Mastriano v. Board of Parole, CA A124636.

• Court: Supreme Court of Oregon
• Writing for the Court: Linder
• Citation: 342 Or. 684,159 P.3d 1151
• Parties: John A. MASTRIANO, Respondent on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Petitioner on Review.
• Docket Number: CA A124636.,SC S53543.
• Decision Date: 24 May 2007

159 P.3d 1151

342 Or. 684

John A. MASTRIANO, Respondent on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Petitioner on Review.

CA A124636.

SC S53543.

Supreme Court of Oregon.

Argued and Submitted January 9, 2007.

Decided May 24, 2007.

On review from the Court of Appeals.^*

Erin C. Lagesen, Assistant Attorney General, argued the cause for petitioner on review. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, Salem.

Bronson D. James, Deputy Public Defender, argued the cause for respondent on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem.

LINDER, J.

In 2003, the Board of Parole and Post-Prison Supervision (the board) denied petitioner's request to reopen and reconsider a 1997 order revoking his parole and a 1998 order resetting his parole release date. Petitioner sought judicial review. The Court of Appeals granted the board's motion to dismiss on the ground that the order did not "adversely affect or aggrieve" petitioner, as required by ORS 144.335(1).¹ This court vacated the order of dismissal and remanded for reconsideration in light of Richards v. Board of Parole, 339 Or. 176, 118 P.3d 261 (2005) (discussing "adversely affected or aggrieved" requirement of ORS 144.335(1)). On remand, the Court of Appeals concluded that, under Richards, the order denying reconsideration adversely affects or aggrieves petitioner. The court further concluded that contrary to the board's position, the order is a "final order" within the meaning of ORS 144.335(1). The Court of Appeals therefore denied the board's motion to dismiss, and this court allowed the board's petition for review. We hold that a board order denying reopening and reconsideration of an earlier final order is not itself a final order for purposes of judicial review pursuant to ORS 144.335(1). We therefore reverse and remand.

Petitioner is serving a 20-year sentence of imprisonment for a 1985 burglary conviction. After an initial period of incarceration, petitioner was released on parole. In 1997, however, the board revoked his parole and, in January 1998, the board held a future disposition hearing at which it denied petitioner re-release on parole and reset his release date for November 1, 2010. The board memorialized its decision denying re-release in Board Action Form (BAF) 33. Petitioner requested that the board administratively review BAF 33; the board, by written order, denied that request. Petitioner unsuccessfully sought judicial review of the board's order in the Court of Appeals.²

Several years passed. Then, in August 2003, petitioner asked the board to reopen and reconsider its 1997 order revoking parole and its 1998 order denying re-release on parole and resetting petitioner's release date to 2010 (BAF 33). The board issued a written order denying that request. Petitioner timely sought judicial review of that order. On the board's motion, the Court of Appeals dismissed review on the ground that the order did not adversely affect or aggrieve petitioner; the court did not reach the board's additional argument that the order was not final for purposes of ORS 144.335(1). As already described, this court remanded for reconsideration in light of the decision in Richards. On remand, the Court of Appeals concluded in an unpublished order that, in light of Richards, petitioner was "adversely affected or aggrieved" by the order denying reopening and reconsideration.

The Court of Appeals therefore addressed the remaining issue presented by the board's motion to dismiss — i.e., whether the order denying reconsideration is a "final order" within the meaning of ORS 144.335(1). On that issue, the Court of Appeals declined to follow Esperum v. Board of Parole, 296 Or. 789, 681 P.2d 1128 (1984), in which this court had held that a board order denying reopening and reconsideration of an earlier final order was not subject to judicial review. The Court of Appeals concluded that Esperum, although on point, was not authoritative because it predated PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), and had been decided "without the benefit of" the methodology for statutory interpretation that PGE announced. The Court of Appeals therefore interpreted the statute anew. Summarily, it concluded that, under a proper PGE analysis, a board order denying reconsideration of a prior order "is final within the meaning of ORS 144.335 because the order conclusively disposes of [a] petitioner's request for reopening." The Court of Appeals therefore denied the board's motion to dismiss.

The board petitioned the Court of Appeals for reconsideration. A majority of the panel that considered the petition denied reconsideration, relying at least in part on Morales v. SAIF, 339 Or. 574, 124 P.3d 1233 (2005). Judge Landau dissented, explaining that Esperum was controlling and required that the petition for judicial review be dismissed:

"I do not agree that, merely because [Esperum] predates [PGE], we are not bound by the court's construction of the applicable statute. The Supreme Court consistently and repeatedly has held that its construction of a statute `becomes part of the statute, subject only to amendment by the legislature,' see, e.g., Palmer v. State of Oregon, 318 Or. 352, 358, 867 P.2d 1368 (1994), even when the construction predates PGE. See, e.g., Crocker and Crocker, 332 Or. 42, 48-53, 22 P.3d 759 (2001) (1889 and 1940 Supreme Court interpretations of [statute] were `authoritative[ ]' in the absence of legislative alteration of the provisions interpreted). Nothing in Morales * * * proposes to overrule that long line of cases, and the majority errs in concluding otherwise."

On the board's petition, we allowed review to consider whether Esperum is controlling and, if not, whether a board order denying reconsideration of an earlier final order is judicially reviewable under ORS 144.335(1).³

On review, the parties agree (as did the Court of Appeals) that Esperum is on point — that is, that Esperum directly addressed and resolved whether a board order denying reopening and reconsideration is a "final order" for purposes of judicial review under ORS 144.335(1). We nevertheless begin by examining the holding in that case. As we will explain, the legislature later amended the statute with an awareness of what Esperum held, a fact that bears on the meaning of the statute in its current form.

Esperum involved several petitioners who wanted to challenge board orders setting their parole release dates. At the time, by statute, a person aggrieved by a final board order setting a release date could seek judicial review of that order by filing a petition in the Court of Appeals within 60 days of the final order. ORS 144.335 (1981), amended by Or. Laws 1989, ch. 790, § 41.⁴ By rule, the board also provided a means for it to administratively review its own orders. Administrative review by the board was discretionary — that is, optional — and there were no time limits for seeking that review. OAR 255-80-005 (1982), amended by OAR 255-80-005 (1985). Finally, again by rule, the board permitted persons within its jurisdiction to request reopening and reconsideration of a board order. Former OAR 255-40-020 (1982), repealed by OAR 255-40-020 (1988). Reopening and reconsideration also was discretionary with the board, and the rules placed no time limit on a person's ability to seek reconsideration. Id.

None of the petitioners in Esperum initially sought judicial review of the board orders setting their release dates. Well after the time to do so had expired, an appellate court decision issued that the petitioners believed established error in the board's procedure for setting their release dates. The petitioners therefore asked the board to administratively review or reconsider the orders setting their parole release dates and to retroactively apply that appellate court decision to them, which the petitioners asserted would require changing their release dates.⁵ The board denied the requests, and the petitioners sought judicial review of that denial in the Court of Appeals. Consistently with its earlier decision in Cruz v. Board of Parole, 53 Or.App. 263, 631 P.2d 829, rev. den., 291 Or. 893, 642 P.2d 309 (1981) (decision to deny a request for administrative review is not a "final order" for purposes of judicial review), the Court of Appeals dismissed the petitions by order.

On review, this court agreed with the Court of Appeals and held that the board orders were not final orders subject to judicial review. The court observed that the board potentially could respond to a request for administrative review or reconsideration in one of three ways: (1) the board could deny the request outright; (2) the board could allow the request and grant some or full relief by changing its prior final order; or (3) the board could allow the request, but deny relief. Esperum, 296 Or. at 795-96, 681 P.2d 1128. The court concluded that the second and third responses — in which the board reexamines a prior order, even if it reaffirms the order in full — resulted in orders that were final for purposes of judicial review. Id. at 796-98, 681 P.2d 1128. The court concluded, however, that the first response — a denial of review or reconsideration, which does not reexamine the prior order — was not a final order subject to judicial review. Id. at 798, 681 P.2d 1128.

In reaching that conclusion, the court could not rely on a legislative definition of "final order," because the legislature had not provided one. The court found a reliable guide to legislative intent, however, in another provision of the same statute. Specifically, the court looked to subsection (2), which specified a 60-day time period for seeking judicial review of a final board order.⁶ The court reasoned that allowing judicial review of an order denying review or reconsideration — i.e., one that...