Lovelace v. Board of Parole

• Decision Date: 14 August 2002
• Citation: 51 P.3d 1269,183 Or.App. 283
• Parties: Scott A. LOVELACE, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Court: Oregon Court of Appeals

51 P.3d 1269

183 Or.App. 283

Scott A. LOVELACE, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A109609

Court of Appeals of Oregon.

Motion to Dismiss August 17, 2001.

Motion to Dismiss September 20, 2001.

Amended Motion to Dismiss December 19, 2001.

Amended Motion to Dismiss January 17, 2002.

Decided August 14, 2002.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Judy C. Lucas, Assistant Attorney General, for motion.

Scott A. Lovelace, pro se, contra.

Before BREWER, Presiding Judge, and WOLLHEIM and KISTLER, Judges.

On Respondent's Motion to Dismiss August 17, 2001.

Petitioner's Answer and Opposition to Respondent's Motion to Dismiss September 20, 2001.

Respondent's Amended Motion to Dismiss December 19, 2001.

Petitioner's Answer and Opposition to Respondent's Amended Motion to Dismiss January 17, 2002.

BREWER, P.J.

Pursuant to ORS 183.400(1), petitioner filed separate petitions for judicial review of Board of Parole and Post-Prison Supervision rules OAR 255-050-0005(2) and OAR 255-050-0013, which authorize the board to postpone a parole release date if an inmate refuses to undergo a psychiatric evaluation ordered pursuant to ORS 144.223. In this proceeding, petitioner challenges the validity of OAR 255-050-0013.¹ The board filed a motion to dismiss the petition, arguing that— as a matter of statutory standing—petitioner must be adversely affected or aggrieved by the rule in order to challenge it and that he can demonstrate neither status. The board also argued that the petition is not justiciable because the rule has no practical effect on petitioner. In an amended motion to dismiss, the board argued that the petition is not justiciable on the ground that petitioner lacks statutory standing and on additional grounds that do not require discussion. We deny the amended motion to dismiss.

Petitioner was sentenced to a 30-year indeterminate sentence as a dangerous offender under the pre-guidelines matrix system. Petitioner sought and obtained post-conviction relief from that sentence and was resentenced to a 10-year prison term on the underlying conviction. Lovelace v. Zenon, 159 Or.App. 158, 976 P.2d 575 (1999), rev. den. 329 Or. 589, 994 P.3d 130 (2000). To comply with the new sentencing judgment, on July 6, 2001, the board issued an order providing that "[t]he Board converts the parole consideration date to a projected release date of 4/25/2002 following 192 months and will schedule an exit interview hearing with two current psychological evaluations on November 14, 2001." In his response to the board's motion to dismiss, petitioner stated that he did not want to submit to the psychological evaluations but that he had to do so in order to have a chance at release. He submitted to psychological evaluations on August 10, 2001, and September 8, 2001. As a result of those evaluations, the board postponed petitioner's parole release date to April 25, 2004.

Under OAR 255-050-0013, the board may postpone an inmate's parole release date if the inmate refuses to undergo a board-ordered psychiatric or psychological evaluation. OAR 255-050-0013 provides:

"(1) The Board may postpone a parole release date until a specified future date when an inmate has refused to participate in a psychiatric or psychological evaluation, which the [b]oard ordered pursuant to ORS 144.223, prior to the inmate's release on parole.

"(2) When the Board rescinds a parole release date under this section, the Board shall conduct a hearing to postpone the inmate's release date.

"(3) The Board may postpone the parole release date up to two days before the inmate's good time date."²

Petitioner challenges the rule under ORS 183.400(1), which provides that "[t]he validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases." (Emphasis added.) The board first argues that petitioner lacks standing under ORS 183.400 to challenge the rule. The board reasons that, although ORS 183.400(1) provides that "any person" may challenge the validity of an agency rule in this court, the statute circumscribes that apparently broad grant of standing by further providing that review shall take place "in the manner provided for review of orders in contested cases." ORS 183.482(2), which pertains to judicial review of orders in contested cases, requires the petitioner to specify whether he or she "was denied status as a party or is seeking review as a person adversely affected or aggrieved by the agency order[.]" According to the board, ORS 183.482(2) imposes a requirement that, as incorporated into ORS 183.400(1), limits standing to persons "adversely affected or aggrieved" by a rule.

The board's argument presents a question of statutory construction. The decisive issue is whether the legislature's direction to employ "the manner" provided for review of contested case orders imports a more stringent standing requirement for rule challenges than otherwise is imposed by the plain text of ORS 183.400(1). For several reasons, we conclude that the board's argument is refuted by the text and context of the relevant statutory provisions. PGE v. Bureau of Labor and Industries, 317 Or. 606, 611-12, 859 P.2d 1143 (1993).

First, "manner" ordinarily refers to procedural matters, rather than substantive or jurisdictional requirements. See Webster's Third New Int'l Dictionary, 1376 (unabridged ed 1993) ("manner" means "a mode of procedure or way of acting"). The term has been interpreted consistently with that meaning in a similar statutory context. In Felkel v. Thompson, 157 Or.App. 218, 970 P.2d 657 (1998), we considered the ordinary meaning of the term "in the manner of" found in ORS 138.650, governing appeals of post-conviction judgments. That statute provides:

"Either the petitioner or the defendant may appeal to the Court of Appeals within 30 days after the entry of final judgment on a petition pursuant to ORS 138.510 to 138.680. The manner of taking the appeal and the scope of review by the Court of Appeals and the Supreme Court shall be the same as that provided by law for appeals in criminal actions[.]" (Emphasis added.)

We held that ORS 138.071(4), which provides that a notice of appeal in a criminal case must be filed within 30 days of the judgment unless the defendant can show that the failure to file a timely notice of appeal is not attributable to the defendant personally and the appeal presents a colorable claim of error, does not apply to post-conviction appeals. We concluded that ORS 138.650 distinguished between the time limit and manner—meaning processes—for perfecting an appeal. Because ORS 138.650 imposed a specific time limit for filing a notice of appeal and provided no mechanism for a delayed appeal, we concluded that the delayed appeal provision of ORS 138.071(4) was not part of the "manner of" taking the appeal. Felkel, 157 Or.App. at 221-22,970 P.2d 657. Here, as in Felkel, it is logical to infer from the term's plain meaning that the "manner" provided for judicial review of contested case orders refers to procedural, rather than substantive or jurisdictional, requirements.

Second, the plain meaning of ORS 183.482(2) demonstrates that it does not impose a standing requirement. Instead, it requires that the petition state the basis for the petitioner's standing to contest the order. The requirement that a petitioner must be adversely affected or aggrieved by an agency order in order to seek judicial review is found in a different statute, ORS 183.480(1), which provides, in part, that "any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a final order * * *." Reading the statutes together confirms that ORS 183.482 merely prescribes a procedure for verifying the existence of the standing that ORS 183.480 requires. The latter statute does not, either by its own terms or by incorporated reference, impose a standing requirement for rule challenges under ORS 183.400(1). Accordingly, it makes no sense to conclude that the "manner" of review provided in ORS 183.482(2) includes the affirmative imposition of a standing requirement. Instead, ORS 183.482(2) requires a recital of standing that has no application in rule challenges because no statute imposes a comparable standing requirement for such proceedings.

Third, our conclusion is consistent with this court's recent opinion questioning the applicability of various provisions of ORS 183.482 to judicial review under ORS 183.400. In Northwestern Title Loans v. Division of Finance, 180 Or.App. 1, 4, 18-22, 42 P.3d 313 (2002),³ the petitioner sought injunctive relief through a rule challenge under ORS 183.400(1). We considered whether, because ORS 183.482(3) authorizes injunctive relief in contested cases, the phrase "in the manner" provided for review of orders in contested cases also permitted injunctive relief in rule challenges under ORS 183.400(1). We concluded that ORS 183.400(1) did not incorporate the injunctive relief provision of ORS 183.482(3). Id. at 3-4, 42 P.3d 313. In so concluding, we noted that a number of the provisions and requirements of ORS 183.482 simply make no sense in the context of a rule challenge. Id. at 4, 42 P.3d 313; id. at 18-19, 42 P.3d 313 (Brewer, P.J., concurring).

Finally, and most importantly, ORS 183.400(1) provides that any person may seek judicial review of the validity of an administrative rule. In contrast, ORS 183.480 provides that only those persons who are adversely affected or aggrieved by a contested case order may seek judicial review of the order. It would be necessary to conclude that "any person" means less than its plain meaning signifies were we to interpret the "manner" provided for contested case order review as superimposing the restrictive standing requirement that applies to judicial review of contested case orders. Such...