individuals and who collected signatures for initiatives in oregon in the two thousand and four cycle requires about seventy five thousand valid signatures for a statute and about one hundred thousand valid signatures for a constitutional amendment after they collected about ninety percent of all of the signatures that they were collecting which were due to lie second two thousand and four the secretary of state in june two thousand and four just a month before the deadline suddenly told them about new previously unknown and never before applied rules pertaining to the signatures and dating of initiative sions not by the voters but by the circulators of the petitions themselves these rules to the form of a two column one page piece of paper handed to the point of sale in june of two thousand and four with with entirely new rules that ended up disqualifying for each of them in the range of five ten thousand of the signatures on their initiative titian's also before we get into issue may i suggest we talk a little bit about what the district court called witness which might also be called standing in other words is there a live controversy here to the extent that even if all of the disallowed signatures were added in that the third position would still feel to meet the minimum them or that is what the district court concluded ten thousand other signatures were being disqualified they had additional cost and market monumental effort to get there do either qualify their measures for the ballot or make additional efforts to qualify and fail so it seems to me that th ultimately did qualify for the ballot they did collect enough signatures despite the fact that ten that approximately ten thousand or so were disqualified by these new you know really what we believe it really observed rules so that  yes i believe we do and we decided in the in the reply brief in particular the expensive discussion of this recently by the court the september in the groucho versus the county case which also we had the event basically the same  action again in the future that and that is not what the with the ninth circuit adopted in inclusive just that just three months ago in addition it sort of becomes a charlie brown lucy kind of a problem i think and that is the recall the scenario where where charlie brown tries to put ball and lucy always promises she won't pull it out from under him and then at the last minute always does you would think that at some point carly brown would become discouraged and stop trying to take the football  that kind against the argument that this particular scenario your honor i don't believe so because the particular scenario we're referring to is one in which the secretary of state at the last minute imposes rules unwritten the last minute he came up with another you know another page of rules so even though now he is adopted not another three pages of rules he doubted those in april of two thousand and five our argument is and what we are asking as he did in this case the referee actively the signatures that it had already been collected the measures that we're talking about here were qualified for circulation in the spring of two thousand and three and so they went through more than a full of collecting signatures or they had any idea that the secretary of state would then be adopting would be imposing and adopting these new rules so that's one way that that i think it's it doesn't defeat it another is that the rules that are adopted by the secretary of state are different than the unwritten rules that he imposed several of them are different for example under the unwritten rules he said that he would accept a dating of a sort of a circulat signature in european format that is where you go year month day or you don't you don't do day month year the unwritten rules however the new written rules that were you not allow that there are many other differences between the unwritten rules and the new written rules but there are really two fundamental points one is that we're asking the court to tell the secretary of state that you can't you can't impose unwritten rules after the signatures have been collected pursuant to the written defect or errors the finding in the circulator signatures have nothing to do with a little with the validity of the voter signatures which are independently verified by the government and in this case besides you throwing out thousands of of she any way written down anywhere it worked and they'd in any way to play this were to anyone else that altering the date that is correct making a correction to a date would invalidate the signatures on the sheet the other major had a refuge just briefly yesterday if your they leave in place what was the unwritten rule that if you start writing a date like a three anything you cross that outward kind of right over it before under the under the new rules that would still disqualify the entire sheet the only way that you could resurrect that according to the new rules is if you did not make such an alteration but instead if you had written the entire date in correctly you would then write the entire date correctly and the circulator would then sign the sheet the second time it doesn't make sense well we're not going to tell the secretary of state what rules to write the challenge you have to make a guess that for whatever reason the rules are illegal feel to comply with oregon statute whatever so i guess i can back my question has not the secretary of state at least issued a rule with respect to that board of elections actually did adopt written rules and did promulgated them but the circuit court threw them out because they were not sufficiently conveyed to the circulators here we've got ninety percent of all the signatures collected before anything  so what we're asking this court to do is declare that the practice of applying unwritten rules retroactively to disqualify signatures that have already been collected violates the rights of the plaintiffs in addition we're asking for a declaration that it is a it is an unconstitutional and irrational sanction for trivia when you find if there are critical errors on a circle in a circular signature or date i wouldn't even call them  that really none of that relief at this point can be granted you know a live controversy there is no life versus you concerning what the plaintiffs were arguing about when  capable of repetition the at evading review and concluded in that in that case that it applied in a particular way in this case it doesn't apply in the same way certainly that principle exists under federal law perhaps you should lay that out so that we understand the distinction that you're making well here in directly addressing capable of repetition evading review we have is good the reason why this case or at least a key reason why this case is not capable of repetition yet evading review is not only that the two number one most if not all of the plaintiff's claims are based on what they like to call the secretary's application of unwritten rule there is now a written rule the written rule allows circulators to avoid the kinds of mistakes that led to the disqualification of of well if the secretary of state were to do that that's my conceivably be a problem if there were no fear no ifs in this case it's purely speculative of course that anything like that would opportunity to challenge the rules on their face which is done in under the oregon administrative procedure act under oregon law so if if these rules are in fact which we believe that they're not but if these rules were on their face invalid under federal constitution they can be they can be struck down by or in reply brief they rely on what they term to use their quote lingering palpable effect unquote for the argument that  tucson was prison litigation the members of this quarter probably familiar with it having seen at least five times prison litigation in which the fifth time the case was in front of the court inma inmates in serrano the plaintiffs have brought an action seeking to require the city to issue him a permit under a city ordinance to put new grass on sidewalks in the course of the litigation the city amended its ordinance to eliminate the permit requirement in the port this court held that the case moved as a result of that action by the city ordinance and that in each of those cases the common thread is that the defendant took action voluntarily to eliminate your problems resulting in this court declaring the case moot and that's exactly what the secretary of state has done in adopting this new rule in any event but nor is that case even remotely on point what happened in the princeton case is that an opinion of the state bar that had concluded that that in question but of course the opinion although suspended was still sort of out there for people to read to read the court held that the case wasn't moot because of the continuing chilling effect of of that opinion i think that's that's easily this distinguishable first of all on the fact that case unless the state supreme court had changed the rule it was clear that that opinion was coming back in full force and of course this th question of law it is still out there if that's a published opinion it's still out there for people to read and people who are trying to confine their affairs to lawful kind will still continue view that as what the law on the circuit is likely to be if the case if the issue arises again in a live controversy that that simply has no parallel in this case simply no parallel princeton plainly false under oregon law as a matter of law as a matter of law by formally adopting the new rule the secretary of state has legally bound himself to  that new rule after problem by the district court that the secretary has never rejected signatures based on the subject of the initiative petition the sector the district court found no evidence of bias fish in the plaintiffs have not that under the new rule and as i explained in the read brief the titian hers may submit for circulators who are not registered voters in oregon not more so for unregistered for people who are not registered to vote in oregon as the secretary has for people who are registered to vote in oregon there is no credible claim here of said that the new rules that it's complicated in essence is about the practice of coming up with rules after the certification period again but if i understood the street correctly he said that before these new rules were promulgated there was already an existing set of rules and that didn't prevent the secretary in this case from augmenting or adding to the rules after the after the period for gathering the signatures was certified began well i think what counsel  in textual narrative form rather than in rule form but it is as a whole adopted as an administrative rule what what the plaintiffs like to refer to as unwritten rules are simply to deal with it that's that's what's being referred to as long as unwritten rules it's it's just the initiative and referendum manual it is is published on a regular two year basis and it's updated and regularly adopted as as rule it's given the detail of of the new rule that's in place and the clear instructions on how to do signature sheets and how to correct mistakes if they're made and avoid disqualification there's it would be purely speculative to suggest that there's going to be some new raft in the future of unwritten rules to the rail petition gathering after i believe that the merits are outside of this court's jurisdiction and there's little reason to discuss but there are a couple key points that i would like to would like to make  particular the issue concerning voters rights which the plaintiffs tried to argue separate from the rights of chief petitioners and circulators our point is simply that under the fundamental structure of of the initiative this voters have to rely on chief petitioners and circulators to comply with the law if the secretary of state's dated signature requirement which is a pretty rudimentary requirement very simple to comply with if it's lawful compliance with a law by others namely chief petitioners and circulators and if a chief addition or or a circulator doesn't comply with a valid law the voters signature is that's just a product of these structure of the initiative system and it's unavoidable voters don't have the right independent of of either chief petitioners or circulators to independently submit their own signature to the secretary of state and have it counted that's the only point we're trying to make if the requirement were invalid then it would be invalid as to voters but if the requirement is valid it's valid as to voters on voluntary suspicion two points first the secretary of state is never gets about the practice of applying unwritten rules you simply will not find that in any document filed in this case or any group that's filed by the secretary of state as you pointed out there was already sixty six pages on constitutional your honor no because this case in this case was not deal with the rules that were adopted ten months after the secretary of state applied unwritten rules to my client's petitions right now if you want to  that ology established under oregon law to challenge as ruling and those challenges are far proceeding and right court on voluntary cessation however it is the burden of the defendant to show that the practice as has the practice complaining about is the practice of applying unwritten rules retroactively that the kind of the practice which has never been disavowed and the cases even the faces of the defendant sites indicate that the burden of demonstrating move this is a heavy one is carried by the defendant eradicated the effects of the alleged by a lation mere voluntary cessation of allegedly illegal conduct does not move that case if it did the work would be compelled to leave the defendant free to return to his own ways and that's exactly the circumstance here if does not make a ruling that the secretary of state cannot imply apply unwritten rules wrecker actively in the same conduct ham occur in the future and will be nothing to prevent it will just be back in the same circumstance we were in the first time that is the unwritten rules are sprung at the last minute you immediately go to court to try to correct it and you end up not you end up not getting a ruling on the merits and we did not get a ruling on the merits here the hard to get accurate assertions on not disa please take a look at the record there is no where the secretary of state disavows using unwritten rules in the future of the electability rule continues there are a variety of problems with the with the new rules but we you know but then again what we're complaining about here is application of unwritten rules and application of of rules which disqualify voter signatures simply because the circulator make some sort of a trivial so called error and finally i hea