n,

159 Or at 100, a group of dairy processors and distributors

Cite as 357 Or 460 (2015) 511

challenged the constitutionality of the Oregon Agricultural

Marketing Act. At the time they initiated the declaratory

judgment action, however, the act had not yet been applied

to them. This court held that the matter was not justicia-

ble. “Deciding hypothetical cases,” the court explained, “is

not a judicial function. Neither can courts, in the absence

of constitutional authority, render advisory opinions.” Id. at

109. The court cited no Oregon case law for that assertion.

Rather, it cited a then-recent decision of the United States

Supreme Court, Electric Co. v. Comm’n., 303 US 419, 58 S Ct

678, 82 L Ed 936 (1938), in which the Court declined to hear

a similar challenge arising under the Federal Declaratory

Judgment Act.

But, in Perry v. Oregon Liquor Commission, 180 Or

495, 177 P2d 406 (1947), the court took a different approach

to justiciability. In that case, the plaintiff challenged the

suspension of her license to serve liquor. By the time that

her case reached the Oregon Supreme Court, however, the

period of suspension had expired. The court noted that the

expiration of the suspension did moot the appeal, but it

decided the merits of the case anyway:

“We agree that courts ordinarily do not determine moot

questions. There is, however, a well recognized exception to

this general rule. Where the question is one involving the

public welfare, and there is a likelihood of it being raised

again in the future, a court in the exercise of its discretion

may decide it for the guidance of an official administrative

agency.”

Id. at 498-99.28

28

Perry was later followed in a number of cases. See, e.g., State ex rel. v.

Newbry et al., 196 Or 331, 337, 248 P2d 840 (1952) (“[W]e shall determine the

case on the merits, even though it be moot[.] * * * We are moved to do so by the

general public interest.”); State ex rel. v. Smith et al., 197 Or 96, 126, 252 P2d

550 (1953) (“Even if we assume, arguendo, that the Company’s tax payment did,

in fact, render the present controversy moot, we are, nonetheless, moved to a

determination of the cause because of the evident general public interest in the

result.”); Linklater v. Nyberg, 234 Or 117, 120, 380 P2d 631 (1963) (“[N]othing

remains for the writ to operate upon and the case in that sense has become moot.

* * * Be that as it may, there is a question here of sufficient general public interest

to warrant its consideration and decision.”); Stowe v. School Dist. No 8-C, 240

Or 526, 528, 402 P2d 740 (1965) (“It is apparent from the facts that the issue is,

in reality, moot. Because of the public nature of the question presented and the

likelihood that it will recur we will decide the case.”)

512 Couey v. Atkins

Dickman et al v. School Dist. 62C et al, 232 Or 238,

366 P2d 533 (1962), is likewise difficult to reconcile with

the approach to justiciability reflected in Oregon Cry. Mfgs.

Ass’n. In that case, the plaintiff taxpayers challenged the

constitutionality of a state statute that authorized the dis-

tribution of publicly-funded textbooks to all schools, includ-

ing parochial schools operated by the Catholic Church. On

appeal, the defendants argued that the plaintiffs lacked

standing because they had not shown that they or any of

their families attended school. The court noted that prior

Oregon cases “do not provide us with a clear guide” to the

question of taxpayer standing. Id. at 244. But, because the

defendants had not raised the matter in their pleadings

to the trial court, the court determined, the matter was

waived. Id. at 245. “If standing were a jurisdictional matter

then, of course, defendants could raise the question at any

stage in the proceedings. But we do not so regard it and we

hold, therefore, that defendants’ failure to raise the issue by

a proper pleading constitutes a waiver of that issue.” Id.

But then a few short years later, the court held, in

Cummings Constr. v. School Dist. No. 9, 242 Or 106, 109, 408

P2d 80 (1965), that “courts do not have jurisdiction to enter-

tain a declaratory judgment action requesting the interpre-

tation of a statute or a declaration of one’s rights thereun-

der unless there is a ‘justiciable controversy’ between the

parties.” The court did not mention Dickman. But it did cite

Oregon Cry. Mfgs. Ass’n. Id.

In a similar vein is Gortmaker v. Seaton, 252 Or

440, 450 P2d 547 (1969), in which the court dismissed an

action brought by a district attorney to obtain the court’s

interpretation of a newly enacted statute concerning the

regulation of certain illegal drugs. The court explained that

“it is fundamental to appellate jurisprudence” that courts

do not decide abstract or hypothetical cases. Id. at 442. The

court added that, “It can be argued that the public inter-

est in the suppression of illegal drugs is so strong that the

court should brush aside questions of standing and justicia-

ble controversy and decide the case on its merits.” Id. at 443.

Without citing Perry—or any of the half-dozen cases follow-

ing it—for just that proposition, however, the court cited

Cite as 357 Or 460 (2015) 513

instead Oregon Cry. Mfgs. Ass’n and concluded that deciding

the case on the merits would result in the issuance of an

impermissible advisory opinion. Id. at 444.

In the 1980s, the court was more explicit in rejecting

Perry. In State ex rel Oregonian Publishing Co. v. Sams, 298

Or 329, 692 P2d 116 (1984), the relators petitioned for a writ

of mandamus ordering certain hearings to be conducted in

public. This court issued an alternative writ, and the trial

court complied. The relators nevertheless asked the court

to rule on the merits of their claim, citing Perry, Linklater,

and Newbry. The court noted the prior decisions, declined

to address “whether those cases were rightly decided under

their own circumstances or whether they can be distin-

guished from the present case,” and concluded that “a court

cannot properly pursue an issue upon an alternative writ of

mandamus after the person to whom the writ is addressed

has complied with its command.” Id. at 332-33.

In Hay v. Dept. of Transportation, 301 Or 129, 719

P2d 860 (1986), the plaintiffs challenged a Department of

Transportation rule authorizing public use of the beach in

front of their ocean-front hotel as a parking area. During the

pendency of the appeal, the rule expired by its own terms.

The parties, citing Perry, argued that, even though the expi-

ration of the rule might have rendered the appeal moot, the

court should rule on the merits owing to the public impor-

tance of the issues involved. The court summarily rejected

the argument. Noting its decision in Oregonian Publishing

Company, the court explained that “[r]ecent cases have cast

doubt on the validity of * * * Perry.” Id. at 134.29

In the 1990s, the court appeared to supply more

of an explanation for its rejection of Perry: namely, that

justiciability is a constitutional requirement. In People for

Ethical Treatment v. Inst. Animal Care, 312 Or 95, 817

P2d 1299 (1991), the court determined that an association

lacked standing to challenge a University of Oregon order

29

See also Kay v. David Douglas Sch. Dist. No. 40, 303 Or 574, 577, 738 P2d

1389 (1987), cert den, 484 US 1032 (1988) (suggestions that Perry allows moot

cases of public significance to be decided “have been discarded in recent cases

and should not be followed”); Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 367-

68 n 9, 723 P2d 298 (1986) (noting that the court had declined to follow Perry in

“[m]ore recent decisions”).

514 Couey v. Atkins

approving research on barn owls. The court noted that,

“aside from certain constitutional considerations not pre-

sented by this case, a reviewing court’s inquiry into the

standing of an entity seeking judicial review is confined to

an interpretation of legislative intent.” Id. at 99 (emphasis

added). Because the court determined that the association

did not satisfy the statutory standing requirement, it did not

need to address any “constitutional considerations.” But the

mention of those “constitutional considerations” signaled a

return to the earlier, constitutional view of justiciability. See

also Brian v. Oregon Government Ethics Commission, 319

Or 151, 156, 874 P2d 1294 (1994) (quoting People for Ethical

Treatment, 312 Or at 99).

In Barcik, 321 Or 174, the court was even more

explicit in constitutionalizing justiciability. In that case,

several high school students sought a declaratory judgment

regarding the lawfulness of certain school district regula-

tions concerning official student publications. But, by the

time the trial court made its decision, the students had

graduated. This court reversed and remanded for dismissal

of the claims, because the graduation of the student plain-

tiffs had rendered the case moot. Citing Oregon Cry. Mfgs.

Ass’n, the court explained that “[t]his court has applied the

justiciability requirement to declaratory judgment actions

for over fifty years and has noted the constitutional origins

of that requirement.” Id. at 188 (emphasis added).

The following year, in McIntire v. Forbes, 322 Or

426, 909 P2d 846 (1996), the court was even clearer. In that

case, two taxpayers challenged the constitutionality of a

recently enacted statute, which included a provision permit-

ting “interested persons” to initiate such challenges. That

prompted a question concerning the justiciability of the peti-

tioners’ claims. Id. at 428. The court addressed that ques-

tion in two parts. First, the court addressed the “statutory

standing” of the petitioners: that is, it addressed whether

the petitioners satisfied the statutory requirement that they

be “interested persons.” Id. at 432-33. After concluding that

the petitioners, as taxpayers, stated an adequate interest

to satisfy the statute, the court then proceeded to a second

inquiry, viz., constitutional justiciability, determined by

examining whether a judgment of the court would have a

Cite as 357 Or 460 (2015) 515

“practical effect” on the petitioners’ rights. Id. at 433-34. The

court’s analysis thus made clear that, independent of any

statutory standing requirements, the constitution imposed

justiciability requirements of its own.

That brings us to Yancy, which even more firmly

and explicitly grounded this state’s justiciability doctrine in

the constitution—specifically, the “judicial power” provision

of Article VII (Amended), section 1. In the process, the court

concluded that “Perry and the cases that relied on Perry

were wrongly decided.” 337 Or at 363.

But Yancy was closely followed by Kellas, in which

the court abjured the constitutionalization of justiciability

and concluded that matters of standing were properly left

to the legislative branch. 341 Or at 478. In the process, the

court declared that cases such as Oregon Cry. Mfgs. Ass’n

must not be understood to stand for the proposition that

justiciability is constitutionally required; instead, the court

said, those decisions are properly regarded as concerning

the statutory standing requirements of the Declaratory

Judgments Act. Id. at 484. The court disavowed People for

Ethical Treatment, Brian, and McIntire as having improp-

erly constitutionalized justiciability doctrine. Id. at 485-86.

4.  Reassessing justiciability

We are left with essentially two competing concep-

tions of justiciability in our case law. On the one hand, we

have Yancy, which viewed justiciability as a constitutional

requirement inherent in the nature of “judicial power” con-

ferred under Article VII (Amended), section 1, of the state

constitution. On the other hand, we have Kellas, which

concluded that nothing in the text or historical context of

Article VII (Amended), section 1, suggests such limitations

on the exercise of judicial power.

In light of our reexamination of the text, historical

context, and case law relevant to the adoption of Article VII

(Amended), section 1, we conclude that Kellas has the bet-

ter of the argument, at least to the extent that courts are

presented with “public actions” or cases involving matters

of “public interest.” Kellas correctly observed that nothing

in the text imposes any limits on the exercise of “judicial

516 Couey v. Atkins

power” under Article VII (Amended), section 1. It further

correctly noted that, historically, Oregon courts long have

recognized the authority of courts to entertain public

actions without regard to whether those who initiate such

actions have a personal stake in their outcome. To be sure,

Kellas fairly may be faulted for glossing over some of the

inconsistencies in this court’s case law over the last cen-

tury. In particular, Kellas was plainly wrong in attempting

to re-characterize the Oregon Cry. Mfgs. Ass’n line of cases

as non-constitutional, declaratory judgment cases only. As

we have noted, Oregon Cry. Mfgs. Ass’n itself, as well as

later cases such as Barcik, identified the constitution as the

source of the justiciability requirements that those cases

applied. Still, the bottom line of Kellas stands as essentially

correct.

The same cannot be said of Yancy. Yancy began by

acknowledging that the text of Article VII (Amended), sec-

tion 1, says nothing about justiciability, standing, mootness,

ripeness, or any other limitation on the judicial power exer-

cised by the courts of this state. 337 Or at 352. The court

nevertheless concluded that the very nature of the “judicial

power” itself implicitly includes such limitations. The court

based that conclusion on an analysis of the historical con-

text of Article VII (Amended), section 1. Unfortunately, that

analysis was seriously incomplete.

To begin with, the court failed to consider the

English common-law practice recognizing the authority of

courts to hear public actions regardless of whether the plain-

tiffs have a personal stake in the outcome. The court fur-

ther overlooked the nineteenth-century American adoption

of that same practice. As we have noted, there was in the

latter part of the century a distinctly minority view to the

contrary. But there is a complete absence of evidence that

the framers of the Oregon constitution intended to adopt

it. See State v. Supanchick, 354 Or 737, 764, 323 P3d 231

(2014) (assuming framers would have understood common-

law context for constitution); Portland v. Hirsch-Weis Mfg.

Co., 123 Or 571, 577, 263 P 901 (1928) (“It is but reasonable

to assume” that the framers understood terms in the con-

stitution to comport with usage “familiar to common law or

Cite as 357 Or 460 (2015) 517

equity.”); Allen v. Hirsch, 8 Or 412, 415 (1880) (it is “a settled

canon of constitutional interpretation” that, in absence of

evidence to contrary, framers are assumed to have adopted

common-law meanings of constitutional terms). It also

failed to address the practice of nineteenth- and early twen-

tieth-century courts—including this court—of addressing

otherwise moot cases that presented issues of significant

public interest and that were capable of repetition. All of

that evidence is incompatible with Yancy’s conclusion that

the framers of the Oregon Constitution would have under-

stood the “judicial power” to preclude exercising authority to

decide such cases.

Instead, Yancy claimed support for its interpretation

of “judicial power” in essentially three places. First, it relied

on the several instances in which the justices of the United

States Supreme Court declined to issue advisory opinions,

in particular, Hayburn’s Case. But those instances concerned

the exercise of judicial power under the federal constitu-

tion, which, as we have noted, is subject to limitations not

present in Article VII (Amended), section 1. Moreover, the

cases involved particular institutional concerns that inhere

in requests for judicial decisions that either are review-

able by other branches of government or involved requests

for advice outside the context of a judicial proceeding. As

a result, as we have noted, those cases were construed in

the nineteenth century to apply to those circumstances and

were viewed as turning on separation of powers principles;

the notion that the cases stood for broader conceptions of

justiciability did not surface until the twentieth century

and well after the adoption of the 1910 amendments to the

Oregon Constitution.

Second, Yancy claimed support from more recent

federal court case law arising under Article III. 337 Or at

360. But, as we have noted, federal justiciability case law is

not predicated on the meaning of “judicial power” simplic-

iter, but on the case-or-controversy limitations on the judicial

power. See, e.g., Federal Election Comm’n. v. Akins, 524 US

11, 20, 118 S Ct 1777, 141 L Ed 2d 10 (1998) (“Article III, of

course, limits Congress’ grant of judicial power to ‘cases’ or

‘controversies.’ ”); Allen v. Wright, 468 US 737, 750, 104 S Ct

3315, 82 L Ed 2d 556 (1984) (“Article III of the Constitution

518 Couey v. Atkins

confines the federal courts to adjudicating actual ‘cases’ and

‘controversies.’ ”); Muskrat v. United States, 219 US 346, 356,

31 S Ct 250, 55 L Ed 246 (1911) (“By the express terms of

the Constitution, the exercise of the judicial power is limited

to ‘cases’ and ‘controversies.’ ”).30 Because Oregon’s constitu-

tion contains no such limitations, there is no textual basis

for drawing support from the federal justiciability case law.

See Kellas, 341 Or at 478 (“The Oregon Constitution con-

tains no ‘cases’ or ‘controversies’ provision.”); see also James

W. Doggett, “Trickle Down” Constitutional Interpretation:

Should Federal Limits on Legislative Conferral of Standing

Be Imported Into State Constitutional Law?, 108 Colum L

Rev 839, 876 (2008) (“Given the importance these words

[‘cases’ and ‘controversies’] have taken on in American legal

discourse, and given the divergences between the federal

and state judicial powers, the failure of state constitutions

to explicitly incorporate them should be read as additional

authority for courts to diverge from federal practices.”).31

Third, Yancy claimed support from one early Oregon

decision, Burnett. As Yancy characterized it, Burnett stands

for the proposition that, to be a proper exercise of the judicial

power, proper parties with a personal stake in the outcome

must appear before the court. 337 Or at 359. That, however,

is not what Burnett stands for. As we have explained, Burnett

30

It could be argued that, in light of the history that we have cited, the tex-

tual differences between Article III of the federal constitution and this state’s

constitution are irrelevant, because even the existence of the case-or-controversy

limitation in the former does not justify federal justiciability doctrine. That is to

say, it could be argued that federal justiciability doctrine itself is implausible. In

fact, the argument has been made by a number of scholars. See, e.g., Robert J.

Pushaw, Jr. Justiciability and Separation of Powers: A Neo-Federalist Approach,

81 Cornell L Rev 393, 490 (1996) (federal mootness doctrine is “incomprehensi-

ble”); Erwin Chemerinsky, A Unified Approach to Justiciability, 22 Conn L Rev

677, 696 (1990) (“The law in the area of justiciability is a mess.”); William A.

Fletcher, The Structure of Standing, 98 Yale LJ 221, 221 (1988) (“The structure of

standing law in the federal courts has long been criticized as incoherent.”). That

is not, however, a torch for this court to carry.

31

See also Hans A. Linde, The State and the Federal Courts in Governance:

Vive La Difference!, 46 Wm & Mary L Rev 1273, 1287-88 (2005) (“It is not pru-

dent to link a decision declining adjudication to non-textual, self-created con-

stitutional barriers” such as those adopted by federal courts under Article III.);

Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial

Function, 114 Harv L Rev 1833, 1905 (2001) (“[T]he concerns that motivate fed-

eral justiciability doctrine are not wholly applicable to the theory or practice of

state governance.”).

Cite as 357 Or 460 (2015) 519

first noted that, ordinarily, a writ of review will not issue

unless the challenged order was judicial in nature. 4 Or at

391. In that context, the court said that “judicial” orders are

those involving proper parties with a personal stake. Id. at

391-92. The court then noted that, notwithstanding that

ordinary rule, challenged orders of a more “general” char-

acter—operating “in a very general manner upon the entire

body of the taxpayers of the county”—still are justiciable,

even though no party had a personal stake in the outcome.

Id at 392. According to the court, “[i]n all cases where the

proceeding sought to be reviewed involves a matter of public

interest affecting a great number of persons, the allowance

of the writ is in the sound discretion of the court.” Id. Thus,

directly contrary to the way that Yancy characterized it,

Burnett is consistent with the general practice of courts in the

nineteenth century to review actions involving public rights.

Burnett—properly understood—also is consistent

with the court’s 1886 decision in David, in which it held that

it had authority to review a case brought by a plaintiff who

lacked standing, “in view of the importance of the case.” 14

Or at 125. Yancy acknowledged David. 337 Or at 359. But it

declined to give it any weight, because the decision “offered

no justification, constitutional or otherwise, for entertain-

ing a case in which the plaintiffs seemed to lack standing,

beyond the fact that the court seemed to believe that the

public needed an answer.” Id. If the court had examined

the relevant nineteenth-century and earlier case law, how-

ever, it would have found that David was not an outlier, but

rather was consistent with longstanding doctrine. The fact

that David failed to offer further explanation for its conclu-

sion is not surprising; to the court in David, the explanation

was obvious.

In its discussion of nineteenth-century Oregon cases,

Yancy also omitted any reference to Ware or Durkheimer,

which as we have noted also recognized the authority of

courts to entertain public actions regardless of the stand-

ing of those who initiated them. Such cases are inconsistent

with Yancy’s conclusion that the settled meaning of “judicial

power” foreclosed deciding them.

520 Couey v. Atkins

In short, Yancy’s analysis is undercut by significant

omissions and by misinterpretations of the historical evi-

dence of what the framers likely would have understood of

the “judicial power” conferred by the constitution. The deci-

sion must be disavowed in favor of Kellas.

In disavowing the justiciability analysis of Yancy,

we do not hold that the state constitution imposes no con-

straints on the exercise of judicial power. This case does not

require such a broad holding. Rather, we hold that, based

on the foregoing analysis of the text, historical context,

and case law interpreting Article VII (Amended), section 1,

there is no basis for concluding that the court lacks judicial

power to hear public actions or cases that involve matters of

public interest that might otherwise have been considered

nonjusticiable under prior case law. Whether that analysis

means that the state constitution imposes no such justicia-

bility limitations on the exercise of judicial power in other

cases, we leave for another day.

We also do not hold that moot cases will no lon-

ger be subject to dismissal. We hold only that Article VII

(Amended), section 1, does not require dismissal in public

actions or cases involving matters of public interest.

In a similar vein, we emphasize that, merely because

there are no justiciability limitations on the exercise of judi-

cial power in public actions or cases involving matters of

public interest does not mean that the reference to “judicial

power” in Article VII (Amended), section 1, is an empty ves-

sel to be filled as it pleases the legislature. Separation of

powers principles make clear that there are limits to what

constitutes the “judicial power” that courts may exercise.

In In re Ballot Title, 247 Or 488, 431 P2d 1 (1967),

for example, the legislature enacted a statute that required

this court to “review” each and every ballot title, regard-

less of whether any party initiated a judicial proceeding to

request such review. When asked to perform that automatic

review, this court declined, explaining that the statute vio-

lated the separation of powers guarantee of Article III, sec-

tion 1. The statute, the court said, required the court to pro-

vide advice to the legislature “without any form of judicial

Cite as 357 Or 460 (2015) 521

process,” when that advice “would not conclude or vindicate

any right or remedy nor bind anyone at all.” Id. at 491-92.

That, the court said, is not the exercise of the judicial func-

tion. Id. at 493.

This case does not require us to define the bound-

aries of the judicial function. It suffices at this juncture to

make the point that, even though such justiciability doc-

trines as mootness and standing are not implicit in Article

VII (Amended), section 1-- at least not in public action cases

or those involving matters of public importance—there

remain other limitations on the “judicial power” that may

be exercised under the state constitution.

5.

Application

We turn to the question whether the legislature

acted within its authority in enacting ORS 14.175. Under

Kellas, the legislature’s authority to enact legislation is “ple-

nary, subject only to limitations that arise either from the

Oregon Constitution or from a source of supreme federal

law.” 341 Or at 478. We are aware of no limitation on the

legislature’s authority to enact legislation authorizing liti-

gants to maintain an action that, although otherwise moot,

is capable of repetition, yet evading review. Such legislation

purports to confer no more authority than what we have just

concluded the courts possess under Article VII (Amended),

section 1. As our analysis demonstrates, judicial determina-

tion of such cases is consistent with centuries of historical

practice and the sound prudential exercise of judicial power,

at least as to public action cases or cases involving matters

of public interest.

This court’s prior case law offers some aid in defin-

ing precisely what constitutes a “public action” case, or one

involving a matter of “public interest.” Burnett, for example,

involved the validity of an order of a circuit court concerning

the redemption of county-issued warrants. The court found

the matter justiciable because the challenged order oper-

ated “in a very general manner upon the entire body of tax-

payers of the county.” 4 Or at 392. Similarly, Ware involved

the validity of election notices, which the court referred to as

a question “of public right” and “the enforcement of a public

522 Couey v. Atkins

duty.” 13 Or at 383. David concerned the authority of a pub-

lic body to issue bonds. The court declined to dismiss that

case “in view of the public importance of the case.” 14 Or at

125. And Perry involved the suspension of an individual’s

liquor license by the Oregon Liquor Control Commission, a

question, the court said, that was “one involving the public

welfare.” 180 Or at 498-99.

This case does not require us to define the outer lim-

its of what might constitute a “public action” or one involving

issues of “public interest” for purposes of determining the

authority of a court to decide an otherwise moot proceed-

ing. Whatever those outer limits may be, it seems clear from

the foregoing authorities that, at the least, such proceedings

include those challenging the lawfulness of an action, pol-

icy, or practice of a public body, and such matters are pre-

cisely those to which ORS 14.175 applies. There is, in fact,

no contention in this case that plaintiff’s challenge to the

constitutionality of the state election law does not amount to

a challenge of an action, policy, or practice that is subject to

review under that statute.

There remains the issue whether to exercise the

authority provided under ORS 14.175. As we have noted,

that statute provides that, in actions in which a party chal-

lenges the lawfulness of a public body’s act, policy, or prac-

tice, a court “may issue a judgment on the validity of the

challenged act, policy[,] or practice” even though the case

may have become moot. The statute does not require a court

to do so, but leaves it to the court to determine whether it is

appropriate to adjudicate an otherwise moot case under the

circumstances of each case. In this instance, the trial court

did not reach that issue, having determined that the case

was not the sort to which ORS 14.175 applies in the first

place. We therefore remand the case to the circuit court to

make that determination.

II. CONCLUSION

For the foregoing reasons, we hold that, although

the trial court and the Court of Appeals did not err in

Cite as 357 Or 460 (2015) 523

concluding that plaintiff’s claims are moot, they erred in

concluding that those claims are not justiciable under ORS

14.175.

The decision of the Court of Appeals and the judg-

ment of the circuit court are reversed, and the case is

remanded to the circuit court for further proceedings.