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Rivas v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

July 8, 2015

PEPE GLENN RIVAS, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent

Submitted February 6, 2015

Board of Parole and Post-Prison Supervision.

OAR 255-030-0013 and Exhibit NOR-1 held valid.

Pepe Glen Rivas filed the briefs Pro se.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

[272 Or.App. 249] EGAN, Judge

Petitioner, a prisoner at Oregon State Correctional Institution, challenges as unconstitutional " Exhibit NOR-1," [1] which is a notice of rights form that is part of the packet that the Board of Parole and Post-Prison Supervision provides to prisoners before conducting a parole-exit interview, as well as OAR 255-030-0013(1), which requires the board to provide Exhibit NOR-1 to prisoners.

Page 84

OAR 255-030-0013(1) (" The inmate shall receive a copy of the Board Review Packet, including the notice of rights (Exhibit NOR-1), at least 14 days prior to the [prison-term] hearing." ); OAR 255-060-0006(2) (" The procedures for records, disclosure and notice outlined in Division 15 and 30 shall govern exit interviews." ). Petitioner asserts that the part of Exhibit NOR-1 that provides that a prisoner " may not call witnesses or cross-examine anyone who provided information to the Board" [2] violates due process when the board postpones parole release under ORS 144.125(3)(a).[3] We conclude that [272 Or.App. 250] the challenged portion of Exhibit NOR-1 does not violate due process and, thus, it and OAR 255-030-0013, which incorporates Exhibit NOR-1, are valid.

Our review in a rule challenge brought under ORS 183.400 is limited to an examination of " [t]he rule under review," " [t]he statutory provisions authorizing the rule," and " [c]opies of all documents necessary to demonstrate compliance with applicable rulemaking procedures." ORS 183.400(3). Accordingly, we will not consider the extra-record documents that petitioner has provided in an appendix to his opening brief. Wolf v. Oregon Lottery Commission, 344 Or. 345, 355, 182 P.3d 180 (2008). We may declare a rule invalid only if we conclude that the rule violates constitutional provisions, exceeds the agency's statutory authority, or was adopted without complying with rulemaking procedures. ORS 183.400(4). Petitioner proceeds only on due process grounds under the Fourteenth Amendment to the United States Constitution.[4]

" Procedural due process imposes constraints on governmental decisions that deprive individuals of constitutionally protected liberty or property interests." Alexander v. Board of Parole, 205 Or.App. 443, 451, 134 P.3d 1055, rev den, 341 Or. 449, 143 P.3d 772 (2006). In analyzing a due process claim, we must confront two issues: " The first issue is whether the state has deprived a person of a liberty or property interest within the meaning of the Due Process Clause. If it has, the second is what process is due." Stogsdill v. Board of Parole, 342 Or. 332, 336, 154 P.3d 91 (2007) (citing Wilkinson v. Austin, 545 U.S. 209, 224, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)). With regard to the first inquiry, the Oregon Supreme Court in Stogsdill determined that the Oregon statutes put at issue by petitioner's challenge here--ORS 144.120 and ORS 144.125--create a protected liberty interest in early release [272 Or.App. 251] from prison that the state may not deny without due process. Id. at 337. Thus, in this case, we address only the second inquiry--what process is due.

Under ORS 144.125(1), the board may conduct an exit interview with a prisoner in anticipation of ...


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