Progressive Party of Or. v. Atkins

• Citation: 370 P.3d 506,276 Or.App. 700
• Decision Date: 09 March 2016
• Docket Number: 10C20167,A151588.
• Parties: PROGRESSIVE PARTY OF OREGON, a certified Political Party, Plaintiff–Appellant, and Working Families Party of Oregon, a certified Political Party; and Larry George, an Oregon Elector, State Senator and candidate in the 2010 General Election of the Republican and Independent parties of Oregon, Plaintiffs, v. Jeanne ATKINS, Secretary of State of Oregon, Defendant–Respondent.
• Court: Court of Appeals of Oregon

276 Or.App. 700

370 P.3d 506

PROGRESSIVE PARTY OF OREGON, a certified Political Party, Plaintiff–Appellant,andWorking Families Party of Oregon, a certified Political Party; and Larry George, an Oregon Elector, State Senator and candidate in the 2010 General Election of the Republican and Independent parties of Oregon, Plaintiffs,

v.Jeanne ATKINS, Secretary of State of Oregon, Defendant–Respondent.

10C20167

A151588.

Court of Appeals of Oregon.

Submitted July 10, 2014.

Decided March 9, 2016.

Daniel W. Meek filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael A. Casper, Deputy Solicitor General, filed the answering brief for respondent. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Michael A. Casper, Assistant Attorney General.

Before SERCOMBE, Presiding Judge, and HADLOCK, Chief Judge, and DUNCAN, Judge.

HADLOCK, C.J.

This case relates to plaintiffs' contention that defendant, the Oregon Secretary of State, violated a state election law in 2010 when she adopted OAR 165–007–0320, which required each candidate's political party to be identified by a specified "three character designation" on the general election ballot.¹ Although defendant repealed that rule in 2012, plaintiffs continued this litigation. In their first amended complaint, filed after the rule's repeal, plaintiffs sought a declaration that any use of "three character designations" for political parties was unlawful in the past and would be unlawful in the future; they also sought to enjoin defendant from using such designations in the future. The trial court dismissed the action, concluding that it was moot and that the issues raised did not fall within the "capable of repetition, yet evading review" exception to the mootness doctrine that is embodied in ORS 14.175. Reviewing for legal error, we affirm.

The facts are mainly procedural and, as pertinent to our review, are undisputed. ORS 254.135 (2009), amended by, Or. Laws 2012, ch. 102, § 1 set out specific requirements for the printing of ballots to be used in general and special elections. Subsection (3) of the statute generally required that "the name" or "the names" of the political party or parties that have nominated a candidate "be added opposite the name of the candidate." ORS 254.135(3)(a)(A)–(F) (2009).² Plaintiffs Progressive Party of Oregon, Working Families Party of Oregon, and Larry George (collectively, "plaintiffs") sued the Oregon Secretary of State in August 2010, generally asserting that she had violated ORS 254.135(3) (2009) as well as the state and federal constitutions by proposing, then adopting, OAR 165–007–0320, which required general-election ballots to use specified "three character designations" to identify the political parties that had nominated candidates on the ballots, rather than the names of those political parties.³ Plaintiffs sought declarations to that effect under the Declaratory Judgment Act, ORS 28.010 to ORS 28.160. In addition, plaintiffs sought preliminary and permanent injunctive relief preventing defendant "from refusing to implement * * * ORS 254.135(3) correctly" and requiring defendant to "add the names of each political party opposite the name of their respective candidates on the general election ballot."

Plaintiffs filed that initial complaint in August 2010. Defendant soon filed her opposition to the request for a preliminary injunction, and the trial court denied that request in September 2010.⁴ According to plaintiffs, county elections officers complied with defendant's "directive * * * not to print party names next to the names of their nominees on the 2010 General Election ballot."

No more activity in the case occurred until a status conference was held in early 2012. Shortly thereafter, plaintiffs filed a first amended complaint, generally seeking "a declaration that ORS 254.135(3) requires that the name of a political party which has nominated a candidate for partisan office appear opposite the candidate's name on the General Election ballot." (Underscoring in original.) In the amended complaint, plaintiffs alleged that the Secretary of State had "repealed all of OAR 165–007–0320" in January 2012 and had "printed ballots for the January 31, 2012, Special Election, with the full names of the parties next to their nominees on the ballot, in compliance with ORS 254.135(3), under a ‘temporary’ rule." Nonetheless, plaintiffs alleged, defendant had "not renounced using the abbreviations, acronyms or other symbols instead of party names on General or Special Election ballots." Plaintiffs asserted that defendant therefore could "subject[ ] the Plaintiffs and all voters to the same or similar violations of ORS 254.135 repeatedly." In the amended complaint, plaintiffs sought an order declaring the following:

• " ORS 254.135(3) requires printing the names of political parties next to their respective candidates on the ballot and ‘unaffiliated’ opposite certain others";

• " ‘Name’ within the meaning of the statute is the ‘word or phrase that constitutes the distinctive designation of a person or thing’ "; and

• "The names of Oregon's currently certified statewide political parties are:

"Constitution	Pacific Green
	"Democratic	Progressive
	"Independent	Republican
	"Libertarian	Working Families"

• "The abbreviations used by Defendant are not the ‘names' of the political parties, so placing those abbreviations on the ballot opposite the names of candidates violates ORS 254.135(3)."

In addition, plaintiffs sought a permanent injunction "ordering that Defendant shall add the names of each political party opposite the name of their respective candidates on the General Election ballot." Finally, plaintiffs sought an award of reasonable costs and attorney fees.

Defendant moved to dismiss the first amended complaint under ORCP 21 A(1) on the ground that the case was not justiciable. Defendant based that argument on two sets of facts, which it established through affidavits.⁵ First, defendant pointed out that the administrative rule that had dictated the use of three-letter designations, instead of party names, had been repealed—as plaintiffs had acknowledged. Second, defendant asserted, she "has no plans to use three-character abbreviations in future elections" and "[t]he circumstances that led to the adoption of [the repealed] rule have changed."⁶ Accordingly, defendant concluded, the case was moot.

Defendant also argued that plaintiffs' challenges were not subject to review under ORS 14.175, which she described as "Oregon's ‘capable of repetition, yet evading review’ statute."⁷ Defendant asserted that "the ‘policy or practice challenged by the party’ [did] not continue in effect" because the rule had been repealed. And the specific "act challenged by the party"—possible future use of three-letter abbreviations—was "too speculative," according to defendant, "to fit within the meaning of the phrase ‘capable of repetition.’ " Finally, defendant argued that—even if the requirements of ORS 14.175 were met—the trial court should exercise its discretion to not decide the moot case because some of plaintiffs' arguments were fact bound, and the specific facts on which plaintiffs pinned their arguments might not recur in a hypothetical future case.

In response, plaintiffs argued that the case was justiciable, and not moot, because defendant had not renounced her authority to require abbreviations to be printed on ballots in place of party names. Defendant rejoined that it was "impracticable" for her to renounce the possibility that she might, in the future, decide to use abbreviations because she could not "anticipate what future circumstances might arise that might require abbreviations different from those plaintiffs prefer."⁸

In a letter opinion, the trial court ruled that the case was "not justiciable" and was moot because "there no longer is an OAR allowing abbreviations and the Secretary['s] office has offered an affidavit saying there is no present intent to use abbreviations." In addition, the court stated, "under ORS 14.175 the practice is not likely to evade judicial review." Accordingly, the court granted defendant's motion to dismiss and entered a general judgment of dismissal.

On appeal, plaintiffs argue in their first assignment of error that the trial court erred when it concluded that plaintiffs' claims are not justiciable. In their second assignment of error, plaintiffs argue that the circuit court erred in concluding that the Secretary of State's "practice is not likely to evade judicial review" and, therefore, is not reviewable under ORS 14.175.⁹ We review the trial court's rulings on those matters for legal error. Chernaik v. Kitzhaber, 263 Or.App. 463, 466, 328 P.3d 799 (2014).

We begin by addressing plaintiff's contention that this action is justiciable. The Supreme Court held in Couey v. Atkins, 357 Or. 460, 520, 355 P.3d 866 (2015), that the Oregon Constitution does not impose "justiciability limitations on the exercise of judicial power in public actions or cases involving matters of public interest." More specifically, with respect to mootness, the court explained that the constitution does not require courts to dismiss "public actions or cases involving matters of public interest" when they become moot. However, the court emphasized that its holding does not mean "that moot cases will no longer be subject to dismissal." Id. To the contrary, courts retain "judicial discretion" to apply traditional justiciability doctrines and have authority to dismiss moot cases. Id. at 469 n. 3, 355 P.3d 866.

Couey itself demonstrates that principle. The plaintiff in that case brought a declaratory-judgment claim, challenging the constitutionality of a statute that prohibited a person who was registered "to collect initiative petition signatures for pay" from, at the same time, obtaining signatures on a petition for which the person was not being paid. Id...