Rivas-Valles v. Bd. of Parole & Post-Prison Supervision
| Decision Date | 30 December 2015 |
| Docket Number | A154369. |
| Citation | 365 P.3d 674,275 Or.App. 761 |
| Parties | Juan RIVAS–VALLES, Petitioner, v. BOARD OF PAROLE AND POST–PRISON SUPERVISION, Respondent. |
| Court | Oregon Court of Appeals |
Peter Gartlan, Chief Defender, and Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, filed the briefs for petitioner.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondent.
Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.
In 1990, petitioner was convicted of aggravated murder, ORS 163.095, and was sentenced to life imprisonment with a 30–year minimum term without the possibility of parole or work release and a 20–year minimum period before he could seek parole review.1 ORS 163.105. In 2011, the Board of Parole and Post–Prison Supervision (board) conducted a murder review hearing pursuant to ORS 163.105(2).2 The board concluded that petitioner failed to carry his burden of proving that he was likely to be rehabilitated in a reasonable period of time. Accordingly, it denied petitioner's request to convert his aggravated murder sentence to a determinate term of 30 years. On review, petitioner contends that the board's order is not supported by substantial evidence or substantial reason. Relying on ORS 144.335(4),3 the board responds that this court lacks jurisdiction to review the board's order because petitioner failed to serve his petition for judicial review on the board within 60 days of the date the board mailed its final order disposing of petitioner's request for administrative review. Alternatively, if this court has jurisdiction, the board asserts that its final order is supported by substantial evidence and substantial reason. For the reasons that follow, we conclude that the court has jurisdiction to review the board's final order and that the order is supported by substantial evidence and reason. Accordingly, we affirm.
We begin with the board's jurisdictional challenge. The board issued its final order on March 29, 2013, and mailed the order to petitioner on April 5. Petitioner filed a petition for review on May 28. The petition did not include proof of service as required by ORAP 4.15(3)(a). After notice of that deficiency, petitioner filed an amended petition for judicial review, including proof of service, on June 14. The Appellate Commissioner issued an order to show cause why the case should not be dismissed because a petition for review had not been served on the board within 60 days of the mailing date of the final order. After briefing by both parties, the Appellate Commissioner concluded that timely service was not a jurisdictional requirement and directed that judicial review proceed. The board moved for reconsideration of the order, and the Chief Judge denied that motion.
The board now renews its assertion that we lack jurisdiction. According to the board, ORS 144.335(4) imposes a 60–day deadline for service on the board, which is jurisdictional, and petitioner failed to serve the board within that time. Although the statute explicitly imposes the 60–day deadline only for filing the petition for judicial review, the board asserts that we should conclude that the deadline also applies to service because the two requirements appear in the same subsection.
In response, petitioner contends that reading the 60–day deadline into the service requirement would violate ORS 174.010, which instructs a court to not "insert what has been omitted" in the construction of a statute. Petitioner further contends that, in other contexts, the legislature has explicitly made timely service a jurisdictional requirement, and that the requirement ought not to be imposed unless explicitly stated. Petitioner finally argues that the legislative history of ORS 144.335(4) indicates that the legislature did not intend service to be a jurisdictional requirement.
As noted, ORS 144.335(4) provides:
We interpret the statute using the statutory construction framework established in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993), and State v. Gaines, 346 Or. 160, 167, 206 P.3d 1042 (2009). "In interpreting a statute, the court's task is to discern the intent of the legislature." PGE, 317 Or. at 610, 859 P.2d 1143. In discerning that intent, we look at the text and context of the statute, as well as any relevant legislative history. Gaines, 346 Or. at 171–72, 206 P.3d 1042. The context of a statutory provision includes other related statutes. PGE, 317 Or. at 611, 859 P.2d 1143.
It is not clear from the text of ORS 144.335(4) whether the legislature intended service to be required within 60 days of mailed notice. The second sentence of the statutory subsection does not expressly impose a deadline for service and does not explicitly state whether the obtaining of service is jurisdictional. Nonetheless, the board argues that the placement of the service provision in the same subsection as the filing provision necessarily demonstrates that the legislature intended for the filing deadline to apply to service.
In support of that proposition, the board relies on State v. Lawler, 144 Or.App. 456, 927 P.2d 99 (1996), rev. den., 326 Or. 390, 952 P.2d 63 (1998). In that case, we construed a provision of Ballot Measure 11 (1994) that stated, "Notwithstanding any other provision of law, when a person charged with any of the offenses listed in subsection 2 of this section is 15, 16, or 17–years of age, at the time the charges are filed, that person shall be tried as an adult." Or. Laws 1995, ch. 2, § 1(1).5 Subsection 2 of the section listed the offenses and minimum sentences required by Measure 11. The defendant, a juvenile at the time he was charged, contended that the provision did not require that he be sentenced in accordance with Measure 11's mandatory minimum sentencing scheme, only that his trial occur in adult, rather than juvenile, court. Lawler, 144 Or.App. at 460–61, 927 P.2d 99. We disagreed, holding that, in passing Measure 11, the voters intended to remove juveniles accused of committing certain crimes from juvenile court, and to "place them under the jurisdiction of the circuit court and subject them to the mandatory minimum sentences applicable to adults." Id. at 462, 927 P.2d 99. We relied upon the "significan[ce]" of the placement of the "juvenile provision * * * [in] the same subsection establishing mandatory minimum sentences for adult offenders" from which we could "conceive of no reason why voters would force minors accused of serious person felonies into adult court but would not subject them to the mandatory adult sentences attached to those crimes." Id.
The state reads too much into Lawler. In Lawler, we were able to draw more support from the statutory context than we are able to in this case. There, "the class of juveniles slated for adult trials [was] defined, in part, by reference to crimes carrying [mandatory minimum] sentences[,]" connecting the juvenile offenders to the regulation of mandatory minimum sentences within the subsection. Id. As opposed to the explicit cross-reference tying two parts of a statute together in Lawler, there is nothing explicitly in the text of ORS 144.335(4) from which we can infer a connection between the first and second sentences of that provision.
The context of ORS 144.335(4) suggests that the legislature did not intend for service of the petition for review on the board within 60 days to be a jurisdictional requirement. The legislature amended ORS 144.335(4) to include the service requirement in 2001. Or. Laws 2001, ch. 661, § 1. At that time, several other statutes explicitly provided that both timely service and filing of a notice of appeal or petition for review were jurisdictional. See ORS 19.270(2) (); ORS 197.850(3)(b) (); ORS 656.298(5) (). Similarly, ORS 138.071(1) (1999), amended by Or. Laws 2007, ch. 547, § 2, expressly imposed a deadline for service of notices of appeal in criminal cases, stating that "the notice of appeal shall be served and filed not later than 30 days after the judgment or order appealed from was entered in the register." (Emphasis added.)
In contrast, ORS 183.482, which governs jurisdiction and procedures for review of contested cases in administrative agency proceedings, did not explicitly state that service is a jurisdictional requirement or impose any deadline for service. Like ORS 144.335(4), ORS 183.482 provides a 60–day deadline for filing the petition for review, ORS 183.482(1), and then states that "[c]opies of the petition shall be served * * * upon the agency," without including any deadline, ORS 183.482(2). In Hill v. Employment Division, 92 Or.App. 357, 358, 758 P.2d 420 (1988), we held that the service requirement was "mandatory, but not jurisdictional." Hill was decided 13 years before the legislature amended ORS 144.335(4), and its construction of an analogous service requirement in ORS 183.482(2) is relevant context in discerning the legislature's intent in amending ORS 144.335(4). See Keller v. Armstrong World Industries, Inc., 342 Or. 23, 35, 147 P.3d 1154 (2006) (...
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