BARCIK v. KUBIACZYK, 321 Ore. 174; 895 P.2d 765; 1995 Ore. LEXIS 42 (Or. 1995) DISPOSITION: The decision of the Court of Appeals is affirmed in part and reversed in part. The case is remanded to the Court of Appeals for consideration on the merits of petitioner Barcik's state law claims for retrospective relief and of the federal claims for retrospective relief of all petitioners except Kostur. Court's opinion: GRABER, J.; Concurring opinion Durham, J., Fadeley, Unis, JJ. Court: The issue in this case is whether the Court of Appeals erred when, sua sponte, it reversed a circuit court judgment from which plaintiffs had appealed and remanded the case with instructions to dismiss the complaint and vacate the judgment, on the ground that "there was no justiciable controversy before the circuit court when it entered judgment on plaintiffs' [claims]." Barcik v. Kubiaczyk, 127 Ore. App. 273, 277, 873 P.2d 456 (1994). We conclude that the Court of Appeals erred, in part, in dismissing plaintiffs' claims, and we therefore affirm in part and reverse in part.... Trial Court The circuit court conducted a trial on the merits of plaintiffs' claims. Thereafter, on October 10, 1992, the circuit court entered a "Declaratory Judgment and Final Decree." The court dismissed all plaintiffs' claims that were rooted in either the Oregon Constitution or Oregon statutes. The court held, however, that defendant Kubiaczyk's censorship and discipline of Barcik and Jansen, and the administration's censorship of the "Hi-Spots" editorial, violated the First and Fourteenth Amendments and, thus, that plaintiffs prevailed on their claim under 42 USC @ 1983. Defendants were ordered to expunge from Barcik's and Jansen's records any disciplinary action taken against them related to the publication and distribution of "Low-Spots."... The circuit court declared the district's regulations for school-sponsored publications constitutional and also declared the regulations for unofficial publications constitutional, except for the provisions concerning pre-publication review. The circuit court ordered defendants to refrain permanently from exercising pre-publication review of any nonschool-sponsored publication and from disciplining any student in the district for distributing any nonschool-sponsored [***9] publication, "except in cases where a student personally distributes a non-school-sponsored publication which violates the District's regulations for unofficial publications." Court of Appeals Plaintiffs appealed from the circuit court's judgment, arguing that the district's regulations violated Article I, section 8, of the Oregon Constitution. The Court of Appeals, sua sponte, reversed the judgment of the circuit court and remanded the case with instructions to dismiss the complaint and vacate the judgment. Barcik, 127 Ore. App. at 282. Applying Oregon law, the Court of Appeals concluded that plaintiffs failed to present a justiciable controversy. Id. at 279-82. The Court of Appeals stated that, because Senior plaintiffs had graduated before the circuit court entered judgment, they failed to present a justiciable controversy, and their claims were moot. Id. at 280-82. As to plaintiff Kostur, the Court of Appeals reasoned that her challenge was too hypothetical and anticipatory in nature to raise a justiciable [*182] controversy, because it was based on "speculative future events that may not occur as anticipated or may not occur at all." Id. at 280.... The Supreme Court Plaintiff Barcik's situation differs from that of the other Senior plaintiffs. A declaration that defendants acted unconstitutionally in relation to Barcik, and an order requiring defendants to remove references to discipline from his academic record, would affect Barcik's rights.... As noted above, Barcik's academic record contains references to disciplinary action taken against him, resulting from defendants' alleged deprivation of his Article I, section 8, rights.... With respect to his disciplinary record, a justiciable controversy exists between Barcik and defendants. The Court of Appeals erred by holding otherwise. Barcik is entitled to consideration of his state law claims on the merits, to the extent that those claims relate to his disciplinary record. The Court of Appeals dismissed plaintiff Kostur's claims, reasoning that she alleged"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, [317 Ore. 283, 292 n 6, 856 P.2d 298 (1993)]. The hypothetical nature of her anticipatory challenge renders it non-justiciable. Accordingly, Kostur is not properly before us at this time." Barcik, 127 Ore. App. at 280.... In her complaint, Kostur alleged that she "is a ninth grader at Fowler Junior High School and will attend Tigard High School this fall." She also alleged that she "intends to write for LOW-SPOTS and/or write and distribute non-school-sponsored publications on the campus of Tigard High School." Defendants denied the allegation that Kostur would attend Tigard High School. They also denied that Kostur intended to participate in the writing and distribution of any school- or nonschool-sponsored student newspaper.... Kostur now argues, in addition, that the challenged regulations apply through the district and had a "chilling effect" on her even before she entered the high school. She also argues that, because she is a student in the Tigard-Tualatin School District and subject to the regulations, her injury is immediate... [W]e need not decide that question because of the procedural posture of the case. The circuit court conducted a trial on the merits of plaintiffs' claims. Kostur did not testify, and no one else testified about her situation. Plaintiffs presented no evidence that Kostur would become enrolled in Tigard High School or that she intended to write for or distribute official or underground school publications there. Plaintiffs failed to present even an affidavit or deposition asserting that Kostur was enrolled in the school district. There is a complete absence of evidence in the record that would allow us to conclude or infer that Kostur has been or will be subjected to the challenged regulations. There is no evidence that the regulations have had "some cognizable effect" on her. See Savage, 317 Ore. at 292 n 6(stating that standard). Accordingly, Kostur has not established any justiciable controversy between herself and defendants.... However, Senior plaintiffs' claim for a declaration that defendants' conduct in censoring "Low-Spots" and the "Hi-Spots" editorial was unconstitutional under federal law, and for nominal damages, is not moot. Senior plaintiffs soughtdeclaratory relief and nominal damages for the alleged violation of their FirstAmendment rights for the censoring of the two papers. That allegation is sufficient to allow them to pursue their federal claims, because the challenged regulations were applied to them in the past. We conclude that a claim for nominal damages for a past deprivation of a federal constitutional right withstands a challenge based on mootness. Senior plaintiffs alleged a past act that resulted in a deprivation of their federal constitutional rights. The circuit court held that they were deprived of their First Amendment rights when the school censored the publication of the "Hi-Spots" editorial and exercised prior restraint over the publication of "Low-Spots." The "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S Ct 2673, 49 L. Ed. 2d 547 (1976).... CONCLUSION In summary, we hold that the Court of Appeals erred when it applied state law to determine whether plaintiffs raise a justiciable controversy under 42 USC @ 1983. Applying state law to plaintiffs' state law claims, we hold that only plaintiff Barcik's claim for retrospective relief raises a justiciable controversy. The Court of Appeals erred when it ordered Barcik's claim for retrospective relief to be dismissed. All other plaintiffs fail to present justiciable controversies under state law. Accordingly, those plaintiffs' state law claims should have been dismissed. Under federal law, all Senior plaintiffs raise a justiciable controversy as to their claims for retrospective relief. The Court of Appeals erred when it ordered those claims to be dismissed. Senior plaintiffs do not present a justiciable controversy as to their claims for prospective relief, however; those claims should have been dismissed. Plaintiff Kostur fails to present a justiciable controversy under either state or federal law. Her claims should have been dismissed. The decision of the Court of Appeals is affirmed in part and reversed in part. The case is remanded to the Court of Appeals for consideration on the merits of petitioner Barcik's state law claims for retrospective relief and of the federal claims for retrospective relief of all petitioners except Kostur.