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Jenkins v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

September 5, 2013

Michael W. JENKINS, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

Submitted April 30, 2012.

Page 1116

Peter Gartlan, Chief Defender, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for petitioner.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and NAKAMOTO, Judge.

NAKAMOTO, J.

[258 Or.App. 431] On judicial review of a final order of the Board of Parole and Post-Prison Supervision (the board) postponing his scheduled release date from prison under ORS 144.125(3), petitioner asserts that the order is not supported by substantial evidence and reason. The board contends that the first sentence of ORS 144.335(3), added in 1999, excuses the board from a substantial-reason requirement. We conclude that the board's reading of the statute runs counter to its text, context, and legislative history. As we did in Castro v. Board of Parole, 232 Or.App. 75, 220 P.3d 772 (2009), we hold that

Page 1117

ORS 144.335(3) requires the board to provide an inmate with some explanation of the rationale for concluding that the inmate's parole date should be postponed. Thus, we reverse the board's order for lack of substantial reason and remand.

After holding an exit interview with petitioner, the board issued an order postponing petitioner's scheduled parole release date for 24 months pursuant to ORS 144.125(3)(a). That statute authorizes the board to defer parole release dates for inmates who suffer from a present severe emotional disturbance (PSED).[1] The board's order states, in pertinent part:

" The record indicates that the offender committed his/her crime(s) prior to/on or after 05/19/1988.
" The board has received a psychological evaluation on inmate dated 06/30/2008.
" Based on the doctor's report and diagnosis, coupled with all the information that the board is considering, the board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to [258 Or.App. 432] the health or safety of the community. The board has considered this matter under the laws in effect at the time of the commitment offense(s) and all other applicable rules and laws.
" The board defers release date for 24 months for a projected parole release date of 03/05/2011, for a total of 378 months. A review will be scheduled in 09/2010 with a current psychological evaluation."
(Capitalization altered.)

On judicial review, petitioner contends that the board was required, but failed, to explain its reasoning as to its two conclusions, namely, (1) that he suffered from a PSED that made him a danger to the community and (2) that his scheduled release date should be deferred. He first asserts that the order's deficiency violates the requirement in ORS 144.135, which requires the board to " state in writing the detailed bases of its decisions" regarding parole release dates.[2] Second, he relies on a subsection of the Oregon Administrative Procedures Act (APA), ORS 183.482(8)(c), made applicable to our review of board orders under ORS 144.335(3), that a reviewing court " shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record." Third, he argues that we must reverse based on our decision in Castro, in which we held that the board's orders must demonstrate substantial reason.

The board contends that Castro is not controlling because in that case we did not address the 1999 amendment to ORS 144.335(3) that, in its view, exempts the board from providing substantial reason for its decisions. That amendment resulted in what is now the provision's first sentence: " The order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it appears that the board acted within the scope of the board's authority." Given the state's contention that Castro does not control this case, we begin with a review of our decision in Castro.

[258 Or.App. 433] As in this case, the petitioner in Castro challenged the board's order postponing his parole release date on judicial review by arguing that the order was not supported by substantial evidence and reason. 232 Or.App. at 77, 220 P.3d 772. We held that ORS 144.335(3) requires review for substantial evidence and reason. Id. at 83, 220 P.3d 772. We noted that the second sentence of the statute plainly states that " this court ‘ may

Page 1118

affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8).’ " Id. at 82, 220 P.3d 772. And, we noted that ORS 183.482(8)(c), in turn, provides that:

" The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding."

Id. at 82-83, 220 P.3d 772 (internal quotation marks omitted). We stated that ORS 183.482(8)(c) requires " [s]ubstantial evidence review" and " requires that the board provide ‘ some kind of an explanation connecting the facts of the case (which would include the facts found, if any) and the result reached.’ " 232 Or.App. at 83, 220 P.3d 772 (quoting Martin v. Board of Parole, 327 Or. 147, 157, 957 P.2d 1210 (1998)). The Martin case on which we relied involved a challenge to the board's order imposing a special condition of post-prison supervision, but construed a statutory requirement that, like the second sentence of ORS 144.335(3), provided for court review of the order " on the same basis as provided in ORS 183.482(8)." Martin, 327 Or. at 149, 155, 957 P.2d 1210 (internal quotation marks omitted).

We reversed and remanded in Castro, agreeing with the petitioner that the board's order stated a mere conclusion and " that this case falls into the category that, under Armstrong [ v. Asten-Hill Co., 90 Or.App. 200, 752 P.2d 312 (1988) ], requires the board to demonstrate its reasoning." Id. at 85, 752 P.2d 312. We explained that the relevant portion of the board's order

" is an announcement, not an explanation. It gives us nothing to judicially review. Our duty is to evaluate the board's logic, not to supply it. Drew, 322 Or. at 499-500 [909 P.2d 1211] (review for substantial reason is based on the order itself, not our independent review of the record). We must therefore reverse and remand."

[258 Or.App. 434] Id. at 85-86, 752 P.2d 312. Thus, Castro requires that we review the board's orders for substantial evidence and substantial reason.

We disagree with the board that ORS 144.335(3) must be read to exempt the board's orders from judicial scrutiny for substantial reason in light of the 1999 amendment and that we must overrule Castro because we did not consider the effect of the 1999 amendment in our analysis of the statutory requirements for board orders. Both the text and context of ORS 144.335(3) compel us to hold the board to the APA's requirements of substantial evidence and reason for orders pursuant to ORS 183.482(8)(c), and our reading of the text is supported by the legislative history. Contrary to the board's argument, we conclude that Martin and Castro, as well as Gordon v. Board of Parole, 343 Or. 618, 175 P.3d 461 (2007), control in this case.

To " pursue the intention of the legislature if possible," ORS 174.020(1)(a), we begin with the text and context of ORS 144.335(3) and then examine the legislative history. State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009). The full text of ORS 144.335(3) states:

" The order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it appears that the board acted within the scope of the board's authority. The Court of Appeals may affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8). The filing of the petition shall not stay the board's order, but the board may do so, or the court may order a stay upon application on such terms as it deems proper."

The text of ORS 144.335(3) contradicts the board's position. The second sentence of ORS 144.335(3) plainly states that our court " may affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8) . " (Emphasis added.) As we recognized in Castro, given that second sentence, ORS 144.335(3) requires us to review the board's order for substantial evidence and reason— requirements under ORS 183.482(8). 232 Or.App. at 82-83, 220 P.3d 772; see also Martin, 327 Or. at 157, 957 P.2d 1210 (" [T]he requirement of some kind of an explanation connecting the facts of the case (which [258 Or.App. 435] would include the facts found, if

Page 1119

any) and the result reached by an agency is a requirement of ORS 183.482(8), as that section has been construed authoritatively by this court." (Emphasis added.)).

Our holding in Castro is consistent with the Supreme Court's construction of ORS 144.335(3). In its relatively recent 2007 decision in Gordon, a case involving the board's postponement of another inmate's parole date on the basis of severe emotional disturbance, the Supreme Court explained that the " standards of review set out in ORS 183.482(8) reflect a legislative policy, embodied in the APA, that decisions by administrative agencies be rational, principled, and fair, rather than ad hoc and arbitrary." 343 Or. at 633, 175 P.3d 461. The court therefore reviewed the board's order " to determine if the board's findings, reasoning, and conclusions demonstrate that it acted in a rational, fair, and principled manner in deciding to defer petitioner's parole release." Id. at 634, 175 P.3d 461.

Contrary to the board's reading, the first sentence of ORS 144.335(3) does not necessarily contradict the text of the second sentence. The first sentence states that an " order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it appears that the board acted within the scope of the board's authority." The sentence appears directed to the sufficiency of an order for judicial review, i.e., the elements of the order. The text of the first sentence appears to echo the Supreme Court's emphasis in Sunnyside Neighborhood v. Clackamas Co. ...


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