Ex parte Anderson

• Decision Date: 21 March 1951
• Citation: 191 Or. 409,229 P.2d 633
• Parties: , 29 A.L.R.2d 1051 Ex parte ANDERSON. ANDERSON v. ALEXANDER.
• Court: Oregon Supreme Court

Page 633

229 P.2d 633

191 Or. 409, 29 A.L.R.2d 1051

Ex parte ANDERSON ANDERSON v. ALEXANDER.

Supreme Court of Oregon, En Banc.

March 21, 1951.

Bruce W. Williams and Joesph P. Meier, of Salem, filed a brief for appellant.

George Neuner, Atty. Gen. and Robert R. Carney, Asst. Atty. Gen., filed a brief for respondent.

BRAND, Chief Justice.

Dolores D. Anderson filed in the circuit court of the State of Oregon for Marion County a petition for a writ of habeas corpus on behalf of her husband, James Quentin Anderson, who is confined in the penitentiary. Pursuant to the petition, the circuit court ordered the issuance of the writ directed to George Alexander, the warden of the penitentiary. No writ appears in the record. However, we may presume that a writ was issued for the respondent Alexander filed his return wherein he stated that the writ had been directed to him by order of the court. The petitioner filed a reply to the return, against which a demurrer was filed but upon which no order was entered. The case was tried upon the issues made by the pleadings. The evidence consisted of six exhibits introduced by the respondent, together with a stipulation of facts. No other testimony or evidence was offered by either party and the case as presented here and in the circuit court raises questions of law only. The trial court denied the application for the writ and remanded James Quentin Anderson to the custody of the warden of the penitentiary. The petitioner appeals.

The return of the warden of the penitentiary alleges the following facts which are expressly admitted by the replication of the petitioner: James Quentin Anderson was duly convicted of the crime of manslaughter and sentenced by the circuit court of Klamath County to serve an indeterminate but maximum term of ten years in the penitentiary. He entered the penitentiary on April 23, 1941, by virtue of said sentence. On the same day Anderson escaped from the penitentiary but was apprehended and returned thereto and in connection with said escape he was indicted and pleaded guilty to the charge of taking and using an automobile without authority and was sentenced to one year in the penitentiary, said sentence to commence at the expiration of the term limited by the original sentence.

On December 22, 1945, Anderson was paroled from the state penitentiary by the order of the State Board of Parole and Probation. The conditions of the parole were stated in the instrument and were accepted by Anderson. On July 22, 1947, the State Board of Parole and Probation issued an order revoking the parole and directing the return of Anderson to the penitentiary. On July 31, 1948, the State Board of Parole and Probation issued its order whereby it authorized the superintendent of the Oregon State Penitentiary to allow Anderson 'to go upon parole outside the penitentiary buildings and enclosure, subject to the following conditions: * * *'. Among the eighteen conditions upon which the parole was granted were the following:

'1. That this parole is granted to and accepted by the parolee subject to all its terms and conditions and with the understanding that the State Board of Parole and Probation may at any time, in case of violation of the terms of the parole, cause the parolee to be returned to the said institution to serve the full maximum sentence or any part thereof.

'2. That the parolee shall be under the legal custody and control of the Director of Parole and Probation of the State. * * *'

Other conditions imposed upon the parolee the duty of making monthly reports, conducting himself as a law-abiding citizen, abstaining from the use of intoxicants and the like. At the bottom of the order of parole is the following statement signed 'James Q. Anderson': 'I have read, or have had read to me, and fully understand and accept the conditions, regulations and restrictions under which I am being released on parole. I will abide by and conform to them strictly, and fully understand that my failure to do so may result in revocation of my parole.'

The parole became effective on August 4, 1948. According to the undisputed evidence, the State Board of Parole and Probation on September 13, 1949, issued a 'Revocation of Parole' which reads in part as follows: 'Whereas, the said James Quentin Anderson has violated the terms of his parole and the State Board of Parole and Probation, exercising its discretion, deems it for the best interests of society and the parolee that he be returned to the custody of the Warden of the Oregon State Penitentiary, there to remain not to exceed his maximum sentence or until the further order of the Board.'

Pursuant to the further provisions of the order, Anderson was returned to the penitentiary.

At the trial in the circuit court in the instant proceeding the following additional facts were stipulated:

'I

'That James Quentin Anderson while on parole from the Oregon State Penitentiary was on or about September 9, 1949, apprehended by certain Oregon state police officers and lodged in custody in the Klamath county jail in Klamath Falls, Oregon, pursuant to the authority of the Oregon State Board of Parole and Probation; and

* * *

* * *

'III

'That there was no notice or opportunity to be heard granted to James Quentin Anderson before the Oregon State Board of Parole and Probation as to why his parole should or should not be revoked, and that he was not at any time heard before any judicial officer of the State of Oregon on this question; and

'IV

'That James Quentin Anderson was soon thereafter, namely on September 15, 1949, returned to the confines of the Oregon State Penitentiary and is still so confined.'

From the brief of the petitioner we read the following: 'The sole question to be determined upon this appeal is whether the measure of liberty granted a convict by his parole carries with it the constitutional guaranty against the deprivation of the same without due process of law, an essential element of which is an opportunity to be heard.'

The respondent more accurately states the question as: '* * * whether or not a person under parole from the Oregon State Penitentiary has either a statutory or constitutional right to a hearing before the Board of Parole and Probation prior to the revocation of his parole.'

'The state board of parole and probation shall be charged with the duty of supervising all persons placed on probation or released from the state penitentiary on parole or conditional pardon and all persons released on parole, probation or conditional pardon from other states and residing in the state of Oregon; of making such investigations as may be necessary; of determining whether violation of conditions of parole, conditional pardon or probation exists in specific cases, and of preparing a case history record of the prisoners to determine if they should be paroled or should be released on probation.' O.C.L.A. § 26-2304.

O.C.L.A. § 26-2305, as amended by Laws 1949, chapter 569, provides in part as follows: 'The state board of parole and probation shall have power to establish rules and regulations under which any prisoner * * * who now is or hereafter may be confined in * * * the state penitentiary, may be allowed to go upon parole outside the institution, but to remain while on parole in the legal custody and under the control of the board and subject to being taken back into confinement at the discretion of the board * * *.'

O.C.L.A. § 26-2306, as amended by chapter 386, Laws 1941, requires various officers to furnish to the Board of Parole and Probation information concerning the convicted person.

O.C.L.A. § 26-2307 requires the Board from time to time to consider all information regarding the convicted person. That section provides further: '* * * Good conduct and efficient performance of duties assigned in the state penitentiary will be factors considered by the board in granting parole. However, no prisoner shall be paroled unless it is the opinion of the board that, within a reasonable probability, such prisoner will, after parole, remain outside the institution without violating the law and that such release is not incompatible with the welfare of society.'

O.C.L.A. § 26-2308 is as follows: 'The state board of parole and probation, in releasing a person on parole, shall specify in writing the conditions of his parole, and a copy of such conditions shall be given to the person paroled. Whenever the board finds that a prisoner has violated the conditions of his conditional pardon, parole or probation, or whenever the board has been advised in writing by the governor that the said prisoner has violated the terms of a conditional pardon, the written order of the board shall be sufficient warrant for any law enforcement officer to take into custody such person, and it hereby is made the duty of all sheriffs, police, constables, parole and probation officers, prison officials and other peace officers to execute such order. From and after the cancellation or revocation of the parole, probation or conditional pardon of any convicted person, and until his return to custody, he shall be considered a fugitive from justice. Such prisoner so recommitted must serve out his sentence, and the time during which such prisoner was out on parole shall not be deemed a part thereof, but nothing herein contained shall prevent the state board of parole and probation from again paroling such prisoner at its discretion.'

O.C.L.A. § 26-2302 creates the office of Director of Parole and Probation and provides in part as follows: '* * * He shall have power, in accordance with the rules and regulations or directions of the state board of parole and probation or the governor, as the case may be, to retake and return persons to the institution, whether in or out of the state, whenever they have violated the conditions of their parole, probation or conditional pardon. * * *'

Additional provisions concerning the powers and...