FILED: February 15, 2007
IN THE SUPREME COURT OF THE STATE OF OREGON
CHIP TERHUNE and LARRY WOLF,
Petitioners,
v.
HARDY MYERS, Attorney General,
State of Oregon,
Respondent.
(S53487)
En Banc
On motions to dismiss ballot title review as moot and to withdraw opinion filed
December 21, 2006.
Motions filed December 21, 2006.
Steven R. Powers, Assistant Attorney General, filed the motions on behalf of
respondent.  With him on the motions were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.
No appearance contra.
DURHAM, J.
The respondent's motion to dismiss on the ground of mootness is granted; the
respondent's motion to withdraw the opinion is denied.
DURHAM, J.
This is a proceeding for review of a ballot title under ORS 250.085.  After
considering the parties' arguments, this court, pursuant to ORS 250.085(8), determined
that the ballot title that the Attorney General certified did not substantially comply with
the requirements of ORS 250.035 and referred the ballot title to the Attorney General for
modification.  Terhune v. Myers, 342 Or 136, 149 P3d 1139 (2006).
On the day that this court issued its opinion, December 21, 2006, the
Attorney General moved to dismiss the ballot title review proceeding on the ground that
the case was moot.  The Attorney General also requested that the court withdraw its just-issued opinion in the case.  We address those motions in this opinion.
The following are the relevant facts.  On May 11, 2006, petitioners filed
their petition for review of the ballot title certified for Initiative Petition 12 (2008).  The
Attorney General filed an answering memorandum on June 1, 2006.  Petitioners filed
their reply on June 15, 2006.  The case was submitted to this court on the record on that
date, June 15, 2006.  Within one week, on June 21, 2006, the chief petitioner for Initiative
Petition 12 (2008) withdrew the initiative petition at the office of the Secretary of State.
Neither the parties nor their lawyers notified this court of the withdrawal of
the initiative petition until the Attorney General filed the instant motion to dismiss on the
ground of mootness.  The record before the court does not disclose when the parties or
their lawyers may have learned of the withdrawal of the initiative petition. (1)
The withdrawal of the initiative petition rendered moot the parties' dispute
over the sufficiency of the Attorney General's certified ballot title.  In Sharvy v. Secretary
of State, 304 Or 276, 277, 744, P2d 989 (1987), this court held that the withdrawal of a
prospective initiative petition rendered the controversy over the Attorney General's ballot
title moot and required dismissal of pending petitions to review the Attorney General's
ballot title respecting that initiative petition.  Sharvy requires this court to grant the
Attorney General's motion to dismiss this ballot title review proceeding.
Before turning to the Attorney General's second motion, we briefly address
the timing of the motion to dismiss.  This court spent several months preparing an opinion
on complicated issues of importance to the parties and the voting public regarding the
merits of the ballot title dispute in this case.  However, unbeknownst to the court, the
underlying controversy had become moot six days after the court took the case under
advisement.
This is not the first case in which this court has faced a similar problem.  In
Huffman v. Alexander, 197 Or 283, 251 P2d 87, 253 P2d 289 (1953), this court decided
an appeal from the dismissal of a petition for a writ of habeas corpus.  After the court had
published a written opinion and while a petition for rehearing was pending, a party
notified the court that the case had become moot when the plaintiff had been discharged
from custody 20 days after the oral argument in this court.  This court stated:

"We are confronted by a deplorable situation. * * * For the first time, we
are now informed by counsel that the plaintiff was discharged from custody
20 days after the case was argued here, and considerably before this court
had completed its study of the varied and profoundly important issues
presented.  Working thus in the dark, we have expended time and effort in a
case which became moot 20 days after we had heard the argument."

Id. at 332.
As Huffman and this case illustrate, it is essential that counsel for parties in
pending cases stay apprised of the status of their cases.  The court depends on the
diligence and cooperation of all counsel in that regard to prevent a waste of the court's
limited resources.
The protection of the court's resources is the policy objective that underlies
ORAP 8.45, which provides:

"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."

(Footnote omitted.)  That rule requires notice to the court, by implication, within a
reasonable time, after the party learns the pertinent facts regarding mootness. (2)  By
maintaining awareness of the status of their cases and promptly notifying the court, as
ORAP 8.45 requires, if a case has become moot, counsel provide invaluable assistance to
the court in ensuring the efficient administration of justice.
We cannot conclude, from the information before us, that the conduct of the
lawyers or parties in this case fell below any standard that the court's rules impose. 
Nevertheless, we now highlight those standards and this court's expectations for the
benefit of the entire bar to minimize the likelihood that a similar problem will occur
again.
In his second motion, the Attorney General invites the court to withdraw its
published opinion.  In Kerr v. Bradbury, 340 Or 241, 246-47, 131 P3d 737, adh'd to on
recons, 341 Or 200, 140 P3d 1131 (2006), this court explained that a request to nullify an
appellate decision issued after the case has become moot invokes the court's equitable
power of vacatur.  The Attorney General's second motion, in our view, invites the court to
exercise that power.
Kerr outlined some of the factual criteria that guide this court in
determining whether to vacate a decision issued in a case that had become moot.  The
central principle, according to Kerr, is that vacatur is an extraordinary remedy to which a
party must show an equitable entitlement.  Id. at 250.  Because the application of that
principle necessarily will turn on the facts of each case, the court did not announce a
closed set of standards that will apply in every case.  Instead, the court identified an
nonexhaustive list of factors that may inform the court as to whether a party has shown an
equitable entitlement to vacatur.  
According to Kerr, the court, where possible, must take account of the
"public interest" in granting or denying vacatur and, in doing so, must recognize that
"[j]udicial precedents are presumptively correct and valuable to the legal community as a
whole."  Id. (citations omitted).  The court must consider whether, under the facts, the
court that rendered the challenged opinion should not have rendered a decision at all on
the merits.  Id. at 250-51.  A lack of jurisdiction is one illustration of that point.  The court
also will consider whether the opinion, in the absence of vacatur, will interfere with the
proper execution of official duties by a public official.  Id. at 251.  The court further will
examine whether the circumstance creating mootness was outside the control of or, by
contrast, was the result of voluntary action by, the party seeking vacatur.  Id. at 249. 
Finally, as noted, the court will consider any other facts that may render a denial of
vacatur inequitable.
Considering this case in light of the factors mentioned in Kerr, we conclude
that the Attorney General has not demonstrated that the remedy of vacatur is appropriate. 
The Attorney General presents no argument that unfairness or inequity will result from a
denial of vacatur in this case.  Petitioners in the ballot title review proceeding have filed
no appearance regarding the Attorney General's motions.  As a result, the record before us
is silent regarding any facts that might suggest vacatur to prevent inequitable
consequences stemming from the court's opinion.
It is true that mootness in this case arose from the act of a third party -- the
person who chose to withdraw the initiative petition -- not the unilateral act of any party
to the ballot title proceeding.  But the denial of vacatur -- so far as we can tell -- will not
create a hardship for the Attorney General, and he does not argue otherwise.
Finally, the record does not demonstrate that granting vacatur would serve
the public interest.  Nothing before us justifies invoking the equitable remedy of vacatur.
The respondent's motion to dismiss on the ground of mootness is granted;
the respondent's motion to withdraw the opinion is denied.


1. The Attorney General states:

"The Attorney General apologizes for not bringing this to the court's
attention sooner.  For the court's information, this office is taking steps to
implement a system to ensure that this does not happen again."
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2. Indeed, the Oregon State Bar has entered into stipulations for professional
discipline with lawyers who agreed not to disclose to the court facts that rendered an
appellate proceeding moot.  See In re Nash, 11 DB Rptr 177 (1997) (stipulation for
discipline under DR 1-102(A)(4) (prohibiting "conduct that is prejudicial to the
administration of justice;") and DR 7-102(A)(2) (prohibiting knowing advancement of
claim or defense unwarranted under existing law unless supported by good faith argument
for extension, modification, or reversal of existing law)); In re Speck, 11 DB Rptr 183
(1997) (stipulation for discipline under DR 1-102(B)(1) (prohibiting ratification of
another lawyer's violation of disciplinary rules, to wit, agreeing not to disclose to court
facts that rendered pending appeal moot)).  We do not suggest that any disciplinary
violation occurred in this case.  We intend our comments, instead, to focus the attention
of all lawyers on the importance of their compliance with the ongoing obligation to
inform the court within a reasonable time when a pending proceeding has become moot. 
ORAP 8.45.
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