Couey v. Brown
306 P.3d 778
Or. Ct. App.2013Background
- Plaintiff, a registered paid circulator, sought to halt enforcement of ORS 250.048(9), which prohibits obtaining signatures on a paid petition while simultaneously gathering signatures for a volunteer petition.
- Plaintiff circulated IP 28 and IP 70 as a paid circulator and intended to circulate IP 42 as a volunteer.
- Plaintiff’s registration expired July 2, 2010, four months before the November 2010 election deadline for submitting petitions.
- The trial court granted summary judgment, concluding the case was moot because the signature-gathering period had ended and plaintiff no longer faced enforcement.
- On appeal, plaintiff argued the case remained justiciable due to continuing constitutional rights concerns and potential future enforcement.
- The court ultimately held the case moot and declined to address standing, applying a Capable of repetition yet likely to evade review exception only if appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the case moot despite ongoing rights concerns? | Schuman contends ongoing rights are at stake and statute still restricts future actions. | Schuman’s injury ended when signatures could no longer be collected; no live controversy. | Moot; no live controversy. |
| Does ORS 14.175 allow live review for a moot case? | Case qualifies under capable of repetition yet evading review because future petitions may be challenged. | Court may apply ORS 14.175 only where review is not unforeseeably moot; here, review unlikely to be evaded. | Not satisfied; no cap. repetition exception. |
| Did plaintiff have standing at the time of filing? | Plaintiff had standing when suit began and continued to challenge ongoing enforcement. | Standing evaporated once the period for petitions elapsed. | Not reached; mootness resolved without addressing standing. |
| Does a future challenged application of ORS 250.048(9) remain live given potential expedited review? | Expedited review could keep challenge alive for future enforcement. | No guarantee of expedited relief; mootness resolution stands. | Expedited-review route not sufficiently shown; mootness affirmed. |
Key Cases Cited
- Pendleton School Dist. v. State of Oregon, 345 Or 596 (2009) (present facts support live controversy; not simply hypothetical future events)
- Brown v. Oregon State Bar, 293 Or 446 (1982) (controversy must involve present facts, not contingent future events)
- Savage v. Munn, 317 Or 283 (1993) (works of Measure 5 present facts; binding decree would affect rights)
- Brumnett v. PSRB, 315 Or 402 (1993) (mere possibility of future action not sufficient for mootness)
- Cornelius v. City of Ashland, 12 Or App 181 (1973) (declaratory judgments can address rights before wrongs; fine line with unripe challenges)
- Gaffey v. Babb, 50 Or App 617 (1981) (declaratory actions may be live when poised to reopen or act on present facts)
- Barcik v. Kubiaczyk, 321 Or 174 (1995) (mootness requires the controversy to be live; mere possibility to seek reimbursement is insufficient)