Chapter § 11.4

• Jurisdiction: Oregon

§ 11.4 MOOTNESS

Cases can become moot in the following circumstances:

(1) when the person challenging the government action changes the person's relationship to the challenged action (see Barcik v. Kubiaczyk, 321 Or 174, 187, 895 P2d 765 (1995) (a challenge to regulations governing student publications became moot when the students graduated); Brumnett v. Psychiatric Security Review Board, 315 Or 402, 407, 848 P2d 1194 (1993) (a challenge to custody became moot when the challenger left custody));

(2) when the government supersedes the challenged action (see Corey, 344 Or at 465 (a property-rights ballot measure was amended by a subsequent ballot measure); FedEx Ground Package System, Inc. v. Department of Revenue, 20 OTR 547, 2012 Or Tax LEXIS 208 (July 17, 2012) (the department abated the assessment that the taxpayer had challenged)); or

(3) when the effect of the government's action expires without further action by the government (see Oregon Recovery, L.L.C. v. Lake Forest Equities, Inc., 229 Or App 120, 127, 211 P3d 937 (2009) (the creditors' claims became moot when underlying judgments expired)).

The cessation of the challenged government action does not render every challenge moot. The courts will permit an action to continue after the government has stopped the allegedly injurious activity if the challenger continues to suffer a "collateral consequence" from the action. State v. Hauskins, 251 Or App 34, 36, 281 P3d 669 (2012). The continuing injury that constitutes the collateral consequence that will keep a case alive after the cessation of the government's activity must be probable and of sufficient seriousness to warrant the court's continued attention to the case. For example, in Hauskins, the state contended that the completion of the six-month confinement for contempt of court with which the defendant had been punished rendered the defendant's challenge to the confinement moot. The court of appeals rejected the state's contention, however, because the contempt finding and the consequent confinement "stigma[tized]" the defendant in a manner "analogous to a criminal conviction." Hauskins, 251 Or App at 38-39. Collateral consequences frequently arise in or out of criminal or similar proceedings, such as juvenile cases (see, e.g., Department of Human Services v. S.S. (In re B.H.), 307 Or App 37, 39, 475 P3d 925 (2020), rev den, 368 Or 347 (2021)), but can also arise in civil proceedings (see, e.g., Keeney v. University of Oregon, 178 Or App 198...