Couey v. Brown

• Decision Date: 10 July 2013
• Docket Number: A148473.,10C14484
• Citation: 257 Or.App. 434,306 P.3d 778
• Parties: Marquis COUEY, an individual, Plaintiff–Appellant, v. Kate BROWN, in her official capacity as Secretary of State for the State of Oregon, Defendant–Respondent.
• Court: Oregon Court of Appeals

257 Or.App. 434

306 P.3d 778

Marquis COUEY, an individual, Plaintiff–Appellant,

v.Kate BROWN, in her official capacity as Secretary of State for the State of Oregon, Defendant–Respondent.

10C14484, A148473.

Court of Appeals of Oregon.

Argued and Submitted Nov. 02, 2012.

Decided July 10, 2013.

Linda K. Williams, Portland, argued the cause and filed the briefs for appellant.

Anna M. Joyce, Solicitor General, argued the cause for respondent. With her on the brief was John R. Kroger, Attorney General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

SCHUMAN, P.J.

Plaintiff brought this action seeking to enjoin defendant, the Secretary of State, from enforcing a statute under which 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.” ORS 250.048(9). Plaintiff also sought a declaration that the statute violated state and federal constitutional free expression rights. The trial court granted defendant's motion for summary judgment on the ground that, although the case presented a live and justiciable controversy when it was filed, its justiciability had ended by the time summary judgment motions were filed because the period during which petitions could be circulated for signatures had elapsed and, with it, plaintiff's status as a registered paid circulator. Plaintiff argues on appeal, as he did below, that his action remains justiciable, contending that it is not moot because the statute poses a continuing threat to the exercise of his constitutional rights of free speech and assembly, and he continues to have standing because several statutes confer it on him regardless of the fact that there is no current or impending enforcement action against him. He also argues that, even if the case is moot and he does not have traditional standing, the case is nonetheless justiciable. Its mootness is not fatal because, due to the short period during which a petition may be circulated for signatures, his challenge—even if it is not presently a live controversy—is “capable of repetition” and “likely to evade judicial review in the future.” ORS 14.175. And his lack of traditional standing is not fatal because his challenge alleges deprivation of free speech, thereby triggering application of the so-called “First Amendment overbreadth” doctrine that allows plaintiffs to base constitutional free expression challenges on the rights of others. We conclude that the case is moot and that the “capable of repetition and evading review” exception does not apply to this case because judicial review of a challenge to the statute is not “[un]likely.” We therefore affirm without reaching the issue of plaintiff's standing.

I. BACKGROUND

A. Facts

The trial court made extensive findings of fact, and neither party makes challenges to any of them. We therefore review to determine whether, on those facts, defendant was entitled to prevail as a matter of law. ORCP 47 C. When this case was filed, plaintiff was registered and employed as a circulator to obtain signatures for two initiative petitions, Initiative Petition (IP) 28 and IP 70, aimed at qualifying for the November 2010 ballot. SeeORS 250.048(1) (paid signature gatherers must register and complete training program). He also wanted to circulate petitions for another initiative, IP 42, as a volunteer. ORS 250.048(9), however, prohibits a person who is a paid petition circulator from, “at the same time, obtain[ing] signatures on a petition or prospective petition for which the person is not being paid.” Violations of that prohibition result in significant penalties. The Secretary of State “may not include any signatures obtained in violation of this subsection in a count * * * for purposes of determining whether a state initiative * * * contains the required number of signatures of electors,” ORS 250.048(9), and the culpable circulator could be subjected to a civil penalty, ORS 260.995.

Plaintiff did not circulate petitions as a volunteer for IP 42. He did circulate petitions as a paid circulator for IP 28 and IP 70, but his registration automatically expired on July 2, 2010, four months before the November 2010 election, when the time for submitting petitions to the Secretary of State also expired. SeeORS 250.048(3)(c) (providing for automatic expiration of registration for prospective petitions once deadline for submission to Secretary of State has arrived); see alsoOr. Const., Art. IV, § 1(2)(e) (deadline for submitting petitions is four months before election).

B. Procedural history

While he was a paid circulator, plaintiff made several inquiries to defendant seeking clarification of various statutory provisions, including ORS 250.048(9), the ban on simultaneously circulating petitions as a paid circulator and a volunteer. He also initiated this action, seeking a declaration that the ban violated his state and federal constitutional rights and an injunction prohibiting defendant from enforcing the ban. After extensive discovery, the parties submitted cross-motions for summary judgment. Meanwhile, as noted above, the time for collecting signatures for the November 2010 election passed. The court then issued a letter opinion concluding that, “under both state and federal law, plaintiff lacks standing and therefore the case is moot.” The court explained:

“[A]t the time the complaint was filed, plaintiff had standing * * *. However, by the time the summary judgment motions were heard, that was no longer the case. The 2010 election is over and plaintiff no longer seeks relief regarding anything that occurred in that election; he only seeks prospective relief.”

The court subsequently granted defendant's motion for summary judgment, denied plaintiffs, and entered judgment dismissing the case. Plaintiff appeals, arguing that he has standing and that the case is not moot.

II. JUSTICIABILITY, STANDING, AND MOOTNESS

The relationship between justiciability, standing, and mootness is not always simple. “Standing” and “mootness” are two aspects of justiciability; to be justiciable, in other words, the plaintiff must have standing and the controversy must not be moot. Yancy v. Shatzer, 337 Or. 345, 349, 97 P.3d 1161 (2004). The two concepts are distinct. Standing deals with who can bring a controversy before the court: “ ‘Standing’ is a legal term that identifies whether a party to a legal proceeding possesses a status or qualification necessary for the assertion, enforcement, or adjudication of legal rights or duties.” Kellas v. Department of Corrections, 341 Or. 471, 476–77, 145 P.3d 139 (2006). Mootness, on the other hand, deals with what controversies can be brought before the court. In particular, it focuses on whether “litigation has occurred too soon or too late.” Id. at 477 n. 3, 145 P.3d 139. “Cases that are otherwise justiciable, but in which a court's decision no longer will have a practical effect on or concerning the rights of the parties,” are moot (because they are too late), Brumnett v. PSRB, 315 Or. 402, 406, 848 P.2d 1194 (1993), as are cases in which a court's decision will not yet have a practical effect on or concerning the rights of the parties (because they are too early, or, in the vernacular, unripe) McIntire v. Forbes, 322 Or. 426, 434, 909 P.2d 846 (1996). We conclude that this case is moot; therefore, we do not reach the question of standing.

A. Mootness

A case is moot if the court's decision in the matter will not have “some practical effect on the rights of the parties to the controversy.” Brumnett, 315 Or. at 405, 848 P.2d 1194;Kay v. David Douglas Sch. Dist. No. 40, 303 Or. 574, 738 P.2d 1389 (1987), cert. den.,484 U.S. 1032, 108 S.Ct. 740, 98 L.Ed.2d 775 (1988) (no justiciable controversy over prayer at public school graduation because the event had occurred). The Secretary of State contends that there is no current controversy and the case is moot because plaintiff is no longer seeking to simultaneously circulate petitions as a paid circulator and a volunteer. Plaintiff, on the other hand, acknowledges that he is no longer immediately vulnerable to an enforcement action based on ORS 250.048(9), but argues that the controversy is live because the existence of that statute, as interpreted by the Secretary of State, continues to preclude him from simultaneously circulating petitions as a paid circulator and a volunteer-actions that he intends to take in the future.

Plaintiff's position is not implausible. This court declared in Cornelius v. City of Ashland, 12 Or.App. 181, 188, 506 P.2d 182 (1973), that declaratory judgment “was designed to relieve parties of uncertainty by adjudicating rights and duties before wrongs have actually been committed.” (Emphasis in original.) The line between a legitimate declaratory judgment action seeking to determine rights under a statute that has not been enforced, on the one hand, and a premature, unripe challenge to that statute on the ground that it might be enforced, on the other, is not always clear. In Gaffey v. Babb, 50 Or.App. 617, 624 P.2d 616 (1981), for example, this court held that the owner of a “head shop” who had closed his business after the city of Brookings passed an ordinance prohibiting such enterprises continued to have a justiciable case because, at the time of the challenge, he was apparently poised to reopen. In Brumnett, the court held that the petitioner's challenge to the application of a rule under which the state could order the petitioner to pay for the cost of his care was moot because the petitioner was “not presently the subject of any order of the state to pay” those costs— and because “[t]he state has not said that it intends to seek any reimbursement from petitioner. Rather, one representative of the state has asserted only that it might do so some time in the future.” 315 Or. at 407, 848...