No. 22426-1-IIIThe Court of Appeals of Washington, Division Three. Panel Seven.
Filed: January 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-2-04573-4. Judgment or order under review. Date filed: 09/29/2003. Judge signing: Hon. Salvatore F Cozza.
Counsel for Appellant(s), David Thomas McDonald, David T McDonald Associates PC, 808 SW 3rd Ave Ste 425, Portland, OR 97204-2400.
John Tyler Rodgers, c/o Spokane Co Public Defender, 1033 W Gardner, Spokane, WA 99201-2016.
Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Jarold Phillip Cartwright, Aty General’s Ofc Tort Division, 1116 W Riverside Ave, Spokane, WA 99201-1106.
KATO, C.J.
The trial court denied Mark Edward Fox’s request for a subpoena to compel the Department of Corrections (DOC) to appear as a witness and produce records before an Oregon court. He appeals. But because the issues raised are moot and do not involve matters of continuing and substantial public interest, we decline to review them and dismiss the appeal.
While Mr. Fox was a defendant in a criminal proceeding in Multnomah County, Oregon, he sought a subpoena from the Spokane County Superior Court, pursuant to chapter 10.55 RCW, requiring DOC’s custodian of records to appear at an Oregon pretrial status conference and to produce all records pertaining to Randolph Knoblock, Sr., a Washington prison inmate. The requested records included Mr. Knoblock’s confidential central file, disciplinary records, and mental health records. Mr. Fox believed Mr. Knoblock had provided information about an Oregon murder to Washington prison authorities that led to the charges against Mr. Fox, who believed the evidence was necessary for his defense in that it was relevant to Mr. Knoblock’s reliability and credibility.
On July 31, 2003, the court denied Mr. Fox’s request to compel the attendance of the DOC custodian of records because of a failure to make the required showing of materiality of the witness’s testimony pursuant to RCW 10.55.020. It also denied Mr. Fox’s request that DOC produce the records pertaining to Mr. Knoblock, finding that chapter 42.17 RCW, not chapter 10.55 RCW, governed the production of records. The court then granted Mr. Fox’s request to present the issue at a second hearing.
On September 3, 2003, the court denied Mr. Fox’s second request to compel the attendance of the DOC custodian of records before the Oregon court. It also denied his request to compel DOC to produce the records pertaining to Mr. Knoblock, finding again that the production of records was governed by chapter 42.17 RCW. Mr. Fox’s subsequent motion for reconsideration was denied. Mr. Fox appeals.
Mr. Fox contends the court erred by determining it could not compel DOC to appear and produce Mr. Knoblock’s records at a pretrial status conference in Oregon. But Mr. Fox pleaded guilty to a lesser included offense and his case is now over. This court can no longer provide effective relief and the issue is therefore moot. In re Interest of Rebecca K., 101 Wn. App. 309, 313, 2 P.3d 501 (2000).
`As a general rule, appellate courts will not decide moot questions or abstract propositions.’ Id. A moot case may be reviewed, however, if it presents issues of continuing and substantial public interest. In re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004). In deciding whether an issue is of continuing and substantial public interest, we look to these factors: (1) the public or private nature of the question presented; (2) the desirability of an authoritative determination which will provide future guidance to public officers; and (3) the likelihood that the question will recur. Id. at 891-92. The actual application of these criteria is necessary to ensure that an actual benefit to the public interest in reviewing a moot case outweighs the harm from an essentially advisory opinion. Hart v. Dep’t of Social Health Servs., 111 Wn.2d 445, 450, 759 P.2d 1206 (1988). The public interest exception, however, has not been used in statutory or regulatory cases that are limited on their facts. Id. at 449. Courts may also consider the level of genuine adverseness and the quality of advocacy of the issues, as well as the likelihood that the issues will escape review because the facts of the controversy are short-lived. Horner, 151 Wn.2d at 892.
Here, the public interest exception does not apply. A decision on Mr. Fox’s claim would be limited to the facts of this case, thus eliminating it from the public interest exception. Moreover, the lack of cases addressing the issues raised demonstrates that there is little likelihood of these same facts recurring. `Decisions of moot cases with limited fact situations provide little guidance to other public officials.’ Hart, 111 Wn.2d at 451. Because the case is moot, we dismiss the appeal.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and KURTZ, J., Concur.