Washington Law Review


Joshua C. Gaul


In Foster v. Carson, public defender organizations and indigent defendants sued the chief justice of the Oregon Supreme Court for suspending appointments of indigent defense counsel. Before the parties could fully litigate the case, the chief justice reinstated appointments. Subsequently, the United States Court of Appeals for the Ninth Circuit dismissed the case as moot and held that the exception to the mootness doctrine for cases capable-of-repetition-yet-evading-review did not apply. A case falls under that exception when the party resisting mootness demonstrates that it was not possible to fully litigate the action before it ceased and there is a reasonable expectation that the party will be subjected to the same action in the future. Because the court concluded that it was not possible to fully litigate the case before the chief justice reinstated appointments, applicability of the capable-of-repetition-yet-evading-review exception depended only on whether there was a "reasonable expectation" that the injury would recur. When evaluated in light of U.S. Supreme Court and Ninth Circuit precedent, the facts in Foster support a finding that there was a reasonable expectation that the chief justice would again suspend funding for indigent defense counsel. The public interest in deciding the constitutionality of the chief justice's action further supports application of the exception.

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