Couey v. Atkins
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Plaintiff initiated this action against the Secretary of State, challenging the constitutionality of ORS 250.048(9), which provided that a person who registered with the Secretary of State to collect initiative petition signatures for pay may not, “at the same time, obtain signatures on a petition or prospective petition for which the person is not being paid.” At the time he initiated the action, plaintiff had registered to collect initiative petition signatures for pay and had been hired to do just that. At the same time, he wanted to collect signatures on other measures on a volunteer basis.
He contended that ORS 250.048(9) violated his constitutional rights of freedom of expression and association. During the pendency of the litigation, however, plaintiff stopped working as a paid signature collector, and his registration expired. The secretary moved for summary judgment on the ground that the action had become moot. Plaintiff opposed the motion, submitting an affidavit stating that he intended to work as a paid signature collector in the future and that he might be interested in collecting signatures on a volunteer basis on other measures at the same time. He also argued that, even if his action had become moot, the action nevertheless should proceed because it was “likely to evade judicial review in the future,” and ORS 14.175 expressly authorized courts to adjudicate such cases. The trial court granted the secretary's motion to dismiss, and the Court of Appeals affirmed dismissal. The issues, therefore, before the Supreme Court were: (1) whether the averments in plaintiff’s affidavit were sufficient to establish that his action was not moot; (2) even if the action was moot, whether it was nevertheless justiciable under ORS 14.175 because it was likely to evade review; and (3) if it is subject to ORS 14.175, whether the legislature possessed the constitutional authority to enact it. The Court concluded: (1) plaintiff’s affidavit was insufficient to establish that his action was not moot; (2) the action nevertheless was likely to evade judicial review under the standard set out in ORS 14.175, because it was not necessary to request expedited consideration to meet its terms; and (3) the legislature did possess the constitutional authority to enact the statute. Accordingly, because the Court concluded that the case was justiciable under ORS 14.175, it reversed the decision of the Court of Appeals and trial court and remanded for further proceedings.
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