Kay v. David Douglas School Dist. No. 40

• Decision Date: 08 July 1987
• Docket Number: P,No. 40,40
• Parties: , 40 Ed. Law Rep. 1027 Steven KAY; James M. Strieby; Wendy Deibele; Dora Epstein, by and through her mother Bette Disselbrett; and Bette Disselbrett, Respondents on Review, Jill Takashima, Plaintiff. v. DAVID DOUGLAS SCHOOL DISTRICT NO. 40; Anthony Palermini, individually and as Superintendent of David Douglas School District; and Robert Reese, Don Larson, Ed Gustafson, Marge Anderson, Scott Rasmussen, James Olsen, and Ray Rankin, individually and as members of the Board of David Douglas School District, Petitioners on Review. TC A8404-02438; CA A32742; SC S33089.
• Court: Oregon Supreme Court

Page 1389

738 P.2d 1389

303 Or. 574, 40 Ed. Law Rep. 1027

Steven KAY; James M. Strieby; Wendy Deibele; Dora Epstein, by and through her mother Bette Disselbrett; and Bette Disselbrett Respondents on Review Jill Takashima, Plaintiff. v. DAVID DOUGLAS SCHOOL DISTRICT NO. 40; Anthony Palermini individually and as Superintendent of David Douglas School District No. 40; and Robert Reese, Don Larson, Ed Gustafson, Marge Anderson, Scott Rasmussen, James Olsen, and Ray Rankin, individually and as members of the Board of David Douglas School District No. 40, Petitioners on Review.

TC A8404-02438; CA A32742; SC S33089.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 20, 1987.

Decided July 8, 1987.

Kelly Clark, Portland, argued the cause and filed the petition for petitioners on review.

Charles F. Hinkle, Portland, argued the cause and filed the response for respondents on review.

LINDE, Justice.

Plaintiffs sued for declaratory and injunctive relief against inclusion of formal prayer in the commencement exercises of the David Douglas High School graduating class of 1984, relying on provisions of the Oregon Constitution and the federal civil rights law, 42 U.S.C. § 1983. The circuit court entered a judgment granting the requested relief and awarding costs and attorney fees to plaintiffs. The Court of Appeals affirmed the judgment, holding that the inclusion of the invocation proposed by defendants would violate Article I, sections 2 and 5, of the Oregon Constitution. ¹ Kay v. David Douglas Sch. Dist. No. 40, 79 Or.App. 384, 719 P.2d 875 (1986). We hold that on the date of the circuit court's judgment there was no justiciable controversy before the court and that the Court of Appeals should have ordered dismissal of the proceeding.

When the circuit court signed the challenged judgment, the commencement exercises were past. No plaintiff demanded, nor did any allege facts entitling that plaintiff to demand, more general relief against future practices of defendants. The plaintiffs were four members of the high school class scheduled to graduate in May 1984, and Bette Disselbrett, the mother of one of the students. Their complaint was filed on April 24, 1984 and amended on April 25, 1984. On that date, the circuit court ordered defendants to show cause why the challenged religious activities should not be enjoined, and a show cause hearing was held on May 4. At the end of the hearing, the presiding judge delivered an oral opinion from the bench, ending with the court's conclusion that injunctive relief enjoining formal prayer at the 1984 commencement exercises should be allowed, and announcing that "that will be the Order of this Court." The court then asked plaintiffs' attorney to prepare an order in consultation with the attorney for defendants.

After further proceedings on June 28, 1984 on plaintiffs' costs and attorney fees, the circuit court signed a judgment declaring that inclusion of formal public prayer at defendants' commencement exercises "violates Articles I, sections 2, 3 and 5 of the Oregon Constitution and the First Amendment of the United States Constitution," and enjoining defendants from including such prayer in "the commencement exercises for the 1984 graduating class of David Douglas High School." It is undisputed that these exercises had occurred earlier as scheduled. The court also awarded plaintiffs attorney fees of $2,900 and $196.50 in costs and disbursements.

On appeal, both sides took the position that the case was not moot, plaintiffs on grounds that the facts leading to the judgment were capable of repetition, yet evading review, and defendants because the judgment would collaterally estop them in the future and because of the judgment awarding plaintiffs attorney fees. The Court of Appeals stated in a footnote:

"This appeal is not moot, however, because the award of attorney fees is predicated on plaintiffs' entitlement to an injunction. Additionally, we retain jurisdiction, because the problem here is one "capable of repetition, yet evading review."

79 Or.App. at 386 n 1, 719 P.2d 875 (citation omitted).

The problem, however, is not whether the appeal was moot, but whether a justiciable controversy between the parties existed at the time of the circuit court's judgment. A party with standing under the various applicable tests might, of course, seek relief against future repetitions of the challenged governmental act, but these plaintiffs presented no such claims to the circuit court. And a court cannot either mandate or enjoin an act after it has been completed, at least not until the cosmological theory of reversible time is better established. Suggestions to the contrary which date from language in Perry v. Oregon Liquor Commission, 180 Or. 495, 498-99, 177 P.2d 406 (1947), have been discarded in recent cases and should not be followed. See Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 367 n. 9, 723 P.2d 298 (1986); Hay v. Dept. of Transportation, 301 Or. 129, 134, 719 P.2d 860 (1986); State ex rel. Oregonian Publishing Co. v. Sams, 298 Or. 329, 332, 692 P.2d 116 (1984).

The judgment holding defendants liable for plaintiffs' attorney fees might have prevented the case from becoming moot on appeal, because that award depended on plaintiffs' success on the merits. ² But the award of attorney fees did not occur until the court signed a written order or judgment, which the court did only on June 28, 1984, more than a month after the scheduled commencement exercises.

The court's oral opinion from the bench following the May 4 hearing was not an order or a judgment. The Oregon Rules of Civil Procedure require ordinary injunctions as well as judgments to be in writing and signed by the judge. ORCP 70 A., 79 B. (2), 79 D. ³ Rule 70 A. states this expressly with respect to judgments (which include decrees, ORCP 67 A.), and it also is clear with respect to preliminary injunctions from the requirement of Rule 79 D. that prescribes the details required to be set forth in such orders. If an injunctive order did not have to be reduced to writing, compliance woulddepend on the memories of the participants in the hearing and would lead to disputes that could only be decided by transcribing the record of the hearing. It is doubtful that the circuit judge in this case thought that he was pronouncing a preliminary injunction in terms satisfying ORCP 79 D.; in fact, he spoke in the future...