Smith v. Board of Parole

“[I]n order to prevent a case from being considered moot, a collateral consequence must be something beyond mere speculation,” that is, “a collateral consequence must have a significant probability of actually occurring; a speculative or merely possible effect is not enough.” Johnson v. Premo, 302 Or App 578, 592, 461 P3d 985, rev den, 366 Or 569 (2020).

Petitioner sought review of an order of the Board of Parole and Post-Prison Supervision (the board) that postponed petitioner’s forecasted parole release date. On appeal, petitioner argued the “board has failed to establish that the petitioner’s claim is moot because if petitioner prevails on appeal, he would likely have an earlier date at which his period of active supervision would end.” Conversely, the board argued it satisfied its burden to demonstrate collateral consequences resulting from the order are speculative. This court has held that “in order to prevent a case from being considered moot, a collateral consequence must be something beyond mere speculation . . . a collateral consequence must have a significant probability of actually occurring; a speculative or merely possible effect is not enough.” Johnson v. Premo, 302 Or App 578, 592, 461 P3d 985, rev den 366 Or 569 (2020). In this case, the court determined that the petitioner’s parole supervision was not definite but was instead a “tentative and conditional date subject to extensions.” Miller v. Board of Parole, 275 Or App 844, 852, 365 P3d 1136 (2015). This was displayed through “case law, petitioner’s order of release and supervised conditions, and board rules” and that the board is not required to change the petitioner’s parole status solely based on the inceptive parole date. Petition for judicial review dismissed as moot.