specially concurring.
This case never presented a justiciable controversy because petitioner’s 30-day exclusion order had expired before he filed his petition for review in circuit court. For that reason, I agree with the majority that the circuit court judgment should be vacated and that the petition filed in the circuit court should be dismissed as moot.1 The majority, however, like the parties, has framed and decided a different and important issue: “whether Oregon courts have the power to consider disputes that, like the present one, are capable of repetition and yet evade review because they become moot at some point in the proceedings.” 337 Or at 347.1 write separately, because I disagree with the majority’s view that Oregon courts have no power to consider such disputes.
*364The majority holds that “[t]he judicial power of the state,” as that phrase is used in Article VII (Amended), section 1, of the Oregon Constitution, does not extend to a case that becomes moot after filing because the events involved are of such short duration. Unlike the majority, I find nothing in the text, context, or historical background of that constitutional provision to suggest that a case that presents a dispute that is subject to the “judicial power” when it is filed somehow moves beyond that power simply because the events involved are so brief that they inevitably conclude before the courts can render a final decision. On the contrary, along with the federal courts and the courts of the other 49 states, I would recognize an exception to the general mootness doctrine for that small group of cases that are capable of repetition but evade judicial review because the events involved are of such brief duration.2
The majority properly begins its analysis by attempting to determine whether that exception fits within the Oregon Constitution’s grant of judicial power. Countless appellate opinions have considered what the judicial power entails, and the precise scope of that power cannot be delineated in the abstract.3 This court, like the federal courts and other state courts, interprets the constitutional grant of the judicial power to authorize courts to decide only cases that present a “justiciable controversy.” Cummings Constr. v. School Dist. No. 9, 242 Or 106, 109-10, 408 P2d 80 (1965).4 *365Whether a case is “justiciable” depends on whether “the interests of the parties to the action are adverse” and whether “the court’s decision in the matter will have some practical effect on the rights of the parties.” Brumnett v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1991). Mootness is one application of the latter principle: “Cases that are otherwise justiciable, but in which a court’s decision no longer will have a practical effect on or concerning the rights of the parties, will be dismissed as moot.” Id. at 406.
Those attributes of “justiciability” are part of an interpretive effort by this court to identify the boundaries of the “judicial power,” and I do not disagree with them. The constitutional test, however, is whether the resolution of a particular case is within the “judicial power”; the attributes of a justiciable controversy are simply devices to help courts interpret and apply the constitutional text. Viewed from that perspective, the mootness doctrine, although rooted in the constitutional authorization that the courts exercise “judicial power,” includes an important prudential component. For reasons that I explain below, in my view, when strict application of the mootness doctrine would have the effect of preventing judicial review of an issue of law because the issue is one that is capable of repetition, yet evades review, the court may exercise its discretion to decide an otherwise justiciable case that has become moot.5 Nothing in the text of Article VII (Amended) compels the conclusion that such a case is outside the judicial power, and such a case retains sufficient traditional attributes of justiciability that a court is not constitutionally barred from deciding it.
Decades of this court’s decisions support the conclusion stated above. During the 50-year history of the “capable *366of repetition, yet evading review” exception in Oregon, the exception has been viewed as a pragmatic, prudential response to the adverse consequences of a strict application of the mootness doctrine. Half a century ago, this court stated its rule with admirable clarity:
“We agree that courts ordinarily do not determine moot questions. There is, however, a well recognized exception to this general rule. Where the question is one involving the public welfare, and there is a likelihood of it being raised again in the future, a court in the exercise of its discretion may decide it for the guidance of an official administrative agency.”
Perry v. Oregon Liquor Commission, 180 Or 495, 498-99, 177 P2d 406 (1947). The majority argues that the reference in Perry to deciding the case “for the guidance of an official administrative agency” suggests that the court viewed the case as involving an advisory opinion. 337 Or at 349-50. However, the dispute in Perry came to the courts as a justiciable case, it was litigated between two adverse parties, the same issue was likely to be raised in the future, and this court correctly saw the benefit of rendering a decision on the merits. In the 40 years after Perry, this court on at least five occasions, and the Court of Appeals on at least two additional occasions, decided cases that were technically moot, but that came within the “capable of repetition, yet evading review” exception.6 In each of those cases, the appellate courts decided important legal questions that otherwise would have remained unresolved. In my view, those decisions involved the proper exercise of the judicial power. I would overrule this court’s decision in Barcik v. Kubiaczyk, 321 Or 174, 188, 895 P2d 765 (1995), which, building on statements in several earlier cases, expressly repudiated the “capable of repetition, but evading review” exception.
*367The majority is certainly correct that the mootness doctrine, and the exceptions to it, are closely related to the “judicial power” as that term is used in Article VII (Amended), section 1. However, this court consistently has viewed the contours of mootness as a prudential, rather than a constitutional, matter. See Oregon State Grange v. McKay, 193 Or 627, 631, 238 P2d 778 (1951), on reh’g, 239 P2d 834 (1952) (“We, of course, recognize that courts will, in the exercise of discretion, decide moot questions when the conditions referred to in the Perry case are present.”). With this decision, the majority bases the mootness doctrine entirely on its interpretation of the Oregon Constitution and concludes that the limits of the “judicial power” bar this court from ever considering a case that has become moot.
In my view, however, nothing in the Oregon Constitution prohibits this court from deciding a case that becomes moot during the pendency of the case, when the case involves issues that are capable of repetition, yet evade review. First I consider the authorities on which the majority relies in interpreting Article VII (Amended), section 1, and then I turn to this case and the reasons why I read the phrase “the judicial power” more broadly than the majority does.
The majority relies on federal cases decided before 1857 in its effort to establish that “the framers of the Oregon Constitution, and those who later adopted that constitution, are most likely to have understood the grant of judicial power in the restrained sense espoused in the early Supreme Court cases — that is, an authority limited to the adjudication of an existing controversy.” 337 Or at 362. With respect, the majority’s analysis is unpersuasive. The cases on which the majority relies all stand for general propositions regarding the scope of the judicial power that are not in dispute here. As the majority acknowledges, the United States Supreme Court refused to render a decision in Hayburn’s Case, 2 US 408, 1 L Ed 436 (1792), because Congress adopted a new statute. See 337 Or at 358(so noting). Thus, the issue in that case was not going to arise again.7 The court reporter in *368Hayburn’s Case included in a footnote the opinions of several members of the Court, sitting as circuit judges. Id. at 410 n *. Those judges had expressed the view that the judicial power and related separation of powers concepts did not permit the courts to determine eligibility for veterans’ benefits when that determination was subject to later review by the Secretary of War and by Congress. Such a determination would be merely advisory because it would be subject to review by another branch of government.
The majority also cites United States v. Ferreira, 54 US 40, 14 L Ed 40 (1851), in which a similar statute directing federal courts to evaluate war-related claims was subject to further review by the Secretary of the Treasury. Ferreira thus also concerned a situation in which a court was asked to render an opinion that was “advisory” because it could be revised by another branch of government.The debates at the Constitutional Convention and in the early years of the republic also make it clear that the federal judicial power never has included the authority to “provid [e] purely advisory opinions to the Executive * * Clinton v. Jones, 520 US 681, 700, 117 S Ct 1636, 137 L Ed 2d 945 (1997); see Laurence H. Tribe, American Constitutional Law 328-30 (3d ed 2000) (describing basis and scope of doctrine). The authorities that the majority cites simply demonstrate that the federal judicial power does not authorize the judicial branch to provide “purely advisory opinions” outside the context of an actual dispute.8 Neither does the federal judicial power permit the courts to operate as administrative subordinates of the other branches by making determinations that do not result in final judgments. I agree with the majority that those principles articulated in the early federal cases inform our understanding of “[t]he judicial power,” as that phrase is used in the Oregon Constitution.
*369This case, however, is not about “purely advisory opinions” or court determinations subject to review by other branches of government. None of the pre-1857 cases that the majority discusses addressed whether the federal judicial power prevents a court from deciding a case that (1) was jus-ticiable at the time that the parties initiated it, but (2) became moot during the litigation, and (3) involved events that were likely to recur, but were of such short duration that they typically evade judicial review.
The majority declines to rely on cases from other jurisdictions decided after 1857. Instead, the majority asserts that post-1857 cases are irrelevant to understanding what the framers of the Oregon Constitution intended to include within the “judicial power” because, when that term was used in Article VII (Amended) (adopted in 1910), it was intended to have the same meaning as the term had in Article VII (Original) (drafted in 1857). 337 Or at 362. I disagree.
First, the majority notes that the drafters of Article VII (Amended) indicated no intent to change the meaning of “judicial power” from Article VII (Original). However, that does not mean that the drafters necessarily intended to preclude the exercise of the judicial power in the cases at issue here. The drafters also indicated no intent to set Oregon apart from other jurisdictions that, by 1910, viewed the judicial power as extending to those cases that had become moot by the passage of time, but presented legal issues likely to recur. As the majority recognizes, the New York courts had determined by the late 1800s that they properly could decide election law cases involving issues that were likely to arise again, even though the particular election had occurred and had rendered the case moot. In re Madden, 148 NY 136, 139, 423 NE 534 (1895) (deciding dispute over form of ballot after election, because issue was likely to recur). Similarly, in Boise City Irrig. & Land Co. v. Clark, 131 F 415, 419 (9th 1904), the court adjudicated a challenge to irrigation rates even though the effective period of the disputed rate had ended during the litigation. The court noted that “the courts have entertained and decided [moot] cases heretofore * * * partly because of the necessity or propriety of deciding some question of law presented which might serve to guide the *370municipal body when again called upon to act in the matter.” 131 F at 419.
It is at least as reasonable as the majority’s position to suggest that the voters who adopted Article VII (Amended) intended the phrase “judicial power” to have the same meaning that it had in 1857 and that that meaning would be the one that, by 1910, many state and federal courts recognized as containing from inception the authority that is in question here. As the above cases indicate, by 1910, state and federal courts did not think that the “judicial power” limited their authority to decide moot cases that raised issues capable of repetition, yet evading review.
Second, federal cases arising after 1857 provide some guidance in determining the scope of the judicial power under the Oregon Constitution, because they involve the similar judicial power exercised by the federal courts under Article III of the United States Constitution. Those cases, moreover, address the precise issue involved here. The majority relies on early federal cases that present undeniably different factual and legal scenarios than this case, but rejects later federal cases that are directly on point. The leading federal case, of course, is Southern Pacific Terminal Co. v. ICC, 219 US 498, 31 S Ct 279, 55 L Ed 310 (1911), in which the United States Supreme Court addressed the issue raised here and held that it could decide a moot case involving a dispute that was capable of repetition, yet evaded review.9 Significantly, the Court saw no need to discuss or overrule decisions such as Hayhurn’s Case and Ferriera, indicating that it perceived no conflict between those earlier decisions and its holding in Southern Pacific. In other words, although Southern Pacific and the many decisions that follow it came long after the Oregon Constitution was written, there is no *371reason to think that they represented a uniquely post-1857 view of the kinds of cases that federal courts could decide.
Not a single one of the decisions cited by the majority, whether from Oregon, the federal courts, or other state courts, stands for the proposition that a justiciable case that becomes moot by the passage of time, but presents a controversy likely to recur, is beyond the “judicial power” — until this court’s decisions beginning in the late 1980s. As stated above, I would overrule those later cases.
With those considerations in mind, I return to this case. This case presents a traditional dispute between two parties, litigated through established judicial processes. In this dispute, however, the challenged governmental action lasted only 30 days and therefore ended before petitioner’s constitutional challenge could be adjudicated. Thus, the majority is correct that a ruling from this court (or from the trial court, for that matter) will have no effect on the particular exclusion that was the basis for petitioner’s challenge. As discussed above, however, that is not the same as saying that a judicial ruling would be simply “advisory.” On the contrary, two adverse parties are before the court, presenting opposing arguments on the merits of the case; a ruling on the merits would establish whether the city’s ordinance is constitutional or not and, thus, would have a direct, immediate effect on the city; and a ruling on the merits would have an indirect effect on persons who may be issued exclusion orders in the future. Finally — and critically — any other person in petitioner’s position would face the same, insurmountable hurdle that the majority places in front of his challenge to the exclusion order: In every case, the order will expire before judicial review of any challenge can be completed, and, in every case, the challenge then will be dismissed as moot.10
Petitioner’s dilemma is not unique. There are other cases in which the brief nature of the challenged action or the *372expiration of short and immovable deadlines renders otherwise justiciable cases moot, not because the defendant has changed its policy or the plaintiff has abandoned its challenge, but simply by the passage of time. Moreover, in any subsequent case raising the same issue, the passage of time again will cause the issue to become moot.11 In those cases, a court is presented with a controversy that is plainly within “the judicial power” at the time that it is filed but that becomes moot during the ordinary conduct of the litigation. The majority’s decision that Oregon courts are barred by the Oregon Constitution from deciding such cases significantly diminishes the “judicial power” of Oregon courts and ensures that important issues of regulatory authority and constitutional law will remain undecided.
In my view, the “judicial power” of the Oregon courts is not so limited. Since Marbury v. Madison, 5 US 137, 2 L Ed 60 (1803), state and federal courts have agreed with Chief Justice Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Id. at 177. Courts “say what the law is” in the course of deciding contested court cases. Consistently with that judicial power and with separation of powers requirements, the Oregon courts long have deemed it to be their province, rather than that of the legislature or the executive, finally to determine the meaning of constitutional provisions, statutory and regulatory enactments, and the common law.12 Within the structure of the Oregon judiciary, this court has the last word, and only *373this court can “describe the law of this state authoritatively.” Jones v. General Motors Corp., 325 Or 404, 416, 939 P2d 608 (1997). For the Oregon courts to fulfill that role — and not leave private parties and governmental entities to guess as to whether particular actions are consistent with law — the “judicial power” should be interpreted to allow the courts, in appropriate circumstances, to review cases that become moot during appeal because they involve events of such brief duration.
Chief Justice Rehnquist reasoned in Honig v. Doe, 484 US 305, 331, 108 S Ct 592, 98 L Ed 2d 686 (1988) (Rehnquist, C. J., concurring), that the “capable of repetition, yet evading review” exception to mootness was a prudential method to avoid “squander [ing of judicial resources] after the decisional process is underway.” Id. at 332 (Rehnquist, C. J., concurring). Another authority similarly describes the reasons that a “capable of repetition, yet evading review” exception to mootness does not undermine the reasons for the jus-ticiability requirement:
“(i) an actual course of conduct, even if past, continues to frame litigation in a factual context and thereby focus [es] judicial decisionmaking; (ii) the unlawful causation of a past injury deprives a defendant of any moral entitlement to freedom from judicial intervention; (iii) sharp, adversarial presentation of issues may occur despite the mooting of a plaintiffs personal stake in the outcome; (iv) since a defendant who has caused wrongful conduct would otherwise remain free to repeat it, a judicial decision forbidding such conduct is not an advisory opinion in any objectionable sense; and (v) judicial investment in the resolution of an issue of public importance should not be squandered.”
Richard H. Fallon, David L. Shapiro, and Daniel J. Meltzer, Hart & Wechsler’s The Federal Courts and the Federal System § 4, 219 (4th ed 1996); see also Tribe at 347-50 (describing basis for “capable of repetition, yet evading review” exception to mootness).
That position is consistent with Article VII (Amended), section 1, Article VII (Original), section 1, and Article III, section 1, of the Oregon Constitution and with decades of cases decided by this court. Nothing in the text of any of those constitutional provisions compels the conclusion *374that this court is powerless to decide a case that was justiciable when filed, but was destined to became moot by the mere passage of 30 days. The constitutional grant of the “judicial power” to the Oregon courts should not be so narrowly construed.13
For the foregoing reasons, although I agree with the majoritys disposition of this case, I disagree with its conclusion that the judicial power of Article VII (Amended), section 1, of the Oregon Constitution does not extend to cases that become moot during the litigation process, but involve issues that are capable of repetition, yet evade review.
Riggs, J., joins in this specially concurring opinion.*375APPENDIX
Alabama: Griggs v. Bennett, 710 So 2d 411, 412 n 4 (Ala 1998) (recognizing the “capable of repetition, yet evading review” exception to the mootness doctrine).
Alaska: State Dep’t of Revenue, CCESD v. A.H., 880 P2d 1048, 1049 (Alaska 1994) (recognizing the “public interest” exception to the mootness doctrine, which requires that an issue be (1) capable of repetition, (2) capable of evading review, and (3) of considerable public interest).
Arizona: Sherrill v. Dep’t of Transp., 165 Ariz 495, 497, 799 P2d 836, 838 (1990) (“We will consider cases that have become moot when significant questions of public importance are presented and are likely to recur.”).
Arkansas: Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark 298, 301, 954 SW2d 221,223 (1997) (“An exception to the mootness doctrine, however, allows review for appeals involving the public interest and the prevention of future litigation.”).
California: NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal 4th 1178, 1190 n 6, 980 P2d 337, 346 n 6 (1999) (“[A]s scores of other reviewing courts in this same posture have concluded, we determine that although the present case is technically moot, it presents an important question affecting the public interest that is ‘capable of repetition, yet evading review.’ ”).
Colorado: Humphrey v. Southwestern Dev. Co., 734 P2d 637, 639 (Colo 1987) (recognizing two exceptions to the mootness doctrine: one for matters “capable of repetition, yet evading review,” and the other if “the matter involves a question of great public importance or an allegedly recurring constitutional violation”).
Connecticut: Loisel v. Rowe, 233 Conn 370, 378-86, 660 A2d 323, 328-32 (1995) (including a lengthy discussion of the elements and theory of the doctrine of “capable of repetition, yet evading review”).
*376Delaware: Darby v. New Castle Gunning Bedford Ed. Ass’n, 336 A2d 209, 209 n 1 (Del 1975) (“[I]n view of the substantial public interest in the statute, we consider the merits of the appeal under the well-established public-interest-exception-to-the-mootness doctrine.”).
Florida: N.W. v. State, 767 So 2d 446, 447 n 2 (Fla 2000) (“[BJecause periods of supervision or community control may expire before a case may be reviewed, this case presents a controversy capable of repetition, yet evading review, which should be considered on its merits.”); Ervin v. Capital Weekly Post, 97 So 2d 464, 466 (Fla 1957) (“We reiterate that an appellate court does not lose jurisdiction of a cause even though the matter in controversy has become moot as to one or more of the litigants in cases involving wide public interest or where such matters involve the duties and authority of public officials in the administration of the law and are of general interest to the people. The future administration of the election law by public officials requires the hearing of the merits of the appeal.”); Sterling v. Brevard County, 776 So 2d 281, 285 (Fla Dist Ct App 2000) (“[C]ourts are always free to address the merits of an action which has been deemed moot if the action is capable of repetition yet evading review and presents an important issue.”).
Georgia: Collins v. Lombard Corp., 270 Ga 120, 121-22, 508 SE2d 653, 655 (1998) (“[T]he term ‘moot’ must be narrowly construed to exclude from mootness those matters in which there is intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers. Since there would always be, in such cases, a live controversy, albeit no longer between the named parties, jurisdiction would not be foreclosed by the prohibition against advisory opinions.” (Citation omitted.)).
Hawaii: Johnston v. Ing, 50 Haw 379, 381, 441 P2d 138, 140 (1968) (‘When the question involved affects the public interest, and it is likely in the nature of things that similar questions arising in the future would likewise *377become moot before a needed authoritative determination by an appellate court can be made, the exception is invoked.”).
Idaho: Selkirk Seed Co. v. Forney, 134 Idaho 98, 101, 996 P2d 798, 801 (2000) (stating that courts have the discretion to decide cases that are in the public interest and are “susceptible to repetition yet evading review”).
Illinois: In re Barbara H., 183 Ill 2d 482, 490, 702 NE2d 555, 559 (1998) (recognizing exception to the mootness doctrine when the complaining party demonstrates that: “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again”); In re a Minor, 127 Ill 2d 247, 257-58, 537 NE2d 292, 296 (1989) (recognizing exception to the mootness doctrine for both questions of great public interest and issues that are “capable of repetition, yet evading review”).
Indiana: In re Lawrance, 579 NE2d 32, 37 (Ind 1991) (stating that the Indiana Constitution lacks a “cases and controversies” requirement, thus opening the door for courts to decide questions of “great public interest” that are likely to recur).
Iowa: Polk County Sheriff v. Iowa Dist Court, 594 NW2d 421, 425 (Iowa 1999) (recognizing exception to the mootness doctrine for cases that affect public policy and that “may arise repeatedly, yet evade appellate review”).
Kansas: Shirley v. Retail Store Employees Union, 225 Kan 470, 472, 592 P2d 433, 434-35 (1979) (recognizing exception to mootness doctrine for cases that are “capable of repetition, yet evading review,” and that are “of public importance”).
Kentucky: May v. Coleman, 945 SW2d 426, 427 (Ky 1997) (“However, the general rule does not apply in a situation in which litigation is likely to be repeated * * * or where the issue is ‘capable of repetition, yet evading review.’ ” (Citations omitted.)).
*378Louisiana: State v. Taylor, 769 So 2d 535, 537 (La 2000) (“Should we decline the issue because it is now moot, the issue could permanently escape our consideration and evade appellate review because that window of time for review is shorter than the ordinary appellate delay.”).
Maine: Fredette v. Sec’y of State, 1997 Me 105, 4, 693 A2d 1146, 1147 (1997) (“Because the issue raised by Fredette is capable of repetition and will evade review if we do not address the merits of his appeal, we decline to dismiss the appeal as moot.”).
Maryland: State v. Parker, 334 Md 576, 584-85, 640 A2d 1104, 1108 (1994) (“[E]ven if no controversy exists at the precise moment of review, a case will not be deemed moot if the controversy between the parties is ‘capable of repetition, yet evading review.’ ”).
Massachusetts: Karchmar v. Worcester, 364 Mass 124, 136, 301 NE2d 570, 578 (1973) (recognizing the “capable of repetition, yet evading review” exception to the mootness doctrine when an issue is of public importance and when the duration of the issue makes declaratory relief very difficult).
Michigan: Franciosi v. Michigan Parole Bd., 461 Mich 347, 348, 604 NW2d 675, 675 (2000) (“[W]e issue this opinion because the issue is capable of repetition while evading our review * * *.”).
Minnesota: In re Schmidt, 443 NW2d 824, 826 (Minn 1989) (“Notwithstanding this aversion to consideration of moot questions, appellate courts have carved out an exception provided the issue is ‘capable of repetition yet evading review.’ * * * When deemed appropriate, this court has applied the exception.”).
Mississippi: Hemphill Constr. Co. v. City of Laurel, 760 So 2d 720, 724 (Miss 2000) (“While the issue before us may be academic insofar as it affects these parties at this time, the situation here presented is capable of repetition. Parties such as Hemphill might again be unable to have meaningful review of their claims. The issue, *379therefore, is not moot.”); Ex parte Jones County Grand Jury, 705 So 2d 1308, 1313-14 (Miss 1997) (“However, the doctrine which prevents adjudication of moot cases provides an exception for those cases which are capable of repetition yet evading review.” (Citation omitted.)).
Missouri: In re 1983 Budget for Circuit Court, 665 SW2d 943, 943 n 1 (Mo 1984) (“[W]e decline to dismiss the case as moot since it presents an important question ‘capable of repetition, yet evading review.’ ”).
Montana: J.M. v. Montana High Sch. Ass’n, 265 Mont 230, 241, 875 P2d 1026, 1033 (1994) (“[W]e also note that given the amount of time inherent in the litigation process, and given our reluctance to entertain original proceedings and special writs except under extraordinary circumstances, it would be nearly impossible for any case such as this to ever reach this Court, via the usual litigation/appeal process, within the time during which the injunction was in effect. To mechanically apply the doctrine of mootness under such circumstances would effectively deny the remedy of appeal.”).
Nebraska: State v. Dawn, 246 Neb 384, 391, 519 NW2d 249, 255 (1994) (“Because this situation affects the public interest and is capable of repetition, yet evading review, we now resolve that question.”).
Nevada: Del Papa v. Bd. of Regents, 114 Nev 388, 401, 956 P2d 770, 779 (1998) (“Although the Board chose not to issue the release, our decision on the merits of this appeal is not moot because the issue resolved is ‘capable of repetition yet evading review.’ ”).
New Hampshire: Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 NH 578, 591, 766 A2d 687, 691 (NH 2000) (recognizing “capable of repetition, yet evading review” exception to mootness doctrine).
New Jersey: N.J. Div. of Youth & Family Servs. v. J.B., 120 NJ 112, 119, 576 A2d 261, 264 (2001) (stating that court would hear the case because issue was of “considerable public importance” and was “capable of repetition, yet evading review”).
*380New Mexico: Pinell v. Bd. of County Comm’rs, 127 NM 452, 456, 982 P2d 503, 507 (1999) (recognizing exception to mootness doctrine when issue is of “substantial public interest” and is “capable of repetition, yet evading review” (citation omitted)).
New York: People ex rel. Maxian v. Brown, 77 NY2d 422, 425, 570 NE2d 223, 224 (1991) (recognizing exception to mootness doctrine when issue is “capable of repetition, yet evading review”).
North Carolina: Simeon v. Hardin, 339 NC 358, 370, 451 SE2d 858, 867 (1994) (court has a “duty” to address an otherwise moot case when the “question involved is a matter of public interest”).
North Dakota: In re E. T., 2000 ND 174, P5,617 NW2d 470, 471 (2000) (“[I]ssues characterized as moot will nonetheless be heard by this court if the controversy is capable of repetition, yet evading review, or if the controversy is one of great public interest and involves the power and authority of public officials.”).
Ohio: State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St 3d 61, 64, 741 NE2d 517, 521 (2001) (recognizing the “capable of repetition, yet evading review” exception to the mootness doctrine when “the challenged action is too short in duration to be fully litigated before its cessation or expiration, and there is a reasonable expectation that the same complaining party will be subject to the same action again”).
Oklahoma: Federal Land Bank v. Story, 756 P2d 588, 589 (Okla 1988) (“[Mjootness will not act as a bar when the challenged event is ‘capable of repetition, yet evading review.’ ”).
Pennsylvania: In re Hasay, 546 Pa 481, 491, 686 A2d 809, 814 (1996) (“[T]his matter is technically moot. It is nonetheless justiciable as an exception to the mootness doctrine because it is clearly ‘capable of repetition, yet evading review.’ ”).
*381Rhode Island: Blais v. Blais, 652 A2d 963, 964 (RI 1995) (“Although the question before us is moot * * *, we believe it is a matter of public importance. It is a matter capable of repetition, which may evade review.”).
South Carolina: Charleston County Sch. Dist. v. Charleston County Election Comm’n, 336 SC 174, 180, 519 SE2d 567, 570-71 (1999) (“A court may take jurisdiction, despite mootness, if the issue raised is ‘capable of repetition but evading review.’ ” (Citation omitted.)).
South Dakota: Rapid City Journal v. Circuit Ct., 283 NW2d 563, 565-66 (SD 1979) (“A well-recognized exception to the general rule, however, is that jurisdiction will lie even though the order attacked has expired if the underlying dispute between the parties is one ‘capable of repetition, yet evading review.’ ”).
Tennessee: State v. Drake, 701 SW2d 604, 609 (Tenn 1985) (recognizing exception to mootness doctrine in the context of a motion for closure or restrictive order because the issue is “capable of repetition yet evading review”).
Texas: Tex. Dep’t of Pub. Safety v. LaFleur, 32 SW3d 911, 913-14 (Tex App 2000) (recognizing exception to the mootness doctrine when issue is of “considerable public interest” or when “future parties could find themselves in the same position”).
Utah: State v. MLC, 933 P2d 380, 382 (Utah 1997) (“While we typically refrain from adjudicating moot questions, we recognize an exception to this rule where the alleged wrong is ‘capable of repetition yet evading review.’ ” (Citation omitted.)).
Vermont: In re PCB File No. 92.27, 167 Vt 379, 380-81, 708 A2d 568, 569-70 (1998) (recognizing “capable of repetition, yet evading review” exception when the action’s duration is too short to be fully litigated and there is a reasonable expectation that the same complaining party will again be subject to the same action).
Virginia: Dep’t of Taxation v. Delta Air Lines, Inc., 257 Va 419, 427-28, 513 SE2d 130, 134 (1999) (“Jurisdiction is not necessarily defeated * * * if the underlying dispute *382* * * is one ‘capable of repetition, yet evading review.’ ”); In re Times-World Corp., 25 Va App 405, 412, 488 SE2d 677, 680-81 (1997) (“The Supreme Court has frequently recognized that its jurisdiction is * * * not necessarily defeated by the practical termination of a contest which is short-lived by nature. If the underlying dispute is ‘capable of repetition, yet evading review,’ it is not moot.” (Citation omitted.)).
Washington: State ex rel. Yakima Amusement Co. v. Yakima County, 192 Wash 179, 184, 73 P2d 759, 762 (1937) (recognizing exception to mootness doctrine when question is one of “great public interest”), overruled in part on other grounds by Schneidmiller & Faires, Inc. v. Farr, 56 Wash 2d 891, 355 P2d 824 (1960); Federated Publ’ns, Inc. v. Kurtz, 94 Wash 2d 51, 54, 615 P2d 440, 442 (1980) (“We have agreed, however, to review otherwise moot cases if matters of continuing and substantial interest are involved.” (Citation omitted.)).
West Virginia: State ex rel. Jeanette H. v. Pancake, 207 W Va 154, 159-60, 529 SE2d 865, 870-71 (2000) (“A case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review.”).
Wisconsin: State ex rel. Jones v. Gerhardstein, 141 Wis 2d 710, 723-24, 416 NW2d 883, 888-89 (1987) (“[T]his court has carved out certain exceptions to this general rule where: the issues are of great public importance; the constitutionality of a statute is involved; the precise situation under consideration arises so frequently that a definitive decision is essential to guide the trial courts; the issue is likely to arise again and should be resolved by the court to avoid uncertainty; or, a question is capable and likely of repetition and yet evades review because the appellate process usually cannot be completed and frequently cannot even be undertaken within a time that would result in a practical effect upon the parties.”).
*383Wyoming: Davidson v. Sherman, 848 P2d 1341, 1348 (Wyo 1993) (recognizing exception to the mootness doctrine when a case presents a controversy “capable of repetition yet evading review”).
One might argue that, given my view that courts may decide some moot cases, I also should find that the trial court had jurisdiction over this case because the relevant event (the duration of petitioner’s 30-day exclusion order) was so short that petitioner could not challenge the order in an administrative hearing, obtain a result, and file his petition for judicial review before the order had expired. Whatever the strengths or weaknesses of that position, it was not addressed by the trial court, the Court of Appeals, or the majority opinion in this court. Rather, the trial court addressed the merits of petitioner’s constitutional challenge to the exclusion ordinance, and the Court of Appeals and the majority opinion in this court focus on whether the judicial power extends to deciding a case that becomes moot after it has been filed in the trial court. I limit my discussion to that issue.
A list of decisions from the other 49 states, each recognizing a “capable of repetition, yet evading review” exception to mootness is set out in the Appendix. While those decisions provide limited guidance for our interpretation of the Oregon Constitution, to the extent that the doctrine rests, at least in part, on prudential considerations, as I argue below, they suggest that virtually every other court that has considered the doctrine finds it useful. Moreover, other state constitutions use the same phrase that appears in the Oregon Constitution — the “judicial power” — to describe the scope of the judiciary’s authority. The majority’s interpretation of that term to mean something different than it means to every other court in this country suggests that the majority has the less persuasive argument, as I assert in the text.
See, for example, the diverse opinions (and the cases and commentators on which they rely) in the Court of Appeals decision in Utsey v. Coos County, 176 Or App 524, 529-47, 32 P3d 933 (2002), rev dismissed, 335 Or 217 (2003); 176 Or App at 562-72 (Deits, C. J., dissenting); id. at 574-85 (Armstrong, J., dissenting); id. at 588-95 (Brewer, J., dissenting).
This court’s cases discussing the origins and scope of the justiciability requirement have not always been consistent, however. See Utsey, 176 Or App at 537-38 (discussing justiciability case law).
In that regard, I agree with the conclusion Chief Justice Rehnquist reached after reviewing the federal mootness cases:
“The logical conclusion to be drawn from these cases, and from the historical development of the principle of mootness, is that while an unwillingness to decide moot cases may be connected to the case or controversy requirement of Art. Ill, it is an attenuated connection that may be overridden where there are strong reasons to override it. The ‘capable of repetition, yet evading review’ exception is an example.”
Honig v. Doe, 484 US 305, 331, 108 S Ct 592, 98 L Ed 2d 686 (1988) (Rehnquist, C. J., concurring).
In addition to Perry, this court decided technically moot cases in State ex rel. v. Newbry et al., 196 Or 331, 337, 248 P2d 840 (1952); State ex rel. v. Smith et al., 197 Or 96, 126, 252 P2d 550 (1953); Huffman v. Alexander, 197 Or 283, 290, 253 P2d 289 (1953); Linklater v. Nyberg, 234 Or 117, 120, 380 P2d 631 (1963); and Stowe v. School District No. 8-C, 240 Or 526, 528,402 P2d 740 (1965). The Court of Appeals issued decisions on the merits in similar circumstances in Whipple v. OSAA, 52 Or App 419, 422, 629 P2d 384, rev den, 291 Or 504 (1981), and OSAA v. Stout, 71 Or App 405, 407, 692 P2d 633 (1984).
Similarly, the Portland ordinance at issue here has been amended in a way that appears to permit an exclusion order to be appealed without the dispute becoming moot. See 337 Or at 347-48 (describing amendment to ordinance). If so, *368this case would not come within the “capable of repetition, yet evading review” exception to mootness, even if this court were to hold that such an exception exists.
This court consistently has recognized a clear distinction between “advisory*’ opinions, which are not authorized in Oregon, and proceedings in which a party seeks a judgment in court. The latter proceedings, including this case, seek to invoke the “judicial power” and will be decided by the courts if they meet the attributes of justiciability discussed in the text. See Oregon Medical Association v. Rawls, 281 Or 293, 301-02, 574 P2d 1103 (1978) (distinguishing between advisory opinions and proceedings that seek court judgments but are nonjusticiable).
The majority opinion essentially dismisses SouthernPacific as a “conclusory” exercise of the Court’s law-announcing function. 337 Or at 361 n 8. Inmy view, the Court correctly observed that, if it adhered to its usual rule regarding moot cases, legal challenges to Interstate Commerce Commission actions could be “defeated, by short term orders, capable of repetition, yet evading review, and at one time the government, and at another time the carriers, have their rights determined by the Commission without a chance of redress.” Southern Pacific, 219 US at 515. The Court properly saw that its law-determining role required it to decide the case even though it had become moot.
I note that, earlier this year, the Portland City Council amended the ordinance involved here to stay the effectiveness of an exclusion order if the order is appealed. See 337 Or at 347-48 n 1 (quoting amendment to ordinance). I agree that, if the effectiveness of an exclusion order — or any similar order that is challenged in court — is stayed while the challenge to the order is litigated, then the case does not become moot and there is no occasion to resort to the “capable of repetition, yet evading review” exception to the mootness doctrine.
Similar mootness issues arise when a person challenges a short-term administrative agency order that then expires, see, e.g., Perry, 180 Or at 495 (liquor commission order expired after 60 days); a student claims that a sectarian prayer at a school graduation is unconstitutional, and the graduation ceremony is held while the case is pending, Kay v. David Douglas Sch. Dist. No. 40, 303 Or 574, 738 P2d 1389 (1987), cert den, 484 US 1032 (1988); or when a political party challenges the state’s interpretation of an election statute, but the case cannot be finally resolved before the election. E.g., Oregon Republican Party v. State of Oregon, 301 Or 437, 722 P2d 1237 (1986) (dismissing as moot party’s challenge to state determination that plan to encourage absentee voting by providing stamped envelopes to voters, along with absentee ballot request forms, was unlawful).
See, e.g., Automobile Club v. State of Oregon, 314 Or 479, 487, 840 P2d 674 (1992) (“We hold that the underground storage tank assessment is a ‘tax’ under Article IX, section 3a(1)(a), and that, no matter what label the legislature may attach to a tax on motor vehicle fuel, whether it be ‘fee,’ ‘excise,’ ‘tithe,’ ‘assessment,’ or some other term, the revenues derived therefrom must be dedicated to the listed purposes.” (Emphasis added.)).
I do not argue, however, that the courts should decide every case that becomes moot because it involves events of short duration. The mootness doctrine has important constitutional roots, even though, as I have argued above, its contours and exceptions are in part prudential. In many cases, it will be appropriate for a court to dismiss a case that has become moot after it has been filed, notwithstanding that the issue is one capable of repetition, yet evading review. And the fact that a case has or may become moot by the expiration of an order, the passing of a deadline, or a party’s change in age or status, may well be relevant in this court’s consideration of whether it should allow or deny a petition for review. See ORAP 9.07 (including, among criteria for granting discretionary review, whether issue arises often and whether consequences of decision are important to the public). I also recognize that different courts have disagreed as to whether the "repetition” of the circumstances must involve the same party and as to the degree of likelihood that the circumstances will recur. Tribe at 349. If this court were to adopt the position that I advocate, then those issues would be addressed in the context of specific cases; there is no occasion to consider the precise outlines of the exception in this opinion.