460 July 16, 2015 No. 26

IN THE SUPREME COURT OF THE

STATE OF OREGON

Marquis COUEY,

an individual,

Petitioner on Review,

v.

Jeanne ATKINS,

in her official capacity as

Secretary of State of Oregon,

Respondent on Review.

(CC 10C14484; CA A148473; SC S061650)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 24, 2014.

Daniel W. Meek, Portland, argued the cause for petitioner on review. Linda K. Williams, Portland, filed the 

briefs.

Rolf Moan, Assistant Attorney General, Salem, argued 

the cause and filed the brief for respondent on review. 

With him on the briefs were Ellen F. Rosenblum, Attorney 

General, Anna Joyce, Solicitor General, and Michael S. 

Shin, Assistant Attorney General.

Alan J. Galloway, Davis Wright Tremaine LLP, 

Portland, argued the cause and filed the brief for amicus 

curiae American Civil Liberties Union of Oregon, Inc. With 

him on the brief were Timothy R. Volpert and Kevin Díaz.

Robert M. Atkinson, Portland, filed the brief for himself 

as amicus curiae.

LANDAU, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are reversed, and the case is remanded to 

the circuit court for further proceedings.

______________

* Appeal from Marion County Circuit Court, Claudia M. Burton, Judge. 257 

Or App 434, 306 P3d 778 (2013).
Cite as 357 Or 460 (2015) 461

Case Summary:The decision of the Court of Appeals and the judgment of 

the circuit court are reversed, and the case is remanded to the circuit court 

for further proceedings. Plaintiff, a paid petition circulator, brought an action 

against the Secretary of State, challenging former ORS 250.048(9), an election 

law prohibiting paid petition circulators form circulating petitions on a paid and 

volunteer basis at the same time. During the pendency of the litigation, plaintiff 

stopped working as a paid petition circulator and his registration expired. The 

trial court granted summary judgment for the secretary, concluding that the case 

was moot. The Court of Appeals affirmed. Held: (1) The affidavit submitted by 

plaintiff, asserting that he intended to continue working as a paid petition circulator and that he would like to support petitions concerning environmental issues 

on a volunteer basis is insufficient to overcome mootness; (2) the action, however, 

may be reviewed under ORS 14.175, the statute allowing Oregon courts to hear 

otherwise moot cases that are capable of repetition, yet evading review; and (3) 

the legislature acted within its authority in enacting ORS 14.175. 

The decision of the Court of Appeals and the judgment of the circuit court are 

reversed, and the case is remanded to the circuit court for further proceedings. 
462 Couey v. Atkins

LANDAU, J.

ORS 250.048(9)1 provides that a person who is registered with the Secretary of State to collect initiative petition 

signatures for pay may not, “at the same time, obtain signatures on a petition or prospective petition for which the person is not being paid.” Plaintiff initiated this action against 

the Secretary of State, challenging the constitutionality of 

that statute. At the time he initiated the action, he had registered to collect initiative petition signatures for pay and 

had been hired to do just that. At the same time, he wanted 

to collect signatures on other measures on a volunteer basis. 

He contended that ORS 250.048(9) violated his constitutional rights of freedom of expression and association.

During the pendency of the litigation, however, 

plaintiff stopped working as a paid signature collector, and 

his registration expired. The secretary moved for summary 

judgment on the ground that the action had become moot. 

Plaintiff opposed the motion, submitting an affidavit stating 

that he intended to work as a paid signature collector in the 

future and that he might be interested in collecting signatures on a volunteer basis on other measures at the same 

time. He also argued that, even if his action had become 

moot, the action nevertheless should proceed because it 

is “likely to evade judicial review in the future,” and ORS 

14.175 expressly authorizes courts to adjudicate such cases.

The trial court entered summary judgment dismissing the action on the ground that the action had become 

moot. The court concluded that, because plaintiff had failed 

to ask for expedited consideration, his is not the sort of case 

that is likely to evade review under ORS 14.175. The Court 

of Appeals affirmed, and we accepted plaintiff’s petition for 

review.

On review, the case presents the following issues for 

us to resolve: (1) whether the averments in plaintiff’s affidavit are sufficient to establish that his action is not moot; (2) 

even if the action is moot, whether it is nevertheless justiciable under ORS 14.175 because it is likely to evade review 

1 In 2013, the statute was renumbered as ORS 250.048(10). Or Laws 2013, ch 

519, § 1. Throughout this opinion, we refer to the version of the statute that was 

in effect at the time of the filing of the action.
Cite as 357 Or 460 (2015) 463

within the meaning of that statute; and (3) if it is subject to 

ORS 14.175, whether the legislature possessed the constitutional authority to enact it. The case thus requires us to 

examine the subject of justiciability—in terms of this court’s 

own jurisprudence on the rule against deciding moot cases, 

the intended meaning of the statutory exception to that rule, 

and the legislature’s constitutional authority to enact such a 

law. It does not require us to reach the merits.

For the reasons that follow, we conclude that: (1) 

plaintiff’s affidavit is insufficient to establish that his 

action is not moot; (2) the action nevertheless is likely to 

evade judicial review under the standard set out in ORS 

14.175, because it is not necessary to request expedited consideration to meet its terms; and (3) the legislature does 

possess the constitutional authority to enact the statute. 

Accordingly, because we conclude that the case is justiciable 

under ORS 14.175, we reverse the decision of the Court of 

Appeals, reverse the decision of the trial court, and remand 

for further proceedings.

I. BACKGROUND

A. Regulatory context

We begin with a brief summary of the regulation of 

the initiative petition signature collection process to provide 

context for our discussion of the relevant facts. The powers of 

initiative and referendum reserved by the people in Article 

IV, section 1, of the Oregon Constitution allow them to enact 

statutes, adopt or reject bills passed by the legislature, 

and adopt amendments to the state constitution. The parties who seek to place a statewide initiative measure on an 

election ballot, known as the chief petitioners, must submit 

to the Secretary of State the text of the proposed measure 

along with the required number of sponsorship signatures. 

See ORS 250.045(1) (requiring filing of text of prospective 

petition with signatures of at least 1,000 electors). There follows the certification of a ballot title, an impartial summary 

of the proposed measure. ORS 250.065 to 250.085. Once 

the ballot title has been certified, the chief petitioners are 

responsible for collecting signatures from registered voters 

who support placing the measure on an upcoming election 

ballot. Depending on whether the measure proposes to enact 
464 Couey v. Atkins

a statute or to adopt a constitutional amendment, the number of required signatures varies from six to eight percent 

of the total votes cast for governor at the last election. Or 

Const, Art IV, § 1(2)(b), (c). Chief petitioners have a limited 

time to collect those signatures, which must be submitted to 

the Secretary of State at least four months before the date of 

the next regularly scheduled general election. Or Const, Art 

IV, § 1(2)(e).

The process of collecting initiative petition signatures is regulated by statute and by administrative rules 

promulgated by the Secretary of State. Chief petitioners are 

authorized to hire paid signature collectors. ORS 250.045(2). 

But they must notify the Secretary of State of their intention 

to do that, and the petition itself must include a statement 

that one or more persons is being paid to collect signatures. 

ORS 250.045(2), (7).

Before a person may be paid to collect initiative petition signatures, he or she must register with the Secretary 

of State, specify for which measures signatures will be collected, and complete a training program prescribed by rule 

by the secretary. ORS 250.048(1), (2). That registration 

remains in effect for a limited time; it expires four months 

before the next general election, when initiative petition signatures are due. ORS 250.048(3).

A registered paid initiative petition signature collector may not collect signatures on other measures on a volunteer basis. ORS 250.048(9) provides: “A person registered 

under this section [to be a paid collector] may not obtain 

signatures on a petition or prospective petition for which the 

person is being paid and, at the same time, obtain signatures on a petition or prospective petition for which the person is not being paid.” The statute further provides that the 

Secretary of State may not count any signatures that were 

collected in violation of that restriction. Id.

B. Facts

The relevant facts are few and undisputed. We 

review them in the light most favorable to plaintiff. ORCP 

47 C; Towe v. Sacagawea, Inc., 357 Or 74, 77 n 2, 347 P3d 

766 (2015) (on review of summary judgment, evidence is 

viewed in light most favorable to nonmoving party).
Cite as 357 Or 460 (2015) 465

Plaintiff obtained registration to work as a paid signature collector for Initiative Petitions 28 and 70 during the 

2010 election cycle, scheduled to end July 2, 2010. He performed that work in the “winter and early spring” of 2010. 

During that time, he became interested in collecting signatures for a third measure, Initiative Petition 42, but on a 

volunteer basis. He explained that he was interested in the 

subject of that measure—environmental protection—and 

that he was often at events “where I met people when I was 

not being paid as a petitioner, and I could have easily gotten 

signatures at those times.” But he was concerned that ORS 

250.048(9) did not seem to permit him to do that.

On April 19, 2010, plaintiff initiated this action 

against the Secretary of State challenging the constitutionality of ORS 250.048(9). He alleged as the basis for the 

action the Declaratory Judgments Act, ORS 28.020, and a 

separate statute providing for challenges to actions of the 

Secretary of State, ORS 246.910. He asked for a declaration that ORS 250.048(9) is unconstitutionally overbroad, 

in violation of his rights of free expression and free association guaranteed under Article I, sections 8 and 27, of the 

Oregon Constitution, and under the First and Fourteenth 

Amendments to the United States Constitution. He alleged 

that his uncertainty about the meaning of ORS 250.048(9)—

in particular, what the statute means when it prohibits collecting signatures as a paid collector and a volunteer “at the 

same time”—effectively chills his rights of free expression 

and free association. He also sought nominal damages and 

an injunction to prohibit the secretary from enforcing the 

challenged law.

A few weeks later, plaintiff stopped working as 

an initiative petition signature collector; he took on a new 

restaurant server job and wanted to focus on that new opportunity. Later that month, however, plaintiff was injured in 

an automobile accident and became unable to work at all for 

the next several months.

On July 2, 2010, the deadline for submitting initiative petition signatures arrived, and with it came the 

expiration of plaintiff’s registration as a paid signature collector. Several months later, plaintiff received a telephone 
466 Couey v. Atkins

call from the Secretary of State’s office to report that the 

secretary intended to publish a proposed rule interpreting ORS 250.048(9). Shortly thereafter, plaintiff filed an 

amended complaint alleging that “[a]ny rule adopted by [the 

Secretary of State] will continue to violate plaintiff’s rights 

to obtain signatures as a volunteer on other petitions.”2

The secretary moved for summary judgment on the 

ground that plaintiff’s claims had become moot. The secretary argued that plaintiff was no longer a registered paid 

initiative petition signature collector and thus “no longer 

has a sufficient and present interest in the resolution of this 

controversy.” Any remaining interest in the constitutionality of ORS 250.048(9), the secretary argued, is too speculative to support the continuing justiciability of the action 

under either ORS 28.020 or ORS 246.910.

Plaintiff opposed the secretary’s motion, arguing 

that the action had not become moot. In the alternative, he 

argued that, if moot, the action remains justiciable under 

ORS 14.175, which authorizes courts to hear moot cases 

that are capable of repetition, yet evading review. In support of his contention that the action had not yet become 

moot, plaintiff submitted an affidavit, in which he averred 

that he had recently registered as a paid initiative petition 

signature collector for the 2012 election cycle, and stated 

that “I fully intend to work *** as a paid circulator in the 

future.” He also stated that “[w]hen another measure dealing with protecting the environment starts to circulate, I’d 

like to support it.” He said that “I might be willing to have 

a volunteer signature while being on hours, as well, but the 

2 The secretary ultimately adopted the rule in November 2011. OAR 165-

014-0285. That rule provides:

“Under ORS 250.048(9), a person may not obtain signatures on a petition or 

prospective petition for which the person is being paid and, at the same time, 

obtain signatures on a petition or prospective petition for which the person 

is not being paid. For purposes of ORS 250.048(9), ‘at the same time’ means 

during any time period for which the person is being paid to circulate any 

petition or prospective petition. ‘At the same time’ does not include any lunch 

or other break period for which a person is not paid to circulate any such 

petition, as reflected in the person’s payroll records required to be submitted 

under OAR 165-014-0100.”

Id. Plaintiff did not amend his complaint following the adoption of that rule to 

challenge the validity of that rule.
Cite as 357 Or 460 (2015) 467

main agenda is to be able to collect signatures on a volunteer basis outside of my work hours.” According to plaintiff, 

“I would like to have the right and freedom to collect signatures on a volunteer basis during my work hours.” Plaintiff 

also submitted an affidavit of a chief petitioner on Initiative 

Petition 42 (2010), who stated that “we intend to try to circulate another petition” in the coming year. 

The trial court granted the secretary’s summary 

judgment motion and dismissed the action. The court 

explained that, although plaintiff had standing to initiate 

the action, the case had become moot:

“The 2010 election is over and plaintiff no longer seeks 

relief regarding anything that occurred in that election; he 

only seeks prospective relief. * * * [A]lthough he has taken 

steps to become registered as a paid petition circulator, 

there is no evidence that there is any petition which he 

wishes to circulate as a volunteer, or that his prospective 

employer for paid petition circulation will permit him to 

circulate a volunteer petition ‘at the same time’ (as defined 

by the rule) as he is circulating a paid petition.”

The court further concluded that plaintiff was not entitled 

to pursue the action under ORS 14.175. The court explained 

that plaintiff had failed to demonstrate that the matter 

was likely to evade judicial review. The court acknowledged 

that the ordinary election cycle generally would not provide 

sufficient time to resolve actions such as the one before it. 

Nevertheless, the court concluded, plaintiff had failed to 

request expedited review, which—if granted—might have 

prevented the case from becoming moot. 

Plaintiff appealed, and the Court of Appeals affirmed.

Couey v. Brown, 257 Or App 434, 306 P3d 778 (2013). The 

court first concluded that the case was indeed moot, as there 

was no evidence in the record of a measure for which plaintiff wanted to collect initiative petition signatures on a volunteer basis. Id. at 443. The court then concluded that the 

case was not subject to the statutory mootness exception 

enacted in ORS 14.175. Id. at 444. Like the trial court, the 

Court of Appeals acknowledged that, “it is true that cases 

typically take more than two years to move from filing to 

issuance of an appellate judgment, especially cases that go 
468 Couey v. Atkins

to the Supreme Court.” Id. But, also like the trial court, 

the Court of Appeals concluded that plaintiff could have 

requested expedited consideration of his action, yet failed 

to do so. The court noted “the obvious question of whether 

[the] statute [ORS 14.175] violates the Oregon Constitution” 

under Yancy v. Shatzer, 337 Or 345, 363, 97 P3d 1161 (2004), 

in which this court held “in no uncertain terms” that the 

judicial power under the Oregon Constitution does not 

extend to moot cases that are capable of repetition, yet evading review. Couey, 257 Or App at 445 n 1. Because the court 

ultimately concluded that plaintiff did not qualify for review 

under that statute, it did not need to reach that issue. Id.

II. ANALYSIS

A. Is plaintiff’s action moot?

On review, plaintiff argues that the Court of 

Appeals erred in concluding that his action is now moot. He 

contends that the court erred in concluding that the declaratory judgment portion of the action is moot for essentially 

two reasons. First, he argues that the affidavits that he 

submitted in opposition to the secretary’s summary judgment motion adequately evince a concrete interest in the 

outcome of the case. Second, he argues that, even if that is 

not the case, the fact that he has brought claims for unconstitutional overbreadth effectively excuses him from having 

to establish the continuing justiciability of his claims. As 

for the remaining portion of the action that arises under 

ORS 246.910—pertaining to judicial review of actions of the 

Secretary of State—plaintiff argues that the court erred in 

affirming the dismissal of that claim as well. We address 

each of those three arguments in turn.

1. The action for a declaratory judgment

Plaintiff’s initial argument that the declaratory 

judgment portion of his action is not moot is brief and a 

bit cryptic. He devotes most of his efforts to his argument 

that the overbreath doctrine effectively relaxes justiciability requirements. As to the sufficiency of his affidavit, he 

argues that, under Oregon law, “there is no case law rule 

that ‘hypothetical’ injury renders claims for declaratory 

relief per se nonjusticiable merely because the injury has not 
Cite as 357 Or 460 (2015) 469

actually yet occurred.” Citing Pendleton School Dist. v. State 

of Oregon, 345 Or 596, 200 P3d 133 (2009), he argues that, 

if a dispute involves the interpretation of an existing statute 

“that could apply to a party in the future,” that is sufficient 

to create a justiciable controversy. In plaintiff’s view, his affidavit establishes “the likelihood that he and others suffer 

continuing chill of political speech, satisfying any personal 

stake” requirement the law may impose. Beyond those bare 

conclusions, plaintiff does not explain what in his affidavit 

establishes that likelihood or how it otherwise demonstrates 

that the action is not moot. 

The secretary responds that, at the time of her 

summary judgment motion, there was no actual controversy based on present facts, as the law requires. At that 

time, plaintiff had stopped working as a paid initiative 

petition collector. He had registered to work on a measure 

in February 2011, but nothing in the record suggests that 

he actually performed that work. In addition, nothing in 

the record showed that there were any then-existing measures for which he was presently interested in collecting 

signatures on a volunteer basis. Accordingly, the secretary 

argues, at that point petitioner was not doing anything that 

ORS 250.048(9) prohibited. Nor does the record show that 

the challenged statute was actually preventing him from 

taking any action.

We agree with the Secretary of State. To maintain 

a declaratory judgment action, a plaintiff must establish at 

the outset that he or she satisfies the statutory requirements 

for standing to bring the action. Morgan v. Sisters School 

District # 6, 353 Or 189, 195, 301 P3d 419 (2013). Thereafter, 

the plaintiff’s concrete stake in the outcome must continue 

throughout the pendency of the case. Savage v. Munn, 317 

Or 283, 291-92, 856 P2d 298 (1993). If, after the initiation 

of the action, it becomes moot, it will be dismissed for want 

of justiciability.3 Barcik v. Kubiaczyk, 321 Or 174, 188, 895 

P2d 765 (1995). In this case, there is no dispute that, at least 

at the time plaintiff initiated this action, he satisfied the 

3 As we explain later in this opinion, this court’s prior cases have not been 

consistent about whether dismissal on mootness grounds is required as a matter 

of constitutional law or is instead a product of justiciability doctrine that the 

court has developed as matter of judicial discretion. 
470 Couey v. Atkins

standing requirements of the Declaratory Judgments Act. 

The issue is whether, with the passing of certain events, the 

action became moot.

As this court explained in Brumnett v. PSRB, 315 

Or 402, 405, 848 P2d 1194 (1993), “[d]etermining mootness 

is one part of the broader question of whether a justiciable 

controversy exists.” In the context of a declaratory judgment 

action, a justiciable controversy requires “a dispute based 

on present facts,” not facts that may or may not happen in 

the future. TVKO v. Howland, 335 Or 527, 534, 73 P3d 905 

(2003); see also Brown v. Oregon State Bar, 293 Or 446, 449, 

648 P2d 1289 (1982) (“To be justiciable, a controversy must 

involve present facts as opposed to a dispute which is based 

on future events of a hypothetical issue.”). Thus, plaintiff is 

incorrect in stating that “there is no case law rule that ‘hypothetical injury’ renders claims for declaratory relief per se 

nonjusticiable.” To the contrary, a justiciable controversy is, 

by very definition, one that is not hypothetical. Declaratory 

relief is available “only when it can affect in the present some 

rights between the parties.” Barcik, 321 Or at 188 (emphasis 

in original). 

This court’s decision in Pendleton is not to the contrary. In that case, 18 school districts brought an action 

for a declaration that Article III, section 8, of the Oregon 

Constitution requires the legislature to fund the Oregon 

public school system at a level sufficient to meet certain 

quality standards. They alleged that the legislature had 

failed to comply with that obligation during the 2005-07 

biennium. They further alleged that they continued to suffer present harm as a result of that past failure and that the 

legislature has a ongoing constitutional obligation to fund 

schools to meet quality standards. 345 Or at 601. In that 

context, this court explained, the fact that the 2005-07 biennium had passed did not render the controversy moot: The 

issue remained “whether Article VIII, section 8, imposes a 

duty on the legislature to fund the public school system at 

a specified level every biennium.” Id. at 606. Whether the 

legislature operates under such a continuing obligation, the 

court explained, “presents a set of present facts regarding 

the interpretation of a constitutional provision.” Id.
Cite as 357 Or 460 (2015) 471

In this case, the only “present facts” established in 

the record are that, at the time of the summary judgment, 

plaintiff’s registration to circulate petitions during the 2010 

election had expired; that he had recently registered with 

the Secretary of State to collect signatures on a paid basis 

during 2012; that he “fully intended” to work as a paid signature collector “in the future;” and that, “[w]hen another 

measure dealing with protecting the environment starts to 

circulate, I’d like to support it.” There is no evidence that, at 

that time, plaintiff was actually employed as a paid initiative 

petition signature collector. More importantly, there is no 

evidence that there existed “another measure dealing with 

protecting the environment.” There was evidence that the 

chief petitioner of the earlier measure that plaintiff wanted 

to support intended to “try to circulate another petition,” 

but there is no evidence that the chief petitioner ever took 

steps to make that happen, much less that such a measure 

reached the stage of signature collection.4

 Giving plaintiff 

every beneficial inference, the best that the evidence shows 

is that, if plaintiff obtained employment as a signature collector, and if another measure dealing with protecting the 

environment were filed, and if that measure garnered the 

requisite number of sponsors, and if that measure obtained 

a certified ballot title, then plaintiff “would like to support 

it,” presumably by collecting petition signatures on a volunteer basis. 

That is the epitome of contingent and speculative 

facts. There is no evidence that plaintiff is currently harmed, 

or even under current threat of harm, by ORS 250.048(9). 

Any suggestion of possible harm is a matter of no more than 

speculation, depending entirely on a series of assumptions 

unsupported by any evidence in the record. The trial court 

and the Court of Appeals correctly concluded that plaintiff’s 

affidavit was insufficient to establish that his declaratory 

judgment action had not become moot.

2. The effect of the overbreadth claim

In the alternative, plaintiff argues that, even if his 

declaratory judgment action is otherwise moot, the fact that 

4 In fact, according the Secretary of State’s records of initiative and referendum petitions, no such petition was filed during the 2012 election cycle. 
472 Couey v. Atkins

his claims are based on the asserted unconstitutional overbreadth of ORS 250.048(9) excuses him from satisfying any 

requirement that the claim be justiciable. In plaintiff’s view, 

“overbreadth” is a doctrine of substantive First Amendment 

law that this court has adopted in free expression cases. 

Under that doctrine, he contends, a plaintiff may claim 

that a challenged law violates his or her own constitutional 

rights or that the law hypothetically could violate the rights 

of others. Necessarily, he argues, the doctrine carves out an 

exception to any justiciability constraints that otherwise 

apply.

The secretary argues that plaintiff misapprehends 

overbreadth analysis. In the secretary’s view, although an 

overbreadth claim can extend beyond the rights of specific 

plaintiffs, even the federal law on which plaintiff in this case 

relies holds that such a claim can be asserted in the first 

instance only by one with a personal stake in its resolution. 

Again, we agree with the Secretary of State. A 

party challenging the constitutionality of a statute may contend that the law is unconstitutional in all possible applications—that is, it is unconstitutional on its face. E.g., State 

v. Hirsch/Friend, 338 Or 622, 627, 114 P3d 1104 (2005) 

(“[W]hen bringing certain facial challenges to a statute, 

the challenger ordinarily must establish that the statute is 

unconstitutional in all its applications.”). Or the law may 

be challenged on the ground that it is unconstitutional as 

applied to a particular individual on a particular set of facts. 

E.g., State v. Rodriguez/Buck, 347 Or 46, 78-79, 217 P3d 659 

(2009) (75-month mandatory sentence, although not facially 

unconstitutional, held unconstitutional as applied to the 

facts of that case). 

In cases involving regulation of free expression, the 

United States Supreme Court has developed an exception to 

the ordinary rule that a facial challenge requires a demonstration that the challenged law is unconstitutional in all 

possible applications. Virginia v. Hicks, 539 US 113, 118, 

123 S Ct 2191, 156 L Ed 2d 148 (2003). Instead, because 

of the special significance of rights of free expression, 

the Court has held that a law regulating free expression 

may be unconstitutionally “overbroad” if it prohibits any 
Cite as 357 Or 460 (2015) 473

“substantial amount” of constitutionally protected conduct. 

Id. at 118-19.5

 Moreover, a defendant to whom a challenged 

statute applies may assert that the law is unconstitutionally 

overbroad even if he or she has not engaged in the constitutionally protected conduct. City Council v. Taxpayers for 

Vincent, 466 US 789, 798, 104 S Ct 2118, 80 L Ed 2d 772 

(1984). In effect, the overbreadth doctrine thus permits a 

party to whom a statute constitutionally applies to argue 

that the statute nevertheless is unconstitutional because it 

would violate the rights of others. Broadrick v. Oklahoma, 

413 US 601, 612, 93 S Ct 2908, 37 L Ed 2d 830 (1973). The 

Supreme Court has explained this exception to the prudential rule against parties asserting the rights of others by 

noting the importance of avoiding the “chilling effect” of an 

overbroad law:

“We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law 

may deter or ‘chill’ constitutionally protected speech—

especially when the overbroad statute imposes criminal 

sanctions. Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their 

rights through case-by-case litigation, will choose simply 

to abstain from protected speech, harming not only themselves but society as a whole, which is deprived of the uninhibited marketplace of ideas.”

Hicks, 539 US at 119. 

It is important to note, however, that although the 

law may authorize a party to assert the rights of others, 

that does not mean that the party is excused from demonstrating his or her own standing to bring the claim. Only 

a person to whom the statute applies, even if constitutionally, may assert an overbreadth challenge. That is to say, 

overbreadth may represent a loosening of the ordinary prudential rule that parties cannot assert the rights of others, 

but it does not represent a loosening of the federal constitutional requirement that the party asserting the law’s 

overbreadth have standing and that the party’s interest 

continue throughout the proceeding. See generally Laurence 

5 Oregon cases use slightly different phrasing, referring to whether the challenged law “reaches privileged communication” and “does so more than rarely.” 

See, e.g., State v. Rangel, 328 Or 294, 299-300, 977 P2d 379 (1999). 
474 Couey v. Atkins

H. Tribe, American Constitutional Law § 12-27, 1024 (2d ed 

1988) (“[O]verbreadth does not in fact possess a distinctive 

standing component.”); Richard H. Fallon, Jr., Making Sense 

of Overbreadth, 100 Yale LJ 853, 869 (1991) (An overbreadth 

claim is consistent with justiciability requirements of Article 

III because it is asserted by “[a] party who is charged with 

violating a statute or threatened with imminent prosecution” under it.). 

In Virginia v. American Booksellers Assn., 484 US 

383, 108 S Ct 636, 98 L Ed 2d 782 (1988), for instance, the 

plaintiff challenged as unconstitutionally overbroad a state 

law prohibiting the display of visual or written materials to 

juveniles depicting, among other things, sexual conduct. The 

Court’s analysis of the justiciability of the action proceeded 

in two distinct steps. First, the Court addressed whether 

the plaintiff had satisfied the “irreducible minimum” constitutional requirement of personal injury. Id. at 392. That 

is, the Court explained, the plaintiff must show “threatened 

or actual injury” resulting from the application of the challenged statute. Id. Second, the Court said that, once the 

constitutional standing requirement has been satisfied, it is 

appropriate to address whether the plaintiff could advance 

the particular argument, that is, overbreadth. Id. The Court 

noted that “the usual rule is that a party may assert only 

a violation of its own rights.” Id. But, the Court said, in 

the case of overbreadth challenges arising under the First 

Amendment, there is an exception to that prudential rule. 

Id. at 392-93. 

Similarly, in Bigelow v. Virginia, 421 US 809, 816-

17, 95 S Ct 2222, 44 L Ed 2d 600 (1975), the Court held that, 

to assert a claim of overbreadth, a party must have standing, 

and “in order to have standing, an individual must present 

more than ‘allegations of a subjective chill.’ There must be 

a claim of specific present objective harm or a threat of specific future harm” arising from the application of the challenged statute to the person challenging it. See also Hedges 

v. Obama, 724 F3d 170, 204 (2d Cir 2013) (overbreadth doctrine “[r]elax[es] the general prudential rule against thirdparty standing” but “does not provide a reason to * ** find 

injury where none is present or imminently threatened 

in the first instance”); Cole v. Oroville Union High School 
Cite as 357 Or 460 (2015) 475

District, 228 F3d 1092, 1099 (9th Cir 2000) (“[A] litigant 

cannot sustain an overbreadth or jus tertii claim if he no 

longer has a personal interest in the outcome which itself 

satisfies the case or controversy requirement.”). A plaintiff’s 

concrete interest in the outcome of the litigation must continue throughout the prosecution of his or her overbreadth 

claim; if events occur that eliminate that personal interest, 

the overbreadth claim becomes moot and will be dismissed 

for want of justiciability. Bigelow, 421 US at 817-18.

This court has borrowed federal court overbreadth 

doctrine. State v. Robertson, 293 Or 402, 410, 649 P2d 569 

(1982). And it continues to refer to federal case law for its 

own explanation of the justification and contours of the doctrine. State v. Christian, 354 Or 22, 40, 307 P3d 429 (2013).6

In light of that case law, we reject plaintiff’s contention that 

the fact that he asserts an overbreadth claim excuses him 

from establishing the justiciability of that claim.

3. ORS 246.910

Plaintiff’s final argument regarding the mootness 

of his action is that, even if the declaratory judgment portion 

of the action is moot, the remaining action for judicial review 

of actions of the Secretary of State under ORS 246.910(1) is 

not. That statute provides:

“A person adversely affected by any act or failure to act by 

the Secretary of State * ** under any election law, or by any 

order, rule, directive or instruction made by the Secretary 

of State * * * may appeal therefrom to the circuit court for 

the county in which the act or failure to act occurred or in 

which the order, rule, directive, or instruction was made.” 

Thus, the statute provides for judicial review of an act, or failure to act, of the Secretary of State under the election laws 

6 The court has never explained the source of overbreadth analysis under 

the Oregon Constitution. As we have noted, the United States Supreme Court 

has justified the doctrine by reference to the particular importance of constitutional rights of free expression. And this court, like the United States Supreme 

Court, has limited the application of overbreadth analysis to free speech cases. 

Christian, 354 Or at 40. But, at the same time, this court has disclaimed any 

interest in recognizing a hierarchy of constitutional rights. See, e.g., Libertarian 

Party of Oregon v. Roberts, 305 Or 238, 246, 750 P2d 1147 (1988) (rejecting balancing of relative importance of different constitutional rights). Because our disposition of this case does not involve the merits of plaintiff’s claims, we need not 

address that issue.
476 Couey v. Atkins

of the state. See generally League of Oregon Cities v. State 

of Oregon, 334 Or 645, 655, 56 P3d 892 (2002) (explaining 

requirements of statute). In this case, plaintiff’s complaint 

does not target any act, or failure to act, of the secretary. 

Rather, its sole target is the constitutionality of the election 

law itself, because the law itself “chills” his rights of free 

expression and association.7

Moreover, ORS 246.910 provides for such judicial 

review only if a person has been “adversely affected” by 

such an act or omission of the secretary. In this case, as we 

have noted, nothing in the record suggests that plaintiff is 

affected, much less adversely affected, by the operation of 

the challenged statute, ORS 250.048(9). We reject plaintiff’s 

contention that his action is justiciable under ORS 246.910 

without further discussion.

B. If moot, is plaintiff’s action nevertheless justiciable under 

ORS 14.175?

Plaintiff argues that, if we conclude that his action 

is moot, it is nevertheless justiciable under ORS 14.175. That 

statute provides:

“In any action in which a party alleges that an act, policy or practice of a public body *** is unconstitutional or is 

otherwise contrary to law, the party may continue to prosecute the action and the court may issue a judgment on 

the validity of the challenged act, policy or practice even 

though the specific act, policy or practice giving rise to the 

7 As we noted above, plaintiff’s amended complaint did mention the fact that 

the secretary, at that time, had announced her intention to propose a rule implementing ORS 250.048(9). And it further alleged that, “[a]ny rule adopted by [the 

Secretary of State] will continue to violate plaintiff’s rights to obtain signatures 

as a volunteer on other petitions.” But, as of the time of the filing of that amended 

complaint, the secretary had not yet done so. As a result, plaintiff’s amended 

complaint purported to challenge the lawfulness of a rule that had not yet been 

adopted. Any such claim is classically unripe and thus not justiciable. As this 

court explained in Oregon Cry. Mfgs. Ass’n v. White, 159 Or 99, 110, 78 P2d 572 

(1938), “We agree that plaintiffs are not obliged to wait until the [d]irector undertakes to enforce some rule or regulation to their damage. We cannot, however, 

concur in the view that there is reasonable ground for complaint before any rules 

or regulations have been promulgated.” See also Friends of Columbia Gorge v. 

Columbia River (S055722), 346 Or 366, 392 n 24, 213 P3d 1164 (2009) (challenge 

to “a possible interpretation of the Act by the Commission *** was not ripe for 

review”); Tillamook Co. v. State Board of Forestry, 302 Or 404, 412, 730 P2d 1214 

(1986) (“Challenges to future legislative amendments are not justiciable.”).
Cite as 357 Or 460 (2015) 477

action no longer has a practical effect on the party if the 

court determines that:

“(1) The party had standing to commence the action;

“(2) The act challenged by the party is capable of repetition, or the policy or practice challenged by the party continues in effect; and 

“(3) The challenged policy or practice, or similar acts, 

are likely to evade judicial review in the future.”

Thus, ORS 14.175 provides that, if a judgment in a case “no 

longer has a practical effect on the party” who initiated it—

that is, if a case has become moot—the court is nevertheless 

authorized to issue such a judgment if the party can meet 

each of the three stated requirements. In this case, the parties agree that plaintiff satisfied the first two requirements 

of the statute. They dispute whether he satisfied the third, 

that is, that the challenged policy or practice is “likely to 

evade judicial review in the future.”

Plaintiff contends that ORS 14.175 requires only 

that it is “likely” that such challenges as the one that he 

has initiated will evade review in the future. Election law 

challenges, he contends, are not likely to be adjudicated 

to final judgment within the short, two-year election cycle 

that the law provides. Indeed, plaintiff notes that in this 

case, the time between the date the law went into effect and 

the end of the election cycle was even shorter: six months. 

Under the circumstances, it was extremely unlikely that his 

claim would not evade review. Plaintiff observes that ORS 

14.175 adopts the “capable of repetition, yet evading review” 

exception to the rule against deciding moot cases, which federal courts have embraced for many years. Because of that 

borrowing, he argues, federal cases are especially relevant. 

And those federal cases make clear that election cases such 

as this one are precisely the sort of cases that come within 

the exception.

The Secretary of State insists that two years is adequate time to resolve claims such as plaintiff’s. According 

to the secretary, plaintiffs advancing such claims may take 

advantage of statutory opportunities to request expedited 

consideration or certification directly to this court. See ORS 
478 Couey v. Atkins

246.910(4) (“The circuit courts and the Court of Appeals, 

in their discretion, may give precedence on their dockets 

to appeals under this section as the circumstances may 

require.”); ORS 19.405(1) (“When the Court of Appeal has 

jurisdiction of an appeal, the court, through the Chief Judge 

** * may certify the appeal to the Supreme Court in lieu of 

disposition by the Court of Appeals.”). The secretary notes 

that, in at least two reported cases, Crumpton v. Roberts, 

310 Or 381, 798 P2d 1100 (1990), and Ecumenical Ministries 

v. Paulus, 298 Or 62, 688 P2d 1339 (1984), that is precisely 

what the parties did, and the courts brought the matters 

to completion within two years. Furthermore, the secretary 

argues, the remedy of mandamus is available in election 

cases.

This time, we agree with plaintiff. Whether such 

challenges as plaintiff’s are “likely to evade judicial review” 

is a question of statutory construction, which we examine 

by applying familiar principles set out in PGE v. Bureau 

of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 

(1993), and State v. Gaines, 346 Or 160, 170-73, 206 P3d 

1042 (2009). We review the text of the statute, in context, 

along with any relevant legislative history and settled rules 

of construction.

ORS 14.175 applies when it is “likely” that challenges such as the one before the court will evade review in 

the future. The term is undefined in the statute. Under the 

circumstances, we assume that the legislature intended the 

term to convey its ordinary meaning. See State v. Dickerson, 

356 Or 822, 829, 345 P3d 447 (2015) (“When the legislature 

does not provide a definition of a statutory term, we ordinarily look to the plain meaning of the statute’s text.”). If 

the undefined term is not a term of art, we ordinarily begin 

with its dictionary definition. Jenkins v. Board of Parole, 356 

Or 186, 194, 335 P3d 828 (2014) (“Because the legislature 

has not expressly defined the words in the disputed phrase, 

dictionary definitions * ** can be useful.”).

The ordinary meaning of the adjective “likely” is 

“of such a nature or so circumstanced as to make something probable.” Webster’s Third New Int’l Dictionary 1310 

(unabridged ed 2002); see also The American Heritage 
Cite as 357 Or 460 (2015) 479

Dictionary of the English Language 1017 (5th ed 2011) (defining adjective “likely” as “possessing or displaying the qualities or characteristics that make something probable: They 

are likely to become angry with him.”). The word “probable,” 

in turn, is defined as something “that is based on or arises 

from adequate fairly convincing ** * evidence or support.” 

Webster’s Third New Int’l Dictionary at 1806; see also The 

American Heritage Dictionary of the English Language at 

1403 (defining “probable” as “likely to happen or be true”).

Thus, on the bare face of things, it appears that the 

statute applies when it is probable that a similar challenge 

will evade judicial review in the future. Certainty is not 

required. Nothing in the context of the statute suggests a 

contrary meaning. 

The legislative history of ORS 14.175 reveals that 

it was enacted in direct response to a decision of this court, 

Yancy 337 Or at 363, in which this court held that “judicial 

power under the Oregon Constitution does not extend to moot 

cases that are ‘capable of repetition, yet evading review.’” 

The legislature was aware of the doctrine developed by federal courts that, notwithstanding the rule against deciding 

moot cases, courts have authority to decide cases that are 

capable of repetition and yet evade review. The legislature 

adopted what is now ORS 14.175 to provide Oregon courts 

that authority. As the staff measure summary for the bill 

that was ultimately enacted as ORS 14.175 explains:

“The federal courts, as well as every state in the union, 

recognize an exception to the mootness doctrine for controversies that come up repeatedly, but would never be 

reviewed by appellate courts if a strict mootness standard 

were to apply. * ** Courts call this the ‘capable of repetition 

but evading review’ doctrine. In Yancy v. Shatzer, however, 

the Oregon Supreme Court ruled that the judicial power 

granted by Article VII, sec. 1, of the Oregon Constitution 

does not include the power to hear cases that are capable 

of repetition but might evade review. Two years later, the 

Court decided Kellas v. Department of Corrections, in which 

it ruled that the legislature has the power to grant standing to a party to initiate litigation even if that person might 

not have a personal interest in the litigation. HB 2324 

is a response to the Yancy and Kellas opinions. It would 
480 Couey v. Atkins

provide that, if a party already has standing to initiate a 

lawsuit (i.e., the bill would not give individuals new rights 

to initiate litigation), and the action became moot while the 

lawsuit was pending, the party still has an interest in the 

litigation and the court could issue a judgment if the controversy was capable of repetition but might evade judicial 

review if not decided.”

House Judiciary Committee Staff Measure Summary, 

House Bill 2324 A, April 25, 2007 (citations omitted; emphasis in original); see also Tape Recording, House Judiciary 

Committee, HB 2324, April 19, 2007 (statement of Charlie 

Hinkle) (explaining capable of repetition exception developed by federal courts and adopted by courts in 49 states).

The legislature thus borrowed and codified a judicially created doctrine, much as it often borrows legislation from other jurisdictions. When the legislature borrows 

legislation from another jurisdiction, we generally assume 

that, in the process, the legislature also borrows existing 

controlling case law interpreting that legislation. Lindell v. 

Kalugin, 353 Or 338, 355, 297 P3d 1266 (2013). It stands 

to reason that, when the legislature borrows the case law 

doctrine itself, that case law is highly persuasive evidence of 

the legislature’s intentions. Hatley v. Stafford, 284 Or 523, 

526 n 1, 588 P2d 603 (1978) (applying “the general rule that 

statutes codifying the common law are to be construed in a 

manner consistent with the common law”).

There is a wealth of case law concerning the capable of repetition rule. Although it has deep roots in nineteenth-century case law, the first case to recognize the rule 

as such was So. Pac. Terminal Co. v. Int. Comm. Comm., 

219 US 498, 31 S Ct 279, 55 L Ed 310 (1911). In that case, 

a railway company challenged an order of the Interstate 

Commerce Commission to cease and desist giving certain 

preferences to a shipper of cottonseed products. By the 

time the case reached the United States Supreme Court, 

the agency order had expired, and, on that ground, there 

was a motion to dismiss the appeal. The Court denied the 

motion, however. Orders such as the one at issue, the Court 

explained, “are usually continuing (as are manifestly those 

in the case at bar), and these considerations ought not to be, 
Cite as 357 Or 460 (2015) 481

as they might be, defeated, by shortterm[] orders, capable of 

repetition, yet evading review.” Id. at 514.

Since So. Pac. Terminal Co., every jurisdiction in 

the country, save Oregon, has adopted the capable of repetition rule. See generally Richard H. Fallon, David Shapiro, 

and Daniel J. Meltzer, Hart & Wechsler’s The Federal Courts 

and the Federal System § 4, 219 (4th ed 1996) (describing 

development of doctrine); Erwin Chemerinsky, Federal 

Jurisdiction 37-145 (1989) (same); see also Yancy, 337 Or 

at 375-83 (Balmer, J., specially concurring) (listing state 

courts adopting doctrine).

In that regard, federal law has long been settled that 

the capable of repetition exception applies to election-related 

challenges. See generally Charles Alan Wright et al, 13C 

Federal Practice & Procedure § 3533.9 (3d ed. 2008) (noting 

that federal courts frequently apply the capable of repetition 

yet evading review exception in election disputes). Meyer v. 

Grant, 486 US 414, 108 S Ct 1886, 100 L Ed 2d 425 (1988), 

provides an example close in point. In that case, the plaintiffs were proponents of a particular initiative measure that 

they hoped to get on the state ballot for the November 1984 

election. They challenged the constitutionality of a state law 

prohibiting the use of paid petition circulators. While the 

action progressed, the 1984 election came and went. The 

United States Supreme Court explained that, although the 

election had passed, the matter was subject to the mootness 

exception for cases that are capable of repetition, yet evading 

review. Id. at 417 n 2. The Court noted that state law gave 

the proponents of the measure only six months to obtain the 

necessary signatures, and “[t]he likelihood that a proponent 

could obtain a favorable ruling within that time, much less 

act upon a ruling in time to obtain the needed signatures, is 

slim at best.” Id.

More recently, in Federal Election Comm’n v. 

Wisconsin Right to Life, Inc., 551 US 449, 127 S Ct 2652, 

168 L Ed 2d 329 (2007), a corporate advocacy group challenged the constitutionality of a federal law restricting the 

right of corporations to broadcast radio and television ads 

during the “blackout” period of 30 days before the 2004 

Wisconsin primary election. By the time the matter reached 
482 Couey v. Atkins

the Supreme Court, the election had passed. The Federal 

Election Commission argued that the case had become moot. 

Moreover, the agency argued that, because “the 2-year window between elections provides ample time for parties to litigate their rights,” the matter was not subject to the exception for cases capable of repetition, yet evading review. Id. at 

462. The Supreme Court rejected that argument, concluding 

that the case “fit comfortably within the established exception.” Id. “[I]t would be entirely unreasonable,” the Court 

said, “to expect that [the plaintiff] could have obtained complete judicial review of its claims” in that time. Id.8

State courts, likewise, apply the exception to election cases. See, e.g., Falke v. State, 717 P2d 369, 371 (Alaska 

1986) (applying exception to challenge to election division’s 

decision not to strictly implement statutory filing requirements for candidates); Urevich v. Woodard, 667 P2d 760, 

762 (Colo 1983) (“This case falls, as do so many elections 

cases, within the exception to the mootness doctrine that 

allows review of matters ‘capable of repetition yet evading 

review.’”); Gunaji v. Macias, 130 NM 734, 737, 31 P3d 1008, 

1101 (2001) (applying exception to challenge to election of 

county commissioner whose term had expired); Blum v. 

Lanier, 42 Tex Sup Ct J 955, 997 SW 2d 259, 264 (1999) 

(applying exception to challenge to election process).

The fact that there is a possibility that a particular case could obtain expedited consideration is beside the 

point. ORS 14.175 applies to types or categories of cases in 

which it is “likely” that such challenges will avoid judicial 

review. Moreover, the sole statute that the secretary mentions as an example of expedited review is ORS 246.910(4), 

which applies only to judicial review of actions, or failures to 

8 See also Renne v. Geary, 501 US 312, 320, 111 S Ct 2331, 115 L Ed 2d 288 

(1991) (noting that mootness exception for cases capable of repetition yet evading 

review has been applied in election cases); Masters, Mates & Pilots v. Brown, 

498 US 466, 473, 111 S CT 880, 112 L Ed 2d 991 (1991) (applying exception to 

challenge to union rule barring mailing of election literature before date of nominating convention); Norman v. Reed, 502 US 279, 287-88, 112 S Ct 698, 116 L 

Ed 2d 711 (1992) (issue of eligibility to use political party name on election ballot 

mooted by passage of election, but nevertheless reviewable under capable of repetition exception); First National Bank of Boston v. Bellotti, 435 US 765, 774, 98 S 

Ct 1407, 55 L Ed 2d 707 (1978) (challenge to statute limiting corporate political 

expenditures reviewable even though election had passed).
Cite as 357 Or 460 (2015) 483

act, of the Secretary of State—a statute that we have held 

does not apply to this case. Aside from that, the statute only 

affords a trial court and the Court of Appeals “discretion” 

to give particular cases precedence. The secretary does 

not explain, and we do not understand, on what basis the 

theoretical availability of a discretionary decision to grant 

expedited review makes it not “likely” that a challenge will 

evade judicial review.

For the same reason, the fact that this court theoretically could accept certification of an appeal from the 

Court of Appeals or that it could exercise discretion to 

entertain a mandamus action does not establish that cases 

such as plaintiff’s are unlikely to evade review. In fact, this 

court has noted that, “ordinarily there will be no reason why 

issues of election law, like any other, cannot be decided by 

the Court of Appeals.” State ex rel Bunn v. Roberts, 302 Or 

72, 77, 726 P2d 925 (1986). Certainly, the fact that there 

are two reported cases in which parties have successfully 

completed litigation within an election cycle is insufficient 

to establish the point, at least not without knowing the 

number of cases in which the courts denied such expedited 

consideration.9

The settled case law concerning the capable of repetition exception persuades us that ORS 14.175 applies to 

election cases such as the one before us. We find no indication from the text of the statute or its history that the legislature intended to include a requirement that the plaintiffs 

in each case exhaust every possible avenue of expedition as 

a predicate to invoking the statutory exception to the rule 

against deciding moot cases. We therefore conclude that the 

trial court and the Court of Appeals erred in holding that 

plaintiff is not entitled to proceed under ORS 14.175.

9 For example, reported decisions reveal at least three cases involving challenges under ORS 246.910, each of which took two years or more to bring to final 

judgment. Hazell v. Brown, 352 Or 455, 287 P3d 1079 (2012) (involving a declaratory judgment action to enforce a voter-approved ballot initiative—decided six 

years from filing); League of Oregon Cities, 334 Or 645 (involving a constitutional 

challenge to a voter-approved initiative measure—the Court of Appeals certified 

appeal to this court and the case was still not decided until nearly two years 

after filing); Masters v. Secretary of State, 88 Or App 221, 744 P2d 1309 (1987) 

(post-election challenge to voters’ pamphlet statements—decided three years 

after filing).
484 Couey v. Atkins

C. Is ORS 14.175 constitutional?

That brings us to the “obvious question,” as the 

Court of Appeals phrased it: whether the statute violates 

the Oregon Constitution because it runs afoul of this court’s 

decision in Yancy, which held that the “judicial power” that 

Article VII (Amended), section 1, of the Oregon Constitution 

confers on the courts does not include the authority to decide 

moot cases and, in addition, does not include the authority 

to recognize any exceptions to that limitation, including an 

exception for controversies that are capable of repetition, yet 

evade review. The secretary argues that Yancy held only 

that the courts lack authority to decide moot cases, not that 

the legislature cannot confer such authority. In the secretary’s view, nothing in Yancy forecloses the legislature from 

enacting ORS 14.175.

The secretary’s argument cannot be reconciled with 

this court’s decisions in Oregon Medical Assn. v. Rawls, 276 

Or 1101, 557 P2d 664 (1976) (Oregon Medical Association 

I), and Oregon Medical Association v. Rawls, 281 Or 293, 

574 P2d 1103 (1978) (Oregon Medical Association II). In 

Oregon Medical Association I, the association initiated an 

action for a declaration concerning the constitutionality of 

a recently enacted statute concerning liability insurance for 

medical professionals. The trial court dismissed the action 

for want of a justiciable controversy, and this court affirmed. 

The court noted that the positions of the parties were not 

adverse as to the issue before the court and, moreover, no 

party had actually been subject to the law. Id. at 1107-08. 

The action, the court held, was not yet ripe. Id. at 1110.

In response, the legislature amended the law that 

was at issue in Oregon Medical Association I, adding a provision that expressly authorized the Insurance Commissioner 

and the Oregon Medical Association to initiate an action 

for a declaration as to the constitutionality of that statute. 

The legislation provided that “‘a justiciable controversy ripe 

for determination shall be deemed to exist in the event a 

complaint is filed.’” Oregon Medical Association II, 281 Or 

at 296 (quoting Or Laws 1977, ch 269 § 11). The Insurance 

Commissioner and the Oregon Medical Association tried 

again to obtain a declaration from this court, but, once 
Cite as 357 Or 460 (2015) 485

again, this court declared the matter nonjusticiable. The 

court explained that “a proceeding that calls upon a court 

to conduct its own inquiry into hypothetical applications of 

a statute and possible interpretations to save it from hypothetical constitutional attacks cannot be ‘deemed’ a justiciable controversy.” Id. at 300.

By parity of reasoning, if Yancy correctly holds that 

the “judicial power” conferred under Article VII (Amended), 

section 1, does not permit the courts to recognize a mootness 

exception for cases that are capable of repetition, yet evade 

review, then that limitation on the judicial power cannot be 

“deemed” eliminated by legislative enactment.

The question then becomes whether Yancy was correct in so holding. Stare decisis does not permit this court to 

revisit a prior decision merely because the court’s current 

members may hold a different view than its predecessors 

about a particular issue. At the same time, stare decisis is 

not absolute. See generally Farmers Ins. Co. v. Mowry, 350 Or 

686, 697-98, 261 P3d 1 (2011) (“[S]tare decisis is not mechanistic. Rather, stare decisis is a prudential doctrine that is 

defined by the competing needs of stability and flexibility 

in Oregon law.”). Especially in cases involving the interpretation of the state constitution, the value of stability that is 

served by adhering to precedent may be outweighed by the 

need to correct past errors. This court, after all, “is the body 

with the ultimate responsibility for construing our constitution, and, if we err, no other reviewing body can remedy that 

error.” Stranahan v. Fred Meyer, Inc., 331 Or 38, 53, 11 P3d 

228 (2000).

Precisely what constitutes an “error” sufficient to 

warrant reconsideration of a constitutional precedent cannot be reduced to a neat formula. But our cases reflect at 

least three categories. First, there are cases in which a prior 

pronouncement amounted to dictum or was adopted without analysis or explanation. See, e.g., State v. Christian, 354 

Or 22, 40, 307 P3d 429 (2013) (overruling prior decisions 

that extended, without explanation, overbreadth analysis 

beyond free-speech cases). Second, there are cases in which 

the analysis that does exist was clearly incorrect—that is, 

it finds no support in the text or the history of the relevant 
486 Couey v. Atkins

constitutional provision. See, e.g., State v. Mills, 354 Or 

350, 370-71, 312 P3d 515 (2013) (overruling prior decisions 

that found “no support in the wording of the constitution 

*** [and] no support in the historical circumstances of the 

adoption” of the constitutional provision at issue). Third, 

there are cases that cannot be fairly reconciled with other 

decisions of this court on the same constitutional provision. 

See, e.g., State v. Savastano, 354 Or 64, 93-94, 309 P3d 1083 

(2013) (overruling prior decision that could not be reconciled 

with earlier and subsequent case law).

This case is an example of the third category. As 

has been observed for a number of years, this court has not 

steered an even course in its justiciability case law. See, 

e.g., Utsey v. Coos County, 176 Or App 524, 528, 32 P3d 933 

(2001) (“[W]e must be candid: The cases concerning the constitutional requirements of justiciability are murky at best; 

at times, they are flatly contradictory.”). In particular, this 

court’s decisions in Yancy and Kellas v. Dept. of Corrections, 

341 Or 471, 145 P3d 139 (2006), have caused uncertainty 

about the extent to which the state constitution imposes justiciability limitations on the exercise of judicial power by the 

courts.

The problem lies in the fact that Yancy and Kellas

reflect two starkly different—and irreconcilable—views of 

the power conferred by Article VII (Amended), section 1.

In Yancy, the court addressed whether it should 

recognize an exception to the doctrine that the court lacks 

constitutional authority to decide moot cases. The court 

explained that such issues as standing, ripeness, and mootness are all aspects of justiciability—that is, the authority of 

the court to exercise “judicial power” as authorized by Article 

VII (Amended), section 1, of the state constitution. 337 Or at 

349. The court noted that the relevant test of justiciability 

has always been whether “‘the court’s decision in the matter 

will have some practical effect on the rights of the parties to 

the controversy.’” Id. (quoting Brumnett, 315 Or at 405). The 

court discussed the historical context of the original judicial 

power provision of the state constitution, including decisions 

of the United States Supreme Court on the authority of federal courts under Article III of the federal constitution. The 
Cite as 357 Or 460 (2015) 487

court concluded that, although it could not derive from that 

research a “definitive conclusion regarding the scope of judicial power under the Oregon Constitution,” it nevertheless 

believed that “the prevailing view throughout the American 

legal landscape in 1857 was that the constitutional grant 

of judicial power did not include the power to decide cases 

that had become moot.” Id. at 362. It then explained that 

the later adoption of Article VII (Amended) “did nothing to 

change the earlier understanding of judicial power.” Id. The 

court ultimately concluded that the judicial power “does not 

extend to moot cases,” not even moot cases that are capable 

of repetition, yet evading review. Id. at 363.

Then-Associate Justice (now Chief Justice) Balmer 

specially concurred, explaining that he found nothing in the 

text, context, or historical background of the constitution to 

suggest that the framers intended courts to lack authority to 

decide moot cases, particularly those that involve events that 

are so brief that they inevitably conclude before the courts 

can render a final decision. Id. at 364. In Justice Balmer’s 

view, the relevant history and prior case law reflect a prevailing view of “the contours of mootness as a prudential, rather 

than a constitutional, matter.” Id. at 367 (emphasis added).

In Kellas, the court took a completely different 

approach to justiciability—one easier to reconcile with 

Justice Balmer’s specially concurring opinion in Yancy than 

with the majority opinion in that case. At issue in Kellas

was the constitutionality of a statute that conferred on “any 

person” standing to challenge the validity of administrative 

rules, regardless of whether those persons would be affected 

by those rules. 341 Or at 473. Given Yancy’s explanation 

that standing is an aspect of constitutional justiciability—

which the court said requires a judicial decision to have a 

“practical effect on the rights of the parties”—the answer 

would seem to have been straightforward: Regardless of an 

absence of legislative standing requirements, the constitution does not permit courts to decide cases unless a judicial 

decision would have a practical effect on the rights of the 

parties. But that is not how Kellas was decided.

 In Kellas, the court cautioned against reading into 

the judicial power clause of Article VII (Amended), section 
488 Couey v. Atkins

1, “constitutional barriers to litigation with no support in 

either the text or history of Oregon’s charter of government.” 341 Or at 478. The court noted that the “cases” or 

“controversies” clause of Article III, section 2, of the United 

States Constitution had given rise to an extensive body 

of case law regarding the justiciability of disputes in federal court, which includes such matters as standing, mootness, and ripeness. But, the court observed, “The Oregon 

Constitution contains no ‘cases’ or ‘controversies’ provision.” 

Id. For that reason, the court concluded, “we cannot import 

federal law regarding justiciability into our analysis of the 

Oregon Constitution.” Id. The court noted that, historically, 

Oregon courts have avoided imposing justiciability barriers 

to litigation and have, instead, left such matters to legislative prerogative. Id. at 480-82. In the end, the court found no 

constitutional impediment to the legislature granting any 

person the right to challenge administrative rules, regardless of whether a judicial decision on the matter would affect 

them. Id. at 486.

Thus, on the one hand, Yancy holds that justiciability is a constitutional doctrine, rooted in the conferral of 

“judicial power” under Article VII (Amended), section 1, and 

based in part on case law arising under Article III of the 

federal constitution. But, on the other hand, Kellas holds 

that we should be loath to “import federal law regarding 

justiciability into our analysis of the Oregon Constitution” to 

erect “constitutional barriers to litigation with no support in 

either the text or history of Oregon’s charter of government.” 

341 Or at 478. The fact of the matter is that none of the 

aspects of justiciability that the majority in Yancy listed—

standing, mootness, or ripeness—finds the sort of direct textual support that Kellas suggests is required to support a 

“constitutional barrier to litigation.” The two decisions cannot be reconciled.10

10 It could be argued that the two decisions, in fact, are reconcilable because 

Yancy concerned mootness and Kellas concerned standing. The argument, however, is unavailing. First, Yancy itself describes standing as an aspect of the justiciability required by Article VII (Amended), section 1, contrary to Kellas. Yancy, 

337 Or at 349 (describing both standing and mootness as “encompassed” within 

justiciability). Second, and more importantly, both opinions broadly discuss the 

meaning of the “judicial power” conferred by Article VII (Amended), section 1, in 

fundamentally different and incompatible ways. Third, reading Kellas to apply 

to standing, but not mootness, makes no sense. It would mean that standing is 
Cite as 357 Or 460 (2015) 489

Not surprisingly, Yancy and Kellas have given rise 

to uncertainty about the current state of justiciability doctrine. See, e.g., LaForge v. Dept. of Human Services, 237 Or 

App 500, 502 n 1, 241 P3d 313 (2010) (noting that Yancy

holds that the Oregon Constitution extends “judicial power” 

only to justiciable cases, while Kellas holds that “there is 

no constitutionally grounded justiciability requirement”); 

Pendleton School Dist., 220 Or App at 65 (Yancy and Kellas

“leave the current status of [justiciability] doctrines in some 

doubt”); Friends of Columbia Gorge v. Columbia River Gorge, 

215 Or App 557, 571, 171 P3d 942 (2007) (following Yancy

and Kellas, “[i]t is not clear to us what remains of the previous justiciability jurisprudence of this state”); see also 

Greg Chaimov, “Justiciability,” in Oregon State Bar, Oregon 

Constitutional Law §§ 11.1, 11.4 (2013) (noting “tension” between 

Yancy and Kellas).

The uncertainty that Yancy and Kellas have engendered cannot be ignored. As we have noted, if Yancy was 

correctly decided, then it would seem necessarily to follow 

that ORS 14.175 is unconstitutional. But if Kellas applies, 

there would seem to be no constitutional impediment to the 

legislature conferring the authority to review otherwise 

moot cases that are capable of repetition, yet evading review. 

We turn, then, to a reexamination of the “judicial power” 

provision of Article VII (Amended), section 1, of the Oregon 

Constitution.

not constitutionally required (Kellas), but dismissal for mootness is (Yancy). The 

problem with such a reading is that, as the court explained in Yancy, standing 

and mootness are inextricably related. Mootness, as it is often observed, is simply 

“standing in a time frame.” Henry P. Monaghan, Constitutional Adjudication: 

The Who and When, 82 Yale LJ 1363, 1384 (1973) (“[Mootness] is the doctrine of 

standing in a time frame. The requisite personal interest that must exist at the 

commencement of the litigation (standing) must continue throughout its existence (mootness).”); see also Arizonans for Official English v. Arizona, 520 US 

43, 68 n 2, 117 S Ct 1055, 137 L Ed 2d 170 (1997) (describing mootness as “the 

doctrine of standing in a time frame”); Loisel v. Rowe, 233 Conn 370, 378-79, 660 

A2d 323, 328 (1995) (“Mootness is the doctrine of standing in a time frame.”); 

Realen Valley Forge Greenes Associates v. Upper Merion Twp. Zoning Hearing 

Bd., 941 A2d 739, 743 n 7 (Pa 2008) (same). If it were otherwise, then a case in 

which the legislature authorized “any person” to bring a challenge to a rule or 

statute regardless of personal stake could, upon filing, become instantly moot for 

want of a personal stake in the outcome. Hamel v. Johnson, 330 Or 180, 184, 998 

P2d 661 (2000) (“Even if a case otherwise is justiciable, if the court’s decision ‘no 

longer will have a practical effect on or concerning the rights of the parties,’ then 

the matter will be dismissed as moot.” (quoting Brumnett, 315 Or at 406)). Either 

justiciability is constitutionally required, or it is not.
490 Couey v. Atkins

As a general matter, we examine the text of the constitution in its historical context, along with relevant cases 

interpreting it. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 

65 (1992). In conducting that examination, our purpose is 

not to freeze the meaning of the state constitution to the 

time of its adoption, but is instead “to identify, in light of the 

meaning understood by the framers, relevant underlying 

principles that may inform our application of the constitutional text to modern circumstances.” State v. Davis, 350 Or 

440, 446, 256 P3d 1075 (2011).

The court has, on occasion, characterized the proper 

approach to construing amendments to the state constitution adopted by initiative in slightly different terms. In 

Ecumenical Ministries v. Oregon State Lottery Comm., 318 

Or 551, 871 P2d 106 (1994), the court held that the interpretation of amendments adopted by initiative should be governed by the same process that is used in the interpretation 

of statutes, as provided in PGE, 317 Or at 610-12. PGE, of 

course, imposed a strictly sequential approach to interpretation that did not permit examination of enactment history in the absence of a demonstrated textual ambiguity. 

Analysis of original constitutional provisions under Priest, 

in contrast, imposed no such restriction.

More recently, in Gaines, 346 Or at 171-72, this court 

abandoned the strictly sequential requirements of PGE. In 

consequence, the court has dispensed with the requirement 

of establishing an ambiguity before examining the history 

of a constitutional amendment adopted by initiative. Now, 

as in the case of statutory construction, when construing 

constitutional amendments adopted by initiative, we “consider the measure’s history, should it appear useful to our 

analysis,” without necessarily establishing the existence of 

multiple reasonable constructions of the provision at issue. 

State v. Algeo, 354 Or 236, 245, 311 P3d 865 (2013) (citing 

Gaines).

The effect of that shift in interpretive approach is 

that there remains little, if any, practical distinction between 

our approach to the construction of original provisions of the 

constitution and our method of interpreting provisions later 

adopted by initiative. In all cases, we examine the text, in 
Cite as 357 Or 460 (2015) 491

its historical context and in light of relevant case law, to 

determine the meaning of the provision at issue most likely 

understood by those who adopted it, with the ultimate objective of identifying “‘relevant underlying principles that may 

inform our application of the constitutional text to modern 

circumstances.’” State v. Sagdal, 356 Or 639, 642, 343 P3d 

226 (2015) (quoting State v. Davis, 350 Or at 446). 

1. Constitutional text

The “judicial power” vested in the judicial branch 

was first described in two provisions of the original 1857 

state constitution. Article VII, section 1, provided:

“The Judicial power of the State shall be vested in a Supr[e]

me Court, Circuit[] Courts, and County Courts, which 

shall be Courts of Record having general jurisdiction, to be 

defined, limited, and regulated by law in accordance with 

this Constitution.”

And Article VII, section 9, provided:

“All judicial power, authority, and jurisdiction not vested 

by this constitution or by laws consistent therewith, exclusively in some other Court shall belong to the Circuit Courts, 

and they shall have appellate jurisdiction, and supervisory 

authority over the County Courts, and all other inferior 

Courts, Officers, and tribunals.”

From the bare text of those provisions, at least two things 

are noteworthy. First, nothing in the text of the constitution 

itself defined the term “judicial power.” Second, nothing in 

the text of the constitution itself imposed any limitations 

on its exercise. Neither of the judicial-power provisions was 

patterned after the judicial-power provisions of the federal 

constitution, which expressly limited the exercise of judicial 

power by federal courts to specifically enumerated categories of “cases” and “controversies.”11 To the contrary, the 

11 Article III, section 2, of the United States Constitution provides:

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties 

made, or which shall be made, under their Authority;—to all Cases affecting 

Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty 

and maritime Jurisdiction;—to Controversies to which the United States 

shall be a Party;—to Controversies between two or more States;—between a 

State and Citizens of another State;—between Citizens of different states;—

between Citizens of the same State claiming Lands under Grants of different 
492 Couey v. Atkins

1857 constitution vested “[a]ll judicial power” in the courts, 

without limitation or qualification.

That departure from the federal pattern was 

apparently deliberate. The original Article VII, in fact, was 

one of the few provisions of the 1857 constitution to have 

been largely drafted from scratch. See Claudia Burton, A 

Legislative History of the Oregon Constitution of 1857: Part 

II, 39 Willamette L Rev 245, 393-94 (2003).12

In 1910, the voters amended the constitution, 

approving a new Article VII, which addressed a number of 

different issues pertaining to the courts—in particular, judicial elections and terms of office, jury verdicts in civil cases, 

grand juries, and the standard of review of jury verdicts. 

The new Article VII also eliminated the original Article VII, 

section 9, and reworded section 1 to provide that “[t]he judicial power of the state shall be vested in one supreme court 

and in such other courts as may from time to time be created by law.”

As with the original Article VII, section 1, the new 

version referred to the “judicial power” of the state, but did 

not define or otherwise delineate it. Importantly, Article VII 

(Amended), section 1—like its predecessor—did not include 

any limitations on the “judicial power” that the courts are 

authorized to exercise. In particular, like the original, the 

1910 judicial power provision omitted any reference to the 

sort of “case or controversy” limitations that appear in 

Article III of the federal constitution. 

2. Historical context

Because the text of Article VII (Amended), section 1, 

offers little help in discerning what its framers understood 

States, and between a State or the Citizens thereof, and foreign States, 

Citizens or Subjects.”

12 Carey suggests that the source of Article VII was the 1848 Wisconsin 

Constitution, apparently based on the similarity of wording. The Oregon 

Constitution and Proceedings and Debates of the Constitutional Convention of 

1857 475-76 (Charles Henry Carey ed. 1926). Palmer, on the other hand, says 

that “the article on the judicial department is a combination of (1) the minds 

of the members of the Committee of the Judicial Department, (2) the judicial 

system in vogue under the territorial government, and (3) the Wisconsin judicial 

system as outlined in Article VII, Wisconsin Constitution of 1848.” W.C. Palmer, 

The Sources of the Oregon Constitution, 5 Or L Rev 200, 207 (1926).
Cite as 357 Or 460 (2015) 493

“judicial power” to mean, we must examine the historical 

context of its adoption for possible evidence of a settled 

understanding of the term.

The judicial power of state courts pre-dates the ratification of the federal constitution. It derives from the common law. Van Lom v. Schneiderman, 187 Or 89, 119, 210 P2d 

461 (1949) (“In determining the extent of the limitations 

upon judicial power it is relevant to consider that the power 

to grant a new trial is a common law right inherent in all 

courts of general common law jurisdiction.”).13

a. Early common law

English common-law decisions reveal scant, if any, 

evidence of concerns about what we would now term “justiciability.” To the contrary, English courts recognized the 

right of “strangers”—those with no personal interest in a 

particular dispute—to enforce public rights by prerogative 

writs, such as prohibition, certiorari, quo warranto, and 

mandamus.14 See generally Raoul Berger, Standing to Sue in 

Public Actions: Is It a Constitutional Requirement?, 78 Yale 

LJ 816, 827 (1969). As one prominent scholar explained, 

“The English tradition of locus standi in prohibition and 

certiorari is that a stranger has standing, but relief in 

suits by strangers is discretionary. If, however, the official’s 

lack of ‘jurisdiction’ *** appeared on the face of the record, 

relief followed as of course. *** The rule that a stranger 

has locus standi has been explained on the ground that a 

usurpation of jurisdiction, being an encroachment upon the 

13 See also In re Creighton’s Estate, 60 Neb 796, 84 NW 273, 275-76 (1900) 

(tracing judicial power to common-law courts of England); Ex parte Steinmetz, 

35 Ohio App 491, 496, 172 NE 623, 625 (1930) (judicial power, particularly in 

civil cases, “is largely dependent upon the common law”); Gorham v, Robinson, 

57 RI 1, 186 A 832, 863 (1936) (“[T]he term ‘judicial power’ in section 1 is to be 

interpreted in light of the common law.”); In re Constitutionality of Section 251.18, 

Wis. Statutes, 204 Wis 501, 236 NW 717, 718 (1931) (“What constitutes judicial 

power, within the meaning of our constitution, is to be determined in the light of 

the common law and of the history of our institutions as they existed anterior to 

and at the time of the adoption of the constitution.”).

14 The practice may date back even further, to Roman times. See generally

S.A. de Smith, Judicial Review of Administrative Action 423 (2d ed 1968) (“In 

Roman law it was open to any citizen to bring an action popularis in respect of a 

public delict or to sue for a prohibitory or restitutionary interdict for the protection of res sacrae and res publicae”).
494 Couey v. Atkins

royal prerogative, caused such concern that it made little 

difference who raised the question.”

Louis L. Jaffe, Standing to Secure Judicial Review: Public 

Actions, 74 Harv L Rev 1265, 1274 (1961); see also Cass R. 

Sunstein, What’s Standing After Lujan? Of Citizen Suits, 

“Injuries,” and Article III, 91 Mich L Rev 163, 171 (1992) 

(“Before and at the time of the framing [of the federal constitution], the English practice was to allow strangers to have 

standing in the many cases involving the ancient prerogative writs.”); Steven L. Winter, The Metaphor of Standing 

and the Problem of Self-Governance, 40 Stan L Rev 1371, 

1394-95 (1988) (“[T]he English, colonial, and post-constitutional practices suggest [a common understanding considering] as justiciable actions concerning general governmental 

unlawfulness, even in the absence of injury to any specific 

person, and even when prosecuted by any common citizen 

with information about the alleged illegality.”).

Sir Edward Coke, for example, in the document 

now known as Articulo Cleri, recognized the right of persons who we would modernly describe as lacking “standing” 

to obtain a writ of prohibition. The matter involved a complaint by certain clergy to the King about what they alleged 

to be the unwarranted granting of writs of prohibition by 

courts against the exercise of ecclesiastical jurisdiction. In 

response to the complaint, the judges of the King’s Bench 

said that

“[p]rohibitions by [l]aw are to be granted at any time to 

restraine a [c]ourt to intermeddle with, or execute any 

thing, which by [l]aw they ought not to hold plea of, and 

they are much mistaken that maintaine the contrary. *** 

And the king[‘]s [c]ourts that may award [p]rohibitions, 

being informed either by the parties themselves, or by any 

stranger, that any [c]ourt [t]emporall or [e]cclesiastical 

doth hold plea of that (whereof they have not jurisdiction) 

may lawfully prohibit the same, as well as after judgement 

and execution, as before.”

Edward Coke, 2 Institutes of the Laws of England 602 (1797). 

Blackstone noted the existence of such “popular actions,” 

which he explained “were given to the people in general.” 

William Blackstone, 3 Commentaries *161 (1765). That 
Cite as 357 Or 460 (2015) 495

“strangers” could initiate such popular actions was recognized in England at least through the nineteenth century. 

See, e.g., Wadsworth v. Queen of Spain, 17 QB 171, 214 (1851) 

(Lord Campbell: “We find it laid down in books of the highest authority that, where the court to which prohibition is 

to go has no jurisdiction, a prohibition may be granted upon 

the request of a stranger, as well as the defendant himself. 2 

Coke 607.” (Emphasis in original.)).15

Early American cases likewise reflect little concern 

with what we now think of as justiciability. See Winter, 40 

Stan L Rev at 1374 (“[A] painstaking search of the historical material demonstrates that—for the first 150 years of 

the Republic—the Framers, the first Congresses and the 

[Supreme] Court were oblivious to the modern conception” 

of justiciability.). The word “justiciable,” in fact, does not 

appear in a single court decision before Oregon’s constitution was ratified in 1857.16 The sixth edition of Bouvier’s law 

dictionary, published in 1856, does not even include an entry 

for the word. John Bouvier, A Law Dictionary: Adapted to 

the Constitution and Laws of the United States of America 

and of the Several States of the American Union (6th ed 

1856). So far as we can determine, the term first appeared 

in Tyler v. People, 8 Mich 320, 337 (1860), in which a concurring opinion used the term to refer to the extent to which the 

courts can provide a remedy, as a matter of substantive law. 

Later cases used the term to refer to the extent to which the 

court has jurisdiction to decide a matter. See, e.g., Ex parte 

15 One author has challenged the notion that English courts did not require 

a personal stake in the outcome as a prerequisite to initiating prerogative proceedings. Bradley S. Clanton, Standing and the English Prerogative Writs: The 

Original Understanding, 63 Brook L Rev 1001, 1008 (1997). His argument, 

however, does not contest that private parties were permitted to initiate public 

actions without a showing of a personal stake; rather it contends that, because 

such actions were predicated on the fiction that private parties initiated public 

actions in the name of the King, those cases are simply “irrelevant.” Id. at 1033. 

As other scholars have noted, that argument does not really undermine the fundamental fact that there was no suggestion that the judicial power did not include 

the authority to entertain such privately initiated public actions. See, e.g., Edward 

A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show 

that Standing Doctrine Is Looking for Answers in All the Wrong Places, 97 Mich L 

Rev 2239, 2241 n 15 (1999).

16 That is, in English. Two Louisiana Supreme Court decisions used the word 

“justiciable,” but they did so in quoting pleadings that had been filed in French. 

State v. Martin, 2 La Ann 667 (1847); State v. Grailhe, 1 La Ann 183 (1846).
496 Couey v. Atkins

McNeely, 36 W Va 84, 14 SE 436, 439 (1892) (“But I regard 

it a question of jurisdiction arising under the constitution; 

and that nowhere in the state can trial be had except in that 

county where the offense is committed, and if not enough of 

the act occurred in the county of death to enable us to say 

that the offense was committed there, then it has no jurisdiction, nor has any county in the state; for I construe the 

clause as meant to be co-extensive with all criminal acts 

justiciable under the power of the state.”); Thwing v. Great 

Western Ins. Co., 111 Mass 93, 97 (1872) (cases “were not 

justiciable in Massachusetts”).

Nineteenth-century case law, although perhaps not 

using the modern vocabulary of “justiciability,” nevertheless 

did touch on the matter in two respects: standing to pursue 

prerogative writs and mootness.

b. Nineteenth-century case law: prerogative writs

Nineteenth-century American case law drew a 

distinction between obtaining prerogative writs to enforce 

private rights and those to enforce public rights. In the former case, the authorities required a showing of a personal 

legal interest, as a matter of substantive law (not—it bears 

some emphasis—as a matter of constitutional authority to 

exercise judicial power). In the latter case, the authorities 

required no such showing; as with the English authorities, 

American courts recognized that strangers with no particular personal interest could bring such actions to vindicate 

public rights. As the Supreme Court of Illinois explained in 

Pike County Comm’rs. v. People ex rel. Metz, 11 Ill 202, 207-

08 (1849):

“The question, who shall be the relator * * * depends upon 

the object to be attained by the writ. Where the remedy 

is resorted to for the purpose of enforcing a private right, 

the person interested in having the right enforced, must 

become the relator. * ** A stranger is not permitted officiously to interfere, and sue out a mandamus in a matter 

of private concern. But where the object is the enforcement 

of a public right, the People are regarded as the real party, 

and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a 
Cite as 357 Or 460 (2015) 497

citizen, in having the laws executed, and the right in question enforced.”17

Reviewing the case law on the subject several decades later, 

the United States Supreme Court noted the Illinois Supreme 

Court’s decision and commented that “[t]here is ** * a 

decided preponderance of American authority in favor of the 

doctrine, that private persons may move for a mandamus to 

enforce a public duty, not due to the government as such.” 

Union Pacific R.R. v. Hall et al., 91 US 343, 355, 23 L Ed 

428 (1875). Whether to grant relief to such private persons 

with no personal stake, the court observed, was “discretionary with the court, and it may well be assumed that it will 

not be unnecessarily granted.” Id. But, importantly, there 

is no mention in that case—or, indeed, in any of the case 

law—about a constitutional impediment to granting relief to 

persons who lacked such a personal interest in the outcome 

beyond an interest in having the law properly enforced.

To be sure, the rule was not universally recognized. 

A few courts rejected the idea that one without a personal 

interest could bring an action for a prerogative writ.18 In 

Sanger v. County Comm’rs., 25 Me 291, 296 (1845), for example, the Maine Supreme Court explained that it has for a 

very long time been well-settled law in the state that “a 

private individual can apply for this remedy only in those 

cases where he has some private or particular interest to be 

subserved * ** independent of that which he holds in common with the public at large; and it is for the public officers, 

17 See also Hamilton v. State ex rel. Bates, 3 Ind 452, 458 (1852) (“Were this a 

case merely for private relief, the relator would have to show some special interest. But here the case is different. *** It is a case for the enforcement, not of 

a private, but of a public right; and it is not necessary, in such cases, that the 

relator should have a special interest in the matter, or that he should be a public 

officer.”); State ex rel. Rice v. Marshall County Judge, 7 Iowa 186, 187 (1858) (“In 

a matter of public right, any citizen may be a relator in application for a writ of 

mandamus.”); People ex rel. Case v. Collins, 19 Wend 56, 56 (1837) (“In the matter 

of a public right, any citizen of the state may be a relator in an application for a 

mandamus, (where that is the appropriate remedy,) to enforce the execution of 

the common law or of an act of the legislature; it is otherwise in cases of private

or corporate rights.” (Emphasis in original.)).

18 Modern scholarship explains what was, at the time, the minority view as 

a product of misconceptions about the nature of the English precedents, in particular, the fact that Blackstone discussed mandamus only in the portion of his 

Commentaries devoted to private remedies. Winter, 40 Stan L Rev at 1403 n 167.
498 Couey v. Atkins

exclusively to apply where public rights are to be subserved.”19

But the court reached that conclusion as a matter of substantive law. Again, there is no mention of a constitutional

impediment to courts entertaining actions initiated by parties who lack a personal stake in the outcome. That idea 

did not surface in the case law until the twentieth century. 

Indeed, as late as 1905, the author of a treatise on administrative law summarized the law pertaining to obtaining 

prerogative writs: “The courts * ** have held with regard 

to the quo warranto that it may be issued on the demand of 

any citizen of responsibility; and the better rule would seem 

to be that in matters of public concern any citizen or taxpayer may apply for the mandamus.” Frank Goodnow, The 

Principles of Administrative Law of the United States 432 

(1905). 

In short, both in 1857, when the original state constitution was adopted, and in 1910, when the people adopted 

Article VII (Amended), section 1, the general rule was that 

persons with no personal stake could initiate public actions 

to vindicate public rights. The fact that such actions could 

be maintained is incompatible with constitutional conceptions of standing and justiciability that later developed in 

the twentieth century.20 Even in states in which courts held 

that a private stake was required, the prerequisite was a 

function of substantive law. In no case of which we are aware 

did a court conclude that a private stake in the outcome of a 

controversy was required for the courts to exercise “judicial 

power.”

c. Nineteenth-century case law: mootness

There is little discussion in nineteenth-century 

decisions of dismissing “moot” cases. In large part, that is 

because the word “moot” meant something different in that 

century than it came to mean in later years. Matthew Hall, 

The Partially Prudential Doctrine of Mootness, 77 Geo Wash 

19 See also People ex rel. Drake v. Regents of the Univ. of Mich., 4 Mich 98, 103 

(1856) (declining to follow New York and Illinois mandamus practice).

20 As Professor Sunstein explains, the first appearance of “standing” in the 

sense that we use the term today to connote an aspect of justiciability did not 

occur until the early twentieth century, and the constitutionalization of standing 

did not occur until even later than that. Sunstein, 91 Mich L Rev at 179-81.
Cite as 357 Or 460 (2015) 499

L Rev 562, 568 (2009). In the early to mid-nineteenth century, an argument that was “moot” was one that was open 

to argument; when an argument had been “mooted,” that 

meant that it had been argued. See Black’s Law Dictionary

1029 (8th ed 2004) (listing “archaic” definitions of “moot”). 

Thus, for example, in Leonora v. Scott, 10 La 651, 651 (1855), 

the Louisiana Supreme Court noted that, “[s]everal points 

were mooted in the court below and generally decided in 

favor of the plaintiff.”21 Not until the late-nineteenth and 

early twentieth centuries did courts begin to use the term 

“moot” in the sense that is familiar to us now.

Still, courts during the nineteenth century confronted the problem that we now describe as “mootness,” 

whether because parties “feigned disputes” or because 

events rendered actual disputes “abstract” or “hypothetical.” 

And the consistent—indeed, so far as we can tell, uniform—

practice of the state courts was to treat the dismissal of moot 

cases as a matter of discretion, not constitutional imperative. Hall, The Partially Prudential Doctrine of Mootness, 

77 Geo Wash L Rev at 569 (“[N]ineteenth-century decisions 

generally do not indicate that the court lacked authority to 

hear moot cases. Rather, courts dismissed moot cases using 

language suggesting an exercise of discretion.”). We have 

been unable to identify a single state-court decision from 

the nineteenth century that dismissed a case on the ground 

that deciding moot cases exceeded the “judicial power” conferred by the state constitution. 

21 See also Logan v. State, 28 Tenn 24, 26 (1848) (“Some other points have 

been mooted, but not seriously pressed, in this case; we think there is nothing 

in them, and that they need no discussion by the court.”); Swain v. People, 5 Ill 

178, 178 (1843) (“[T]hese points are too well settled and established to be ever 

mooted in the English courts.”); Vantilburgh v. Shann, 24 NJL 740, 749 (1853) 

(“But appellate courts will not reverse for causes not mooted, or objections not 

raised in the court below.”); State v. Boehler, 220 Mo 4, 4, 119 SW 385, 385 (1909) 

(“In the motion in arrest the constitutionality of the local option law was mooted 

for the first time.”); Holland v. Depriest, 130 Mo 89, 89, 31 SW 928, 928 (1895) 

(“[T]he constitutionality of [a statute] was not mooted in any manner in the circuit court.”); Wellborn v. Estes, 70 Ga 390, 404 (1883) (“We do not propose to enter 

upon the discussion of the much mooted and stubbornly contested point.”); In re 

Wilson, 10 NM 32, 32, 60 P 73, 74 (1900) (“The scope and effect of the commerce 

clause of the constitution of the United States has been a much-mooted question 

before the courts, both state and federal.”); City of St. Louis v. Flynn, 128 Mo 413, 

31 SW 17, 20 (1895) (“This conclusion obviates an inquiry into the various constitutional questions mooted in the briefs.”).
500 Couey v. Atkins

Illustrating the “feigned dispute” category of cases 

is Blair v. State Bank of Illinois, 8 Mo 313, 313 (1843), in 

which the parties attempted to stipulate to facts that actually did not exist to obtain a ruling from the court. The 

Missouri Supreme Court dismissed the appeal, explaining 

that “we do not feel ourselves at liberty to entertain questions presented in the manner in which this is done.” Id. at 

315. Likewise, in Smith v. Cudworth, 41 Mass 196 (1837), the 

parties agreed that the court could decide an issue that had 

not actually arisen between them. The court dismissed that 

appeal, as well, explaining that entertaining the gambit 

“would convert the highest tribunal in the State into a 

moot court to decide questions which might never arise, or 

to lay down rules for the government of cases in which the 

real parties would have had no opportunity to be heard. 

The members of this [c]ourt * ** have quite labor enough 

to perform the duties which necessarily and legally devolve 

upon them.”

Id. at 197.

In other types of moot cases, nineteenth-century 

and early twentieth-century courts ruled similarly, not on 

the basis of a perceived constitutional limitation, but rather 

as a matter of prudence and discretion—often stating what 

the courts “will not,” or are not “disposed to,” decide. In State 

ex rel. Martin v. Sloan, 69 NC 128 (1873), for example, the 

business that was the subject of the action had been sold 

by the time the case reached the North Carolina Supreme 

Court. The court concluded that the business “having been 

sold, neither party has any interest in the case except as to 

cost. When that is the case, we are not in the habit of deciding the case.”22 Id. at 128. There is no mention of a lack of 

constitutional “judicial power” to decide the case.

22 See also Sawyer v. City of Blakely, 2 Ga App 159, 159, 58 SE 399, 400 (1907) 

(“Courts will not gratuitously decide moot constitutional questions.”); Aiken v. 

City of Columbus, 167 Ind 139, 78 NE 657, 661 (1906) (“In no instance is this 

court disposed to decide moot questions.”); Chicago, I. & L. R. Co. v. Indianapolis 

& N.W. Traction Co., 165 Ind 453, 74 NE 513, 515 (1905) (“[T]he constitutional 

question advanced must be regarded in the nature of a moot question, which this 

court will not consider.”); Chicago, R.I & P. Ry. Co. v. Territory, 21 Okla 329, 97 

P 265, 266 (1908) (“It has been held * ** that ‘the Supreme Court will not decide 

abstract or hypothetical cases disconnected from the granting of actual relief, or 

from the determination of which no practical relief can follow.’”).
Cite as 357 Or 460 (2015) 501

Precisely because the courts regarded the subject 

as one of judicial discretion, in the late-nineteenth and 

early twentieth centuries they fashioned exceptions to the 

general practice of dismissing moot cases. For example, in 

the late-nineteenth century, state courts began to hold that 

cases involving issues of particular “public importance” 

would be decided, even if otherwise moot. People ex rel. Press 

Publ’g. Co v. Martin, 142 NY 228, 36 NE 885 (1894), provides 

an illustration of the development. In that case, the relator 

challenged the lawfulness of certain election practices. But 

by the time the matter came to decision, the election had 

already taken place. The court nevertheless addressed the 

legal issues presented, explaining that, “while the time has 

long since passed when any decision in this matter can have 

any practical, efficient operation, we will, in view of the public importance of the questions involved, overlook that circumstance and proceed to the determination of the matter 

upon its merits.” Id. at 234.23

Thus, once again, at the time of the framing of the 

1857 constitution, as well as the adoption of the 1910 amendments to it, there was no suggestion in the case law that 

the “judicial power” that may be exercised by the courts 

included a limitation on the authority of the courts to decide 

moot cases. To the contrary, courts disposed of moot cases 

as a matter of prudence, discretion, and judicial economy. 

Consistently with that view of the judicial power, courts by 

the time of the adoption of Article VII (Amended) recognized 

exceptions to the dismissal of moot cases, especially in cases 

of public importance. The existence of such exceptions is 

fundamentally incompatible with the idea that the judicial 

power excluded the authority to decide moot cases.

23 See also State ex rel. Keltgen v. McMahon, 94 Minn 532, 532, 103 NW 1133, 

1133 (1905) (ruling on whether the respondent to the quo warranto action had 

unlawfully usurped a public office, even though the term of office had already 

expired); Cuyahoga County Department State Sup’rs v. State ex rel. Green, 26 Ohio 

CD 521, 523 (1908) (“The first two grounds suggest that any order this court 

might make now would be a brutum fulmen; that naught remains but an academic question. We do not think the point well taken. A proper interpretation 

of election laws is of so much importance to all our citizens that the courts must 

answer questions with regard thereto when submitted to them, notwithstanding 

the fact that the rights of individual are usually determined in such matters 

before the reviewing courts can pass upon them, by the holding of an election.”).
502 Couey v. Atkins

d. Federal case law and justiciability

As we have noted, Article III of the federal constitution limits federal court exercise of judicial power to enumerated “cases” and “controversies.” In the latter half of 

the twentieth century, federal courts developed a doctrine 

of justiciability—embracing various components including 

standing, mootness, and ripeness—predicated on that textual limit on the judicial power. Two points in that regard 

are significant for our purposes.

First, the foregoing doctrinal developments were 

expressly based on the text of Article III, which limits the 

exercise of judicial power to “cases” or “controversies.” As 

we have noted, Oregon’s constitution—like nearly all state 

constitutions—does not include that textual limitation on 

the exercise of judicial power. Rather, it is well settled that 

state judicial power, unencumbered by a case-or-controversy 

limitation, is “plenary.” See, e.g., Borrego v. Territory, 8 NM 

446, 46 P 349, 363 (1896) (“judicial power * ** is thus vested 

in plenary terms”); Floyd v Quinn, 24 RI 147, 52 A 880, 881 

(1902) (“[T]he vesting of the judicial power is plenary and 

exclusive.”).

Second, the development of federal justiciability 

doctrine as a constitutional limitation rooted in Article 

III did not occur until well into the twentieth century. For 

example, the first mention of mootness as a constitutional 

impediment to a federal court’s exercise of judicial power did 

not occur until 1964, in Liner v. Jafco, Inc., 375 US 301, 306 

n 3, 84 S Ct 391, 11 L Ed 2d 347 (1964) (“[O]ur lack of jurisdiction to review moot cases derives from the requirements 

of Article III of the [c]onstitution under which the exercise 

of judicial power depends upon the existence of a case or 

controversy.”).24 Before that time, it had been settled law 

24 Especially interesting is the fact that the authorities that the United States 

Supreme Court cited in support of that conclusion consisted of two law review 

articles, not prior case law. Moreover, the law review articles actually offered 

faint support for the proposition for which the Court cited them. The first of the 

two articles did not even assert that the rule against deciding moot cases was 

constitutionally based. Rather, it said that, “[u]nder the Federal Constitution, the 

courts of the United States can render decisions only in ‘cases’ and ‘controversies.’ 

However, these terms inherently are capable of many varying interpretations 

and have never been defined authoritatively. Hence, any restriction of judicial 

power created by construction of such terms may properly be termed self-imposed.” 
Cite as 357 Or 460 (2015) 503

that “the mootness doctrine was treated simply as a rule of 

economy and good sense in judicial administration.” Tribe, 

American Constitutional Law § 3-11, at 82 n 1. As with the 

state court decisions that we have discussed, federal courts 

in the nineteenth and early twentieth centuries certainly 

did dismiss moot cases, but they did so for prudential reasons; none mentioned the Constitution or Article III as the 

source of the ruling. For example, in Smith v. United States, 

94 US 97, 97, 24 L Ed 32 (1876), the defendant in a criminal case absconded from custody during the pendency of 

the appeal. The United States Supreme Court declined to 

address the merits of the appeal, explaining that, “we are 

not inclined to hear and decide what may prove to be only a 

moot case.”25

And, also like their state-court counterparts, the 

federal courts developed exceptions to the general rule of 

dismissal of moot cases. In 1897, for instance, the United 

States Supreme Court recognized a public-interest exception. In U.S. v. Freight Association, 166 US 290, 17 S Ct 540, 

41 L Ed 1007 (1897), the federal government challenged 

the lawfulness of a price-fixing association of railway companies. The trial court dismissed the action, and the court 

of appeals affirmed. The government sought review in the 

United States Supreme Court. But, while review was pending, the members of the association under challenge voted to 

dissolve it. They then sought dismissal on the ground that 

the matter had become moot. The Supreme Court, however, 

declined to grant the dismissal, because deciding otherwise 

Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U Pa L Rev 772 

(1955) (emphasis added). The other article asserted that a moot case “is neither 

a case nor a controversy in the constitutional sense,” without further elaboration 

or supporting authority. Sidney A. Diamond, Federal Jurisdiction to Decide Moot 

Cases, 94 U Pa L Rev 125 (1946).

25 See also Allen v. Georgia, 166 US 138, 140, 17 S Ct 525, 41 L Ed 949 (1897) 

(“[W]e have repeatedly held that we would not hear and determine moot cases.”); 

The Richmond &c. Railroad Co. v. Louisa. Railroad Co., 54 US 71, 82, 14 L Ed 55 

(1851) (“But however probable as this dispute or contest may be, it is not for this 

court to anticipate it, and volunteer an opinion in advance.”); Lord v. Veazie, 49 

US 251, 254-55, 12 L Ed 1067 (1850) (“[A]ny attempt, by a mere colorable dispute, 

to obtain the opinion of the court upon a question of law which a party desires 

to know for his own interest or purposes, when there is no real and substantial 

controversy between those who are adverse parties to the suit, is an abuse which 

courts of justice have always reprehended.”).
504 Couey v. Atkins

would encourage strategic avoidance of adverse appellate 

court decisions on matters of public interest:

“The defendants having succeeded in the court below, it 

would only be necessary thereafter to dissolve their association and instantly form another of a similar kind, and the 

fact of the dissolution would prevent an appeal to this court 

or procure its dismissal if taken. This result does not and 

ought not to follow.”

Id. at 309. The Court noted that, of course, “private parties may settle their controversies at any time.” Id. In this 

instance, however, the Court explained that the voluntary 

dissolution of the challenged association did not result in 

an “extinguishment of the rights (whatever they are) of 

the public, the enforcement of which the government has 

endeavored to procure by a judgment of a court.” Id.

26

And, in 1911, the Court—relying on its decision in 

Trans-Missouri Freight Ass’n.—recognized an additional 

exception for cases that otherwise would be moot, but are 

capable of repetition and concern a matter of public interest. So. Pac. Terminal Co, 219 US at 514. Importantly, the 

Court’s opinion made no mention of the judicial power or any 

limitations on it derived from Article III; only that the court 

thought it prudent to recognize an exception to its usual 

practice of dismissing moot cases.

e. Federal case law and advisory opinions

An additional bit of historical context must be 

addressed, concerning the rule against issuance of advisory opinions, because the rule against advisory opinions 

has been invoked as a justification for broader justiciability 

doctrines. Historically, the English courts were no strangers to advisory opinions. See generally Stewart Jay, Most 

Humble Servants: The Advisory Role of Early Judges 4 

26 See also Boise City Irr. & Land Co. v. Clark, 131 F 415, 418-19 (9th Cir 

1904) (“It is contended on the part of the appellees that, as the period for which 

the rate in question was fixed has expired, the case has become but little, if any, 

more than a moot case; but the courts have entertained and decided such cases 

heretofore, partly because the rate, once fixed, continues in force until changed as 

provided by law, and partly because of the necessity or propriety of deciding some 

question of law presented which might serve to guide the municipal body when 

again called upon to act in the matter.”).
Cite as 357 Or 460 (2015) 505

(1997) (“For centuries British judges had been called upon 

to advise the Crown and its ministries, often by providing 

formal advisory opinions on legal questions.”); Evan Tsen 

Lee, Deconstitutionalizing Justiciability: The Example of 

Mootness, 105 Harv L Rev 603, 639 n 204 (1992) (“Historical 

English practice appears to have been quite familiar with 

advisory opinions.”). As early as 1575, the government 

asked judges to provide advice as to the execution of penal 

statutes and the administration of the Poor Laws. See W.S. 

Holdsworth, 4 A History of English Law 75 n 4, 76 n 3 (2d ed 

1937).

Colonial American governments followed the British 

practice, with judges “continually involved in the process of 

advising executive and legislative bodies.” Jay, Most Humble 

Servants, at 52. Even after the Revolution, at least at first, 

the prevalent view was that the President of the United 

States had the right to obtain advice from the Supreme 

Court. See generally Mel A. Topf, The Jurisprudence of the 

Advisory Opinion Process in Rhode Island, 2 Roger Williams 

U L Rev 207, 210 (1997); Note, The Advisory Opinion and 

the U.S. Supreme Court, 5 Fordham L Rev 94, 102 (1936). 

In 1790, for instance, President Washington wrote the 

Justices of the Supreme Court requesting their opinions on 

the Justices’ duties as circuit riders under the newly formed 

judiciary system; the Justices responded that a statutory 

requirement that they ride circuit was constitutionally dubious. Robert P. Dahlquist, Advisory Opinions, Extrajudicial 

Activity and Judicial Advocacy: A Historical Perspective, 14 

Sw U L Rev 46, 50-51 (1983); see also Stewart Jay, Most 

Humble Servants, at 2 (“Supreme Court justices in the 1790s 

did counsel the executive on a number of occasions.”).

Later in the 1790s, however, the federal courts concluded that they could not issue advisory opinions in two 

categories of cases. The first category involved legislation 

that required judges to make decisions that were subject to 

review by other branches of government. Hayburn’s Case, 2 

US 408, 1 L Ed 436 (1792), involved just such a statute, one 

that authorized the federal courts to determine veterans’ 

disability benefits subject to review by the Secretary of War 

and, ultimately, Congress. Three justices of the Supreme 
506 Couey v. Atkins

Court, who had been sitting as circuit court judges on cases 

arising under that statute, concluded that the statute was 

unconstitutional, because it authorized judges to issue decisions reviewable by the executive and legislative branches. 

The Attorney General filed a petition for a writ of mandamus to enforce the law. While the action was pending, 

however, Congress changed the statute. The Court declined 

to grant relief because, it explained, Congress had already 

done so. Id. at 409-10. In other words, the Court concluded 

that the case had become moot (although it did not use that 

term).

Interestingly, the Court published, as an unnumbered footnote, the decision of the three justices declaring 

the now-amended statute unconstitutional because “the reasons assigned by the judges, for declining to execute the first 

act of Congress, involve a great constitutional question.” Id.

at 410 n *. The note explains that the three justices concluded that the statute was unconstitutional because it rendered their opinions only “advisory,” in the sense that they 

are reviewable by a non-judicial government official. The 

three justices explained:

“That by the constitution of the United States, the government thereof is divided into three distinct and independent 

branches, and that it is the duty of each to abstain from, 

and to oppose, encroachments on either. That neither the 

legislative nor the executive branches, can constitutionally 

assign to the judicial any duties but such as are properly 

judicial, and to be performed in a judicial manner. That 

the duties assigned to the circuit by this act are not of that 

description * ** inasmuch as it subjects the decisions of 

these courts, made pursuant to those duties, first to the 

consideration and suspension of the secretary of war, and 

then to the revision of the legislature.”

Id. at n *. Since its publication, Hayburn’s Case has become 

known chiefly for the footnoted opinion of the three justices 

sitting as circuit court judges, which, in the nineteenth century, was cited for the proposition that judges should not 

issue “advisory” opinions that were reviewable by other 

branches of government. See, e.g., United States v. Ferreira, 

54 US 40, 49, 14 L Ed 40 (1852) (a judge who makes decisions 
Cite as 357 Or 460 (2015) 507

that are subject to review by other branches of government 

is not exercising “judicial power”; citing Hayburn’s Case).

As scholars since have noted, Hayburn’s Case, as 

well as Ferreira, involved a very particular type of “advisory” opinion—one that involved a judge rendering an opinion that was subject to review by another branch of government, which violated constitutional principles of separation 

of powers. See, e.g., Lee, Deconstitutionalizing Justiciability, 

105 Harv L Rev at 646 (the circuit courts, in Hayburn’s 

Case, concluded that the statute “violated the constitutional 

imperative of an independent judiciary in a national government of separated powers”).27

The second category of advisory opinions involved 

requests for judicial opinions outside the context of any 

judicial proceeding. In 1793, President George Washington 

asked Chief Justice John Jay to answer 29 questions put to 

the Court by concerning the propriety of a policy of neutrality toward France. The Chief Justice declined to answer any 

of the President’s questions, explaining that 

“the lines of separation drawn by the Constitution between 

the three departments of government. These being in certain respects checks on each other—and our being judges of 

a court of the last resort—are considerations which afford 

strong arguments against the propriety of our extrajudicially deciding the questions alluded to.”

Letter from Chief Justice John Jay and Associate Justices to 

President Washington (August 8, 1793), in 3 Correspondence 

and Public Papers of John Jay, 1782- 1793, at 488 (Henry P. 

Johnson ed. 1891). Again, the circumstances were particular—calling for advice, and not a judicial decision—and the 

justifications for refusing to address the President’s questions were couched in terms of judicial independence and 

separation of powers. 

27 Indeed, the case actually was decided on narrower grounds than that. 

Strictly speaking, Hayburn’s Case turned on whether the Attorney General could 

prosecute the action without first seeking authorization from the President. See 

generally Maeva Marcus and Robert Teir, Hayburn’s Case: A Misinterpretation 

of Precedent, 1988 Wisc L Rev 527. Nineteenth-century cases, however, seized 

on the footnote and cited the case to support separation-of-powers arguments. 

Id. at 541. Importantly, it was not until 1926 that Hayburn’s Case was cited for a 

broader “case-or-controversy” rule. Tutun v. United States, 270 US 568, 576, 46 S 

Ct 425, 70 L Ed 738 (1926).
508 Couey v. Atkins

f. Nineteenth-century Oregon cases 

Decisions of this court on the subject of justiciability generally, and mootness particularly, are few. Without 

exception, however, they reflect the view that the judicial 

power of the state broadly includes the authority to hear 

cases, particularly cases of public importance, without 

regard to whether the cases are moot or have been brought 

by individuals without a personal stake in the outcome.

In Burnett v. Douglas County, 4 Or 388 (1873), a 

county court had issued an order concerning the redemption 

of certain county-issued warrants. Several taxpayers sought 

a writ of review, challenging the lawfulness of that order in 

circuit court. The circuit court denied the writ, and the taxpayers appealed. This court affirmed. The court explained 

that the writ ordinarily would not issue unless the challenged decision was “judicial” in nature; that is, the challenged decision must concern the rights of individual parties 

who had sought relief from a court. Id. at 391-92. In contrast, 

the court said, nonjudicial “general order[s]” are treated differently. Id. A “general order,” the court explained, is one that 

“d[oes] not and cannot affect any particular person or class 

of persons,” but “will continue to operate in a very general 

manner upon the entire body of the taxpayers of the county.” 

Id. at 392. According to the court, “[i]n all cases where the 

proceeding sought to be reviewed involves a matter of public 

interest affecting a great number of persons, the allowance 

of the writ is in the sound discretion of the [c]ourt, and if 

refused, the refusal is not subject to review or appeal.” Id.

Thus, the court’s decision was consistent with the general 

rule of nineteenth-century cases that we have described 

above, recognizing the justiciability of cases involving a matter of “public interest,” regardless of whether they were initiated by a person with a personal stake in the outcome.

In State v. Ware, 13 Or 380, 10 P 885 (1886), the 

relator sought a writ of mandamus to correct certain election 

notices. At oral argument, a question arose about whether 

the relator had any personal interest in the outcome of the 

matter independent of the interest of the public generally. 

The court ultimately decided that the lack of such a personal stake was no impediment to proceeding to the merits:
Cite as 357 Or 460 (2015) 509

“[T]he decided weight of authority supports the proposition 

that, where the relief is merely for the protection of private 

rights, the relator must show some personal or special interest in the subject-matter, since he is regarded as the real 

party in interest, and his right must clearly appear. On the 

other hand, where the question is one of public right, and 

the object of the mandamus is to procure the enforcement 

of a public duty, the people are regarded as the real party, 

and the relator, at whose instigation the proceedings are 

instituted, need not show that he has any legal or special 

interest in the result.”

Id. at 382-83 (emphasis in original). Again, the court’s 

description of the law thus was consistent with the commonlaw tradition concerning initiating public actions, dating 

back to pre-Revolutionary England. See also State ex rel. 

Durkheimer v. Grace, 20 Or 154, 158, 25 P 382 (1890) (“[A]

s the question at bar is one of public right, and the object 

of the mandamus is to enforce the performance of a public 

duty * ** it is not necessary that the relators should show 

any special interest or particular right to be affected by the 

result.”).

And to similar effect is David v. Portland Water 

Committee, 14 Or 98, 12 P 174 (1886), in which a number of 

taxpayers challenged the authority of a statutorily created 

“water committee” to issue bonds. At the time they initiated 

the action, though, the committee had not yet levied a tax on 

the taxpayers. The court noted that “[a] question has been 

raised as to the right of the [taxpayers] to maintain the suit, 

as to whether they have any standing in court.” Id. at 125. 

The court opined that its “impressions” were “adverse to 

the right.” Id. Nevertheless, “in view of the importance of 

the case, we have concluded not to consider [the standing 

issue].” Id.

g. Significance of the historical context

The foregoing examination of the historical context—of the 1857 constitution and, particularly, of the 1910 

amendments—shows a complete absence of evidence that 

the framers would have understood the “judicial power” 

conferred in either 1857 or in 1910 to have been limited to 
510 Couey v. Atkins

what we now term “justiciable” cases. To the contrary, the 

relevant case law shows that courts permitted persons with 

no personal stake in the outcome to initiate “public actions” 

and that, while moot cases could be dismissed, the decision 

to do so was one of judicial discretion and could depend on 

whether the issues were of particular public importance. 

Federal case law was entirely consistent with that state law 

practice, culminating in the explicit recognition of exceptions to the mootness doctrine for cases of public interest 

and cases that are capable of repetition, yet evade review. 

The notion that federal courts are without constitutional 

authority to decide “nonjusticiable” cases did not emerge 

until well into the twentieth century.

To recap the bidding so far, then: Nothing in the text 

of Article VII, section 1, or Article VII (Amended), section 1, 

imposes any limitations on the exercise of “judicial power.” 

In particular, there are no “case or controversy” limitations 

of the sort that are imposed under Article III of the United 

States Constitution. Nor are there any explicit references to 

a lack of constitutional authority to hear cases initiated by 

parties lacking a personal stake in the outcome. Moreover, 

nothing in the historical context of either provision of the 

Oregon Constitution lends support for the notion that the 

framers would have understood them to have included such 

limitations implicitly because of the very nature of the term 

“judicial power,” at least not in public action cases or those 

involving issues of “public importance.” 

3. Later Oregon case law

We turn, then, to an examination of Oregon cases 

decided after the adoption of the 1910 amendments. As we 

have noted, the court has not been consistent in its views 

of justiciability generally, and mootness particularly. 

Rather, over the course of the last 100 years, the cases have 

veered back and forth between regarding justiciability as 

a constitutional imperative and treating it as a prudential 

consideration.

The court began to address justiciability in the 

declaratory judgment context. In Oregon Cry. Mfgs. Ass’n,

159 Or at 100, a group of dairy processors and distributors 
Cite as 357 Or 460 (2015) 511

challenged the constitutionality of the Oregon Agricultural 

Marketing Act. At the time they initiated the declaratory 

judgment action, however, the act had not yet been applied 

to them. This court held that the matter was not justiciable. “Deciding hypothetical cases,” the court explained, “is 

not a judicial function. Neither can courts, in the absence 

of constitutional authority, render advisory opinions.” Id. at 

109. The court cited no Oregon case law for that assertion. 

Rather, it cited a then-recent decision of the United States 

Supreme Court, Electric Co. v. Comm’n., 303 US 419, 58 S Ct 

678, 82 L Ed 936 (1938), in which the Court declined to hear 

a similar challenge arising under the Federal Declaratory 

Judgment Act.

But, in Perry v. Oregon Liquor Commission, 180 Or 

495, 177 P2d 406 (1947), the court took a different approach 

to justiciability. In that case, the plaintiff challenged the 

suspension of her license to serve liquor. By the time that 

her case reached the Oregon Supreme Court, however, the 

period of suspension had expired. The court noted that the 

expiration of the suspension did moot the appeal, but it 

decided the merits of the case anyway:

“We agree that courts ordinarily do not determine moot 

questions. There is, however, a well recognized exception to 

this general rule. Where the question is one involving the 

public welfare, and there is a likelihood of it being raised 

again in the future, a court in the exercise of its discretion 

may decide it for the guidance of an official administrative 

agency.”

Id. at 498-99.28

28 Perry was later followed in a number of cases. See, e.g., State ex rel. v. 

Newbry et al., 196 Or 331, 337, 248 P2d 840 (1952) (“[W]e shall determine the 

case on the merits, even though it be moot[.] * ** We are moved to do so by the 

general public interest.”); State ex rel. v. Smith et al., 197 Or 96, 126, 252 P2d 

550 (1953) (“Even if we assume, arguendo, that the Company’s tax payment did, 

in fact, render the present controversy moot, we are, nonetheless, moved to a 

determination of the cause because of the evident general public interest in the 

result.”); Linklater v. Nyberg, 234 Or 117, 120, 380 P2d 631 (1963) (“[N]othing 

remains for the writ to operate upon and the case in that sense has become moot. 

*** Be that as it may, there is a question here of sufficient general public interest 

to warrant its consideration and decision.”); Stowe v. School Dist. No 8-C, 240 

Or 526, 528, 402 P2d 740 (1965) (“It is apparent from the facts that the issue is, 

in reality, moot. Because of the public nature of the question presented and the 

likelihood that it will recur we will decide the case.”)
512 Couey v. Atkins

Dickman et al v. School Dist. 62C et al, 232 Or 238, 

366 P2d 533 (1962), is likewise difficult to reconcile with 

the approach to justiciability reflected in Oregon Cry. Mfgs. 

Ass’n. In that case, the plaintiff taxpayers challenged the 

constitutionality of a state statute that authorized the distribution of publicly-funded textbooks to all schools, including parochial schools operated by the Catholic Church. On 

appeal, the defendants argued that the plaintiffs lacked 

standing because they had not shown that they or any of 

their families attended school. The court noted that prior 

Oregon cases “do not provide us with a clear guide” to the 

question of taxpayer standing. Id. at 244. But, because the 

defendants had not raised the matter in their pleadings 

to the trial court, the court determined, the matter was 

waived. Id. at 245. “If standing were a jurisdictional matter 

then, of course, defendants could raise the question at any 

stage in the proceedings. But we do not so regard it and we 

hold, therefore, that defendants’ failure to raise the issue by 

a proper pleading constitutes a waiver of that issue.” Id.

But then a few short years later, the court held, in 

Cummings Constr. v. School Dist. No. 9, 242 Or 106, 109, 408 

P2d 80 (1965), that “courts do not have jurisdiction to entertain a declaratory judgment action requesting the interpretation of a statute or a declaration of one’s rights thereunder unless there is a ‘justiciable controversy’ between the 

parties.” The court did not mention Dickman. But it did cite 

Oregon Cry. Mfgs. Ass’n. Id.

In a similar vein is Gortmaker v. Seaton, 252 Or 

440, 450 P2d 547 (1969), in which the court dismissed an 

action brought by a district attorney to obtain the court’s 

interpretation of a newly enacted statute concerning the 

regulation of certain illegal drugs. The court explained that 

“it is fundamental to appellate jurisprudence” that courts 

do not decide abstract or hypothetical cases. Id. at 442. The 

court added that, “It can be argued that the public interest in the suppression of illegal drugs is so strong that the 

court should brush aside questions of standing and justiciable controversy and decide the case on its merits.” Id. at 443. 

Without citing Perry—or any of the half-dozen cases following it—for just that proposition, however, the court cited 
Cite as 357 Or 460 (2015) 513

instead Oregon Cry. Mfgs. Ass’n and concluded that deciding 

the case on the merits would result in the issuance of an 

impermissible advisory opinion. Id. at 444.

In the 1980s, the court was more explicit in rejecting 

Perry. In State ex rel Oregonian Publishing Co. v. Sams, 298 

Or 329, 692 P2d 116 (1984), the relators petitioned for a writ 

of mandamus ordering certain hearings to be conducted in 

public. This court issued an alternative writ, and the trial 

court complied. The relators nevertheless asked the court 

to rule on the merits of their claim, citing Perry, Linklater, 

and Newbry. The court noted the prior decisions, declined 

to address “whether those cases were rightly decided under 

their own circumstances or whether they can be distinguished from the present case,” and concluded that “a court 

cannot properly pursue an issue upon an alternative writ of 

mandamus after the person to whom the writ is addressed 

has complied with its command.” Id. at 332-33.

In Hay v. Dept. of Transportation, 301 Or 129, 719 

P2d 860 (1986), the plaintiffs challenged a Department of 

Transportation rule authorizing public use of the beach in 

front of their ocean-front hotel as a parking area. During the 

pendency of the appeal, the rule expired by its own terms. 

The parties, citing Perry, argued that, even though the expiration of the rule might have rendered the appeal moot, the 

court should rule on the merits owing to the public importance of the issues involved. The court summarily rejected 

the argument. Noting its decision in Oregonian Publishing 

Company, the court explained that “[r]ecent cases have cast 

doubt on the validity of ** * Perry.” Id. at 134.29

In the 1990s, the court appeared to supply more 

of an explanation for its rejection of Perry: namely, that 

justiciability is a constitutional requirement. In People for 

Ethical Treatment v. Inst. Animal Care, 312 Or 95, 817 

P2d 1299 (1991), the court determined that an association 

lacked standing to challenge a University of Oregon order 

29 See also Kay v. David Douglas Sch. Dist. No. 40, 303 Or 574, 577, 738 P2d 

1389 (1987), cert den, 484 US 1032 (1988) (suggestions that Perry allows moot 

cases of public significance to be decided “have been discarded in recent cases 

and should not be followed”); Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 367-

68 n 9, 723 P2d 298 (1986) (noting that the court had declined to follow Perry in

“[m]ore recent decisions”).
514 Couey v. Atkins

approving research on barn owls. The court noted that, 

“aside from certain constitutional considerations not presented by this case, a reviewing court’s inquiry into the 

standing of an entity seeking judicial review is confined to 

an interpretation of legislative intent.” Id. at 99 (emphasis 

added). Because the court determined that the association 

did not satisfy the statutory standing requirement, it did not 

need to address any “constitutional considerations.” But the 

mention of those “constitutional considerations” signaled a 

return to the earlier, constitutional view of justiciability. See 

also Brian v. Oregon Government Ethics Commission, 319 

Or 151, 156, 874 P2d 1294 (1994) (quoting People for Ethical 

Treatment, 312 Or at 99).

In Barcik, 321 Or 174, the court was even more 

explicit in constitutionalizing justiciability. In that case, 

several high school students sought a declaratory judgment 

regarding the lawfulness of certain school district regulations concerning official student publications. But, by the 

time the trial court made its decision, the students had 

graduated. This court reversed and remanded for dismissal 

of the claims, because the graduation of the student plaintiffs had rendered the case moot. Citing Oregon Cry. Mfgs. 

Ass’n, the court explained that “[t]his court has applied the 

justiciability requirement to declaratory judgment actions 

for over fifty years and has noted the constitutional origins 

of that requirement.” Id. at 188 (emphasis added).

The following year, in McIntire v. Forbes, 322 Or 

426, 909 P2d 846 (1996), the court was even clearer. In that 

case, two taxpayers challenged the constitutionality of a 

recently enacted statute, which included a provision permitting “interested persons” to initiate such challenges. That 

prompted a question concerning the justiciability of the petitioners’ claims. Id. at 428. The court addressed that question in two parts. First, the court addressed the “statutory 

standing” of the petitioners: that is, it addressed whether 

the petitioners satisfied the statutory requirement that they 

be “interested persons.” Id. at 432-33. After concluding that 

the petitioners, as taxpayers, stated an adequate interest 

to satisfy the statute, the court then proceeded to a second 

inquiry, viz., constitutional justiciability, determined by 

examining whether a judgment of the court would have a 
Cite as 357 Or 460 (2015) 515

“practical effect” on the petitioners’ rights. Id. at 433-34. The 

court’s analysis thus made clear that, independent of any 

statutory standing requirements, the constitution imposed 

justiciability requirements of its own.

That brings us to Yancy, which even more firmly 

and explicitly grounded this state’s justiciability doctrine in 

the constitution—specifically, the “judicial power” provision 

of Article VII (Amended), section 1. In the process, the court 

concluded that “Perry and the cases that relied on Perry

were wrongly decided.” 337 Or at 363.

But Yancy was closely followed by Kellas, in which 

the court abjured the constitutionalization of justiciability 

and concluded that matters of standing were properly left 

to the legislative branch. 341 Or at 478. In the process, the 

court declared that cases such as Oregon Cry. Mfgs. Ass’n

must not be understood to stand for the proposition that 

justiciability is constitutionally required; instead, the court 

said, those decisions are properly regarded as concerning 

the statutory standing requirements of the Declaratory 

Judgments Act. Id. at 484. The court disavowed People for 

Ethical Treatment, Brian, and McIntire as having improperly constitutionalized justiciability doctrine. Id. at 485-86.

4. Reassessing justiciability

We are left with essentially two competing conceptions of justiciability in our case law. On the one hand, we 

have Yancy, which viewed justiciability as a constitutional 

requirement inherent in the nature of “judicial power” conferred under Article VII (Amended), section 1, of the state 

constitution. On the other hand, we have Kellas, which 

concluded that nothing in the text or historical context of 

Article VII (Amended), section 1, suggests such limitations 

on the exercise of judicial power.

In light of our reexamination of the text, historical 

context, and case law relevant to the adoption of Article VII 

(Amended), section 1, we conclude that Kellas has the better of the argument, at least to the extent that courts are 

presented with “public actions” or cases involving matters 

of “public interest.” Kellas correctly observed that nothing 

in the text imposes any limits on the exercise of “judicial 
516 Couey v. Atkins

power” under Article VII (Amended), section 1. It further 

correctly noted that, historically, Oregon courts long have 

recognized the authority of courts to entertain public 

actions without regard to whether those who initiate such 

actions have a personal stake in their outcome. To be sure, 

Kellas fairly may be faulted for glossing over some of the 

inconsistencies in this court’s case law over the last century. In particular, Kellas was plainly wrong in attempting 

to re-characterize the Oregon Cry. Mfgs. Ass’n line of cases 

as non-constitutional, declaratory judgment cases only. As 

we have noted, Oregon Cry. Mfgs. Ass’n itself, as well as 

later cases such as Barcik, identified the constitution as the 

source of the justiciability requirements that those cases 

applied. Still, the bottom line of Kellas stands as essentially 

correct.

The same cannot be said of Yancy. Yancy began by 

acknowledging that the text of Article VII (Amended), section 1, says nothing about justiciability, standing, mootness, 

ripeness, or any other limitation on the judicial power exercised by the courts of this state. 337 Or at 352. The court 

nevertheless concluded that the very nature of the “judicial 

power” itself implicitly includes such limitations. The court 

based that conclusion on an analysis of the historical context of Article VII (Amended), section 1. Unfortunately, that 

analysis was seriously incomplete.

To begin with, the court failed to consider the 

English common-law practice recognizing the authority of 

courts to hear public actions regardless of whether the plaintiffs have a personal stake in the outcome. The court further overlooked the nineteenth-century American adoption 

of that same practice. As we have noted, there was in the 

latter part of the century a distinctly minority view to the 

contrary. But there is a complete absence of evidence that 

the framers of the Oregon constitution intended to adopt 

it. See State v. Supanchick, 354 Or 737, 764, 323 P3d 231 

(2014) (assuming framers would have understood commonlaw context for constitution); Portland v. Hirsch-Weis Mfg. 

Co., 123 Or 571, 577, 263 P 901 (1928) (“It is but reasonable 

to assume” that the framers understood terms in the constitution to comport with usage “familiar to common law or 
Cite as 357 Or 460 (2015) 517

equity.”); Allen v. Hirsch, 8 Or 412, 415 (1880) (it is “a settled 

canon of constitutional interpretation” that, in absence of 

evidence to contrary, framers are assumed to have adopted 

common-law meanings of constitutional terms). It also 

failed to address the practice of nineteenth- and early twentieth-century courts—including this court—of addressing 

otherwise moot cases that presented issues of significant 

public interest and that were capable of repetition. All of 

that evidence is incompatible with Yancy’s conclusion that 

the framers of the Oregon Constitution would have understood the “judicial power” to preclude exercising authority to 

decide such cases.

Instead, Yancy claimed support for its interpretation 

of “judicial power” in essentially three places. First, it relied 

on the several instances in which the justices of the United 

States Supreme Court declined to issue advisory opinions, 

in particular, Hayburn’s Case. But those instances concerned 

the exercise of judicial power under the federal constitution, which, as we have noted, is subject to limitations not 

present in Article VII (Amended), section 1. Moreover, the 

cases involved particular institutional concerns that inhere 

in requests for judicial decisions that either are reviewable by other branches of government or involved requests 

for advice outside the context of a judicial proceeding. As 

a result, as we have noted, those cases were construed in 

the nineteenth century to apply to those circumstances and 

were viewed as turning on separation of powers principles; 

the notion that the cases stood for broader conceptions of 

justiciability did not surface until the twentieth century 

and well after the adoption of the 1910 amendments to the 

Oregon Constitution.

Second, Yancy claimed support from more recent 

federal court case law arising under Article III. 337 Or at 

360. But, as we have noted, federal justiciability case law is 

not predicated on the meaning of “judicial power” simpliciter, but on the case-or-controversy limitations on the judicial 

power. See, e.g., Federal Election Comm’n. v. Akins, 524 US 

11, 20, 118 S Ct 1777, 141 L Ed 2d 10 (1998) (“Article III, of 

course, limits Congress’ grant of judicial power to ‘cases’ or 

‘controversies.’”); Allen v. Wright, 468 US 737, 750, 104 S Ct 

3315, 82 L Ed 2d 556 (1984) (“Article III of the Constitution 
518 Couey v. Atkins

confines the federal courts to adjudicating actual ‘cases’ and 

‘controversies.’”); Muskrat v. United States, 219 US 346, 356, 

31 S Ct 250, 55 L Ed 246 (1911) (“By the express terms of 

the Constitution, the exercise of the judicial power is limited 

to ‘cases’ and ‘controversies.’”).30 Because Oregon’s constitution contains no such limitations, there is no textual basis 

for drawing support from the federal justiciability case law. 

See Kellas, 341 Or at 478 (“The Oregon Constitution contains no ‘cases’ or ‘controversies’ provision.”); see also James 

W. Doggett, “Trickle Down” Constitutional Interpretation: 

Should Federal Limits on Legislative Conferral of Standing 

Be Imported Into State Constitutional Law?, 108 Colum L 

Rev 839, 876 (2008) (“Given the importance these words 

[‘cases’ and ‘controversies’] have taken on in American legal 

discourse, and given the divergences between the federal 

and state judicial powers, the failure of state constitutions 

to explicitly incorporate them should be read as additional 

authority for courts to diverge from federal practices.”).31

Third, Yancy claimed support from one early Oregon 

decision, Burnett. As Yancy characterized it, Burnett stands 

for the proposition that, to be a proper exercise of the judicial 

power, proper parties with a personal stake in the outcome 

must appear before the court. 337 Or at 359. That, however, 

is not what Burnett stands for. As we have explained, Burnett

30 It could be argued that, in light of the history that we have cited, the textual differences between Article III of the federal constitution and this state’s 

constitution are irrelevant, because even the existence of the case-or-controversy 

limitation in the former does not justify federal justiciability doctrine. That is to 

say, it could be argued that federal justiciability doctrine itself is implausible. In 

fact, the argument has been made by a number of scholars. See, e.g., Robert J. 

Pushaw, Jr. Justiciability and Separation of Powers: A Neo-Federalist Approach, 

81 Cornell L Rev 393, 490 (1996) (federal mootness doctrine is “incomprehensible”); Erwin Chemerinsky, A Unified Approach to Justiciability, 22 Conn L Rev 

677, 696 (1990) (“The law in the area of justiciability is a mess.”); William A. 

Fletcher, The Structure of Standing, 98 Yale LJ 221, 221 (1988) (“The structure of 

standing law in the federal courts has long been criticized as incoherent.”). That 

is not, however, a torch for this court to carry.

31 See also Hans A. Linde, The State and the Federal Courts in Governance: 

Vive La Difference!, 46 Wm & Mary L Rev 1273, 1287-88 (2005) (“It is not prudent to link a decision declining adjudication to non-textual, self-created constitutional barriers” such as those adopted by federal courts under Article III.); 

Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial 

Function, 114 Harv L Rev 1833, 1905 (2001) (“[T]he concerns that motivate federal justiciability doctrine are not wholly applicable to the theory or practice of 

state governance.”).
Cite as 357 Or 460 (2015) 519

first noted that, ordinarily, a writ of review will not issue 

unless the challenged order was judicial in nature. 4 Or at 

391. In that context, the court said that “judicial” orders are 

those involving proper parties with a personal stake. Id. at 

391-92. The court then noted that, notwithstanding that 

ordinary rule, challenged orders of a more “general” character—operating “in a very general manner upon the entire 

body of the taxpayers of the county”—still are justiciable, 

even though no party had a personal stake in the outcome. 

Id at 392. According to the court, “[i]n all cases where the 

proceeding sought to be reviewed involves a matter of public

interest affecting a great number of persons, the allowance 

of the writ is in the sound discretion of the court.” Id. Thus, 

directly contrary to the way that Yancy characterized it, 

Burnett is consistent with the general practice of courts in the 

nineteenth century to review actions involving public rights.

Burnett—properly understood—also is consistent 

with the court’s 1886 decision in David, in which it held that 

it had authority to review a case brought by a plaintiff who 

lacked standing, “in view of the importance of the case.” 14 

Or at 125. Yancy acknowledged David. 337 Or at 359. But it 

declined to give it any weight, because the decision “offered 

no justification, constitutional or otherwise, for entertaining a case in which the plaintiffs seemed to lack standing, 

beyond the fact that the court seemed to believe that the 

public needed an answer.” Id. If the court had examined 

the relevant nineteenth-century and earlier case law, however, it would have found that David was not an outlier, but 

rather was consistent with longstanding doctrine. The fact 

that David failed to offer further explanation for its conclusion is not surprising; to the court in David, the explanation 

was obvious.

In its discussion of nineteenth-century Oregon cases, 

Yancy also omitted any reference to Ware or Durkheimer, 

which as we have noted also recognized the authority of 

courts to entertain public actions regardless of the standing of those who initiated them. Such cases are inconsistent 

with Yancy’s conclusion that the settled meaning of “judicial 

power” foreclosed deciding them.
520 Couey v. Atkins

In short, Yancy’s analysis is undercut by significant 

omissions and by misinterpretations of the historical evidence of what the framers likely would have understood of 

the “judicial power” conferred by the constitution. The decision must be disavowed in favor of Kellas.

In disavowing the justiciability analysis of Yancy, 

we do not hold that the state constitution imposes no constraints on the exercise of judicial power. This case does not 

require such a broad holding. Rather, we hold that, based 

on the foregoing analysis of the text, historical context, 

and case law interpreting Article VII (Amended), section 1, 

there is no basis for concluding that the court lacks judicial 

power to hear public actions or cases that involve matters of 

public interest that might otherwise have been considered 

nonjusticiable under prior case law. Whether that analysis 

means that the state constitution imposes no such justiciability limitations on the exercise of judicial power in other 

cases, we leave for another day.

We also do not hold that moot cases will no longer be subject to dismissal. We hold only that Article VII 

(Amended), section 1, does not require dismissal in public 

actions or cases involving matters of public interest.

In a similar vein, we emphasize that, merely because 

there are no justiciability limitations on the exercise of judicial power in public actions or cases involving matters of 

public interest does not mean that the reference to “judicial 

power” in Article VII (Amended), section 1, is an empty vessel to be filled as it pleases the legislature. Separation of 

powers principles make clear that there are limits to what 

constitutes the “judicial power” that courts may exercise.

In In re Ballot Title, 247 Or 488, 431 P2d 1 (1967), 

for example, the legislature enacted a statute that required 

this court to “review” each and every ballot title, regardless of whether any party initiated a judicial proceeding to 

request such review. When asked to perform that automatic 

review, this court declined, explaining that the statute violated the separation of powers guarantee of Article III, section 1. The statute, the court said, required the court to provide advice to the legislature “without any form of judicial 
Cite as 357 Or 460 (2015) 521

process,” when that advice “would not conclude or vindicate 

any right or remedy nor bind anyone at all.” Id. at 491-92. 

That, the court said, is not the exercise of the judicial function. Id. at 493.

This case does not require us to define the boundaries of the judicial function. It suffices at this juncture to 

make the point that, even though such justiciability doctrines as mootness and standing are not implicit in Article 

VII (Amended), section 1-- at least not in public action cases 

or those involving matters of public importance—there 

remain other limitations on the “judicial power” that may 

be exercised under the state constitution.

5. Application

We turn to the question whether the legislature 

acted within its authority in enacting ORS 14.175. Under 

Kellas, the legislature’s authority to enact legislation is “plenary, subject only to limitations that arise either from the 

Oregon Constitution or from a source of supreme federal 

law.” 341 Or at 478. We are aware of no limitation on the 

legislature’s authority to enact legislation authorizing litigants to maintain an action that, although otherwise moot, 

is capable of repetition, yet evading review. Such legislation 

purports to confer no more authority than what we have just 

concluded the courts possess under Article VII (Amended), 

section 1. As our analysis demonstrates, judicial determination of such cases is consistent with centuries of historical 

practice and the sound prudential exercise of judicial power, 

at least as to public action cases or cases involving matters 

of public interest.

This court’s prior case law offers some aid in defining precisely what constitutes a “public action” case, or one 

involving a matter of “public interest.” Burnett, for example, 

involved the validity of an order of a circuit court concerning 

the redemption of county-issued warrants. The court found 

the matter justiciable because the challenged order operated “in a very general manner upon the entire body of taxpayers of the county.” 4 Or at 392. Similarly, Ware involved 

the validity of election notices, which the court referred to as 

a question “of public right” and “the enforcement of a public 
522 Couey v. Atkins

duty.” 13 Or at 383. David concerned the authority of a public body to issue bonds. The court declined to dismiss that 

case “in view of the public importance of the case.” 14 Or at 

125. And Perry involved the suspension of an individual’s 

liquor license by the Oregon Liquor Control Commission, a 

question, the court said, that was “one involving the public 

welfare.” 180 Or at 498-99.

This case does not require us to define the outer limits of what might constitute a “public action” or one involving 

issues of “public interest” for purposes of determining the 

authority of a court to decide an otherwise moot proceeding. Whatever those outer limits may be, it seems clear from 

the foregoing authorities that, at the least, such proceedings 

include those challenging the lawfulness of an action, policy, or practice of a public body, and such matters are precisely those to which ORS 14.175 applies. There is, in fact, 

no contention in this case that plaintiff’s challenge to the 

constitutionality of the state election law does not amount to 

a challenge of an action, policy, or practice that is subject to 

review under that statute.

There remains the issue whether to exercise the 

authority provided under ORS 14.175. As we have noted, 

that statute provides that, in actions in which a party challenges the lawfulness of a public body’s act, policy, or practice, a court “may issue a judgment on the validity of the 

challenged act, policy[,] or practice” even though the case 

may have become moot. The statute does not require a court 

to do so, but leaves it to the court to determine whether it is 

appropriate to adjudicate an otherwise moot case under the 

circumstances of each case. In this instance, the trial court 

did not reach that issue, having determined that the case 

was not the sort to which ORS 14.175 applies in the first 

place. We therefore remand the case to the circuit court to 

make that determination.

II. CONCLUSION

For the foregoing reasons, we hold that, although 

the trial court and the Court of Appeals did not err in 
Cite as 357 Or 460 (2015) 523

concluding that plaintiff’s claims are moot, they erred in 

concluding that those claims are not justiciable under ORS 

14.175.

The decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is 

remanded to the circuit court for further proceedings.