Aaron Landau’s article, “State v. Hemenway: What Should the Court Do With a Decision it Shouldn’t Have Been Able to Make?” appeared in the Spring 2013 issue of The Oregon Constitutional Law Newsletter, published by the Oregon State Bar.
“An odd but important question of justiciability turns up occasionally in Oregon cases, and it remains at this point unanswered: When a court issues a decision in a case, but later discovers facts that establish that the case was moot before the decision issued – and thus that the court had no authority to decide the matter – what should the court do with its decision? May the court simply move on and leave the past behind it, or must its decision be vacated? What if the court’s decision was especially helpful or important, providing just the right set of facts to help generate a key development in the law? May the court even consider such circumstances in the first place, or is vacatur in such cases required as a matter of the Oregon Constitution’s limits on judicial power?…” Read on page 7.