Summary
The Oregon Supreme Court granted the Attorney General's motion to dismiss a ballot-title review proceeding as moot after the underlying initiative petition was withdrawn. The court denied the request to withdraw or vacate its previously issued opinion, concluding that the Attorney General had not shown an equitable basis for vacatur.
Topics
Practice areas
Questions Presented
- Whether withdrawal of the initiative petition rendered the ballot-title review proceeding moot and required dismissal.
- Whether the court should withdraw or vacate its previously issued published opinion because the proceeding had become moot.
- Whether counsel had an obligation under ORAP 8.45 to notify the court within a reasonable time when facts arose that probably rendered the proceeding moot.
Holdings
- Withdrawal of the prospective initiative petition rendered moot the controversy over the sufficiency of the Attorney General's certified ballot title, requiring dismissal of the pending ballot-title review proceeding.
- The court denied the Attorney General's motion to withdraw the published opinion because he failed to demonstrate an equitable entitlement to the extraordinary remedy of vacatur.
- ORAP 8.45 requires a party who becomes aware of facts that probably render an appeal moot to notify the court and the other parties within a reasonable time, subject to the rule's privilege exception.
Key quotations
“The respondent's motion to dismiss on the ground of mootness is granted; the respondent's motion to withdraw the opinion is denied.”
“The central principle, according to Kerr, is that vacatur is an extraordinary remedy to which a party must show an equitable entitlement.”
“Except as to facts the disclosure of which is barred by the attorney-client privilege, when a party becomes aware of facts that probably renders [sic] an appeal moot, that party shall provide notice of the facts to the court and to the other party or parties to the appeal, and may file a motion to dismiss the appeal.”
Factual background
Petitioners sought review of the ballot title certified for Initiative Petition 12 (2008). After briefing was complete and the case had been submitted, the initiative's chief petitioner withdrew the initiative petition from the Secretary of State on June 21, 2006. The parties did not notify the court of the withdrawal until the Attorney General moved to dismiss the proceeding as moot on the day the court issued its merits opinion.
Procedural history
Petitioners filed a ballot-title review petition under ORS 250.085. The Oregon Supreme Court previously held that the certified ballot title did not substantially comply with ORS 250.035 and referred it to the Attorney General for modification. The initiative petition was then withdrawn, rendering the ballot-title dispute moot. The court granted dismissal but denied the request to withdraw or vacate its previously issued opinion.