Covey V. Atkins: A reevaluation of State justiciability doctrine.

Author:Landau, Jack L.

Federal justiciability doctrine is a mess, as it is well-known. (1) State justiciability doctrine often fares not much better, especially to the extent that courts draw on federal justiciability doctrine in recognizing constitutional constraints on their authority to exercise judicial power. (2)

The Oregon Supreme Court was among those courts. In fact, the court went beyond federal justiciability doctrine in not only holding that the state's courts lacked authority to hear moot cases, but also concluding that the court cannot hear such cases even when they are capable of repetition, yet evading review--an exception to mootness that had been recognized by the federal courts and the courts of every other state in the country. (3)

In Couey v. Atkins, the Oregon Supreme Court reconsidered. In that case, the court observed that its own justiciability case law, like that of the federal courts, had become incoherent. (4) So it took the opportunity to reassess the matter from scratch, ultimately concluding that it had erred in following federal justiciability doctrine. (5) The court conducted a lengthy analysis of the historical roots of justiciability doctrine, concluding that constitutional conceptions of standing and mootness are constructs of the twentieth century, which state courts might appropriately adopt as a matter of policy, but are not required to follow as a matter of state constitutional law. (6)


    A bit of background concerning preexisting Oregon justiciability doctrine provides a useful context for discussing Couey and its implications. As I said, Oregon's modern justiciability case law was not a thing of beauty. Beginning in the 1930s, the court began to borrow from federal justiciability case law in developing the doctrine that the state constitution imposes certain jurisdictional barriers to entertaining declaratory judgment actions. (7) The court held that is was "not a judicial function" to decide abstract or hypothetical questions posed by plaintiffs who did not have a concrete stake in the outcome of a case. (8)

    For a while, the court flirted with recognizing certain exceptions to those constitutional justiciability barriers. It recognized, for example, the capable-of-repetition exception to the general rule that courts cannot decide moot cases. (9)

    But then in the 1960s, the court reverted to the federal-style justiciability doctrine to which it had previously adhered, holding that Oregon courts are simply without constitutional authority to entertain any actions that are not justiciable. (10) In the 1980s and 1990s, the court emphasized the constitutional nature of its justiciability doctrine and borrowed freely from federal case law concerning standing, mootness, ripeness, and advisory opinions. (11)

    The capstone to that doctrinal work was the court's decision in Yancy v. Shatzer, (12) a case in which the court explicitly rooted its justiciability doctrine in the "judicial power" clause of Article VII (Amended) of the Oregon Constitution. (13) According to Yancy, although nothing in the text of the constitution explicitly imposes any justiciability constraints on the exercise of judicial power, the framers of the constitution would have understood there to be just such a restriction. (14) And because those same framers would not have recognized a capable-of-repetition exception to the rule against deciding moot cases, the court concluded, the court lacked constitutional authority to recognize it as well. (15)

    In the process, the court relied on federal justiciability doctrine, as well as certain historical sources that are commonly cited in support of that federal doctrine, such as Hay burn's Case and Chief Justice John Jay's refusal to accept President George Washington's request for an advisory opinion. (16) The court acknowledged that federal courts nevertheless recognize an exception to the constitutional mootness doctrine in cases that are capable of repetition, yet evading review. But, citing a concurring opinion of Chief Justice Rehnquist in a more recent opinion, the court suggested that, if the judicial power really is constitutionally constrained, there can be no basis for recognizing such an exception. (17)

    Following Yancy, two additional events set the stage for Couey. First, two years after Yancy, the Oregon Supreme Court decided Kellas v. Dept. of Corrections, in which the court adopted a view of justiciability very much at odds with the view adopted in Yancy. (18) At issue in that case was the constitutionality of legislation conferring standing on "any person" to challenge the validity of an administrative rule, regardless of that person's personal interest in the application of the rule. (19) The Court of Appeals had held that, because the constitution imposed certain minimum justiciability requirements, the legislature could not waive them off by statute. (20) The Supreme Court reversed, concluding: "We are aware of no qualification on the legislature's authority in the Oregon Constitution that would restrict the legislature from authorizing any member of the public to initiate litigation concerning the validity of administrative rules...." (21) The court noted that the Oregon Constitution contains no "cases" or "controversies" clause, the source of federal court justiciability doctrine, and said that it was disinclined to "import federal law regarding justiciability into our analysis" of the state constitution. (22) Yancy was mentioned, but in reference to the broader proposition that the judicial power "is not unlimited." (23)

    Second, several months after Kellas, the Oregon legislature enacted a law that purported to recognize the very capable-of-repetition standard that Yancy had held the constitution would not abide. The new statute provided that, in any action in which a party challenges the lawfulness of an act, practice, or policy of a public body, "the party may continue to prosecute the action and the court may issue a judgment on the validity of the challenged act" if, among other requirements, the challenged act is "capable of repetition" and is "likely to evade judicial review in the future." (24)

    As matters stood at that point, then, there was on the one hand Yancy, which held that justiciability was a constitutional doctrine rooted in the "judicial power" clause as understood by its nineteenth-century framers and informed by federal justiciability case law. (25) And there was on the other hand Kellas, which held that the constitution contained no explicit justiciability limitations and that the courts should be loath to import them from federal court decisions. (26) In the meantime the legislature had enacted a statute the constitutionality of which appeared to depend on which of the two cases controlled. (27)


    Marquis Couey worked as a registered, paid signature collector for two initiative petitions during the 2010 election cycle. (28) He wanted to work as a volunteer on a third initiative measure. (29) But Oregon law provides that "[a] person registered [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." (30) Couey, worried about running afoul of that law, filed an action for a declaration that the statute violated his state and federal rights of free expression and association. (31)

    "During the pendency of the litigation, however," the 2010 election cycle ran out, and Couey's registration as a signature collector expired. (32) The defendant secretary of state "moved for summary judgment on the ground" that Couey's "claims had become moot." (33) Couey responded that (among other things), even if his claim had become moot, he was entitled to pursue his claim under Oregon Revised Statute section 14.175 because, given the short election cycle, it was unlikely that he would ever be able to obtain judicial review before his claim became moot. (34) The trial court granted the secretary's summary judgment motion and dismissed the case as moot, the Court of Appeals affirmed, and the Oregon Supreme Court granted Couey's petition for review. (35)

    The case thus presented the court with a perfect opportunity to address the...

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