In City of Eugene v. PERB, (De Muniz, J.), the Supreme Court held that the employees' appeal of a judgment vacating prior PERB orders was moot because PERB had replaced the orders at issue with new orders pursuant to a settlement agreement to which the employees were not a party. Dissenting, Justice Durham, joined by Justice Riggs, argued that the dispute was not moot because PERB's authority to issue the superseding orders was among the issues presented by the appeal:
Intervenors' challenge to the trial court's decision here concerns the orders that PERB issued in 1998 and 2000. As noted, the record establishes that those orders are final and that intervenors have timely pursued their statutory right to seek appellate review of the trial court's judgment regarding those orders. The mootness controversy presented here turns solely on the viability of those orders and whether PERB has legal authority to nullify them, not whether the appellate court ruling could address "the viability of PERB's new order[,]" as the majority's second footnote asserts. (Slip op at 9 n 9; emphasis added.) The majority's approach conveniently airbrushes away intervenors' challenge to PERB's authority to cancel its first orders without responding to that challenge on the merits. It is telling that the majority's one-sentence response cites no statute or case from this or any other court to support its refusal to decide whether PERB's post-settlement cancellation of its final orders was unauthorized and, thus, without legal effect. If intervenors are correct in their assertion that PERB lacked authority to vacate its final orders, then this dispute clearly is not moot.
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