Wilcox v. Board of Parole

Decision Date23 February 2005
Citation107 P.3d 637,197 Or. App. 623
PartiesRichard Shawn WILCOX, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
CourtOregon Court of Appeals

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, Kathleen Cegla, Assistant Attorney General, for motion and Brendan C. Dunn, Assistant Attorney General, for reply.

Irene B. Taylor, Deputy Public Defender, Office of Public Defense Services, contra.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, SCHUMAN, and ORTEGA, Judges, and DEITS, Judge pro tempore.

Resubmitted En Banc December 15, 2004.

On Respondent's Motion to Dismiss May 6, 2004.

Petitioner's Response to Respondent's Motion to Dismiss July 16, 2004.

Respondent's Reply to Petitioner's Response to Respondent's Motion to Dismiss August 19, 2004.

Petitioner's Response to Court's Request for a Response re Mootness October 26, 2004.


Petitioner seeks judicial review of an order of the Board of Parole and Post-Prison Supervision in which the board denied his request to reopen and reconsider its earlier order denying re-release on parole and setting a parole release date. The board has moved to dismiss the petition for judicial review on jurisdictional grounds, specifically, that its order denying petitioner's request to reopen and reconsider is not a final order and, alternatively, that petitioner is not adversely affected or aggrieved by the order, as provided in ORS 144.335(1).1 We dismiss the petition for judicial review.

The following facts are undisputed. By order dated April 25, 2001, the board revoked petitioner's parole. On August 22, 2001, after a future disposition hearing, the board denied re-release and set a parole release date of October 29, 2004. As pertinent here, in September, October, and November 2001, pursuant to OAR 255-080-0001 to 255-080-0015,2 petitioner sought administrative review of the board's August 22 order, arguing that his sentences had expired before revocation and that the board had abused its discretion by denying re-release based on a mere technical violation of his conditions of parole. The board administratively reviewed its order and, on December 11, 2001, denied relief. Petitioner then sought judicial review in this court, which ultimately affirmed the board's order without opinion. Wilcox v. Board of Parole, 192 Or.App. 673, 89 P.3d 688, rev. den., 337 Or. 282, 96 P.3d 347 (2004).

Meanwhile, on July 10, 2003, while judicial review in that matter was still pending, the United States Court of Appeals for the Ninth Circuit decided Himes v. Thompson, 336 F.3d 848 (9th Cir.2003). In that case, the petitioner was sentenced to prison for a crime committed in 1978. The board eventually released him on, then revoked him from, parole. In denying his re-release on parole, the board applied a rule adopted in 1994. The court determined that the board's application to him of that rule violated the Ex Post Facto Clause of the United States Constitution3 because the rule "created a `sufficient risk' of increasing the punishment attached to [the petitioner's] crimes." Id. at 854, 863.

On August 20, 2003, petitioner requested that the board reopen and reconsider his case under OAR 255-080-0010 to 255-080-0012, on the ground that the board had unconstitutionally applied to him the same rule that it had applied in Himes. On March 2, 2004, the board issued an order in which it concluded that petitioner had been requesting administrative review of its August 22, 2001, order and that the request had not been timely filed within 45 days as provided in OAR 255-080-0005. Alternatively, the board also determined that petitioner had already exhausted his administrative remedies with regard to its August 22, 2001, order by earlier requesting review of that order and receiving the board's December 11, 2001, response to his request. The board also concluded that, to the extent that petitioner was requesting that the board reopen his case, a rule that provided for requests for reopening had been repealed in 1988. Finally, the board determined that, in any event, the Ninth Circuit's decision in Himes did not assist petitioner because the reasoning and result in that case applied only to crimes committed between July 19, 1978 and January 31, 1979. The board denied review and denied petitioner's request to reopen and reconsider his case.

Petitioner then filed this petition for judicial review of the board's order. As noted, the board has moved to dismiss the petition. The board first argues that its March 2, 2004, order is not a "final order" within the meaning of ORS 144.335(1), as construed in Perez v. Board of Parole, 102 Or.App. 117, 792 P.2d 1246,rev. den., 310 Or. 243, 796 P.2d 360 (1990). Alternatively, relying in part on Frey v. Board of Parole, 152 Or.App. 462, 950 P.2d 418,rev. den., 327 Or. 173, 966 P.2d 217 (1998), the board argues that petitioner was not adversely affected or aggrieved by the board's refusal to reopen and reconsider his case because the order "merely reiterates or maintains the status quo." The board also argues that its criteria pertaining to reopening and reconsideration of a case — in particular, the criterion pertaining to information that was not available at the time of petitioner's earlier hearing, see OAR 255-080-0010(3) — do not assist petitioner because the ex post facto principles that the Ninth Circuit applied in Himes, as well as petitioner's arguments pertaining to the board's rules and the proper calculation of his sentence, were available to petitioner at that time.4

Petitioner responds, in part, that, in order to be reviewable under the current version of ORS 144.335(1), an order need only demonstrate that the board was "exercising its jurisdiction." Alternatively, as to whether the board's order was a final order, he argues that Perez pertained to an earlier version of ORS 144.335(1) that did not include any requirement that a petitioner exhaust administrative remedies and that applied only to orders granting, revoking, or discharging parole. Petitioner also argues that the board's order is reviewable as a final order because his request for reopening and reconsideration of his case constituted the exhaustion of administrative remedies as provided in ORS 144.335(1)(b). As to whether he was adversely affected or aggrieved by the order, petitioner again argues that amendments to ORS 144.335 abrogate the reasoning in the case relied on by the board in that regard. Petitioner further argues that, although OAR 255-080-0012(2) merely authorizes, and does not require, the board to reopen and reconsider a case, the board's discretion is limited by OAR 255-080-0010, setting out criteria for granting review, including the circumstance that the board's action "is in violation of constitutional * * * provisions." OAR 255-080-0010(5). According to petitioner, the board's motion to dismiss his petition fails to demonstrate that he did not meet that criterion and therefore demonstrates that the board was required to reopen his case. Finally, relying on Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Jenkins v. Board of Parole, 313 Or. 234, 243, 833 P.2d 1268 (1992), petitioner argues that, by promulgating OAR 255-080-0010, the board created an opportunity to obtain board review of orders that now constitutes a substantial right of persons subject to board jurisdiction, the abrogation of which violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.5

The board replies that the reasoning in Perez as to what constitutes a "final order" and the reasoning in Frey as to the circumstances under which a person is "adversely affected or aggrieved" by such an order for the purposes of ORS 144.335(1) are not dependent on any particular version of that statute. Rather, the dispositive consideration in those cases, as in this case, is the "fundamental nature" of the order at issue. The board also contends that, even assuming that petitioner's request for reopening his case met the criterion in OAR 255-080-0010(5) for seeking administrative review of a board order (which the board disputes) and thus constituted the exhaustion of administrative remedies, the decision whether to grant reconsideration remains discretionary. Finally, the board contends that, consistently with Shelby v. Board of Parole, 140 Or.App. 102, 112-13, 915 P.2d 414,rev. den., 324 Or. 18, 920 P.2d 551 (1996), the Due Process Clause does not entitle petitioner to judicial review of board orders. The board therefore again urges us to dismiss the petition for judicial review.

As pertinent here, a petitioner for judicial review of agency action must establish that the petitioner has standing, under the relevant statute, to invoke the judicial process. Local No. 290 v. Dept. of Environ. Quality, 323 Or. 559, 564, 919 P.2d 1168 (1996); see also Benton County v. Friends of Benton County, 294 Or. 79, 82, 653 P.2d 1249 (1982)

(standing to seek judicial review of government action is not a generic concept but must be determined under the particular statute at issue). By its terms, ORS 144.335(1) (quoted at 197 Or.App. 625 n. 1, 107 P.3d at 639 n. 1), requires a person over whom the board has exercised its jurisdiction6 to demonstrate that the resulting order was a "final order" by which he or she was "adversely affected or aggrieved." As discussed below, we conclude that we need not determine whether the board's March 2, 2004, order was a final order because, even assuming that it was, petitioner was not adversely affected or aggrieved by it within the meaning of ORS 144.335(1).

In determining the meaning of the phrase "adversely affected or aggrieved" in ORS 144.335(1), ...

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