Shelby v. Board of Parole and Post-Prison Supervision, POST-PRISON
| Decision Date | 10 April 1995 |
| Docket Number | POST-PRISON |
| Citation | 140 Or.App. 102,915 P.2d 414 |
| Parties | Eric SHELBY, Petitioner, v. BOARD OF PAROLE ANDSUPERVISION, Respondent. CA A87773. . On Respondent's Motion to Dismiss |
| Court | Oregon Court of Appeals |
Judicial Review from Board of Parole and Post-Prison Supervision.
Eric Cumfer, Deputy Public Defender, argued the cause for petitioner. On the reply was Eric Shelby, pro se. With Eric Cumfer on the successive response was Sally Avera, Public Defender.
Christine A. Chute, Assistant Attorney General, argued the cause for respondent. On the motion were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. On the reply were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Robert K. Lau, Assistant Attorney General.
Before LANDAU, P.J., and HASELTON and ARMSTRONG, JJ. HASELTON, Judge.
Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision deferring his parole release date by two years. The Board has moved to dismiss the petition on the ground that ORS 144.335(2) bars judicial review of its order. We grant the motion to dismiss.
Petitioner was convicted in 1984 of two counts of burglary in the first degree and two counts of burglary in the second degree and was sentenced to ten years in prison. In 1985, petitioner was convicted of two counts of rape in the first degree and one count each of burglary in the first degree, kidnaping in the first degree, and assault in the second degree and was sentenced to 20 years in prison, to be served consecutively to the sentence on his 1984 conviction.
In April 1986, the Board set petitioner's release date as July 14, 1995. ORS 144.120(1)(a). In July 1990, the Board determined that petitioner's release date should not be advanced and scheduled an exit interview for July 1994. The Board further directed that, before the exit interview, petitioner should be evaluated pursuant to ORS 144.125(1). That statute reads, in part:
In April 1994, petitioner was evaluated by Dr. Robert Davis, a clinical psychologist. Dr. Davis concluded:
"From this record as well as very clearly from the psychological testing, the single reasonable conclusion is that [petitioner] does present a severe emotional disturbance in the form of a personality disorder with Antisocial, Narcissistic and Histrionic features which constitute a danger to the health and safety of others in the community at this time."
The Board thereafter continued petitioner's exit interview from July 1994 to January 1995. Either before or during the January 1995 hearing, petitioner was given a copy of the psychological evaluation, and he disputed certain aspects of that evaluation as being incomplete or inaccurate. On July 25, 1995, the Board, pursuant to ORS 144.125(3), deferred petitioner's parole release date by 24 months because:
"Based on all information the Board is considering at this hearing, * * * the Board finds that you do have a mental or emotional disturbance, deficiency, condition or disorder, predisposing you to the commission of a crime to a degree rendering you a danger to the health or safety of the community."
Petitioner seeks judicial review of that order. Respondent has moved to dismiss the petition as being barred by former ORS 144.335(2)(e)(A). Until 1993, ORS 144.335 read, in part:
In 1993, the legislature amended subsection (2) to provide:
Finally, in mid-1995, the legislature further amended ORS 144.335 to replace the former (1993) subsection (2)(e)(A) with a new subsection, ORS 144.335(3)(g):
Thus, although former ORS 144.335(2)(e)(A) was in effect when petitioner filed his petition for review and when respondent filed its motion to dismiss in April 1995, the 1995 amendment became effective during the briefing of this matter. However, neither party argues that, given that procedural juxtaposition, the 1995 amendment should control--and we perceive no reason why it should. Indeed, where, as here, an inmate's release date is postponed by two years or less, the effect of former ORS 144.335(2)(e)(A) and the present ORS 144.335(3)(g) is the same. Accordingly, we consider whether former ORS 144.335(2)(e)(A) bars our review.
Petitioner acknowledges that former ORS 144.335(2)(e)(A), by its terms, purports to preclude our review. He argues, however, that the statute, either on its face or as applied, is unconstitutional for three reasons. First, denying judicial review in these circumstances violates the separation of powers prescribed by the Oregon Constitution, Article III, section 1, and Article VII (amended), section 1. Second, applying ORS 144.335(2) to petitioner violates state and federal constitutional prohibitions against ex post facto laws. Or Const. Art. I, § 21; U.S. Const. Art. I, § 10. Third, denying judicial review of the Board's order deprives petitioner of due process of law guaranteed under the Fourteenth Amendment to the United States Constitution and the right to a remedy in the due course of law as guaranteed by Article I, section 10, of the Oregon Constitution.
Before considering the particular merits of petitioner's constitutional arguments, we must first address a question of statutory construction that underlies, and ultimately circumscribes, those arguments: What is the meaning of "judicial review" in former ORS 144.335(2)(e)(A)? Petitioner argues that that term encompasses every form of judicial action or relief relating to a Board order. Thus, in petitioner's view, the statute bars not only direct review by this court, but also collateral challenges to Board action via writs of habeas corpus or mandamus, as well as declaratory relief. Conversely, respondent equates "judicial review" with direct review by this court.
We agree with respondent. Although "judicial review" may be ambiguous in the abstract, its meaning in this context is clear. ORS 144.335 was, and is, concerned solely with direct review by the Court of Appeals. Subsection (1) provides for "judicial review" of final orders after exhaustion of administrative remedies. Former subsections (3), (4), and (5), which were renumbered as subsections (4), (5), and (6) respectively, in the 1995 amendments, are explicit that the "judicial review" so contemplated is review by this court:
Thus, although the Board's orders are not directly subject to the judicial review provisions of the Oregon Administrative Procedures Act, see ORS 183.315(5), "judicial review" in ORS 144.335 is a term of art describing, as it does in the APA,...
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