Couey v. Atkins

• Decision Date: 16 July 2015
• Docket Number: CC 10C14484,SC S061650,No. 26,CA A148473,26
• Citation: 357 Or 460
• Court: Oregon Supreme Court
• Parties: Marquis COUEY, an individual, Petitioner on Review, v. Jeanne ATKINS, in her official capacity as Secretary of State of Oregon, Respondent on Review.

357 Or 460

Marquis COUEY, an individual, Petitioner on Review, v. Jeanne ATKINS,

in her official capacity as Secretary of State of Oregon, Respondent on Review.

No. 26

CC 10C14484

CA A148473

SC S061650

SUPREME COURT OF THE STATE OF OREGON

Argued and submitted June 24, 2014

July 16, 2015

En Banc

On review from the Court of Appeals.^*

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.

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 reviewwithin 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 enacta 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).

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 telephonecall from the Secretary of State's office to report that the secretary intended to...