Barcik v. Kubiaczyk
| Decision Date | 20 April 1994 |
| Citation | 127 Or.App. 273,873 P.2d 456 |
| Parties | , 91 Ed. Law Rep. 353 Carol BARCIK, as guardian ad litem for Scott Barcik, a minor; William Jansen, as guardian ad litem for Tom Jansen, a minor; Joe Kasten and Sheilah Kasten, as guardians ad litem for Shannon Kasten, a minor; Barry Edwards and Mona Edwards, as guardians ad litem for Marce Edwards, a minor; Cordis Lowery and Sharon Lowery, as guardians ad litem for Matt Lowery, a minor; David Frost; Josh Olson; and Chuck Kostur and Dianne Kostur, as guardians ad litem for Kay Kostur, a minor, Appellants, v. Mark KUBIACZYK; Al Davidian; Russ Joki; Pat Biggs; Jack Clinton; Mike Nelson; Richard Carlson; Gary Cumpston; and the Tigard-Tualatin School District 23 J, Respondents. C920085CV; CA A77165. |
| Court | Oregon Court of Appeals |
Jonathan M. Hoffman, Portland, argued the cause, for appellants. With him on the briefs were Michael G. Harting and Martin, Bischoff, Templeton, Langslet & Hoffman.
Duane A. Bosworth, Portland, argued the cause, for respondents. With him on the brief were Lori Lee Brocker and Davis Wright Tremaine.
Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.
Plaintiffs, students in the Tigard-Tualatin School District, appeal from a declaratory judgment that district regulations regarding student publications comply with the constitutional requirements of Article I, section 8, of the Oregon Constitution, to the extent that the regulations authorize school administrators to review and censor official student publications before distribution, and to review unofficial student publications after distribution and discipline students responsible for the distribution and/or publication of material that violates the regulations. 1 Plaintiffs sought an injunction barring the continued enforcement of the regulations and a declaration that the regulations are unconstitutional insofar as they prohibit the publication and distribution of even those student publications "which are not obscene, libelous, or which do not create an imminent danger of violence or substantial disruption of school activities." Because there was no justiciable controversy before the circuit court when it entered judgment on plaintiffs' challenge to the regulations, we reverse and remand to the circuit court with instructions to dismiss the complaint and vacate the judgment, with no costs to either party in that court or on appeal. 2
Plaintiffs Barcik, Jansen, Kasten, Edwards, Lowery, Frost and Olson were seniors at Tigard High School when the district enacted the challenged regulations on January 30, 1992. Plaintiff Kostur was a student at the district middle school. Before the regulations were enacted, the following events took place. On December 4, 1991, Barcik circulated among the high school students a flyer that solicited articles for publication in "Low-Spots," a non-school-sponsored ("underground") publication. The next morning, he was summoned to the vice principal's office and told that distribution of the flyer violated school policy because it had not been cleared with the student activities director. The vice principal issued a formal warning to Barcik and informed him that he had three options with regard to the proposed underground publication: (1) not publish it; (2) submit it to the school administration for approval before distribution; or (3) publish it without using any of the school's resources and distribute it off school grounds.
On January 13, 1992, Barcik and Jansen circulated "Low-Spots" to students on school property without the administration's prior approval. Defendant Kubiaczyk, the principal at the high school, informed Barcik and Jansen that "Low-Spots" was unacceptable, because it contained profanity and had not been submitted to the administration for prior approval. Imposition of disciplinary measures was suspended pending the circuit court's decision in this matter. 3
On January 23, a different underground publication, "The Spots On My Dog," was circulated on the school grounds. None of the plaintiffs was involved in the publication or distribution of that publication, which contained the following language:
"Hi-Spots" is the official newspaper of Tigard High School. The editorial board of "Hi-Spots" consisted of Kasten, Edwards, Lowery and Frost. After the distribution of "Low-Spots," but before the appearance of "The Spots On My Dog," the "Hi-Spots" editorial board decided to write an editorial on underground student works. Frost drafted the piece, entitled "Low-Spots Says a Lot About Freedom," in which he said, inter alia, that the "Hi-Spots" staff "appreciate[d] the underground paper's special opinion and angle." Kubiaczyk was concerned that the "Hi-Spots" editorial would be perceived as a blanket endorsement of all underground publications, including "The Spots On My Dog." He contacted defendant Joki, the district superintendent, and told him of the proposed "Hi-Spots" editorial and of the content of "The Spots On My Dog." Joki sent defendant Davidian, the assistant superintendent, to the high school to investigate the matter. Davidian reviewed a copy of "The Spots On My Dog" and took a copy of the "Hi-Spots" editorial to the district's attorneys. Meanwhile, publication of the editorial was put on hold. During the evening of January 23, the School Board was shown copies of "Low-Spots," "The Spots On My Dog," and the "Hi-Spots" editorial.
On January 24, Kubiaczyk met with the "Hi-Spots" editorial board. He told them that the School Board had unanimously requested that the editorial be revised, and he informed them that the piece could not be printed as written. Kasten and Edwards called the printer and instructed it to delete the editorial and to substitute in red ink, "CENSORED BY: MARK KUBIACZYK, RUSS JOKI, AL DAVIDIAN, TIGARD-TUALATIN SCHOOL BOARD." 4 The issue ran without the editorial.
On January 30, 1992, the district adopted the challenged regulations. From then until the end of the school year, the school administration, acting pursuant to the regulations, reviewed each edition of "Hi-Spots" before publication.
The parties stipulated in circuit court that this case presents a justiciable controversy. Consequently, neither party raises the issue of justiciability on appeal. However, it is fundamental that a court
"cannot exercise jurisdiction over a nonjusticiable controversy because in the absence of constitutional authority, the court cannot render advisory opinions." Brown v. Oregon State Bar, 293 Or. 446, 449, 648 P.2d 1289 (1982).
See also Brumnet v. PSRB, 315 Or. 402, 405, 848 P.2d 1194 (1993). Because justiciability is a jurisdictional issue, we will examine it on our own motion. See Ackerley v. Mt. Hood Comm. College, 51 Or.App. 801, 804 n. 1, 627 P.2d 487 (1981). It is well settled that jurisdiction may not be conferred by stipulation or consent of the parties. Johnson v. Assured Employment, Inc., 277 Or. 11, 14, 558 P.2d 1228 (1977); Brodine v. Employment Exchange Inc., 33 Or.App. 237, 240, 576 P.2d 384, rev. den. 283 Or. 1 (1978).
For a controversy to be justiciable, it " 'must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue.' " Savage v. Munn, 317 Or. 283, 292, 856 P.2d 298 (1993), quoting Brown v. Oregon State Bar, supra, 293 Or. at 449, 648 P.2d 1289. Kostur avers that a justiciable dispute exists between herself and defendants because she "will attend Tigard High School [in the] fall and intends to enroll in journalism class and to join the HI-SPOTS staff" and because "she intends to write for LOW SPOTS and/or write and distribute non-school-sponsored publications on the campus of Tigard High School." However, those averments do not allege "present facts," but only speculative future events that may not occur as anticipated or may not occur at all. There has not been any showing that the district regulations have had a "cognizable effect" on her. Savage v. Munn, supra, 317 Or. at 292 n. 6, 856 P.2d 298. The hypothetical nature of her anticipatory challenge renders it non-justiciable. Accordingly, Kostur is not properly before us at this time.
That leaves as plaintiffs the seven seniors who graduated from the high school in June, 1992. In addition to requiring an actual litigable event as opposed to a contingency, the justiciability doctrine assures that the person or group mounting a constitutional challenge confronts continuing harm or a significant threat of future harm. Thus, another requirement for a justiciable controversy is that
Brumnet v. PSRB, supra, 315 Or. at 405-06, 848 P.2d 1194. (Citations omitted.)
Given that the remaining plaintiffs graduated from the high school in June, and the circuit court entered its judgment in September, the question arises whether their claim for declaratory and injunctive relief was moot at the time of the circuit court's judgment. See 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). Although plaintiffs sought relief on behalf of themselves and "others similarly situated," this is not a class action;...
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Lowe v. Keisling
... ... Oregon State Bar, 293 Or. 446, 449, 648 P.2d 1289 (1982); see Barcik v. Kubiaczyk, 127 Or.App. 273, 873 P.2d 456 (1994). The justiciable controversy requirement prevents the court from rendering an advisory opinion ... ...
- Barcik v. Kubiaczyk
- Barcik v. Kubiaczyk