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Couey v. Atkins

Supreme Court of Oregon, En Banc

July 16, 2015

Marquis COUEY, an individual, Petitioner on Review,
v.
Jeanne ATKINS, in her official capacity as Secretary of State of Oregon, Respondent on Review

Argued and Submitted June 24, 2014

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[Copyrighted Material Omitted]

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CC 10C14484; CA A148473. On review from the Court of Appeals. [*]

Couey v. Brown, 257 Or.App. 434, 306 P.3d 778 (2013)

The decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is remanded to the circuit court for further proceedings.

Daniel W. Meek, Portland, argued the cause for petitioner on review. Linda K. Williams, Portland, filed the briefs.

Rolf Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the briefs were Ellen F. Rosenblum, Attorney General, Anna Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General.

Alan J. Galloway, Davis Wright Tremaine LLP, Portland, argued the cause and filed the brief for amicus curiae American Civil Liberties Union of Oregon, Inc. With him on the brief were Timothy R. Volpert and Kevin Dí az.

Robert M. Atkinson, Portland, filed the brief for himself as amicus curiae.

OPINION

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[357 Or. 462] LANDAU, J.

ORS 250.048(9)[1] provides that a person who is 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." Plaintiff initiated this action against the Secretary of State, challenging the constitutionality of that statute. At the time he initiated the action, he 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 is " likely to evade judicial review in the future," and ORS 14.175 expressly authorizes courts to adjudicate such cases.

The trial court entered summary judgment dismissing the action on the ground that the action had become moot. The court concluded that, because plaintiff had failed to ask for expedited consideration, his is not the sort of case that is likely to evade review under ORS 14.175. The Court of Appeals affirmed, and we accepted plaintiff's petition for review.

On review, the case presents the following issues for us to resolve: (1) whether the averments in plaintiff's affidavit are sufficient to establish that his action is not moot; (2) even if the action is moot, whether it is nevertheless justiciable under ORS 14.175 because it is likely to evade review [357 Or. 463] within the meaning of that statute; and (3) if it is subject to ORS 14.175, whether the legislature possessed the constitutional authority to enact it. The case thus requires us to examine the subject of justiciability--in terms of this court's own jurisprudence on the rule against deciding moot cases, the intended meaning of the statutory exception to that rule, and the legislature's constitutional authority

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to enact such a law. It does not require us to reach the merits.

For the reasons that follow, we conclude that: (1) plaintiff's affidavit is insufficient to establish that his action is not moot; (2) the action nevertheless is likely to evade judicial review under the standard set out in ORS 14.175, because it is not necessary to request expedited consideration to meet its terms; and (3) the legislature does possess the constitutional authority to enact the statute. Accordingly, because we conclude that the case is justiciable under ORS 14.175, we reverse the decision of the Court of Appeals, reverse the decision of the trial court, and remand for further proceedings.

I. BACKGROUND

A. Regulatory context

We begin with a brief summary of the regulation of the initiative petition signature collection process to provide context for our discussion of the relevant facts. The powers of initiative and referendum reserved by the people in Article IV, section 1, of the Oregon Constitution allow them to enact statutes, adopt or reject bills passed by the legislature, and adopt amendments to the state constitution. The parties who seek to place a statewide initiative measure on an election ballot, known as the chief petitioners, must submit to the Secretary of State the text of the proposed measure along with the required number of sponsorship signatures. See ORS 250.045(1) (requiring filing of text of prospective petition with signatures of at least 1,000 electors). There follows the certification of a ballot title, an impartial summary of the proposed measure. ORS 250.065 to 250.085. Once the ballot title has been certified, the chief petitioners are responsible for collecting signatures from registered voters who support placing the measure on an upcoming election ballot. Depending on whether the measure proposes [357 Or. 464] to enact a statute or to adopt a constitutional amendment, the number of required signatures varies from six to eight percent of the total votes cast for governor at the last election. Or. Const, Art IV, § 1(2)(b), (c). Chief petitioners have a limited time to collect those signatures, which must be submitted to the Secretary of State at least four months before the date of the next regularly scheduled general election. Or. Const, Art IV, § 1(2)(e).

The process of collecting initiative petition signatures is regulated by statute and by administrative rules promulgated by the Secretary of State. Chief petitioners are authorized to hire paid signature collectors. ORS 250.045(2). But they must notify the Secretary of State of their intention to do that, and the petition itself must include a statement that one or more persons is being paid to collect signatures. ORS 250.045(2), (7).

Before a person may be paid to collect initiative petition signatures, he or she must register with the Secretary of State, specify for which measures signatures will be collected, and complete a training program prescribed by rule by the secretary. ORS 250.048(1), (2). That registration remains in effect for a limited time; it expires four months before the next general election, when initiative petition signatures are due. ORS 250.048(3).

A registered paid initiative petition signature collector may not collect signatures on other measures on a volunteer basis. ORS 250.048(9) provides: " A person registered under this section [to be a paid collector] may not obtain signatures on a petition or prospective petition for which the person is being paid and, at the same time, obtain signatures on a petition or prospective petition for which the person is not being paid." The statute further provides that the Secretary of State may not count any signatures that were collected in violation of that restriction. Id.

B. Facts

The relevant facts are few and undisputed. We review them in the light most favorable to plaintiff. ORCP 47 C; Towe v. Sacagawea, Inc., 357 Or. 74, 77 n 2, 347 P.3d 766 (2015) (on review of summary judgment, evidence is viewed in light most favorable to nonmoving party).

[357 Or. 465] Plaintiff obtained registration to work as a paid signature collector for Initiative

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Petitions 28 and 70 during the 2010 election cycle, scheduled to end July 2, 2010. He performed that work in the " winter and early spring" of 2010. During that time, he became interested in collecting signatures for a third measure, Initiative Petition 42, but on a volunteer basis. He explained that he was interested in the subject of that measure--environmental protection--and that he was often at events " where I met people when I was not being paid as a petitioner, and I could have easily gotten signatures at those times." But he was concerned that ORS 250.048(9) did not seem to permit him to do that.

On April 19, 2010, plaintiff initiated this action against the Secretary of State challenging the constitutionality of ORS 250.048(9). He alleged as the basis for the action the Declaratory Judgments Act, ORS 28.020, and a separate statute providing for challenges to actions of the Secretary of State, ORS 246.910. He asked for a declaration that ORS 250.048(9) is unconstitutionally overbroad, in violation of his rights of free expression and free association guaranteed under Article I, sections 8 and 27, of the Oregon Constitution, and under the First and Fourteenth Amendments to the United States Constitution. He alleged that his uncertainty about the meaning of ORS 250.048(9)--in particular, what the statute means when it prohibits collecting signatures as a paid collector and a volunteer " at the same time" --effectively chills his rights of free expression and free association. He also sought nominal damages and an injunction to prohibit the secretary from enforcing the challenged law.

A few weeks later, plaintiff stopped working as an initiative petition signature collector; he took on a new restaurant server job and wanted to focus on that new opportunity. Later that month, however, plaintiff was injured in an automobile accident and became unable to work at all for the next several months.

On July 2, 2010, the deadline for submitting initiative petition signatures arrived, and with it came the expiration of plaintiff's registration as a paid signature collector. Several months later, plaintiff received a telephone [357 Or. 466] call from the Secretary of State's office to report that the secretary intended to publish a proposed rule interpreting ORS 250.048(9). Shortly thereafter, plaintiff filed an amended complaint alleging that " [a]ny rule adopted by [the Secretary of State] will continue to violate plaintiff's rights to obtain signatures as a volunteer on other petitions." [2]

The secretary moved for summary judgment on the ground that plaintiff's claims had become moot. The secretary argued that plaintiff was no longer a registered paid initiative petition signature collector and thus " no longer has a sufficient and present interest in the resolution of this controversy." Any remaining interest in the constitutionality of ORS 250.048(9), the secretary argued, is too speculative to support the continuing justiciability of the action under either ORS 28.020 or ORS 246.910.

Plaintiff opposed the secretary's motion, arguing that the action had not become moot. In the alternative, he argued that, if moot, the action remains justiciable under ORS 14.175, which authorizes courts to hear moot cases that are capable of repetition, yet evading review. In support of his contention that the action had not yet become moot, plaintiff submitted an affidavit, in which he averred that he had recently registered as a paid initiative petition signature collector for the 2012 election cycle, and stated that " I fully

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intend to work * * * as a paid circulator in the future." He also stated that " [w]hen another measure dealing with protecting the environment starts to circulate, I'd like to support it." He said that " I might be willing to have a volunteer signature while being on hours, as well, but the [357 Or. 467] main agenda is to be able to collect signatures on a volunteer basis outside of my work hours." According to plaintiff, " I would like to have the right and freedom to collect signatures on a volunteer basis during my work hours." Plaintiff also submitted an affidavit of a chief petitioner on Initiative Petition 42 (2010), who stated that " we intend to try to circulate another petition" in the coming year.

The trial court granted the secretary's summary judgment motion and dismissed the action. The court explained that, although plaintiff had standing to initiate the action, the case had become moot:

" The 2010 election is over and plaintiff no longer seeks relief regarding anything that occurred in that election; he only seeks prospective relief. * * * [A]lthough he has taken steps to become registered as a paid petition circulator, there is no evidence that there is any petition which he wishes to circulate as a volunteer, or that his prospective employer for paid petition circulation will permit him to circulate a volunteer petition 'at the same time' (as defined by the rule) as he is circulating a paid petition."

The court further concluded that plaintiff was not entitled to pursue the action under ORS 14.175. The court explained that plaintiff had failed to demonstrate that the matter was likely to evade judicial review. The court acknowledged that the ordinary election cycle generally would not provide sufficient time to resolve actions such as the one before it. Nevertheless, the court concluded, plaintiff had failed to request expedited review, which--if granted--might have prevented the case from becoming moot.

Plaintiff appealed, and the Court of Appeals affirmed. Couey v. Brown, 257 Or.App. 434, 306 P.3d 778 (2013). The court first concluded that the case was indeed moot, as there was no evidence in the record of a measure for which plaintiff wanted to collect initiative petition signatures on a volunteer basis. Id. at 443. The court then concluded that the case was not subject to the statutory mootness exception enacted in ORS 14.175. Id. at 444. Like the trial court, the Court of Appeals acknowledged that, " it is true that cases typically take more than two years to move from filing to issuance of an appellate judgment, especially cases that go [357 Or. 468] to the Supreme Court." Id. But, also like the trial court, the Court of Appeals concluded that plaintiff could have requested expedited consideration of his action, yet failed to do so. The court noted " the obvious question of whether [the] statute [ORS 14.175] violates the Oregon Constitution" under Yancy v. Shatzer, 337 Or. 345, 363, 97 P.3d 1161 (2004), in which this court held " in no uncertain terms" that the judicial power under the Oregon Constitution does not extend to moot cases that are capable of repetition, yet evading review. Couey, 257 Or.App. at 445 n 1. Because the court ultimately concluded that plaintiff did not qualify for review under that statute, it did not need to reach that issue. Id.

II. ANALYSIS

A. Is plaintiff's action moot?

On review, plaintiff argues that the Court of Appeals erred in concluding that his action is now moot. He contends that the court erred in concluding that the declaratory judgment portion of the action is moot for essentially two reasons. First, he argues that the affidavits that he submitted in opposition to the secretary's summary judgment motion adequately evince a concrete interest in the outcome of the case. Second, he argues that, even if that is not the case, the fact that he has brought claims for unconstitutional overbreadth effectively excuses him from having to establish the continuing justiciability of his claims. As for the remaining portion of the action that arises under ORS 246.910--pertaining to judicial review of actions of the Secretary of State--plaintiff argues that the court erred in affirming the dismissal of that claim as well. We address each of those three arguments in turn.

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1. The action for a declaratory judgment

Plaintiff's initial argument that the declaratory judgment portion of his action is not moot is brief and a bit cryptic. He devotes most of his efforts to his argument that the overbreath doctrine effectively relaxes justiciability requirements. As to the sufficiency of his affidavit, he argues that, under Oregon law, " there is no case law rule that 'hypothetical' injury renders claims for declaratory relief per se nonjusticiable merely because the injury has not actually yet [357 Or. 469] occurred." Citing Pendleton School Dist. v. State of Oregon, 345 Or. 596, 200 P.3d 133 (2009), he argues that, if a dispute involves the interpretation of an existing statute " that could apply to a party in the future," that is sufficient to create a justiciable controversy. In plaintiff's view, his affidavit establishes " the likelihood that he and others suffer continuing chill of political speech, satisfying any personal stake" requirement the law may impose. Beyond those bare conclusions, plaintiff does not explain what in his affidavit establishes that likelihood or how it otherwise demonstrates that the action is not moot.

The secretary responds that, at the time of her summary judgment motion, there was no actual controversy based on present facts, as the law requires. At that time, plaintiff had stopped working as a paid initiative petition collector. He had registered to work on a measure in February 2011, but nothing in the record suggests that he actually performed that work. In addition, nothing in the record showed that there were any then-existing measures for which he was presently interested in collecting signatures on a volunteer basis. Accordingly, the secretary argues, at that point petitioner was not doing anything that ORS 250.048(9) prohibited. Nor does the record show that the challenged statute was actually preventing him from taking any action.

We agree with the Secretary of State. To maintain a declaratory judgment action, a plaintiff must establish at the outset that he or she satisfies the statutory requirements for standing to bring the action. Morgan v. Sisters School District # 6, 353 Or. 189, 195, 301 P.3d 419 (2013). Thereafter, the plaintiff's concrete stake in the outcome must continue throughout the pendency of the case. Savage v. Munn, 317 Or. 283, 291-92, 856 P.2d 298 (1993). If, after the initiation of the action, it becomes moot, it will be dismissed for want of justiciability.[3] Barcik v. Kubiaczyk, 321 Or. 174, 188, 895 P.2d 765 (1995). In this case, there is no dispute that, at least at the time plaintiff initiated this action, he satisfied the [357 Or. 470] standing requirements of the Declaratory Judgments Act. The issue is whether, with the passing of certain events, the action became moot.

As this court explained in Brumnett v. PSRB, 315 Or. 402, 405, 848 P.2d 1194 (1993), " [d]etermining mootness is one part of the broader question of whether a justiciable controversy exists." In the context of a declaratory judgment action, a justiciable controversy requires " a dispute based on present facts," not facts that may or may not happen in the future. TVKO v. Howland, 335 Or. 527, 534, 73 P.3d 905 (2003); see also Brown v. Oregon State Bar, 293 Or. 446, 449, 648 P.2d 1289 (1982) (" To be justiciable, a controversy must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue." ). Thus, plaintiff is incorrect in stating that " there is no case law rule that 'hypothetical injury' renders claims for declaratory relief per se nonjusticiable." To the contrary, a justiciable controversy is, by very definition, one that is not hypothetical. Declaratory relief is available " only when it can affect in the present some rights between the parties." Barcik, 321 Or. at 188 (emphasis in original).

This court's decision in Pendleton is not to the contrary. In that case, 18 school districts brought an action for a declaration that Article VIII, section 8, of the Oregon Constitution requires the legislature to fund the Oregon public school system at a level sufficient

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to meet certain quality standards. They alleged that the legislature had failed to comply with that obligation during the 2005-07 biennium. They further alleged that they continued to suffer present harm as a result of that past failure and that the legislature has a ongoing constitutional obligation to fund schools to meet quality standards. 345 Or. at 601. In that context, this court explained, the fact that the 2005-07 biennium had passed did not render the controversy moot: The issue remained " whether Article VIII, section 8, imposes a duty on the legislature to fund the public school system at a specified level every biennium." Id. at 606. Whether the legislature operates under such a continuing obligation, the court explained, " presents a set of present facts regarding the interpretation of a constitutional provision." Id.

[357 Or. 471] In this case, the only " present facts" established in the record are that, at the time of the summary judgment, plaintiff's registration to circulate petitions during the 2010 election had expired; that he had recently registered with the Secretary of State to collect signatures on a paid basis during 2012; that he " fully intended" to work as a paid signature collector " in the future; " and that, " [w]hen another measure dealing with protecting the environment starts to circulate, I'd like to support it." There is no evidence that, at that time, plaintiff was actually employed as a paid initiative petition signature collector. More importantly, there is no evidence that there existed " another measure dealing with protecting the environment." There was evidence that the chief petitioner of the earlier measure that plaintiff wanted to support intended to " try to circulate another petition," but there is no evidence that the chief petitioner ever took steps to make that happen, much less that such a measure reached the stage of signature collection.[4] Giving plaintiff every beneficial inference, the best that the evidence shows is that, if plaintiff obtained employment as a signature collector, and if another measure dealing with protecting the environment were filed, and if that measure garnered the requisite number of sponsors, and if that measure obtained a certified ballot title, then plaintiff " would like to support it," presumably by collecting petition signatures on a volunteer basis.

That is the epitome of contingent and speculative facts. There is no evidence that plaintiff is currently harmed, or even under current threat of harm, by ORS 250.048(9). Any suggestion of possible harm is a matter of no more than speculation, depending entirely on a series of assumptions unsupported by any evidence in the record. The trial court and the Court of Appeals correctly concluded that plaintiff's affidavit was insufficient to establish that his declaratory judgment action had not become moot.

2. The effect of the overbreadth claim

In the alternative, plaintiff argues that, even if his declaratory judgment action is otherwise moot, the fact that [357 Or. 472] his claims are based on the asserted unconstitutional over-breadth of ORS 250.048(9) excuses him from satisfying any requirement that the claim be justiciable. In plaintiff's view, " overbreadth" is a doctrine of substantive First Amendment law that this court has adopted in free expression cases. Under that doctrine, he contends, a plaintiff may claim that a challenged law violates his or her own constitutional rights or that the law hypothetically could violate the rights of others. Necessarily, he argues, the doctrine carves out an exception to any justiciability constraints that otherwise apply.

The secretary argues that plaintiff misapprehends overbreadth analysis. In the secretary's view, although an overbreadth claim can extend beyond the rights of specific plaintiffs, even the federal law on which plaintiff in this case relies holds that such a claim can be asserted in the first instance only by one with a personal stake in its resolution.

Again, we agree with the Secretary of State. A party challenging the constitutionality of a statute may contend that the law is unconstitutional in all possible applications--that is, it is unconstitutional on its face. E.g.,

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State v. Hirsch/Friend, 338 Or. 622, 627, 114 P.3d 1104 (2005) (" [W]hen bringing certain facial challenges to a statute, the challenger ordinarily must establish that the statute is unconstitutional in all its applications." ). Or. the law may be challenged on the ground that it is unconstitutional as applied to a particular individual on a particular set of facts. E.g., State v. Rodriguez/Buck, 347 Or. 46, 78-79, 217 P.3d 659 (2009) (75-month mandatory sentence, although not facially unconstitutional, held unconstitutional as applied to the facts of that case).

In cases involving regulation of free expression, the United States Supreme Court has developed an exception to the ordinary rule that a facial challenge requires a demonstration that the challenged law is unconstitutional in all possible applications. Virginia v. Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). Instead, because of the special significance of rights of free expression, the Court has held that a law regulating free expression may be unconstitutionally " overbroad" if it prohibits any [357 Or. 473] " substantial amount" of constitutionally protected conduct. Id. at 118-19.[5] Moreover, a defendant to whom a challenged statute applies may assert that the law is unconstitutionally overbroad even if he or she has not engaged in the constitutionally protected conduct. City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). In effect, the overbreadth doctrine thus permits a party to whom a statute constitutionally applies to argue that the statute nevertheless is unconstitutional because it would violate the rights of others. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The Supreme Court has explained this exception to the prudential rule against parties asserting the rights of others by noting the importance of avoiding the " chilling effect" of an overbroad law:

" We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or 'chill' constitutionally protected speech--especially when the overbroad statute imposes criminal sanctions. Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, harming not only themselves but society as a whole, which is deprived of the uninhibited marketplace of ideas."

Hicks, 539 U.S. at 119.

It is important to note, however, that although the law may authorize a party to assert the rights of others, that does not mean that the party is excused from demonstrating his or her own standing to bring the claim. Only a person to whom the statute applies, even if constitutionally, may assert an overbreadth challenge. That is to say, overbreadth may represent a loosening of the ordinary prudential rule that parties cannot assert the rights of others, but it does not represent a loosening of the federal constitutional requirement that the party asserting the law's overbreadth have standing and that the party's interest continue throughout the proceeding. See generally Laurence H. Tribe, American [357 Or. 474] Constitutional Law § 12-27, 1024 (2d ed 1988) (" [O]verbreadth does not in fact possess a distinctive standing component." ); Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale LJ 853, 869 (1991) (An overbreadth claim is consistent with justiciability requirements of Article III because it is asserted by " [a] party who is charged with violating a statute or threatened with imminent prosecution" under it.).

In Virginia v. American Booksellers Assn., 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), for instance, the plaintiff challenged as unconstitutionally overbroad a state law prohibiting the display of visual or written materials to juveniles depicting, among other things, sexual conduct. The Court's analysis of the justiciability of the action proceeded in two distinct steps. First, the Court addressed whether the plaintiff had satisfied the " irreducible minimum" constitutional

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requirement of personal injury. Id. at 392. That is, the Court explained, the plaintiff must show " threatened or actual injury" resulting from the application of the challenged statute. Id. Second, the Court said that, once the constitutional standing requirement has been satisfied, it is appropriate to address whether the plaintiff could advance the particular argument, that is, overbreadth. Id. The Court noted that " the usual rule is that a party may assert only a violation of its own rights." Id. But, the Court said, in the case of overbreadth challenges arising under the First Amendment, there is an exception to that prudential rule. Id. at 392-93.

Similarly, in Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), the Court held that, to assert a claim of overbreadth, a party must have standing, and " in order to have standing, an individual must present more than 'allegations of a subjective chill.' There must be a claim of specific present objective harm or a threat of specific future harm" arising from the application of the challenged statute to the person challenging it. See also Hedges v. Obama, 724 F.3d 170, 204 (2d Cir 2013) (overbreadth doctrine " [r]elax[es] the general prudential rule against thirdparty standing" but " does not provide a reason to * * * find injury where none is present or imminently threatened in the first instance" ); Cole v. Oroville Union High School District, 228 F.3d 1092, 1099 (9th Cir 2000) (" [A] litigant [357 Or. 475] cannot sustain an overbreadth or jus tertii claim if he no longer has a personal interest in the outcome which itself satisfies the case or controversy requirement." ). A plaintiff's concrete interest in the outcome of the litigation must continue throughout the prosecution of his or her overbreadth claim; if events occur that eliminate that personal interest, the overbreadth claim becomes moot and will be dismissed for want of justiciability. Bigelow, 421 U.S. at 817-18.

This court has borrowed federal court overbreadth doctrine. State v. Robertson, 293 Or. 402, 410, 649 P.2d 569 (1982). And it continues to refer to federal case law for its own explanation of the justification and contours of the doctrine. State v. Christian, 354 Or. 22, 40, 307 P.3d 429 (2013).[6] In light of that case law, we reject plaintiff's contention that the fact that he asserts an overbreadth claim excuses him from establishing the justiciability of that claim.

3. ORS 246.910

Plaintiff's final argument regarding the mootness of his action is that, even if the declaratory judgment portion of the action is moot, the remaining action for judicial review of actions of the Secretary of State under ORS 246.910(1) is not. That statute provides:

" A person adversely affected by any act or failure to act by the Secretary of State * * * under any election law, or by any order, rule, directive or instruction made by the Secretary of State * * * may appeal therefrom to the circuit court for the county in which the act or failure to act occurred or in which the order, rule, directive, or instruction was made."

Thus, the statute provides for judicial review of an act, or failure to act, of the Secretary of State under the election laws of the state. See generally League of Oregon Cities v. State [357 Or. 476] of Oregon, 334 Or. 645, 655, 56 P.3d 892 (2002) (explaining requirements of statute). In this case, plaintiff's complaint does not target any act, or failure to act, of the secretary. Rather, its sole target is the constitutionality of the election law itself, because

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the law itself " chills" his rights of free expression and association.[7]

Moreover, ORS 246.910 provides for such judicial review only if a person has been " adversely affected" by such an act or omission of the secretary. In this case, as we have noted, nothing in the record suggests that plaintiff is affected, much less adversely affected, by the operation of the challenged statute, ORS 250.048(9). We reject plaintiff's contention that his action is justiciable under ORS 246.910 without further discussion.

B. If moot, is plaintiff's action nevertheless justiciable under ORS 14.175?

Plaintiff argues that, if we conclude that his action is moot, it is nevertheless justiciable under ORS 14.175. That statute provides:

" In any action in which a party alleges that an act, policy or practice of a public body * * * is unconstitutional or is otherwise contrary to law, the party may continue to prosecute the action and the court may issue a judgment on the validity of the challenged act, policy or practice even though the specific act, policy or practice giving rise to ...

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