Yancy v. Shatzer

affirmed; judgment Appeals May of the Court Argued decision and submitted September circuit court vacated YANCY, Terry Review, Petitioner on SHATZER, W. William Officer; City Hearings Portland Code Portland, City Respondents on Review. S50280)

(CC A114776; SC 0008-08313; CA 97 P3d 346-a Cosgrave Vergeer LLP, Kester Christ,. Thomas M. argued petitioner Portland, the cause for on review. With him Jolin, on the were Ed Johnson and Marc Law briefs Center.

Harry Deputy City Attorney, Auerbach, Portland, Senior argued respondents the cause for and filed the briefs on review.

Roy Lindsay, Weigler, Pulvers, Hart, LLP, Neil & Portland, filed a on brief behalf of amicus curiae State Bar. Hinkle, Portland,

Charles F. filed a brief on behalf of Oregon, amicus curiae ACLU Foundation of Inc.

DE MUNIZ, J. specially opinion,

Balmer, J., concurred and filed an Riggs, joined. J., which

346-b MUNIZ,

DE J. for Yancy jay- stopped petitioner Portland police searched contact, police that In the course of walking. of marijuana. than an ounce discovered less and petitioner him citation that excluded petitioner then issued police Peti- days. for a of 30 period city parks from two Portland Offi- Hearings of Portland City timely appealed tioner After the exclusion period the exclusion. cer, which affirmed the exclusion citation run, challenge to sought had petitioner The circuit court in circuit court. means of a writ review Petitioner on the merits. arguments rejected petitioner’s the case was The Court of observed Appeals appealed. had and ordered moot, expired the exclusion period because the mat- to vacate its and dismiss judgment the circuit court Shatzer, Yancy 704, 705, 185 Or 60 P3d App ter as moot. (2003). review in this court. We sought Petitioner courts have the allowed review to consider whether one, are that, to consider like the disputes present they review because repetition yet evade con- Having became moot at some in the point proceedings. judicial power sidered the we conclude that our question, does not include the to cases in which authority adjudicate therefore affirm the deci- existing controversy. there is no We sion of the Court of Appeals. June the Portland police stopped peti-

On tioner after he left Tom McCall Waterfront Park and pro- Front Avenue “Don’t against pedestrian ceeded across contact, searched signal. During police peti- Walk” marijuana. tioner and discovered less than an ounce of Based discovery marijuana, petitioner on the issued police excluded him from Waterfront Park and a citation that exclusion, took Plaza.1 Under the terms of the which Ankeny arrest, City petitioner’s 20.12.265 At the time of Portland Code provided: Code, any provided for violation ofthis or “In addition other measures officer, Oregon, any peace as defined ORS

the laws of the State of * * * any 133.005(3), amended, any park employee may exclude as or official or ordinance, any Code, any City person any provision [or] of this who violates * * * any park period than for a ofnot more the laws ofthe State of from days. any City any person given excluded from notice be “A. Written shall specify places It park. of exclusion. shall be Such notice shall the dates immediately, effect petitioner would be to arrest for subject criminal if he trespass were to return to either park within 30 days.

On June 13,2000, filed petitioner an with the appeal Code Officer. June Hearings By 21, 2000, the hearing date, half almost of the exclusion period had rim. The hearings offi- cer the upheld exclusion, citing petitioner’s failure to the obey traffic signal. 9, 2000,

On the July exclusion period expired. On 18,2000, August filed a petitioner petition for a writ of review in the raising circuit court various constitutional challenges to the ordinance. See ORS 34.020 use (authorizing by of writ tribunal). circuit court to review proceedings before inferior On 9, 2000, the September City of Portland filed a return to the review, writ of after which the briefed and parties argued the matter. The return addressed petitioner’s constitutional arguments merits; on their it did not mention the fact that the exclusion 30-day period 20, 2001, had run. On April circuit court issued an opinion which it rejected peti- tioner’s constitutional challenges.

Petitioner to the Court appealed Appeals. In a per curiam opinion, that, the Court of Appeals concluded because

signed by issuing party. Warning consequences comply for failure to prominently displayed shall be on the notice. person receiving may appeal Hearings “B. A such notice to the Code provisions Chapter Officer in accordance with the 22.10 ofthis Codeto have period Notwithstanding pro- the written notice rescinded or the shortened. 22.10.030A, appeal days receipt visions of Section shall be filed within 5 notice, Hearings good of the exclusion unless extended the Code Officerfor cause shown. any days, person receiving “C. At time within the 30 such notice apply writing Charge to the Commissioner in of the Bureau of Parks for a temporary good waiver from the effects of the notice for reason.” 21, 2004, City par- On March the Portland Council modified the ordinance. In ticular, following it added the subsection H: appeal timely “If an ofthe exclusion is filed under Subsection P ofthis Sec- tion, stayed, pending the effectiveness of the exclusion shall be the outcome of appeal. affirmed, remaining period If the exclusion is ofexclusion shall immediately upon Hearing [sic] be effective the issuance of the Officer’sdeci- sion, Hearing’s specifies [sic] unless the Officer a later date.” H, stay appeal Under new subsection created anof exclusion citation prevent becoming through expiration period will the matter from moot of the application exclusion. The modified ordinance has no to this case. of exclusion on the case was period expired July moot before the circuit court rendered its judgment. Court of therefore remanded the matter cir- Appeals cuit court with instructions to vacate the and dis- judgment miss the writ of Yancy, review. 185 Or at 705. App We allowed for petitioner’s petition review.

Since the adoption Oregon Constitution in court, time, this from time to has been required determine whether a matter it before is one that is appropri ate for judicial this disposition. Historically, court has described that undertaking as a determination whether a “justiciable controversy’ exists. In that regard, this court has stated that “[a] controversy justiciable, as opposed to abstract, where there is an actual and substantial contro versy between parties adverse having legal interests.” Brown (1982). v. Oregon Bar, State 293 Or 449, 648 P2d 1289 Similarly, this court has observed that contem justiciability plates “that the court’s decision in the matter will have some practical effect on the rights of the parties to the contro versy.” PSRB, Brumnett v. 402, 405, 315 Or P2d 1194 (1993). within Encompassed the broad question justiciabil are ity issues, constellation of related including standing, ripeness, and mootness. For this example, court has recog nized that, even if a case is otherwise justiciable, the court will dismiss it as moot if a “decision no longer will have a effect practical on or concerning the of the rights parties.” Id. “[mjootness at 406. This court also has observed that is a spe cies ofjusticiability, and a court of law exercising power of the state has to decide authority only justiciable con troversies.” First Commerce America v. Nimbus Center (1999). Assoc., 329 199, 206, Or 986 P2d 556

Petitioner acknowledges foregoing authorities, but out points that this court at times has appeared recog- nize an to the rule exception against moot cases. For deciding in example, 1947, this court utilized such an in Perry v. Oregon Liquor Commission, 495, 498-99, 180 Or (1947). 177 P2d 406 In Control Perry, Oregon Liquor (OLCC) Commission suspended a club’s license supper liquor for 60 A days. circuit court held had that the OLCC over- stepped its authority the license and rein- suspending stated it. The court, OLCC to this the club appealed but question appeal, arguing that “the as to

moved to dismiss the [is] suspension the license a moot one—and therefore improper period suspension to consider” because the already expired. motion, had Id. at 498. The court denied the indicating the court would exercise its discretion question guidance decide a moot for the of an official admin agency, question public istrative if the involved the welfare likely again In to arise in the future. Id. at 498-99. was reaching conclusion, text the court did not examine the history Oregon Constitution, relied on cases but jurisdictions. at 499. The court reversed the from other Id. suspension lift the ofthe license. Id. circuit court’s decision to Perry Subsequently, at 500-01. this court has followed on sev e.g., See, 8-C, v. Dist. No. 240 Or eral occasions. Stowe School (1965); Nyberg, v. 234 Or 526, 528, 402 P2d 740 Linklater (1963); 117, 120, Alexander, P2d v. 197 Or Huffman (1953); 283, 333, al., State ex rel. v. Smith et 253 P2d 289 (1953); Newbry 96, 126, al., Or 252 P2d State ex rel v. et (1952); Grange 196 Or 248 P2d 840 State McKay, (illustrating 193 Or 239 P2d 834 purported proposition). However, to ana none of those cases Perry beyond citing lyze it. this court’s statement recently, rejected however, More this court has Kay Perry’s deciding v. David rationale for moot cases. Douglas 574, 577, 738 P2d 1389 Sch. Dist. No. 303 Or (1987), justiciable controversy this court observed that no parties circuit court entered existed between the when the judgment. Therefore, concluded, the case was moot the court Mid-County In Future Alt. and should have been dismissed. (1987), 89, 92, P2d 47 this LGBC, v. Metro. Area 304 Or nonjusticiable moot, court asserted that it would not decide importance, regardless public of cases, of claims of “because regard [the court’s] state, of this which for the constitution gov- power departments separates the and functions ofthe only § in the courts e^ment, Const, III, 1, Or Art and vests ; (Amend), power.’ § Art VII 1.” A few Const, Judicial Or Kubiaczyk, Or 895 P2d later, i in Barcik v. > 1995), had that it this court reaffirmed the observations 7i j Mid-County. in m summary, Kay, Mid-County, indicate, and Barcik grant gov- general terms, that the constitutional at least in by justiciabil- power judiciary limited is ernmental Mid-County ity requirement. Although and the decisions express Barcik doubts about this court’s constitutional authority cases, this court has not undertaken to decide moot subject. pres- analysis This case a full constitutional of that to do ents the occasion so. provisions, III, 1, Article

Two constitutional section (Amended), Oregon 1, of the Consti- and Article VII section judiciary. III, 1, tution make reference to the Article section Oregon’s original adopted part That was as constitution. provision states: powers “The of the shall be divided into Government [separate] departments, Legislative,

three tive, the Execu- including administrative, Judicial; and the and no person charged with official duties under one of these departments, except any another, shall exercise ofthe functionsof expresslyprovided.”

as in this Constitution phrase “judicial power” appears in Article VII (Amended), “[t]he provides section which power supreme theof state shall be vested in one court and in by such other courts as time to from time be created (Amended), adopted by people law.” Article VII section superseded on similar 8,1910, November text set out in Arti- (Original), cle VII section the Constitution. That provided “[t]he former section Judicial of the [Supreme] [Circuit] Court, State shall Courts, be vested County having Courts, which shall be Courts Record general jurisdiction, regulated defined, limited, to be law in accordance with this Constitution.”2 prompts

The text of initial in III, Article section scope judicial power observation. The can be defined two ways: by judicial power what it is and what it is not. The is 2Although preceded pres (Original) Article VII of the Constitution (Amended) by years, provision ent Article VII it the later that is the source of Thus, analysis “judicial focuses, power. concept power” this court’s our as must, However, phrase it on the in the 19Í0 amendments. as we constitutional below, (Original) pivotal play Article VII role to in inter demonstrate still has preting meaning of its successor.

distinct from the executive and the power legislative power, and it resides in a department from the separate legislative and the executive departments. judicial department may not any exercise of the functions of one of the other depart- ments, unless the constitution expressly authorizes it to do However, so. alone, that standing constitutional limitation is is, of little assistance. That concept separation of pow- ers what suggests judicial not, but, is without further investigation, it does little what explain power is. determination,

To make that we must ascertain the intended scope “judicial described in power” Article VII (Amended), section 1. That does not provision define judicial Instead, power. (Amended), Article VII section identifies the entities exercise judicial “one power, namely, * * * court and supreme such other courts as may from time to time be created by law.” Article VII (Original) also merely identified the location of judicial power, it in “a establishing Court, [Supreme] Courts, County [Circuit] [.]” Courts III, Like Article the text of Article (Amended), VII section offers no other textual clues about the scope “judicial power.” That lack of assistance notwithstanding, present case requires us to determine the intended of that meaning term.

When “interpreting constitutional provision adopted through the initiative petition,” court’s “task is to discern the intent of the voters.” Stranahan v. Fred Meyer, Inc., 38, 56, 11 331 Or P3d 228 (citing Roseburg School Dist. City 374, 378, v. 316 Or Roseburg, 851 P2d 595 (1993)). In determining intent, [ ] “best evidence itself[; the text of the provision however, context of the] language of the ballot measure also be considered.” Id. “If the intent of the voters is not clear from the text and con text of the initiated constitutional provision, the court turns to the history of the Id. provision.” (citing Ecumenical Comm., Ministries State 318 Or Lottery (1994)). 871 P2d 106 above,

As noted voters Article VII adopted (Amended) through the initiative in 1910. In process doing so, the phrase “judicial power” was without modi- repeated, fication, from Article VII 1910. The term was (Original) removal of the cap- for unchanged, except left undefined the fist of provision, of the letter “J.” the new italization changed was judicial power entities that would exercise does not reveal change any particular but that slightly, Nei- “judicial power.” intent as to the of the meaning phrase, evidence that any suggests ther are we aware of historical term intended to alter the of the meaning that the voters that the term in meaning enjoyed from the “judicial power” the old term cany 1857. Given the drafter’s decision to over the lack evidence amendment, given any into the new and of that, from source of which we are aware identical any phras- aside, intended, con- ing something new and different was we change clude that the voters intended no to the substantive of the term in their of Arti- meaning “judicial power” adoption (Amended), cle section 1. See State v. generally Conger, VII (1994) (to 484, 491-502, 319 Or 878 P2d 1089 understand (Amended), of text set out in Article VII section meaning text in court examined historical of identical background Article VII (Original)).

Because we conclude that the 1910 voters did not in change “judicial intend to or meaning scope power” (Amended), Article VII section from what it was under include in inquire meaning stood to we must into and when Article VII scope “judicial power” (Original) Constitution was 1857. When constru adopted Constitution, of the this court ing original provisions effect to the intent of the framers of the gives ascertains and Stranahan, at issue. 331 Or at 54-55. That intent provisions (1) the pro is determined the text and context of analyzing the framers visions, meaning words the same giving (2) them; the historical cir reviewing would have ascribed creation; examining cumstances that led to their Pearce, Priest v. case law those interpreting provisions. (1992). goal apply Or 840 P2d 65 This court’s is to in those to mod provisions embodied faithfully principles 282, 297, 4 P3d em circumstances. State v. 330 Or Rogers, (2000). meaning “judicial previously, As we observed Article VII clear from the text and context of is not power” the historical cir- 1. We therefore turn to (Original), section the creation of that surrounding provision. cumstances so, we doing necessarily, address the briefly, history the development of the Oregon judiciary and the associated with branch of government.3

The creation of an Oregon judiciary related to the death, on 15, 1841, of February Ewing Young, the “wealthiest American citizen” from the Pacific Northwest territory. A History Harris, Lawrence T. Judiciary Oregon, (1938). OREGON SUPREME COURT RECORD Young had died intestate Id. and had no known heirs. Because Young’s business had been such an eco important nomic influence on the territory, territory’s inhabitants felt that they needed to devise a system to settle his affairs in “ fashion. Id. At a meeting orderly ‘some of the involving ” inhabitants of the Willamette Valley,’ “provisional gov ernment” was formed Governor, of “a consisting supreme judge with probate powers, justices three three peace, Id. constables, attorney and an general.” Later, 1843, in May another public meeting was held to institute more provisional government. Id. at the formally 76. At that a meeting, legislative formed, and, committee was in 1843, that July committee presented report intended to be “the first body of rules or which regulations any made Id. The to laws” of the approach Oregon Territory. report was by vote of the adopted inhabitants of the and vested territory the judicial “in a court supreme consisting of a and supreme judge justices two of the peace, probate [and] * * Id. at 76-77. court It was later determined the laws original reorganization, and, 1845, in the required July inhabitants Id. a new Law. at overwhelmingly adopted Organic 79-80. I, Article section 8, shall provided judicial power “[t]he vested in a court, law, be and such inferior courts of supreme arbitration, law, and as from equity may by time to time be established.” Law of the Organic Provisional Government of description development Oregon judiciary, For a more detailed of the of the Harris, History Judiciary Oregon, see Lawrence T. A the in OREGON of of (1938); Courts, Kaplan, SUPREME COURT RECORD 73 Mirth Tufts Counselors Judiciary Government, Oregon’s Q117; and Cases: The Provisional 1961 Or Hist of Harris, History Oregon (pts 2), 129,1 T. Lawrence the Code 1 & 1 Or L Rev Or L of (1922). Rev 184 (Deady in Laws of (reprinted Oregon, p General Oregon 1845-64)). of “one judge.” The Court was to consist Supreme called that, upon by Id. farther “whenever provided Section give the shall his supreme judge the house of representatives, of measure.”4 Id. touching validity any pending the opinion, Law, judge The therefore Organic approved supreme legislature the so-called providing advisory opinions to of measures. regarding validity proposed After as a ter- Congress officially recognized Oregon 1848, of the United States in An Act to Establish the ritory Territorial in Oregon (reprinted Government General 1845-64)), Laws of the citizens of Oregon, p (Deady voted, 1857, to allow a of 60 Oregon Territory group per- sons to convene and draft a constitution that would serve as a precursor Schuman, to a for statehood. David petition Constitution, 611, The Creation 74 Or L Rev Oregon (1995). 611-15 The drafters Article VII adapted (Original), VII, section from Article section of the Wisconsin Consti- tution. Constitution Proceedings Debates the Constitutional Convention 1857 475-76 (Charles 1926). Henry Carey ed., State Article Printing Dept, VII did (Original) any not include provision directing judiciary provide advisory at the opinions legislature’s The historical request. record contains no discussion about the meaning or or as scope judicial power any explanation why advisory authorization for opinions expressed Organic Law was not included in the new constitution.5 Burton, See Claudia A Legislative History — II, Constitution L Part 39 Willamette Rev 253-58, 395-400 (describing proceedings surrounding III, of Article section and Article VII adoption (Origi- 1). nal), section 4 1845, wording authorizing requiring highest In similar court to or state’s

provide advisory important questions opinions governmental to other branches on Const, VI, of law included in at Art was least four other state constitutions. See Me Const, (1819); Const, II, III, (1780); Const, (1784); pt § 3 Mass Pt c art II NH II RI (1842). X, art 3§ discussed, pre-1857 depth, in We have not found a Wisconsin case that judicial power. acknowledged scope of the We have found one case that that the judiciary legislative powers separate of the are and distinct from those of the and Farwell, departments government. Resley executive Gov., ex rel and others v. of See State (1852) (so observing). Pin3 no

Because definitive answer of regarding scope judicial power emerged has from the constitutional text and text, historical of that underpinnings we turn next of the accepted understanding concept judicial power pre- dating Constitution in 1857 as adoption in sources, reflected United States contemporary secondary law, Court case and that of this Supreme court. See generally (2002) DeMendoza v. 334 Or 51 P3d 1232 Huffman, works that in (examining legal were American “pervasive 1850s”); courts in Inc., Smothers v. Gresham 332 Or Transfer, 94-112, 23 P3d 333 (examining early commentaries treatises, and colonial history, and case law from other jurisdictions).

Although British courts enjoyed announce advisory opinions, the basis for American concepts in justiciability judicial power English lies not prece- dents, but in the structure government as set out in the United States Constitution and its of “the description American uniquely between the courts and relationship other branches of 13 Charles A. Arthur government.” Wright, R. Miller & Edward H. Federal Practice & Procedure Cooper, (2d 1984). III, ed Article section of the United § States Constitution6 makes reference to the judicial power courts, federal defining phrase. but without At the 1787 convention, constitutional James Madison “doubted whether it was not too far going jurisdiction to extend the of the Court generally Constitution, to cases Under the & whether arising it not to limited to ought be cases of a Nature.” Judiciary Farrand, Max The Records the Federal Convention (1911). 1787 at 430 He believed that right expound- “[t]he in ing Constitution cases not of this nature not to ought be to that given words, Id. other Madison Department.” believed that the Constitution” should take “expounding in cases “of a That remark place only Judiciary Nature.” III, provides: Article section of the United States Constitution States, supreme “The Power of the United shall be vested one Court, Congress may and in from time to time such inferior Courts as Courts, Judges, supreme ordain and establish. The both of the and inferior Behaviour, shall, Times, during good shall hold their Offices at stated Services, Compensation, receive for their which shall not be diminished dur- ing their Continuance Office.” understood that constitutional the drafters suggests resolu- to occur in the context of exegesis ought only dispute turn case the nature of addressing judi- tion. We now law cial power. In federal case law is more instructive. a

Early Revolutionary federal statute that disabled War provided benefits, circuit for apply veterans could to the federal court determine Case, which eligibility. Hayburn’s would veterans’ (1792). 408, 409, 1 US L Ed 436 The of War then Secretary could if decide whether to withhold benefits he suspected that the court had erred in its judgment, Congress could review the In Secretary words, decision of of War. other the court’s function was to render a nonfinal opinion, subject result, executive-branch revision. As a some federal courts refused to enforce the Attorney act. The General petitioned Court for a Supreme writ mandamus to enforce the first, law. Id. At the Attorney General’s mandamus petition maintained that officio, its for relief was “ex request without from application any with a particular person, but view to procure the execution of an act congress, inter particularly a esting to meritorious and unfortunate class of citizens [.]” Id. When the court rejected that argument, Attorney General claimed that he was acting on behalf of a Haybum, veteran. Id. at 409. The court declined ultimately to issue a decision the case Congress because had changed pro relief, cedure for and the case had become at moot. Id. 410. Furthermore, footnote, the Haybum related, court with apparent approval, letters from three lower courts to Presi dent Id. at n Washington. rebuffed, 2. The letters on separa tion-of-powers grounds, idea that courts could provide kind of advisory opinion that the statute Id. contemplated.

Viewed narrowly, Hayburn’s only Case decided Attorney General could not the matter prosecute ex offi- cio. Once enacted new the court consid- Congress legislation, ered the at controversy an end and refused to consider the further; matter it made no direct comment on the subject advisory opinions. See Maeva Marcus and Robert generally Teir, Precedent, A Hayburn’s Misinterpretation Case: case). Wise L Rev 527 (discussing procedural posture presence letters, however, has led courts to subsequent against practice

rely Hayburn’s counseling Case as on issuing advisory opinions. courts Supreme relied on the United States Court involving arising

Hayburn’s dispute in a claims out of Case treaty Spain. United States v. the United States and between (1852). Congress L had Ferreira, 54 US 14 Ed 40 legislation providing court in Florida enacted that the federal evaluate the claims and then forward them to the Sec- would retary Treasury approval payment. at ofthe for Id. 45. Supreme that, where the instance, the Court concluded approving judg- the court’s executive had some discretion acting pursuant ment, lower court not to the the was advisory, power, providing nonfinal, it was because opinion. Supreme case, United Court discuss-

Another States ing ability grant dispute a over a state’s to railroad construc- during rights, reluctance, the tion further illustrates court’s just advisory period statehood, to issue before opinions: injunction against application “But for an the con- on this respondents’[rail]road, was not struction of the chancellor by anticipation: question, And,

bound to decide the although may his he have thrown out someintimation as to veryproperly present opinion question, he has leftit onthat open law, decision, future to settled a suit at or for be they may appear.’ equity, ‘upon the facts ofthe case as then dispute probable be, as this or contest it is But however opinion anticipate it, and volunteer an not for this court to in advance.” Fredericksburg RR & Potomac RR Co v. Louisa Richmond (1851). Co, 71, 81, 14 L Ed 55 54 US Early Oregon discussing judicial power are cases insight regard to the scarce; however, one offers some with (1873), Douglas County, question 4 Or 388 here. Burnett v. deny- appeal judgment the circuit court involved an ing from a sought appellants had Id. at 389. The a writ of review. financing county challenge the manner of writ of review to regarding redemption general order road and the court’s county-issued not order, however, was warrants. Id. The litigation, was directed to in the context of but entered county that, The court concluded in direct- clerk. Id. at 390. judi- ing county had not acted in a clerk, the circuit court capacity. regard, that, cial Id. at 392. In that the court stated judicial power, “proper parties [must in an exercise of the appear] judicial proceedings court, for in all before there proper parties way, particu- be, must be larly who must in some judgment, affected order or determination.”7 Id. at 391-92. years later,

Some in David v. Portland Water (1886), Committee, 14 98, 104-05, Or 12 P 174 a number of taxpayers challenged constitutionality statutorily of a authorized committee that had the to issue bonds. point, committee However, at that had not levied a tax on taxpayers. opinion, expressed At the end of the the court authority doubt that it had the hear the suit, but decided to anyway: question consider it “A has been raised to the as right they respondents to maintain the suit—as whether any standing My impressions

have in court. are adverse right; importance but in view ofthe case, ofthe we have [the standing issue].” concluded not to consider Id. at 125. justification, The court offered no otherwise, constitutional or entertaining plaintiffs for a case in which the seemed to lack standing, beyond the fact that the court seemed to believe public that the needed an answer. We deem David of little determining parameters judicial power, assistance in the premise because it offered no substantial for its decision to importance. decide a matter other courts must exercise act, than its In order to “judicial” power; importance of the standing issue that the courts are decide, alone, asked to does judi not transform resolution of the issue into an exercise of power. cial

While the issue, courts wrestled with the Supreme eventually changed United States Court its own recognized exception course and to the federal mootness discretionary disputes doctrine that allows for “capable review of repetition, yet evading review.” See Southern observation, that, 1857, jurisdic Consistent with that we note before other “speculative question[s,]” Cheeseborough, tions also declined to decide Williams v. (Conn 356,1822 1822), present practical 4 Conn WL 42 that would have no effect on (NY 1831). rights parties, Jackson, Pelletreau v. 7 Wend 471 Terminal v. Interstate Commerce Company Pacific 279, L Ed 310 Commission, 498, 514, 219 US 31 S Ct time, state, Since that (recognizing exception). every has and has Oregon, adopted exception employed except alleged from time to time cases involving harms of a short-term effect —harms that are too ephemeral render for courts to before factual adjudicate developments those harms moot. disputes involving itself, however, The United States Court Supreme for the non continues to with the constitutional basis grapple of moot that led to the justiciability disputes, very concept yet evading creation of the repetition, Doe, 592, 98 S Ct L Ed v. US exception. Honig (1988), 2d the Court over both the and the split origin involved a Honig of the mootness doctrine. parameters Act claimed violation of the Education of the Handicapped (EHA) students, two Doe and Smith. The respecting majority case moot he no that, although concluded Doe’s was because benefits, jus for EHA the case remained longer eligible was there was a likelihood that Smith ticiable because reasonable of EHA that had again deprivation rights would suffer of that analysis, majority rise to the action. As given part observed: may only Article III the Constitution this Court

“Under actual, Nebraska Press adjudicate ongoing controversies. 683, Stuart, 539, 546, L Ed 2d 96 S Ct [49 Assn. v. 427 US (1976); Newkirk, L Ed [45 Preiser v. 422 US 2791] (1975). 272, dispute That the between the 2330] 2d 95 S Ct filed, at the parties very was much alive when suit was or cannot Appeals judgment, time the Court of rendered its controversy actual case or that an substitute for the jurisdiction requires. exercise of this Court’s Steffel 452, 459, 10, Ct [39 n L Ed 2d 94 S Thompson, 415 US (1974); Wade, L Ed 2d [35 Row v. 1209] US (1973).” 705] 93 S Ct in a sepa- 484 US at 317-18. Chief Justice Honig, Rehnquist, with the com- majority’s rate concurring opinion, disagreed The Chief Justice observed that ments Article III. regarding to find their sup- mootness cases often purported that Court’s Constitution, yet III of the United States in Article port capable asserted an simultaneously exception Court —cases yet review —that was not that section repetition evading of the constitution: Ill “If it were indeed Art. reason of its which— controversy

requirement of a case or for the exercise of fed- doctrine, judicial power eral the mootness —underlies yet ‘capable repetition, evading exception review’ relied upon by the Court in this case incomprehensible. would be Article III extends the power United States controversies; only to cases and it does not from this except requirement other ‘capable repeti- lawsuits which are tion, yet evading review.’ If our mootness doctrine were upon forced us controversy requirement the case or itself, Ill Art. we would have no more to decide law- suits which are ‘moot’but which also raise questions which repetition are evading but review than we would to decide cases which are ‘moot’ but raise no such questions.”

Id. at 330 (Rehnquist, J.,C. The concurring). Justice, Chief dilemma, recognizing that suggested federal moot- ness doctrine enjoyed an “attenuated connection” to Article III that could be disregarded if the court deemed it necessary. at Id. 331. With regard to the case that established the excep- tion, Southern Chief Justice Pacific, remarked Rehnquist the exception premised was on pragmatic considera- tions, rather than Article J., III. Id. at 330-31 C. (Rehnquist, concurring).

As we already have explained, this court followed Southern adopted exception Perry. Like Pacific Southern Pacific, Perry purported recognize repetition, yet evading exception. so, how- doing ever, Perry court cited simply Southern as well as Pacific8 cases from other states, and announced the as a exception convenience to the executive government: branch of “Where reasoning unhelpful of Southern because there is no constitu Pacific analysis support adoption tional of such an to the mootness doc Rather, case, determined, simply conclusory fashion, trine. in that the Court in a engage law-announcing concerning government reg that it needed to in a function support claim, quoted prior proposi ulation. In of that the Court two cases for the important public questions required guide tion that answers to executive conduct controversy par without consideration ofwhether a continued to exist between the Pacific, (discussing ties. See Southern 219 US at 515-16 United States v. Ass’n, Freight City Trans-Missouri 166 US 17 S Ct 540 and Boise (9th 1904)) (both Clark, Irrigation stating). & Land v.Co 131F 415 cir so involving public question welfare, and there is the

the is one again being future, a court in in the of it raised likelihood guidance it for the of discretion decide the exercise of its Perry, agency.” at 498-99. 180 Or an administrative official exception Perry mootness doctrine an to the thus established any undertaking such to determine whether effort without judicial power scope compatible the of was with an granted Oregon Constitution. under the text and assert that the constitutional We cannot pre-1857 conclu- lead to a definitive state and federal cases Oregon scope judicial power regarding the under sion the of prevailing the view believe, however, that Constitution. We landscape throughout legal in that 1857 was the American judicial power grant include the did not the constitutional power stage moot at some that had become to decide cases acknowledges, proceedings. petitioner instances of As perceived deciding need to on the moot cases based courts involving public recurring did not welfare issue resolve e.g.,In period re See, 1895 and 1915. until the between occur (1897) (deciding moot 359, 361, 45 NE 943 Fairchild, 151 NY importance to it “was of sufficient election issue because * * * court”); by [that] require Madden, re determination (1895) (deciding question “ofno 136, 42 NE 148 NY importance particular practical likely it case” because was in the recur); App 103, 39 NY Cuddeback, Div Matter of (1896) (deciding Supp it was of moot case because interest”). explained, “great public however, have As we (Amended) nothing adoption in did of Article VII understanding judicial power change as that the earlier (Original). appeared phrase in Article VII foregoing, that the fram- we conclude Based on adopted Oregon those who later Constitution, ers of the likely to have understood constitution, are most that espoused grant judicial power sense in the restrained authority Supreme early limited is, Court cases—that controversy. existing adjudication Because of an they judicial power in the scope is limited created just not, have described, court did this manner authority that circumscribed rule that exceeded to create a authority acquire grant power. court such did the Neither in 1910. Perry follows, believe,

It we and the cases that Perry wrongly They relied on were decided. are overruled. judi cases, Barcik, The more recent such as are correct. The cial under the Constitution does not extend to repetition, yet evading moot cases that are review.” requested

Petitioner has this court to decide a matter longer controversy parties. that no ais between the As we (Amended), explained, have Article VII section doing Constitution from constrains us so. The circuit judgment peti court therefore must vacate its and dismiss tioner’s writ of review as moot. Appeals

The decision of the Court of is affirmed. The judgment of the circuit court is vacated. specially concurring.

BALMER, J., presented justiciable controversy This case never a petitioner’s 30-day expired because exclusion order had petition before he filed his for review in circuit court. For that agree majority judg- I reason, with the that the circuit court petition ment should be vacated and that the filed in the cir- majority, cuit court should be dismissed moot.1 as The how- parties, ever, like the has framed and decided a different and important Oregon power issue: “whether courts have the disputes present capable consider that, one, like the are repetition yet they evade review because moot at become point proceedings.” sepa- some in the 337 Or at 347.1 write rately, disagree majority’s because I with view that power disputes. courts have no to consider such 1 might argue that, given my One view that courts decide some moot cases, jurisdiction I also should find that the trial court had over this case because (the order) petitioner’s 30-day the relevant event duration of exclusion was so short petitioner challenge hearing, that result, could not the order in an administrative obtain a petition judicial expired. and file his for review had before order What strengths position, ever the court, or weaknesses of that it was not addressed the trial Appeals, majority opinion Rather, the Court of or the in this court. the trial petitioner’s challenge court addressed the merits of constitutional to the exclusion ordinance, Appeals majority opinion and the Court of and the in this court focus on judicial power deciding whether the extends to that case becomes moot after it my has been filed in the trial court. I limit discussion to that issue. of the power that majority judicial “[t]he holds (Amended), sec- is used in Article VII

state,” as that phrase extend to a case Constitution, does not tion of the Oregon the events involved moot after because filing that becomes nothing I find majority, Unlike the are of such short duration. that consti- text, context, background in the or historical a dis- that a case that suggest presents tutional provision when it is filed power” to the subject “judicial that pute because the simply beyond power somehow moves conclude inevitably they events involved are so brief contrary, decision. On the can render a final before the courts the courts of the other the federal courts and with along moot- general states, exception I would recognize are of cases that group ness doctrine for that small the events review because but evade repetition duration.2 involved are of such brief analysis its begins The majority properly fits within whether that exception to determine attempting Countless grant judicial power. Constitution’s judicial power have considered what appellate opinions cannot be deline- of that entails, scope and the precise federal courts and court, This like the ated in the abstract.3 grant the constitutional courts, interprets other state cases that only courts to decide to authorize judicial power Constr. v. Cummings controversy.” a “justiciable present (1965).4 P2d 80 106, 109-10, Dist. No. Or School rep states, recognizing “capable each A of decisions from the other list Appendix. etition, yet evading in the While to mootness is set out interpretation provide guidance of the Con for our those decisions stitution, limited prudential rests, part, con in on the doctrine at least to the extent that virtually every siderations, argue below, they suggest other court that has as I Moreover, use the other state constitutions finds it useful. considered the doctrine “judicial power” appears phrase in the Constitution —the same —to majority’s interpretation judiciary’s authority. ofthat scope of the describe the country every something court in this than it means to other term to mean different persuasive argument, I in the text. majority as assert suggests has the less that the 3 (and opinions commentators on See, example, the cases and the diverse for Utsey County, Or Appeals they rely) decision in v. Coos in the Court of which dismissed, (2003); App (2002), 524, 529-47, 176 Or App rev 335 Or 32 P3d 933 J., dissenting); (Armstrong, id. at (Deits, J., dissenting); at 574-85 C. id. at 562-72 (Brewer, J., dissenting). 588-95 justiciability scope discussing origins the the This court’s cases Utsey, App consistent, at always 176 Or requirement however. See have not been law). (discussing justiciability case 537-38 on “the depends a case is whether “justiciable” Whether the action are adverse” and interests of the parties “the decision in the matter will have some whether court’s Brumnett v. effect on the of the practical rights parties.” (1991). PSRB, 402, 405, 848 315 Or P2d 1194 Mootness is one that are of the latter “Cases otherwise application principle: in a no justiciable, longer but which court’s decision will have rights effect on or of the practical concerning parties, Id. will be dismissed as moot.” at 406.

Those attributes are of an “justiciability” part effort this court to interpretive identify boundaries of “judicial and I do not with them. The power,” disagree test, however, constitutional is whether the resolution of a particular case is within the “judicial power”; attributes of a justiciable are devices to courts controversy simply help interpret constitutional text. Viewed from that apply doctrine, the mootness perspective, although rooted constitutional authorization that the courts exercise “judicial includes an power,” For important prudential component. that I below, view, reasons when explain my strict appli- cation of the mootness doctrine would have the effect of pre- venting judicial review an issue of law because the issue is one that is repetition, yet review, evades the court may exercise its discretion to justiciable decide otherwise case that has Nothing become moot.5 in the text of Article VII (Amended) compels conclusion that such a case is outside the judicial and such a case retains sufficient tradi- power, tional attributes of justiciability that court is not constitu- from tionally barred it. deciding

Decades of this court’s decisions the conclu- support sion stated During 50-year history above. of the “capable regard, agree Rehnquist In that I with the Chief Justice reached conclusion reviewing after the federal mootness cases: logical cases, “The conclusion to be drawn from these and from the historical mootness, unwillingness development principle is that while an may controversy requirement decide moot cases to the case or be connected Ill,

Art. it is an there are attenuated connection that be overridden where strong ‘capable repetition, yet evading reasons to override it. The review’ example.” is an Doe, Honig (Rehnquist, L 2d 484 US 108 S Ct 98 Ed J., concurring). C. yet evading exception Oregon, repetition, in review” pragmatic, prudential exception has viewed as a been application response consequences to the adverse of strict century ago, the mootness doctrine. Half a this court stated clarity: its rule with admirable agree ordinarily “We questions. that courts do not determine moot recognized is, however,a to There well general involving question Where the is one this rule.

public being welfare, and there is a likelihoodof it raised again future, in the a court in the exerciseofits discretion guidance decideit for the of an officialadministrative agency.”

Perry Oregon Liquor Commission, 495, 498-99, 177 v. 180 Or (1947). majority argues in P2d 406 Perry The that the reference guidance deciding an the case “for the official agency” suggests that the court viewed the administrative involving advisory opinion. case as 337 Or at 349-50.How Perry justiciable dispute ever, the case, it was in came to the courts as litigated parties, two adverse the same between likely in and this court future, issue was rectly to be raised cor rendering on the merits. saw the benefit of a decision years Perry, In the 40 sions, after this court on at least five occa Appeals on at least two additional Court technically occasions, moot, decided cases that but that were “capable repetition, yet evading came review” within appellate exception.6 cases, courts In each of those important legal questions have that otherwise would decided my view, those decisions involved remained unresolved. judicial power. proper I would overrule the this court’s decision exercise of the Kubiaczyk, 174, 188, in Barcik v. 321 Or (1995), building which, on statements several P2d 765 repudiated repetition, expressly cases, earlier evading exception. but technically Perry, court decided moot cases in State ex rel. In addition to this (1952); al., al., 331, 337, Newbry rel. v. et 196 Or 248 P2d 840 State ex Smith v. et Alexander, 283, 290, (1953); v. 197 Or 197 Or 252 P2d 550 Huffman (1963); 117, 120, (1953); Nyberg, Or 380 P2d 631 P2d 289 Linklater v. (1965). 528,402 8-C, The Court of District No. 240 Or P2d 740 Stowe v. School Whipple v.

Appeals the merits in similar circumstances issued decisions on (1981), den, OSAA, 419, 422, App 291 Or 504 and OSAA 629 P2d rev 52 Or (1984). Stout, App 692 P2d 633 71 Or majority certainly correct that the mootness closely exceptions doctrine, and the it, are related to the “judicial power” as that term is used in Article VII (Amended), consistently However, section 1. this court has prudential, viewed the contours of mootness as a rather than Oregon Grange McKay, constitutional, a matter. See State (1951), reh’g, Or 238 P2d 778 on 239 P2d 834 (1952) (“We, recognize course, will, courts in the exer- questions discretion, cise of decide moot when the conditions Perry present.”). referred to in the the pretation case are decision, With this majority entirely bases the mootness doctrine on its inter- Oregon

of the Constitution and concludes that the “judicial power” limits of the bar this court from ever consid- ering a case that has become moot. my nothing view, however, in the prohibits deciding

Constitution this court from a case that during pendency becomes moot involves issues that are the case, ofthe when the case repetition, yet evade majority review. First I consider the authorities on which the interpreting (Amended), relies in then I Article VII section why phrase turn to this case and the reasons I read the judicial power” broadly majority “the more than the does. majority

The relies on federal cases decided before in its effort to establish that “the framers of the adopted Constitution, and those who later that constitution, likely grant are power most to have understood the espoused early in the Supreme restrained sense in the Court authority adjudication is, cases—that limited to the of an existing controversy.” respect, major- 337 Or at 362. With ity’s analysis unpersuasive. major- The cases on which ity general propositions regarding relies all stand for scope judicial dispute ofthe that are not in here. As the majority acknowledges, Supreme the United States Court Hayburn’s refused to render a decision in Case, 2 US (1792), Congress adopted 1 L Ed 436 because a new statute. 358(so noting). See 337 Or at Thus, the issue in that case going again.7 reporter was not to arise The court 7 Similarly, way the Portland ordinance at issue here has been amended appears permit appealed to dispute an exclusion order to be without ordinance). becoming (describing so, moot. See 337 Or at 347-48 amendment to If opinions

Hayburn’s in footnote the of several Case included sitting judges. at 410 n *. Court, as circuit Id. members of judicial power judges expressed that the had the view Those powers concepts permit separation did not and related eligibility for veterans’ benefits when courts to determine subject by the Secre- that determination was to later review tary by Congress. Such a determination would be of War subject by merely advisory to review it would be because government. another branch of majority Ferreira, also cites United States v. (1851), directing

US L Ed 40 in which a similar statute subject claims was to federal courts to evaluate war-related Secretary Treasury. Ferreira of the further review a situation in which a court was asked thus also concerned render an “advisory” opinion because it could be that was government.The at the another debates revised branch early years in the Constitutional Convention and judicial power republic federal also make it clear that the authority “provid purely [e] advi never has included * * sory opinions Jones, Clinton v. 520 US to the Executive (1997); L Ed 2d 945 see Laurence 681, 700, 117 S Ct 2000) (3d Law 328-30 ed Tribe, H. American Constitutional doctrine). (describing scope that and The authorities basis judi majority simply that the federal the cites demonstrate provide judicial power to not authorize the branch cial does “purely advisory opinions” an the context of actual outside judicial power permit dispute. the federal Neither does the operate of the other courts to as administrative subordinates by making in that do not result determinations branches final majority princi judgments. agree the that those I with early ples our under in federal cases inform articulated the phrase standing judicial power,” “[t]he in as that is used Oregon the Constitution. evading repetition, yet within the this case would not come mootness, exception exists. if this court were to hold that such to even “advisory*’ consistently recognized a clear distinction between This court has party Oregon, proceedings opinions, in which a are not authorized in and which case, proceedings, including to judgment this seek in court. The latter seeks a they by meet the attrib “judicial power” the courts if and will be decided invoke the Oregon Medical Association v. in the text. See justiciability utes of discussed (1978) advisory

Rawls, 293, 301-02, (distinguishing between 574 P2d 1103 281 Or nonjusticiable). judgments opinions proceedings but are that seek court and advisory however, is not about case, “purely This other by to review subject determinations or court opinions” that the cases of the pre-1857 None government. branches judicial the federal addressed whether discusses majority (1) jus- that was a case deciding a court from power prevents it, initiated but parties the time that the at ticiable (3) (2) events involved litigation, moot the during became duration that recur, were of such short likely that to but were evade review. they judicial typically from other declines to on cases majority rely asserts Instead, majority 1857. decided jurisdictions after what understanding are irrelevant to that cases post-1857 intended to include framers of the Constitution because, term was when “judicial power” within (Amended) 1910), it was in Article VII (adopted used had in the same as the term meaning intended to have 1857). (drafted in Or at 362. I Article VII (Original) disagree. notes that the drafters of Article

First, majority (Amended) meaning indicated no intent to change VII However, from Article VII “judicial power” (Original). pre intended to necessarily does not mean that the drafters clude the exercise of the in the cases at issue power no intent to set here. The drafters also indicated apart that, by 1910, judi from other viewed the jurisdictions that had moot extending cial as to those cases become time, legal likely issues presented but passage York courts had majority recognizes, recur. As the New decide the late 1800s that could they properly determined to arise likely election law cases issues that were involving election had occurred though even again, particular Madden, the case moot. In re 148 NY had rendered after over form of ballot (deciding dispute 423 NE 534 recur). Similarly, election, likely because issue was (9th Clark, & Land Co. v. 415, 131 F City Irrig. Boise to rates 1904), challenge irrigation the court adjudicated the rate had the effective of though period disputed even The court noted that “the courts litigation. ended the during * * * and decided cases heretofore [moot] have entertained deciding some necessity propriety of the or partly because the might guide law which serve question presented municipal body again upon when called to act in the matter.” F131 at 419. majority’s position

It is at least as reasonable as (Amended) suggest adopted that the voters who Article VII “judicial phrase power” intended the to have the same mean- ing meaning that it had in 1857 and that that would be by many recognized that, one state and federal courts containing authority inception question in as from that is by indicate, here. As the above cases state and federal “judicial power” courts did not think that the limited their authority capable to decide moot cases that raised issues repetition, yet evading review. arising provide

Second, federal cases after 1857 guidance determining scope judicial power some in they Constitution, under the because involve the sim- judicial power ilar exercised the federal under Arti- courts cle III cases, United States Constitution. Those more- precise majority over, address the issue involved here. The early present undeniably relies on factual and federal cases that different

legal rejects case, scenarios than this later but directly leading point. federal cases that are on The federal case, course, ICC, is Southern Terminal Co. v. Pacific (1911), L US 31 S Ct 55 Ed 310 which Supreme United States Court addressed the issue raised involving here and held that it could decide a moot case a dis- pute capable repetition, yet Sig- that was evaded review.9 nificantly, the Court saw no need to discuss or deci- overrule Hayhurn’s indicating Ferriera, sions such as Case and that it perceived no conflict earlier and its between those decisions holding although words, Southern other Pacific. many Southern and the decisions that follow it came Pacific long written, after the Constitution was there is no majority opinion essentially “conclusory” dismisses as SouthernPacific Inmy view, law-announcing Or at 361 n 8. exercise of the Court’s function. 337 that, cases, correctly regarding if it adhered to its usual rule moot Court observed “defeated, by legal challenges Commerce actions could be to Interstate Commission review, orders, repetition, yet evading time the short term and at one carriers, government, rights have their determined and at another time the Pacific, 219 US at 515. The Commission without a chance of redress.” Southern properly law-determining required it to decide the case even Court saw that its role though it had become moot. they represented uniquely post-1857 think that a reason to federal could decide. view of the kinds of cases that courts single by major- a decisions cited Not one of the ity, Oregon, courts, or other state whether from the federal justiciable proposition a case that courts, stands for the that passage presents time, becomes moot but a contro- likely beyond “judicial power” versy recur, to is —until beginning court’s decisions in the late 1980s. As stated this above, I cases. would overrule those later mind, in I return to this

With those considerations presents dispute a two case. This case traditional between parties, litigated through judicial processes. In established dispute, challenged governmental however, this action only days petitioner’s lasted and therefore ended before challenge adjudicated. constitutional Thus, could be the from the (or majority ruling is correct that a from this court matter) partic- trial court, for that will have no effect on the petitioner’s challenge. ular exclusion that was the basis for saying above, however, As discussed that is not the same as judicial ruling simply “advisory.” that a trary, would On be the con- parties presenting

two court, adverse are before the opposing arguments ruling case; on the merits of the on the city’s merits would establish whether the ordinance is consti- tutional and, thus, direct, or not would have a immediate city; ruling effect on the and a on the merits would have an persons indirect effect on who be issued exclusion orders Finally critically any person in the future. other in —and — petitioner’s position face the same, would insurmountable majority places challenge hurdle that the in front ofhis to the every expire case, exclusion order: In the order will before any challenge completed, review of can in and, be every challenge case, the then will be dismissed as moot.10 unique.

Petitioner’s dilemma is not There are other challenged cases which the brief nature of the action or the that, year, City I note earlier this the Portland Council amended ordi stay nance involved here to the effectiveness of an exclusion order if the order is ordinance). that, appealed. agree (quoting See 337 Or at 347-48 n 1 amendment to I any challenged if the effectiveness of an exclusion order —or similar order that is stayed challenge litigated, court —is while the to the order is then the case does not yet repetition, become moot and there is no occasion resort evading to the mootness doctrine. renders other- and immovable deadlines of short

expiration the defendant has moot, cases not because wise justiciable its chal- or the has abandoned plaintiff its changed policy Moreover, in any of time. by lenge, simply passage but time issue, the passage case the same raising subsequent cases, a moot.11 In those will cause the issue become again within that controversy plainly court is with presented time that it is filed but at the judicial power” “the ordinary litigation. moot conduct during becomes courts are barred decision majority’s significantly from such cases deciding Constitution Oregon and ensures of courts “judicial power” Oregon diminishes the and constitu- authority issues of regulatory important tional law will remain undecided. the courts view, Oregon the of my “judicial power” Madison, Ed Marbury v. 5 US L not limited. Since

is so courts have with Chief (1803), agreed 60 state and federal duty and of province Marshall: “It is emphatically Justice the law is.” Id. at 177. to what say the judicial department con deciding in the course of Courts what law is” “say and with that Consistently judicial power tested court cases. courts requirements, of separation powers with than that of their rather province, have deemed it to be long executive, to determine finally or legislature and statutory regula of constitutional meaning provisions, law.12Within the structure enactments, and the common tory word, only the last and this court has Oregon judiciary, challenges person admin a a short-term Similar mootness issues arise when see, Perry, (liquor expires, e.g., agency 180 Or at 495 com order that then istrative prayer days); expired claims that a sectarian at after 60 a student mission order ceremony unconstitutional, graduation graduation is held while is and the school 40, 574, pending, Kay Douglas 303 Or 738 P2d v. David Sch. Dist. No. the case is challenges (1987), den, (1988); political party 484 US 1032 or when a cert finally statute, interpretation resolved an election but the case cannot be state’s 437, Oregon, Oregon Republican Party E.g., v. State 301 Or the election. before (1986) challenge (dismissing party’s state determination as moot to 722 P2d 1237 voters, stamped envelopes encourage voting providing to plan absentee unlawful). forms, request along was with absentee ballot Oregon, See, e.g., 314 Or 840 P2d 674 Club v. State Automobile (1992) (“We underground storage is a ‘tax’ under tank assessment hold that the may 3a(1)(a), that, legislature IX, matter what label the section no Article ‘assessment,’ ‘fee,’‘excise,’‘tithe,’ fuel, whether it be attach to a tax on motor vehicle term, to the listed therefrom must be dedicated the revenues derived or some other added.)). (Emphasis purposes.” authoritatively.” the law of this state court can “describe this 416, 939 P2d 608 325 Or Motors Corp., Jones v. General (1997). role —and not to fulfill that For the courts guess entities to as governmental private parties leave law —the consistent with actions are particular whether courts, to allow the interpreted should be “judicial power” that become moot circumstances, to review cases appropriate involve events of such brief they because during appeal duration. Doe, Honig Justice reasoned Rehnquist

Chief L Ct Ed 2d 484 US 108 S that the J., concurring), repetition, C. (Rehnquist, to mootness was evading prudential review” yet after the judicial resources] method to avoid “squander [ing J., at 332 C. underway.” (Rehnquist, decisional Id. process the rea- authority similarly Another describes concurring). excep- repetition, yet evading sons that a “capable for the jus- to mootness does not undermine the reasons tion ticiability requirement:

“(i) conduct, past, even if continues to an actual course of thereby litigation [es] frame in a factual context and focus (ii) decisionmaking; the unlawful causation of a judicial injury deprives any a defendant of moral entitlement past to freedom from (iii) intervention; sharp, adversar- despite mooting presentation ial of issues occur (iv) outcome; a in the since plaintiffs personal a defendant who has caused stake conduct would other- wrongful forbidding it, judicial free decision repeat wise remain any objectionable in advisory opinion such is not an conduct (v) sense; in the resolution of an judicial investment importance squandered.” not be public issue of should Meltzer, Fallon, L. and Daniel J. Shapiro, Richard H. David and the Federal Hart & The Federal Courts Wechsler’s (4th at 347-50 1996); ed see also Tribe System § yet evading repetition, basis for (describing mootness). VII with Article That is consistent position 1, and section (Original), Article VII (Amended), section with Constitution and III, Oregon Article section of the in the text of Nothing court. by decades of cases decided this the conclusion compels of those constitutional any provisions that this court is powerless to decide a case that was justici- filed, when able but was destined to became moot the mere passage days. of 30 The constitutional grant “judicial to the courts should not so power” narrowly be construed.13 reasons,

For the I with the foregoing although agree majoritys case, of this I with its conclu- disposition disagree (Amended), sion that the of Article VII section 1, of the Constitution does not extend to cases moot during litigation become but involve issues process, that are evade review. capable repetition, yet J., in

Riggs, joins concurring this specially opinion. however, argue, every 13I do not that the courts should decide case that it becomes moot because involves events of short duration. The mootness doctrine important roots, though, argued above, has constitutional even as I have its con exceptions part many cases, prudential. appropriate tours and are in it will be filed, for a court to dismiss a case that has become moot after it has been notwith standing yet evading repetition, that the issue is one review. And the may order, expiration passing fact that a case has or become moot of an deadline, status, party’s change age of a or a or well be relevant this deny petition court’s consideration of whether it allow See should or for review. review, (including, among granting discretionary ORAP 9.07 criteria for whether important consequences pub issue arises often and whether of decision are to the lic). recognize disagreed "repe I also different courts have as to whether party degree tition” as of the circumstances must involve the same likelihood that the circumstances will recur. Tribe at 349. If this court were to adopt position advocate, in the that I then those issues would be addressed con cases; precise specific text of there is no occasion to consider the outlines of the exception opinion. in this

375

APPENDIX (Ala Griggs n 4 411, 412 Bennett, 710 So 2d v. Alabama: 1998) yet repetition, “capable (recognizing evad- of doctrine). exception ing the mootness Dep’t A.H., P2d Revenue, v. 880 CCESD Alaska: State of (Alaska 1994) (recognizing “public inter requires doctrine, which to the mootness est” (2) (1) capable repetition, of of that an issue be interest). (3) public evading review, of considerable Dep’tof Transp., 497, Ariz 799 495, Sherrill v. Arizona: (“We that have will consider cases P2d public significant questions of moot when become recur.”). likely presented importance and are are Teachers, Pulaski Ass’n Classroom Arkansas: Wilson v. (1997)(“Anexcep 221,223 298, 301, 954 SW2d 330 Ark allows review doctrine, however, tion to the mootness pre involving public appeals and the interest for litigation.”). of future vention (KNBC-TV), Superior Subsidiary Inc. v. California: NBC n 6 6, n 980 P2d Court, 20 Cal 4th (1999) (“[A]s reviewing courts in this of other scores posture concluded, we determine have same pres- technically although present moot, it case is affecting public important question interest ents ”). yet evading ‘capable repetition, review.’ that is Humphrey Co., 734 P2d Dev. v. Southwestern Colorado: (Colo 1987) (recognizing exceptions two 637, repeti- “capable matters doctrine: one for mootness evading yet if “the matter review,” and the other tion, importance great public question or an involves violation”). recurring allegedly constitutional 378-86, 660A2d Rowe, 233 Conn Loisel Connecticut: (1995) (including lengthy discussion 323, 328-32 theory the doctrine of the elements review”). yet evading repetition, Darby Gunning Delaware: v.New Castle Ass’n, Ed. Bedford (Del 1975) (“[I]n 336 A2d n 1 view of the sub public statute, stantial interest in the we consider the appeal public- merits of the under the well-established doctrine.”). interest-exception-to-the-mootness (Fla 2000) State, Florida: N.W. v. 767 So 2d 447 n 2 (“[BJecauseperiods supervision community or control may expire before a case reviewed, be this case presents controversy capable repetition, yet evad- ing merits.”); review, which should be considered on its (Fla Capital Weekly Ervin v. Post, 97 So 2d 1957) (“We appellate reiterate that an court does not jurisdiction though lose of a cause even the matter in controversy has become moot as to one or more of the litigants involving public in cases wide interest or authority where such matters involve the duties and public officials the administration of the law and are general people. interest to the The future administra- by public requires tion of the election law officials hearing appeal.”); Sterling of the merits of the (Fla County, App Brevard 776 So 2d 281, 285 Dist Ct 2000) (“[C]ourts always are free to address the merits of an action which has been deemed moot if the action is repetition yet evading presents review and issue.”). important an Georgia: Corp., 120, 121-22, 508 Collins v. Lombard 270 Ga (1998) (“[T]he SE2d term ‘moot’must nar be

rowly construed to exclude from mootness those mat intrinsically ters in which there is insufficient time to existing obtain relief afor claim common to an always class of sufferers. be, Since there would in such controversy, longer cases, a live albeit no between the jurisdiction parties, named would not be foreclosed (Citation prohibition against advisory opinions.” omitted.)). Ing, Hawaii: 379, 381, 441 138, 140 Johnston v. 50 Haw P2d (1968) (‘When question public involved affects the likely things interest, and it is in the nature of questions arising similar in the future would likewise become moot before a needed authoritative determina- appellate made, tion invoked.”). court can be Forney, 98, 101, Idaho: Seed Selkirk Co. v. 134 Idaho (2000)(stating 798, 801 P2d that courts have the discre public tion to decide cases that are in the interest and review”). “susceptible repetition yet evading are Illinois: In re H., Barbara 183 Ill 2d 702 NE2d (1998) (recognizing exception to the mootness complaining party doctrine when the demonstrates “(1) challenged

that: action is in its duration too fully litigated prior short to be to its cessation and expectation there is a reasonable that the same com plaining party subjected would be to the same action again”); In re a Minor, 247, 257-58, 127 Ill 2d 537 NE2d (1989) (recognizing exception 292, 296 to the mootness questions great public doctrine for both of interest repetition, yet evading issues that are of review”). (Ind 1991) (stat- Indiana: In re Lawrance, 32, 579 NE2d 37 ing that the Indiana Constitution lacks a “cases and requirement, opening controversies” thus the door for questions “great public courts to decide of interest” that recur). likely are County Iowa: Polk v. Iowa Dist Court, 594 NW2d Sheriff (Iowa 1999) (recognizing exception 421, 425 public policy mootness doctrine for cases that affect “may yet repeatedly, appellate and that arise evade review”). Shirley Employees Kansas: v. Retail Store Union, 225 Kan (1979) (recognizing 470, 472, 592 433, P2d 434-35 exception “capa- to mootness doctrine for cases that are repetition, yet evading ble of review,” and that are “of public importance”). 1997)

Kentucky: May (Ky Coleman, 426, v. 945 SW2d (“However, general apply rule does not in a situa- * ** litigation likely repeated tion in which is to be or ‘capable repetition, yet evading where the issue is review.’ ” (Citations omitted.)). (La 2000) Taylor, 769 So 2d Louisiana: State (“Should moot, it is now we decline the issue because permanently escape consideration could our the issue appellate that window of and evade review because ordinary appellate than the time for review is shorter delay.”). Sec’y State, 105, 4, 1997 Me 693 A2d

Maine: Fredette v. (1997) (“Because 1146, 1147 the issue raised capable repetition and will evade review if Fredette is appeal, the merits ofhis we decline to we do not address moot.”). appeal dismiss the as Maryland: 576, 584-85, Md 640 A2d Parker, State v. (1994) (“[E]ven controversy at if no exists precise review, a not deemed moment of case will be controversy parties ‘capable

moot if the between ”). repetition, yet evading review.’ Worcester, 364 Mass Massachusetts: Karchmar v. (1973) (recognizing “capable of 570, 578 301 NE2d repetition, yet evading to the moot public importance ness doctrine when an issue is declaratory makes relief when the duration of the issue difficult). very Michigan Michigan: Bd., 461 Mich Franciosi v. Parole (2000) (“[W]e opinion issue this 348, 604 NW2d repetition evading while the issue is because * * *.”). our review (Minn 1989) Schmidt, 443 NW2d Minnesota: re (“Notwithstanding this aversion to consideration questions, appellate have carved out an moot courts yet ‘capable repetition exception provided the issue is of * * * appropriate, evading deemed this review.’ When applied exception.”). court has City Mississippi: Hemphill Laurel, 760 So Constr. Co. of (Miss 2000) (“While us 720, the issue before 2d 724 parties at this insofar as it affects these be academic repeti- presented capable of here time, the situation might again Hemphill be unable to Parties such as tion. meaningful issue, review of their claims. have

379 Grand County Ex Jones therefore, moot.”); parte is not (Miss 1997) (“However, 1308, 2d 1313-14 705 So Jury, of moot cases adjudication prevents the doctrine which which are capable for those cases an provides exception (Citation omitted.)). review.” yet evading of repetition Court, 665 SW2d Circuit In re 1983 Budget Missouri: for (“[W]e (Mo 1984) the case decline to dismiss 943, 943 n 1 ‘capa important question since it presents as moot ”). review.’ yet evading ble of repetition, 230, Ass’n, 265 Mont High Montana: J.M. v. Montana Sch. (1994) (“[W]e note that P2d 1033 also 241, 875 in the litigation proc- the amount of time inherent given to entertain ess, original pro- our reluctance given under extraordinary writs ceedings special except circumstances, nearly any it would be for impossible Court, case such as this to ever reach this via the usual during within the time which litigation/appeal process, was in effect. To injunction mechanically apply doctrine of mootness under such circumstances would of effectively deny remedy appeal.”). Dawn, 384, 391, 519

Nebraska: State v. NW2d Neb (1994) (“Because affects the public this situation review, interest and is repetition, yet evading we now resolve question.”). 388, 401,

Nevada: Del v. Bd. 114 Nev Papa Regents, (1998) P2d the Board chose not to (“Although release, issue the our decision on the merits of this is not moot the issue resolved is ‘capable because appeal ”). yet review.’ repetition evading Comm’r, Asmussen v. N.H. Hampshire: Dep’t New (NH 2000) 145 NH 766 A2d Safety, yet (recognizing “capable repetition, evading doctrine). to mootness J.B., Div. Youth & Servs. v. Jersey: Family New N.J. NJ 112, 119, 576 A2d that court (stating would hear the case because issue was of “considerable repetition, yet and was public importance” review”). evading

380 New Mexico: Pinell Bd. County Comm’rs, 452, v. 127 NM (1999) 456, 503, 982 P2d 507 to (recognizing exception

mootness doctrine when issue is of “substantial public interest” and is “capable repetition, yet evading (citation omitted)). New York: ex rel. People Brown, 422, Maxian v. 77 NY2d (1991) 223, 224 NE2d to (recognizing exception

mootness doctrine when issue is “capable repetition, review”). yet evading Hardin, 358,

North Carolina: 370, Simeon v. 339 NC 451 (1994) (court 858, SE2d 867 has a “duty” to address otherwise moot case when the involved is a “question interest”). matter of public T., 174,

North Dakota: In re E. 2000 P5,617 470, ND NW2d (2000) (“[I]ssues 471 characterized as moot will none- theless be heard this court if the controversy is capa- review, ble of or if the repetition, yet evading contro- versy is one of great public interest involves the officials.”). authority of public Ohio: ex Dispatch Louden, State rel. Co. v. 91 Ohio Printing 61, 64,

St 3d (recognizing NE2d repetition, yet evading review” exception the mootness doctrine when “the challenged action is too short in duration fully to be before its ces- litigated sation or and there is a expiration, reasonable expecta- tion that the same will complaining party subject be the same action again”).

Oklahoma: Federal Land Bank v. 756 P2d Story, (Okla 1988) (“[Mjootness will not act as a bar when the event challenged ‘capable repetition, yet evading is ”). review.’ In re 546 Pa 686 A2d

Pennsylvania: Hasay, (1996) (“[T]his matter moot. It is technically nonetheless as an to the mootness justiciable doctrine because it is clearly ‘capable repetition, yet ”). review.’ evading (RI 1995) 652 A2d Blais, Island: Blais v.

Rhode * * *, us is moot we before question (“Although matter It is a importance. it is a matter of public believe review.”). which evade repetition, County Sch. Dist. Charleston South Carolina: Charleston 174, 180, 519 SE2d Comm’n, Election 336 SC County (“A (1999) jurisdiction, court take 567, 570-71 mootness, repe- if raised is of ‘capable the issue despite ” (Citation omitted.)). evading tition but review.’ Ct., Journal v. Circuit 283 NW2d Rapid City South Dakota: 1979) (“A (SD 563, well-recognized exception 565-66 rule, however, will lie jurisdiction is general if the expired even the order attacked has though is one underlying dispute parties ‘capable between ”). yet evading review.’ repetition, (Tenn 1985) Drake, 604, State v. Tennessee: 701 SW2d 609 (recognizing exception to mootness doctrine the con- text of a motion for closure or restrictive order because review”). yet the issue is repetition evading LaFleur, 911, Texas: Tex. Pub. v. 32 SW3d Dep’t Safety (Tex 2000) 913-14 App (recognizing exception doctrine public mootness when issue is of “considerable interest” or could find themselves when “future parties in the position”). same (Utah 1997) (“While MLC, 380,

Utah: State 933 P2d 382 we refrain from moot typically adjudicating questions, alleged we to this rule where the recognize exception ” is review.’ wrong ‘capable repetition yet evading (Citation omitted.)). 92.27, 167 379, 380-81,

Vermont: In re PCB File Vt 708 No. (1998) 568, (recognizing “capable repeti A2d 569-70 tion, when the action’s yet evading duration is too short to and there is fully litigated be complaining reasonable same expectation action). to the same again subject will be party Lines, Inc., 257 Va Taxation v. Delta Air Virginia: Dep’t of (1999) (“Jurisdiction 419, 427-28, 130, SE2d is * * * if the necessarily underlying dispute not defeated * * * ”); yet evading ‘capable repetition, review.’ is one App Corp., 405, 412, 488 Va SE2d In re Times-World (1997) (“The Supreme frequently Court has 677, 680-81 * * * necessarily recognized jurisdiction is not that its by practical termination of a contest which defeated underlying dispute short-lived nature. If the is yet evading ‘capable repetition, review,’ it is not (Citation omitted.)). moot.” Washington: ex rel. Yakima Amusement Co. v. State County, 759, P2d

Yakima 192 Wash (1937) (recognizing exception to mootness doctrine interest”), question “great public is one of over when part grounds & on other Schneidmiller ruled Faires, Farr, 56 Wash 2d 355 P2d 824 Inc. v. (1960); Publ’ns, Kurtz, 2d Federated Inc. v. 94 Wash (“We agreed, however, 615 P2d have continuing if matters of to review otherwise moot cases (Citation interest are involved.” and substantial omitted.)). Virginia: Pancake, State ex rel. Jeanette H. v. 207 W West (2000) (“A 154, 159-60, Va 529 SE2d 870-71 case is litigation though party

not rendered moot even a change longer had a in status such that he no has a has litigation legally cognizable interest in the or the issues vitality, if their adversarial such issues are have lost review.”). repetition yet and will evade Gerhardstein, 141 Wis 2d Wisconsin: State ex rel. Jones (1987)(“[T]his 710, 723-24, 416 883, 888-89 court NW2d exceptions general to this rule has carved out certain importance; great public where: the issues are of constitutionality precise involved; the sit of a statute is frequently consideration arises so uation under guide courts; is essential to the trial definitive decision likely again and should resolved the issue is to arise be capa uncertainty; question or, a the court to avoid likely yet repetition and evades review ble usually appellate process cannot be com because frequently pleted undertaken cannot even be practical in a effect a time that would result within parties.”). upon the Sherman, Davidson v. (Wyo 848 P2d

Wyoming: 1993) to the mootness doctrine (recognizing exception controversy “capable repeti when a case presents review”). tion yet evading

Case Details

Case Name: Yancy v. Shatzer

Court Name: Oregon Supreme Court

Date Published: Sep 16, 2004

Citation: 97 P.3d 1161

Docket Number: CC 0008-08313; CA A114776; SC S50280

Court Abbreviation: Or.