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Penn v. Board of Parole and Post-Prison Supervision

Supreme Court of Oregon, En Banc

October 24, 2019

PRENTICE PENN, Petitioner on Review,

          On review from the Court of Appeals. S.C. S065950 [*]

          Argued and ubmitted March 4, 2019, at Lewis & Clark Law School, Portland, Oregon.

          Anna Belais, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

          Christopher Page, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         [365 Or. 608] Case Summary:

         When petitioner was released from prison to post-prison supervision, the Board of Parole and Post-Prison Supervision included a special condition in its supervision order requiring that petitioner not enter into or participate in any intimate relationship or encounters with any person without prior written permission from his supervising officer. Petitioner requested review of the special condition by the board, arguing that it was unconstitutionally vague and over broad and that the board lacked authority under the relevant statute, ORS 144.102(4)(a), to impose it. After those arguments were rejected by both the board and the Court of Appeals, petitioner sought and obtained judicial review by the Oregon Supreme Court. While that review was still pending, petitioner was released from post-prison supervision, and the board moved to dismiss the review as moot. Petitioner argued, however, that, although moot, his case was reviewable under ORS 14.175, because he was challenging an act of a public body that is capable of repetition but likely to evade judicial review in the future. The court took the reviewability issue under advisement. Held: Petitioner's challenge to the special condition was reviewable under ORS 14.175, and the court would exercise its discretion under that statute to decide it despite its mootness. On the merits, the board acted outside of its statutory authority under ORS 144.102(4)(a) by imposing the special condition on petitioner.

         The decision of the Court of Appeals and the order of the Board of Parole and Post-Prison Supervision are reversed, and the case is remanded to the Board of Parole and Post-Prison Supervision for further proceedings.

         [365 Or. 609]NAKAMOTO, J.

         When petitioner was released from prison to post-prison supervision, the Board of Parole and Post-Prison Supervision included a special condition in its supervision order requiring that petitioner not "enter into or participate in any intimate relationship or intimate encounters with any person (male or female) without the prior written permission" of his supervising officer. On review, petitioner raises two issues: first, whether the board lacked statutory authority to impose the condition and, second, whether the condition is unconstitutional under the Due Process Clause of the Fourteenth Amendment because it is vague or overbroad.

         Preliminarily, reviewability is also at issue. After petitioner filed his opening brief, the board moved to dismiss based on mootness. The board noted that petitioner had completed his term of post-prison supervision and no longer was subject to the challenged condition; therefore, the board argued, a decision would no longer have a practical effect on petitioner's rights and the case should be dismissed. Petitioner opposed dismissal, noting cases in which the board has imposed that special condition on other people under post-prison supervision, in accordance with its decision at a 2012 public meeting that it may impose the condition in the future. We took the motion under advisement.

         We now hold that, although petitioner's appeal is moot, it is one that can and should be decided under ORS 14.175, which provides an exception to the general rule- that moot cases should be dismissed-for cases in which a party alleges that an act, policy, or practice of a public body is contrary to law. On the merits of petitioner's appeal, we hold that the board exceeded the scope of its statutory authority in imposing the special condition on petitioner.

         I. BACKGROUND

         The facts that are relevant to our review are not in dispute and are taken from the board's final order. In 2010, petitioner was charged with crimes after he violently assaulted and threatened a woman he had been dating, using weapons, to compel her to perform a sex act. The incident was just one of several similar incidents that had [365 Or. 610] occurred during petitioner's longstanding relationship with her. Petitioner ultimately pleaded no contest to two of the charges-attempted first-degree kidnapping constituting domestic violence and attempted second-degree assault constituting domestic violence. The trial court entered a judgment of conviction on those charges and sentenced petitioner to 84 months in prison, to be followed by 36 months of post-prison supervision.

         Upon his release from prison, petitioner received an order listing the conditions of his post-prison supervision, as required by ORS 144.102(1). Although the board ultimately was responsible for setting the conditions of petitioner's post-prison supervision, they were the product of a statutorily required process that began with the Department of Corrections. Under ORS 144.096(1)(a), the department must prepare a proposed release plan for an inmate and submit it to the board. The proposed release plan must include "recommended conditions of post-prison supervision," "[a]ny other conditions and requirements as may be necessary to promote public safety," and "[a]ny conditions necessary to assist the reformation of the inmate." ORS 144.096(3)(b), (d), (f). Then the board must approve the proposed release plan, or a revised version of it, before the inmate's release, ORS 144.096(1)(b), (c), and must provide a copy of the conditions imposed through the release plan to the inmate upon his or her release, ORS 144.102(1).

         The conditions imposed "may" include any of a specified list of general conditions set out in ORS 144.102(2), and for certain sex offenders, specified conditions set out in ORS 144.102(3) and ORS 144.102(4)(b) must be imposed. Additionally, the board is authorized under ORS 144.102 (4)(a) to "establish special conditions that the board * * * considers necessary because of the individual circumstances of the person on post-prison supervision."

         The board-approved supervision conditions in the order that petitioner received included the general conditions set out in ORS 144.102(2) and several special conditions, including the one at issue that regulates petitioner's "intimate" relationships and encounters. With the assistance of legal counsel, petitioner requested review of the [365 Or. 611] order. He argued that that special condition, identified in the order as Supervisory Condition 10 (SC 10), could not lawfully be imposed and should be stricken. Petitioner contended that S.C. 10 was outside the board's statutory grant of discretion, was not supported by substantial evidence in the record, and was "an unconstitutional violation of the right to privacy" and "vague and overbroad."

         In the ensuing administrative review, petitioner submitted an affidavit, written by his fiancee, who was the mother of his two sons, for the board's consideration. In that affidavit, his fiancee averred that petitioner had never assaulted her or their sons and that her relationship with him was based on "clear boundaries" and "appropriate verbal, physical and sexual behavior." She further averred that, if S.C. 10 were to remain in effect, it would prevent her and petitioner from having a healthy and functional marriage and would prevent petitioner from fulfilling his roles as husband and father.

         The board denied the requested relief in a final administrative order. After describing in detail the "vicious assault" petitioner had perpetrated against "a woman you had been dating and with whom you shared an intimate relationship," the board concluded that it was

"in the interest of public safety and your reformation for your supervising officer to monitor any intimate relationships and/or intimate encounters. It was these individual circumstances that led the board to impose [SC 10]."

         The board further noted that the condition was not an absolute prohibition on petitioner engaging in intimate relationships; rather, it allowed petitioner's supervising officer to "monitor and evaluate each situation to determine whether [the] association is appropriate for your rehabilitation and is consistent with public safety." The board's order concluded by advising petitioner that he had exhausted his administrative remedies and could petition the Court of Appeals for judicial review of the order.

         Petitioner timely sought judicial review in the Court of Appeals, raising the same arguments that he had raised before the board. The Court of Appeals affirmed without [365 Or. 612] opinion. Petitioner then petitioned for review in this court, arguing (1) that S.C. 10 was outside the range of discretion delegated to the board by statute and (2) that S.C. 10 is unconstitutionally vague and overbroad. This court allowed the petition.

         Midway through the proceedings before this court, petitioner was discharged from post-prison supervision and filed a notice informing the court of that fact and of his understanding that the discharge likely had rendered his appeal moot. Petitioner suggested, however, that the case could and should be decided without regard to its mootness, as permitted by ORS 14.175. That statute provides that a court may decide a challenge to the lawfulness of an act, policy, or practice of a public body, even one that no longer has a practical effect on the party bringing the challenge, as long as (1) that party had standing to commence the action; (2) the challenged act "is capable of repetition" or the policy or practice continues in effect; and (3) the policy, practice, or similar acts "are likely to evade judicial review in the future."

         The board subsequently moved to dismiss petitioner's appeal. The board argued that its imposition of the challenged condition was not an act that was "capable of repetition" but "likely to evade judicial review" within the meaning of ORS 14.175 and that the appeal did not otherwise meet the prudential requirements for reviewing a moot action. We took the board's motion for dismissal under advisement, to be decided before consideration of the parties' arguments on the merits. We turn to that motion now.


         Petitioner acknowledges, and we agree, that, given that petitioner no longer is subject to the supervisory condition that he challenges, a decision by this court in the matter will not have a practical effect on his rights-in other words, his appeal is moot. See Eastern Oregon Mining Association v. DEQ, 360 Or. 10, 15, 376 P.3d 288 (2016) (case in which a court's decision "no longer will have a practical effect on or concerning the rights of the parties" is moot). However, that does not necessarily mean that the board's motion to dismiss [365 Or. 613] must be granted. At least in cases like the present one, in which the act of a public agency is challenged as contrary to law, this court "may" decide the case even when a decision would have no practical effect on the party who brought it, assuming the requirements set out in ORS 14.175 are satisfied.[1] On the other hand, courts are not required to decide any and every moot case that falls within the terms of ORS 14.175. As this court recognized in Couey v. Atkins, 357 Or. 460, 522, 355 P.3d 866 (2015), insofar as the statute uses the permissive term "may," it "leaves it to the court to determine whether it is appropriate to adjudicate an otherwise moot case under the circumstances of each case."

         At least initially, then, the issue regarding dismissal of petitioner's appeal boils down to two questions: (1) Does the appeal satisfy the requirements of ORS 14.175? (2) If so, should the court exercise its discretion to decide the appeal?[2]We answer both questions in the affirmative and deny the motion.

         A. ORS 14.175

         The text of ORS 14.175 is the necessary starting point for answering the first question. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009) ("text and context remain primary" in construing a statute). The statute, which has remained unchanged since its enactment in 2007, provides:

"In any action in which a party alleges that an act, policy or practice of a public body, as defined in ORS 174.109, or [365 Or. 614] of any officer, employee or agent of a public body as defined in ORS 174.109, is unconstitutional or is otherwise contrary to law, the party may continue to prosecute the action and the court may issue a judgment on the validity of the challenged act, policy or practice even though the specific act, policy or practice giving rise to the action no longer has a practical effect on the party if the court determines that:
"(1) The party had standing to commence the action; "(2) The act challenged by the party is capable of repetition, or the policy or practice challenged by the party continues in effect; and
"(3) The challenged policy or practice, or similar acts, are likely to evade judicial review in the future"

(Emphases added.)

         There is no dispute over the first requirement set out in the statute: When petitioner commenced the present action, he was subject to S.C. 10 and had standing to challenge its lawfulness. Neither is there any argument that the statute's overarching requirement-that the action be one in which "a party alleges that an act, policy or practice of a public body *** is unconstitutional or contrary to law"-is not satisfied.[3] Rather, the dispute centers on the requirements at ORS 14.175(2) and (3) that the challenged act be "capable of repetition" and that "similar acts" likely will "evade judicial review."

         1. Act "capable of repetition"

         The board contends that its "act" of imposing S.C. 10 on petitioner is not "capable of repetition" or "likely to evade [365 Or. 615] judicial review" within the meaning of ORS 14.175(2) and (3). The board argues that, when the legislature enacted ORS 14.175, it "borrowed and codified" the common-law "capable of repetition" doctrine first recognized and developed in federal cases, see Couey, 357 Or at 480 (so stating), and that it is appropriate to rely on federal cases in determining the legislature's intentions with respect to the scope and application of ORS 14.175.

         Under most of the federal cases that define the doctrine, the board observes, an act is deemed to be "capable of repetition" only if there is a "reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). See also Federal Election Com'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 463, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (capable of repetition exception requires reasonable expectation or demonstrated probability that the same controversy will recur involving the same complaining party); Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (same).[4] Furthermore, the board observes, federal courts have not found the required "reasonable expectation that the same complaining party would be subjected to the same action again" when some specified misconduct on the complaining party's part is a necessary precondition for such repetition. See Honig v. Doe, 484 U.S. 305, 319, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ("[F]or purposes of assessing the likelihood that state authorities will reinflict a given injury, we generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury"). See also Murphy, 455 U.S. at 482-83 (in challenge to denial of pre-trial bail, finding insufficient probability that same complaining party would once again be in a position to demand bail); City of [365 Or. 616] Los Angeles v. Lyons, 461 U.S. 95, 105-08, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (no expectation that party seeking injunction against police use of chokeholds would be stopped in the future for a criminal offense and, if stopped, would provoke use of chokehold); O'Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (in challenge claiming discrimination in bond setting and sentencing, court concluded that "attempting to anticipate whether and when these [same] respondents will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture").

         Applying those principles from the federal cases to the present circumstances, the board asserts that any expectation that petitioner himself would again be subjected to a condition like S.C. 10 must rest on a string of assumptions the likes of which the federal courts consider speculative: that petitioner will commit and be convicted of another crime, that he will receive a sentence that includes a period of post-prison supervision, and that the board will use its discretionary authority under ORS 144.102(4)(a) to impose a special condition that is the same or similar to S.C. 10. In such circumstances, the board concludes, there can thus be no "reasonable expectation" that the "same complaining party" will again be subject to the objectionable supervision condition. Thus, the board argues, assuming that the meaning of ORS 14.175 is informed by the federal doctrine thus explicated, the imposition of S.C. 10 as a condition of petitioner's post-prison supervision is not "capable of repetition" in the sense required by ORS 14.175(2).

         Petitioner accepts the board's broader point that, in enacting ORS 14.175, the legislature borrowed the "capable of repetition yet evading review" doctrine. But he argues that that does not resolve precisely which formulation of the doctrine that the legislature intended to adopt. In fact, petitioner observes, the words that the legislature chose in enacting ORS 14.175-the "best evidence" of what the legislature intended, State v. Walker,356 Or. 4, 13, 333 P.3d 316 (2014)-are at odds with the judicial ...

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