127 Or. App. 273 873 P.2d 456

Argued and submitted November 5, 1993,

reversed and remanded to circuit court with instructions April 20,

petition for review allowed June 14, 1994 (319 Or 211)

Carol BARCIK, as guardian ad litem for Scott Barcik, a minor; William Jansen, as guardian ad litem for Tom Jansen, a minor; Joe Kasten and Sheilah Kasten, as guardians ad litem for Shannon Kasten, a minor; Barry Edwards and Mona Edwards, as guardians ad litem for Marce Edwards, a minor; Cordis Lowery and Sharon Lowery, as guardians ad litem for Matt Lowery, a minor; David Frost; Josh Olson; and Chuck Kostur and Dianne Kostur, as guardians ad litem for Kay Kostur, a minor, Appellants, v. Mark KUBIACZYK; Al Davidian; Russ Joki; Pat Biggs; Jack Clinton; Mike Nelson; Richard Carlson; Gary Cumpston; and the Tigard-Tualatin School District 23 J, Respondents.

(C920085CV; CA A77165)

873 P2d 456

*274Jonathan M. Hoffman argued the cause for appellants. With him on the briefs were Michael G. Harting and Martin, Bischoff, Templeton, Langslet & Hoffman.

Duane A. Bosworth argued the cause for respondents. With him on the brief were Lori Lee Brocker and Davis Wright Tremaine.

Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.

ROSSMAN, P. J.

*276ROSSMAN, P. J.

Plaintiffs, students in the Tigard-Tualatin School District, appeal from a declaratory judgment that district regulations regarding student publications comply with the constitutional requirements of Article I, section 8, of the Oregon Constitution, to the extent that the regulations authorize school administrators to review and censor official student publications before distribution, and to review unofficial student publications after distribution and discipline students responsible for the distribution and/or publication of material that violates the regulations.1 Plaintiffs sought an injunction *277barring the continued enforcement of the regulations and a declaration that the regulations are unconstitutional insofar as they prohibit the publication and distribution of even those student publications “which are not obscene, libelous, of which do not create an imminent danger of violence or substantial disruption of school activities.” Because there was no justiciable controversy before the circuit court when it entered judgment on plaintiffs’ challenge to the regulations, we reverse and remand to the circuit court with instructions to dismiss the complaint and vacate the judgment, with no costs to either party in that court or on appeal.2

Plaintiffs Barcik, Jansen, Kasten, Edwards, Lowery, Frost and Olson were seniors at Tigard High School when the district enacted the challenged regulations on January 30, 1992. Plaintiff Kostur was a student at the district middle school. Before the regulations were enacted, the following events took place. On December 4, 1991, Barcik circulated among the high school students a flyer that solicited articles for publication in “Low-Spots,” a non-school-sponsored (“underground”) publication. The next morning, he was summoned to the vice principal’s office and told that distribution of the flyer violated school policy because it had not been cleared with the student activities director. The vice principal issued a formal warning to Barcik and informed him that he had three options with regard to the proposed underground publication: (1) not publish it; (2) submit it to the school administration for approval before distribution; or (3) publish it without using any of the school’s resources and distribute it off school grounds.

*278On January 13, 1992, Barcik and Jansen circulated “Low-Spots” to students on school property without the administration’s prior approval. Defendant Kubiaczyk, the principal at the high school, informed Barcik and Jansen that “Low-Spots” was unacceptable, because it contained profanity and had not been submitted to the administration for prior approval. Imposition of disciplinary measures was suspended pending the circuit court’s decision in this matter.3

On January 23, a different underground publication, “The Spots On My Dog,” was circulated on the school grounds. None of the plaintiffs was involved in the publication or distribution of that publication, which contained the following language:

“Rather than say ‘fuck the principal,’ try saying ‘fuck the system.’ Mr. Kubiachyczk (whatever) may or may not be the greatest principal on the face of the earth, but he’s the only one we’ve got. So if you must do something to him, don’t insult him, kill him. Put that sorry excuse for an authority figure out of his misery in a shallow grave of term papers and vomit.
“In America, talk is cheap, don’t say something about it, do something about it.”

“Hi-Spots” is the official newspaper of Tigard High School. The editorial board of “Hi-Spots” consisted of Kasten, Edwards, Lowery and Frost. After the distribution of “Low-Spots,” but before the appearance of “The Spots On My Dog,” the “Hi-Spots” editorial board decided to write an editorial on underground student works. Frost drafted the piece, entitled “Low-Spots Says a Lot About Freedom,” in which he said, inter alia, that the “Hi-Spots” staff “appreciate[d] the underground paper’s special opinion and angle.” Kubiaczyk was concerned that the “Hi-Spots” editorial would be perceived as a blanket endorsement of all underground publications, including “The Spots On My Dog.” He contacted defendant Joki, the district superintendent, and told him of the proposed “Hi-Spots” editorial and of the *279content of “The Spots On My Dog.” Joki sent defendant Davidian, the assistant superintendent, to the high school to investigate the matt.er. Davidian reviewed a copy of “The Spots On My Dog” and took a copy of the “Hi-Spots” editorial to the district’s attorneys. Meanwhile, publication of the editorial was put on hold. During the evening of January 23, the School Board was shown copies of “Low-Spots,” “The Spots On My Dog,” and the “Hi-Spots” editorial.

On January 24, Kubiaczyk met with the “Hi-Spots” editorial board. He told them that the School Board had unanimously requested that the editorial be revised, and he informed them that the piece could not be printed as written. Kasten and Edwards called the printer and instructed it to delete the editorial and to substitute in red ink, “CENSORED BY: MARK KÚBIACZYK, RUSS JOKI, AL DAVIDIAN, TIGARD-TUALATIN SCHOOL BOARD.”4 The issue ran without the editorial.

On January 30, 1992, the district adopted the challenged regulations. From then until the end of the school year, the school administration, acting pursuant to the regulations, reviewed each edition of “Hi-Spots” before publication.

The parties stipulated in circuit court that this case presents a justiciable controversy. Consequently, neither party raises the issue of justiciability on appeal. However, it is fundamental that a court

“cannot exercise jurisdiction over a nonjusticiable controversy because in the absence of constitutional authority, the court cannot render advisory opinions.” Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982).

See also Brumnet v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993). Because justiciability is a jurisdictional issue, we will examine it on our own motion. See Ackerly v. Mt. Hood Comm. College, 51 Or App 801, 804 n 1, 627 P2d 487 (1981). It is well settled that jurisdiction may not be conferred by stipulation or consent of the parties. Johnson v. Assured *280Employment, Inc., 277 Or 11, 14, 558 P2d 1228 (1977); Brodine v. Employment Exchange Inc., 33 Or App 237, 240, 576 P2d 384, rev den 283 Or 1 (1978).

For a controversy to be justiciable, it “ ‘must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue.’ ” Savage v. Munn, 317 Or 283, 292, 856 P2d 298 (1993), quoting Brown v. Oregon State Bar, supra, 293 Or at 449. Kostur avers that a justiciable dispute exists between herself and defendants because she “will attend Tigard High School [in the] fall and intends to enroll in journalism class and to join the HI-SPOTS staff’ and because “she intends to write for LOW SPOTS and/or write and distribute non-school-sponsored publications on the campus of Tigard High School.” However, those averments do not allege “present facts,” but only speculative future events that may not occur as anticipated or may not occur at all. There has not been any showing that the district regulations have had a “cognizable effect” on her. Savage v. Munn, supra, 317 Or at 292 n 6. The hypothetical nature of her anticipatory challenge renders it non-justiciable. Accordingly, Kostur is not properly before us at this time.

That leaves as plaintiffs the seven seniors who graduated from the high school in June, 1992. In addition to requiring an actual litigable event as opposed to a contingency, the justiciability doctrine assures that the person or group mounting a constitutional challenge confronts continuing harm or a significant threat of future harm. Thus, another requirement for a justiciable controversy is that

“the court’s decision in the matter will have some practical effect on the rights of the parties to the controversy. * * * Cases that are otherwise justiciable, but in which a court’s decision will no longer have a practical effect on or concerning the rights of the parties, will be dismissed as moot.” Brumnet v. PSRB, supra, 315 Or at 405-06. (Citations omitted.)

Given that the remaining plaintiffs graduated from the high school in June, and the circuit court entered its judgment in September, the question arises whether their claim for declaratory and injunctive relief was moot at the time of the circuit court’s judgment. See Kay v. David Douglas Sch. Dist. No. 40, 303 Or 574, 738 P2d 1389 (1987), cert *281den 484 US 1032 (1988). Although plaintiffs sought relief on behalf of themselves and “others similarly situated,” this is not a class action; accordingly, we are concerned only with the rights of these particular plaintiffs. Because they had graduated before the final judgment was entered, the court’s belated decision had no practical effect on or concerning their rights. The actions complained of, i.e., defendants’ use of the district regulations, had already occurred. As the Supreme Court has noted,

“a court cannot either mandate or enjoin an act after it has been completed, at least not until the cosmological theory of reversible time is better established. Suggestions to the contrary which date from language in Perry v. Oregon Liquor Commission, 180 Or 495, 498-99, 177 P2d 406 (1947), have been discarded in recent cases and should not be followed. See Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 367 n 9, 723 P2d 298 (1986); Hay v. Dept. of Transportation, 301 Or 129, 134, 719 P2d 860 (1986): State ex rel Oregonian Publishing Co. v. Sams, 298 Or 329, 332, 692 P2d 116 (1984).” Kay v. David Douglas Sch. Dist. No. 40, supra, 303 Or at 577.5

That does not end our inquiry, however, for a party whose own claim is moot may, if the party has standing under the various applicable tests, “seek relief against future repetitions of the challenged governmental act.” 303 Or at 577.6 Here, plaintiffs do not have standing to contest future, i.e., post-graduation, enforcement of the challenged regulations. Although they were entitled to seek protection against *282repeated application of the regulations to them for the balance of the 1992 school year, they could not oppose the district’s future application of the regulations to students who remained in the district after plaintiffs graduated. Following graduation, plaintiffs were not, and could never again become, subject to the regulations; hence, any challenge by plaintiffs to defendants’ future actions rests solely on'the legally cognizable interests of other students. Once graduated, plaintiffs had no more than “an abstract interest in the correct application or the validity” of the regulations, and any injury that they may sustain from continued use of the regulations is no different from the injury that each plaintiff “would expect as a member of the general public.” Eckles v. State of Oregon, 306 Or 380, 385-86, 760 P2d 846 (1988). Simply put, these plaintiffs do not have standing to seek relief against the future practices of defendants.

In sum, on the date of the circuit court’s judgment, the plaintiffs who are members of the graduating class of 1992 were no longer students in the Tigard-Tualatin School District and, consequently, their request for relief against enforcement of the regulations was moot. Further, because they could not be subject to the regulations after they graduated, they lack standing to challenge future application of the regulations.7 Accordingly, the circuit court should have dismissed their claim after their graduation.8

Reversed and remanded to the circuit court with instructions to dismiss the complaint and vacate the judgment, with no costs to either party in that court or on appeal.

Barcik v. Kubiaczyk
127 Or. App. 273 873 P.2d 456

Case Details

Name
Barcik v. Kubiaczyk
Decision Date
Apr 20, 1994
Citations

127 Or. App. 273

873 P.2d 456

Jurisdiction
Oregon

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