Yancy v. Shatzer

Decision Date16 September 2004
Citation337 Or. 345,97 P.3d 1161
PartiesTerry YANCY, Petitioner on Review, v. William W. SHATZER, Portland City Code Hearings Officer; and City of Portland, Respondents on Review.
CourtOregon Supreme Court

Thomas M. Christ, of Cosgrave Vergeer Kester LLP, Portland, argued the cause for petitioner on review. With him on the briefs were Ed Johnson and Marc Jolin, Oregon Law Center.

Harry Auerbach, Senior Deputy City Attorney, Portland, argued the cause and filed the briefs for respondents on review.

Roy Pulvers, of Lindsay, Hart, Neil & Weigler, LLP, Portland, filed a brief on behalf of amicus curiae Oregon State Bar.

Charles F. Hinkle, Portland, filed a brief on behalf of amicus curiae ACLU Foundation of Oregon, Inc.


Portland police stopped petitioner Yancy for jaywalking. In the course of that contact, the police searched petitioner and discovered less than an ounce of marijuana. The police then issued petitioner a citation that excluded him from two Portland city parks for a period of 30 days. Petitioner timely appealed to the City of Portland Hearings Officer, which affirmed the exclusion. After the exclusion period had run, petitioner sought to challenge the exclusion citation by means of a writ of review in circuit court. The circuit court rejected petitioner's arguments on the merits. Petitioner appealed. The Court of Appeals observed that the case was moot, because the exclusion period had expired and ordered the circuit court to vacate its judgment and dismiss the matter as moot. Yancy v. Shatzer, 185 Or.App. 704, 705, 60 P.3d 1156 (2003). Petitioner sought review in this court. We allowed review to consider whether Oregon courts have the power to consider disputes that, like the present one, are capable of repetition and yet evade review because they became moot at some point in the proceedings. Having considered the question, we conclude that our judicial power does not include the authority to adjudicate cases in which there is no existing controversy. We therefore affirm the decision of the Court of Appeals.

On June 9, 2000, the Portland police stopped petitioner after he left Tom McCall Waterfront Park and proceeded across Front Avenue against a pedestrian "Don't Walk" signal. During that contact, the police searched petitioner and discovered less than an ounce of marijuana. Based on the discovery of the marijuana, the police issued petitioner a citation that excluded him from Waterfront Park and Ankeny Plaza.1 Under the terms of the exclusion, which took effect immediately, petitioner would be subject to arrest for criminal trespass if he were to return to either park within 30 days.

On June 13, 2000, petitioner filed an appeal with the Code Hearings Officer. By June 21, 2000, the hearing date, almost half of the exclusion period had run. The hearings officer upheld the exclusion, citing petitioner's failure to obey the traffic signal.

On July 9, 2000, the exclusion period expired. On August 18, 2000, petitioner filed a petition for a writ of review in the circuit court raising various constitutional challenges to the ordinance. See ORS 34.020 (authorizing use of writ by circuit court to review proceedings before inferior tribunal). On September 9, 2000, the City of Portland filed a return to the writ of review, after which the parties briefed and argued the matter. The return addressed petitioner's constitutional arguments on their merits; it did not mention the fact that the 30-day exclusion period had run. On April 20, 2001, the circuit court issued an opinion in which it rejected petitioner's constitutional challenges.

Petitioner appealed to the Court of Appeals. In a per curiam opinion, the Court of Appeals concluded that, because the period of exclusion expired on July 9, 2000, the case was moot before the circuit court rendered its judgment. The Court of Appeals therefore remanded the matter to the circuit court with instructions to vacate the judgment and dismiss the writ of review. Yancy, 185 Or.App. at 705, 60 P.3d 1156. We allowed petitioner's petition for review.

Since the adoption of the Oregon Constitution in 1857, this court, from time to time, has been required to determine whether a matter before it is one that is appropriate for judicial disposition. Historically, this court has described that undertaking as a determination whether a "justiciable controversy" exists. In that regard, this court has stated that "[a] controversy is justiciable, as opposed to abstract, where there is an actual and substantial controversy between parties having adverse legal interests." Brown v. Oregon State Bar, 293 Or. 446, 449, 648 P.2d 1289 (1982). Similarly, this court has observed that justiciability contemplates "that the court's decision in the matter will have some practical effect on the rights of the parties to the controversy." Brumnett v. PSRB, 315 Or. 402, 405, 848 P.2d 1194 (1993). Encompassed within the broad question of justiciability are a constellation of related issues, including standing, ripeness, and mootness. For example, this court has recognized that, even if a case is otherwise justiciable, the court will dismiss it as moot if a "decision no longer will have a practical effect on or concerning the rights of the parties." Id. at 406, 848 P.2d 1194. This court also has observed that "[m]ootness is a species of justiciability, and a court of law exercising the judicial power of the state has authority to decide only justiciable controversies." First Commerce of America v. Nimbus Center Assoc., 329 Or. 199, 206, 986 P.2d 556 (1999).

Petitioner acknowledges the foregoing authorities, but points out that this court at times has appeared to recognize an exception to the rule against deciding moot cases. For example, in 1947, this court utilized such an exception in Perry v. Oregon Liquor Commission, 180 Or. 495, 498-99, 177 P.2d 406 (1947). In Perry, the Oregon Liquor Control Commission (OLCC) suspended a supper club's liquor license for 60 days. A circuit court held that the OLCC had overstepped its authority in suspending the license and reinstated it. The OLCC appealed to this court, but the club moved to dismiss the appeal, arguing that "the question as to the suspension of the license [is] a moot one — and therefore improper to consider" because the period of suspension already had expired. Id. at 498, 177 P.2d 406. The court denied the motion, indicating that the court would exercise its discretion to decide a moot question for the guidance of an official administrative agency, if the question involved the public welfare and was likely to arise again in the future. Id. at 498-99, 177 P.2d 406. In reaching that conclusion, the court did not examine the text and history of the Oregon Constitution, but relied on cases from other jurisdictions. Id. at 499, 177 P.2d 406. The court reversed the circuit court's decision to lift the suspension of the license. Id. at 500-01, 177 P.2d 406. Subsequently, this court has followed Perry on several occasions. See, e.g., Stowe v. School Dist. No. 8-C, 240 Or. 526, 528, 402 P.2d 740 (1965); Linklater v. Nyberg, 234 Or. 117, 120, 380 P.2d 631 (1963); Huffman v. Alexander, 197 Or. 283, 333, 253 P.2d 289 (1953); State ex rel. v. Smith et al., 197 Or. 96, 126, 252 P.2d 550 (1953); State ex rel. v. Newbry et al., 196 Or. 331, 337, 248 P.2d 840 (1952); Oregon State Grange v. McKay, 193 Or. 627, 631, 239 P.2d 834 (1952) (illustrating proposition). However, none of those cases purported to analyze this court's statement in Perry beyond citing it.

More recently, however, this court has rejected Perry's rationale for deciding moot cases. In Kay v. David Douglas Sch. Dist. No. 40, 303 Or. 574, 577, 738 P.2d 1389 (1987), this court observed that no justiciable controversy existed between the parties when the circuit court entered judgment. Therefore, the court concluded, the case was moot and should have been dismissed. In Mid-County Future Alt. v. Metro. Area LGBC, 304 Or. 89, 92, 742 P.2d 47 (1987), this court asserted that it would not decide moot, nonjusticiable cases, regardless of claims of public importance, "because of [the court's] regard for the constitution of this state, which separates the power and functions of the departments of government, Or. Const., Art. III, § 1, and vests in the courts only the `judicial power.' Or. Const., Art. VII (Amend), § 1." A few years later, in Barcik v. Kubiaczyk, 321 Or. 174, 189, 895 P.2d 765 (1995), this court reaffirmed the observations that it had made in Mid-County.

In summary, Kay, Mid-County, and Barcik indicate, at least in general terms, that the constitutional grant of governmental power to the judiciary is limited by the justiciability requirement. Although the decisions in Mid-County and Barcik express doubts about this court's constitutional authority to decide moot cases, this court has not undertaken a full constitutional analysis of that subject. This case presents the occasion to do so.

Two constitutional provisions, Article III, section 1, and Article VII (Amended), section 1, of the Oregon Constitution make reference to the judiciary. Article III, section 1, was adopted as part of Oregon's original constitution. That provision states:

"The powers of the Government shall be divided into three [separate] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided."

The phrase "judicial power" appears in Article VII (Amended), section 1, which provides that "[t]he judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law." Article VII (Amended), section 1, adopted by the people on ...

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