Mootness and the “judicial power” in Oregon

Couey v. Atkins, No. SC S061650 (Or. July 16, 2015).

The federal courts have developed a vast body of law on justiciability—whether a case is capable of being decided by a court. In federal court, a case isn’t justiciable if, among other things, it’s moot, or not ripe, or if the plaintiffs lack standing to bring their claims. The Supreme Court has tended to trace these justiciability doctrines to Article III’s limitation of the federal “judicial power” to “cases” and “controversies.” It seems pretty clear, though, that many of these doctrines are a relatively recent innovation—at least in their current form. 

The text of the Oregon Constitution doesn’t mention “cases” or “controversies,” but, like Article III, it does vest “judicial power” in the state’s courts. What does “judicial power” mean? In particular, does the Oregon Constitution’s reference to “judicial power” prevent Oregon courts from hearing and deciding moot cases? That’s the question the Oregon Supreme Court answers here. 

In its unanimous and scholarly decision, the court turns to history, among other things, to figure out what the Oregon Constitution means by “judicial power.” The court determines that up until the latter half of the twentieth century, courts conceived of justiciability doctrines as essentially prudential—as limits that courts imposed on themselves as a matter of wisdom rather than constitutional necessity. In a way, this opinion amounts to a devastating—if characteristically low-key; this is Oregon we’re talking about, after all—attack on the U.S. Supreme Court’s constitutionalization of justiciability. And in the end, the Oregon Supreme Court decides that mootness doesn’t bar the Oregon courts from deciding a case. That doesn’t mean that Oregon courts have to decide moot cases, but it does mean that dismissal of moot cases is not required, particularly if, as in this case, a statute explicitly authorizes the Oregon courts to hear the case.