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

• Decision Date: 24 October 2019
• Docket Number: SC S065950
• Citation: 365 Or. 607,451 P.3d 589
• Parties: Prentice PENN, Petitioner on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review.
• Court: Oregon Supreme Court

365 Or. 607

451 P.3d 589

Prentice PENN, Petitioner on Review,

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

SC S065950

Supreme Court of Oregon, En Banc.

Argued and submitted March 4, 2019, at Lewis & Clark Law School, Portland, Oregon.

October 24, 2019

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

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

NAKAMOTO, J.

When petitioner was released from prison to post-prison supervision, the Board of Parole and Post-Prison Supervision included a special condition in its supervision order requiring that petitioner not "enter into or participate in any intimate relationship or intimate encounters with any person (male or female) without the prior written permission" of his supervising officer. On review, petitioner raises two issues: first, whether the board lacked statutory authority to impose the condition and, second, whether the condition is unconstitutional under the Due Process Clause of the Fourteenth Amendment because it is vague or overbroad.

Preliminarily, reviewability is also at issue. After petitioner filed his opening brief, the board moved to dismiss based on mootness. The board noted that petitioner had completed his term of post-prison supervision and no longer was subject to the challenged condition; therefore, the board argued, a decision would no longer have a practical effect on petitioner's rights and the case should be dismissed. Petitioner opposed dismissal, noting cases in which the board has imposed that special condition on other people under post-prison supervision, in accordance with its decision at a 2012 public meeting that it may impose the condition in the future. We took the motion under advisement.

We now hold that, although petitioner's appeal is moot, it is one that can and should be decided under ORS 14.175, which provides an exception to the general rule—that moot cases should be dismissed—for cases in which a party alleges that an act, policy, or practice of a public body is contrary to law. On the merits of petitioner's appeal, we hold that the board exceeded the scope of its statutory authority in imposing the special condition on petitioner.

I. BACKGROUND

The facts that are relevant to our review are not in dispute and are taken from the board's final order. In 2010, petitioner was charged with crimes after he violently assaulted and threatened a woman he had been dating, using weapons, to compel her to perform a sex act. The incident was just one of several similar incidents that had occurred during petitioner's longstanding relationship with her. Petitioner ultimately pleaded no contest to two of the charges—attempted first-degree kidnapping constituting domestic violence and attempted second-degree assault constituting domestic violence. The trial court entered a judgment of conviction on those charges and sentenced petitioner to 84 months in prison, to be followed by 36 months of post-prison supervision.

Upon his release from prison, petitioner received an order listing the conditions of his post-prison supervision, as required by ORS 144.102(1). Although the board ultimately was responsible for setting the conditions of petitioner's post-prison supervision, they were the product of a statutorily required process that began with the Department of Corrections. Under ORS 144.096(1)(a), the department must prepare a proposed release plan for an inmate and submit it to the board. The proposed release plan must include "recommended conditions of post-prison supervision," "[a]ny other conditions and requirements as may be necessary to promote public safety," and "[a]ny conditions necessary to assist the reformation of the inmate." ORS 144.096(3)(b), (d), (f). Then the board must approve the proposed release plan, or a revised version of it, before the inmate's release, ORS 144.096(1)(b), (c), and must provide a copy of the conditions imposed through the release plan to the inmate upon his or her release, ORS 144.102(1).

The conditions imposed "may" include any of a specified list of general conditions set out in ORS 144.102(2), and for certain sex offenders, specified conditions set out in ORS 144.102(3) and ORS 144.102(4)(b) must be imposed. Additionally, the board is authorized under ORS 144.102 (4)(a) to "establish special conditions that the board *** considers necessary because of the individual circumstances of the person on post-prison supervision."

The board-approved supervision conditions in the order that petitioner received included the general conditions set out in ORS 144.102(2) and several special conditions, including the one at issue that regulates petitioner's "intimate" relationships and encounters. With the assistance of legal counsel, petitioner requested review of the order. He argued that that special condition, identified in the order as Supervisory Condition 10 (SC 10), could not lawfully be imposed and should be stricken. Petitioner contended that SC 10 was outside the board's statutory grant of discretion, was not supported by substantial evidence in the record, and was "an unconstitutional violation of the right to privacy" and "vague and overbroad."

In the ensuing administrative review, petitioner submitted an affidavit, written by his fiancée, who was the mother of his two sons, for the board's consideration. In that affidavit, his fiancée averred that petitioner had never assaulted her or their sons and that her relationship with him was based on "clear boundaries" and "appropriate verbal, physical and sexual behavior." She further averred that, if SC 10 were to remain in effect, it would prevent her and petitioner from having a healthy and functional marriage and would prevent petitioner from fulfilling his roles as husband and father.

The board denied the requested relief in a final administrative order. After describing in detail the "vicious assault" petitioner had perpetrated against "a woman you had been dating and with whom you shared an intimate relationship," the board concluded that it was

"in the interest of public safety and your reformation for your supervising officer to monitor any intimate relationships and/or intimate encounters. It was these individual circumstances that led the board to impose [SC 10]."

The board further noted that the condition was not an absolute prohibition on petitioner engaging in intimate relationships; rather, it allowed petitioner's supervising officer to "monitor and evaluate each situation to determine whether [the] association is appropriate for your rehabilitation and is consistent with public safety." The board's order concluded by advising petitioner that he had exhausted his administrative remedies and could petition the Court of Appeals for judicial review of the order.

Petitioner timely sought judicial review in the Court of Appeals, raising the same arguments that he had raised before the board. The Court of Appeals affirmed without opinion. Petitioner then petitioned for review in this court, arguing (1) that SC 10 was outside the range of discretion delegated to the board by statute and (2) that SC 10 is unconstitutionally vague and overbroad. This court allowed the petition.

Midway through the proceedings before this court, petitioner was discharged from post-prison supervision and filed a notice informing the court of that fact and of his understanding that the discharge likely had rendered his appeal moot. Petitioner suggested, however, that the case could and should be decided without regard to its mootness, as permitted by ORS 14.175. That statute provides that a court may decide a challenge to the lawfulness of an act, policy, or practice of a public body, even one that no longer has a practical effect on the party bringing the challenge, as long as (1) that party had standing to commence the action; (2) the challenged act "is capable of repetition" or the policy or practice continues in effect; and (3) the policy, practice, or similar acts "are likely to evade judicial review in the future."

The board subsequently moved to dismiss petitioner's appeal. The board argued that its imposition of the challenged condition was not an act that was "capable of repetition" but "likely to evade judicial review" within the meaning of ORS 14.175 and that the appeal did not otherwise meet the prudential requirements for reviewing a moot action. We took the board's motion for dismissal under advisement, to be decided before consideration of the parties' arguments on the merits. We turn to that motion now.

II. MOTION TO DISMISS

Petitioner acknowledges, and we agree, that, given that petitioner no longer is subject to the supervisory condition that he challenges, a decision by this court in the matter will not have a practical effect on his rights—in other words, his appeal is moot. See Eastern Oregon Mining Association v. DEQ , 360 Or. 10, 15, 376 P.3d 288 (2016) (case in which a court's decision "no longer will have a practical effect on or concerning the rights of the parties" is moot). However, that does not necessarily mean that the board's motion to dismiss must be granted. At least in cases like the present one, in which the act of a public agency is challenged as contrary to law, this court "may" decide the case even when a decision would have no practical effect on the party who brought it, assuming the requirements set out in ORS 14.175 are satisfied.¹ On the other hand, courts are not required to decide any and every moot case that falls within the terms of ORS 14.175. As this court recognized in Couey v. Atkins , 357 Or. 460, 522, 355 P.3d 866 (2015), insofar as the statute uses the permissive term "may," it "leaves it...