Hamel v. Johnson

• Decision Date: 20 September 2000
• Citation: Hamel v. Johnson, 173 Or App 448, 25 P3d 314 (Or. App. 2000)
• Parties: George F. HAMEL, Appellant, v. Dan JOHNSON, Superintendent, Snake River Correctional Institution, Respondent.
• Court: Oregon Court of Appeals

25 P.3d 314

173 Or. App. 448

George F. HAMEL, Appellant, v. Dan JOHNSON, Superintendent, Snake River Correctional Institution, Respondent.

97-05-28838M; A100349

Court of Appeals of Oregon, En Banc.

Petition for reconsideration filed September 20, 2000.

Resubmitted February 7, 2001.

April 25, 2001.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and David J. Amesbury, Assistant Attorney General, for petition.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, and BREWER, Judges.

On Respondent's petition for reconsideration filed September 20, 2000.

Resubmitted en banc February 7, 2001.

DEITS, C.J.

Defendant, Superintendent of Snake River Correctional Institution, petitions for reconsideration of our opinion in Hamel v. Johnson, 169 Or.App. 216, 9 P.3d 719 (2000). Defendant asserts that we erroneously framed the issue as whether "plaintiff satisfied his burden of proving by a preponderance of the evidence that the order * * * postponing his May 27, 1997, release date was not supported by substantial evidence[.]" Id. at 221, 9 P.3d 719. Defendant argues that "substantial evidence" is not the proper standard by which the trial court was required to evaluate plaintiff's claim. For the reasons explained below, we agree with defendant that we erred in our previous opinion. Accordingly, we allow reconsideration, withdraw our former opinion and disposition, and affirm the decision of the trial court.

In this case, plaintiff petitioned for a writ of habeas corpus, asserting that he was entitled to release on parole from the institution in which he was incarcerated. Plaintiff contended that the Board erroneously postponed his parole release from 1997 to 1999 based on its finding that plaintiff suffered a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community[.]" Hamel, 169 Or.App. at 219, 9 P.3d 719 (quoting ORS 144.125(3) (1991)). Plaintiff made several arguments, developed in his pleadings and in his memorandum of law in support of his petition. First, he alleged that the Board purported to apply the law in effect at the time of his crimes, but did not, in fact, do so, thus violating the ex post facto provisions of the state and federal constitutions. Second, plaintiff asserted that the Board lacked authority to deny him parole because no psychological report diagnosed him with a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. Plaintiff acknowledged that the Board had discretionary power to determine whether an inmate had a present severe emotional disturbance such as to constitute a danger to the health and safety of the community, but argued that, as a matter of law, that finding must be based solely on a psychological report and that, if a psychological report did not specifically indicate that an inmate suffered from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, then the Board's decision exceeded its discretionary powers. Although plaintiff did not cite specific constitutional authority for that argument, he did cite the case of Anderson v. Alexander, 191 Or. 409, 229 P.2d 633, 191 Or. 409, 230 P.2d 770 (1951), in support of his argument.

The trial court issued a memorandum opinion concluding that the Board applied the law in effect at the time of plaintiff's crimes. The court further stated that ORS 144.125(3) (1991) permitted the Board to reach an independent finding of a severe emotional disturbance constituting a danger to the health or safety of the community by considering information other than the psychiatric or psychological report. The court explicitly rejected plaintiff's argument that the Board could rely only on a psychological report that made a specific diagnosis of "severe emotional disturbance." The court concluded, in light of its interpretation of ORS 144.125(3) (1991), that plaintiff had failed to allege sufficient facts to support his argument that the Board's decision was based on insufficient evidence.

On appeal, plaintiff claimed that "[t]he trial court erred when it found sufficient evidence in the record to support the Board of Parole's finding of present severe emotional disturbance constituting a danger to the community." In response, the state argued first that plaintiff had not sufficiently alleged any challenge to the sufficiency of the evidence to support the Board's decision, and second, that evidence in the record supported the Board's decision, in light of this court's holding in Weidner v. Armenakis, 154 Or.App. 12, 959 P.2d 623, withdrawn by order July 13, 1998, reasoning reaffirmed and readopted in Merrill v. Johnson, 155 Or.App. 295, 964 P.2d 284, rev. den. 328 Or. 40, 977 P.2d 1170 (1998). Neither party made any argument as to whether "substantial evidence" supported the Board's decision. Nonetheless, our opinion indicated that the trial court erred in dismissing plaintiff's petition on the ground that the Board's decision "was not supported by substantial evidence[.]" Hamel, 169 Or.App. at 221, 9 P.3d 719.

Defendant urges us to reconsider our decision on the ground that our sua sponte introduction of a "substantial evidence" standard into the legal analysis was erroneous. Defendant argues that, to the extent that sufficiency of the evidence arguments are cognizable in habeas corpus proceedings, the proper standard is whether there is "some evidence" or "any evidence" to support the Board's decision. Defendant points out that there is significant difference between those standards:

"Constitutional due process is satisfied by an even lower standard [than `substantial evidence' as defined in ORS 183.482], viz., if there is any evidence in the record that could support the conclusion reached by a disciplinary board. See Superintendent v. Hill, 472 U.S. 445, 454-56, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)." Snow v. OSP, 308 Or. 259, 268, 780 P.2d 215 (1989).

We agree with defendant that the standards are not interchangeable. The question is which, if either, is the applicable standard here.

Before 1993, orders of the Board of Parole and Post Prison Supervision concerning parole release dates were subject to direct review in this court in essentially the same manner as were many administrative decisions; this court could set aside or remand such an order upon a finding that the order was "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." ORS 183.482(8).¹ See, e.g., Raridon v. Board of Parole, 104 Or.App. 307, 311, 801 P.2d 842 (1990) (conducting "substantial evidence" review of Board order concerning parole release date). However, in 1993, the legislature specifically determined that review of this type of decision under the procedures for review of Board administrative orders was not appropriate, and it enacted restrictions on direct appellate review of orders that postpone parole release based on a psychological diagnosis under ORS 144.125(3) (1991). See generally Shelby v. Board of Parole, 140 Or.App. 102, 105-08, 915 P.2d 414, rev. den. 324 Or. 18, 920 P.2d 551 (1996) (describing history of legislation and holding that legislation barred direct review of such Board orders, but not other forms of review such as special writ proceedings).

Following that change in the law, Board orders deferring parole release dates based on psychological evaluations were challenged by way of petitions for writs of habeas corpus. In Meadows v. Schiedler, 143 Or.App. 213, 924 P.2d 314 (1996), a habeas corpus plaintiff made an ex post facto challenge to the Board's application of a version of ORS 144.125 that was not in effect at the time of the inmate's crime. In Meadows, the trial court dismissed the action sua sponte. We held that the trial court had erred because plaintiff had stated a cognizable claim, and we remanded to give plaintiff an opportunity to prove his claim that the Board had applied the wrong version of the statute. Id. at 220, 924 P.2d 314. We went on to note that the plaintiff was alleging that the challenged order was "not supported by substantial evidence." Regarding that claim, we stated:

"That allegation, in essence, asks the trial court itself to assess the record and evidence in the light of the former statutory standard and to order release. Habeas corpus is available to challenge the action of an administrative body if it acts beyond its statutory powers. Anderson v. Alexander, 191 Or[.] 409, 431, 229 P.2d 633, , 230 P.2d 770 (1951). The action challenged by plaintiff here is the Board's application of the 1993 version of ORS 144.125(3). Whether the facts support a postponement under the former version of ORS 144.125(3) is a determination for the Board, not the habeas corpus court.6

"6. In so stating, we do not mean to imply that habeas corpus is not available to challenge a release decision by the Board that rests on legally insufficient evidence. Rather, it is not the habeas corpus court's function to engage in either an initial or subsequent weighing of evidence." Id. at 220-21, 924 P.2d 314 (emphasis in original).

Under Meadows, it is clear that the habeas corpus court is not to assess whether the Board's order was supported by substantial evidence by weighing or reweighing the evidence before the Board. Rather, the habeas corpus court is to determine whether, based on the evidence before it, the Board's decision rests on legally insufficient evidence. As we recognized in Meadows, however, "legally insufficient evidence" means something different in the context of habeas corpus than it does in APA-style administrative review for substantial evidence. In Anderson, 191 Or. at 431,229 P.2d 633, cited by this court in Meadows, the court stated, in the context of review of...