Bowers v. Board of Parole ( 2021 )

566
Submitted August 29, 2018, petition for judicial review dismissed March 3,
petition for review denied July 15, 2021 (368 Or 402)
CHRISTOPHER ALLEN BOWERS,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A162504
483 P3d 22
Petitioner seeks judicial review of a final order of the Board of Parole and
Post-Prison Supervision (board) that found him to qualify as a predatory sex
offender and imposed special conditions of probation. While this review was
pending, petitioner’s post-prison supervision terms expired. Petitioner argues
that this case is not moot because a decision by the Court of Appeals could have
the collateral effect of determining his liability for the cost of the special con-
ditions of his supervision. Held: A case becomes moot when a court’s decision
will have no practical effect, either directly or collaterally, on the rights of the
parties. Any claimed collateral consequence on such rights must be probable,
not merely possible. Because in this case, nothing in the record showed that the
board sought, or intended to seek, to recover those costs from petitioner, any
collateral consequences are only speculative—put differently, possible—not prob-
able. Thus, the case has become moot.
Petition for judicial review dismissed.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jacob Brown, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Landau, Senior Judge.
LANDAU, S. J.
Petition for judicial review dismissed.
Cite as 309 Or App 566 (2021) 567
LANDAU, S. J.
Petitioner seeks judicial review of a final order of
the Board of Parole and Post-Prison Supervision that found
him to be a predatory sex offender and imposed special con-
ditions of probation. While review was pending, however,
petitioner’s post-prison supervision expired. We asked for
supplemental briefing on the question whether the expira-
tion of post-prison supervision rendered the review moot.
We now conclude that the matter is indeed moot. The peti-
tion for judicial review therefore is dismissed.
The relevant facts are not in dispute. In 2010,
petitioner was convicted of first-degree burglary, criminal
impersonation, eluding police, and failure to register as
a sex offender.1 He was sentenced to a total of 75 months’
incarceration with 24 months’ post-prison supervision on
the convictions for eluding police and failure to register and
36 months’ post-prison supervision on the convictions for
burglary and impersonation.2
In 2015, the board released petitioner from phys-
ical custody and imposed special conditions of post-prison
supervision. Those conditions included a prohibition on hav-
ing contact with a person under 18 years of age; submitting
to random polygraph tests as part of a sex-offender surveil-
lance program; successful completion of an approved sex-
offender treatment program; and payment of any “super-
vision fees, fines, restitution or other fees ordered by the
Board.”
Petitioner sought administrative review of the
board’s decision, arguing that the board lacked sufficient
evidence to support the imposition of the special conditions
related to his status as a sex offender. The board denied
relief, explaining that its imposition of the special condi-
tions was based on multiple prior convictions for sex offenses
involving a seven-year-old child.
1
The convictions for burglary and criminal impersonation were entered in
C101805CR and the convictions for eluding and failure to register were entered
in C101834CR. Both judgments were entered in the Washington County Circuit
Court.
2
The post-prison supervision terms ran concurrently.
568 Bowers v. Board of Parole
Petitioner then requested judicial review. Among
other things, he argued that the prior sex offenses were too
old to serve as an adequate justification for the special con-
ditions of post-prison supervision that the board imposed.
While review was pending, post-prison supervision on all of
petitioner’s convictions expired. As we have noted, we asked
for supplemental briefing on the question whether the expi-
ration of post-prison supervision renders the judicial review
moot.
Petitioner responds that the proceeding is not moot,
because a decision on the sufficiency of the evidence to sup-
port the special conditions of post-prison supervision will
have a significant collateral consequence. Petitioner notes
that one of those conditions requires him to pay for any
“supervision fees, fines, restitution or other fees ordered by
the Board.” If we uphold the special conditions, he argues,
the board could order him to pay those fees. “Thus,” he con-
cludes, “this court’s decision could potentially have an effect
on petitioner’s economic liability.”
The board replies that the special condition requires
that petitioner only pay fees “ordered by the Board.” It
asserts that, because there is no evidence that it has ordered
or intends to order him to pay those fees, the idea that a
decision of our court would have an effect on petitioner’s
economic liability is pure speculation.3 Our court, the board
concludes, lacks authority to decide this case.
As a general rule, Oregon courts will not render
decisions on cases that have become moot. It is often stated
that the courts lack authority to decide such matters. See,
e.g., State v. Hemenway, 353 Or 498, 500, 302 P3d 413 (2013)
(“Oregon courts have no authority to decide moot cases[.]”).
After the Supreme Court’s decision in Couey v. Atkins, 357
Or 460, 520-22, 355 P3d 866 (2015), that may not be pre-
cisely correct. In Couey, the court held that Oregon courts
do have authority to decide moot cases, at least to the extent
that the cases are “public action cases or cases involving
matters of public interest,” such as disputes that meet the
3
In a footnote, the board states that, in fact, it has no intention of assessing
any costs against petitioner.
Cite as 309 Or App 566 (2021) 569
statutory requirements of ORS 14.175.4 Id. at 520. The court
cautioned that even those principles may not constitute the
outer limits of the courts’ authority. Id.; see also Penn v.
Board of Parole, 365 Or 607, 613 n 2, 451 P3d 589 (2019)
(ORS 14.175 “does not necessarily represent the full scope of
a court’s constitutional authority to decide moot cases”).
At all events, even after Couey, Oregon courts have
continued to adhere to the general rule—whether as a mat-
ter of authority or of policy—that they will not decide moot
cases. See, e.g., State v. K. J. B., 362 Or 777, 785, 416 P3d
291 (2018) (noting “[e]arlier cases have expressed the rule
against deciding moot cases as a matter of constitutional
imperative, while more recent cases treat it as a prudential
consideration”); State v. H. K. D. S. (A163271), 305 Or App
170, 173, 469 P3d 768 (2020) (“As a prudential matter, we
typically will not consider cases that are moot.”).
A case becomes moot when a court’s decision “will
no longer have a practical effect on the rights of the parties.”
Brownstone Homes Condo. Assn. v. Brownstone Forest Hts.,
358 Or 26, 30, 361 P3d 1 (2015) (internal quotation marks
omitted). The necessary “practical effect” includes both
direct effects and collateral consequences. Smith v. Board
of Parole, 305 Or App 773, 776, 472 P3d 805 (2020). But any
“collateral consequence must be probable, not merely pos-
sible”. State v. Lomack, 307 Or App 596, 599, 477 P3d 1222
(2020).
The party asserting that a matter has become moot
bears the burden of demonstrating that a court decision will
no longer have the required practical effect. K. J. B., 362 Or
at 786. That includes establishing that any collateral effects
that have been identified “either do not exist or are legally
insufficient.” Id.; see also Lomack, 307 Or App at 599 (same).
In this case, petitioner contends that a decision by
this court could “potentially” have the collateral effect of
4
ORS 14.175 provides that, “[i]n any action in which a party alleges that
an act, policy or practice of a public body * * * is unconstitutional or is otherwise
contrary to law, the party may continue to prosecute the action and the court
may issue a judgment” even if the case has become moot, so long as the party
had standing when the action started, the challenged act, policy, or practice is
capable of repetition and “is likely to evade judicial review in the future.”
570 Bowers v. Board of Parole
determining his liability for the cost of the challenged spe-
cial conditions of post-prison supervision. The board replies
that such a collateral consequence is speculative because
of an absence of evidence that it is seeking, or will in the
future seek, to recover those costs.
The board is correct. The issue is directly controlled
by Brumnett v. PSRB, 315 Or 402, 848 P2d 1194 (1993). In
that case, the petitioner was found guilty, but for a men-
tal disease or defect, of various crimes and committed to
the jurisdiction of the Psychiatric Security Review Board
(PSRB). Id. at 404. He later sought release from PSRB juris-
diction on the ground that he no longer suffered from a men-
tal disease or defect, but the board refused. Id. The petitioner
sought judicial review, but while review was pending, PSRB
decided to release him unconditionally. Id. It then moved
to dismiss the review proceeding on the ground that it had
become moot. Id. The petitioner opposed the motion, argu-
ing that a judicial determination of the lawfulness of the
order refusing to release him would have collateral financial
consequences. Id. at 405. The petitioner noted that, under
ORS 179.620, he was liable to the state for the costs of his
care. Id. at 404. PSRB responded that there was no evidence
that it had taken any steps to require the petitioner to pay
for the costs of his care, so any financial liability was purely
speculative. Id. at 406. The Supreme Court agreed with
PSRB, concluding that the board had “carried its burden to
establish that the case is moot.” Id. at 407.
As the Supreme Court itself has noted, there is some
question whether Brumnett was correctly decided, given that
the court in that case had concluded that PSRB had carried
its burden merely by noting an absence of evidence that it
had taken any steps to require the petitioner to pay for the
costs of his care. K. J. B., 362 Or at 787; cf. Dept. of Human
Services v. T. M. D., 365 Or 143, 162, 442 P3d 1100 (2019)
(“The department is not correct that the absence of evidence
* * * is sufficient to meet the department’s burden of proof.”).
The fact remains that Brumnett has not been overruled, and
until it has been, it continues to bind us.
As in Brumnett, in this case there is no evidence
that the board is currently seeking to recover any costs from
Cite as 309 Or App 566 (2021) 571
petitioner or that it intends to do so in the future. Any collat-
eral consequences of a ruling on the merits, then, are only
possible, not probable. The matter has become moot.
Petition for judicial review dismissed.