Keeney v. University of Oregon

• Decision Date: 28 November 2001
• Citation: 36 P.3d 982,178 Or. App. 198
• Parties: Kevin KEENEY, Petitioner, v. UNIVERSITY OF OREGON, Respondent.
• Court: Oregon Court of Appeals

36 P.3d 982

178 Or. App. 198

Kevin KEENEY, Petitioner, v. UNIVERSITY OF OREGON, Respondent.

C-546-97-98; A104503.

Court of Appeals of Oregon.

Argued and Submitted September 7, 2001.

Decided November 28, 2001.

John R. Parrott argued the cause for petitioner. With him on the briefs were Kenneth A. Morrow and Morrow, Monks & Sharp, P.C., Eugene.

Richard D. Wasserman, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge,¹ and WOLLHEIM, Judge.

HASELTON, P.J.

Petitioner, a former student at the University of Oregon, seeks judicial review of the University's April 1999 final order dismissing allegations that he failed to comply with the terms of a February 1997 disciplinary order but declining to address his collateral attack on the February 1997 order. Petitioner argues that the February 1997 disciplinary order was void because it was not issued in accordance with the University's governing statutes and administrative rules. The University concedes that, in the abstract, it lacked the authority to issue the February 1997 order but asserts that we cannot reach that issue because this dispute is moot. We agree with the University that petitioner's claim is moot. Accordingly, we dismiss the petition for judicial review.

The material facts are not in dispute. On December 6, 1996, Elaine Green, the University's Associate Dean of Student Life, sent petitioner four letters notifying him that another student had accused him of making harassing telephone calls and that, consequently, four complaints had been filed against him for unwanted sexual behavior, stalking, and sexual harassment. OAR 571-021-0030(20) (sexual behavior); OAR 571-021-0030(21) (stalking); OAR 571-021-0030(22) (sexual harassment). In the letters, Green also informed petitioner that he must meet with her by December 20, 1996, to discuss the accusations or risk having the dispute summarily resolved without his input.

On December 13, 1996, petitioner met with Green to discuss the complaints. During that meeting, petitioner agreed to have the charges against him resolved informally pursuant to OAR 571-021-0045.² Thereafter, petitioner retained counsel. On January 22, 1997, petitioner's counsel wrote a letter to Green withdrawing petitioner's December 1996 consent to informal resolution of the complaints.

Despite that letter, Green did not refer the case for formal administrative resolution. Instead, on February 6, 1997, Green sent a letter order to petitioner "inform[ing]" him that, "[a]s a result of our conference, you have been found guilty" of violating the University Student Conduct Code. In that order, Green summarily imposed several sanctions on petitioner, including a "community service" sanction requiring petitioner to send a letter of apology to the complaining student, to meet with sexual harassment counselors, and to "write a 5 page paper on the typical effects of such conduct on the victims." Petitioner did not timely seek judicial review of that order.³ Instead, on March 31, 1997, petitioner gave the University notice pursuant to the Oregon Tort Claims Act, ORS 30.275, of his intent to sue Green and her superiors for Green's allegedly tortious conduct and for damages based on 42 USC § 1983.

On December 18, 1997, Green sent petitioner notice that he had allegedly failed to complete the "community service" required by the February 1997 order and had, thus, violated OAR 571-021-0030(16), which authorizes student disciplinary action for "[f]ailure to comply with the terms of any disciplinary sanction imposed in accordance with the Student Conduct Code."⁴ On May 4, 1998, a University hearings panel conducted a show cause hearing regarding the allegation that defendant had failed to comply with the terms of the February 1997 disciplinary order.

At that hearing, petitioner raised two alternative defenses pursuant to OAR 571-021-0030(16).⁵ First, petitioner asserted that he did not violate OAR 571-021-0030(16), because he had, in fact, complied with the terms of his "community service" obligation.⁶ Second, petitioner asserted that, in all events, he could not be liable for non-compliance with the February 1997 order because that order was not lawfully issued.⁷ To support his first argument, petitioner offered copies of the letter of apology and of his paper describing the effects of sexual harassment. On June 6, 1998, the hearings panel accepted petitioner's first argument and issued an order dismissing the December 1997 complaint on the ground that petitioner "has satisfactorily completed the community service sanctions against him in all outstanding cases, and is therefore not guilty of violating OAR 571-[0]21-[0]030(16)." Given that disposition, the hearings panel did not reach or resolve petitioner's alternative, collateral challenge to the February 1997 order.

Notwithstanding the hearings panel's dismissal of the enforcement action, petitioner requested University appeals board review of the hearings panel order. In particular, petitioner asked the appeals board to resolve his collateral challenge to the February 1997 disciplinary order. The appeals board rejected that argument and issued a final order that affirmed, and substantively mirrored, the hearings panel's ruling. In December 1998, petitioner filed a petition for judicial review with this court.⁸

In September 2000, the University moved to dismiss petitioner's petition on the ground that any dispute was rendered moot by petitioner's graduation in Spring 1999 and that the controversy was therefore nonjusticiable. Petitioner responded by arguing that the dispute is justiciable notwithstanding the appeals board's determination that he had not violated the February 1997 order. In particular, petitioner asserts that resolution of his collateral attack on the February 1997 order will have a "practical effect" on the parties' rights because a determination that the 1997 order was invalid may affect: (1) his ability to recover attorney fees in this judicial review; (2) his ability to pursue tort remedies against the University; and (3) his future employability in that potential employers may regard any "black mark" on his academic record adversely. In an order issued October 27, 2000, Chief Judge Deits dismissed the petition for judicial review action. Petitioner sought reconsideration of that order of dismissal. The court's Motions Department granted reconsideration, concluding that there were cognizable collateral consequences flowing from the presence of the February 1997 order in petitioner's disciplinary record, vacated the order, and reinstated petitioner's petition for judicial review.

In his brief on the merits, petitioner reprises and amplifies his earlier arguments that the February 1997 order was invalid and that the University erred in not addressing his collateral challenge to that order in the subsequent disciplinary proceeding. Petitioner also again asserts that the case is justiciable because of the various asserted "practical effects" implicated by his collateral challenge. The University again responds that the case is nonjusticiable. ORAP 7.15(3) (authorizing resubmission of motion challenging the court's jurisdiction). In that regard, the University makes two related arguments. First, the University argues, as it did in its earlier motion, that none of the supposed consequences identified by petitioner will have any practical effect on the parties' interests-and, particularly, that petitioner's graduation rendered this matter moot. Second, the University argues that the circuit court's January 1998 dismissal of petitioner's original direct challenge to the February 1997 order, see 178 Or.App. at 201 n. 2, 36 P.3d at 984 n. 2, precludes petitioner's present action to collaterally attack that order.

We begin with mootness. Berry v. Metro Electrical Joint Apprenticeship, 155 Or.App. 26, 29, 963 P.2d 712 (1998) ("Where lack of jurisdiction appears at any stage of a case, it is the duty of the appellate court to proceed no further."). See also Clawson et ux v. Prouty et ux, 215 Or. 244, 249, 333 P.2d 1104 (1959) (a court, confronted with a jurisdictional issue, has authority to determine its own jurisdiction).

In Barcik v. Kubiaczyk, 321 Or. 174, 182, 895 P.2d 765 (1995), the court summarized the principles underlying the justiciability doctrine:

"Under Oregon law, a justiciable controversy exists when `the interests of the parties to the action are adverse' and `the court's decision in the matter will have some practical effect on the rights of the parties to the controversy.'Brumnett v. PSRB, 315 Or. 402, 405-06, 848 P.2d 1194 (1993). `Cases that are otherwise justiciable, but in which a court's decision no longer will have a practical effect on or concerning the rights of the parties,' are moot. Id. at 406."

See also Utsey v. Coos County, 176 Or.App. 524, 32 P.3d 933 (2001) (discussing the justiciability doctrine). Because any "practical effect" inquiry is necessarily case-specific, see Brumnett, 315 Or. at 405, 848 P.2d 1194 (considering applicable statutes and administrative rules in assessing whether case remained justiciable), we turn to petitioner's argument that a determination of the February 1997 order's validity will have a practical effect because of the potential for attorney fees, the potential effect on subsequent litigation, and the presence of a "black mark" on his academic record.

We begin with the asserted "practical effect" on petitioner's alleged potential recovery of attorney fees. We emphasize, at the outset, that petitioner is neither seeking to preserve an already-existing award of attorney fees, nor to challenge an award of attorney fees in favor of the University. Rather, petitioner argues that, if he succeeds in this judicial review in establishing that the February...