Thomsen v. Board of Parole ( 2024 )

No. 482 July 10, 2024 703
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STEPHEN M. THOMSEN,
Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON
SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A180442
Argued and submitted June 3, 2024.
Anna Sammons argued the cause and filed the briefs
for petitioner. Also on the brief was Law Office of Anna P.
Sammons.
Philip Thoennes, Senior Assistant Attorney General,
argued the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Brad Mullen, Certified Law Student.
Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Reversed and remanded.
704 Thomsen v. Board of Parole
TOOKEY, P. J.
Petitioner seeks judicial review of a 2022 order of
the Board of Parole and Post-Prison Supervision that set
petitioner’s sex offender notification level (SONL) at Level
2. On review, petitioner contends that the board’s rules with
respect to setting an individual’s initial SONL are invalid,
because those rules “assess[ ] risk at the time of release from
supervision, however long ago that may have been, and fail[ ]
to consider any additional evidence of current, present-day
risk, no matter how compelling.” As petitioner sees it, pur-
suant to ORS 163A.100,1 the board is required to “create
a methodology that assesses and classifies sex offenders by
present risk of re-offense,” and the board’s rules are invalid
because they fail to do that.
For the reasons below, we agree with petitioner. We
conclude that the board’s rules in OAR chapter 255, division
085, which aim to “assess the registrant’s risk as it was at
the time of their release from their index offense,” OAR 255-
085-0005, and not their “present[ ] * * * risk of reoffending,”
ORS 163A.100, are invalid. Specifically, we conclude that
OAR 255-085-00052 and OAR 255-085-0020,3 which we
1
ORS 163A.100 provides:
“The State Board of Parole and Post-Prison Supervision shall, in consul-
tation with community corrections agencies, adopt by rule a sex offender risk
assessment methodology for use in classifying sex offenders. Application of
the risk assessment methodology to a sex offender must result in placing the
sex offender in one of the following levels:
“(1) A level one sex offender who presents the lowest risk of reoffending
and requires a limited range of notification.
“(2) A level two sex offender who presents a moderate risk of reoffending
and requires a moderate range of notification.
“(3) A level three sex offender who presents the highest risk of reoffend-
ing and requires the widest range of notification.”
2
OAR 255-085-0005 provides, in pertinent part:
“(1) A classifying agency at initial classification and reassessment will
assess the registrant’s risk as it was at the time of their release from their
index offense. A classifying agency will not consider desistance when using
the Static-99R instrument to assess an individual. If the Static-99R coding
manual, Exhibit STATIC-99R, and Board rules conflict, Board rules prevail.”
3
OAR 255-085-0020(6) requires that a “classifying agency,” when conduct-
ing assessments for the purpose of setting an adult male’s SONL, place regis-
trants in “Notification Level 2” or “Notification Level 3,” if that would have been
their notification level “at the time of release from the index sexual offense,”
Cite as 333 Or App 703 (2024) 705
understand to be the subject of petitioner’s challenge, are
invalid.4 That result follows from our opinion in Sohappy v.
Board of Parole, 329 Or App 28, 46, 540 P3d 568 (2023),
where we concluded that “the board’s charge under ORS
163A.100 is to classify sex offenders into one of three notifi-
cation levels based on their risk of reoffending at the time of
the assessment.” We reverse and remand.
I. BACKGROUND
In 2017, in California, petitioner was convicted of
two counts of “annoying or molesting [a] child under 18
years of age” in violation of California Penal Law section
647.6(a). He was sentenced to three years of probation and
was ordered to register as a sex offender.
Petitioner subsequently moved to Oregon and, pur-
suant to Oregon law, he was required to register as a sex
offender in this state. See ORS 163A.020 (describing report-
ing requirements for people moving into Oregon). In 2022,
over five years after his conviction, the board determined
that, based on petitioner’s score of four on the Static-99R,5
without considering “as part of the risk assessment the reduction of risk due to
time offense-free in the community.”
4
We note that the current versions of OAR 255-085-0005 and OAR 255-085-
0020 were effective August 16, 2022, before the board issued the order that is the
subject of this judicial review. On review, both parties take the position that the
current version of those rules are at issue.
We also note that petitioner does not clearly identify specifically which of
the board’s rules he requests that we invalidate on review, nor does the board
suggest which rules we would need to invalidate if we agree with petitioner’s
arguments. But, based on the issues squarely raised in the parties’ briefing and
at oral argument, we understand OAR 255-085-0005 and OAR 255-085-0020 to
be at issue regarding how the board conducts its initial assessments. Further,
our conclusion regarding those two rules obviates the need to address petitioner’s
arguments concerning what he calls his “statutory right to seek administrative
review of * * * risk classification” under ORS 163A.105(7)(c) and the board’s rules
related to that statute.
5
As we explained in Sohappy:
“The Static-99R is an actuarial risk assessment instrument designed
to assess risk of sexual recidivism for adult males who have already been
charged with or convicted of at least one sex offence against a child or a
non-consenting adult. The most recent sex offense for which a person has
been arrested, charged, or convicted is the index offense. A person is scored
on 10 factual items pertaining to their personal and criminal history at the
time of the index offense or, for certain items, at the time of release for the
index offense: (1) the person’s age at release for the index sexual offense;
(2) whether the person ever lived with an intimate partner for two continuous
706 Thomsen v. Board of Parole
petitioner was a level two offender—i.e., that he presented
a “moderate risk of reoffending and requires a moderate
range of notification.” ORS 163A.100(2).
Petitioner subsequently challenged the board’s
determination regarding his SONL, contending that the
board erred, because its determination did not take into
account his sex-offense-free time in the community post-
conviction. Petitioner argued to the board that, under ORS
163A.100, the board was “statutorily required to assess his
risk of re-offense and assign a Risk level I if he currently
presents the lowest risk of reoffending; II if he currently
presents a moderate risk of reoffending: or III if he cur-
rently presents the highest risk of reoffending.” (Emphases
added.)
But the board denied petitioner’s challenge to his
SONL. It explained that OAR 255-085-0020(6) prohibits
consideration “as part of the risk assessment the reduction
of risk due to time sexual offense-free in the community.”
According to the board, that section of OAR 255-085-0020
was “promulgated according to the legislative intent of
ORS 163.100-125, which is to classify all adult male regis-
trants into a notification level based on their risk at the time
of release from their most recent sexual offense.” (Emphasis
added.) As the board saw it, “classifying one registrant who
is being assessed contemporary to his release from his index
sexual offense, and another registrant[ ] years after their
release is fundamentally unfair if the board considers desis-
tence in a classification.”
years; (3) index convictions for nonsexual violence; (4) prior convictions for
nonsexual violence; (5) prior sexual offenses; (6) number of prior sentencing
dates; (7) convictions for noncontact sex offenses; (8) having any unrelated
victim; (9) having any stranger victim; and (10) having any male victim. For
example, the second item is scored based on relationship history prior to
release from the index offence. The scores on each item are added together to
determine the person’s Static-99R score.”
329 Or App at 41-42 (internal quotation marks, footnote, and citation omitted).
And, as explained further below, the Static-99R measures:
“the risk of recidivism at a specific point in time—on the day of the person’s
first opportunity to reoffend after the index offence (e.g., release from prison
for the index sex offence, conviction date if they received a non-custodial sen-
tence, or date of charge if there was no conviction).”
Id. at 48-49 (internal quotation marks omitted).
Cite as 333 Or App 703 (2024) 707
The board further explained its view of the statu-
tory and regulatory scheme under which it operates with
regard to assignment of SONLs:
“The current sex offender notification level (SONL) pro-
cess is a bifurcated process, that involves first the initial
classification of a registered sex offender into a notifica-
tion level. Second, and only after the initial classification
is known, a registrant can affirmatively petition for relief
from registration or reclassification to a lower notification
level, and if deemed eligible for such action, a hearing
would be scheduled at which time the factors described in
ORS 163A.125(5) would be considered. In its initial classi-
fication of any adult male registrant, including Petitioner,
the Board does not profess to complete an overall evaluation
of risk. To do so would present profound fiscal and admin-
istrative burdens and would delay the Board’s interest in
expediting the process of classification of all registrants, as
has been directed by the state legislature.”
(Emphasis in original.)
Ultimately, the board determined that petitioner
“misreads the language of ORS 163A.100, which requires
the Board to adopt a methodology to classify sex offend-
ers,” noting that “the word ‘currently’ does not appear” in
that statute. That is, as the board reasoned, ORS 163A.100
requires that the board adopt a methodology to classify sex
offenders, but that that methodology need not assess a reg-
istrant’s “current” risk of reoffending when determining an
individual’s SONL.
Thus, the board denied petitioner’s challenge to his
SONL.
II. DISCUSSION
On judicial review, petitioner contends that “because
the board’s own rules require it to make inaccurate assess-
ments of risk and disregard reliable evidence, this Court
should hold those rules invalid.” Petitioner argues that,
under ORS 163A.100, the board is required to “create a
methodology that assesses and classifies sex offenders by
present risk of re-offense,” and that the board’s rules regard-
ing assignment of an individual’s initial SONL are invalid
because they fail to do that.
708 Thomsen v. Board of Parole
The board takes a different view. The board argues
that the rules that it has adopted reflect a two-step process
whereby the board first establishes an initial SONL based
on “ ‘the registrant’s risk as it was at the time of their release
from their index offense.’ ” (Quoting OAR 255-085-0005(1).)
That initial classification, the board acknowledges, “does
not account for factors that postdate the index offense,” such
as “offense-free time in the community.”
At the second step, “a person who has been off
supervision for at least 10 years may petition for reclassifi-
cation.” (Citing OAR 255-087-0050.) It is at that second step
that the board considers “a person’s offense-free time in the
community * * * for persons who are statutorily eligible for
reclassification.”
On judicial review, the board argues that that two-
step process under its rules is in accord with Oregon’s stat-
utory scheme for sex offender registration. Further, it pos-
its that the difference in considerations between the first
step (initial classification, where it does not consider a per-
son’s offense-free time in the community) and the second
step (reclassification, where it does consider time a person’s
offense-free time in the community) ensures that “similarly
situated sex offenders are treated the same regardless of
the happenstance as to when their initial classification took
place.” It provides the following example, which we will dis-
cuss later in this opinion:
“Consider two adult male sex offenders, Smith and Jones,
who had similar sex-offense convictions at similar ages and
have lived in the community for more than a decade since.
Assume that, at the time of release, both would have scored
a 6 on the Static-99R, which corresponds to a Level III sex
offender. But suppose that Smith was initially classified
upon his release from the index offense and Jones, because
of the backlog of cases to classify, was not initially classi-
fied until years later. Under petitioner’s approach, Smith
would have been initially classified as a Level III offender
and therefore never would be eligible to be reclassified to
Level I or to be relieved entirely of the obligation to report
as a sex offender. See ORS 163A.125(3)(b) (limits on reclas-
sification); ORS 163A.125(1)(a) (only a Level I sex offender
may petition for relief from reporting). But Jones might be
Cite as 333 Or App 703 (2024) 709
initially classified at some lower level—perhaps even Level
I—and might eventually become eligible for relief from
reporting obligations entirely. Under the board’s approach,
by contrast, Smith and Jones are treated the same way:
both have their initial classification set based on their cir-
cumstances at the time of release from the index offense,
and both are eligible to petition for reclassification to the
same extent and on the same timeframe.”
A. Standard of Review and Controlling Principles
As noted, petitioner seeks judicial review of an
order of the board. “This court may determine the validity
of a rule upon review of an agency’s order.” Pulito v. Board
of Nursing, 366 Or 612, 618, 468 P3d 401 (2020) (citing ORS
183.400(2)); Don’t Waste Oregon Com. v. Energy Facility
Siting, 320 Or 132, 152, 881 P2d 119 (1994) (“Although
arising in the context of a contested case proceeding, this
is a challenge to the validity of the rule as adopted, on the
ground that it exceeds the agency’s statutory authority.
ORS 183.400(4)(b).” (Emphasis in original.)). When, as here,
a challenge to the validity of an administrative rule is based
on a claim that the rule violates a statute, “our standard for
judicial review is whether the rule ‘exceeds the statutory
authority of the agency.’ ” Pulito, 366 Or at 618 (quoting ORS
183.400(4)(b)).
“ ‘Authority,’ as used in ORS 183.400(4)(b), does
not refer to only the agency’s overall ‘jurisdiction.’ ” Pulito,
366 Or at 618. Instead, “to the extent that the rule departs
from the statutory policy directive, it ‘exceeds the statutory
authority of the agency’ within the meaning of those words
in ORS 183.400(4)(b).” Id. (some internal quotation marks
omitted). Here, we must determine whether the board’s
rules regarding sex offender notification levels “depart from
a legal standard expressed or implied in the particular law
being administered.” Nay v. Dept. of Human Services, 360 Or
668, 695, 385 P3d 1001 (2016).
The law being administered in this case is ORS
163A.100. The question whether the board’s rules regarding
sex offender notification levels—which, as described below,
are set forth in OAR chapter 255, division 085—”depart[ ]
from the legal standard expressed or implied” in ORS
710 Thomsen v. Board of Parole
163A.100 is one of legislative intent. See Pulito, 366 Or at
618.
B. Analysis
As noted, the law being administered in this case is
ORS 163A.100. That statute provides:
“The State Board of Parole and Post-Prison Supervision
shall, in consultation with community corrections agencies,
adopt by rule a sex offender risk assessment methodology
for use in classifying sex offenders. Application of the risk
assessment methodology to a sex offender must result in
placing the sex offender in one of the following levels:
“(1) A level one sex offender who presents the low-
est risk of reoffending and requires a limited range of
notification.
“(2) A level two sex offender who presents a moder-
ate risk of reoffending and requires a moderate range of
notification.
“(3) A level three sex offender who presents the high-
est risk of reoffending and requires the widest range of
notification.”
The board’s rules regarding sex offender notifica-
tion levels are set forth in OAR chapter 255, division 085.
Presently, and at the time of the board’s order, OAR 255-
085-0005 described the board’s “policy and authority” with
respect to that division. As set forth in the permanent
administrative order concerning OAR 255-085-0005, OAR
255-085-0005 was adopted by the board in August 2022 to
“explain the guiding principles” of the board’s rules in OAR
chapter 255, division 085.
OAR 255-085-0005 provides, in pertinent part:
“(1) A classifying agency at initial classification and
reassessment will assess the registrant’s risk as it was at
the time of their release from their index offense. A classi-
fying agency will not consider desistance when using the
Static-99R instrument to assess an individual. If the Static-
99R coding manual, Exhibit STATIC-99R, and Board rules
conflict, Board rules prevail.”
OAR 255-085-0005 (emphasis added).
Cite as 333 Or App 703 (2024) 711
OAR 255-085-0020(2) directs how agencies must
classify adult male registrants, such as petitioner, within
Oregon’s offender notification scheme:
“For classification and community notification for adult
male registrants, classifying agencies shall use the Static-
99R actuarial instrument with the coding manual, Exhibit
STATIC-99R, to conduct a sex offender risk assessment,
except as to where it conflicts with OAR 255-085-0020(6).
Classifying agencies may score registrants using informa-
tion from previous Static-99 or Static-99R assessments.
Classifying agencies shall score and place each registrant
into a notification level:
“(a) Notification Level 1: Static-99R score of -3 to 3;
“(b) Notification Level 2: Static-99R score of 4 to 5; or
“(c) Notification Level 3: Static-99R score of 6 or
higher.”
Finally, OAR 255-085-0020(6) directs agencies to
designate adult male registrants as “Notification Level 2”
or “Notification Level 3” based on their risk of reoffense “at
the time of release from the index sexual offense” and to not
consider “as part of the risk assessment the reduction of risk
due to time offense-free in the community”:
“Classifying agencies shall place registrants into
Notification Level 3 if an assessment under OAR 255-
085-0020(2) as it was at the time of release from the index
sexual offense would place them in the highest risk cate-
gory, or Notification Level 2 if an assessment under OAR
255-085-0020(2) as it was at the time of release from the
index sexual offense would place them in the moderate risk
category, without considering as part of the risk assess-
ment the reduction of risk due to time offense-free in the
community.”
OAR 255-085-0020(6).
While this judicial review was pending, we decided
Sohappy, in which we concluded that the board’s interpreta-
tion of a prior version of OAR-255-085-0020 (Apr 29, 2020)
was “implausible.” 329 Or App at 50 (“In sum, we agree
with petitioner that the board implausibly interpreted OAR
255-085-0020 as allowing it to disregard a registrant’s
712 Thomsen v. Board of Parole
sex-offense-free time in the community when using ‘the
Static-99R actuarial instrument * * * along with attend-
ing rules and research found on http://www.static99.org/’
to assess the risk that a registrant will commit a new sex
offense.” (Quoting OAR-255-085-0020 (Apr 29, 2020) (omis-
sion in Sohappy).)). That prior version of OAR-255-085-0020,
unlike the current version, did not expressly prohibit clas-
sifying agencies from considering offense-free time in the
community when classifying an individual into a SONL,
and the board had interpreted the prior rule to permit the
board to disregard an individual’s offense-free time in the
community when classifying an individual into a SONL.
In Sohappy, after considering the text of ORS
163A.100 and the purpose of Oregon’s scheme for sex offender
notification—i.e., to “assist law enforcement in preventing
future sex offenses by classifying registrants based on their
risk of committing a new sex offense”—we concluded that
“the board’s charge under ORS 163A.100 is to classify sex
offenders into one of three notification levels based on their
risk of reoffending at the time of the assessment.” Id. (empha-
sis added). We further explained that the 2013 Legislative
Assembly, which enacted ORS 163A.100, enacted “a stat-
ute that tasked the board with assessing present risk.”
329 Or App at 47 n 10 (emphasis added); see also Watson v.
Board of Parole, 329 Or App 13, 25, 540 P3d 20 (2023) (citing
Sohappy for the proposition that in enacting ORS 163A.100
“the legislature enacted a statute that requires a present
risk assessment”).
We concluded in Sohappy that the board’s inter-
pretation of OAR-255-085-0020 (Apr 29, 2020)—which, as
noted, was an interpretation that allowed the board to dis-
regard offense-free time in the community when setting an
individual’s SONL—was implausible, in part, because the
Static-99R “Coding Rules” demonstrated that the board’s
interpretation led to a statistically invalid assessment of
present risk:
“The Coding Rules make clear that the Static-99R score
itself measures the risk of recidivism at a specific point in
time—on the day of the person’s first opportunity to reof-
fend after the index offence (e.g., release from prison for
Cite as 333 Or App 703 (2024) 713
the index sex offence, conviction date if they received a
non-custodial sentence, or date of charge if there was no
conviction). No matter how much time has passed since
then, the score still summarizes what their risk was like on
that day. Because a person’s sexual recidivism risk declines
over time as time passes without a new sexual offense, the
Static-99R score is ‘valid,’ that is, it is a statistically valid
measure of a person’s risk of sexual recidivism, only at
release and for ‘approximately two years’ thereafter. Thus,
if, more than two years after a person’s release, an evalu-
ator uses the Static-99R score alone to assess the person’s
recidivism risk, the evaluator will necessarily reach a sta-
tistically invalid conclusion, according to the information
in the Coding Rules.”
Sohappy, 329 Or App at 48-49 (internal citation and brack-
ets omitted; some internal quotation marks omitted). That
is, under the Coding Rules for the Static-99R, we explained
that “as to registrants who have been living in the commu-
nity for more than two years since release, the board must
consider sex-offense-free time to arrive at a statistically
valid assessment of the risk that the registrant will commit
a new sex offense.” Id. at 49.
In reaching our conclusion in Sohappy, we also
observed that our conclusion that the board’s interpreta-
tion of OAR-255-085-0020 (Apr 29, 2020) was implausible
was “consistent with the statutory scheme that the board
adopted the rule to implement,” which requires “assessing
each existing and new registrant to determine the statisti-
cal risk of committing another sex offense that they ‘pres-
ent.’ ” Id. at 50. And, further, we noted that “[w]e have previ-
ously invalidated a rule that does not, in fact, relate to what
the board is supposed to measure.” Id. (internal quotation
marks omitted).6
6
OAR-255-085-0020 (Apr 29, 2020), which was at issue in Sohappy, provided
that the board “shall use the Static-99R actuarial instrument on the Board’s web-
site at http://www.oregon.gov/BOPPPS along with attending rules and research
found on http://www.static99.org/, to conduct a sex offender risk assessment”
and place each registrant into one of the three notification levels. Sohappy, 329
Or App at 30 (emphasis added).
Consequently, in addition to our interpretation of ORS 163A.100 and the
Coding Rules, our analysis in Sohappy considered “research on the Static-99
website” in reaching the conclusion that the board’s interpretation of OAR-255-
085-0020 (Apr 29, 2020) was implausible.
714 Thomsen v. Board of Parole
Turning back to the present case, as set forth above,
“to the extent that [a] rule departs from the statutory policy
directive it ‘exceeds the statutory authority of the agency’
within the meaning of those words in ORS 183.400(4)(b).”
Pulito, 366 Or at 618 (some internal quotation marks omit-
ted); see id. at 627 (To be valid, “[a] rule must be consistent
with the legislative policy of the implementing statute.”).
“[T]he board’s charge under ORS 163A.100 is to clas-
sify sex offenders into one of three notification levels based
on their risk of reoffending at the time of the assessment.”
Sohappy, 329 Or App at 46 (emphasis added). In contrast to
the board’s charge under ORS 163A.100, the stated purpose
of the board’s rules in OAR chapter 255, division 085, is to
“assess the registrant’s risk as it was at the time of their
release from their index offense,” OAR 255-085-0005. And
under OAR-255-085-0020, the methodology that the board
uses to determine an adult male’s notification level—viz.,
failing to consider offense-free-time in the community—
leads to a statistically invalid assessment of present risk
for offenders such as petitioner. See Sohappy, 329 Or App at
48-49 (“[I]f, more than two years after a person’s release, an
evaluator uses the Static-99R score alone to assess the per-
son’s recidivism risk, the evaluator will necessarily reach a
The current version of OAR 255-085-0020, unlike the version that was
at issue in Sohappy, does not reference the “attending rules and research found
on http://www.static99.org/.” Further, as noted, the current version OAR 255-
085-0005 provides that, “If the Static-99R coding manual, Exhibit STATIC-99R,
and Board rules conflict, Board rules prevail.”
Notwithstanding those changes to the board’s rules, Sohappy’s analysis
demonstrates (1) that the board’s charge under ORS 163A.100 is to measure
an offender’s “risk of reoffending at the time of the assessment,” and (2) that
the “Static-99R score itself measures the risk of recidivism at a specific point
in time—on the day of the person’s first opportunity to reoffend after the index
offence,” even though “a person’s sexual recidivism risk declines over time as time
passes without a new sexual offense.” Id. at 46, 48-49 (internal quotation marks
and brackets omitted).
Ultimately, our task in this case is to determine whether, as noted above,
OAR 255-085-0005 and OAR 255-085-0020 “ ‘exceed[ ] the statutory authority
of the agency,’ ” Pulito, 366 Or at 618 (quoting ORS 183.400(4)(b)), i.e., whether
they “depart from a legal standard expressed or implied in” ORS 163A.100, Nay,
360 Or at 695. As explained below, we conclude that those rules do, because they
do not measure what the legislature has charged it with measuring under ORS
163A.100 (i.e., present risk). Instead, they measure (and seek to measure) the risk
that Static-99R score itself measures—the risk of recidivism on the day of the
person’s first opportunity to reoffend after the index offense.
Cite as 333 Or App 703 (2024) 715
statistically invalid conclusion, according to the information
in the Coding Rules.”). Further, for other offenders—i.e.,
youth offenders and adult women—under the board’s rules,
and as the board acknowledges on appeal, a classifying
agency is charged with assessing “the registrants’ risk as it
was at the time of their release from their index offense” not
an individual’s present risk as required by ORS 163A.100.
Because the board’s methodology for initial clas-
sification of an individual’s SONL does not measure what
the legislature has charged it with measuring under ORS
163A.100 (i.e., present risk), but instead measures “the reg-
istrant’s risk as it was at the time of their release from their
index offense,” we conclude that OAR 255-085-0005 and
OAR-255-085-0020 are invalid. That is, they “depart from
a legal standard expressed” in ORS 163A.100 and therefore
“exceed[ ] the statutory authority” of the board, within the
meaning of ORS 183.400(4)(b).7
In a memorandum of additional authorities, the
board argues that Sohappy is not controlling, because our
interpretation of ORS 163A.100 in Sohappy was dictum,
which we are not bound to follow. See Mastriano v. Board
of Parole, 342 Or 684, 692 n 8, 159 P3d 1151 (2007) (“This
court has declined to treat a prior interpretation of a statute
as authoritative when it is dictum.”). Further, at oral argu-
ment, it asserted that, if we disagree that our interpretation
of ORS 163A.100 in Sohappy was dictum, then Sohappy is
“plainly wrong” and should be overruled.
We disagree with the board that our analysis of ORS
163A.100 in Sohappy was dictum. Our decision in Sohappy
was not only partially premised on our interpretation of
ORS 163A.100, but our interpretation of ORS 163A.100 in
Sohappy was, in fact, a “foundational issue” to our analysis.
329 Or App at 46 (“Before we address the issues on which
the parties disagree, we observe that there is a foundational
7
Petitioner also raises an argument that the board’s rules violate his rights
under the Equal Protection Clause of the United States Constitution, in that
those rules “treat adult males differently from all other offenders.” We do not
address that argument, because it is undeveloped. Trent v. Connor Enterprises,
Inc., 300 Or App 165, 170, 452 P3d 1072 (2019) (declining to “develop arguments
* * * that have not been briefed sufficiently to persuade us of their merit, and that
raise potentially complicated issues”).
716 Thomsen v. Board of Parole
issue that does not appear to be in dispute, which is that
the board’s charge under ORS 163A.100 is to classify sex
offenders into one of three notification levels based on their
risk of reoffending at the time of the assessment.”); see also
Engweiler v. Persson, 354 Or 549, 558, 316 P3d 264 (2013)
(“In judicial opinions, [dictum] commonly refers to a state-
ment that is not necessary to the court’s decision.”).
Nor are we persuaded by the board’s assertion
during oral argument that our interpretation of ORS
163A.100 in Sohappy was “plainly wrong.” See State v. Civil,
283 Or App 395, 417, 388 P3d 1185 (2017) (“[D]ue regard
for stare decisis and our predecessors’ collegial commitment
demands that ‘plainly wrong’ be a rigorous standard, satis-
fied only in exceptional circumstances.”). Consequently, we
are bound by Sohappy. Ingle v. Matteucci, 315 Or App 416,
418, 501 P3d 23 (2021), rev’d on other grounds, 371 Or 413,
537 P3d 895 (2023) (“[W]e are bound by our controlling prece-
dent.”).8 Having reached that conclusion, we observe that,
as the board’s example concerning “Smith and Jones” high-
lights, when an initial SONL assessment takes place—that
is, whether it takes place (1) at the time of release or (2) after
a registrant has had a substantial amount of offense-free-
time in the community—is significant under Oregon’s pres-
ent statutory scheme for assigning a SONL; two registrants
who present the same risk at the time of their release as
measured using their Static-99R scores may receive differ-
ent SONLs if the assessment for one of those registrant’s
8
In addition, the board argues that Sohappy is not controlling, because
Sohappy “held that the board implausibly interpreted [a] prior version[ ] of OAR
255-085-0020” and the board’s order “on judicial review in this case applied the
current version of OAR 255-085-0020.”
But, as noted, the decision in Sohappy was partially premised on our inter-
pretation of ORS 163A.100, and we think that interpretation is dispositive in this
case. Although OAR 255-085-0020 has changed since Sohappy was decided, ORS
163A.100 has not.
Further, the board argues that this case is like Lewis-Taylor v. Board of
Parole, 329 Or App 53, 540 P3d 34 (2023), where, according to the board, we
“rejected a similar challenge under a newer version of [OAR 255-085-0020] that
expressly prohibits the board from considering desistance in setting an offender’s
initial classification level.”
The difficulty with the board’s reliance on Lewis-Taylor is that in that case we
rejected the petitioner’s arguments “on procedural grounds, without reaching the
merits.” Id. at 56. It does not support the board’s arguments in this case.
Cite as 333 Or App 703 (2024) 717
takes place at the time of release and the assessment for the
other registrant takes place years after release. The delay
in assessing a registrant may occur, for example, because
a registrant moves to Oregon from another state (like peti-
tioner) or because “of the backlog of cases to classify” in
Oregon (like Jones in the board’s example). Nevertheless,
those different SONLs—i.e., different risk classifications—
are ultimately the result of factual differences between the
registrants at the time of their assessments which causes
them to present different levels of risk of reoffense at that
time. See Watson, 329 Or App at 24 (“The fact that some
registrants do not have sex-offense-free time does not mean
that the board can disregard it for those registrants who
have it. Indeed, it is precisely the existence of factual dif-
ferences between registrants that causes them to present
different levels of risk to the community and that allows for
different risk classifications.”).
Finally, we note that our decision in Sohappy, and
our conclusion here, which follows from Sohappy, are based
on the present version of ORS 163A.100. Ultimately, that
statute reflects a policy choice of the legislature and can be
changed by legislative action—by amending ORS 163A.100,
creating new provisions in ORS 163A.100, or repealing pro-
visions of ORS 163A.100. See, e.g., Farmers Ins. Co. v. Mowry,
350 Or 686, 697, 261 P3d 1 (2011) (“After we have inter-
preted a statute, the legislature’s constitutional role allows
it to make any change or adjustment in the statutory scheme
that it deems appropriate, given this court’s construction of
the statute (and, of course, subject to constitutional limita-
tions).”). As the Supreme Court has noted, “[t]he legislature
can—and often does—amend a statute that this court has
interpreted to clarify or change the statute or otherwise to
advance the policy objectives that the legislature favors.” Id.Reversed and remanded.