Thomsen v. Board of Parole

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.