Haynes v. Bd. of Parole & Post-Prison Supervision

• Decision Date: 05 October 2017
• Docket Number: SC S064442.
• Citation: 403 P.3d 394,362 Or. 15
• Parties: Michael R. HAYNES, Petitioner on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review.
• Court: Oregon Supreme Court

362 Or. 15

403 P.3d 394

Michael R. HAYNES, Petitioner on Review,

v.BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review.

SC S064442.

Supreme Court of Oregon.

Argued and submitted May 12, 2017.

October 5, 2017

Marc D. Brown, Chief Deputy Defender, Salem, argued the cause and filed the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Ryan Kahn, Assistant Attorney General, Salem, argued the cause and filed the brief for the respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General and Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, Flynn, and Duncan, Justices.^**

FLYNN, J.

Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision that denied his petition to change the terms of his life imprisonment to allow for the possibility of release. The Court of Appeals dismissed the case because petitioner's appointed counsel missed the deadline for filing a petition for judicial review in that court. We allowed review to consider whether petitioner, who is statutorily entitled to be assisted by counsel on review, should or must be allowed to proceed with his untimely petition for review when the late filing was entirely due to neglect by appointed counsel.

Petitioner argues that his statutory right to counsel must be construed as a right to adequate counsel, that he was denied that statutory right when his counsel missed the filing deadline for judicial review, and that this court should address the statutory violation by excusing the untimely filing. Petitioner also contends that a denial of judicial review under these circumstances violates his right to due process under the Fourteenth Amendment of the United States Constitution and that this court must allow a delayed appeal to vindicate petitioner's due process rights.

We conclude that petitioner is not entitled to the relief that he seeks. Jurisdiction for judicial review of a board order is a creation of statute, ORS 144.335, and that jurisdiction depends upon filing a petition for review within the time period provided in the statute. Even if petitioner is correct that he has a statutory right to adequatecounsel on review which has been denied because of appellate counsel's late filing, he is not correct that the appropriate remedy is to excuse the jurisdictional requirement of a timely petition. We also conclude that the federal constitution does not dictate a different result, because the nature of the administrative judicial review process is such that state law is the only source of both petitioner's right to judicial review and his right to the assistance of counsel on review.

I. FACTS AND PROCEDURAL BACKGROUND

Petitioner is serving a sentence of life imprisonment without possibility of parole or release for a 1986 aggravated murder. At petitioner's request, the board held a hearing to determine if petitioner "is likely to be rehabilitated within a reasonable period of time" and, if so, to change the terms of his confinement to "life imprisonment with the possibility of parole, or work release." See ORS 163.105 (1985).¹ The board found that petitioner failed to prove that he is likely to be rehabilitated within a reasonable time, petitioner sought administrative review, and the board issued a final order adhering to its decision.

Upon learning that the board had issued its final order, petitioner contacted the Office of Public Defense Services (OPDS) to pursue judicial review on his behalf.² Although OPDS assured petitioner that it would file a petition for review, due to a calendaring error, the lawyer assigned to petitioner's case filed the petition six days after the statutory deadline. The Court of Appeals, on its own motion, dismissed review based on the untimely filing.

Petitioner filed a motion for reconsideration in which he argued that the untimely filing should be excused, given that it was entirely the fault of appointed counsel. The Court of Appeals denied reconsideration, and this court allowed review.

II. DISCUSSION

Petitioner's arguments rest on the initial premise that his statutory right to the assistance of counsel to pursue judicial review of the board's order is a right to adequateassistance of counsel. To vindicate that right, petitioner argues, the court should allow additional time to file a petition for review when appointed counsel fails to timely file a petition. According to petitioner, the court has authorized similar relief to address inadequate representation in other contexts and should do so in the "murder-review" context as well.³ Petitioner also argues that he is entitled to that remedy as a matter of the due process guaranteed by the Fourteenth Amendment to the United States Constitution.⁴

A. The Murder Review Statutory Framework

As context for petitioner's arguments, we begin with a brief overview of the murder-review process. At the time petitioner committed his crime, ORS 163.105(1) (1985) provided that a person convicted of aggravated murder, if not sentenced to death, shall be sentenced to "life imprisonment" and ordered "confined for a minimum of 30 years without the possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp." After 20 years, however, the prisoner becomes eligible for a "murder-review" hearing, at which the board considers whether to change the terms of the prisoner's confinement to "life imprisonment with the possibility of parole or work release." ORS 163.105(2), (3) (1985).⁵

If, after such hearing, the board denies a prisoner's petition to change the terms of confinement, the prisoner has a right to seek judicial review of the board's order. ORS 144.335(1). One of the conditions for seeking judicial review is that the petition for review of the board's order "shall" be filed "within 60 days after the date the board mails the order." ORS 144.335(4). Finally, and at the core of petitioner's argument, "the Public Defense Services Commission shall provide for the representation of financially eligible persons petitioning for review" of the board's order. ORS 144.337(1).

B. The Nature of the Right to Counsel on Review

According to petitioner, that statutory right to representation by counsel "implicitly requires * * * the provision of adequatecounsel." (Emphasis in original.) For that premise, petitioner relies primarily on State ex rel. Juv. Dept. v. Geist, 310 Or. 176, 796 P.2d 1193 (1990), in which we held that the statutory right to counsel applicable in a termination of parental rights case is a right to "adequate" counsel. In Geist, the mother whose parental rights were at stake was provided counsel under a statute that guaranteed indigent parents in termination cases a right to "an attorney to represent them at state expense." Id.at 180 n. 3, 796 P.2d 1193. The court-appointed lawyer who represented the mother at the termination hearing had been recently removed from a list of lawyers who were qualified to represent clients in such proceedings, and the lawyer moved to withdraw. The court denied the lawyer's motion to withdraw and ultimately terminated the mother's parental rights.

On appeal, the mother challenged the termination judgment on the ground that she had been denied adequate representation of counsel. The Court of Appeals "assumed that the legislature intended a statutory right to counsel to include a right to adequate counsel," and this court expressly agreed with that premise. Id.at 185, 796 P.2d 1193. We also concluded that, "[a]bsent an express legislative procedure for vindicating the statutory right to adequate counsel, this court may fashion an appropriate procedure." Id.

Generalizing from the holding in Geist, petitioner argues that any statute that grants a right to state-provided counsel implicitly grants a right to adequate counsel, because granting a right to counsel would be a pointless legislative exercise if the right could be satisfied by counsel who is not adequate to fill that role. As intuitively sound as that proposition may seem in the abstract, however, our more recent decision in Dept. of Human Services v. T. L., 358 Or. 679, 687-693, 369 P.3d 1159 (2016), suggests that we will not simply assume that every statutory right to counsel necessarily grants a right to adequatecounsel. In T. L., although the parties and the Court of Appeals had accepted that the rationale of Geist extends to counsel appointed to represent parents in dependency proceedings other than termination, we undertook to "independently address" that proposition. Id.at 687, 369 P.3d 1159. In doing so, we focused on factors that the court uses to determine whether the "nature of particular juvenile proceedings and due process require the appointment of counsel." Id.at 691-93, 369 P.3d 1159. Considering those factors in the particular context of a proceeding to change a child's permanency plan away from reunification with the parents, we concluded, based on "the complex nature of the legal and factual issues, and the gravity of the interests at stake," that appointed counsel in such proceedings "must be adequate." Id. at 693, 369 P.3d 1159.

Moreover, as Geist illustrates, even when the court accepts the proposition that the legislature granted a right to adequatecounsel, the more pertinent inquiry is "what standard of adequacy" should apply. 310 Or. at 187, 796 P.2d 1193. In Geist, the court rejected the mother's argument that the court should evaluate her attorney's performance under the standard of adequate representation that the court employs in criminal cases to protect a criminal defendant's constitutional right to counsel. Id.at 187, 796 P.2d 1193. Instead, the court concluded that the flexible standard of "fundamental fairness" is the proper standard for deciding whether parents have received adequate representation in a termination case.⁶...