There is still a raging debate about the role of the judiciary and how it is differentiated from the role played by the legislature. It pertains to advisory opinions and standing and the notion that the court on its own accord can reject hearing a case even when directed to hear it by the legislature if it cannot find a controversy between adverse parties. Of note in this regard is a judicially crafted notion of whether there is a "constitutionally justiciable" controversy.

See Utsey v. Coos County

Utsey is a court of appeals case but does a great job of outlining the full range of issues that can get all precipitated (a chemistry phrase) into the utterance of the word "moot."

[The above was cross posted to persoregon/message/8683]

Suppose the legislature had doubts as to how the SC might rule on a case. They often do. So . . why not simply pass a bill that presents the SC with a question, here is proposed legislation now we order you to tell us if it is lawful and then after such determination of lawfulness it shall become law.

Weird, huh? Yeah, it is weird. The proposed rule by the PERB combined with the legislative directive to the SC to hear the Lipscomb appeal was just such an absurdity. It was to take affect only after the SC ruled. [It is a way to try to immunize the replacement rate ruling itself from later challenge.]

The SC said essentially, we won't play that game. We do not need to answer your proposed question because there is no more controversy. [And, by the way, the replacement rate ruling is sitting right there and handy for us to get a another look.]

The only way the court could have stayed within the judicial realm rather than the legislative realm was if the PERB had refused to comply with the judge Lipscomb order, and insisted upon such refusal pending an appeal. The purpose of an appeal from a trial court is not to give any greater power to a trial judge, for they already had such power to make an order, but to hear claims of error by the trial judge. The PERB, if it wanted certainty and finality, would have had to defy the trial judge and thus provide the necessary controversy for ruling.

The court could have even chosen to reject the legislative command to hear the case and directed the parties to go to the Court of Appeals first, even if the PERB had neither participated in settlement discussions nor enacted a replacement rate ruling.

One of the principal themes in the discussions of standing and mootness, etc., is that there must be adversity and vigor in the presentation of those competing interests before the court.

The funny business about delayed effect of the new rate ruling merely delayed the date upon which a claim arises to assert that the proposed replacement ruling takes affect, thus only NOW is it adverse to some of the parties, and only now is it something to appeal. See ORS 183.400, captioned "Judicial determination of validity of rule."

The SC has swept away the prior case as there was no controversy to consider other than to offer an advisory opinion. I could restate it as follows, if we moot this case then the new replacement ruling will be the one that we can look at and consider, but this time there will be an actual controversy between adverse parties. The mere fact that the there had been a Lipscomb opinion does not serve to prevent parties from independently challenging the new rate ruling.

I like susiekoregon's articulation of concepts. Perhaps she can clean this argument up or present it in a manner that the folks here can understand.

[This is just more random thoughts from my brain as I brainstorm for answers.]

The very last thing that one can conclude is that the original rate order will not rise again for consideration by the SC.

The legislature could have gone so far as to say that ORS 183.400 would be specifically unavailable for the replacement ruling and the SC would still find constitutional due process grounds to hear adverse claims that result from the replacement rate ruling.

The recent SC opinion merely reserved the opportunity to hear the merits at a future date, and where there is adversity.

The State Treasurer ought to close his trap when talking to AP reporters about whether we have greater certainty. He might expose himself to claims of intentional deception in the bond market. (It would be nice for the AG to share his views on the matter.) What we have is just the renewed existence of adversity so that the court can properly hear the merits.

For a process freak like me this is great stuff, I love it. I just wish my neighbor didn't have to periodically check on me to see if I have enough potatoes for sustenance. If I can poke a hole in the arguments of someone getting 500 dollars per hour does that mean I should make more than a big fat zero or does that mean that they should get less than their 500 dollars per hour? Interesting proposition huh?

Don't let the attorney fee question get resolved until after the next round of rate ruling proceedings reaches a final conclusion, it is really just a continuation of the prior round anyway.

[August 17 8:46 AM: I am inclined to believe that there is a case to be made even as to the parties to the settlement (the named employers and the intervening union folks and particularly their members) that the Lipscomb case has not yet, effectively, been reviewed by the SC and that such review can be had via a new and direct challenge to the replacement rate ruling. It is as though we are back at square one. The case law that can be gleaned from the opinion, if there is a point to be had, is judicial distaste (in grand fashion) for the habit of the legislature to make demands on the SC to issue advisory opinions and for lawyers (particularly government lawyers) claiming the right to enter into intergovernmental agreements and settlements of claims between them, outside the context of justiciable controversies, that never get reviewed by the court. An as yet unreviewed matter pertains to claims of liability as to UALs that have yet to appear before the court but which have resulted in 5-plus billion dollars of bonding based upon presumed liability but upon which the SC has not yet voiced their opinion. They, the SC, are chomping at the bit to hear the proper case on the UALs. But I am too broke to do it justice. I can't even afford Westlaw research and the Oregon State Bar refused to accept my 15 dollar money order just to access their casemaker database of Oregon Caselaw. I cannot even afford the filing fee for any case, or even to pay for gas and tires to get to and from Marion County. So here I whine, on a mere "blog."]