In one of the most important constitutional law cases in Oregon in recent years, Portland associate Alan Galloway won a decision that allows the courts of Oregon to consider the merits of cases involving important issues even when the case becomes moot—that is, when the court’s decision will no longer affect the parties’ interests directly.
Until recently, Oregon was the only state that did not recognize any jurisdiction to hear moot cases. Federal and state courts had long recognized and applied exceptions, such as the federal doctrine allowing courts to hear cases that are “capable of repetition, yet likely to evade review.”
So, for instance, if discrimination at an Oregon public high school resulted in a student being barred from giving a graduation speech, but the ceremony had passed, the case would be become moot before it can reach the appellate courts and would therefore be dismissed—leaving the merits unresolved. Similarly, many key election-law cases became moot before they could reach the appellate courts—again, leaving key questions of election law unresolved by the Oregon Court of Appeals and the Oregon Supreme Court.
In 2007, the Legislative Assembly passed a law that directed courts to start applying the capable-of-repetition exception. But it was uncertain whether the Legislative Assembly had the authority to override what the Oregon Supreme Court had previously said was a constitutional justiciability requirement.
That question finally reached the court in this case, Couey v. Atkins, in which a signature-gatherer for ballot initiatives challenged the constitutionality of a state statute that prohibited individuals from gathering signatures for pay in one campaign while gathering signatures on a volunteer basis for another campaign. During the pendency of the litigation, however, the election occurred, and since the campaigns were over, plaintiff was no longer working as a paid signature collector and a volunteer. The Secretary of State moved for summary judgment on the ground that the action had become moot. The secretary won at trial and on appeal. Accordingly, it looked as though the courts might never be able to decide whether the law at issue violated plaintiff’s constitutional rights of free expression and association.
The American Civil Liberties Union of Oregon Inc., asked Galloway to file an amicus brief in the case. After Galloway had filed the brief, the petitioner’s counsel asked if he would also take on the portion of the oral argument addressing the court’s jurisdiction to hear moot cases. Galloway argued the case in June 2014.
In a decision issued a year later, the court adopted the position that Galloway (representing the ACLU) had advocated. The justices also cited an article by DWT partner Greg Chaimov, as they found that the state legislature did possess the constitutional authority to enact the “capable-of-repetition” statute.
The decision “does change the landscape in Oregon significantly,” says Galloway. “In recent years, there have been several cases dismissed as moot, preventing the Oregon Supreme Court from providing the public and/or government with needed clarifications of the law. In this case, for instance, the Court of Appeals had upheld dismissal of the case, preventing us from finding out whether the restriction on signature-gatherers is constitutional or not.” That question will now be addressed on remand. But the larger objective—gaining the ability to obtain decisions from the state’s highest court on important constitutional issues, even in types of cases that often become moot before reaching the court—has been achieved.