FILED: May 23, 2001

IN THE COURT OF APPEALS OF THE STATE OF OREGON

WILLIAM JAMES OWENS,

Appellant,

v.

S. FRANK THOMPSON,
Superintendent,
Oregon State Penitentiary,

Respondent.

96C-14170; A100262

On remand from the Oregon Supreme Court. Owens v. Thompson, 330 Or 360, 6 P3d 1102 (2000).

Appeal from Circuit Court, Marion County.

Joseph V. Ochoa, Judge.

Submitted on remand July 17, 2000.

Jay Edwards for appellant.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General, for respondent.

Before Haselton, Presiding Judge, and Edmonds and Landau, Judges.

PER CURIAM

Reversed and remanded.

PER CURIAM

This case comes before the court on remand from the Oregon Supreme Court in the light of its opinion in Hamel v. Johnson, 330 Or 180, 998 P2d 661 (2000). We previously dismissed plaintiff's claim as moot on the ground that the 1995 order that he sought to challenge was superseded by a 1997 order. Owens v. Thompson, 159 Or App 33, 976 P2d 574 (1999), remanded 330 Or 360, 6 P3d 1102 (2000). Hamel indicates that claims such as plaintiff's claim are not moot.

In the trial court, the state moved to dismiss solely on the ground that the 1997 order was proper; the state did not assert or attempt to prove that the 1995 order was valid. Because the 1995 order was properly at issue in this case, the trial court erred in granting the state's motion to dismiss. On remand, the trial court should evaluate the evidence that was before the Board when it made its 1995 decision.

Reversed and remanded.


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