VLY v. Board of Parole

• Decision Date: 16 July 2003
• Citation: 188 Or. App. 617,72 P.3d 993
• Parties: V.L.Y., Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Court: Oregon Court of Appeals

72 P.3d 993

188 Or. App. 617

V.L.Y., Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A108068.

Court of Appeals of Oregon, En Banc.

Argued and Submitted January 10, 2002.

Resubmitted May 5, 2003.

Decided July 16, 2003.

Gail L. Meyer argued the cause and filed the brief for petitioner.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER and BREWER, Judges.

Resubmitted En Banc May 5, 2003.

KISTLER, J.

Petitioner appeals from an order of the Board of Parole and Post-Prison Supervision (board) designating him as a predatory sex offender. He argues that the board's order violates various provisions of the state and federal constitutions. We affirm.

Before turning to the facts of this case, we describe briefly the applicable statutory and regulatory background. ORS 181.585(1) provides that a person who has been convicted of a limited class of sex offenses¹ will be designated as a "predatory sex offender" if he or she "exhibits characteristics showing a tendency to victimize or injure others * * *."² ORS 181.586(1) entrusts the determination whether a person is a predatory sex offender to the board for persons on parole and post-prison supervision and to the Department of Corrections (department) and community corrections agencies for persons on probation. Finally, ORS 181.585(2) directs those agencies to use a "sex offender risk assessment scale approved by the Department of Corrections" in determining whether a person should be designated as a predatory sex offender.

The legislature thus provided a general definition of the term "predatory sex offender" and delegated to the department and the board the authority, if not the obligation, to identify the substantive characteristics that will determine whether a person meets that definition. The legislature, however, did not specify the procedures that the board should follow in deciding who should be designated as a predatory sex offender, and those procedures have varied over time.

Initially, the board took the position that it could designate persons on parole or post-prison supervision as predatory sex offenders without holding a hearing or providing any opportunity for a response. According to the then-applicable rules, before a person was released on parole or post-prison supervision, a counselor would use a risk assessment scale to evaluate whether a person should be designated as a predatory sex offender. See former OAR 291-28-030(2)(a)(A) (1996). That evaluation, which could be based on an inmate's file, police reports, and confidential communications among agency officials,³ would be forwarded to the board as part of the release planning packet. Based on that evaluation, the board would make registration as a predatory sex offender a condition of parole or post-prison supervision. See id.

In Noble v. Board of Parole, 327 Or. 485, 498, 964 P.2d 990 (1998), the Oregon Supreme Court held that those procedures did not provide an offender with due process. Weighing the individual's interest, the risk of an erroneous decision under the board's existing procedures, and the burden on the agency to provide additional predesignation procedures, the court concluded:

"[D]ue process requires notice and an evidentiary hearing when the Board proposes to designate a person as a predatory sex offender pursuant to ORS 181.585. Moreover, the hearing must occur before the designation decision is made. * * * Here, as the statute is written and as it has been applied by the Board and supervising agencies, the deprivation at issue, i.e., community notification, can follow so close on the heels of a designation decision that a post-decisional hearing would occur too late to comport with due process."

Id. at 498, 964 P.2d 990 (emphasis in original).

After Noble, the board issued new rules.⁴ See OAR 255-060-0011. Under those rules, the amount of process that the board provides varies depending on which risk assessment factors apply in a given case. See id. The department's risk assessment scale lists a series of factors that increase or decrease the risk that a convicted sex offender will reoffend. Not all the factors are weighted equally, however. Some factors are designated as "automatic override" factors,⁵ others are referred to as "starred" factors,⁶ and the remainder are designated as neither automatic override nor starred factors. Procedurally, if the board makes a preliminary determination that one automatic override factor or three starred factors apply, the board will notify the offender of its preliminary determination and give him or her an opportunity to explain in writing why those factors do not apply. It will not, however, provide the offender with any further hearing beyond that. If, after considering the offender's written objections, the board finds that either one automatic override factor or three starred factors apply, then its rules provide that the person will be designated as a predatory sex offender. OAR 255-060-0011(3).

If no automatic override or fewer than three starred factors apply, the board will consider all the positive and negative factors that apply, give each a preassigned weight, and determine whether a convicted sex offender's total score on all the applicable factors results in a preliminary designation as a predatory sex offender.⁷ OAR 255-060-0011(3). If it does, the board will make available to the offender "a Morrissey-type hearing prior to the Board making a predatory sex offender finding." OAR 255-060-0011(6)(a). Stated differently, if no automatic override or fewer than three starred factors apply, the board will provide the offender with an opportunity to present live testimony and cross-examine witnesses concerning all the applicable factors on the risk assessment scale before deciding whether that person's total score on the risk assessment scale will result in a designation as a predatory sex offender.

In this case, petitioner was convicted in 1991 of first-degree rape and first-degree sodomy. In 1999, the board made a preliminary determination that one automatic override factor applied—a prior conviction for forcible rape.⁸ It also determined that three starred factors applied—a history of sex offense convictions, the use of weapons or threats, and a prior nonsexual criminal history. The board provided petitioner's counsel with, among other things, its preliminary determination, notice of the specific factual basis for that determination,⁹ a copy of the board's policies and procedures, a notice of rights, and a copy of petitioner's presentence investigation report.

Petitioner, through his counsel, filed a lengthy objection to the board's preliminary determination. Most of the objections were constitutional. One objection was factual and was directed at the automatic override factor. Petitioner explained that he had not been convicted of forcible rape. Rather, he had been convicted of statutory rape. He also objected to two of the starred factors on legal grounds. Regarding a "history of sex offense convictions," petitioner did not dispute that, before his 1991 conviction for rape and sodomy, he had been convicted of first-degree rape and first-degree sodomy in January 1989 and of first-degree sex abuse and second-degree sex abuse in June 1989. He argued, however, that, because all of his rape, sodomy, and sex-abuse convictions involved the same victim, they should be regarded as a continuing offense rather than as separate prior convictions.¹⁰ Regarding the second starred factor, a "prior non-sexual criminal history," petitioner did not dispute the factual basis for that starred factor— that he had been arrested for driving under the influence of intoxicants (DUII) in November 1988. He argued, however, that this factor did not apply to him because he had successfully completed diversion.

After receiving petitioner's objections, the board agreed with petitioner that the automatic override factor did not apply; that is, it agreed that the evidence did not show that he had a prior conviction for forcible rape. It adhered, however, to its conclusion that three starred factors applied. It rejected petitioner's arguments that his four 1989 convictions should not be regarded as "prior convictions" within the meaning of the risk assessment scale. It also found that "the prior non-sexual criminal history category applies because [petitioner] had a DUII arrest that resulted in a diversion. The definitions for the sex offender risk assessment scale specifically state that diversions are to be included in this category." Finally, the board noted that petitioner had not challenged its conclusion that the third starred factor—the use of weapons or threats—applied. Having considered petitioner's objections and having found that three starred factors applied, the board designated petitioner as a predatory sex offender.

On review, petitioner argues primarily that his due process right to a "full testimonial hearing" entitles him either to challenge or supplement the board's use of the department's risk assessment scale. As we understand his argument, he contends that, under the procedural component of the Due Process Clause, he was entitled to a hearing to prove either that the risk assessment scale is "not a valid, scientific test" or that, despite the criteria set out in the board's rules, he is not likely to reoffend. He also raises a variety of other state and federal constitutional challenges to the board's order. Before turning to defendant's constitutional arguments, we first consider the dissents' subconstitutional rationale. The dissents would hold, as a matter of statute, that the board may not rely exclusively on the department's risk assessment scale to determine whether ...