Jenkins v. Board of Parole ( 2013 )

NAKAMOTO, J.

On judicial review of a final order of the Board of Parole and Post-Prison Supervision (the board) postponing his scheduled release date from prison under ORS 144.125(3), petitioner asserts that the order is not supported by substantial evidence and reason. The board contends that the first sentence of ORS 144.335(3), added in 1999, excuses the board from a substantial-reason requirement. We conclude that the board’s reading of the statute runs counter to its text, context, and legislative history. As we did in Castro v. Board of Parole, 232 Or App 75, 220 P3d 772 (2009), we hold that ORS 144.335(3) requires the board to provide an inmate with some explanation of the rationale for concluding that the inmate’s parole date should be postponed. Thus, we reverse the board’s order for lack of substantial reason and remand.

After holding an exit interview with petitioner, the board issued an order postponing petitioner’s scheduled parole release date for 24 months pursuant to ORS 144.125(3)(a). That statute authorizes the board to defer parole release dates for inmates who suffer from a present severe emotional disturbance (PSED).¹ The board’s order states, in pertinent part:

“The record indicates that the offender committed his/ her crime(s) prior to/on or after 05/19/1988.

“The board has received a psychological evaluation on inmate dated 06/30/2008.

“Based on the doctor’s report and diagnosis, coupled with all the information that the board is considering, the board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to the health or safety of the community. The board has considered this matter under the laws in effect at the time of the commitment offense(s) and all other applicable rules and laws.

“The board defers release date for 24 months for a projected parole release date of 03/05/2011, for a total of 378 months. A review will be scheduled in 09/2010 with a current psychological evaluation.”

(Capitalization altered.)

On judicial review, petitioner contends that the board was required, but failed, to explain its reasoning as to its two conclusions, namely, (1) that he suffered from a PSED that made him a danger to the community and (2) that his scheduled release date should be deferred. He first asserts that the order’s deficiency violates the requirement in ORS 144.135, which requires the board to “state in writing the detailed bases of its decisions” regarding parole release dates.² Second, he relies on a subsection of the Oregon Administrative Procedures Act (APA), ORS 183.482(8)(c), made applicable to our review of board orders under ORS 144.335(3), that a reviewing court “shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record.” Third, he argues that we must reverse based on our decision in Castro, in which we held that the board’s orders must demonstrate substantial reason.

The board contends that Castro is not controlling because in that case we did not address the 1999 amendment to ORS 144.335(3) that, in its view, exempts the board from providing substantial reason for its decisions. That amendment resulted in what is now the provision’s first sentence: “The order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it appears that the board acted within the scope of the board’s authority.” Given the state’s contention that Castro does not control this case, we begin with a review of our decision in Castro.

As in this case, the petitioner in Castro challenged the board’s order postponing his parole release date on judicial review by arguing that the order was not supported by substantial evidence and reason. 232 Or App at 77. We held that ORS 144.335(3) requires review for substantial evidence and reason. Id. at 83. We noted that the second sentence of the statute plainly states that “this court ‘may affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8).’” Id. at 82. And, we noted that ORS 183.482(8)(c), in turn, provides that:

“The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”

Id. at 82-83 (internal quotation marks omitted). We stated that ORS 183.482(8)(c) requires “[substantial evidence review” and “requires that the board provide ‘some kind of an explanation connecting the facts of the case (which would include the facts found, if any) and the result reached.’” 232 Or App at 83 (quoting Martin v. Board of Parole, 327 Or 147, 157, 957 P2d 1210 (1998)). The Martin case on which we relied involved a challenge to the board’s order imposing a special condition of post-prison supervision, but construed a statutory requirement that, like the second sentence of ORS 144.335(3), provided for court review of the order “on the same basis as provided in ORS 183.482(8).” Martin, 327 Or at 149, 155 (internal quotation marks omitted).

We reversed and remanded in Castro, agreeing with the petitioner that the board’s order stated a mere conclusion and “that this case falls into the category that, under Armstrong [v. Asten-Hill Co., 90 Or App 200, 752 P2d 312 (1988)], requires the board to demonstrate its reasoning.” Id. at 85. We explained that the relevant portion of the board’s order

“is an announcement, not an explanation. It gives us nothing to judicially review. Our duty is to evaluate the board’s logic, not to supply it. Drew, 322 Or at 499-500 (review for substantial reason is based on the order itself, not our independent review of the record). We must therefore reverse and remand.”

Id. at 85-86. Thus, Castro requires that we review the board’s orders for substantial evidence and substantial reason.

We disagree with the board that ORS 144.335(3) must be read to exempt the board’s orders from judicial scrutiny for substantial reason in light of the 1999 amendment and that we must overrule Castro because we did not consider the effect of the 1999 amendment in our analysis of the statutory requirements for board orders. Both the text and context of ORS 144.335(3) compel us to hold the board to the APA’s requirements of substantial evidence and reason for orders pursuant to ORS 183.482(8)(c), and our reading of the text is supported by the legislative history. Contrary to the board’s argument, we conclude that Martin and Castro, as well as Gordon v. Board of Parole, 343 Or 618, 175 P3d 461 (2007), control in this case.

To “pursue the intention of the legislature if possible,” ORS 174.020(l)(a), we begin with the text and context of ORS 144.335(3) and then examine the legislative history. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). The full text of ORS 144.335(3) states:

“The order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it appears that the board acted within the scope of the board’s authority. The Court of Appeals may affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8). The filing of the petition shall not stay the board’s order, but the board may do so, or the court may order a stay upon application on such terms as it deems proper.”

The text of ORS 144.335(3) contradicts the board’s position. The second sentence of ORS 144.335(3) plainly states that our court “may affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8)” (Emphasis added.) As we recognized in Castro, given that second sentence, ORS 144.335(3) requires us to review the board’s order for substantial evidence and reason— requirements under ORS 183.482(8). 232 Or App at 82-83; see also Martin, 327 Or at 157 (“[T]he requirement of some kind of an explanation connecting the facts of the case (which would include the facts found, if any) and the result reached by an agency is a requirement of ORS 183.482(8), as that section has been construed authoritatively by this court.” (Emphasis added.)).

Our holding in Castro is consistent with the Supreme Court’s construction of ORS 144.335(3). In its relatively recent 2007 decision in Gordon, a case involving the board’s postponement of another inmate’s parole date on the basis of severe emotional disturbance, the Supreme Court explained that the “standards of review set out in ORS 183.482(8) reflect a legislative policy, embodied in the APA, that decisions by administrative agencies be rational, principled, and fair, rather than ad hoc and arbitrary.” 343 Or at 633. The court therefore reviewed the board’s order “to determine if the board’s findings, reasoning, and conclusions demonstrate that it acted in a rational, fair, and principled manner in deciding to defer petitioner’s parole release.” Id. at 634.

Contrary to the board’s reading, the first sentence of ORS 144.335(3) does not necessarily contradict the text of the second sentence. The first sentence states that an “order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it appears that the board acted within the scope of the board’s authority.” The sentence appears directed to the sufficiency of an order for judicial review, i.e., the elements of the order. The text of the first sentence appears to echo the Supreme Court’s emphasis in Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 21, 569 P2d 1063 (1977), which in part challenged the adequacy of a final decision of a local government in a contested land use proceeding:

“No particular form is required, and no magic words need be employed. What is needed for adequate judicial review is a clear statement of what, specifically, the decisionmaking body believes, after hearing and considering all the evidence, to be the relevant and important facts upon which its decision is based. Conclusions are not sufficient.”

In other words, basic elements of the order must be present for review.

In 1999, when the first sentence was added, the board was exempt from the APA requirement in ORS 183.470(2)³ that an agency prepare orders with “specific findings of fact and conclusions of law” in contested cases. Martin, 327 Or at 155 (emphasis added); see also ORS 183.315(1) (“The provisions of ORS * * * 183.470 *** do not apply to *** [the] State Board of Parole and Post-Prison Supervision.”). The first clause of that sentence — the board’s orders “need not be in any special form” — is consistent with and reaffirms the board’s exemption from having to provide specific findings of fact and conclusions of law in orders and its freedom to develop efficiencies in the forms of its orders to deal with its caseload. The second clause is less clear, stating that an order is sufficient for review if “it appears” that the board “acted within the scope of [its] authority.” Nevertheless, the text suggests that an order, on its face, should reflect to the reviewing court a proper basis for the board’s decision. How else does an order reflect that the board acted within the scope of its authority if not through some sort of explanation of the grounds for the decision and why the board determined that the grounds exist?

Under the board’s reading of the statute, a reviewing court would have to search the record, not the order, to determine whether the order reflects that the board acted within its authority. That follows from the board’s position that it does not have to tell the inmate or anyone else why it concludes that a statutory basis for postponing the inmate’s parole release date exists. If that is the case, the only way this court or any reviewing court can discern whether and to what degree the evidence contradicts the board is for the inmate and the court to painstakingly go through the record.

Our reading of the first and second sentences gives effect to both, in accordance with our normal approach in legislative construction to try to give effect to all parts of a statute. See ORS 174.010 (“ [W]here there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”); Force v. Dept. of Rev., 350 Or 179, 190, 252 P3d 306 (2011) (“Statutory provisions, however, must be construed, if possible, in a manner that will give effect to all of them.” (Internal quotation marks omitted.)). To accept the board’s construction would be to effectively write the second sentence out of ORS 144.335(3). Even assuming that the board’s reading of ORS 144.335(3) is “textually permissible, the better interpretation is the one that gives full effect to all the terms” of the statute. Friends of Yamhill County v. Board of Commissioners, 351 Or 219, 240, 264 P3d 1265 (2011).

We also consider the statute’s context. The context of a statute allows a reviewing court to “construe each part [of a statute] together with the other parts in an attempt to produce a harmonious whole.” Lane County v. LCDC, 325 Or 569, 578, 942 P2d 278 (1997). Context of a disputed statute includes “the preexisting common law and the statutory framework within which the law was enacted.” Klamath Irrigation District v. United States, 348 Or 15, 23, 227 P3d 1145 (2010). Thus, we can review “other provisions of the same statute, the session laws, and related statutes” for context. Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004). The context of ORS 144.335(3) supports a reading that requires the board to provide some explanation in its order and undercuts the board’s reading of the provision to allow the board simply to state a statutory ground for its decision.

Although the legislature amended ORS 144.335(3) by adding its first sentence in 1999, the legislature did not remove or amend the second sentence, which, again, provides that “[t]he Court of Appeals may affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8).” And, the legislature well understood that review “as provided in ORS 183.482(8)” referred to substantial-reason review, as the Supreme Court had held. See Martin, 327 Or at 157; Drew v. PSRB, 322 Or 491, 499-500, 909 P2d 1211 (1996). The legislature’s retention of the second sentence in 1999, despite the fact that appellate courts had said that it requires substantial-reason review, read together with the first sentence, indicates that the legislature intended to retain a requirement for the board’s orders to provide some explanation of reasoning sufficient for substantial-reason review, even though it need not be in a special form.

We also find context that supports that reading of ORS 144.335(3) in related statutes and rules. Of particular relevance is ORS 144.135, which requires the board to “state in writing the detailed bases of its decisions” regarding parole release dates. That, too, has never been removed, despite the 1999 amendment of ORS 144.335(3). Two terms in ORS 144.135 provide insight as to the requirements of the board’s orders: “detailed” and “decision.” Because the legislature did not define either of those two terms, their ordinary meaning is instructive. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). The noun “decision” means “an account or report of a conclusion.” Webster’s Third New Int’l Dictionary 585 (unabridged ed 2002). The adjective “detailed” is defined as “marked by abundant detail or by thoroughness in treating small items or parts,” and “detail,” in turn, means “a particularized account.” Webster’s at 616. Thus, the requirement in ORS 144.135 that the board’s order state the “detailed bases of its decision! ]” may be characterized as prescribing some particularized account of the bases of its conclusion, not merely a conclusory statement referring to the entire record.

One of the board’s own rules affirms that understanding of ORS 144.135. Its rule pertaining to postponement orders like the one at issue in this case is OAR 255-060-0013, which provides:

“Any order regarding the postponement of parole release shall be sent to the prisoner and shall set forth:

“(1) The facts and specific reasons for the decision and the individual votes of the Board members.

“(2) Notice of the right to administrative appeal pursuant to the procedures of division 80.”

The rule was in effect in 1999. Thus, the board then and now has itself recognized its obligation to provide an inmate with “facts and specific reasons” for a decision that results in postponement of the inmate’s parole release date.

In addition, under existing case law at the time of the 1999 amendment, it had been evident for years that some explanation of the basis for the decision beyond a mere conclusion was required in the board’s orders. Even before Martin, we had held more than once that the purpose of requiring the board to provide an explanation of how the board reached a decision is so that we can review the basis for the board’s action. See Harris v. Board of Parole, 47 Or App 289, 614 P2d 602, rev den, 291 Or 504 (1980). In Harris, we observed that, under the matrix system in effect, the board, and not a judge, “has the power to determine how long a person will be in prison.” Id. at 301. We emphasized that the board is required under ORS 144.135 to state the “detailed bases of its decisions.” Id. (internal quotation marks omitted). In light of that fact, we saw “no reason why more should be required of a trial judge than of the [b]oard” and that “[n] either the order before us, nor the rules, tell us why [the] petitioner was subjected to enhanced punishment.” Id. Thus, having “no basis to determine” the reasons for the board’s action, we reversed. Id.; see also Moore v. Ore. State Bd. of Parole, 54 Or App 369, 374, 635 P2d 3 (1981) (“When the Board deviates from the matrix range for unusual aggravating circumstances which have not been anticipated or described in the Board’s own rules, something more than a conclusory statement * * * is required.” (Emphasis omitted.)).

The case law also suggested that the level of detail the board was required to provide varied, depending on the type of decision the board was making. See, e.g., Anderson v. Board of Parole, 303 Or 618, 740 P2d 760 (1987). In that case, the Supreme Court examined whether the board’s written order not to override the court-imposed minimum sentence when setting the petitioner’s initial parole release date satisfied the requirements of ORS 144.135. 303 Or at 621. The court explained that, based on the board’s own rule requiring the affirmative vote of at least four board members to override a minimum sentence, the board is not required to

“state the facts and reasons for its actions in not overriding the minimum term. *** We interpret the rule to require the Board to state the facts and reasons for its actions only when four members of the Board find applicable one or more of the three categories”

listed in its own rule. Id. at 625 (emphasis added). The court concluded that no purpose would be served by requiring the board members to state their individual reasons for not voting to override the minimum sentence. Id. at 626.

We conclude that the context of the 1999 amendment to ORS 144.335(3) strongly suggests that the amendment did not change the requirement that we review the board’s orders for substantial reason. The legislature’s addition of the ambiguous first sentence does little to overcome the holdings in Martin and other cases that had been decided by 1999 and the text and context of the statute. Had the legislature intended to actually omit “substantial reason” review, it could and should have said so, as was proposed in the original version of Senate Bill (SB) 401, the bill introduced in 1999 in response to Martin. The initial version of SB 401 expressly stated that a covered agency need not “explain how the agency’s order is supported by the facts and the evidence in the record.”

Although the Supreme Court has stated that “analysis of the statutory text in context is primary,” the court “also has recognized that the proper analysis of statutory terms can be illuminated by reference to the legislative history of a statute.” State Treasurer v. Marsh & McLennan Companies, Inc., 353 Or 1, 12, 292 P3d 525 (2012). Other parts of the legislative history of SB 401 further support our reading of ORS 144.335(3).

The Oregon Department of Justice (DOJ) initiated the introduction of SB 401 after, and in response to, the Supreme Court’s decision in Martin. That bill would have amended ORS 183.482(8) in the APA to allow all agencies exempt from providing specific findings of fact and conclusions of law to also be exempt from having to “explain how the agency’s order is supported by the facts and evidence in the record.” In other words, the orders of a number of agencies, including the board, would not be subject to the substantial-reason requirement.

The judicial branch — the Oregon Judicial Department (OJD) — opposed SB 401. James Nass, Appellate Legal Counsel for the Oregon Supreme Court and Court of Appeals, testified that the board, and other agencies exempt from preparing formal factual findings and legal conclusions, should not be “totally exempt from providing some kind of reasoned explanation in their orders when the order comes before a court for judicial review.” Testimony, Senate Committee on Judiciary, SB 401, Feb 4, 1999, Ex C (statement of James W. Nass, Appellate Legal Counsel for the Oregon Supreme Court and Court of Appeals). OJD offered a proposed amendment that would gut SB 401 and replace its contents with a procedure within the APA that would allow such agencies, upon the filing of a petition for judicial review of an order and if needed, to issue a new order that “contains an explanation that connects the facts found by the agency with the result reached by the agency.” Id. At the first public hearing on SB 401 before the Senate Judiciary Committee, Nass explained that it was not always clear to a reviewing court what the board considered to be the evidence in support of its order, even by reading the record. Tape Recording, Senate Committee on Judiciary, SB 401, Feb 4,1999, Tape 27, Side A (statement of James W. Nass). Nevertheless, SB 401 with some amendments (not the amendment proposed by OJD) was moved from the committee to the Senate floor. Minutes, Senate Committee on Judiciary, SB 401, Feb 18, 1999.

When the bill moved to the House of Representatives, DOJ and OJD again took opposing positions on SB 401. Minutes, House Committee on Judiciary, SB 401, Mar 17, 1999. OJD’s opposition to the bill was even more vociferous. Nass told the House Committee on Judiciary that SB 401 is “bad public policy” and “will decrease the quality of judicial review of certain agency orders” and “tend to increase the work load of the appellate courts.” Testimony, House Committee on Judiciary, SB 401, Mar 17, 1999, Ex E (statement of James W. Nass). In no uncertain terms, OJD condemned the bill:

“There is nothing subtle about this bill. The bill starkly presents this policy issue: Should any governmental agency be exempt from explaining how its decisions are supported by the evidence in the record? Apparently these Boards would say yes. Under SB 401, their motto would be:

“‘We’re the Board. We don’t have to explain nothing to nobody.’

“According to these Boards, they shouldn’t have to explain their decisions to inmates whose fates lie in their hands. No problem there, of course, because few people have sympathy for criminals. But, this bill also means that the Boards would not have to explain their decisions to victims or victims’ families. They wouldn’t have to explain their decisions to the media. They wouldn’t have to explain their decisions to any legislator who might be interested in a particular case. And, they wouldn’t have to explain their decisions to the courts to aid in judicial review of those decisions. * * *”

Id.

Later, the bill was radically changed so that, as signed into law, it only added what is now the first sentence to ORS 144.335(3). Or Laws 1999, ch 618, § 1. DOJ explained to a House subcommittee that, in light of disagreement between OJD and DOJ on “the wisdom of the original proposal” in SB 401, Oregon’s Attorney General, the Chief Justice of the Supreme Court, and Justice Gillette, the author of Martin, “worked out” the “alternative language” and that it is “fair to say that everyone is satisfied with this now.” Tape Recording, House Committee on Judiciary, Subcommittee on Civil Law, SB 401, June 1,1999, Tape 185, Side A (statement of Assistant Attorney General Christine Chute).

When the bill was before the House, Representative Bowman asked “whether or not this bill would limit the information that inmates would receive as they are talking to the parole board about what they need to do to be released.” Tape Recording, House Floor, SB 401, June 11, 1999, Tape 113, Side B (statement of Rep Jo Ann Bowman). Representative Shetterly responded: “No, it does not limit the information that inmates are to receive. This bill deals only with the form of orders that would be transmitted from the case to the Court of Appeals for the purpose of judicial review.” Tape Recording, House Floor, SB 401, June 11,1999, Tape 113, Side B (statement of Rep Lane Shetterly).

Thus, the judicial branch strongly opposed SB 401 in its original form and pressed the public policy reasons and the practical need for some explanation by the board for a court to meaningfully assess one of the board’s orders without a searching review of the entire record. We conclude from the sparse legislative history that the amendment to ORS 144.335(3) did not change the requirement that an order of the board must contain enough information to allow a court to review it. OJD would not have been satisfied with an amendment that got rid of the requirement for some explanation of a decision in the board’s orders; OJD, it appears, agreed in a compromise that the board could present the bare minimum in an order that would allow meaningful judicial review, in whatever fashion the board deemed appropriate. See Gordon, 343 Or at 634 (holding that appellate courts review the board’s reasoning in its orders). Representative Shetterly’s statement assuring the representative from Northeast Portland, Representative Bowman, that there would be no change in the information inmates would receive so that they could understand what they needed to do to be released from prison also is consistent with that view of the amendment.

That view of the legislative history is also consistent with the textual analysis in context, including the continued inclusion of the second sentence in ORS 144.335(3) requiring review of the board’s orders for substantial reason. As noted earlier, the text of the amendment can be read to require that the order itself, not a review of the record, must establish that the board’s decision is in line with the “scope of [its] authority.” Taken together, the text, context, and legislative history lead to the conclusion that, although no particular form of order is required, the board must provide some explanation connecting key facts or at least portions of the record to the board’s conclusion, and, as noted earlier, the level of detail in the explanation may vary depending on the conclusion the board must justify.

We now apply that requirement to this case. The key portion of the board’s order states that, under the laws in effect at the time petitioner committed his offenses, “[b]ased on the doctor’s report and diagnosis, coupled with all the information that the board is considering, the board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to the health or safety of the community.” Petitioner notes that the board used the same boilerplate wording rejected in Castro, 232 Or App at 85 — “‘Based on the doctor’s report and diagnosis, coupled with all the information that the board is considering’” — to support its conclusion that the petitioner suffered from a PSED making him a danger to the health or safety of the community. It is apparent that the board’s order references the contents of the entire record, as opposed to particular parts of the record that were pivotal. The order, therefore, offers a mere conclusion and does not permit us “to determine if the board’s findings, reasoning, and conclusions demonstrate that it acted in a rational, fair, and principled manner in deciding to defer petitioner’s parole release.” Gordon, 343 Or at 634. Accordingly, we reverse and remand for the board to provide an explanation of its decision.

Reversed and remanded.

1 ORS 144.125(3)(a) provides:

“If the board finds the prisoner has a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, the board may order the postponement of the scheduled parole release until a specified future date. The board may not postpone a prisoner’s scheduled release date to a date that is less than two years, or more than 10 years, from the date of the hearing, unless the prisoner would be held beyond the maximum sentence. The board shall determine the scheduled release date, and the prisoner may petition for interim review, in accordance with ORS 144.280.”

2 Petitioner also asserts that the order is so deficient that it violates his due process rights under the Fourteenth Amendment to the United States Constitution. We do not reach that argument because we agree with petitioner as to the statutory requirements for substantial evidence and substantial reason in the board’s orders.

3 ORS 183.470(2) states that, in a contested case, a final order

“shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the agency’s order.”