Progressive Party of Oregon v. Atkins

Arguing the possibility of a hypothetical administrative rule that Defendant had no plans to adopt does not make a future dispute “likely” as is required to invoke the Tanner exception (ORS 14.175) to to the mootness doctrine.

Plaintiffs appealed dismissal from trial court based on the court's determination that the case was moot because the administrative rule Plaintiffs challenged had already been repealed. Plaintiffs argued that they fell into the “capable of repetition, yet evading review”, or Tanner, exception to the mootness doctrine (ORS 14.175). The Court held that Plaintiffs do not fall into the Tanner exception to the mootness doctrine. Arguing the possibility of a hypothetical administrative rule that Defendant had no plans to adopt does not make a future dispute “likely” as is required to invoke the exception. The Court found that since there was no evidence that a similar rule will be adopted in the future, the Plaintiffs failed to establish that the challenged act is “capable of repetition.” Therefore, the trial court properly dismissed Plaintiff’s case as moot. Affirmed.