The opinion
552
Argued and submitted February 28, 2020; petition for judicial review dismissed
February 16; petitioner’s petition for reconsideration filed March 1 and
respondent’s response filed March 14 allowed by opinion May 11, 2022
See 319 Or App 525, 509 P3d 194 (2022)
ANTONIO ALEJANDRO GUTIERREZ,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A168255
506 P3d 1129
Petitioner, who was found guilty of murder, ORS 163.115 (Count 1), and
second-degree assault, ORS 163.175 (Count 2), in 1985, seeks judicial review
from a 2017 order of the Board of Parole and Post-Prison Supervision that denied
petitioner’s request for an interim hearing of a 10-year deferment of release to
parole. The board had previously deferred his release to parole due to petitioner
suffering from a present severe emotional disturbance (PSED) that constituted
a threat to the health or safety of the community. In June 2021, the board held
an exit interview, and, again, found that petitioner suffered from a PSED that
constituted a threat to the health or safety of the community. The board deferred
petitioner’s parole release for two years. Because the board held that exit inter-
view, it filed a motion to dismiss on the ground that petitioner’s petition for
judicial review is moot. Petitioner argues that this case is not moot and, even
if it is, that the Court of Appeals should exercise its discretion to review a moot
case under ORS 14.175, which allows the court, at its discretion, to review moot
cases when certain requirements have been met. Held: Petitioner’s case was moot
because the only relief petitioner would be entitled to is an exit interview, which
he had already received. The court declined to exercise its discretion to review the
case.
Petition for judicial review dismissed.
Stacy Du Clos, Deputy Public Defender, argued the cause
for petitioner. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services. Antonio A. Gutierrez filed the supplemen-
tal and reply brief pro se.
Jeff J. Payne, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Cite as 317 Or App 552 (2022) 553
Before Tookey, Presiding Judge, and Egan, Judge, and
Aoyagi, Judge.*
EGAN, J.
Petition for judicial review dismissed.
______________
* Egan, J., vice Armstrong, S. J.
554 Gutierrez v. Board of Parole
EGAN, J.
Petitioner, who was found guilty of murder, ORS
163.115 (Count 1), and second-degree assault, ORS 163.175
(Count 2), in 1985, seeks judicial review from a 2017 order
of the Board of Parole and Post-Prison Supervision that
denied petitioner’s request for an interim hearing of a
10-year deferment of release to parole. The board had pre-
viously deferred his release to parole due to petitioner suf-
fering from a present severe emotional disturbance (PSED)
that constituted a threat to the health or safety of the com-
munity. In June 2021, the board held an exit interview, and,
again, found that petitioner suffered from a PSED that con-
stituted a threat to the health or safety of the community.
The board deferred petitioner’s parole release for two years.
Because the board held that exit interview, it filed a motion
to dismiss on the ground that petitioner’s petition for judi-
cial review is moot. We agree, and, accordingly, we dismiss
the petition for judicial review as moot.
The following facts are uncontested and mostly pro-
cedural. In 1985 petitioner was sentenced to an indetermi-
nate sentence of life in prison on Count 1, with the possibil-
ity of parole. As for Count 2, petitioner’s sentence was set
for an indeterminate period of time to be not less than five
years, but not to exceed 10 years, which would run consecu-
tive to Count 1.
In March 1986, the board set a release date of
April 22, 2000. In January 1991, after a positive recom-
mendation from the Department of Corrections, the board
advanced petitioner’s release date to December 22, 1999.
In 1998, the board conducted an exit interview with peti-
tioner and found that he had a PSED that constituted
a danger to the health and safety of the community, and
the board deferred petitioner’s release date for 24 months.
Subsequently, four more exit interviews were conducted
between the year 2000 and 2009, deferring his release date
for successive two-year periods.
In May 2011, the board, again, found that petitioner
had a PSED that constituted a danger to the health and
safety of the community and deferred petitioner’s release.
Cite as 317 Or App 552 (2022) 555
Unlike previously, the board found that it would not be rea-
sonable to expect petitioner to be granted a release date
sooner than 10 years, and, therefore, the board set its next
review hearing for May 2021.
Between May 2011 and 2021, petitioner requested
an interim hearing three times. The board denied those
requests. As relevant here, the third request for an interim
hearing was denied on the basis that petitioner did not
“meet his burden of producing evidence sufficient to con-
vince the [b]oard that an interim hearing [was] warranted”
and remarked that petitioner had received a September
2016 disciplinary report.
Petitioner contested the board’s conclusion, arguing
that (1) that conclusion was not supported by substantial
evidence, (2) the procedure violated due process because it
relied on vague standards, and (3) the board violated its own
rules. The board denied relief, as relevant to petitioner’s
argument on judicial review, relying on the criteria set out in
OAR 255-062-0021 and OAR 255-062-0016 in determining
that it was not reasonable to expect that petitioner would be
granted a release date before 2021.
Petitioner seeks judicial review of that decision,
assigning two errors. First, petitioner asserts that the board
erred when it denied petitioner’s request for an interim
hearing. Second, petitioner asserts that the board erred in
applying an incorrect standard in determining whether to
grant petitioner an interim hearing.
Since petitioner sought judicial review of that deci-
sion, the board held another exit interview in 2021 under
ORS 144.125, and, again, found that petitioner suffers from
a PSED that constituted a danger to the health and safety
of the community. Consequently, the board deferred peti-
tioner’s parole release for two years. The board then filed
a motion to dismiss asserting that because “the board held
an exit interview, his current challenge to the denial of his
interim hearing request is moot.”
We begin with the board’s argument that this case
is moot. “Determining mootness is one part of the broader
556 Gutierrez v. Board of Parole
question of whether a justiciable controversy exists.” Brumnett
v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993). “One question
in that analysis, * * * the question at issue here, is whether
the court’s decision in the matter will have some practical
effect on the rights of the parties.” Dept. of Human Services
v. A. B., 362 Or 412, 419, 412 P3d 1169 (2018) (internal quota-
tion marks omitted). “The burden rests with the party mov-
ing for dismissal to establish that a case is moot.” State v.
K. J. B, 362 Or 777, 785, 416 P3d 291 (2018).
“The moving party’s burden includes the burden of
establishing that any collateral consequences either do not
exist or are legally insufficient. That does not mean that
the moving party is required to imagine all possible collat-
eral consequences and then disprove each of them. Rather,
when the moving party takes the position that a case has
become moot, the responding party must identify any col-
lateral consequences that he or she contends has the effect
of producing the required practical effects of a judicial deci-
sion. At that point, the moving party must demonstrate
that any of those identified collateral consequences either
does not exist or is legally insufficient.”
Id. at 786 (internal citations omitted). “It will be up to the
appellate court to determine the existence and significance
of those effects or consequences and to decide, as a pruden-
tial matter, whether an appeal is moot.” A. B., 362 Or at 426.
As we have observed, “in order to prevent a case from being
considered moot, a collateral consequence must be something
beyond mere speculation,” that is, “a collateral consequence
must have a significant probability of actually occurring; a
speculative or merely possible effect is not enough.” Johnson
v. Premo, 302 Or App 578, 592, 461 P3d 985, rev den, 366 Or
569 (2020) (internal quotation marks omitted).
Petitioner, relying on Jones v. Board of Parole,
283 Or App 650, 659, 391 P3d 831, rev den, 361 Or 543
(2017), argues that his petition for judicial review is not
moot because “to postpone a petitioner’s release date, the
board must establish that a valid statutory reason for
postponement exists (or existed) prior to” that postpone-
ment. (Emphasis added.) Thus, “the evidence on which the
board relies” to postpone a petitioner’s release “must have
existed and been sufficient prior to the release date.” Id. at
Cite as 317 Or App 552 (2022) 557
660.1 In making that assertion, petitioner argues that the
board could not uphold petitioner’s confinement between
2017 and 2021 by merely pointing to its 2021 decision
because the 2021 decision does not “retroactively justify the
board’s denial of petitioner’s interim request.”
The board argues that petitioner does not establish
a collateral consequence to prevent mootness because peti-
tioner has received the only relief to which he may have been
entitled—an exit interview. At the outset, we reject petition-
er’s argument that his judicial review is not moot because
the court cannot retroactively justify his denial. That is, as
the board argues, that the only relief to which petitioner
would be entitled has already occurred. In coming to that
conclusion, an understanding of the procedure pursuant to
ORS 144.280 is necessary.
When, as here, “the board grants a prisoner a hear-
ing that is more than two years from the date parole is
denied, the prisoner may submit a request for an interim
hearing.” ORS 144.280(2). Then, “[i]f the board finds, based
upon a request for an interim hearing, that there is rea-
sonable cause to believe that the prisoner may be granted
parole, the board shall conduct a hearing as soon as is rea-
sonably convenient.” ORS 144.280(2). After that hearing,
“the board shall issue a final order.” ORS 144.280(3). That
order “shall be accompanied by findings of fact and conclu-
sions 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 board’s order.” ORS 144.280(3).
With that procedural process noted, instructive on
whether this case is moot is Janowski / Fleming v. Board of
Parole, 349 Or 432, 245 P3d 1270 (2010). In Janowski / Fleming,
1
Petitioner concedes that Jones involves a different context than what peti-
tioner asserts on judicial review. Unlike in Jones, this case does not involve a
direct challenge to the board’s prior PSED finding and deferment in 2011. Rather,
this case involves the denial of petitioner’s request for an interim hearing. The
board, likewise, concedes that petitioner is correct that it cannot rely on the 2021
psychological evaluation and the resulting PSED finding to retroactively find
that petitioner had a PSED in 2019. Accordingly, we assume without deciding
that the 2021 psychological evaluation, which aided the board in its 2021 finding
that petitioner had a PSED, may not be used in determining whether petitioner
had a PSED in 2017.
558 Gutierrez v. Board of Parole
the Supreme Court observed that, under ORS 144.125(1)
(1985), the exit interview that one of the inmates requested
was to take place “prior to the scheduled release” of the pris-
oner, and that the board had not yet scheduled a valid release
date. Id. at 459 (emphasis partially omitted). The court
anticipated that the board would conduct a hearing “in the
immediate future” to set that inmate’s release date, and that,
because the date for his release had passed, the release date
would “be set in the near future.” Id. at 456, 459. Once the
board had done so, the court noted, it would have an opportu-
nity to conduct an exit interview to determine whether there
were any grounds for postponing his release. Id. at 459.
Although this case is slightly different from
Janowski / Fleming, in that case, as here, petitioner was
seeking an interim review, as described in ORS 144.125(3)
and ORS 144.280, for the board to determine whether there
was “reasonable cause to believe that the prisoner may be
granted parole.” That case stands for the proposition that
when a valid release date has not been set, the relief that
a petitioner may be granted is an exit interview “in the
immediate future.” Thus, here, petitioner sought an interim
hearing so that he would have the possibility for an exit
interview. Petitioner, however, has received an exit inter-
view, like in Janowski / Fleming, “prior to [his] scheduled
release” date. See also Wille v. Board of Parole, 287 Or App
709, 718-19, 404 P3d 1042 (2017) (concluding that when the
petitioner in that case “received the murder review hearing
that he contends he should have received earlier” the issue
was moot because he received the only relief to which he was
entitled). Petitioner’s argument that had he received an ear-
lier hearing the result might have been different, here, is too
speculative. Petitioner has failed to identify any nonspecu-
lative collateral consequence. Accordingly, we conclude that
petitioner’s case is moot.2
2
To the extent that petitioner argues that we may not look at the board’s
2021 decision to conclude that this case is moot, we disagree. As previously
stated, petitioner “must identify any collateral consequence” that he contends
has “the effect of producing the required practical effects of a judicial decision.”
K. J. B, 362 Or at 786. After that, we review whether the board has “establish[ed]
that any [identified] collateral consequences either do not exist or are legally
insufficient.” Id. Here, petitioner would not have any remedy aside from getting a
hearing, which is what he has already had.
Cite as 317 Or App 552 (2022) 559
However, that does not end our inquiry. We have dis-
cretion to review the merits of moot issues of public impor-
tance if they are capable of repetition and likely to evade
review. See Couey v. Atkins, 357 Or 460, 463, 355 P3d 866
(2015) (holding that cases involving issues of public interest
that are “likely to evade judicial review under the standard
set out in ORS 14.175” are justiciable even if they are moot).
Under ORS 14.175, we may decide a moot challenge to an act
of a public body or official if “(1) the party that commenced
the action had standing to commence it, (2) the challenged
act * * * is capable of repetition, and (3) the challenged act
is likely to evade judicial review in the future.” Harisay v.
Atkins, 295 Or App 493, 496, 434 P3d 442 (2018), aff’d sub
nom Harisay v. Clarno, 367 Or 116, 474 P3d 378 (2020).
Here, petitioner argues that we should exercise our
discretion as the requirements of ORS 14.175 have been
met. The board concedes, and we accept, that the first two
requirements of ORS 14.175 have been met. However, the
board argues, and we agree, that this issue is not likely to
evade judicial review in the future. To determine whether an
issue is “likely to evade review,” the question is not whether
a person in petitioner’s same circumstances would also fail
to obtain appellate review, but “whether the general type or
category of challenge at issue is likely to evade being fully
litigated.” See State v. F. T., 316 Or App 772, 774, 503 P3d
1281 (2022) (stating such). To support that the general type
of category of challenge at issue here is unlikely to evade
review, the board cites several cases of the general type or
category of challenge, in which we reviewed the merits of the
claim. We agree with the state that demonstrated instances
of our actual review of the general type or category of chal-
lenge at issue support the position that a challenge is not
likely to evade review. Nevertheless, we need not address
that issue because we decline to exercise our discretion to
review this case. Here, assuming, without deciding, that
similar cases may evade review, the likelihood that review
would be evaded in this court is not so great as to justify
our exercise of discretion. See Rogue Advocates v. Board
of Comm. of Jackson County, 362 Or 269, 272-73, 407 P3d
795 (2017) (declining to exercise the Supreme Court’s dis-
cretion to review moot cases under ORS 14.175 because the
560 Gutierrez v. Board of Parole
“likelihood that a circuit court ruling denying jurisdiction
in circumstances similar to these will evade review in this
court is not so great as to justify [its] exercise of discretion”).
Petition for judicial review dismissed.