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Halladay v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

March 20, 2019

JEFFREY D. HALLADAY, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Submitted February 1, 2019

          Board of Parole and Post-Prison Supervision

          Jeffrey D. Halladay filed the brief pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, filed the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

          LAGESEN, P. J.

         OAR 255-060-0012(2) and (3) held invalid.

         Case Summary:

         In this administrative rule review proceeding under ORS 183.400, petitioner contends that OAR 255-060-0012(2) and (3), governing the use of psychological and psychiatric reports by the Board of Parole and Post-Prison Supervision in determining whether to affirm or defer an inmate's parole release date, are invalid on their face. Petitioner argues that section (2) is contrary to ORS 144.125 and section (3) offends the state and federal constitutional prohibitions on ex post facto laws.

         Held:

         OAR 255-060-0012(2) and (3) are invalid. Section (2) purports to authorize parole postponement for a ground not specified in ORS 144.125 and is invalid for that reason. Section (3) is invalid because, by its terms, it applies to a class of offenders to which it cannot constitutionally apply under Peek v. Thompson, 160 Or.App. 260, 980 P.2d 178, rev dismissed, 329 Or. 553 (1999).

         [296 Or.App. 641] LAGESEN, P. J.

         At issue in this administrative rule review proceeding under ORS 183.400 are sections (2) and (3) of OAR 255-060-0012. That rule governs the use of psychological and psychiatric reports by the Board of Parole and Post-Prison Supervision in determining whether to affirm or defer an inmate's parole release date. Petitioner contends that the challenged provisions are invalid on their face, arguing that section (2) is contrary to ORS 144.125, and that section (3) offends the state and federal constitutional prohibitions on ex post facto laws. We agree and, for that reason, hold OAR 255-060-0012(2) and (3) invalid.

         We first consider OAR 255-060-0012(2), which allows the board to summarily postpone an offender's parole release date for the purpose of obtaining a ...


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