Atkinson v. Board of Parole

673

Argued and submitted June 25, 2020, petition for judicial review dismissed as

moot May 18, petition for review denied September 16, 2022 (370 Or 214)

DAVID LEE ATKINSON,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A166292

511 P3d 408

In this judicial review proceeding, petitioner challenges the Board of Parole

and Post-Prison Supervision’s (board’s) deferral of his parole release date.

Petitioner argues that the board erred in concluding, under ORS 144.125(3), that

he had a present severe emotional disturbance (PSED) that constituted a danger

to the health or safety of the community. The board responds that it correctly

deferred petitioner’s release. While the case was pending, petitioner was released

from custody. The board then filed a motion to dismiss the case on the ground

that it was moot. On review, petitioner contends that dismissing the case would

permit the board to unlawfully extend his period of active supervision from

12 months to 36 months without holding a parole revocation hearing. Held: The

board demonstrated that a reversal of its decision to defer petitioner’s release on

parole would not have the practical effect of changing petitioner’s parole status

from active to inactive at an earlier date. To avoid mootness, an asserted collat-

eral consequence must have a probability of occurring; a possibility is not enough.

Here, the statutes and rules on which petitioner relied do not, by themselves,

establish a probability that the board would have failed to initiate a revocation

proceeding after petitioner’s release and before his period of active supervision

otherwise would have ended.

Petition for judicial review dismissed as moot.

Erik Blumenthal, Deputy Public Defender, argued the

cause for petitioner. Also on the brief was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Christopher Page, Assistant Attorney General, argued

the cause for respondent. On the brief were Ellen F.

Rosenblum, Attorney General, Benjamin Gutman, Solicitor

General, and Julia Glick.

674 Atkinson v. Board of Parole

Before Ortega, Presiding Judge, and Aoyagi, Judge, and

Brewer, Senior Judge.*

BREWER, S. J.

Petition for judicial review dismissed as moot.

______________

* Brewer, S. J., vice Shorr, J.

Cite as 319 Or App 673 (2022) 675

BREWER, S. J.

A jury convicted petitioner of aggravated murder,

among other charges, committed in 1984, and he was sen-

tenced to life in prison with the possibility of parole after

20 years. While incarcerated, petitioner committed further

crimes in 1988, and he received additional indeterminate

consecutive sentences for those crimes.

In 2008, the Board of Parole and Post-Prison Super-

vision (board) determined that petitioner had met his bur-

den of demonstrating that he was likely to be rehabilitated

within a reasonable period of time, and it initially set peti-

tioner’s projected parole release date for June 28, 2013. The

board held petitioner’s first exit interview in 2012. Following

that interview, the board postponed petitioner’s projected

release date for two years pursuant to ORS 144.125(3). The

board held another exit interview in 2014 and again deferred

his projected release date for two years. In March 2017, the

board conducted a third exit interview with petitioner and

again postponed petitioner’s projected release date for two

years, setting a new projected release date for June 28, 2019.

In this judicial review proceeding, petitioner chal-

lenges the board’s 2017 deferral of his parole release date.

Petitioner argues that the board erred in concluding, under

ORS 144.125(3), that he had a present severe emotional dis-

turbance (PSED) that constituted a danger to the health

or safety of the community. The board filed an answering

brief arguing that the board correctly deferred petitioner’s

release. While a reply brief was pending, petitioner was

released from custody on June 28, 2019, with an active

supervision review date of June 27, 2022.

The board then filed a motion to dismiss this case

on the ground that it was moot as a result of petitioner’s

release. The board argued that no collateral consequences

prevent this case from being moot. The board predicted that

petitioner might argue that, had he been released earlier, he

would have been eligible sooner for a possible change in his

parole supervision status from active to inactive. The board

argued that we previously have rejected that argument,

holding that “the ‘mere possibility’ that the board might

have changed an inmate from active to inactive supervision

676 Atkinson v. Board of Parole

status and thus relieved the inmate from several conditions

of parole” earlier does not prevent an appeal from becom-

ing moot when the appellant is released from prison. See

Miller v. Board of Parole, 275 Or App 844, 852, 365 P3d 1136

(2015) (“mere possibility that the board might have earlier

discharged [petitioner] from parole does not prevent [peti-

tioner’s] claim from becoming moot by reason of his release

from prison”); see also Green v. Baldwin, 204 Or App 351,

357, 129 P3d 734 (2006) (same).

In response to the board’s motion to dismiss, peti-

tioner conceded that this case is very similar to Miller. He

nonetheless asserted that the case is not moot. He contended

that dismissing it would permit the board to extend his

period of active supervision for two years beyond what the

law allows without holding a revocation hearing at which

the board must find a parole violation. Petitioner’s argu-

ment was based on the interaction among certain statutes

and administrative rules in effect when he committed his

1984 offenses.1

In particular, petitioner noted that former ORS

144.310(2) (1982), repealed by Or Laws 1993, ch 680, § 7,

provided:

“(2) A paroled prisoner shall be subject to active parole

supervision during the first six months of the period of

parole. The board may require a more extended period of

active supervision if, in a manner provided by rule, it finds

that a six-month period of supervision is incompatible with

the welfare of the parolee or of society. * * *

“(3) The board may extend or renew the period of

active parole supervision or delay discharge of a parolee if

it finds, in the manner provided in ORS 144.343, that the

parolee has violated the conditions of terms of parole.”

When petitioner committed his aggravated murder

offense, former OAR 255-90-002 (Aug 1982) provided:

“Pursuant to ORS 144.310 the Board shall establish a

discharge date from active supervised parole. The period of

1

The board makes no argument in this case that the statutes and rules in

effect when petitioner committed his 1988 offenses govern petitioner’s parole.

Cite as 319 Or App 673 (2022) 677

supervised parole shall be shown in the guideline matrix,

Exhibit H-1, unless the Board provides written reasons

for an extended supervision period. Extended supervision

periods shall not exceed thirty-six (36) months.”

Exhibit H-1, in turn, provided for one year of active

supervision prior to discharge. “The guidelines set forth in

Exhibit H-1 shall govern the establishment of discharge

dates. * * * For discharge to be effective, the parolee must

display acceptable parole performance[.]” Former OAR 250-

90-003 (Aug 1982). Finally, former OAR 255-90-015 (Aug

1982), set out the hearing rights contained in subsection (3)

of former ORS 144.310 (1982):

“(1) In addition[ ] to the power of the Board to revoke

parole, it may extend a discharge date one time for six

months without a hearing and thereafter up to a one year

period if the Board finds, after a hearing pursuant to

Division 75,[2] that the parolee has violated the conditions

of parole.

“(2) Nothing contained in this rule shall be interpreted

to preclude more than one extension of a discharge date by

the Board. However, no extension of parole shall exceed the

maximum term of sentence imposed by the court.”

Based on those statutes and rules, petitioner’s thresh-

old argument against mootness was that the board lacked

authority to impose an initial 36-month period of active super-

vision in its 2019 release order without holding a parole revo-

cation hearing, and that order therefore should have provided

for an initial one-year period of active supervision.3 Petitioner

asserted that, if the 2019 order had been legally correct, he

would have been discharged from active supervision no later

than December 27, 2020 (that is, 18 months after his release

2

Division 75 set out the procedures for holding revocation hearings upon

alleged violations of parole.

3

In the heading to his response to the board’s motion to dismiss, petitioner

argued:

“Petitioner’s case is not moot because a ruling on petitioner’s favor would

require the board to hold a revocation hearing before imposing the current

period of active supervision.”

(Emphasis added.)

678 Atkinson v. Board of Parole

on parole), rather than December 27, 2022 (that is, 42 months

after his release).4

As a fallback, petitioner argued:

“However, as petitioner argues on appeal, the board

lacked substantial evidence to defer petitioner’s release

in March 2017. Because the board lacked substantial evi-

dence, the relevant rules and statutes required the board

to release petitioner to parole on his then-active release

date of June 28, 2017. Rec 196. See Jones v. [Board of

Parole], 283 Or App 650, 659-61, 391 P3d 831, rev den, 361

Or 543 (2017) (explaining that release is mandatory unless

the board makes one of the findings required by statute).

At that point, petitioner’s 42-month clock would begin to

run, and the board could not extend his active supervision

beyond December 28, 2020, without holding a revocation

hearing at and finding a parole violation.”

Petitioner argued that, in contrast to the peti-

tioner in Miller, he did not contest the board’s authority over

him for the duration of his life. Petitioner contended that

his case is distinguishable from Miller because that case

did not address a petitioner’s right to a parole revocation

hearing under former OAR 255-90-015 (1982). Petitioner

argued that the cases relied upon in Miller involved differ-

ent administrative rules that did not provide for the right

to a parole revocation hearing. See Green v. Baldwin, 204

Or App 351, 129 P3d 734 (2006) (involving the board’s 1985

rules); Dunmire v. Board of Parole, 262 Or App 593, 325 P3d

832 (2014) (involving an offense committed in 1986, after

the board had amended former OAR 255-90-015 (1982) and

deleted subsection (1) providing for a right to a revocation

hearing and violation finding). Petitioner therefore reasoned

that, despite the decisions in Miller, Green, and Dunmire,

4

Petitioner further argued:

“Assuming, in arguendo, the board validly imposed the 36-month

extended period of active supervision, once that 36-month period is over,

the board could not extend petitioner’s period of active supervision longer

than six additional months unless it held a revocation hearing at which it

found that petitioner violated parole. Thus, adding those terms together, the

board could not extend petitioner’s period of active supervision beyond 42

months without holding a revocation hearing at which the board would need

to find that petitioner violated his parole. If petitioner complies with parole,

he would be entitled to termination of active supervision no later than 42

months after June 28, 2019, or December 28, 2022.”

Cite as 319 Or App 673 (2022) 679

this case should not be dismissed as moot because dismissal

“would not create the mere possibility that petitioner could

be deprived of his right to a revocation hearing, it guaran-

tees it.” (Emphasis in original.) According to petitioner, if

he complies with parole, he will currently be entitled to ter-

mination of active supervision no later than December 28,

2022. However, he asserts, if he prevails on judicial review,

the board would not have been permitted to extend his

active supervised parole beyond December 28, 2020, without

holding a revocation hearing at which it must find a parole

violation.

The Appellate Commissioner denied the board’s

motion to dismiss, reasoning that:

“Miller does not address the right to a revocation hear-

ing at which the board must find a parole violation before

extending the active period of parole supervision. Nor did

the board, in response to petitioner’s identification of collat-

eral consequences—that his period of active supervision is

extended two years beyond what it could be without such

a hearing, if he prevails on judicial review—demonstrate

that that asserted consequence ‘either does not exist or is

legally insufficient.’ [State v. K. G. B., 362 Or 777, 786, 416

P3d 291 (2018)]. Thus, the state has not met its burden. See

State v. Stroud, 293 Or App 314, 316-18, 428 P3d 949 (2018)

(state did not meet its burden of demonstrating that appeal

was moot).”

The Commissioner gave the board leave to raise the issue

of mootness to the panel that considered this case on the

merits. The board did not avail itself of that opportunity.

However, under our independent authority to consider mat-

ters of justiciability, for the following reasons we neverthe-

less elect to address the issue of mootness here.

As we recently explained:

“ ‘Determining mootness is one part of the broader ques-

tion of whether a justiciable controversy exists.’ [Brumnett

v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993).] ‘One ques-

tion 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 quotation marks omitted). ‘The burden rests with

680 Atkinson v. Board of Parole

the party moving 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 possi-

ble collateral consequences and then disprove each of

them. Rather, when the moving party takes the posi-

tion that a case has become moot, the responding party

must identify any collateral consequences that he or

she contends has the effect of producing the required

practical effects of a judicial decision. At that point, the

moving party must demonstrate that any of those iden-

tified 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 pru-

dential matter, whether an appeal is moot.’ A. B., 362 Or

at 426.”

Smith v. Board of Parole, 305 Or App 773, 776, 472 P3d 805,

rev den, 367 Or 387 (2020).

As in Smith, a case decided after the Commissioner

entered her order:

“[This is not] a case where the board has failed to demon-

strate that the effects or consequences that petitioner iden-

tified are either legally insufficient or factually incorrect.

Here, in its motion to dismiss, the board argued that ‘this

court’s case law makes clear that the potential reversal of

the board’s deferral decision does not give rise to collateral

consequences for petitioner’s current parole preventing dis-

missal of this moot case.’ In particular, the board asserted

that, under the circumstances of this case, the mere pos-

sibility that petitioner’s parole status could have changed

from active to inactive at an earlier date is not a legally suf-

ficient collateral consequence that would prevent dismissal

of this case.”

Id. at 781.

In this case, the board correctly anticipated peti-

tioner’s collateral consequences argument about a change

from active to inactive supervision in its motion to dismiss,

Cite as 319 Or App 673 (2022) 681

even though the board did not specifically address peti-

tioner’s rule-based attempt to distinguish Miller. Because,

as explained below, the board’s overarching argument was

sufficient to refute petitioner’s counterargument, the board

met its applicable burden. Moreover, the case law does not

indicate that courts should consider the issue of mootness

only if a party renews before the merits panel a prior motion

to dismiss a case as moot that was denied by the Appellate

Commissioner. For example, in State v. Gentle, 299 Or App

508, 450 P3d 507 (2019), and Johnson v. Premo, 302 Or App

578, 461 P3d 985, rev den, 366 Or 569 (2020), we identified

the issue and subsequently dismissed those cases as moot.

Initially, we note that petitioner’s threshold argu-

ment against mootness—that the board’s 2019 order was

legally incorrect because the board only had authority to ini-

tially impose a 12-month period of active supervision after

his release on parole, not a 36-month period—is misplaced

in this context. The problem is that petitioner did not chal-

lenge the imposition of the 36-month period of active super-

vision on the merits on review in this case,5 but only raised

the issue in his response to the board’s mootness motion.

In making his argument against mootness without having

challenged on its merits the active supervision period set

out in the 2019 order in the present case, petitioner must

take the 2019 order as he finds it.6

That problem aside, we recognize that petitioner’s

challenge on the merits on review is to the board’s 2017

order deferring his release on parole, and his fallback argu-

ment against mootness is that, if he had been released then,

any extension of his initial period of active supervision sta-

tus beyond (at the latest) December 28, 2020 would have

5

Given that the board has not challenged that aspect of petitioner’s argu-

ment against mootness, we assume for the sake of argument that such a chal-

lenge on the merits might have been permissible. We note, however, that peti-

tioner did, in fact, petition for judicial review of the 2019 order, and this court

dismissed that petition as moot. Atkinson v. Board of Parole, A171896.

6

Cf. Haskins v. Palmateer, 186 Or App 159, 166-68, 63 P3d 31, rev den, 335

Or 510 (2003) (holding, in habeas corpus case involving same board rules, that

even if board “may have failed to follow its own procedural rules in petitioner’s

case[,] * * * [n]othing in the applicable rules or statutes affirmatively entitled

petitioner to discharge from parole merely because of such a failure on the part

of the board”).

682 Atkinson v. Board of Parole

required a parole revocation hearing and a determination

that petitioner violated parole. We conclude that the distinc-

tion that petitioner relies on does not ultimately make a dif-

ference in the mootness analysis.

The controlling decisions all indicate that an earlier

commencement of active parole supervision does not ensure

an earlier discharge from parole. See, e.g., Miller, 275 Or

App at 850. Underlying those decisions is the principle that,

to avoid mootness, an asserted collateral consequence must

have a “probability” of occurring; a possibility or speculation

is not enough. That remains true even assuming everything

petitioner says about how the board rules in effect when he

committed his offenses would have applied to him is correct.

As pertinent here, those rules are not materially different

from the rules at issue in prior decisions holding that cases

were moot in similar circumstances. See, e.g., former OAR

255-90-015(2) (Aug 1982) (“Nothing contained in this rule

shall be interpreted to preclude more than one extension

of a discharge date by the Board. However, no extension of

parole shall exceed the maximum term of sentence imposed

by the court.”). That is, the thrust of those prior decisions

did not hinge on the mechanics or proof requirements for

extending periods of active supervision under applicable

board rules but, rather, on the core principle that, for inde-

terminate sentences, the parole period is not governed by

when a person is released from prison, but, rather by when

the indeterminate sentence expires. See, e.g., Miller, 275

Or App at 850 (“We have repeatedly held that the board’s

authority over a parolee like petitioner [who is serving an

indeterminate sentence] extends for the remainder of his

sentence * * * unless and until the board affirmatively dis-

charges him from parole supervision.”); see also Smith, 305

Or App at 777 (same).

True, our decisions in Miller, Smith, and other cases

have focused on the effect of a release decision on the inten-

sity of a parolee’s supervision status (active versus inactive)

in considering whether a qualifying collateral consequence

existed that would defeat mootness. Here, however—

analogously to those cases—a reversal of the board’s 2017

decision to defer petitioner’s release on parole would not

Cite as 319 Or App 673 (2022) 683

have the practical effect of changing petitioner’s parole

status from active to inactive at an earlier date. That is so

because the statutes and rules on which petitioner relies do

not, by themselves, establish a probability that the board

would have failed to initiate a revocation proceeding after

petitioner’s release and before his period of active super-

vision otherwise would have ended, much less what the

outcome of such a hearing would have been. As in Smith,

“the law applicable to petitioner’s sentence and the order of

release allow for petitioner’s active supervision to continue

to the sentence expiration date, and the law does not require

the board to change petitioner’s parole status from active to

inactive based on petitioner’s initial parole date alone.” 305

Or App at 780. Despite the procedural differences that peti-

tioner touts for the rules in effect at the time of his offenses,

there remains only a possibility that petitioner’s parole sta-

tus might have changed from active to inactive status at an

earlier date, and that is not sufficient. See Smith, 305 Or

App at 781 (“the mere possibility that petitioner’s parole sta-

tus could have changed from active to inactive at an earlier

date is not a legally sufficient collateral consequence”).

Because the board demonstrated that a reversal of

its 2017 decision to defer petitioner’s release on parole would

not have the practical effect of changing petitioner’s parole

status from active to inactive at an earlier date, the board

met its burden to demonstrate that petitioner’s identified

collateral consequence is legally insufficient and that the

case is, therefore, moot.

Petition for judicial review dismissed as moot.