Couey v. Atkins ( 2015 )

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 petitioner
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 affi-
davit 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 legisla-
ture, and adopt amendments to the state constitution. The
parties 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 sig-
natures. See ORS 250.045(1) (requiring filing of text of pro-
spective petition with signatures of at least 1,000 electors).
There follows the certification of a ballot title, an impartial
summary of the proposed measure. ORS 250.065 - 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
464 Couey v. Atkins
to enact a statute or to adopt a constitutional amendment,
the number of required signatures varies from six to eight
percent of the total votes cast for governor at the last elec-
tion. Or Const, Art IV, § 1(2)(b), (c). Chief petitioners have a
limited time to collect those signatures, which must be sub-
mitted 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 justiciability
requirements. As to the sufficiency of his affidavit, he argues
that, under Oregon law, “there is no case law rule that ‘hypo-
thetical’ injury renders claims for declaratory relief [per se]
nonjusticiable merely because the injury has not actually yet
Cite as 357 Or 460 (2015) 469
occurred.” Citing Pendleton School Dist. v. State of Oregon,
345 Or 596, 200 P3d 133 (2009), he argues that, if a dis-
pute 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
‘hypothetical injury’ renders claims for declaratory relief
[per se] nonjusticiable.” To the contrary, a justiciable con-
troversy 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 an 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 to the Secretary of State’s records of initiative and refer-
endum 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
contend that the law is unconstitutional in all possible
applications—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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 demonstrating
his or her own standing to bring the claim. Only a person
to whom the statute applies, even if constitutionally, may
assert an overbreadth challenge. That is to say, overbreadth
may represent a loosening of the ordinary prudential rule
that parties cannot assert the rights of others, but it does not
represent a loosening of the federal constitutional require-
ment that the party asserting the law’s overbreadth have
standing and that the party’s interest continue throughout
the proceeding. See generally Laurence H. Tribe, American
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
Constitutional Law § 12-27, 1024 (2d ed 1988) (“[O]ver-
breadth does not in fact possess a distinctive standing compo-
nent.”); Richard H. Fallon, Jr., Making Sense of Overbreadth,
100 Yale LJ 853, 869 (1991) (An overbreadth claim is consis-
tent with justiciability requirements of Article III because
it is asserted by “[a] party who is charged with violating a
statute or threatened with imminent prosecution” under it.).
In Virginia v. American Booksellers Assn., 484 U.S.
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 U.S. 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
District, 228 F3d 1092, 1099 (9th Cir 2000) (“[A] litigant
Cite as 357 Or 460 (2015) 475
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 U.S. 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
of the state. See generally League of Oregon Cities v. State
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 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
action no longer has a practical effect on the party if the
court determines that:
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 com-
plaint, 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 undertakes 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” (emphasis in original));
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
“(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
246.910(4) (“The circuit courts and the Court of Appeals,
in their discretion, may give precedence on their dockets
478 Couey v. Atkins
to appeals under this section as the circumstances may
require.”); ORS 19.405(1) (“When the Court of Appeals 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
Dictionary of the English Language 1017 (5th ed 2011)
(defining adjective “likely” as “possessing or displaying the
Cite as 357 Or 460 (2015) 479
qualities or characteristics that make something proba-
ble: 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 at 1806; see also American Heritage
Dictionary 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, rec-
ognize an exception to the mootness doctrine for controver-
sies 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 pro-
vide that, if a party already has standing to initiate a law-
suit (i.e., the bill would not give individuals new rights to
480 Couey v. Atkins
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 (HB) 2324 A, Apr 25, 2007 (citations omitted; empha-
sis in original); see also Tape Recording, House Judiciary
Committee, HB 2324, Apr 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 capable
of repetition rule. Although it has deep roots in nineteenth-
century case law, the first case to recognize the rule as such
was So. Pac. Terminal Co. v. Int. Comm. Comm., 219 U.S.
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, as they might
be, defeated, by shortterm[ ] orders, capable of repetition, yet
evading review.” Id. at 514.
Cite as 357 Or 460 (2015) 481
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 U.S. 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 U.S. 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
the Supreme Court, the election had passed. The Federal
Election Commission argued that the case had become
482 Couey v. Atkins
moot. Moreover, the agency argued that, because “the
2-year window between elections provides ample time for
parties to litigate their rights,” the matter was not subject
to the exception for cases capable of repetition, yet evading
review. Id. at 462. The Supreme Court rejected that argu-
ment, concluding that the case “fit comfortably within the
established exception.” Id. “[I]t would be entirely unreason-
able,” the Court said, “to expect that [the plaintiff] could
have obtained complete 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 evad-
ing review.’ ”); Gunaji v. Macias, 130 NM 734, 737, 31 P3d
1008, 1101 (2001) (applying exception to challenge to elec-
tion of county commissioner whose term had expired); Blum
v. Lanier, 42 Tex Sup Ct J 955, 997 S.W.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
act, of the Secretary of State—a statute that we have held
8
See also Renne v. Geary, 501 U.S. 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 U.S. 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 U.S. 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 repetition exception); First National Bank of Boston v. Bellotti, 435 U.S. 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
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 1,
488 Couey v. Atkins
“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 U.S.
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 consti-
tutional amendments adopted by initiative, we “consider 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
its historical context and in light of relevant case law, to
Cite as 357 Or 460 (2015) 491
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 differ-
ent States, and between a State or the Citizens thereof, and foreign States,
Citizens or Subjects.”
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, approv-
ing a new Article VII, which addressed a number of differ-
ent issues pertaining to the courts—in particular, judicial
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
judicial power of the state shall be vested in one supreme
court and in such other courts as may from time to time be
created 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
“judicial power” to mean, we must examine the historical
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
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
royal prerogative, caused such concern that it made little
difference who raised the question.”
13
See also In re Creighton’s Estate, 60 Neb 796, 84 N.W. 273, 275-76 (1900)
(tracing judicial power to common-law courts of England); Ex parte Steinmetz,
35 Ohio App 491, 496, 172 N.E. 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 N.W. 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
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 con-
stitution], the English practice was to allow strangers to
have standing in the many cases involving the ancient
prerogative 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-constitutional practices suggest [a common under-
standing considering] 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 “strangers” could initiate such popular actions was
Cite as 357 Or 460 (2015) 495
recognized in England at least through the nineteenth cen-
tury. See, e.g., Wadsworth v. Queen of Spain, 17 QB 171, 214
(1851) (Lord Campbell: “We find it laid down in books of the
highest 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 him-
self. 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 S.E. 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 U.S. 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 S.W. 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 S.W. 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 S.W. 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 S.E. 399, 400 (1907)
(“Courts will not gratuitously decide moot constitutional questions.”); Aiken v.
City of Columbus, 167 Ind 139, 78 N.E. 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 N.E. 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 gen-
eral 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 N.E. 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 N.W. 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 U.S. 301,
306 n 3, 84 S. Ct. 391, 11 L. Ed. 2d 347 (1964) (“[O]ur lack of
jurisdiction to review moot cases derives from the require-
ments 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
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
law 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, fed-
eral courts in the nineteenth and early-twentieth centuries
certainly did dismiss moot cases, but they did so for pruden-
tial reasons; none mentioned the Constitution or Article III
as the source of the ruling. For example, in Smith v. United
States, 94 U.S. 97, 97, 24 L. Ed. 32 (1876), the defendant in a
criminal 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 U.S. 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 U.S. 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 U.S. 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
U.S. 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 U.S. 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
U.S. 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 U.S. 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
“[there are] lines of separation drawn by the Constitution
between the three departments of government. These being
in certain 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
extrajudicially deciding the questions alluded to.”
Letter from Chief Justice John Jay and Associate Justices
to President Washington (Aug 8, 1793), in 3 Correspondence
and Public Papers of John Jay, 1782- 1793, at 488 (Henry P.
Johnson ed. 1891). Again, the circumstances were particular—
calling for advice, and not a judicial decision—and the jus-
tifications for refusing to address the President’s questions
were couched in terms of judicial independence and separa-
tion 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 U.S. 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
context—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 U.S. 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 inter-
pretation of a statute or a declaration of one’s rights there-
under 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 approving
29
See also Kay v. David Douglas Sch. Dist. No. 40, 303 Or 574, 577, 738 P2d
1389 (1987), cert den, 484 U.S. 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
research on barn owls. The court noted that, “aside from cer-
tain constitutional considerations not presented 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 ear-
lier, 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 better
of the argument, at least to the extent that courts are pre-
sented 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 power”
516 Couey v. Atkins
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 century. In particular,
Kellas was plainly wrong in attempting to re-characterize
the Oregon Cry. Mfgs. Ass’n line of cases as nonconstitu-
tional, 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 jus-
ticiability 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
plaintiffs have a personal stake in the outcome. The court
further overlooked the nineteenth-century American adop-
tion 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 constitution to comport with usage “familiar to com-
mon law or equity.”); Allen v. Hirsch, 8 Or 412, 415 (1880) (it
Cite as 357 Or 460 (2015) 517
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-
twentieth-century courts—including this court—of address-
ing 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 U.S.
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 U.S. 737, 750, 104 S. Ct.
3315, 82 L. Ed. 2d 556 (1984) (“Article III of the Constitution
confines the federal courts to adjudicating actual ‘cases’ and
518 Couey v. Atkins
‘controversies.’ ”); Muskrat v. United States, 219 U.S. 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
first noted that, ordinarily, a writ of review will not issue
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
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”
character—operating “in a very general manner upon the
entire body of the taxpayers of the county”—still are justi-
ciable, even though no party had a personal stake in the out-
come. 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 allow-
ance 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
concluding that plaintiff’s claims are moot, they erred in
Cite as 357 Or 460 (2015) 523
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.