Lead Opinion
The issue in this case is whether the Court of Appeals erred when, sua sponte, it reversed a circuit court judgment from which plaintiffs had appealed and remanded the case with instructions to dismiss the complaint and vacate the judgment, on the ground that “there was no justiciable controversy before the circuit court when it entered judgment on plaintiffs’ [claims].” Barcik v. Kubiaczyk,
FACTS AND PROCEDURAL BACKGROUND
Plaintiffs challenged regulations adopted by the Tigard-Tualatin School District (district) governing official and unofficial student publications. The challenged regulations authorize school administrators to review and censor official and unofficial student publications before their distribution and to discipline students who are responsible for the distribution or publication of material that violates the regulations.
Plaintiffs Carol Barcik, William Jansen, Joe and Sheilah Kasten, Barry and Mona Edwards, and Cordes and Sharon Lowery are the parents and guardians for Scott Barcik, Tom Jansen, Shannon Kasten, Maree Edwards, and Matt Lowery, who were seniors at Tigard High School when the district enacted the regulations on January 30, 1992. Plaintiffs Frost and Olson were seniors at Tigard High School when the district enacted the regulations on January 30, 1992.
Before the regulations were enacted, the following events occurred. On December 4, 1991, Scott Barcik distributed a flyer that solicited articles for publication in “Low-Spots,” a nonschool-sponsored (“underground”) publication. The next day, the school’s assistant principal told Barcik that distribution of the flyer violated school policy, because it had not been approved by the school’s director of student activities. The assistant principal issued a formal warning to Barcik and informed him that, if he intended to publish and distribute “Low-Spots,” he could either submit “Low-Spots” to the school’s administration for approval before its distribution or publish “Low-Spots” without using any school resources and distribute it off school grounds.
On January 13, 1992, “Low-Spots” was distributed to students on school property. No prior approval had been given for the distribution. Defendant Kubiaczyk, the principal at Tigard High School, informed Barcik and Jansen that “Low-Spots” was unacceptable, because it contained profanity and because it had not been submitted to the administration for prior approval. Imposition of proposed disciplinary measures (discussed more fully below) was postponed pending the circuit court’s decision in this matter.
On January 23,1992, a second underground publication, “The Spots on My Dog,” appeared on school grounds. None of the plaintiffs was involved in its publication or distribution. That publication also contained profanity.
“Hi-Spots” is the official newspaper of Tigard High School. Shannon Kasten, Maree Edward, Matt Lowery, and David Frost served on the editorial board of “Hi-Spots.” Following the distribution of “Low-Spots,”
On January 24, 1992, Kubiaczyk met with the editorial board of “Hi-Spots.” He told them that the School Board had asked for review of the editorial and that the editorial could not be printed as written. Kasten and Edwards called the printer and instructed it to place the following message in red ink, where the editorial was to appear: “CENSORED BY: MARK KUBIACZYK, RUSS JOKI, AL DAVTDIAN, TIGARD-TUALATIN SCHOOL BOARD.”
On January 30, 1992, the district adopted the challenged regulations. On January 31, plaintiffs filed a complaint challenging those regulations. Plaintiffs alleged that the regulations violate Article I, section 8, of the Oregon Constitution,
The circuit court conducted a trial on the merits of plaintiffs’ claims. Thereafter, on October 10,1992, the circuit court entered a “Declaratory Judgment and Final Decree.” The court dismissed all plaintiffs’ claims that were rooted in either the Oregon Constitution or Oregon statutes. The court held, however, that defendant Kubiaczyk’s censorship and discipline of Barcik and Jansen, and the administration’s censorship of the “Hi-Spots” editorial, violated the First and Fourteenth
The parties debate whether the academic records of Barcik and Jansen contain any indication of disciplinary action related to the challenged regulations. The circuit court’s judgment states:
“The court generally adopts Plaintiffs’ Proposed Findings of Fact except as the court may have made contrary factual findings in its oral ruling on August 13, 1992.”
In turn, “Plaintiffs’ Proposed Findings of Fact” stated: Scott Barcik was given a warning by the assistant principal, for solicitation of articles to “Low-Spots,” and that warning is reflected in his student record (Proposed Finding of Fact #3); plaintiffs Barcik and Jansen were to be suspended for seven days after the distribution of “Low-Spots” (Proposed Finding of Fact #10); that suspension is reflected in Barcik’s student record (Proposed Finding of Fact #11); the proposed suspension was converted to a ten-page research paper on students’ First Amendment rights (Proposed Finding of Fact #13); and that punishment was postponed pending the outcome of this litigation (Proposed Finding of Fact #14). Nothing in the trial court’s oral ruling on August 13, 1992, contradicts those proposed findings. Thus, we take the foregoing as findings of the circuit court.
The testimony indicates that some record of disciplinary action taken against Barcik for his involvement in “Low-Spots” exists in Barcik’s academic record. However, there is no similar indication that Jansen’s academic record contains any report whatsoever of disciplinary action taken in connection with his involvement in “Low-Spots.” Moreover, the evidence establishes affirmatively that any discipline that was contemplated as to Jansen never was activated and was withdrawn.
Plaintiffs appealed from the circuit court’s judgment, arguing that the district’s regulations violated Article I, section 8, of the Oregon Constitution. The Court of Appeals, sua sponte, reversed the judgment of the circuit court and remanded the case with instructions to dismiss the complaint and vacate the judgment. Barcik,
Plaintiffs petitioned for this court’s review, and we allowed the petition.
STANDARDS OF MOOTNESS AND JUSTICIABILITY APPLICABLE TO PLAINTIFFS’ CLAIMS UNDER 42 USC § 1983
Mootness and justiciability are treated similarly, but not identically, under Oregon and federal law.
Under federal law, a justiciable controversy exists when a “plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III.” Warth v. Seldin,
Under Oregon law, a justiciable controversy exists when “the interests of the parties to the action are adverse” and “the court’s decision in the matter will have some practical effect on the rights of the parties to the controversy.” Brumnett v. PSRB,
At oral argument, we asked the parties for supplemental briefing. We asked them to address whether this court’s decision in Rogers v. Saylor,
In Rogers, this court addressed whether limitations on individual and governmental liability contained in the Oregon Tort Claims Act, ORS 30.270, apply to a claim under the federal civil rights act, 42 USC § 1983, when that federal claim is brought in state court.
In reaching that conclusion, this court noted that state courts have concurrent subject matter jurisdiction with federal courts over section 1983 claims and that Oregon courts are available to hear claims under section 1983. The court then considered whether a state may impose limits that could be characterized as procedural or jurisdictional (rather than as substantive limits on a claim) on section 1983 actions in state court.
In Felder, the Supreme Court was called on to decide whether the notice-of-claim provisions of a Wisconsin tort claims act could be applied to section 1983 actions brought in state court. The Court held that they could not.
“Because the notice-of-claim statute at issue here conflicts in both its purpose and effects with the remedial objectives of § 1983, and because its enforcement in such actions will frequently and predictably produce different outcomes in § 1983 litigation based solely on whether the claim is asserted in state or federal court, we conclude that the state law is preempted when the § 1983 action is brought in a state court.” Id. at 138.
In Rogers, this court seized on the second reason discussed in Felder and stressed the need to avoid a rule of law that would result in different outcomes depending solely on whether a section 1983 claim is raised in state or federal court. This court rejected a proposed rule of law that
“would create a distinction between a section 1983 claim in state or federal courts. * * * If * * * the same remedy is ‘not available in state courts, federalism concerns would be raised because most plaintiffs would have no choice but to bring their complaints concerning state actions to federal courts. ’ [Maine v. Thiboutot,448 US 1 , 11 n 12,100 S Ct 2502 ,65 L Ed 2d 555 (1980).]” Rogers,306 Or at 283 .
This court read Felder as saying “that a state law which creates the potential for different outcomes in state and federal courts cannot be given effect.” Ibid. The court concluded that “[n] either the Oregon legislature nor the Oregon courts can limit the rights that a plaintiff has in a federal claim, even when that federal claim is brought in state court. ’ ’ Id. at 284.
The position of the Supreme Court of the United States on federal pre-emption of state
“The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule bottomed deeply in [a] belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them. The States thus have great latitude to establish the structure and jurisdiction of their own courts. In addition, States may apply their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law.” Id. at 372 (citations omitted; internal quotation marks omitted).
Under Howlett, the threshold question becomes whether a state’s standards of mootness and justiciability are either jurisdictional rules or “neutral procedural rules” not pre-empted by federal law. See also Rogers,
Oregon standards of mootness and justiciability are not “jurisdictional rules,” as that term is used in Howlett. In Howlett, the court described jurisdictional rules as rules that “reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect.”
Neither are Oregon standards of mootness and justiciability “neutral procedural rules,” as that term is used in Howlett. “Neutral procedural rules” are “rule[s] regarding the administration of the courts.”
Plaintiffs have alleged that their federal constitutional rights were abridged under color of state law. If plaintiffs could pursue their section 1983 claims in a federal district court in Oregon, applying federal standards of mootness and justiciability, but would be prevented from pursuing identical section 1983 claims in an Oregon circuit court, applying state standards of mootness and justiciability, then both of the concerns raised by the Supreme Court in Felder arise. As the discussion below will show, if state standards of mootness and justiciability are applied to plaintiffs’ section 1983 claims raised in state court, plaintiffs will be prevented from securing injunctive relief and their “uniquely federal remedy” in state court. Application of state standards of mootness and justiciability also would limit the rights that a plaintiff has in a federal claim, simply because that claim is brought in state court.
The foregoing discussion leads to the conclusion that an Oregon court cannot apply state standards of mootness and justiciability to a section 1983 claim brought in state court if application of those standards would preclude a plaintiffs federal claim, but application of federal standards would not.
PLAINTIFFS’ STATE LAW CLAIMS
Our conclusion that the Court of Appeals erred by failing to apply federal law to plaintiffs’ section 1983 claims does not end our inquiry. We next must decide whether plaintiffs’ state law claims are moot. If those claims are not moot, the substance of those claims must be addressed before addressing the substance of plaintiffs’ federal law claims. See Sterling v. Cupp,
The parties stipulated in the circuit court that this case presents a justiciable controversy. However, justiciability may not be conferred by stipulation or consent of the parties in the absence of an actual justiciable controversy. Cummings Constr. v. School Dist. No. 9,
“Justiciability is avague standard but entails several definite considerations. A controversy is justiciable, as opposed to abstract, where there is an actual and substantial controversy between parties having adverse legal interests. * * * A justiciable controversy results in specific relief through a binding decree as opposed to an advisory opinion which is binding on no one. The court cannot exercise jurisdiction over a nonjusticiable controversy because in the absence of constitutional authority, the court cannot render advisory opinions.” Brown,293 Or at 449 (citations omitted).
A. Senior Plaintiffs
For Senior plaintiffs, except Barcik (whose unique situation is discussed separately below), this case is analogous to Kay v. David Douglas Sch. Dist. No. 40,
Here, too, Senior plaintiffs allege no facts entitling them to relief from future practices of defendants. On the date of the circuit court’s judgment, no Senior plaintiff, except Barcik, had any right or claim that would be affected by a declaratory judgment. Senior plaintiffs suffered no continuing harm from the alleged past deprivation of their Article I, section 8, rights. Similarly, because no Senior plaintiff, except Barcik, had any right that was being violated at the time the circuit court entered judgment, there was nothing for the circuit court to enjoin with regard to Senior plaintiffs. Senior plaintiffs’ claims
Senior plaintiffs’ argument that they sought a declaration from the circuit court that their Article I, section 8, rights were violated in the past — not merely an injunction against future acts — does not help them avoid mootness. The Declaratory Judgment Act, ORS 28.010, quoted at note 8, above, gives courts the “power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed.” However, declaratory relief is available only when it can affect in the present some rights between the parties; that is, in order to receive declaratory relief in Oregon, there must be a justiciable controversy between the parties on “which judgment may effectively operate.” State Farm Fire & Cas. v. Reuter,
This court has applied the justiciability requirement to declaratory judgment actions for over fifty years and has noted the constitutional origins of that requirement.
“Deciding hypothetical cases is not a judicial function. Neither can courts, in the absence of constitutional authority, render advisory opinions. A declaratory judgment has the force and effect of an adjudication. Hence, to invoke this extraordinary statutory relief there must be an actual controversy existing between adverse parties.”
Oregon Cry. Mfgs. Ass’n v. White,
Senior plaintiffs next argue that their claims for prospective relief meet the requirements of an exception to the mootness doctrine, because defendants’ acts are “capable of repetition, yet evading review” and are matters of “public importance.” In support of their argument, plaintiffs rely on a statement in Perry v. Oregon Liquor Commission,
This court repeatedly has repudiated the “Perry exception” relied on by Senior plaintiffs. For example, in Mid-County Future Alt. v. Metro. Area LGBC,
“This court, of late, has consistently declined to decide nonjusticiable or moot cases, despite claims of public importance, because of our regard for the constitution of this state, which separates the power and functions of the departments of government, Or Const, Art III, § 1, and vests in the courts only the ‘judicial power.’ Or Const, Art VII (Amended), § 1.”
See also Kay,
Senior plaintiffs’ next argument, that their request for nominal damages prevented their state law claims from becoming moot, is similarly unconvincing.
“Violation of a state constitutional right does not presently per se result in a civil or criminal sanction. * * *
i i % >•< # %
“Oregon’s Bill of Rights provides no textual or historical basis for implying a right to damages for constitutional violations. * * * Neither can we impute from the Tort Claims Act any intent on the part of the legislature to create or recognize such a cause of action against the city or its servants.
£ £ # %
“Lackinglegislative guidance [similar to 42 USC § 1983], this court is in a poor position to say what should or should not be compensation for violation of a state constitutional right and what limitations on liability should be imposed, and to address a plethora of other problems that have been addressed and at least partially answered by federal legislation. State constitutional history and the subsequent jurisprudential history of no implied causes of action for damages for constitutional violations plainly leave us without any guidance.
“If an implied private right of action for damages for governmental violations of Article I, section 8, and other non-self-executing state constitutional provisions is to exist, it is appropriate that it come from the legislature, not by action of this court.
“We therefore hold that persons whose rights under Article I, section 8, of the Oregon Constitution are violated by a municipality or its employees may not bring an action for damages against the municipality or its employees directly under the constitution, but will be limited to existing common-law, equitable, and statutory remedies.” Id. at 302-04 (emphasis added).
In other words, the court held that a person has no claim at all directly under Article I, section 8, to support any form of damages whatsoever. Nominal damages may be awarded, in a proper case, only to a party who has established a claim. Under Hunter, Senior plaintiffs’ claims for nominal damages for past deprivations of Oregon constitutional rights can be sustained only if they can make that claim under an extant common-law, equitable, or statutory theory that provides nominal damages as a remedy; they cannot claim nominal damages solely under Article I, section 8.
Senior plaintiffs attempt to find that remedy in the Declaratory Judgment Act. The circularity of this argument is readily apparent.
Like Article I, section 8, the Declaratory Judgment Act, standing alone, does not provide for awards of nominal damages. Rather, it allows courts to “declare rights, status, and other legal relations” when a justiciable controversy exists. ORS 28.010. If the rights, status, and other legal relations of Senior plaintiffs and defendants entitled them to an award of nominal damages for a violation of their Article I, section 8, rights,
To summarize, Senior plaintiffs, except Barcik, presented no justiciable controversy under Oregon law. The circuit court erred in considering their state law claims on the merits; those claims should have been dismissed.
B. Plaintiff Barcik
Plaintiff Barcik’s situation differs from that of the other Senior plaintiffs. A declaration that defendants acted unconstitutionally in relation to Barcik, and an order requiring defendants to remove references to discipline from his academic record, would affect Barcik’s rights.
As noted above, Barcik’s academic record contains references to disciplinary action taken against him, resulting from defendants’ alleged deprivation of his Article I, section 8, rights. Those references could be removed following a declaration that the references were put there pursuant to unconstitutional regulations or that those regulations were unconstitutional as applied to Barcik. Removal of those references would both acknowledge and remedy the alleged wrong done to Barcik. Because of the references to discipline presently in Barcik’s academic record, there exists a controversy between the parties on which judgment effectively may operate. By ordering defendants to remove all references to Barcik’s discipline associated with this matter from his academic record, the court would not be enjoining an act that already had been completed.
The existence of that justiciable controversy does not extend, however, to Barcik’s claims for prospective relief. Like the other Senior plaintiffs, Barcik cannot be affected by a declaration that future enforcement of the regulations is unconstitutional. Neither can he be affected by a declaration restraining the district from enforcing those regulations in the future, because he will not be subject to those regulations in the future.
With respect to his disciplinary record, a justiciable controversy exists between Barcik and defendants. The Court of Appeals erred by holding otherwise. Barcik is entitled to consideration of his state law claims on the merits, to the extent that those claims relate to his disciplinary record.
C. Plaintiff Kostur
The Court of Appeals dismissed plaintiff Kostur’s claims, reasoning that she alleged
“only speculative future events that may not occur as anticipated or may not occur at all. There has not been any showing that the district regulations have had a ‘cognizable effect’ on her. Savage v. Munn, [317 Or 283 , 292 n 6,856 P2d 298 (1993)]. The hypothetical nature of her anticipatory challenge renders it non-justiciable. Accordingly, Kostur is not properly before us at this time.” Barcik,127 Or App at 280 .
In her complaint, Kostur alleged that she “is a ninth grader at Fowler Junior High School and will attend Tigard High School this fall.” She also alleged that she “intends to write for LOW-SPOTS and/or write and distribute non-school-sponsored publications on the campus of Tigard High School.” Defendants denied the allegation that Kostur would attend Tigard High School. They also denied that Kostur intended to participate in the writing and distribution of any school- or nonschool-sponsored student newspaper.
Kostur now argues, in addition, that the challenged regulations apply through the district and had a “chilling effect” on her even before she entered the high school. She also argues that, because she is a student in the Tigard-Tualatin School District and subject to the regulations, her injury is immediate and tangible.
To summarize, Kostur presented no justiciable controversy under Oregon law. The circuit court erred in considering her state law claims on the merits; those claims should have been dismissed.
PLAINTIFFS’ FEDERAL CLAIMS
Because most of plaintiffs’ claims are not justiciable under state law, and thus state law does not provide a remedy as to those claims, we turn to plaintiffs’ federal claims.
A. Senior Plaintiffs
Under federal law, a case becomes moot “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Murphy,
By the time the circuit court entered judgment, Senior plaintiffs’ federal claims for prospective relief had become moot. Senior plaintiffs had graduated from the high school. Senior plaintiffs received prospective relief through the declaratory judgment ordering defendants to refrain from enforcing some of the regulations. That prospective relief had no effect on the rights of Senior plaintiffs when the circuit court entered judgment, because the relief limits what the district can do with respect to district students, and Senior plaintiffs were no longer district students. Neither is there any likelihood that they will again become district students. No live controversy exists between Senior plaintiffs and defendants. Senior plaintiffs’ federal claims for prospective relief thus are moot. See Indianapolis School Comm’rs v. Jacobs,
Neither can Senior plaintiffs avoid mootness by arguing that, under federal law, they have presented an issue that is “capable of repetition, yet evading review.” In the absence of a class action, Murphy,
Since Meyer, the Supreme Court of the United States has continued to adhere to the rule that the exception to the mootness doctrine for alleged wrongs that are “capable of repetition, yet evading review” is limited to situations in which the same complaining party may again be harmed. In Lewis v. Continental Bank Corp.,
“We have permitted suits for prospective relief to go forward despite abatement of the underlying injury only in the ‘exceptional situations’ where the following two circumstances were simultaneously present: ‘(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.’ ” (Citations omitted; some internal quotation marks omitted; emphasis added.)
See also Masters, Mates & Pilots v. Brown,
As discussed above, it is extremely unlikely that Senior plaintiffs can or will be subjected to the challenged regulations in the future. The federal “capable of repetition, yet evading review” doctrine does not apply to Senior plaintiffs. Accordingly, they present no live controversy in their claim for prospective relief. Their section 1983 claims for prospective relief must, therefore, be dismissed.
However, Senior plaintiffs’ claim for a declaration that defendants’ conduct in censoring “Low-Spots” and the “Hi-Spots” editorial was unconstitutional under federal law, and for nominal damages, is not moot. Senior plaintiffs sought declaratory relief and nominal damages for the alleged violation of their First Amendment rights for the censoring of the two papers. That allegation is sufficient to allow them to pursue their federal claims, because the challenged regulations were applied to them in the past.
The Supreme Court of the United States consistently has held that a claim brought under 42 USC § 1983 for damages for a past wrong is not moot, even if claims for prospective declaratory and injunctive relief have become moot. See, e.g., Richmond v. J. A. Cronson Co.,
The fact that Senior plaintiffs sought nominal damages instead of actual damages for the past deprivation of their federal constitutional rights does not alter the analysis. When a plaintiff alleges a deprivation of a federal constitutional right, but alleges no actual harm, nominal damages are the proper means by which to vindicate that deprivation. In Memphis Community School Dist. v. Stachura,
We conclude that a claim for nominal damages for a past deprivation of a federal constitutional right withstands a challenge based on mootness. Although the Supreme Court has never addressed this precise issue, a number of federal circuit courts have done so since the Court’s decisions in Stachura and Carey, and all have reached the same conclusion that we reach today. See O’Connor v. City and County of Denver, 894 F2d 1210, 1215-16 (10th Cir 1990) (applying Stachura and holding that section 1983 claim for nominal damages only for an alleged past deprivation of First Amendment rights, is sufficient to avoid mootness); Green v. McKaskle, 788 F2d 1116, 1124 (5th Cir 1986) (“Because [the plaintiffs] complaint alleged violations of his constitutional rights [including First and Eighth Amendments, and the Fourteenth Amendment’s Due Process and Equal Protection clauses], for which if proved he could receive at least nominal damages, he presented the district court with a case or controversy sufficient to invoke the court’s jurisdiction.”); Henson v. Honor Committee of U. Va., 719 F2d 69, 72 n 5 (4th Cir 1983) (“The Supreme Court has made it plain that the deprivation of procedural due process creates an independent right to seek, at a minimum, nominal damages. [Plaintiff] sought both injunctive and monetary relief in his 42 USC § 1983 action against the University. Thus, his request for damages remained a live controversy even after the disciplinary proceedings were dropped.” (citation omitted)); Lokey v. Richardson, 600 F2d 1265, 1266 (9th Cir 1979) (“regardless of actual damages, appellant could be entitled to nominal damages if he prevailed. His action therefore was not mooted” (citation omitted)), cert den
Senior plaintiffs alleged a past act that resulted in a deprivation of their federal constitutional rights. The circuit court held that they were deprived of their First Amendment rights when the school censored the publication of the “Hi-Spots” editorial and exercised prior restraint over the publication of “Low-Spots.” The “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns,
To the extent that the circuit court found a deprivation of those rights and ordered defendants to remedy that past wrong, the circuit court’s award of retrospective relief to Senior plaintiffs provides a continuing basis for jurisdiction in the Court of Appeals. The Court of Appeals erred in reversing that part of the judgment on the basis of mootness.
B. Plaintiffs Barcik and Jansen
The circuit court also awarded retrospective relief under federal law to Senior plaintiffs Barcik and Jansen. The circuit court ordered defendants to “expunge from their disciplinary records all references, if any, to warnings, discipline or other sanctions imposed” on Barcik and Jansen.
Under federal law, Barcik’s and Jansen’s request for retrospective relief is not rendered moot merely because their claim for prospective relief is moot. See
As to Jansen, however, there was no evidence to support the circuit court’s findings as to disciplinary action. The circuit court erred, therefore, in rendering a decision concerning such purported action. .
C. Plaintiff Kostur
As discussed above, Kostur failed to establish that she is a student in the district, that she will attend the high school, or that she is, was, or will be in any way harmed by the challenged regulations. She presented no evidence to show the existence of any controversy with defendants.
Kostur cannot avoid this determination by arguing that the parties stipulated that a justiciable controversy existed between them. Consent of the parties is never adequate to permit a federal court to assume justiciability when justiciability does not exist. Sosna v. Iowa,
In the absence of any evidence to establish an actual controversy between Kostur and defendants, the circuit court had no choice but to dismiss Kostur’s federal claims. It erred in considering those claims on the merits.
CONCLUSION
In summary, we hold that the Court of Appeals erred when it applied state law to determine whether plaintiffs raise a justiciable controversy under 42 USC § 1983.
Applying state law to plaintiffs’ state law claims, we hold that only plaintiff Barcik’s claim for retrospective relief raises a justiciable controversy. The Court of Appeals erred when it ordered Barcik’s claim for retrospective relief to be dismissed. All other plaintiffs fail to present justiciable controversies under state law. Accordingly, those plaintiffs’ state law claims should have been dismissed.
Under federal law, all Senior plaintiffs raise a justiciable controversy as to their claims for retrospective relief. The Court of Appeals erred when it ordered those claims to be dismissed. Senior plaintiffs do not present a justiciable controversy as to their claims for prospective relief, however; those claims should have been dismissed.
Plaintiff Kostur fails to present a justiciable controversy under either state or federal law. Her claims should have been dismissed.
The decision of the Court of Appeals is affirmed in part and reversed in part. The case is remanded to the Court of Appeals for consideration on the merits of petitioner Barcik’s state law claims for retrospective relief and of the federal claims for retrospective relief of all petitioners except Kostur.
Notes
Although some plaintiffs were the parents of students, and some plaintiffs were students themselves, that distinction is not material to the issue before us.
Defendant Joki is the district’s superintendent. Defendant Davidian is the district’s assistant superintendent.
Article I, section 8, of the Oregon Constitution provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
The First Amendment to the Constitution of the United States provides in part:
“Congress shall make no law* * * abridging the freedom of speech, or of the press.”
The First Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Gitlow v. New York,
The Fourteenth Amendment to the Constitution to the United State provides in part:
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”
42 USC § 1983 provides in part:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
ORS 30.265(1) provides in part:
“[Ejvery public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties * * *.”
OECP 79 provides for the issuance of temporary restraining orders and preliminary injunctions.
OES 28.010 provides:
“Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.”
We need not and do not address whether state standards of mootness and justiciability could be applied to a section 1983 claim brought in state court if application of those standards would be more favorable, rather than less favorable, to a plaintiff. Today’s decision addresses only the situation in which state standards of mootness and justiciability prevent a plaintiff from bringing a section 1983 claim in state court, when the plaintiffs identical section 1983 claim would not be precluded in a federal forum.
Plaintiffs do not argue that their prayer for attorney fees prevented their claims from becoming moot.
The same view is endorsed by commentators as well.
“Although some cases seem to have suggested that a claim merely for nominal damages cannot avoid mootness, it is better to face the nominal damages question directly. The veiy determination that nominal damages are an appropriate remedy for a particular wrong implies a ruling that the wrong is worthy of vindication by an essentially declaratory judgment. A valid claim for nominal damages should avoid mootness.”
Charles A. Wright, et al., 13A Federal Practice and Procedure: Jurisdiction 2d § 3533.3, 265-66 (1984) (footnotes omitted).
“A change in circumstances may eliminate the need for injunctive or declaratory relief and thus render claims for these forms of relief moot. When both prospective and retrospective relief are sought, however, a properly pleaded claim for monetary relief to compensate for past injury normally will prevent dismissal of the action for mootness even though the claims for prospective relief become moot.
ittt * * * *
“Although the issue is not free from doubt, the better view appears to be that a properly pleaded claim for nominal damages will defeat a claim of mootness.”
Martin A. Schwartz and John E. Kirklin, Section 1983 Litigation § 15.3, 812-13 (2d ed 1991) (citations omitted).
See also O’Connor, 894 F2d at 1214.
“Standing to raise an issue does not preserve for appeal a claim abandoned at trial. Stated differently, the standing doctrine does not undo the parties’ trial strategy or their decisions regarding how to fashion their case. We do not consider on appeal issues not raised in the district court. Similarly, we will not consider claims abandoned in the district court.” (Citation omitted.)
Concurrence Opinion
concurring.
I concur in the result reached by the majority. I write separately to state the basis for my concurrence with the majority’s conclusion that the Senior plaintiffs’ state law claims are moot.
Senior plaintiffs argue that their claim for declaratory relief will resolve a live controversy regarding the lawfulness of defendants’ past actions and, therefore, is not moot due to Senior plaintiffs’ graduation. That answer is not obvious, because they make no showing that a judgment resolving that controversy will affect, as a practical matter, the rights of any party. They attempt to bolster that argument by suggesting that their prayer for nominal damages defeats defendants’ contention that the dispute is now purely hypothetical.
The majority rejects that argument on the following rationale:
“In Hunter v. City of Eugene, 309 Or 298 , 304,787 P2d 881 (1990), this court held that a private right of action for damages against a municipality or its employees does not exist directly under the Oregon Constitution, but is limited to extant common-law, equitable, and statutory remedies.
“* * * Under Hunter, Senior plaintiffs’ claims for nominal damages for past deprivations of Oregon constitutional rights can be sustained only if they can make that claim under an extant common-law, equitable, or statutory theory that provides nominal damages as a remedy; they cannot claim nominal damages solely under Article I, section 8.
“Like Article I, section 8, the Declaratory Judgment Act, standing alone, does not provide for awards of nominal damages. * * * Senior plaintiffs’ attempt to combine a constitutional provision (Article I, section 8) and a statutory provision (the Declaratory Judgment Act) into a claim for nominal damages cannot succeed when neither provision, standing alone, provides for an award of nominal damages.” Barcik v. Kubiaczyk,321 Or at 189-91 (emphasis in original).
Hunter answered in the negative the following certified question:
“ ‘(1) May persons whose rights under Article I, section 8 of the Oregon Constitution were allegedly violated by a municipality and by municipal employees bring an action for damages against the municipality and its employees directly under the Oregon Constitution?’ ” Hunter,309 Or at 302 .
The court explained:
“[W]e are very reluctant to impose any civil responsibility in the form of damages for violation of such a right, absent specific legislation or clear legislative intent.
“Oregon’s Bill of Rights provides no textual or historical basis for implying a right to damages for constitutional violations. There is no clear indication as to the state, for example, that the legislature or the people intended to waive sovereign immunity in the Oregon Tort Claims Act, ORS 30.260 et seq, to permit such implied private rights of action, and that waiver can only be accomplished by the legislature, . not by this court. See Hale v. Port of Portland,308 Or 508 , 516-17,783 P2d 506 (1989). Neither can we impute from the Tort Claims Act any intent on the part of the legislature to create or recognize such a cause of action against the city or its servants.” Hunter,309 Or at 302-03 (emphasis in original, citations and parenthetical omitted).
Hunter purports to decide whether Article I, section 8, of the Oregon Constitution, affords a basis for “implying” a cause of action for a claim based “directly” on that provision. The majority adopts that reading. Barcik v. Kubiaczyk,
The Oregon Constitution does not stand alone as a potential source of judicial remedies. By statute, the state expressly has made public bodies liable for their “torts,” within statutory limits.
“Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties * * *.”
ORS 30.260(8) defines “tort” in this context as follows:
“ ‘Tort’ means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy.”
Under that definition, the breach of a noncontractual duty that injures a specific person and that would give rise to a protective remedy is a “tort.” In my view, such duty could include those imposed by certain provisions of the Oregon Constitution, including Article I, section 8.
Whether the breach of a noncontractual duty also gives rise to a damages remedy depends primarily on the nature of the harm done, not on the nature of the duty that the actor violates. See Urban Renewal Agency v. Lackey,
It is less clear that the violation of other state constitutional rights would lead so easily to a damages remedy. An example would be the failure to appoint counsel for an indigent defendant who is never questioned, booked, or prosecuted. What is absent there is not a constitutional violation, but a harm that calls for compensatory damages.
If the courts award money damages for the intentional invasion of a person’s interest in person, property, or reputation, I see no reason why a public actor’s intentional invasion of the same interest, in violation of constitutional rights protected by Article I, section 8, should not equally support a claim for damages. In that circumstance, a violation of a constitutional right can serve as the predicate for a damages remedy. It is difficult to read ORS 30.260(8) and 30.265(1) to mean anything else.
In the present case, Senior plaintiffs assert only a claim for nominal damages. Because the focus of the case at trial was different, Senior plaintiffs did not have an occasion to brief or argue the effects of Hunter, or the Oregon Tort Claims Act and its definition of “tort,” on their claim for nominal damages. Understandably, they do not attempt to interject those issues here. Under those circumstances, I concur in the court’s judgment.
Other statutory sources of judicial remedial power include the writ of review, ORS 34.010 etseq, the writ of mandamus, ORS 34.105 et seq, and the Administrative Procedures Act, ORS 183.310 to 183.550.