Academic journal article Albany Law Review

Covey V. Atkins: A Reevaluation of State Justiciability Doctrine

Academic journal article Albany Law Review

Covey V. Atkins: A Reevaluation of State Justiciability Doctrine

Article excerpt

Federal justiciability doctrine is a mess, as it is well-known. (1) State justiciability doctrine often fares not much better, especially to the extent that courts draw on federal justiciability doctrine in recognizing constitutional constraints on their authority to exercise judicial power. (2)

The Oregon Supreme Court was among those courts. In fact, the court went beyond federal justiciability doctrine in not only holding that the state's courts lacked authority to hear moot cases, but also concluding that the court cannot hear such cases even when they are capable of repetition, yet evading review--an exception to mootness that had been recognized by the federal courts and the courts of every other state in the country. (3)

In Couey v. Atkins, the Oregon Supreme Court reconsidered. In that case, the court observed that its own justiciability case law, like that of the federal courts, had become incoherent. (4) So it took the opportunity to reassess the matter from scratch, ultimately concluding that it had erred in following federal justiciability doctrine. (5) The court conducted a lengthy analysis of the historical roots of justiciability doctrine, concluding that constitutional conceptions of standing and mootness are constructs of the twentieth century, which state courts might appropriately adopt as a matter of policy, but are not required to follow as a matter of state constitutional law. (6)


A bit of background concerning preexisting Oregon justiciability doctrine provides a useful context for discussing Couey and its implications. As I said, Oregon's modern justiciability case law was not a thing of beauty. Beginning in the 1930s, the court began to borrow from federal justiciability case law in developing the doctrine that the state constitution imposes certain jurisdictional barriers to entertaining declaratory judgment actions. (7) The court held that is was "not a judicial function" to decide abstract or hypothetical questions posed by plaintiffs who did not have a concrete stake in the outcome of a case. (8)

For a while, the court flirted with recognizing certain exceptions to those constitutional justiciability barriers. It recognized, for example, the capable-of-repetition exception to the general rule that courts cannot decide moot cases. (9)

But then in the 1960s, the court reverted to the federal-style justiciability doctrine to which it had previously adhered, holding that Oregon courts are simply without constitutional authority to entertain any actions that are not justiciable. (10) In the 1980s and 1990s, the court emphasized the constitutional nature of its justiciability doctrine and borrowed freely from federal case law concerning standing, mootness, ripeness, and advisory opinions. (11)

The capstone to that doctrinal work was the court's decision in Yancy v. Shatzer, (12) a case in which the court explicitly rooted its justiciability doctrine in the "judicial power" clause of Article VII (Amended) of the Oregon Constitution. (13) According to Yancy, although nothing in the text of the constitution explicitly imposes any justiciability constraints on the exercise of judicial power, the framers of the constitution would have understood there to be just such a restriction. (14) And because those same framers would not have recognized a capable-of-repetition exception to the rule against deciding moot cases, the court concluded, the court lacked constitutional authority to recognize it as well. (15)

In the process, the court relied on federal justiciability doctrine, as well as certain historical sources that are commonly cited in support of that federal doctrine, such as Hay burn's Case and Chief Justice John Jay's refusal to accept President George Washington's request for an advisory opinion. (16) The court acknowledged that federal courts nevertheless recognize an exception to the constitutional mootness doctrine in cases that are capable of repetition, yet evading review. …

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