Erin Lagesen has just posted a notice of today's decision in Kerr v. Bradbury (my case, so I am a completely objective observer). The decision throws Oregon law on justiciability into even greater doctrinal confusion. She delicately suggests that Kerr is a retreat from State v. Snyder; it appears to me that they are flatly inconsistent. Oh, I am sure there is a way they can be distinguished -- but the distinctions are, for all practical purposes, meaningless.
The same thing is true of the Court's treatment of attorney fee awards as a factor in preserving justiciability. In 2600 Building, the Court said that since the correctness of an attorney fee award depended on the correctness of the underlying decision on the merits, it would decide whether the underlying decision was correct -- even though its decision could have no practical effect on the parties (other than the payment of the attorney fee award). Yet in Kerr, the Court comes to the opposite conclusion -- simply because the award of fees was made in a separate order, rather than in the Court of Appeals decision on the merits. What is the principled basis for that distinction?
But the most stunning part of the Kerr decision is the Court's holding (or is it dictum? -- we won't know till the next case) that the Secretary of State is not bound to follow a constitutional holding of the Court of Appeals issued in a case in which the Secretary WAS A PARTY! The Supreme Court says that even though the Court of Appeals held, definitively, that the "full text" requirement in Article IV, section 1(2)(d) means a certain thing, and even though the Supreme Court did not vacate that holding, the Secretary is free to ignore that holding -- he is NOT "require[d] *** to acquiesce in a constitutional interpretation with which he does not agree." Wow!
Can anyone think of any previous case in which the Oregon Supreme Court told state agencies that they can ignore Court of Appeals decisions with which they disagree?
One other point: the Supreme Court suggests that if the Secretary has doubt, in the future, about how he should apply the "full text" rule, he can bring an action under the Declaratory Judgment Act. But whom would he sue? The sponsors of the petition? That would be interesting. If the sponsors live in Vale, would he have to sue them over there?
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