Chapter §11.4 MOOTNESS

• Jurisdiction: Oregon

§11.4 MOOTNESS

The most important aspect of the concept of mootness is that, unlike the federal courts, Oregon's courts do not permit a case to continue if the injury to the plaintiff ceases—even if the injury to the plaintiff is likely to recur for periods of such short duration that the legal processes provided to remedy the injury do not operate quickly enough to provide a remedy. See Yancy v. Shatzer, 337 Or 345, 363, 97 P3d 1161 (2004) (Balmer, J., specially concurring and arguing for review of actions that "are capable of repetition and yet evade review because they become moot at some point in the proceedings").

Cases can become moot when (1) the person challenging the government action changes the person's relationship to the challenged action, Barcik v. Kubiaczyk, 321 Or 174, 187, 895 P2d 765 (1995) (challenge to regulations governing student publications became moot when students graduated); Brumnett v. Psychiatric Sec. Review Bd., 315 Or 402, 407, 848 P2d 1194 (1993) (challenge to custody became moot when challenger left custody), (2) the government supersedes the challenged action, Corey v. Dep't of Land Conservation & Dev., 344 Or 457, 465, 184 P3d 1109 (2008) (property-rights ballot measure amended by subsequent ballot measure); FedEx Ground Package Sys., Inc. v. Dep't of Revenue, TC 4923, 4924, 2012 WL 2989944 (Or TC July 17, 2012) (department abated assessment that taxpayer had challenged), or (3) the effect of the government's action expires without further action by the government. Yancy, 337 Or at 348-49 (petitioner's park exclusion expired); Oregon Recovery, LLC v. Lake Forest Equities, Inc., 229 Or App 120, 127, 211 P3d 937 (2009) (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...