Penn v. Board of Parole ( 2019 )

607
Argued and submitted March 4, at Lewis & Clark Law School, Portland,
Oregon; decision of Court of Appeals reversed, order of Board of Parole and
Post-Prison Supervision reversed, and case remanded to Board of Parole and
Post-Prison Supervision for further proceedings October 24, 2019
PRENTICE PENN,
Petitioner on Review,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent on Review.
(CA A162458) (SC S065950)
451 P3d 589
When petitioner was released from prison to post-prison supervision, the
Board of Parole and Post-Prison Supervision included a special condition in
its supervision order requiring that petitioner not enter into or participate in
any intimate relationship or encounters with any person without prior written
permission from his supervising officer. Petitioner requested review of the spe-
cial condition by the board, arguing that it was unconstitutionally vague and
overbroad and that the board lacked authority under the relevant statute, ORS
144.102(4)(a), to impose it. After those arguments were rejected by both the
board and the Court of Appeals, petitioner sought and obtained judicial review
by the Oregon Supreme Court. While that review was still pending, petitioner
was released from post-prison supervision, and the board moved to dismiss the
review as moot. Petitioner argued, however, that, although moot, his case was
reviewable under ORS 14.175, because he was challenging an act of a public body
that is capable of repetition but likely to evade judicial review in the future. The
court took the reviewability issue under advisement. Held: Petitioner’s challenge
to the special condition was reviewable under ORS 14.175, and the court would
exercise its discretion under that statute to decide it despite its mootness. On the
merits, the board acted outside of its statutory authority under ORS 144.102(4)(a)
by imposing the special condition on petitioner.
The decision of the Court of Appeals and the order of the Board of Parole and
Post-Prison Supervision are reversed, and the case is remanded to the Board of
Parole and Post-Prison Supervision for further proceedings.
En Banc
On review from the Court of Appeals.*
Anna Belais, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
______________
* Judicial review of a final order of the Board of Parole and Post-Prison
Supervision. 290 Or App 935, 415 P3d 597 (2018).
608 Penn v. Board of Parole
briefs for petitioner on review. Also on the briefs was Ernest
G. Lannet, Chief Defender.
Christopher Page, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
NAKAMOTO, J.
The decision of the Court of Appeals is reversed. The
order of the Board of Parole and Post-Prison Supervision is
reversed, and the case is remanded to the Board of Parole
and Post-Prison Supervision for further proceedings.
Cite as 365 Or 607 (2019) 609
NAKAMOTO, J.
When petitioner was released from prison to post-
prison supervision, the Board of Parole and Post-Prison
Supervision included a special condition in its supervision
order requiring that petitioner not “enter into or participate
in any intimate relationship or intimate encounters with any
person (male or female) without the prior written permis-
sion” of his supervising officer. On review, petitioner raises
two issues: first, whether the board lacked statutory author-
ity to impose the condition and, second, whether the condi-
tion is unconstitutional under the Due Process Clause of the
Fourteenth Amendment because it is vague or overbroad.
Preliminarily, reviewability is also at issue. After
petitioner filed his opening brief, the board moved to dis-
miss based on mootness. The board noted that petitioner
had completed his term of post-prison supervision and no
longer was subject to the challenged condition; therefore,
the board argued, a decision would no longer have a prac-
tical effect on petitioner’s rights and the case should be dis-
missed. Petitioner opposed dismissal, noting cases in which
the board has imposed that special condition on other people
under post-prison supervision, in accordance with its deci-
sion at a 2012 public meeting that it may impose the condi-
tion in the future. We took the motion under advisement.
We now hold that, although petitioner’s appeal is
moot, it is one that can and should be decided under ORS
14.175, which provides an exception to the general rule—
that moot cases should be dismissed—for cases in which
a party alleges that an act, policy, or practice of a public
body is contrary to law. On the merits of petitioner’s appeal,
we hold that the board exceeded the scope of its statutory
authority in imposing the special condition on petitioner.
I. BACKGROUND
The facts that are relevant to our review are not
in dispute and are taken from the board’s final order. In
2010, petitioner was charged with crimes after he violently
assaulted and threatened a woman he had been dating,
using weapons, to compel her to perform a sex act. The
incident was just one of several similar incidents that had
610 Penn v. Board of Parole
occurred during petitioner’s longstanding relationship with
her. Petitioner ultimately pleaded no contest to two of the
charges—attempted first-degree kidnapping constituting
domestic violence and attempted second-degree assault con-
stituting domestic violence. The trial court entered a judg-
ment of conviction on those charges and sentenced petitioner
to 84 months in prison, to be followed by 36 months of post-
prison supervision.
Upon his release from prison, petitioner received an
order listing the conditions of his post-prison supervision, as
required by ORS 144.102(1). Although the board ultimately
was responsible for setting the conditions of petitioner’s
post-prison supervision, they were the product of a statu-
torily required process that began with the Department of
Corrections. Under ORS 144.096(1)(a), the department must
prepare a proposed release plan for an inmate and submit it
to the board. The proposed release plan must include “recom-
mended conditions of post-prison supervision,” “[a]ny other
conditions and requirements as may be necessary to pro-
mote public safety,” and “[a]ny conditions necessary to assist
the reformation of the inmate.” ORS 144.096(3)(b), (d), (f).
Then the board must approve the proposed release plan,
or a revised version of it, before the inmate’s release, ORS
144.096(1)(b), (c), and must provide a copy of the conditions
imposed through the release plan to the inmate upon his or
her release, ORS 144.102(1).
The conditions imposed “may” include any of a
specified list of general conditions set out in ORS 144.102(2),
and for certain sex offenders, specified conditions set out
in ORS 144.102(3) and ORS 144.102(4)(b) must be imposed.
Additionally, the board is authorized under ORS 144.102
(4)(a) to “establish special conditions that the board * * * con-
siders necessary because of the individual circumstances of
the person on post-prison supervision.”
The board-approved supervision conditions in the
order that petitioner received included the general condi-
tions set out in ORS 144.102(2) and several special condi-
tions, including the one at issue that regulates petitioner’s
“intimate” relationships and encounters. With the assis-
tance of legal counsel, petitioner requested review of the
Cite as 365 Or 607 (2019) 611
order. He argued that that special condition, identified in
the order as Supervisory Condition 10 (SC 10), could not
lawfully be imposed and should be stricken. Petitioner con-
tended that SC 10 was outside the board’s statutory grant of
discretion, was not supported by substantial evidence in the
record, and was “an unconstitutional violation of the right to
privacy” and “vague and overbroad.”
In the ensuing administrative review, petitioner
submitted an affidavit, written by his fiancée, who was the
mother of his two sons, for the board’s consideration. In
that affidavit, his fiancée averred that petitioner had never
assaulted her or their sons and that her relationship with
him was based on “clear boundaries” and “appropriate ver-
bal, physical and sexual behavior.” She further averred that,
if SC 10 were to remain in effect, it would prevent her and
petitioner from having a healthy and functional marriage
and would prevent petitioner from fulfilling his roles as hus-
band and father.
The board denied the requested relief in a final
administrative order. After describing in detail the “vicious
assault” petitioner had perpetrated against “a woman you
had been dating and with whom you shared an intimate
relationship,” the board concluded that it was
“in the interest of public safety and your reformation for
your supervising officer to monitor any intimate relation-
ships and/or intimate encounters. It was these individual
circumstances that led the board to impose [SC 10].”
The board further noted that the condition was not an abso-
lute prohibition on petitioner engaging in intimate relation-
ships; rather, it allowed petitioner’s supervising officer to
“monitor and evaluate each situation to determine whether
[the] association is appropriate for your rehabilitation and is
consistent with public safety.” The board’s order concluded
by advising petitioner that he had exhausted his adminis-
trative remedies and could petition the Court of Appeals for
judicial review of the order.
Petitioner timely sought judicial review in the Court
of Appeals, raising the same arguments that he had raised
before the board. The Court of Appeals affirmed without
612 Penn v. Board of Parole
opinion. Petitioner then petitioned for review in this court,
arguing (1) that SC 10 was outside the range of discretion
delegated to the board by statute and (2) that SC 10 is
unconstitutionally vague and overbroad. This court allowed
the petition.
Midway through the proceedings before this court,
petitioner was discharged from post-prison supervision and
filed a notice informing the court of that fact and of his
understanding that the discharge likely had rendered his
appeal moot. Petitioner suggested, however, that the case
could and should be decided without regard to its mootness,
as permitted by ORS 14.175. That statute provides that a
court may decide a challenge to the lawfulness of an act,
policy, or practice of a public body, even one that no longer
has a practical effect on the party bringing the challenge, as
long as (1) that party had standing to commence the action;
(2) the challenged act “is capable of repetition” or the policy
or practice continues in effect; and (3) the policy, practice,
or similar acts “are likely to evade judicial review in the
future.”
The board subsequently moved to dismiss peti-
tioner’s appeal. The board argued that its imposition of the
challenged condition was not an act that was “capable of
repetition” but “likely to evade judicial review” within the
meaning of ORS 14.175 and that the appeal did not other-
wise meet the prudential requirements for reviewing a
moot action. We took the board’s motion for dismissal under
advisement, to be decided before consideration of the par-
ties’ arguments on the merits. We turn to that motion now.
II. MOTION TO DISMISS
Petitioner acknowledges, and we agree, that, given
that petitioner no longer is subject to the supervisory condi-
tion that he challenges, a decision by this court in the matter
will not have a practical effect on his rights—in other words,
his appeal is moot. See Eastern Oregon Mining Association
v. DEQ, 360 Or 10, 15, 376 P3d 288 (2016) (case in which a
court’s decision “no longer will have a practical effect on or
concerning the rights of the parties” is moot). However, that
does not necessarily mean that the board’s motion to dismiss
Cite as 365 Or 607 (2019) 613
must be granted. At least in cases like the present one, in
which the act of a public agency is challenged as contrary to
law, this court “may” decide the case even when a decision
would have no practical effect on the party who brought it,
assuming the requirements set out in ORS 14.175 are sat-
isfied.1 On the other hand, courts are not required to decide
any and every moot case that falls within the terms of ORS
14.175. As this court recognized in Couey v. Atkins, 357 Or
460, 522, 355 P3d 866 (2015), insofar as the statute uses the
permissive term “may,” it “leaves it to the court to determine
whether it is appropriate to adjudicate an otherwise moot
case under the circumstances of each case.”
At least initially, then, the issue regarding dismissal
of petitioner’s appeal boils down to two questions: (1) Does
the appeal satisfy the requirements of ORS 14.175? (2) If so,
should the court exercise its discretion to decide the appeal?2
We answer both questions in the affirmative and deny the
motion.
A. ORS 14.175
The text of ORS 14.175 is the necessary starting
point for answering the first question. State v. Gaines, 346
Or 160, 171, 206 P3d 1042 (2009) (“text and context remain
primary” in construing a statute). The statute, which has
remained unchanged since its enactment in 2007, provides:
“In any action in which a party alleges that an act, pol-
icy or practice of a public body, as defined in ORS 174.109, or
1
Any questions about the constitutional authority of courts to decide moot
cases that meet the requirements of ORS 14.175 have been resolved by Couey v.
Atkins, 357 Or 460, 520, 355 P3d 866 (2015). Couey held that ORS 14.175 does not
run afoul of the limitations on “judicial power” conferred on the courts in Article
VII (Amended), section 1, of the Oregon Constitution by authorizing courts to
entertain public actions that, although moot, are capable of repetition yet likely
to evade review.
2
Petitioner argues, and we agree, that ORS 14.175 does not necessarily rep-
resent the full scope of a court’s constitutional authority to decide moot cases.
See generally Couey, 357 Or at 520-22 (Article VII (Amended), section 1, of the
Oregon Constitution does not require dismissal when “public actions cases or
cases involving matters of public interest” become moot; court need not deter-
mine the outer limits of what constitutes a “public action” or “case involving mat-
ters of public interest” to determine that cases that meet the requirements of
ORS 14.175 are covered). In this case, however, there is no need to look beyond
ORS 14.175 for authority to decide petitioner’s appeal despite its mootness.
614 Penn v. Board of Parole
of any officer, employee or agent of a public body, as defined
in ORS 174.109, is unconstitutional or is otherwise con-
trary to law, the party may continue to prosecute the action
and the court may issue a judgment on the validity of the
challenged act, policy or practice even though the specific
act, policy or practice giving rise to the action no longer has
a practical effect on the party if the court determines that:
“(1) The party had standing to commence the action;
“(2) The act challenged by the party is capable of repe-
tition, or the policy or practice challenged by the party con-
tinues in effect; and
“(3) The challenged policy or practice, or similar acts,
are likely to evade judicial review in the future.”
(Emphases added.)
There is no dispute over the first requirement set
out in the statute: When petitioner commenced the present
action, he was subject to SC 10 and had standing to chal-
lenge its lawfulness. Neither is there any argument that the
statute’s overarching requirement—that the action be one
in which “a party alleges that an act, policy or practice of a
public body * * * is unconstitutional or contrary to law”—is
not satisfied.3 Rather, the dispute centers on the require-
ments at ORS 14.175(2) and (3) that the challenged act be
“capable of repetition” and that “similar acts” likely will
“evade judicial review.”
1. Act “capable of repetition”
The board contends that its “act” of imposing SC 10
on petitioner is not “capable of repetition” or “likely to evade
3
The parties do disagree about whether petitioner is challenging the lawful-
ness of a “policy” or “practice” of the board, in addition to an “act.” In petitioner’s
response to the board’s motion to dismiss, he provides minutes from the board’s
January 26, 2012, public meeting stating that the board “unanimously agreed to
add back into Special Condition #10” the wording of SC 10 “for domestic violence
convictions, assaults or any other case where they feel it is necessary for public
safety.” Though the board “does not dispute that it has imposed” SC 10 in “other
cases involving domestic violence conditions,” it contends that the minutes do not
reflect its policy or practice but instead reflect the adoption of wording for the
board’s use in exercising its discretion. The board further argues that petitioner
has never challenged a board policy or practice in imposing SC 10. Because we
decide this case based on the board’s imposition of SC 10 as an act capable of
repetition, we do not resolve petitioner’s “policy or practice” issue.
Cite as 365 Or 607 (2019) 615
judicial review” within the meaning of ORS 14.175(2) and (3).
The board argues that, when the legislature enacted ORS
14.175, it “borrowed and codified” the common-law “capable
of repetition” doctrine first recognized and developed in fed-
eral cases, see Couey, 357 Or at 480 (so stating), and that it is
appropriate to rely on federal cases in determining the legis-
lature’s intentions with respect to the scope and application
of ORS 14.175.
Under most of the federal cases that define the doc-
trine, the board observes, an act is deemed to be “capable
of repetition” only if there is a “reasonable expectation that
the same complaining party would be subjected to the same
action again.” Weinstein v. Bradford, 423 US 147, 149, 96
S Ct 347, 46 L Ed 2d 350 (1975). See also Federal Election
Com’n v. Wisconsin Right to Life, Inc., 551 US 449, 463, 127
S Ct 2652, 168 L Ed 2d 329 (2007) (capable of repetition excep-
tion requires reasonable expectation or demonstrated proba-
bility that the same controversy will recur involving the same
complaining party); Murphy v. Hunt, 455 US 478, 482, 102
S Ct 1181, 71 L Ed 2d 353 (1982) (same).4 Furthermore, the
board observes, federal courts have not found the required
“reasonable expectation that the same complaining party
would be subjected to the same action again” when some
specified misconduct on the complaining party’s part is a
necessary precondition for such repetition. See Honig v.
Doe, 484 US 305, 319, 108 S Ct 592, 98 L Ed 2d 686 (1988)
(“[F]or purposes of assessing the likelihood that state
authorities will reinflict a given injury, we generally have
been unwilling to assume that the party seeking relief will
repeat the type of misconduct that would once again place
him or her at risk of that injury.”). See also Murphy, 455
US at 482-83 (in challenge to denial of pre-trial bail, find-
ing insufficient probability that same complaining party
would once again be in a position to demand bail); City of
4
The cited decisions—and most modern federal cases on the subject—
articulate a two-part test for when the “capable of repetition yet evading review”
doctrine may operate to save a moot case from dismissal:
“(1) the challenged action was in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there was a reasonable expecta-
tion that the same complaining party would be subjected to the same action
again.”
Weinstein, 423 US at 149.
616 Penn v. Board of Parole
Los Angeles v. Lyons, 461 US 95, 105-08, 103 S Ct 1660, 75
L Ed 2d 675 (1983) (no expectation that party seeking injunc-
tion against police use of chokeholds would be stopped in the
future for a criminal offense and, if stopped, would provoke
use of chokehold); O’Shea v. Littleton, 414 US 488, 497, 94
S Ct 669, 38 L Ed 2d 674 (1974) (in challenge claiming dis-
crimination in bond setting and sentencing, court concluded
that “attempting to anticipate whether and when these
[same] respondents will be charged with crime and will be
made to appear before either petitioner takes us into the
area of speculation and conjecture”).
Applying those principles from the federal cases
to the present circumstances, the board asserts that any
expectation that petitioner himself would again be subjected
to a condition like SC 10 must rest on a string of assump-
tions the likes of which the federal courts consider specula-
tive: that petitioner will commit and be convicted of another
crime, that he will receive a sentence that includes a period
of post-prison supervision, and that the board will use its
discretionary authority under ORS 144.102(4)(a) to impose
a special condition that is the same or similar to SC 10. In
such circumstances, the board concludes, there can thus
be no “reasonable expectation” that the “same complaining
party” will again be subject to the objectionable supervision
condition. Thus, the board argues, assuming that the mean-
ing of ORS 14.175 is informed by the federal doctrine thus
explicated, the imposition of SC 10 as a condition of peti-
tioner’s post-prison supervision is not “capable of repetition”
in the sense required by ORS 14.175(2).
Petitioner accepts the board’s broader point that, in
enacting ORS 14.175, the legislature borrowed the “capable
of repetition yet evading review” doctrine. But he argues
that that does not resolve precisely which formulation of
the doctrine that the legislature intended to adopt. In fact,
petitioner observes, the words that the legislature chose in
enacting ORS 14.175—the “best evidence” of what the leg-
islature intended, State v. Walker, 356 Or 4, 13, 333 P3d
316 (2014)—are at odds with the judicial formulation of the
doctrine that the board offers; therefore, he argues, the leg-
islature did not intend to adhere to that formulation.
Cite as 365 Or 607 (2019) 617
As an initial matter, this court’s statements in
Couey about the legislative history of ORS 14.175 do not sup-
port a singular focus on the federal formulation of the doc-
trine. To be sure, Couey described how the legislature “bor-
rowed and codified a judicially created doctrine” and stated
that, when the legislature borrows such a judicially created
doctrine, “that case law is highly persuasive evidence of
the legislature’s intentions.” 357 Or at 480. But the court in
Couey then went on to discuss the adoption of the “capable
of repetition” doctrine by both the federal and state courts—
without alluding to any particular formulation of the doc-
trine. Id. at 480-82. Thus, there is no reason to assume
from our decision in Couey that, in enacting ORS 14.175,
the Oregon legislature intended to adopt or to apply a strict
doctrine as set out in the federal cases on which the board
relies.
Reviewing the text and context of ORS 14.175(2),
we conclude that the meanings of words and phrases in
that subsection are not controlled by the board’s cited fed-
eral cases. Our conclusion is driven by context, specifically
(1) the existence of doctrinal variations concerning the
meaning and application of the “capable of repetition” con-
cept when the legislature enacted the statute and (2) other
wording in ORS 14.175.
First, the formulation of the doctrine set out in the
cases that the board cites is not—and was not at the time
the legislature enacted ORS 14.175—universally accepted
or applied by state courts. Some state courts have defined
the “capable of repetition” aspect of the doctrine in a dif-
ferent and less restrictive way. Some state courts do not
require a showing that the same party will be subjected to
the challenged action in the future. See, e.g., Byrd v. Irmo
High School, 321 SC 426, 431-32, 468 SE 2d 861 (1996)
(dispensing with the requirement that there be a reason-
able expectation that the “same complaining party” would
be subject to the challenged action again); Loisel v. Rowe,
233 Conn 370, 382-83, 660 A2d 323 (1995) (doctrine applies
when challenged action is of short duration, there is likeli-
hood that issue will arise again and will affect “either the
same complaining party or a reasonably identifiable group
618 Penn v. Board of Parole
for whom that party can be said to act as surrogate,” and
the issue has “public importance”). Other state courts have
adopted less stringent “capable of repetition” requirements
when an action by a government body is challenged. See, e.g.,
Okada Trucking Co. v. Board of Water Supply, 99 Hawaii
191, 197, 53 P3d 799 (2002) (court would not dismiss “where
a challenged governmental action would evade full review
because the passage of time would prevent any single plain-
tiff from remaining subject to the restriction complained of
for the period necessary to complete the lawsuit”).
And even the federal courts do not adhere in every
case to all the particulars of the doctrine as articulated in
the cases cited by the board. More than one commentator
has observed that the United States Supreme Court some-
times ignores the “same complaining party” element of
the federal formulation and focuses on the fact that other
similarly situated persons will continue to be affected by
the challenged conduct. See, e.g., Honig, 484 US at 335-36
(Scalia, J., dissenting) (suggesting that tendency to omit
“same complaining party” element was limited to cases
involving abortion and election deadlines); Matthew I. Hall,
The Partially Prudential Doctrine of Mootness, 77 Geo Wash
L Rev 562, 590-93 (2009) (noting that federal courts have
regularly omitted “same complaining party” element in
abortion, election, residency requirement, and other cases).
Second, bearing in mind the doctrinal variation
that existed when the legislature “borrowed and codified a
judicially created doctrine,” Couey, 357 Or at 480, we note
that, in two respects, the text of the statute departs from the
formulation of the doctrine concerning moot cases that the
board recites. As discussed, the federal doctrine on which
the board relies contains two elements that must combine to
avoid the general rule that moot cases should be dismissed:
“(1) the challenged action [must be] in its duration too short
to be fully litigated prior to its cessation or expiration, and
(2) there [must be] a reasonable expectation that the same
complaining party would be subjected to the same action
again.” Murphy, 455 US at 482; Wisconsin Right to Life, 551
US at 463. The federal rule thus stated applies to any sort
of action that becomes moot. But ORS 14.175 is limited to
Cite as 365 Or 607 (2019) 619
challenges to an “act, policy or practice of a public body.”
That limitation does not appear directionless. That cate-
gory of actions is congruent with the historical category of
actions in Oregon known as “public actions,” which courts
historically could consider without regard to whether the
person bringing the action had a personal stake in the out-
come. Couey, 357 Or at 516; see also id. at 508-10, 521-22(discussing this court’s historically recognized authority to
decide “public actions” and cases “involving matters of pub-
lic interest”—regardless of the plaintiff’s personal stake). A
“public action” encompasses proceedings that challenge “the
lawfulness of an action, policy, or practice of a public body,
and such matters are precisely those to which ORS 14.175
applies.” Id. at 522. In addition, the federal rule applies only
to actions of short duration (or, at least, to those that are too
short in duration to be fully litigated before their expira-
tion). But ORS 14.175 by its terms contemplates that some
challenged conduct (“similar acts” or the “policy or practice”)
will be ongoing (“continues in effect”), even if the application
of the ongoing conduct to the challenging party is not.
Those stark differences between ORS 14.175 and
the federal common law doctrine of “capable of repetition yet
evading review,” as articulated and developed in Murphy,
Wisconsin Right to Life, and other cases cited by the board,
undermine the argument that the legislature intended to
strictly enact the federal doctrine as articulated by the
board. Although those cases may be persuasive evidence
of the legislature’s intention regarding the general under-
pinning of ORS 14.175 (as we suggested in Couey), they are
significantly less persuasive when it comes to the meaning
and scope of words and phrases in ORS 14.175 that are not
part of the federal formulation noted by the board. What
that ultimately means is that we decide what the legislature
intended by “an act challenged by the party” being “capable
of repetition,” for purposes of ORS 14.175(2), in accordance
with our usual interpretive paradigm, without following in
lockstep the federal cases analyzing and applying the fed-
eral doctrine that the board cites.
Under our interpretive paradigm, the words that
the legislature used in the enactment are the best evidence
620 Penn v. Board of Parole
of the legislature’s intention. Here, the phrase “capable of
repetition” in ORS 14.175(2) is a term of art that hearkens
back to the numerous federal and state cases, starting
with Southern Pacific Terminal Co. v. Interstate Commerce
Comm., 219 US 498, 31 S Ct 279, 55 L Ed 310 (1911), that use
the same phrase to describe an exception to the usual rule
that moot cases should be dismissed.
Although, as we have discussed, those cases do not
unanimously describe the doctrine, they share a common
feature: At the very least, the party seeking relief must
establish that it is reasonable to believe that the person
or entity whose act is being challenged will repeat the act
or continue it in a way that will similarly affect someone.
See, e.g., Southern Pacific Terminal, 219 US at 515 (“The
question involved in the orders of the Interstate Commerce
Commission are usually continuing * * *, and these consid-
erations ought not to be, as they might be, defeated by short
term orders, capable of repetition, yet evading review, and
at one time the government, and at another time the carriers,
have their rights determined by the commission with-
out a chance of redress.” (Emphasis added.)). That broad
idea—that there is a reasonable potential that the act will
recur to a similar effect—seems to be what the legislature
intended to convey by the phrase an “act” that is “capable of
repetition.”
Other parts of ORS 14.175 provide context and sug-
gest that the legislature did not intend the requirement that
the “act” be “capable of repetition” to be so strict that it would
demand a showing of the potential for a recurrence to the
same party and in identical circumstances. First, insofar as
ORS 14.175(2) provides the same exception when a person’s
challenge to a “policy or practice [that] continues in effect”
becomes moot, the focus appears to be on the continuing con-
duct of the public body, rather than the identity of the person
affected. As noted, the statutory focus on actions, policies,
or practices of a public body is consistent with this court’s
historic case law permitting adjudication of “public action”
cases that are moot. Additionally, the fact that ORS 14.175(3)
refers to “the challenged policy, practice or similar acts”
evading review suggests that the legislature understood
Cite as 365 Or 607 (2019) 621
that variation in the particulars of the public body’s act as it
might recur should not stand in the way of review.
Legislative history confirms that understanding.
During one of the public hearings on House Bill 2324 (2007),
which created ORS 14.175, an attorney involved in consti-
tutional cases expressed support for the bill and explained
that the bill would provide courts with authority to decide
cases such as those involving student journalists or issues
related to elections. Audio Recording, House Committee
on Judiciary, HB 2324, Apr 19, 2007, at 1:04:06 (state-
ment of Charles Hinkle), http://records.sos.state.or.us/
ORSOSWebDrawer/Record/4211424# (accessed Oct 17, 2019).
Special Counsel to the Attorney General, Philip Schradle,
appearing on behalf of the Department of Justice, followed.
He suggested that the committee make changes to the bill,
including, among other things, adding a requirement that
the challenged act and resulting injury to the party be
“capable of repetition as to that party.” Id. at 1:20:10 (state-
ment of Philip Schradle). He explained that the statutory
requirement then would hew more closely to the federal
requirements for hearing moot cases. Id. at 1:23:00.
But Representative Gregory Macpherson, who was
the bill’s carrier, responded that the suggested change would
“significantly blunt the effect that we’re trying to get here.”
He explained that the reason that the bill had come up in the
first place was to protect the constitutional rights of student
journalists; thus, it would need to apply to students who had
graduated and who would not themselves suffer the problem
again. Id. at 1:22:25 (statement of Gregory Macpherson).
The exchange between Schradle and Representative
Macpherson was followed by additional remarks from a
representative from the American Civil Liberties Union of
Oregon, Hinkle, and Representative Bonamici about why a
requirement of repeated injury to the “same party” would
foreclose decisions on important cases and would be a bad
idea. Id. at 1:25:10 (statements of Andrea Meyer, Charles
Hinkle, and Suzanne Bonamici). Hinkle further noted that
even the United States Supreme Court had not consistently
applied the “same party” requirement that the Department
of Justice was proposing. Id. at 1:28:14. The phrase proposed
622 Penn v. Board of Parole
by the Department of Justice and opposed by others at the
hearing—“as to that party”—was not added to the bill.
Thus, it appears from the legislative history that the legisla-
ture made a deliberate decision to reject the federal “capable
of repetition” doctrine that the state advances in this case
and to permit courts to decide cases in which there was no
chance that the particular party would be affected again.
We conclude that ORS 14.175(2) requires that the
act of the public body that no longer is affecting the plaintiff
or complaining party be reasonably susceptible to repetition
as to someone. Nothing in the case law that has interpreted
or applied ORS 14.175 is to the contrary. And though there
are statements to the contrary in cases discussing the com-
mon law “capable of repetition” doctrine as it has developed
in the federal courts, for the reasons set out above, we con-
clude that those cases are not controlling, or even particu-
larly persuasive, with respect to the meaning of words and
phrases in ORS 14.175(2).
Applying ORS 14.175(2) in this case, the challenged
act—the board’s imposition of a condition of post-prison
supervision requiring a supervised person to obtain his or
her supervising officer’s written permission before enter-
ing into an “intimate” relationship or encounter—is rea-
sonably susceptible to repetition. The board acknowledges
that it has imposed SC 10 in “other cases involving domes-
tic violence conditions.” And evidence submitted by peti-
tioner shows that, at a 2012 meeting, the board discussed
a “Special Condition 10,” with wording that is identical to
SC 10 at issue here, “for domestic violence convictions,
assaults or any other case where they feel it is necessary for
public safety.” Whether or not that is evidence of a “policy”
of the board, within the meaning of ORS 14.175(2), it shows
that the board has agreed that the condition may be applied
when a supervised person has been convicted of a certain
category of common crimes. That agreement suggests a sig-
nificant potential that the board’s “act” of imposing SC 10 as
a condition of post-prison supervision will be repeated.
2. “Likely to evade judicial review”
The board also argues that the present circumstances
do not satisfy the requirement set out in ORS 14.175(3) that
Cite as 365 Or 607 (2019) 623
the challenged act or similar acts will be “likely to evade
judicial review in the future.” The board begins by observ-
ing that an act of a public body generally will “evade review”
because it is too short in duration to be fully litigated before
it ceases or expires. It then points to two appellate cases in
which a supervised person’s challenge to the board’s author-
ity to impose a special condition of supervision was fully lit-
igated before the person was discharged from supervision
(and the challenged condition) as evidence that challenges of
that nature can be fully litigated while the person is subject
to supervision. See Martin v. Board of Parole, 327 Or 147,
957 P2d 1210 (1998); Ferry v. Board of Parole, 293 Or App
216, 427 P3d 1123 (2018). But, as this court noted in Couey,
the fact that there are a few reported cases in which a party
in similar circumstances was able to complete the litigation
before the challenged act ceased or expired is insufficient to
establish that the act is not likely to evade review. 357 Or at
483.
As the board acknowledges, other reported cases
concerning a petitioner’s special condition of post-prison
supervision have been rendered moot when the petitioner
completed his or her term of supervision before a judicial
decision was rendered. See, e.g., State v. Fries, 212 Or App
220, 230, 158 P3d 10 (2007), aff’d, 344 Or 541, 185 P3d 453
(2008). Given that terms of post-prison supervision gen-
erally range from one to three years, see generally Oregon
Felony Sentencing Guidelines Grid, OAR ch 213, App 1, and
an appeal of a board’s imposition of a special condition of
post-prison supervision has never been litigated through a
decision by this court in less than three years,5 we conclude
that the board’s imposition of such conditions is “likely to
evade review” if the ordinary rule directing dismissal of
moot cases applies.6
5
Martin, 327 Or 147 (over three years from order of supervision to decision
by this court); Weems/Roberts v. Board of Parole, 347 Or 586, 227 P3d 671 (2010)
(over five years from orders of supervision to decision by this court).
6
Similarly, we do not view the companion case to Penn pending before this
court and decided today, Tuckenberry v. Board of Parole, 365 Or 640, 451 P3d
227 (2019), as precluding a determination that a case involving a party under
supervision who challenges post-prison supervision conditions established by the
board usually will become moot before a decision of this court can be issued.
Tuckenberry involves a challenge by a petitioner with a post-prison supervision
term that is longer than most (three years and nine months), and our decision
624 Penn v. Board of Parole
We accordingly conclude that petitioner’s challenge
to the board’s imposition of SC 10 as a condition of his post-
prison supervision meets all the requirements set out in ORS
14.175. Therefore, it “may” be reviewed by this court despite
its mootness, should the court exercise the discretion that
ORS 14.175 extends. See Couey, 357 Or at 522 (ORS 14.157
does not require court to review otherwise moot case that
satisfies statutory requirements; court determines “whether
it is appropriate [to do so] under the circumstances of each
case”).
B. Exercise of Discretion
Although the board suggests that the issues in this
case are not ones that merit an exercise of the court’s dis-
cretion under ORS 14.175 because they arise in the context
of “a specific exercise of the board’s discretion to impose spe-
cial conditions in light of the specific factual circumstances
presented by petitioner’s criminal hitory,” we are persuaded
that a decision will have broader relevance. Petitioner raises
a serious challenge to the statutory authority of the board
and the constitutionality of the board’s imposition of SC 10.
Additionally, the issues have great importance to many peo-
ple, including many present and future supervised persons
and persons who wish to have or continue intimate relations
with them. We conclude that this case is a proper one for
an exercise of discretion. Although a decision on the mer-
its no longer will have any practical effect on petitioner
himself, the court nevertheless will decide the case on its
merits.
III. THE MERITS
As discussed, petitioner challenges the board’s impo-
sition of SC 10 as a condition of his post-prison supervision
on two grounds: (1) the board lacked statutory authority to
impose the condition and (2) the condition is unconstitution-
ally vague and overbroad. We begin and end with the first
ground, concluding that the board exceeded its authority in
imposing SC 10.
issues over three years after the board imposed the challenged condition in that
case.
Cite as 365 Or 607 (2019) 625
The board’s authority to impose conditions of post-
prison supervision on a person who will be under its super-
visory authority is set out in ORS 144.102. Certain general
conditions that “may” be imposed on any such person are set
out in subsection (2), and conditions that “shall” be imposed
on groups of supervised persons required to report as sex
offenders or convicted of certain crimes are set out, respec-
tively, in subsection (3) and paragraphs (4)(b), (c), and (d).
Paragraph (4)(a), the relevant provision in this case, pro-
vides the board with authority to impose “special” conditions
based on the supervised person’s individual circumstances:
“The board * * * may establish special conditions that
the board * * * considers necessary because of the individual
circumstances of the person on post-prison supervision.”
(Emphasis added.)
While acknowledging that paragraph (4)(a) invests
the board with authority to impose special conditions, peti-
tioner notes that the board’s authority is limited by the
requirement that the conditions be ones that the board “con-
siders necessary” because of the supervised person’s indi-
vidual circumstances. What is more, petitioner adds, the
“necessity” that limits the board’s authority must be deter-
mined by reference to two goals—the promotion of public
safety and assisting in the reformation of the supervised
person—that are identified in another post-prison supervi-
sion statute, ORS 144.096(3).7 See Weems/Roberts v. Board
of Parole, 347 Or 586, 598, 227 P3d 671 (2010) (board may
approve special conditions “based on what may be necessary
‘to promote public safety’ and ‘to assist the reformation of
the inmate’ ”); Martin, 327 Or at 159 (for purposes of ORS
7
ORS 144.096(3) provides that a post-prison release plan, prepared by
the Department of Corrections in consultation with the board and ultimately
approved by the board, must include:
“(b) The recommended conditions of post-prison supervision;
“* * * * *
“(d) Any other conditions and requirements as may be necessary to promote
public safety;
“* * * * *
“(f) Any conditions necessary to assist the reformation of the inmate.”
(Emphases added.)
626 Penn v. Board of Parole
144.102(4)(a), “the ‘necessity’ of special conditions must be
determined in reference to the statutory objectives * * *,
namely, the protection of public safety and the reformation
of the offender”).
Thus far, petitioner’s explanation of the board’s
authority under ORS 144.102(4)(a) to impose special condi-
tions does not differ substantially from the explanations in
this court’s own cases. However, petitioner argues that the
term “necessary” has additional significance, not evident in
those cases: He contends that, by using the term, the leg-
islature limited the board’s authority to impose only those
conditions that the board reasonably could consider “logi-
cally necessary, essential, or indispensable” to the goals of
reforming the offender and protecting public safety.
As a result, petitioner argues, the board erred in
two respects when it refused to remove SC 10 from his order
of post-prison supervision. First, he argues that the board
misinterpreted the term “necessary” to mean something
akin to having any “logical nexus” between a special con-
dition and the statutorily recognized goals of reformation
and public safety, rather than logical necessity. He points
out that, in its final order rejecting petitioner’s challenge to
SC 10, the board stated only that the condition was “in the
interest” of the statutory goals of public safety and offender
reformation. He concludes that the board went beyond the
bounds of its authority to impose special conditions under
ORS 144.102(4)(a).
Second, petitioner argues that the board could not
reasonably have considered SC 10 indispensable or essen-
tial to the statute’s public safety and reformation goals.
Petitioner suggests that the term “necessary” requires a
special condition to be narrowly tailored or proportional to
the specific risk that it seeks to address. In regard to the
risk that he supposedly presents, petitioner assumes that
the board concluded that petitioner might commit acts sim-
ilar to those that resulted in his convictions in the context
of some future intimate relationships or encounters. But, in
his view, completely regulating all his “intimate” affairs, as
SC 10 does, goes beyond what would be adequate to mitigate
that risk.
Cite as 365 Or 607 (2019) 627
Both of petitioner’s arguments ultimately assume
that the term “necessary” in ORS 144.102(4)(a) has the
meaning that he assigns to it—logically required, essential,
or indispensable—but which the board disputes. The par-
ties also are at odds over a precursory issue: this court’s
authority to determine the term’s meaning. While petitioner
asserts that, in this context, “necessary” is an inexact stat-
utory term, the meaning of which is a determination for the
courts, the board contends that, when read in the context
of the phrase “the board * * * considers necessary,” the term
reflects a delegation of policymaking authority to the board,
leaving the courts with only one task: to determine whether
the board’s actions fall within the general scope of the legis-
lature’s delegation.
A. Inexact or Delegative Terms
In arguing over the nature of this court’s review of
the board’s order, the parties allude to the framework, first
announced in Springfield Education Assn. v. Springfield
School Dist. No. 19, 290 Or 217, 621 P2d 547 (1980), for
determining the role that a court plays in reviewing an
administrative agency’s actions under a statute that the
agency is required to administer. In Springfield, this court
identified three categories of terms that might appear in
such statutes, each of which requires a different approach
to the agency’s understanding and application of the stat-
ute. Two are at issue in this case. “Inexact” terms embody a
complete expression of the legislature’s intentions, but those
intentions are not evident, and it is for the courts to inter-
pret them and the legislative policy they convey, and then
to decide whether the agency action conforms to that policy.
Id. at 224-28. “Delegative” terms “express non-completed
legislation which the agency is given delegated authority to
complete.” Id. at 228-29. The only role of appellate courts
with respect to such delegative terms is to ensure that the
agency exercises the authority delegated to it “within the
range of discretion allowed by the more general policy of the
statute.” Id. at 229.8
8
The third category, “exact” terms, are terms that unambiguously con-
vey a complete policy choice by the legislature. They require no interpretation,
and courts will only review the agency’s application of the statute to determine
628 Penn v. Board of Parole
Petitioner contends that the term “necessary” in
ORS 144.102(4)(a) is inexact and was intended by the legis-
lature as a limitation on the kind of special condition that
the board may impose. The board contends that the term
is delegative. According to the board, by authorizing it to
impose special conditions that it “considers necessary,” the
legislature was delegating to the board the task of deter-
mining how best to use special conditions to further public
safety and offender reformation. In light of that delegation,
the board argues, this court must defer to the standard that
the board has chosen to apply in choosing special conditions,
which is that such conditions need only be rationally related
to the noted objectives.
The question whether the term “necessary” is inex-
act or delegative in this context is one of legislative intent,
and we address it as we would any other question of stat-
utory construction. OR-OSHA v. CBI Services Inc., 356 Or
577, 588, 341 P3d 701 (2014). In OR-OSHA, we identified
a number of considerations that are helpful in determin-
ing whether a given statutory term expresses an incom-
plete legislative meaning and, thus, is delegative, including
(1) whether the court has concluded that the term, or one like
it, is delegative in another context; (2) whether the term is
defined by statute or, on the other hand, susceptible to many
different interpretations; (3) whether the term is one that
invites a value or policy judgment; and (4) whether other,
related provisions suggest a legislative intent that the term
be considered a delegation. Id. at 590.
With respect to the first consideration, both par-
ties identify cases in which this court has placed the term
“necessary” in the category they believe to be the correct
one. The board points to Diack v. City of Portland, 306 Or
287, 299, 759 P2d 1070 (1988), in which this court concluded
that the statutory requirement, applicable to the Water
Resources Commission, that the free-flowing character of
certain waters “be maintained in sufficient quantities nec-
essary for recreation, fish and wildlife uses” delegated to the
commission the authority to determine the level of stream
whether it is within the unambiguously stated policy. Springfield, 290 Or at 223-
24. Neither party contends that the term at issue here is an exact term.
Cite as 365 Or 607 (2019) 629
flow needed for those purposes, “which may themselves dif-
fer from time to time.” Petitioner relies on J.R. Simplot Co. v.
Dept. of Agriculture, 340 Or 188, 197-98, 131 P3d 162 (2006),
in which this court rejected the Department of Agriculture’s
claim that a provision that directed it to collect fees for its
product inspection services that are “reasonably necessary
to cover the cost of inspection and [program] administra-
tion” delegated policymaking authority to the board and
held, instead, that the phrase was an “inexact” term that
expressed a complete legislative policy.
The differing outcomes in Diack and Simplot sug-
gest that it is important to look, not just at whether a word
has been deemed in other cases to be inexact or delegative
in other contexts, but at the underlying analysis. If we apply
that suggestion to Diack, all we can say is that the case is
relatively devoid of explanation as to why the “necessary for
* * * uses” phrase was deemed delegative. See Diack, 306 Or
at 299. Simplot, on the other hand, persuasively explains
why “reasonably necessary to cover [costs]” expresses an
inexact but complete policy choice. Specifically, the court in
Simplot explained that the statute at issue set out a com-
plete policy objective (that the agency’s inspection program
be self-funding) and used the phrase “reasonably necessary
to cover [costs]” to specify the relationship that must exist
between that complete legislative policy and the vehicle
identified by the legislature for pursuing the policy, i.e., fees.
340 Or at 197-98.
That explanation from Simplot seems to be relevant to
the context in which “necessary” is used in ORS 144.102(4)(a),
namely, the phrase “the board * * * considers necessary.” As
noted above, 365 Or at 625-26, ORS 144.102(4)(a) has been
deemed to convey two goals of post-prison supervision to be
achieved by the imposition of special conditions of super-
vision. The term “necessary” describes the required rela-
tionship between the goals (which themselves represent a
complete legislative policy) and the conditions of supervision
that are the vehicles for pursuing those goals. At least under
the analytical construct used in Simplot, the phrase “consid-
ers necessary because of the individual circumstances of the
person on post-prison supervision” is part of a more or less
defined instruction as to how the board is to carry out the
630 Penn v. Board of Parole
complete policy choice expressed in the goals that are asso-
ciated with ORS 144.102(4)(a)—not a general delegation of
authority to the board to refine and complete an incomplete
policy.
Turning to the second consideration enumerated in
OR-OHSA, regarding the specificity of the term’s defini-
tion, we note that the term “necessary” is not defined for
purposes of ORS 144.102(4)(a). And though the term may
be “susceptible” to many interpretations depending on the
circumstances, as the board suggests, it is not a term that in
itself has a broad range of meanings in ordinary parlance.9
As to the third consideration set out in OR-OSHA,
the word “necessary” does not call for a value judgment or
policy judgment in this context. The only policy judgment
that is relevant has already been made—completely—by the
legislature, as expressed in the goals of promoting public
safety and assisting in reformation and in the identification
of special conditions as a vehicle for achieving those goals.
And though the board contends that the word “considers”
turns the phrase “considers necessary” into one calling for
a value judgment, we are not persuaded: ORS 144.102(4)(a)
does not ask for the board’s considered opinion as to whether
a condition is fair, reasonable, or desirable—the kind of con-
siderations that would involve value judgments, OR-OSHA,
356 Or at 590—but instead whether it is “necessary” for
specific objectives.
Finally, with respect to the fourth consideration
from OR-OSHA (whether related provisions suggest that
the legislature intended a delegation), the board offers the
whole of ORS 144.102 as evidence of a legislative intent to
delegate authority to the board to devise any special condi-
tion it believed would be helpful. Boiled down to its essence,
the board’s argument is that, given the list of specific con-
ditions that may or shall be imposed, subsection (4)(a) must
be understood as a “backstop in the statutory framework to
ensure that the board may impose conditions [that account]
for a particular offender’s circumstances.” Yet it does not
follow that the legislature placed no limitations on that
9
See below, 365 Or at 632 (definition of “necessary”).
Cite as 365 Or 607 (2019) 631
“backstop” authority. Instead, there are recognized stat-
utory objectives for which, in the board’s consideration, a
condition must be necessary. We see nothing in the other
paragraphs of ORS 144.102, or any other related provision,
that indicates a legislative intent that ORS 144.102(4)(a) be
understood as a delegation of policy-making authority.
Based on our examination of the four considerations
identified in OR-OSHA, we conclude that, in the context of
ORS 144.102(4)(a), the word “necessary” is not a delega-
tive term that grants authority to the board to complete an
incomplete legislative policy. Rather, it is an inexact term,
the intended meaning of which is for this court to determine.
B. What the Legislature Intended by the Phrase “considers
necessary”
The board argues that the term “necessary,” even
if it is an inexact rather than a delegative term, still has
a broad range of meanings and, in the phrase “considers
necessary,” simply means “useful” or “convenient.” Thus, the
board contends that any condition that it considers useful
to, or as having a rational nexus to, the statutory objec-
tives of public safety and reformation of criminal offenders
is permissible. Petitioner maintains that ORS 144.102(4)(a)
authorizes only special conditions that, in light of the super-
vised person’s individual circumstances, a reasonable board
would consider indispensable or essential to the statutory
objectives. In his view, that means that any restriction in a
special condition must be proportionate to the specific risk
of harm that the offender purportedly poses. Although we
agree with petitioner that the board proffers an understand-
ing of the statute that is contrary to the ordinary meaning
of the term “necessary,” we also reject petitioner’s construc-
tion of the statute.
The term “necessary” is undefined in the statute,
and there is no reason to think that the legislature had any-
thing other than the ordinary meaning of that word in mind.
See PGE v. Bureau of Labor and Industries, 317 Or 606, 611,
859 P2d 1143 (1993) (in construing a statute, court assumes
that the legislature generally uses words in their “plain,
natural, and ordinary” senses). The definition of “necessary”
632 Penn v. Board of Parole
that appears in Webster’s Third New Int’l Dictionary 1510
(unabridged ed 2002)10 does not comport with the board’s
interpretation, because all the senses of “necessary” that
appear in the definition convey some sense of requirement
or obligation. Despite the variation in the ordinary meaning
of the word, the possibilities do not extend to a point where
“necessary” can mean merely “useful” or “having a rational
nexus to.”
The board’s suggestion to the contrary is based on
the definition of “necessary” in Black’s Law Dictionary 1029
(6th ed 1990):
“The word [(necessary)] must be considered in the connec-
tion in which it is used, as it is a word susceptible to var-
ious meanings. It may import absolute physical necessity
or inevitability, or it may import that which is only conve-
nient, useful, appropriate, suitable, proper, or conducive to
the end sought.”
That definition quotes a passage from an early Oklahoma
case, Kay County Excise Board v. Atchison, 185 Ok 327, 91
P2d 1087 (1939), and relies on the importance of context
rather than what “necessary,” by itself, means in ordinary
parlance. If the board hopes to show that the term, as used
in the statute, is so stripped of its ordinary meaning that
“having a rational nexus to” is an adequate substitute, then
it must identify specific contextual cues that point in that
direction.
In that respect, the board makes three context-based
arguments. First, the board returns to its previous argu-
ment that, considering the context of ORS 144.102 as a
whole, paragraph (4)(a) functions as a backstop to allow the
board to account for an individual offender’s circumstances
10
Webster’s Third New Int’l Dictionary 1510 (unabridged ed 2002) defines
“necessary” as follows:
“1 a : that must be by reason of the nature of things : that cannot be otherwise
by reason of inherent qualities : that is or exists or comes to be by reason of
the nature of being and that cannot be or exist or come to be in any other way
: that is determined and fixed and inevitable * * * b : of, relating to, or having
the character of something that is logically required or logically inevitable or
that cannot be denied without involving contradiction * * * 2 : that cannot be
done without : that must be done or had : absolutely required : ESSENTIAL,
INDISPENSABLE.”
Cite as 365 Or 607 (2019) 633
and must be read to give the board the broadest possible
discretion. However, as we already have stated, there is no
necessary incompatibility between the board’s authority to
impose special conditions, “backstop” or not, and limiting the
board to special conditions that have something more than a
rational nexus to the goals that the statute references.
Second, the board notes that the statute looks to
whether the board “considers” the special condition to be
“necessary.” In its view, the fact that the board considers
whether conditions are necessary implies a mere “rational
nexus” review.
And third, the board relies on two of this court’s
cases to support its construction of ORS 144.102(4)(a). From
Weems/Roberts, the board quotes the court’s explanation,
in upholding the board’s imposition of certain special con-
ditions, that the conditions were “a logical way for the board
to further the safety of the public, as well as the offender’s
reformation and ‘reintegration into the community.’ ” 347
Or at 600. And in Martin, the board observes, this court ‘s
explanation for upholding the special condition at issue (a
bar on entering a large portion of the state where there was
a chance, albeit a low one, that the offender might encoun-
ter his victim) seemed to look at whether the condition was
a reasonable response to the risk of an accidental meeting,
which appeared to be the board’s primary concern. 327 Or
at 159-60.
We agree with the board that the word “considers”
plays an important role in understanding what the legis-
lature intended through ORS 144.102(4)(a). The statute
authorizes conditions that “the board * * * considers neces-
sary.” As relevant to the present usage, “consider” means
“to think of : come to view, judge, or classify.” Webster’s at
483. Thus, using the ordinary meanings of “necessary” and
“considers,” a court would not review whether the condition
in fact is logically required or essential to promote one or
both of the statutory objectives (“to promote public safety”
and “to assist the reformation of the inmate,” ORS 144.096
(3)(d), (f)); rather, ORS 144.102(4)(a) is premised on the board
viewing the condition that way. The board does not contend
that we should review SC 10 solely for whether the board in
634 Penn v. Board of Parole
fact applied the standard and considered the condition to
be necessary, nor do we consider the statute to imply such
a minimal standard of review. That presents the question
of the extent to which the legislature intended a reviewing
court to defer to the board’s view.
For several reasons, we decline to read the statute
as the board does, that is, as a grant of discretion to impose
special conditions that is so broad that it calls for a court to
review an imposed condition for what amounts to review for
any rational basis. First, the legislature did not expressly
describe the board’s authority as a broad grant of discretion,
as it did in ORS 144.101(3) (providing that, upon request of
person who challenges a local supervisory authority’s impo-
sition of conditions of supervision or sanctions for violating
those conditions, the board “shall review the request and
may, at its discretion, review the conditions and sanctions,
under rules adopted by the board”). Second, the legislature
used “necessary”—not “advisable,” “useful,” “helpful,” “suit-
able,” or similar imprecise standards suggesting a broader
range of choices—for the board’s imposition of a special
condition. Considering the ordinary meanings of the word
“necessary”—such as “logically required,” “essential,” and
“indispensable,” we doubt that the legislature intended a
court to review the imposition of a condition for a rational
nexus or basis. Instead, the plain meaning of the text sug-
gests that a court should review whether the board met the
statutory standard in imposing a special condition by con-
sidering whether the board did and reasonably could view
it as essential to promote public safety or assist in offender
reformation.
At the same time, we reject the stringent, identified-
risk standard that petitioner advocates. First, petitioner’s
proposed standard implies that the board must make spe-
cific findings and must expressly state the risk of harm to
be addressed by the condition in its order, but this court in
Martin rejected that position, which the supervised person
also had argued. See 327 Or at 158-60. Second, petitioner’s
proposed standard appears to limit the scope of consider-
ations that the board can take into account, reducing the
board’s discretion to a single, narrow target: the mitigation
Cite as 365 Or 607 (2019) 635
of a specific risk of harm that the board identifies. But the
board can and must consider advancing one or both of the
dual goals of public safety and offender reformation in the
light of the supervised person’s specific circumstances,
including the supervised person’s current and prior convic-
tions, history and background, record of conduct, and the
risk of future harm that that conduct suggests. See Weems/
Roberts, 347 Or at 595 (noting that individual circumstances
“focuses, specifically, on the offender, not the offense”);
id. at 596-98 (discussing information the board may con-
sider before imposing special conditions).
We conclude that ORS 144.102(4)(a) authorizes the
board to impose any condition that, in light of the super-
vised person’s individual circumstances, the board reason-
ably could view as essential to or required for one or both of
its broad objectives of “promoting” public safety and “assist-
ing” in an offender’s reformation. The standard that we
adopt both follows closely from the text of ORS 144.102(4)(a)
and the objectives stated in ORS 144.096(3)(d) and (f) and
is consistent with the outcomes in the Weems/Roberts and
Martin cases. As noted, the board may consider and impose
special conditions that promote or assist the statutory objec-
tives, which is different from accomplishing the objectives.
This court in Weems/Roberts alluded to that point, empha-
sizing the words “to promote” and “to assist” in the descrip-
tion of the statutory objectives when it rejected a petitioner’s
proposal that special conditions must be tailored to address
only “certain or immediate risks to public safety or offender
reformation,” as reflected in evidence of “recent, significant
conduct.” 347 Or at 598. And this court concluded in Martin
that, once the board had “weighed the different interests
of the parties,” the board could impose special conditions
of post-prison supervision to address any substantial dan-
ger with regard to promoting public safety and assisting the
supervised person’s reformation. See Martin, 327 Or at 159-
60 (explaining that the board had expressly weighed inter-
ests of parties and was not required to impose conditions so
narrowly that “they would permit a substantial danger” that
the supervised person would encounter the victim, which
“would be a psychological disaster” for the victim). That
conclusion in Martin, which permits the board to address
636 Penn v. Board of Parole
substantial dangers with respect to either of the dual stat-
utory objectives, is consistent with our holding that permits
the board to impose special conditions when it reasonably
concludes that, in light of the supervised person’s individual
circumstances, the conditions are essential to or required to
promote public safety or to assist in the offender’s reforma-
tion. Thus, we reject the board’s argument based on Weems/
Roberts and Martin.
C. Application to Petitioner’s Statutory Challenge
Having articulated the board’s undertaking when
it considers the imposition of special conditions under ORS
144.102(4)(a), we turn to petitioner’s statutory challenge to
the board’s imposition of SC 10. In view of our holding, we
consider whether the board did and reasonably could view
imposition of SC 10—a condition that requires petitioner to
obtain his supervising officer’s permission before entering
into any “intimate” relationship or encounter—to be essen-
tial in petitioner’s case to advance or promote one or both of
the goals of public safety and offender reformation.
The board contends that, in the context of SC 10,
“intimate” means only “sexual” and, assuming that limited
meaning, that the condition imposes a necessary restric-
tion. With respect to the public safety objective, the board
explains that, because petitioner had established a pattern,
in the context of a sexual relationship, of using physical
abuse and threats to force the other person in the relation-
ship to perform sexual acts, it reasonably was concerned
that petitioner would repeat the same behavior in another
sexual relationship or encounter. By requiring petitioner
to obtain permission from his supervising officer before
entering into a sexual relationship or encounter, the board
believed that the supervising officer could evaluate and
monitor those contacts and ensure that petitioner was not
harming other sexual partners. With respect to the objec-
tive of offender reformation, the board similarly points to
the abusive pattern that petitioner had formed within the
context of a sexual relationship and then explains that, by
requiring petitioner to obtain his supervising officer’s per-
mission before entering into the sexual “environment” in
which the impulse to act abusively might recur, the board
Cite as 365 Or 607 (2019) 637
hoped to spark reflection in petitioner about such impulses
as well as dialogue between petitioner and his supervising
officer about his conduct that might guide him along a path
toward reformation.
Though it might be reasonable for the board to con-
sider a restriction on petitioner’s sexual relationships and
encounters as essential to advance the board’s public safety
and reformatory goals, the word “intimate” in SC 10 is not
limited to that meaning. The central feature of SC 10 as writ-
ten is the breadth of the restriction it places on petitioner.
The ordinary meaning of “intimate” is broad—essentially,
to be “marked by a very close physical, mental or social asso-
ciation, connection, or contact.” Webster’s at 1184. As that
definition reflects, a relationship that is “intimate” could
just as easily be describing a familial one, such as between
a parent and child; a close friendship; or a sexual relation-
ship.11 In short, the category of human contact that SC 10
purports to regulate reasonably could be interpreted to
include any ongoing or short-lived contact with a person
with whom petitioner shares a close emotional, social, or
physical connection.
Although petitioner raised the breadth of the phrase
“intimate relationships or intimate encounters” in his ini-
tial administrative challenge to SC 10, the board declined
to modify the phrase in response to that concern and only
now maintains that it pertains exclusively to sexual rela-
tionships and encounters. In the absence of additional word-
ing or context that establishes unambiguously that the
11
The definition of “intimate” is further explicated with 10 different sub-
senses, four of which seem to pertain to relationships with other people:
“e : showing or fostering close personal interests and relations rather than
those colder and more distant, formal, or routine : suggesting or further-
ing easy unreserved personal expression, feeling, or relationships through
smallness, exclusiveness, limitation, or privacy * * *”
“f : marked by or appropriate to very close personal relationships : marked
by or befitting a relationship of love, warm or ardent liking, deep friendship,
or mutual cherishing <always ~ relations between a mother and her young
child –Edward Westermarck> * * *”
“g : of, relating to, or befitting deeply personal (as emotional, familial, or
sexual) matters or matters usu. kept private or discreet * * *”
“h : engaged in or marked by sexual relations : sexual, marital * * * [.]”
Webster’s at 1184.
638 Penn v. Board of Parole
narrower meaning—“sexual”—is intended, a person of ordi-
nary intelligence will not know, with any degree of certainty,
whether the condition extends to close social and mental
relationships and other close physical relationships as well
as sexual ones.12
On review, the board has not argued that petitioner
should be precluded in advance from living with or engag-
ing in a close relationship with his children, other relatives,
and friends, and it has not asserted that a broad condition,
as we and petitioner read SC 10, legitimately advances the
board’s statutory goals. Indeed, we can think of no reason
why requiring a supervising officer’s permission before peti-
tioner engages in all such contacts or relationships would be
essential to advancing the board’s goals of assisting in peti-
tioner’s reformation or promoting public safety.
Accordingly, we conclude that the board could not
reasonably consider the imposition of SC 10 as a condition
of petitioner’s post-prison supervision to be essential to its
broad objectives of public safety and offender reformation as
they apply to petitioner’s particular circumstances. It fol-
lows that, in imposing SC 10 on petitioner, the board acted
beyond the statutory authority it has with respect to impos-
ing special conditions of post-prison supervision.
IV. CONCLUSION
We conclude that, although the board enjoys sig-
nificant authority under ORS 144.102(4)(a) to impose spe-
cial conditions of post-prison supervision, it acted outside of
that statutory authority by including SC 10 in its order of
post-prison supervision with respect to petitioner. Thus, the
board erred in denying petitioner’s request for relief from
SC 10, and the Court of Appeals erred in affirming that
denial. In light of our holding, we do not reach petitioner’s
arguments that SC 10 is unconstitutionally overbroad and
vague.
12
We also note that the term is inherently subjective: Different individuals
may have vastly different ideas of what would mark a relationship or encounter
as “close” or “intimate.” The result is that a supervised person who is subject to
the condition could have little certainty as to whether a contemplated relation-
ship or encounter is one that must be authorized in advance by the supervising
officer, while a supervising officer charged with enforcing the condition could
apply it arbitrarily or in a way that was not intended.
Cite as 365 Or 607 (2019) 639
The decision of the Court of Appeals is reversed. The
order of the Board of Parole and Post-Prison Supervision is
reversed, and the case is remanded to the Board of Parole
and Post-Prison Supervision for further proceedings.