Tuckenberry v. Board of Parole

640

Argued and submitted March 4, at Lewis & Clark Law School, Portland,

Oregon; decision of Court of Appeals reversed, order of Board of Parole and

Post-Prison Supervision reversed, and case remanded to Board of Parole and

Post-Prison Supervision for further proceedings October 24, 2019

BRIAN LEE TUCKENBERRY,

Petitioner on Review,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent on Review.

(CA A163798) (SC S066213)

451 P3d 227

When petitioner was released from prison to post-prison supervision, the

Board of Parole and Post-Prison Supervision issued an order of supervision that

included a special condition that prohibited petitioner from entering into or par-

ticipating in any intimate relationship or encounters with any person without

prior written permission from his supervising officer. Petitioner, who was not

represented by counsel, requested review of the board’s order in terms that were

unclear. After the board, and then the Court of Appeals, affirmed the order, peti-

tioner sought review by the Oregon Supreme Court, arguing that the special

condition requiring his supervisor’s permission to enter into any “intimate” rela-

tionship was unconstitutionally vague and overbroad and that the board lacked

authority under the relevant statute, ORS 144.102(4)(a), to impose it. The board

responded to those arguments on their merits, but it also argued that the court

lacked authority to consider the issues because petitioner had failed to exhaust

his administrative remedies, as required by ORS 144.335(1)(b). Specifically, the

board argued that petitioner failed to raise the same objections that he was rais-

ing before the court in his administrative review request to the board. Held: The

administrative exhaustion requirement in ORS 144.335(1) incorporates flexible,

prudential exhaustion principles, and under those prudential principles, the

court would consider petitioner’s claims, not specifically raised before the board;

on the merits, petitioner’s claim that the board lacked statutory authority to

impose the special condition regulating petitioner’s “intimate” relationships and

encounters was completely resolved in petitioner’s favor by the court’s holding in

a companion case, Penn v. Board of Parole, 365 Or 640, 451 P3d 589 (2019).

The decision of the Court of Appeals and the order of the Board of Parole and

Post-Prison Supervision are reverse, and the case is remanded to the Board of

Parole and Post-Prison Supervision for further proceedings.

En Banc

On review from the Court of Appeals.*

______________

* Judicial review from a final order of the Board of Parole and Post-Prison

Supervision. 291 Or App 843, 419 P3d 818 (2018).

Cite as 365 Or 640 (2019) 641

Marc D. Brown, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause for petitioner on

review. Stephanie J. Hortsch and Marc D. Brown, Deputy

Public Defenders, filed the briefs for petitioner on review.

Also on the briefs was Ernest G. Lannet, Chief Defender.

Christopher Page, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on review.

Also on the brief were Ellen F. Rosenblum, Attorney General,

and Benjamin Gutman, Solicitor General.

NAKAMOTO, J.

The decision of the Court of Appeals is reversed. The

order of the Board of Parole and Post-Prison Supervision is

reversed, and the case is remanded to the Board of Parole

and Post-Prison Supervision for further proceedings.

642 Tuckenberry v. Board of Parole

NAKAMOTO, J.

This is a companion case to Penn v. Board of Parole,

365 Or 607, 451 P3d 589 (2019), also decided today. Like

the petitioner in Penn, petitioner seeks relief from a special

condition of supervision, imposed on him by an order of the

Board of Parole and Post-Prison Supervision, that requires

petitioner to obtain permission from his parole officer before

entering into any “intimate” relationship or encounter. But,

unlike the petitioner in Penn, petitioner was unrepresented

by counsel and did not raise the issues and arguments in

his administrative review request to the board that he now

raises before this court. The board contends that, as a

result, petitioner failed to exhaust administrative review as

required by ORS 144.335(1)(b) and that his appeal, there-

fore, cannot be considered on its merits. We conclude, how-

ever, that (1) petitioner objected to the special condition and

complied with the statutory exhaustion requirement, and

(2) the proceedings before the board were not of the sort

that, under the general prudential exhaustion principles

that ORS 144.335(1)(b) incorporates, would require peti-

tioner to have raised the specific legal arguments that he

now asserts, on pain of being barred from judicial review of

the board’s order. We can and do consider petitioner’s objec-

tions to the condition of post-prison supervision regulating

his “intimate” relationships and encounters, and conclude,

for reasons set out in Penn, that the condition was not law-

fully imposed in accordance with the statute governing the

board’s authority.

Based on an incident in which he entered his

ex-girlfriend’s residence through a window and raped her,

petitioner was convicted of first-degree sexual abuse, ORS

163.427, and first-degree burglary, ORS 164.225. He was

sentenced to 75 months in prison and 45 months of post-

prison supervision. Before the incident leading to those con-

victions, petitioner and the victim had had a two-year rela-

tionship marked by other instances of physical and sexual

abuse.

Shortly before his prison term ended, the board

issued an order listing the conditions that would apply to

petitioner during his term of post-prison supervision. One of

Cite as 365 Or 640 (2019) 643

several special conditions included in the order, which was

identified as Special Condition 10, stated:

“Other: Special conditions may be imposed that are not

listed above when the Board of Parole and Post-Prison

Supervision determines that such conditions are necessary.

Submit to assessment and evaluation to develop a case plan

for supervision and/or treatment. * * * SEX OFFENDER

PACKAGE A: (a) * * * (n) * * * * * Do not enter into or par-

ticipate in any intimate relationship or intimate encounters

with any person (male or female) without the prior written

permission of the P[arole] O[fficer].”

(Emphasis added.)

Petitioner filed a request for administrative review

of the order on a form set out in the board’s rules. The form

provided a checklist of possible bases for objecting to an

action of the board, with room for further explanation. The

choices on the form included that (1) a finding by the board

was not supported by substantial evidence; (2) pertinent

information had not been available or had not been consid-

ered by the board; (3) the board’s action was inconsistent

with a rule or policy; and (4) the board’s action violated a

statute or constitutional provision.

On his form, petitioner indicated that there was no

substantial evidence to support “a finding of[ ] Sex Offender

Package A” and added, by way of explanation: “No children

involved, no previous convictions, no drugs/alcohol use, fre-

quent check in with * * * my p[arole] o[fficer].” Petitioner also

indicated that the board had failed to consider pertinent

information, and he specified that he had a learning disabil-

ity and limited education and that he did not know what he

was signing when he signed his plea deal.

Petitioner filed the form as an attachment to an

email, the text of which the board treated as an additional

part of petitioner’s administrative review request. In that

email, petitioner stated:

“I would like for my restrictions to be removed due to the

fact that I’m trying to do everything possible to succeed

in society. These restrictions on me are going to stop me

from being successful in life. * * * I would like to be in my

daughter’s life. I miss her dearly. She is in Mississippi. I’ve

644 Tuckenberry v. Board of Parole

changed these past 6 years since I’ve been incarcerated.

If the parole board was ever to lift restrictions you would

never have to doubt me. I want to do good. I want to be a

better father. I would like a fair chance to make it in life.”

The board denied petitioner’s request for relief.

After noting that petitioner had asked the board to remove

“the special conditions of supervision listed under Special

Condition (SC) # 10[,] commonly known as sex offender pack-

age A,” the board responded that the board was required to

impose that package of conditions on persons convicted of sex

crimes, including those convicted of the crime of first-degree

sexual abuse. The board then noted that some of the condi-

tions “listed in sex offender package A” were not to be read

as absolute prohibitions, but instead required prior written

permission from petitioner’s supervising officer. The board

stated that it had determined that petitioner’s remaining

allegations were “not supported by the factual record,” were

“not sufficiently developed or explained,” or were “without

merit in light of the record and the board’s findings of fact

and conclusions of law.” The board ended by advising peti-

tioner, “You have exhausted your administrative remedies”

and “may petition the Court of Appeals for judicial review of

this order.”

Petitioner filed a timely petition for judicial review

by the Court of Appeals. In his opening brief, petitioner

assigned error to the board’s imposition of “the last pro-

vision in Special Condition No. 10,” i.e., the prohibition on

“entering into or participating in any intimate relationship

or intimate encounters with any person without the prior

written permission of his supervising officer.” Petitioner

asserted that that condition (1) was not one that the board

was required to impose on any person convicted of a sex

crime and that the board had acted outside the range of dis-

cretion delegated to it by ORS 144.102 in imposing it; (2) was

not supported by substantial evidence; and (3) was unconsti-

tutionally vague and overbroad.

The board initially responded by moving to dismiss

the petition for judicial review “for lack of jurisdiction” on the

ground that petitioner had failed to exhaust his administra-

tive remedies as required by ORS 144.335(1)(b) (a person

Cite as 365 Or 640 (2019) 645

“may seek judicial review of a final order of the board” if

the person “ has exhausted administrative review as pro-

vided by board rule”). In that motion, the board took the

position that no part of petitioner’s administrative review

request, including the email to which it had been attached,

identified the particular condition that was the focus of peti-

tioner’s petition for judicial review. Neither, in the board’s

view, did the administrative review request raise the spe-

cific objections that petitioner was raising on judicial review.

The Appellate Commissioner denied the motion, explaining

that, “giving petitioner the benefit of the doubt,” petitioner’s

administrative review request had sufficiently raised the

issues that he appeared to be raising in his petition for judi-

cial review.

Later, in its response brief, the board repeated and

expanded on its request that the petition for judicial review

be dismissed for failure to exhaust administrative remedies,

but it also responded to petitioner’s arguments on the merits.

The Court of Appeals implicitly rejected the board’s exhaus-

tion argument, but accepted its merits arguments, when it

affirmed the board’s order without opinion. Tuckenberry v.

Board of Parole, 291 Or App 843, 419 P3d 818 (2018).

Petitioner now seeks review of that decision by

this court. He argues that the special condition, which pur-

ports to regulate his intimate relationships and encounters,

(1) falls outside of the range of discretion delegated to the

board with respect to conditions of post-prison supervision

and (2) is unconstitutionally vague and overbroad.

The board responds to those arguments, but it also

suggests that the appellate courts were and are with-

out authority to consider the issues that petitioner raises,

because petitioner failed to exhaust his administrative

remedies as required by ORS 144.335(1)(b). Although the

board acknowledges that petitioner followed the procedures

required to exhaust his administrative remedies by timely

filing an administrative review request objecting to his

supervisory conditions, it argues that petitioner neverthe-

less failed to exhaust administrative review because he did

not raise the same objections in his administrative review

request that he now is raising before this court. The board

646 Tuckenberry v. Board of Parole

highlights that petitioner indicated on the form that he was

challenging Sex Offender Package A as unsupported by sub-

stantial evidence, a claim not pursued on judicial review,

but did not check the boxes relevant to, or otherwise iden-

tify, the legal bases on which he now relies to challenge the

condition: that its imposition falls outside of the scope of the

board’s statutory discretion and violates a statute or consti-

tutional provision.

We begin our analysis with the exhaustion issue.

The general doctrine of exhaustion of administrative reme-

dies is judicially created, a creature of the common law, and

is employed by the courts—including this one—in the inter-

est of orderly procedure and good administration. Miller v.

City of Portland, 356 Or 402, 419-20, 338 P3d 685 (2014);

Marbet v. Portland Gen. Elect., 277 Or 447, 456, 561 P2d 154

(1977). It generally holds that “judicial review is only avail-

able after the procedure for relief within the administrative

body itself has been followed without success.” Mullenaux v.

Dept. of Revenue, 293 Or 536, 539, 651 P2d 724 (1982) (quot-

ing Miller v. Schrunk, 232 Or 383, 388, 375 P2d 823 (1962)).

That prudential doctrine of exhaustion is “not rigid but flex-

ible,” and can be relaxed, or even dispensed with altogether,

depending on the circumstances. See Marbet, 277 Or at 456

(doctrine “not rigid but flexible”); accord Miller, 356 Or at

420-21 (declining to apply exhaustion doctrine when doing

so would discourage orderly procedure and good adminis-

tration); see also Kristen E. Hickman & Richard J. Pierce,

Jr., 2 Administrative Law Treatise § 17.2, 1457 (6th ed 2019)

(in general, common-law exhaustion requirement does not

apply if “considerations of individual justice, efficiency, or

wise judicial administration support the need for judicial

review in the absence of exhaustion”).

The exhaustion doctrine in its common-law, pruden-

tial form, includes a flexible “issue exhaustion” requirement.

As this court has recognized on more than one occasion,

“the requirement that a party must have objected before the

agency to errors he asserts on judicial review is one facet of

the general doctrine that a party must exhaust his adminis-

trative remedies.” Marbet, 277 Or at 456; see also Mullenaux,

293 Or at 541 (“A party does not exhaust his administra-

tive remedies simply by stepping through the motions of

Cite as 365 Or 640 (2019) 647

the administrative process without affording the agency an

opportunity to rule on the substance of the dispute.”).

Notably, however, the “issue exhaustion” require-

ment, like the broader common-law exhaustion doctrine,

is a prudential doctrine that courts may relax or set aside

entirely, depending on the circumstances. See generally John

C. Dubin, Torquemada Meets Kafka: The Misapplication of

the Issue Exhaustion Doctrine to Inquisitorial Administrative

Proceedings, 97 Colum L Rev 1289, 1309 (1997) (describ-

ing “issue exhaustion” in administrative proceedings as a

“flexible, discretionary doctrine” that derives from pruden-

tial preservation principles and that is similarly subject to

“prudential and equitable exceptions”). In Marbet, this court

recognized that the requirement that judicial review be lim-

ited to objections raised before the administrative agency

is a judicial policy that promotes “orderly procedures and

good administration” but that the policy has exceptions. 277

Or at 456. For example, the requirement is not applicable

when objections are to legal flaws that the agency could not

remedy, and “[t]here can be other justifications for consider-

ing on judicial review important statutory issues not first

decided by the agency,” including when “correct administra-

tion of the statute concerns public interests beyond those of

the parties.” Id.

In arguing for dismissal of petitioner’s present

claims for failure to exhaust his administrative remedies,

the board does not rely on the prudential exhaustion doc-

trine. Rather, it contends that ORS 144.335(1)(b) imposes

not just a procedural-exhaustion requirement, but also a

strict issue-exhaustion requirement that is divorced from

“the generally applicable exhaustion requirements that

otherwise apply to judicial review of agency’s actions.” If the

board is correct, then this court is bound by that statutory

requirement and must decline to decide the merits of any

objection that petitioner failed to raise in the administrative

review proceeding before the board, without regard to the

common law prudential doctrine. But petitioner counters

that the board is mistaken.

Petitioner argues that ORS 144.335(1)(b), by its

terms, contains no such issue-exhaustion requirement. Rather,

648 Tuckenberry v. Board of Parole

petitioner argues, the question of whether he adequately

exhausted his administrative remedies must be decided

under a flexible, prudential exhaustion doctrine. And under

that flexible doctrine, he contends, issue exhaustion would

not be a prerequisite for judicial review of the board order

that is before us. In any event, he adds, he sufficiently

alerted the board to his contention that the special condi-

tion was improper because its broad scope would hinder his

relationship with his child.

We first consider to what extent ORS 144.335(1)(b)

imposes an issue-exhaustion requirement. That, ultimately,

is an issue of legislative intent, which we resolve by applying

our usual analytical framework, focusing on the statutory

text, the surrounding context, and any helpful legislative

history. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042

(2009). Contrary to the board’s position, we conclude that

the legislature likely intended to adopt the general, pru-

dential doctrine pertaining to exhaustion of administrative

remedies.

In relevant part, ORS 144.335 provides:

“(1) A person over whom the State Board of Parole and

Post-Prison Supervision exercises its jurisdiction may seek

judicial review of a final order of the board as provided in

this section if:

“(a) The person is adversely affected or aggrieved by a

final order of the board; and

“(b) The person has exhausted administrative review

as provided by board rule.”

Because ORS 144.335(1)(b) requires exhaustion of adminis-

trative review “as provided by board rule,” we look to what

those rules have to say about issue exhaustion.

The board’s general exhaustion rule, OAR 255-080-

0001(2), provides:

“An inmate/offender has exhausted his or her adminis-

trative remedies after complying with OAR 255-080-0005

and 255-080-0008, and after the Board denies review,

or grants review and either denies or grants relief. The

Board shall notify the inmate/offender that exhaustion

Cite as 365 Or 640 (2019) 649

has occurred and the time for judicial appeal of appealable

orders shall run from the mailing date of the notice.”

(Emphasis added.) The general exhaustion rule thus includes

a set of nested rules that are relevant to the issue at hand.

The first of the referenced rules, OAR 255-080-0005,

simply provides that administrative review is obtained by

sending a request for review to the board within a speci-

fied time period. The second referenced rule, OAR 255-080-

0008, sets out specifications for a request for review. It pro-

vides, in relevant part:

“(1) The request for administrative review shall be sub-

stantially in the form specified by the Board in Exhibit O,

Administrative Review Request Form, and shall contain:

“* * * * *

“(c) Identification of the Board action or order for

which review is requested, by name of action * * * and date

of action.

“(d) A plain and concise statement of the points for

which the offender wants review, specifically identifying

how the challenged Board action is alleged to be in viola-

tion of statutes or Board rules, or how it is alleged that the

decision was not supported by evidence in the record, or in

what other way the offender believes the Board’s action to

be in error. A request for administrative review must con-

cisely explain how the case fits the criteria for review listed

in OAR 255-080-0010.

“(e) The request must state, where applicable, what

statute, administrative rule, or constitutional provision is

alleged to have been violated, including the effective date

of the law or rule.”

The rule cited in subsection (d), OAR 255-080-0010, provides

a list of the general criteria for granting review:

“(1) The Board action is not supported by evidence in

the record; or

“(2) Pertinent information was available at the time of

the hearing which, through no fault of the offender, was not

considered; or

“(3) Pertinent information was not available at the

time of the hearing * * *; or

650 Tuckenberry v. Board of Parole

“(4) The action of the Board is inconsistent with its

rules or policies and the inconsistency is not explained; or

“(5) The action of the Board is in violation of constitu-

tional or statutory provisions or is a misinterpretation of

those provisions; or

“(6) The action of the Board is outside its statutory

grant of discretion.”

Thus, under the “board rule[s]” to which ORS 144.335(1)(b)

refers, an offender has exhausted administrative review

only after he or she has filed a request for review that iden-

tifies the board action for which review is requested and

the specific ways that action is thought to be in error. OAR

255-080-0001(2); OAR 255-080-0008(1)(d).

The text of ORS 144.335(1)(b), even considering the

board rules, does not spell out in express terms whether a

petitioner on judicial review is strictly prohibited from rais-

ing arguments about the board’s errors that the petitioner

did not raise on administrative review, as the board con-

tends. Looking first to the rules referenced in the statute,

they define exhaustion as requiring that the person seeking

administrative review specifically identify the grounds upon

which, in that administrative review, they wish to challenge

the board’s order or action. The rules contain nothing that

suggests that judicial review cannot be obtained on grounds

other than those identified in the request for administrative

review. Neither do the words of ORS 144.335(1)(b) expressly

state such a limitation. The statute merely provides that a

person may seek judicial review of “a final order of the board”

if he or she has exhausted review as provided by board rule.

This court has never decided whether or how ORS

144.335(1) incorporates an issue-exhaustion requirement for

judicial review.1 But in 1982, this court construed a different

1

In Jenkins v. Board of Parole, 313 Or 234, 239, 833 P2d 1368 (1992), we

explained that the provision in ORS 144.335(1) for an inmate to obtain judicial

review “after exhaustion of administrative review as provided by board rule”

means that the inmate “must use any process of administrative review” provided

by board rule “before seeking judicial review.” (Emphasis added.) Jenkins, how-

ever, was not a case concerning issue exhaustion and should not be understood

to have determined the issue presented here. The issue in that case was whether

Cite as 365 Or 640 (2019) 651

statute requiring a party to have exhausted administrative

remedies as incorporating the general Oregon doctrine of

exhaustion of administrative remedies. See Mullenaux, 293

Or at 540-01 (holding that ORS 305.275(4), which mandated

that a party exhaust administrative remedies, “requires at

least as much” as the “general rule of exhaustion of admin-

istrative remedies”).

The exhaustion requirement in ORS 144.335(1) was

first added by Oregon Laws 1989, chapter 790, section 41.2

Neither of the parties have directed us to any legislative

history pertinent to what the legislature intended by enact-

ing the requirement that persons seeking judicial review

of a final board order “exhaust[ ] administrative review as

provided by board rule.” Our own review reflects that the

legislative history of the 1989 amendment was the subject

of only brief discussion.

The Senate Judiciary Committee addressed the need

for the amendment when a senator questioned whether it

went without saying that a person would be entitled to judi-

cial review after exhausting administrative remedies. Tape

Recording, Senate Committee on Judiciary, SB 1073, June 6,

1989, Tape 1, Side A (statement of Sen Ronald Grensky).

Vern Faatz, then the chair of the board, explained that, with-

out the amendment, an inmate could appeal a decision by

the board by going directly to the Court of Appeals and that

the amendment would require the inmate “to come through

us first.” Id. (statement of Vern Faatz). Faatz added that the

amendment was expected to reduce the cost of attorney fees

the phrase “as provided by board rule” referred to rules in effect when the stat-

utory amendment took effect in 1989 or to new rules, which the board later pro-

mulgated and which took effect in 1991. Jenkins, 313 Or at 238. Thus, the focus

of the case was on the board’s procedures in place at the time of the statutory

amendment.

2

Section 41 in part amended ORS 144.335(1) to read:

“144.335. (1) When a person over whom the board exercises its jurisdic-

tion is adversely affected or aggrieved by a final order of the board related

to the granting, revoking or discharging of parole or the revoking of post-

prison supervision and after exhaustion of administrative review as

provided by board rule, such person is entitled to judicial review of the

final order.”

The current version of ORS 144.335(1) was enacted in 2001. Or Laws 2001,

ch 661, § 1.

652 Tuckenberry v. Board of Parole

that the board had to spend on court appeals. Id.3 With such

limited legislative history, it is difficult to draw any conclu-

sions about the legislature’s intention, other than that the

legislature did not object to the board’s interest in requiring

inmates to appeal decisions to the board before going to the

Court of Appeals.

Considering the limited nature of both the legis-

lative history and the context of the amendment, we focus

on the fact that the term “exhaustion” in connection with

administrative agency review is a legal term of art. In a

fashion similar to this court’s conclusion in Mullenaux, we

conclude that the requirement in ORS 144.335(1)(b) that

the person seeking judicial review must have “exhausted

administrative review as provided by board rule” incorpo-

rates the general exhaustion doctrine of administrative law

in Oregon. Indeed, that is how the Court of Appeals has

understood ORS 144.335(1). In Ayers v. Board of Parole, 194

Or App 429, 435-36, 97 P3d 1 (2004), the Court of Appeals

held that the legislature had codified in ORS 144.335(1)(b)

a general, flexible rule of administrative law that judicial

review is available only after available procedures for relief

within the agency have been followed and the party has

raised before the agency the challenges that it intends to

make on judicial review. Thus, the statute’s issue-exhaustion

requirement is not uniquely and strictly fashioned for the

board, but instead remains flexible under general pruden-

tial exhaustion principles.4

We next consider whether review of the legal issues

that petitioner now raises that were not expressly raised

before the board should be precluded under the general and

3

House Bill 2250 was “gutted” and “stuffed” with the language of SB 1073,

and so HB 2250 is the bill containing the amendment to ORS 144.335(1) that was

passed by the legislature.

4

Some federal courts have suggested that, when an agency’s own rules

require a party seeking administrative review to list the specific issues to be

considered in that review, issue exhaustion is required to obtain judicial review

of the agency’s final decision, see, e.g., Sears, Roebuck and Co. v. FTC, 676 F2d

385, 398 n 26 (9th Cir 1982). Be that as it may, the existence of an administrative

agency’s exhaustion rule requiring specification of all issues to be considered

in administrative review, when referenced in a statute requiring administrative

exhaustion for purposes of judicial review, does not impose a statutorily required

limitation on the issues that may be raised on judicial review.

Cite as 365 Or 640 (2019) 653

flexible prudential exhaustion principles that, as discussed,

are incorporated into ORS 144.335(1)(b). In litigation in the

courts, the rule limiting appeals to issues that were pre-

served in the trial court ensures the full development of the

evidentiary record and fosters fairness by allowing the par-

ties, who are expected in our adversarial court system to

present facts and legal arguments favoring their respective

positions on their own, to respond fully and deliberately to

all contentions, without surprise. See Peeples v. Lampert, 345

Or 209, 219-20, 191 P3d 637 (2009) (preservation require-

ment promotes judicial efficiency by allowing the trial court

to correct its own errors, fosters full development of the

record, and ensures that parties are not denied opportuni-

ties to meet an argument); see also Sims v. Apfel, 530 US 103,

109-12, 120 S Ct 2080, 147 L Ed 2d 80 (2000) (explaining

that courts impose issue-exhaustion requirement for same

basic reasons of fairness to the parties that courts impose

a preservation requirement in ordinary appellate review

and holding that Social Security claimants who exhausted

administrative process need not also exhaust issues pre-

sented to the agency as a prerequisite to seeking judicial

review, given that the administrative proceedings were not

adversarial). Citing Torquemada Meets Kafka, Professor

Dubin’s law review article, and the reasoning of the United

States Supreme Court in Sims, petitioner argues here that

(1) the proceedings before the board that result in the impo-

sition of conditions of post-prison supervision are not adver-

sarial, court-like proceedings and (2) an issue-exhaustion

requirement for judicial review is therefore inappropriate

when conditions of post-prison supervision are challenged.

We agree that proceedings before the board regard-

ing conditions of supervision are not traditional adversarial

proceedings. Under the controlling statutes, an inmate to

be released on supervision plays no role in identifying legal

issues or presenting evidence that might affect the deci-

sion to impose or not impose a condition of supervision. The

Department of Corrections proposes conditions of parole to

the board, as part of a broader release plan for the inmate,

and the board reviews and modifies the department’s pro-

posal, basing its decisions about conditions of supervision

on evidence of its own choosing. ORS 144.098 (in deciding

654 Tuckenberry v. Board of Parole

whether to approve release plan, board “may” interview the

inmate and review certain specified reports and records).

Although the board’s rules instruct the inmate to specifi-

cally identify the legal issues that he or she wishes to raise

in any request for administrative review of a condition of

supervision imposed by the board, OAR 255-080-008(1)(d),

and appear to permit the inmate to submit evidence relat-

ing to those issues,5 those limited instructions do not make

the resulting administrative review proceeding a fully

adversarial one—particularly when the inmate will rarely

be represented by counsel when filing his or her request for

administrative review. The board need not hold a hearing

on a request, and petitioner notes that the board did not

hold a hearing in his case. Thus, the administrative pro-

ceedings below were of the kind that, through an analogy

to the preservation requirement in ordinary litigation, some

courts, including the Supreme Court in Sims, have found to

be insufficiently adversarial to warrant the application of an

issue-exhaustion requirement.

However, given that the legislature intended to

adopt the general doctrine of exhaustion of administrative

remedies in ORS 144.335(1), we decline to make the jump

from that fact to a blanket conclusion that all proceedings

before the board involving the imposition of special condi-

tions of post-prison supervision are exempt from the issue-

exhaustion requirement that inheres in the general doctrine

of exhaustion of administrative remedies under Oregon law.

Instead, we consider whether issue exhaustion is appropri-

ately required in this case as a prudential matter.

For three reasons, we are not persuaded by the

board’s argument that we must decline to reach the mer-

its of petitioner’s challenge to the special condition at issue

because he failed to adequately exhaust his avenues for relief

before the board. First, on administrative review, petitioner

objected to “Sex Offender Package A,” which, as set out in

the board’s Order of Supervision Conditions, appeared to

include the “intimate relationship or intimate encounters”

condition at issue. Petitioner provided at least a general

5

The rules allow a person requesting administrative review to submit “addi-

tional documentation in support of the request.” OAR 355-080-0008(3)(b).

Cite as 365 Or 640 (2019) 655

description of his concerns to the board, and even included

his specific concern that the condition would interfere with

his relationship with his daughter. The board understood

that petitioner challenged the condition’s limitation on

his relationships, and petitioner renews that challenge on

judicial review. We note that petitioner was unrepresented

while he challenged the condition during the administrative

review, and his request for administrative review appears to

be all that could be expected, given his evident educational

disadvantages. Second, petitioner raises important issues of

public interest concerning the board’s statutory authority

to impose a special condition that purports to regulate all

of a parolee’s “intimate” relationships and encounters. See

Marbet, 277 Or at 456 (it may be appropriate to decide an

important statutory issue on review even if not first decided

by an administrative agency). And third, the board’s posi-

tion on an identical special condition in Penn, the companion

to the present case, reflects that it likely would have been

futile for petitioner to raise the exact statutory authority

and constitutional arguments that he now asserts through

counsel. In Penn, the board refused to adjust the condition

even though the petitioner in Penn specifically raised those

arguments during administrative review of his order. Penn,

365 Or at 610-11.

In sum, given the equities and as a prudential mat-

ter, we may and do consider petitioner’s claims, not specifi-

cally raised before the board, that the supervisory condition

at issue is one that the board lacked statutory authority to

impose and, in any event, is unconstitutionally vague and

overbroad. On the merits of petitioner’s claims, in light of

our decision today in Penn, our consideration of those issues

need not be protracted.

The petitioner in Penn challenged the board’s impo-

sition of a special condition of supervision that is identical to

the one at issue here, directing the petitioner “not [to] enter

into or participate in any intimate relationship or intimate

encounters with any person (male or female) without the

prior written permission” of his supervising officer. Penn,

365 Or at 609. Like petitioner here, the petitioner in Penn

argued that, in imposing that condition, the board exceeded

its statutory authority under ORS 144.102(4)(a) to impose

656 Tuckenberry v. Board of Parole

any special condition that it “considers necessary because

of the individual circumstances of the person [to be super-

vised.]” Based on the breadth of the condition’s wording and

the board’s explanation that it considered imposition of the

condition necessary when it was narrowly focused on the

sexual relationships or encounters of the petitioner, this

court held that the board had exceeded its authority under

ORS 144.102(4)(a) by imposing the broad condition on the

Penn petitioner. Penn, 365 Or at 637-38. Given that, in this

case, the board has similarly failed to confront the actual

breadth of the special condition in explaining the necessity

of imposing it, that holding completely resolves the present

case. Petitioner therefore is entitled to the relief he seeks—

invalidation of the board’s imposition of the “intimate” rela-

tionships and encounters condition—on the same ground. A

decision on petitioner’s other arguments for invalidating the

condition is unnecessary.

The decision of the Court of Appeals is reversed. The

order of the Board of Parole and Post-Prison Supervision is

reversed, and the case is remanded to the Board of Parole

and Post-Prison Supervision for further proceedings.