dissent">Connolly, L,

dissenting.

I respectfully dissent. On the record presented to us, I am unsure if this case is moot. Therefore, I would remand the cause for further factual findings.

A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation. Green v. Lore, 263 Neb. 496, 640 N.W.2d 673 (2002). The majority opinion, as I understand it, holds that this case is moot because the respondents named in Davis’ petition no longer have Davis in their custody, making it impossible for the court to grant any meaningful relief.

At the time that Davis filed his petition, appellees were holding him. The parties now tell us that appellees have released Davis from custody, and they agree that this fact renders the case moot, although Davis argues that the public interest exception to the mootness doctrine should apply. The record is unclear, and the parties do not tell us, however, if appellees released Davis back into the community or transferred him into the custody of another state official or agency.

I agree that the case would be moot if Davis has been released back into the community. But the implication of the majority’s opinion is that the case would be moot even if appellees only transferred Davis into the custody of another state official or agency. I do not agree. The state should not be able to avoid appellate review of habeas proceedings by shifting the custody of the petitioner from the named respondent to another state official or agency. See McGee v. Johnson, 161 Or. App. 384, 984 P.2d 341 (1999).

Because it is unclear if this case is moot, I would remand the cause to the district court with directions to determine whether Davis has been released or has only been transferred to the custody of another state official or agency. See 13A Charles Alan Wright et al., Federal Practice and Procedure § 3533.10 at 440 (1984) (“[i]f the appellate court is unsure of the facts, it *238is common to remand for consideration of mootness by the lower courts”).

Gerrard, J., joins in this dissent.

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