Brown v. Kotek ( 2024 )

260 May 8, 2024 No. 13
IN THE SUPREME COURT OF THE
STATE OF OREGON
TERRI LEE BROWN,
Plaintiff,
v.
TINA KOTEK,
Governor of the State of Oregon;
Nichole Brown,
Superintendent,
Coffee Creek Correctional Facility; and
Tasha Petersen,
Administrator of Oregon Department of Corrections
Offender Information Sentence Computation Unit,
Defendants.
(SC S071034)
En Banc
Original proceeding in habeas corpus.
Argued and submitted May 2, 2024.
Steven T. Wax, Oregon Justice Resource Center,
Portland, argued the cause for plaintiff. Julia Yoshimoto,
Oregon Justice Resource Center, Portland, filed the petition,
the memorandum in support of the petition, and the reply
for plaintiff. Also on those filings was Malori Maloney.
Kirsten Naito, Assistant Attorney General, Salem, argued
the cause for defendants. Paul L. Smith, Deputy Solicitor
General, Salem, filed the memorandum in opposition. Also
on the memorandum were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
GARRETT, J.
It is hereby ordered that plaintiff immediately be dis-
charged from her illegal imprisonment. Pursuant to ORAP
1.20(5) and notwithstanding ORAP 9.25 and ORAP 14.05
(3)(b), the State Court Administrator shall issue the appel-
late judgment immediately.
Cite as 372 Or 260 (2024) 261
262 Brown v. Kotek
GARRETT, J.
Plaintiff has petitioned for a writ of habeas corpus,
requesting that this court exercise its original jurisdiction
and order her immediate release from prison. Or Const,
Art VII (Amended), § 2 (“[T]he supreme court may, in its own
discretion, take original jurisdiction in * * * habeas corpus
proceedings.”).1 Plaintiff is incarcerated as the result of an
order of Governor Tina Kotek that revoked an earlier condi-
tional commutation of one of plaintiff’s sentences.2 Plaintiff
had received that earlier commutation in December 2020
from then-Governor Kate Brown and finished serving all
of her sentences in February 2023. Governor Kotek’s order
of revocation issued in December 2023. For the reasons
explained in this opinion, we conclude that, because plaintiff
had finished serving all of her sentences when the Governor
revoked the conditional commutation, the Governor lacked
authority, under the terms of the commutation, to issue the
revocation. We also reject the state’s argument that plaintiff
waived her right to challenge her present imprisonment.
Plaintiff’s imprisonment is unlawful. Accordingly,
we order that she immediately be discharged from custody.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are procedural and uncontested.3
Plaintiff pleaded guilty to two counts of mail theft or receipt
of stolen mail. ORS 164.162. On Count 1, she was sentenced
to 30 months of incarceration and 24 months of post-prison
supervision (PPS). On Count 2, she was sentenced to 30
months of incarceration, consecutive to Count 1, and no
1
See also ORS 34.310 (providing that every person who is “imprisoned or
otherwise restrained of liberty,” with exceptions, “may prosecute a writ of habeas
corpus to inquire into the cause of such imprisonment or restraint, and if illegal,
to be delivered therefrom”).
2
Defendants are Governor Kotek, the Superintendent of Coffee Creek
Correctional Facility (where plaintiff is currently in custody), and the
Administrator of the Oregon Department of Corrections Offender Information
Sentence Computation Unit. Throughout this opinion, individual defendants are
referred to by name, and defendants collectively are referred to as “the state.”
3
Throughout this opinion, we refer to various dates and time periods regard-
ing plaintiff’s convictions and sentences. Those dates and time periods were
likely determined based on a variety of considerations. In all events, because
those dates and periods are undisputed, we need not—and do not—explain how
they were determined.
Cite as 372 Or 260 (2024) 263
PPS. As of December 2020, plaintiff’s term of incarcera-
tion was set to be completed in August 2021. That is, she
had approximately eight months of incarceration remaining
before being released to serve 24 months of PPS.
In December 2020, Governor Brown issued com-
mutations of sentences in connection with the COVID-19
pandemic. In plaintiff’s case, Governor Brown ordered a
“Conditional and Revocable Commutation of Sentence.” The
commutation order stated that, as to Count 2, plaintiff was
“scheduled to complete her term of incarceration on August 22,
2021.” The Governor then commuted the remaining term
of incarceration “from incarceration to post-prison super-
vision.” The commutation was subject to a variety of con-
ditions, including that (1) “[f]rom the effective date of [the]
order through the end of her [PPS] calculated to August 22,
2021, [plaintiff] shall not violate any state or federal law”;
(2) the commutation order “[did] not relieve [plaintiff]
of [PPS]”; (3) plaintiff shall “agree to, and abide by, the
terms specified in the Agreement Accepting Conditional
and Revocable Commutation” (hereinafter, the acceptance
agreement); and (4) if the Governor, in her judgment, should
determine that plaintiff “has violated any of the conditions of
this conditional and revocable commutation,” or that plain-
tiff’s “continued release in the community no longer serves
the interests of the State of Oregon,” the “commutation may
be revoked, at which time [plaintiff] shall be returned to
prison to serve out her sentence that was remaining at the
time this commutation was granted according to the terms
of the Judgment of Conviction.”
The acceptance agreement stated that “the Governor
[was] willing to grant a commutation to [plaintiff] only
as provided in this agreement[.]” Among other things, the
agreement provided that (1) “[f]rom the effective date of the
[commutation order] through August 22, 2021, [plaintiff]
shall not violate any state or federal law”; and (2) plain-
tiff “shall abide by the terms and conditions of any post-
prison supervision that is imposed in connection with the
conditional and revocable commutation and her Judgment
of Conviction.” The agreement included a waiver provi-
sion, stating that plaintiff waived any legal challenges to
264 Brown v. Kotek
future revocation of the commutation and to being returned
to prison, including through a petition for a writ of habeas
corpus:
“If the Governor of the State of Oregon should determine
in his or her sole judgment that [plaintiff] has violated any
of the conditions of this conditional and revocable commu-
tation, the Governor may revoke such commutation and
require that [plaintiff] return to prison to serve out her
sentence that was remaining at the time her commutation
was granted according to the terms of the Judgment of
Conviction. [Plaintiff] hereby waives any potential objection
or challenge to having the commutation revoked and being
returned to prison under such a determination, including an
application for a writ of habeas corpus.”
(Emphasis added.) Plaintiff signed the acceptance agree-
ment, which included an acknowledgement that she had
“carefully reviewed” both the agreement and the commuta-
tion order and that she “hereby agree[d] to its terms.”
The Governor’s conditional commutation became
effective on December 23, 2020. Plaintiff was released from
prison and placed under the authority of the Board of Parole
and Post-Prison Supervision (BOPPS) to serve her PPS.
In May 2021—approximately four months after her
release from prison—plaintiff pleaded no contest to violat-
ing a general condition of her PPS (i.e., that she “[o]bey all
laws, municipal, county, state, and federal”). A hearings
officer found her in violation of her PPS, and a 30-day jail
sanction was imposed. The parties do not dispute that plain-
tiff’s conduct constituted a violation of the conditions of her
commutation. Other than the imposition of the sanction, we
are unaware of any other actions being taken at that point.
Almost two years later, in February 2023, BOPPS
issued a “Certificate of Supervision Expiration,” stating that
plaintiff had “completed the period of post-prison supervision
imposed, and * * * is expired from supervision.” In other words,
plaintiff had fulfilled her PPS obligations and was no longer
subject to any sentence. The state does not dispute that point.
In February 2024, approximately one year after
BOPPS issued its certificate of supervision expiration,
Cite as 372 Or 260 (2024) 265
plaintiff was arrested and sent to Coffee Creek Correctional
Facility. According to plaintiff, several days after her arrest,
she learned that her commutation had been revoked. The
record reflects that Governor Kotek had issued an order in
December 2023, stating that she had “determined in [her]
sole judgment that [plaintiff had] violated conditions of [the]
Conditional and Revocable Commutation of Sentence.” A
warrant was issued for plaintiff’s arrest, leading to her
present imprisonment.
Thereafter, plaintiff filed a petition for a writ of
habeas corpus in this court, contending that she is unlaw-
fully incarcerated. Her petition was accompanied by a sup-
porting memorandum in which she argues that Governor
Kotek’s revocation of her earlier conditional commutation
violates a variety of state and federal constitutional princi-
ples, including that the Governor lacks authority to revoke a
commutation after the expiration of a sentence. In response
to our order requiring the state to show cause why a writ of
habeas corpus should not issue, the state filed memoranda
contending that (1) the Governor had authority to revoke
plaintiff’s commutation after her sentence had expired;
(2) plaintiff, in accepting Governor Brown’s conditional
commutation, had waived her right to seek habeas relief or
otherwise challenge the revocation; and (3) plaintiff’s con-
stitutional challenges are meritless. Plaintiff counters that
the purported waiver in the acceptance agreement that she
signed is invalid or otherwise unenforceable.
After considering those filings, the court allowed
plaintiff’s petition and issued a writ of habeas corpus, and
then heard oral argument on May 2. Having now considered
the parties’ filings and their oral arguments, we conclude
that, when the Governor revoked plaintiff’s conditional com-
mutation, she lacked the authority to do so under the terms
of the commutation.
ANALYSIS
The Governor has the constitutional authority
to grant clemency, including commutations. Specifically,
Article V, section 14, of the Oregon Constitution provides, in
part:
266 Brown v. Kotek
“[The Governor] shall have power to grant reprieves, com-
mutations, and pardons, after conviction, for all offences
[sic] except treason, subject to such regulations as may be
provided by law. Upon conviction for treason [the Governor]
shall have power to suspend the execution of the sentence
until the case shall be reported to the Legislative Assembly,
at its next meeting, when the Legislative Assembly shall
either grant a pardon, commute the sentence, direct the
execution of the sentence, or grant a farther [sic] reprieve.”
The Governor is the “sole repository” of this consti-
tutional authority. Eacret et ux v. Holmes, 215 Or 121, 126,
333 P2d 741 (1958). In exercising her authority, however, “the
Governor is responsible for determining the constitutional-
ity of [her] actions in the first instance, and, to the extent
that this court may review those actions, the court does
so with that consideration in mind.” Haugen v. Kitzhaber,
353 Or 715, 720, 306 P3d 592 (2013), cert den, 571 US 1167(2014) (citing Lipscomb v. State Bd. of Higher Ed., 305 Or
472, 478-79, 753 P2d 939 (1988)); see Lipscomb, 305 Or at
478-79 (“Governors, legislators, and other public officials are
responsible in the first instance for determining their con-
stitutional duties[.]”). However, as we explained in Haugen,
that principle “does not exempt the Governor’s actions from
judicial review.” 353 Or at 720. In so explaining, we relied
on Lipscomb, in which the court had declined to adopt an
argument that the court should defer to a Governor’s under-
standing of her constitutional powers if arguably correct. Id.Thus, although this court does not have a role in reviewing a
governor’s exercise of discretion either to grant or to revoke
a conditional commutation, we can review whether the revo-
cation of plaintiff’s commutation exceeded the Governor’s
authority under these circumstances—when plaintiff was
no longer subject to any sentence at all. For reasons that
we will explain, even assuming (without deciding) that the
state and federal constitutions permit a Governor to revoke
a commutation after a commutee’s sentence has expired,
we conclude that the terms of the conditional commutation
in this case—which represents an agreement between the
Governor and plaintiff—preclude that result.
The Governor’s plenary power includes the power
to grant unconditional forms of clemency that require no
Cite as 372 Or 260 (2024) 267
assent by the commutee. Haugen, 353 Or at 739, 743 (con-
cluding that an unconditional reprieve was “valid and
effective, regardless of [the recipient’s] acceptance of that
reprieve”). Here, however, Governor Brown exercised her
plenary power through the issuance of a conditional com-
mutation order. In exchange for plaintiff having her remain-
ing term of incarceration commuted to post-prison supervi-
sion, the Governor required plaintiff to agree to be bound
by the acceptance agreement. In other words, the Governor
structured the exercise of her clemency power as something
akin to a contractual arrangement that required plaintiff’s
acceptance.4
As pertinent here, the acceptance agreement
required that plaintiff “abide by the terms and conditions
of any post-prison supervision that is imposed in connection
with the conditional and revocable commutation and her
Judgment of Conviction.” The text of the agreement thus
reflects that the Governor chose to incorporate the statu-
tory and regulatory PPS framework. The state acknowl-
edges as much in this court, stating that, when plaintiff was
released, “[s]he was placed on community supervision under
the authority of [BOPPS].” See OAR 213-005-0003 (“When
a term of post-prison supervision is imposed as part of a
sentence, the offender shall serve the term of supervision
in the community under the supervision of the Department
of Corrections or a corrections agency designated by the
Department.”). And the record reflects that, when plain-
tiff was alleged to have violated the conditions of her PPS
during the term of her supervision, a hearings process was
quickly initiated, plaintiff pleaded no contest and was found
in violation by a hearings officer, and she received a 30-day
jail sanction. See OAR ch 255, div 75 (describing procedures
for addressing alleged violations of PPS).
The acceptance agreement also included a provi-
sion, similar to the one in Governor Brown’s conditional
commutation, which provided that the Governor “may”
revoke the commutation if the Governor determined, in her
4
Given the circumstances of this case, where Governor Brown chose to
require plaintiff’s acceptance of the conditions in the commutation, we need
not—and do not—decide whether the Governor’s plenary power includes the
authority to impose conditions without a commutee’s consent.
268 Brown v. Kotek
discretion, that plaintiff had violated one of its conditions,
which would lead to plaintiff being required to “return to
prison to serve out her sentence that was remaining at the
time her commutation was granted according to the terms
of the Judgment of Conviction.” Before this court, the state
takes the broad and categorical position that, even though
plaintiff’s sentence had expired before her commutation was
revoked, the revocation provision allows any Governor—at
any time during plaintiff’s natural life—to revoke the com-
mutation and return her to prison upon a determination
that she violated the terms of the commutation while she
had been under supervision. As the state acknowledged at
oral argument, under its interpretation, revocation could
occur 50 years after plaintiff’s sentence had expired, result-
ing in her arrest and imprisonment at that time.
However, the state’s argument is inconsistent with
the Governor’s express incorporation of PPS—which is cir-
cumscribed by a statutory and regulatory framework—into
the terms of the commutation order and plaintiff’s accep-
tance agreement. PPS is a “term of community supervi-
sion.” OAR 213-005-0002(1) (emphasis added). That term
is determinate. See ORS 144.103 (providing for duration
of PPS); OAR 213-005-0002(2)(a) (same). Offenders5 are
required to “serve the term of supervision.” OAR 213-005-
0003 (emphasis added). If an offender is alleged to have
violated a condition of PPS, then, during the term of super-
vision, the offender may be arrested and a hearing is initi-
ated to determine if the offender violated the condition. See
ORS 144.350(1)(a)(A) (providing that a supervisory author-
ity “may order the arrest and detention of any person then
under the supervision, custody or control” of the supervisory
authority if there are “reasonable grounds to believe” that
the person has “[v]iolated the conditions of * * * post-prison
supervision” (emphasis added)). The initiation of a hear-
ing means that a “person under supervision is presented a
Notice of Rights.” OAR 255-075-0001(3) (emphasis added);
see also OAR 255-075-0005(3) (providing that, generally,
5
See OAR 255-005-0005(39) (defining “offender” as “[a]ny person under the
supervision of the Department of Corrections or a local supervisory authority
who is not presently in the custody of a correctional facility, including persons on
* * * post-prison supervision”).
Cite as 372 Or 260 (2024) 269
“the Sanction Authority shall impose administrative sanc-
tions or shall initiate a hearing within fifteen (15) days of
arrest or detention for the violation of parole or post-prison
supervision conditions”). Once initiated, jurisdiction over
the offender is retained until the proceedings are resolved.
See OAR 255-094-0020(1) (“During the pendency of vio-
lation proceedings, * * * the Releasing Authority retains
jurisdiction over the offender until the proceedings are
resolved.”). If an offender is found to have violated the con-
ditions of PPS after the hearing, or if the offender waives
the right to a hearing, administrative sanctions may be
imposed or PPS may be revoked. See OAR 255-075-0067
(describing authority to impose administrative sanctions or
revoke supervision). Ultimately, a term of PPS ends and the
sentence expires. See OAR 255-094-0020(3) (“After expira-
tion of the sentence of an offender on * * * post-prison super-
vision, the Releasing Authority shall send written notice of
the expiration to the offender and the supervisory author-
ity.”); see also ORS 144.085(6) (“The board shall send writ-
ten notification to the supervised offender of the expiration
of the sentence.”).
Thus, the PPS framework imposes a temporal limit
on the authority to sanction or revoke an offender’s post-
prison supervision for a violation of a condition: As a general
proposition, violation proceedings must be initiated while
the offender is under supervision (i.e., before the offender’s
sentence has expired) and not after the term of supervi-
sion has ended and the offender is no longer subject to any
sentence. See ORS 144.350(1)(a)(A) (providing that, if there
are “reasonable grounds to believe” that the person has
“[v]iolated the conditions of * * * post-prison supervision,” a
supervisory authority “may order the arrest and detention
of any person then under the supervision, custody or control”
of the supervisory authority (emphasis added)); OAR 255-
075-0001(3) (providing that a hearing is initiated when a
“person under supervision is presented a Notice of Rights”
(emphasis added)).
By specifying that plaintiff was obligated to serve
PPS, which is governed by a statutory and regulatory scheme,
her conditional commutation—together with the acceptance
270 Brown v. Kotek
agreement to which she was bound—incorporated the gen-
eral principle that the authority to sanction an offender for
a PPS violation, or to revoke the offender’s PPS altogether,
is time-limited and must be initiated before the offender’s
PPS term ends and while the offender remains subject to a
sentence. In this case, although the commutation and the
agreement clearly stated that the Governor, in her sole dis-
cretion, could revoke the commutation for a violation of its
conditions, there is no indication that the authority to revoke
would survive the expiration of plaintiff’s sentence. Nor is
there any indication that, contrary to the ordinary applica-
tion of the statutes and rules governing PPS, plaintiff would
face the prospect of revocation and future imprisonment
for the remainder of her life. Thus, by requiring plaintiff
to serve PPS, and without clearly expressing an intent to
depart from the temporal limitations that otherwise apply
to PPS, the Governor limited her own ability, and the ability
of any future holder of that office, to revoke the commutation
to the period of time before plaintiff’s PPS had ended and
her sentence had expired.
Here, it is undisputed that, in February 2023,
BOPPS issued its certificate stating that plaintiff had “com-
pleted the period of post-prison supervision imposed” and
that she was “expired from supervision.” At that point, plain-
tiff was no longer subject to any sentence. Accordingly, when
the Governor revoked plaintiff’s commutation in December
2023, she lacked the authority to do so under the terms of
the December 2020 order of conditional commutation.6
We emphasize that the foregoing conclusion is a
function of the way in which we understand Governor Brown
to have structured plaintiff’s conditional commutation. The
parties’ dispute before this court has focused on whether
the state and federal constitutions permit the Governor to
revoke a commutation following the expiration of a sentence.
That is a difficult question of first impression in Oregon,
and one on which other state courts have reached competing
6
Because it is undisputed in this case that plaintiff was not subject to any
sentence when the Governor revoked her conditional commutation, we need not—
and do not—decide the precise point at which the Governor’s authority to revoke
plaintiff’s conditional commutation of sentence ended.
Cite as 372 Or 260 (2024) 271
conclusions.7 But we need not resolve that question today,
because, even assuming that such authority exists, we
conclude that the December 2020 commutation order and
the acceptance agreement are self-limiting. By specifying
that plaintiff was obligated to serve PPS, without expressly
reserving the right of the Governor to revoke the commuta-
tion even after plaintiff’s sentence had expired, the commu-
tation and acceptance agreement preclude that authority.
That conclusion does not fully resolve this matter.
The state alternatively contends that plaintiff waived her
right to seek habeas relief and to challenge both Governor
Kotek’s revocation and her current imprisonment.
It is true that the acceptance agreement includes a
broadly worded waiver of plaintiff’s rights. Plaintiff contests
the validity of that waiver, asserting, among other things,
that the process resulting in her acceptance of the commu-
tation was “rushed” and that the implications of the waiver
were never explained to her; thus, she did not knowingly
and voluntarily agree to waive her right to challenge the
Governor’s revocation, or her current imprisonment, or her
right to seek habeas corpus under the circumstances.
In this case, however, we conclude that it is unnec-
essary to address those points. That is because, even if we
assume that plaintiff effected a valid waiver of some kind, we
decline to read the text of this waiver as broadly as the state’s
argument requires. The waiver provision can be interpreted
in a manner consistent with the ordinary understanding
of the PPS framework described above—i.e., that plaintiff
was waiving the right to challenge a revocation that was
initiated before the expiration of her sentence. By taking
the position that plaintiff forfeited the ability to challenge a
revocation that was ordered even after the completion of her
sentence, the state would have us conclude that plaintiff, in
7
Compare Rowell v. Dutton, 688 SW2d 474, 477 (Tenn Crim App 1985)
(“Thus we hold that the Governor’s authority to revoke exists only so long as
the commutee’s sentence has not expired. Any other result would mean that the
Governor and his successors in office would retain the power to revoke a commu-
tation throughout the balance of a commutee’s life, regardless of the offense, and
could lead to absurd results.”), with Beal v. Mayo, 70 So 2d 367, 368 (Fla 1954)
(“[R]ecommitment for breach of condition is proper notwithstanding the fact
that the period of original sentence has expired when the conditional pardon is
revoked.”).
272 Brown v. Kotek
exchange for being released from prison eight months early,
chose not only to accept the risk of future imprisonment for
a violation of the conditions of the commutation—without
process or the right of judicial review—but to run that risk
for the remainder of her life. Even assuming that a choice of
such gravity by a commutee could be enforceable—a ques-
tion we do not decide—we would require it to be expressed
with the utmost clarity. The acceptance agreement in this
case does not meet that standard. See State v. Meyrick, 313
Or 125, 131, 831 P2d 666 (1992) (observing that courts “are
reluctant to find that fundamental constitutional rights
have been waived”).
Accordingly, under the circumstances of this case,
we conclude that Governor Kotek lacked authority to revoke
plaintiff’s conditional commutation and that, as a result,
plaintiff’s present imprisonment is unlawful. We order
defendants to discharge plaintiff from custody immediately.
See ORS 34.700(1) (“If it appears that the party detained
is imprisoned or restrained illegally, judgment shall be
given that the party be discharged forthwith[.]”). We further
waive otherwise applicable appellate rules relating to recon-
sideration and the issuance of the appellate judgment, and
we direct the State Court Administrator to issue the appel-
late judgment immediately. See ORAP 1.20(5) (permitting
the court, for good cause and on its own motion, to waive
any rule of appellate procedure); ORAP 9.25 (providing for
reconsideration); ORAP 14.05(3)(b) (providing for the timing
of the issuance of the appellate judgment).8
It is hereby ordered that plaintiff immediately be
discharged from her illegal imprisonment. Pursuant to
ORAP 1.20(5) and notwithstanding ORAP 9.25 and ORAP
14.05(3)(b), the State Court Administrator shall issue the
appellate judgment immediately.
8
ORS 34.700(2) provides that a court “shall include in the judgment an order
that the defendant pay the attorney fees incurred by the petition, not to exceed
$100,” if “[t]he court enters a judgment requiring that the plaintiff be discharged”
and “[t]he court finds that the allegations or defenses in the return were frivo-
lous.” Under the circumstances, we do not find that the state’s position was frivo-
lous. For that reason, plaintiff is not entitled to attorney fees under the statute.