Penn v. Board of Parole

607

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

PRENTICE PENN,

Petitioner on Review,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent on Review.

(CA A162458) (SC S065950)

451 P3d 589

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

Board of Parole and Post-Prison Supervision included a special condition in

its supervision order requiring that petitioner not enter into or participate in

any intimate relationship or encounters with any person without prior written

permission from his supervising officer. Petitioner requested review of the spe-

cial condition by the board, arguing that it was unconstitutionally vague and

overbroad and that the board lacked authority under the relevant statute, ORS

144.102(4)(a), to impose it. After those arguments were rejected by both the

board and the Court of Appeals, petitioner sought and obtained judicial review

by the Oregon Supreme Court. While that review was still pending, petitioner

was released from post-prison supervision, and the board moved to dismiss the

review as moot. Petitioner argued, however, that, although moot, his case was

reviewable under ORS 14.175, because he was challenging an act of a public body

that is capable of repetition but likely to evade judicial review in the future. The

court took the reviewability issue under advisement. Held: Petitioner’s challenge

to the special condition was reviewable under ORS 14.175, and the court would

exercise its discretion under that statute to decide it despite its mootness. On the

merits, the board acted outside of its statutory authority under ORS 144.102(4)(a)

by imposing the special condition on petitioner.

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

Post-Prison Supervision are reversed, 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.*

Anna Belais, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

______________

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

Supervision. 290 Or App 935, 415 P3d 597 (2018).

608 Penn v. Board of Parole

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.

Cite as 365 Or 607 (2019) 609

NAKAMOTO, J.

When petitioner was released from prison to post-

prison supervision, the Board of Parole and Post-Prison

Supervision included a special condition in its supervision

order requiring that petitioner not “enter into or participate

in any intimate relationship or intimate encounters with any

person (male or female) without the prior written permis-

sion” of his supervising officer. On review, petitioner raises

two issues: first, whether the board lacked statutory author-

ity to impose the condition and, second, whether the condi-

tion is unconstitutional under the Due Process Clause of the

Fourteenth Amendment because it is vague or overbroad.

Preliminarily, reviewability is also at issue. After

petitioner filed his opening brief, the board moved to dis-

miss based on mootness. The board noted that petitioner

had completed his term of post-prison supervision and no

longer was subject to the challenged condition; therefore,

the board argued, a decision would no longer have a prac-

tical effect on petitioner’s rights and the case should be dis-

missed. Petitioner opposed dismissal, noting cases in which

the board has imposed that special condition on other people

under post-prison supervision, in accordance with its deci-

sion at a 2012 public meeting that it may impose the condi-

tion in the future. We took the motion under advisement.

We now hold that, although petitioner’s appeal is

moot, it is one that can and should be decided under ORS

14.175, which provides an exception to the general rule—

that moot cases should be dismissed—for cases in which

a party alleges that an act, policy, or practice of a public

body is contrary to law. On the merits of petitioner’s appeal,

we hold that the board exceeded the scope of its statutory

authority in imposing the special condition on petitioner.

I. BACKGROUND

The facts that are relevant to our review are not

in dispute and are taken from the board’s final order. In

2010, petitioner was charged with crimes after he violently

assaulted and threatened a woman he had been dating,

using weapons, to compel her to perform a sex act. The

incident was just one of several similar incidents that had

610 Penn v. Board of Parole

occurred during petitioner’s longstanding relationship with

her. Petitioner ultimately pleaded no contest to two of the

charges—attempted first-degree kidnapping constituting

domestic violence and attempted second-degree assault con-

stituting domestic violence. The trial court entered a judg-

ment of conviction on those charges and sentenced petitioner

to 84 months in prison, to be followed by 36 months of post-

prison supervision.

Upon his release from prison, petitioner received an

order listing the conditions of his post-prison supervision, as

required by ORS 144.102(1). Although the board ultimately

was responsible for setting the conditions of petitioner’s

post-prison supervision, they were the product of a statu-

torily required process that began with the Department of

Corrections. Under ORS 144.096(1)(a), the department must

prepare a proposed release plan for an inmate and submit it

to the board. The proposed release plan must include “recom-

mended conditions of post-prison supervision,” “[a]ny other

conditions and requirements as may be necessary to pro-

mote public safety,” and “[a]ny conditions necessary to assist

the reformation of the inmate.” ORS 144.096(3)(b), (d), (f).

Then the board must approve the proposed release plan,

or a revised version of it, before the inmate’s release, ORS

144.096(1)(b), (c), and must provide a copy of the conditions

imposed through the release plan to the inmate upon his or

her release, ORS 144.102(1).

The conditions imposed “may” include any of a

specified list of general conditions set out in ORS 144.102(2),

and for certain sex offenders, specified conditions set out

in ORS 144.102(3) and ORS 144.102(4)(b) must be imposed.

Additionally, the board is authorized under ORS 144.102

(4)(a) to “establish special conditions that the board * * * con-

siders necessary because of the individual circumstances of

the person on post-prison supervision.”

The board-approved supervision conditions in the

order that petitioner received included the general condi-

tions set out in ORS 144.102(2) and several special condi-

tions, including the one at issue that regulates petitioner’s

“intimate” relationships and encounters. With the assis-

tance of legal counsel, petitioner requested review of the

Cite as 365 Or 607 (2019) 611

order. He argued that that special condition, identified in

the order as Supervisory Condition 10 (SC 10), could not

lawfully be imposed and should be stricken. Petitioner con-

tended that SC 10 was outside the board’s statutory grant of

discretion, was not supported by substantial evidence in the

record, and was “an unconstitutional violation of the right to

privacy” and “vague and overbroad.”

In the ensuing administrative review, petitioner

submitted an affidavit, written by his fiancée, who was the

mother of his two sons, for the board’s consideration. In

that affidavit, his fiancée averred that petitioner had never

assaulted her or their sons and that her relationship with

him was based on “clear boundaries” and “appropriate ver-

bal, physical and sexual behavior.” She further averred that,

if SC 10 were to remain in effect, it would prevent her and

petitioner from having a healthy and functional marriage

and would prevent petitioner from fulfilling his roles as hus-

band and father.

The board denied the requested relief in a final

administrative order. After describing in detail the “vicious

assault” petitioner had perpetrated against “a woman you

had been dating and with whom you shared an intimate

relationship,” the board concluded that it was

“in the interest of public safety and your reformation for

your supervising officer to monitor any intimate relation-

ships and/or intimate encounters. It was these individual

circumstances that led the board to impose [SC 10].”

The board further noted that the condition was not an abso-

lute prohibition on petitioner engaging in intimate relation-

ships; rather, it allowed petitioner’s supervising officer to

“monitor and evaluate each situation to determine whether

[the] association is appropriate for your rehabilitation and is

consistent with public safety.” The board’s order concluded

by advising petitioner that he had exhausted his adminis-

trative remedies and could petition the Court of Appeals for

judicial review of the order.

Petitioner timely sought judicial review in the Court

of Appeals, raising the same arguments that he had raised

before the board. The Court of Appeals affirmed without

612 Penn v. Board of Parole

opinion. Petitioner then petitioned for review in this court,

arguing (1) that SC 10 was outside the range of discretion

delegated to the board by statute and (2) that SC 10 is

unconstitutionally vague and overbroad. This court allowed

the petition.

Midway through the proceedings before this court,

petitioner was discharged from post-prison supervision and

filed a notice informing the court of that fact and of his

understanding that the discharge likely had rendered his

appeal moot. Petitioner suggested, however, that the case

could and should be decided without regard to its mootness,

as permitted by ORS 14.175. That statute provides that a

court may decide a challenge to the lawfulness of an act,

policy, or practice of a public body, even one that no longer

has a practical effect on the party bringing the challenge, as

long as (1) that party had standing to commence the action;

(2) the challenged act “is capable of repetition” or the policy

or practice continues in effect; and (3) the policy, practice,

or similar acts “are likely to evade judicial review in the

future.”

The board subsequently moved to dismiss peti-

tioner’s appeal. The board argued that its imposition of the

challenged condition was not an act that was “capable of

repetition” but “likely to evade judicial review” within the

meaning of ORS 14.175 and that the appeal did not other-

wise meet the prudential requirements for reviewing a

moot action. We took the board’s motion for dismissal under

advisement, to be decided before consideration of the par-

ties’ arguments on the merits. We turn to that motion now.

II. MOTION TO DISMISS

Petitioner acknowledges, and we agree, that, given

that petitioner no longer is subject to the supervisory condi-

tion that he challenges, a decision by this court in the matter

will not have a practical effect on his rights—in other words,

his appeal is moot. See Eastern Oregon Mining Association

v. DEQ, 360 Or 10, 15, 376 P3d 288 (2016) (case in which a

court’s decision “no longer will have a practical effect on or

concerning the rights of the parties” is moot). However, that

does not necessarily mean that the board’s motion to dismiss

Cite as 365 Or 607 (2019) 613

must be granted. At least in cases like the present one, in

which the act of a public agency is challenged as contrary to

law, this court “may” decide the case even when a decision

would have no practical effect on the party who brought it,

assuming the requirements set out in ORS 14.175 are sat-

isfied.1 On the other hand, courts are not required to decide

any and every moot case that falls within the terms of ORS

14.175. As this court recognized in Couey v. Atkins, 357 Or

460, 522, 355 P3d 866 (2015), insofar as the statute uses the

permissive term “may,” it “leaves it to the court to determine

whether it is appropriate to adjudicate an otherwise moot

case under the circumstances of each case.”

At least initially, then, the issue regarding dismissal

of petitioner’s appeal boils down to two questions: (1) Does

the appeal satisfy the requirements of ORS 14.175? (2) If so,

should the court exercise its discretion to decide the appeal?2

We answer both questions in the affirmative and deny the

motion.

A. ORS 14.175

The text of ORS 14.175 is the necessary starting

point for answering the first question. State v. Gaines, 346

Or 160, 171, 206 P3d 1042 (2009) (“text and context remain

primary” in construing a statute). The statute, which has

remained unchanged since its enactment in 2007, provides:

“In any action in which a party alleges that an act, pol-

icy or practice of a public body, as defined in ORS 174.109, or

1

Any questions about the constitutional authority of courts to decide moot

cases that meet the requirements of ORS 14.175 have been resolved by Couey v.

Atkins, 357 Or 460, 520, 355 P3d 866 (2015). Couey held that ORS 14.175 does not

run afoul of the limitations on “judicial power” conferred on the courts in Article

VII (Amended), section 1, of the Oregon Constitution by authorizing courts to

entertain public actions that, although moot, are capable of repetition yet likely

to evade review.

2

Petitioner argues, and we agree, that ORS 14.175 does not necessarily rep-

resent the full scope of a court’s constitutional authority to decide moot cases.

See generally Couey, 357 Or at 520-22 (Article VII (Amended), section 1, of the

Oregon Constitution does not require dismissal when “public actions cases or

cases involving matters of public interest” become moot; court need not deter-

mine the outer limits of what constitutes a “public action” or “case involving mat-

ters of public interest” to determine that cases that meet the requirements of

ORS 14.175 are covered). In this case, however, there is no need to look beyond

ORS 14.175 for authority to decide petitioner’s appeal despite its mootness.

614 Penn v. Board of Parole

of any officer, employee or agent of a public body, as defined

in ORS 174.109, is unconstitutional or is otherwise con-

trary to law, the party may continue to prosecute the action

and the court may issue a judgment on the validity of the

challenged act, policy or practice even though the specific

act, policy or practice giving rise to the action no longer has

a practical effect on the party if the court determines that:

“(1) The party had standing to commence the action;

“(2) The act challenged by the party is capable of repe-

tition, or the policy or practice challenged by the party con-

tinues in effect; and

“(3) The challenged policy or practice, or similar acts,

are likely to evade judicial review in the future.”

(Emphases added.)

There is no dispute over the first requirement set

out in the statute: When petitioner commenced the present

action, he was subject to SC 10 and had standing to chal-

lenge its lawfulness. Neither is there any argument that the

statute’s overarching requirement—that the action be one

in which “a party alleges that an act, policy or practice of a

public body * * * is unconstitutional or contrary to law”—is

not satisfied.3 Rather, the dispute centers on the require-

ments at ORS 14.175(2) and (3) that the challenged act be

“capable of repetition” and that “similar acts” likely will

“evade judicial review.”

1. Act “capable of repetition”

The board contends that its “act” of imposing SC 10

on petitioner is not “capable of repetition” or “likely to evade

3

The parties do disagree about whether petitioner is challenging the lawful-

ness of a “policy” or “practice” of the board, in addition to an “act.” In petitioner’s

response to the board’s motion to dismiss, he provides minutes from the board’s

January 26, 2012, public meeting stating that the board “unanimously agreed to

add back into Special Condition #10” the wording of SC 10 “for domestic violence

convictions, assaults or any other case where they feel it is necessary for public

safety.” Though the board “does not dispute that it has imposed” SC 10 in “other

cases involving domestic violence conditions,” it contends that the minutes do not

reflect its policy or practice but instead reflect the adoption of wording for the

board’s use in exercising its discretion. The board further argues that petitioner

has never challenged a board policy or practice in imposing SC 10. Because we

decide this case based on the board’s imposition of SC 10 as an act capable of

repetition, we do not resolve petitioner’s “policy or practice” issue.

Cite as 365 Or 607 (2019) 615

judicial review” within the meaning of ORS 14.175(2) and (3).

The board argues that, when the legislature enacted ORS

14.175, it “borrowed and codified” the common-law “capable

of repetition” doctrine first recognized and developed in fed-

eral cases, see Couey, 357 Or at 480 (so stating), and that it is

appropriate to rely on federal cases in determining the legis-

lature’s intentions with respect to the scope and application

of ORS 14.175.

Under most of the federal cases that define the doc-

trine, the board observes, an act is deemed to be “capable

of repetition” only if there is a “reasonable expectation that

the same complaining party would be subjected to the same

action again.” Weinstein v. Bradford, 423 US 147, 149, 96

S Ct 347, 46 L Ed 2d 350 (1975). See also Federal Election

Com’n v. Wisconsin Right to Life, Inc., 551 US 449, 463, 127

S Ct 2652, 168 L Ed 2d 329 (2007) (capable of repetition excep-

tion requires reasonable expectation or demonstrated proba-

bility that the same controversy will recur involving the same

complaining party); Murphy v. Hunt, 455 US 478, 482, 102

S Ct 1181, 71 L Ed 2d 353 (1982) (same).4 Furthermore, the

board observes, federal courts have not found the required

“reasonable expectation that the same complaining party

would be subjected to the same action again” when some

specified misconduct on the complaining party’s part is a

necessary precondition for such repetition. See Honig v.

Doe, 484 US 305, 319, 108 S Ct 592, 98 L Ed 2d 686 (1988)

(“[F]or purposes of assessing the likelihood that state

authorities will reinflict a given injury, we generally have

been unwilling to assume that the party seeking relief will

repeat the type of misconduct that would once again place

him or her at risk of that injury.”). See also Murphy, 455

US at 482-83 (in challenge to denial of pre-trial bail, find-

ing insufficient probability that same complaining party

would once again be in a position to demand bail); City of

4

The cited decisions—and most modern federal cases on the subject—

articulate a two-part test for when the “capable of repetition yet evading review”

doctrine may operate to save a moot case from dismissal:

“(1) the challenged action was in its duration too short to be fully litigated

prior to its cessation or expiration, and (2) there was a reasonable expecta-

tion that the same complaining party would be subjected to the same action

again.”

Weinstein, 423 US at 149.

616 Penn v. Board of Parole

Los Angeles v. Lyons, 461 US 95, 105-08, 103 S Ct 1660, 75

L Ed 2d 675 (1983) (no expectation that party seeking injunc-

tion against police use of chokeholds would be stopped in the

future for a criminal offense and, if stopped, would provoke

use of chokehold); O’Shea v. Littleton, 414 US 488, 497, 94

S Ct 669, 38 L Ed 2d 674 (1974) (in challenge claiming dis-

crimination in bond setting and sentencing, court concluded

that “attempting to anticipate whether and when these

[same] respondents will be charged with crime and will be

made to appear before either petitioner takes us into the

area of speculation and conjecture”).

Applying those principles from the federal cases

to the present circumstances, the board asserts that any

expectation that petitioner himself would again be subjected

to a condition like SC 10 must rest on a string of assump-

tions the likes of which the federal courts consider specula-

tive: that petitioner will commit and be convicted of another

crime, that he will receive a sentence that includes a period

of post-prison supervision, and that the board will use its

discretionary authority under ORS 144.102(4)(a) to impose

a special condition that is the same or similar to SC 10. In

such circumstances, the board concludes, there can thus

be no “reasonable expectation” that the “same complaining

party” will again be subject to the objectionable supervision

condition. Thus, the board argues, assuming that the mean-

ing of ORS 14.175 is informed by the federal doctrine thus

explicated, the imposition of SC 10 as a condition of peti-

tioner’s post-prison supervision is not “capable of repetition”

in the sense required by ORS 14.175(2).

Petitioner accepts the board’s broader point that, in

enacting ORS 14.175, the legislature borrowed the “capable

of repetition yet evading review” doctrine. But he argues

that that does not resolve precisely which formulation of

the doctrine that the legislature intended to adopt. In fact,

petitioner observes, the words that the legislature chose in

enacting ORS 14.175—the “best evidence” of what the leg-

islature intended, State v. Walker, 356 Or 4, 13, 333 P3d

316 (2014)—are at odds with the judicial formulation of the

doctrine that the board offers; therefore, he argues, the leg-

islature did not intend to adhere to that formulation.

Cite as 365 Or 607 (2019) 617

As an initial matter, this court’s statements in

Couey about the legislative history of ORS 14.175 do not sup-

port a singular focus on the federal formulation of the doc-

trine. To be sure, Couey described how the legislature “bor-

rowed and codified a judicially created doctrine” and stated

that, when the legislature borrows such a judicially created

doctrine, “that case law is highly persuasive evidence of

the legislature’s intentions.” 357 Or at 480. But the court in

Couey then went on to discuss the adoption of the “capable

of repetition” doctrine by both the federal and state courts—

without alluding to any particular formulation of the doc-

trine. Id. at 480-82. Thus, there is no reason to assume

from our decision in Couey that, in enacting ORS 14.175,

the Oregon legislature intended to adopt or to apply a strict

doctrine as set out in the federal cases on which the board

relies.

Reviewing the text and context of ORS 14.175(2),

we conclude that the meanings of words and phrases in

that subsection are not controlled by the board’s cited fed-

eral cases. Our conclusion is driven by context, specifically

(1) the existence of doctrinal variations concerning the

meaning and application of the “capable of repetition” con-

cept when the legislature enacted the statute and (2) other

wording in ORS 14.175.

First, the formulation of the doctrine set out in the

cases that the board cites is not—and was not at the time

the legislature enacted ORS 14.175—universally accepted

or applied by state courts. Some state courts have defined

the “capable of repetition” aspect of the doctrine in a dif-

ferent and less restrictive way. Some state courts do not

require a showing that the same party will be subjected to

the challenged action in the future. See, e.g., Byrd v. Irmo

High School, 321 SC 426, 431-32, 468 SE 2d 861 (1996)

(dispensing with the requirement that there be a reason-

able expectation that the “same complaining party” would

be subject to the challenged action again); Loisel v. Rowe,

233 Conn 370, 382-83, 660 A2d 323 (1995) (doctrine applies

when challenged action is of short duration, there is likeli-

hood that issue will arise again and will affect “either the

same complaining party or a reasonably identifiable group

618 Penn v. Board of Parole

for whom that party can be said to act as surrogate,” and

the issue has “public importance”). Other state courts have

adopted less stringent “capable of repetition” requirements

when an action by a government body is challenged. See, e.g.,

Okada Trucking Co. v. Board of Water Supply, 99 Hawaii

191, 197, 53 P3d 799 (2002) (court would not dismiss “where

a challenged governmental action would evade full review

because the passage of time would prevent any single plain-

tiff from remaining subject to the restriction complained of

for the period necessary to complete the lawsuit”).

And even the federal courts do not adhere in every

case to all the particulars of the doctrine as articulated in

the cases cited by the board. More than one commentator

has observed that the United States Supreme Court some-

times ignores the “same complaining party” element of

the federal formulation and focuses on the fact that other

similarly situated persons will continue to be affected by

the challenged conduct. See, e.g., Honig, 484 US at 335-36

(Scalia, J., dissenting) (suggesting that tendency to omit

“same complaining party” element was limited to cases

involving abortion and election deadlines); Matthew I. Hall,

The Partially Prudential Doctrine of Mootness, 77 Geo Wash

L Rev 562, 590-93 (2009) (noting that federal courts have

regularly omitted “same complaining party” element in

abortion, election, residency requirement, and other cases).

Second, bearing in mind the doctrinal variation

that existed when the legislature “borrowed and codified a

judicially created doctrine,” Couey, 357 Or at 480, we note

that, in two respects, the text of the statute departs from the

formulation of the doctrine concerning moot cases that the

board recites. As discussed, the federal doctrine on which

the board relies contains two elements that must combine to

avoid the general rule that moot cases should be dismissed:

“(1) the challenged action [must be] in its duration too short

to be fully litigated prior to its cessation or expiration, and

(2) there [must be] a reasonable expectation that the same

complaining party would be subjected to the same action

again.” Murphy, 455 US at 482; Wisconsin Right to Life, 551

US at 463. The federal rule thus stated applies to any sort

of action that becomes moot. But ORS 14.175 is limited to

Cite as 365 Or 607 (2019) 619

challenges to an “act, policy or practice of a public body.”

That limitation does not appear directionless. That cate-

gory of actions is congruent with the historical category of

actions in Oregon known as “public actions,” which courts

historically could consider without regard to whether the

person bringing the action had a personal stake in the out-

come. Couey, 357 Or at 516; see also id. at 508-10, 521-22

(discussing this court’s historically recognized authority to

decide “public actions” and cases “involving matters of pub-

lic interest”—regardless of the plaintiff’s personal stake). A

“public action” encompasses proceedings that challenge “the

lawfulness of an action, policy, or practice of a public body,

and such matters are precisely those to which ORS 14.175

applies.” Id. at 522. In addition, the federal rule applies only

to actions of short duration (or, at least, to those that are too

short in duration to be fully litigated before their expira-

tion). But ORS 14.175 by its terms contemplates that some

challenged conduct (“similar acts” or the “policy or practice”)

will be ongoing (“continues in effect”), even if the application

of the ongoing conduct to the challenging party is not.

Those stark differences between ORS 14.175 and

the federal common law doctrine of “capable of repetition yet

evading review,” as articulated and developed in Murphy,

Wisconsin Right to Life, and other cases cited by the board,

undermine the argument that the legislature intended to

strictly enact the federal doctrine as articulated by the

board. Although those cases may be persuasive evidence

of the legislature’s intention regarding the general under-

pinning of ORS 14.175 (as we suggested in Couey), they are

significantly less persuasive when it comes to the meaning

and scope of words and phrases in ORS 14.175 that are not

part of the federal formulation noted by the board. What

that ultimately means is that we decide what the legislature

intended by “an act challenged by the party” being “capable

of repetition,” for purposes of ORS 14.175(2), in accordance

with our usual interpretive paradigm, without following in

lockstep the federal cases analyzing and applying the fed-

eral doctrine that the board cites.

Under our interpretive paradigm, the words that

the legislature used in the enactment are the best evidence

620 Penn v. Board of Parole

of the legislature’s intention. Here, the phrase “capable of

repetition” in ORS 14.175(2) is a term of art that hearkens

back to the numerous federal and state cases, starting

with Southern Pacific Terminal Co. v. Interstate Commerce

Comm., 219 US 498, 31 S Ct 279, 55 L Ed 310 (1911), that use

the same phrase to describe an exception to the usual rule

that moot cases should be dismissed.

Although, as we have discussed, those cases do not

unanimously describe the doctrine, they share a common

feature: At the very least, the party seeking relief must

establish that it is reasonable to believe that the person

or entity whose act is being challenged will repeat the act

or continue it in a way that will similarly affect someone.

See, e.g., Southern Pacific Terminal, 219 US at 515 (“The

question involved in the orders of the Interstate Commerce

Commission are usually continuing * * *, and these consid-

erations ought not to be, as they might be, defeated by short

term orders, capable of repetition, yet evading review, and

at one time the government, and at another time the carriers,

have their rights determined by the commission with-

out a chance of redress.” (Emphasis added.)). That broad

idea—that there is a reasonable potential that the act will

recur to a similar effect—seems to be what the legislature

intended to convey by the phrase an “act” that is “capable of

repetition.”

Other parts of ORS 14.175 provide context and sug-

gest that the legislature did not intend the requirement that

the “act” be “capable of repetition” to be so strict that it would

demand a showing of the potential for a recurrence to the

same party and in identical circumstances. First, insofar as

ORS 14.175(2) provides the same exception when a person’s

challenge to a “policy or practice [that] continues in effect”

becomes moot, the focus appears to be on the continuing con-

duct of the public body, rather than the identity of the person

affected. As noted, the statutory focus on actions, policies,

or practices of a public body is consistent with this court’s

historic case law permitting adjudication of “public action”

cases that are moot. Additionally, the fact that ORS 14.175(3)

refers to “the challenged policy, practice or similar acts”

evading review suggests that the legislature understood

Cite as 365 Or 607 (2019) 621

that variation in the particulars of the public body’s act as it

might recur should not stand in the way of review.

Legislative history confirms that understanding.

During one of the public hearings on House Bill 2324 (2007),

which created ORS 14.175, an attorney involved in consti-

tutional cases expressed support for the bill and explained

that the bill would provide courts with authority to decide

cases such as those involving student journalists or issues

related to elections. Audio Recording, House Committee

on Judiciary, HB 2324, Apr 19, 2007, at 1:04:06 (state-

ment of Charles Hinkle), http://records.sos.state.or.us/

ORSOSWebDrawer/Record/4211424# (accessed Oct 17, 2019).

Special Counsel to the Attorney General, Philip Schradle,

appearing on behalf of the Department of Justice, followed.

He suggested that the committee make changes to the bill,

including, among other things, adding a requirement that

the challenged act and resulting injury to the party be

“capable of repetition as to that party.” Id. at 1:20:10 (state-

ment of Philip Schradle). He explained that the statutory

requirement then would hew more closely to the federal

requirements for hearing moot cases. Id. at 1:23:00.

But Representative Gregory Macpherson, who was

the bill’s carrier, responded that the suggested change would

“significantly blunt the effect that we’re trying to get here.”

He explained that the reason that the bill had come up in the

first place was to protect the constitutional rights of student

journalists; thus, it would need to apply to students who had

graduated and who would not themselves suffer the problem

again. Id. at 1:22:25 (statement of Gregory Macpherson).

The exchange between Schradle and Representative

Macpherson was followed by additional remarks from a

representative from the American Civil Liberties Union of

Oregon, Hinkle, and Representative Bonamici about why a

requirement of repeated injury to the “same party” would

foreclose decisions on important cases and would be a bad

idea. Id. at 1:25:10 (statements of Andrea Meyer, Charles

Hinkle, and Suzanne Bonamici). Hinkle further noted that

even the United States Supreme Court had not consistently

applied the “same party” requirement that the Department

of Justice was proposing. Id. at 1:28:14. The phrase proposed

622 Penn v. Board of Parole

by the Department of Justice and opposed by others at the

hearing—“as to that party”—was not added to the bill.

Thus, it appears from the legislative history that the legisla-

ture made a deliberate decision to reject the federal “capable

of repetition” doctrine that the state advances in this case

and to permit courts to decide cases in which there was no

chance that the particular party would be affected again.

We conclude that ORS 14.175(2) requires that the

act of the public body that no longer is affecting the plaintiff

or complaining party be reasonably susceptible to repetition

as to someone. Nothing in the case law that has interpreted

or applied ORS 14.175 is to the contrary. And though there

are statements to the contrary in cases discussing the com-

mon law “capable of repetition” doctrine as it has developed

in the federal courts, for the reasons set out above, we con-

clude that those cases are not controlling, or even particu-

larly persuasive, with respect to the meaning of words and

phrases in ORS 14.175(2).

Applying ORS 14.175(2) in this case, the challenged

act—the board’s imposition of a condition of post-prison

supervision requiring a supervised person to obtain his or

her supervising officer’s written permission before enter-

ing into an “intimate” relationship or encounter—is rea-

sonably susceptible to repetition. The board acknowledges

that it has imposed SC 10 in “other cases involving domes-

tic violence conditions.” And evidence submitted by peti-

tioner shows that, at a 2012 meeting, the board discussed

a “Special Condition 10,” with wording that is identical to

SC 10 at issue here, “for domestic violence convictions,

assaults or any other case where they feel it is necessary for

public safety.” Whether or not that is evidence of a “policy”

of the board, within the meaning of ORS 14.175(2), it shows

that the board has agreed that the condition may be applied

when a supervised person has been convicted of a certain

category of common crimes. That agreement suggests a sig-

nificant potential that the board’s “act” of imposing SC 10 as

a condition of post-prison supervision will be repeated.

2. “Likely to evade judicial review”

The board also argues that the present circumstances

do not satisfy the requirement set out in ORS 14.175(3) that

Cite as 365 Or 607 (2019) 623

the challenged act or similar acts will be “likely to evade

judicial review in the future.” The board begins by observ-

ing that an act of a public body generally will “evade review”

because it is too short in duration to be fully litigated before

it ceases or expires. It then points to two appellate cases in

which a supervised person’s challenge to the board’s author-

ity to impose a special condition of supervision was fully lit-

igated before the person was discharged from supervision

(and the challenged condition) as evidence that challenges of

that nature can be fully litigated while the person is subject

to supervision. See Martin v. Board of Parole, 327 Or 147,

957 P2d 1210 (1998); Ferry v. Board of Parole, 293 Or App

216, 427 P3d 1123 (2018). But, as this court noted in Couey,

the fact that there are a few reported cases in which a party

in similar circumstances was able to complete the litigation

before the challenged act ceased or expired is insufficient to

establish that the act is not likely to evade review. 357 Or at

483.

As the board acknowledges, other reported cases

concerning a petitioner’s special condition of post-prison

supervision have been rendered moot when the petitioner

completed his or her term of supervision before a judicial

decision was rendered. See, e.g., State v. Fries, 212 Or App

220, 230, 158 P3d 10 (2007), aff’d, 344 Or 541, 185 P3d 453

(2008). Given that terms of post-prison supervision gen-

erally range from one to three years, see generally Oregon

Felony Sentencing Guidelines Grid, OAR ch 213, App 1, and

an appeal of a board’s imposition of a special condition of

post-prison supervision has never been litigated through a

decision by this court in less than three years,5 we conclude

that the board’s imposition of such conditions is “likely to

evade review” if the ordinary rule directing dismissal of

moot cases applies.6

5

Martin, 327 Or 147 (over three years from order of supervision to decision

by this court); Weems/Roberts v. Board of Parole, 347 Or 586, 227 P3d 671 (2010)

(over five years from orders of supervision to decision by this court).

6

Similarly, we do not view the companion case to Penn pending before this

court and decided today, Tuckenberry v. Board of Parole, 365 Or 640, 451 P3d

227 (2019), as precluding a determination that a case involving a party under

supervision who challenges post-prison supervision conditions established by the

board usually will become moot before a decision of this court can be issued.

Tuckenberry involves a challenge by a petitioner with a post-prison supervision

term that is longer than most (three years and nine months), and our decision

624 Penn v. Board of Parole

We accordingly conclude that petitioner’s challenge

to the board’s imposition of SC 10 as a condition of his post-

prison supervision meets all the requirements set out in ORS

14.175. Therefore, it “may” be reviewed by this court despite

its mootness, should the court exercise the discretion that

ORS 14.175 extends. See Couey, 357 Or at 522 (ORS 14.157

does not require court to review otherwise moot case that

satisfies statutory requirements; court determines “whether

it is appropriate [to do so] under the circumstances of each

case”).

B. Exercise of Discretion

Although the board suggests that the issues in this

case are not ones that merit an exercise of the court’s dis-

cretion under ORS 14.175 because they arise in the context

of “a specific exercise of the board’s discretion to impose spe-

cial conditions in light of the specific factual circumstances

presented by petitioner’s criminal hitory,” we are persuaded

that a decision will have broader relevance. Petitioner raises

a serious challenge to the statutory authority of the board

and the constitutionality of the board’s imposition of SC 10.

Additionally, the issues have great importance to many peo-

ple, including many present and future supervised persons

and persons who wish to have or continue intimate relations

with them. We conclude that this case is a proper one for

an exercise of discretion. Although a decision on the mer-

its no longer will have any practical effect on petitioner

himself, the court nevertheless will decide the case on its

merits.

III. THE MERITS

As discussed, petitioner challenges the board’s impo-

sition of SC 10 as a condition of his post-prison supervision

on two grounds: (1) the board lacked statutory authority to

impose the condition and (2) the condition is unconstitution-

ally vague and overbroad. We begin and end with the first

ground, concluding that the board exceeded its authority in

imposing SC 10.

issues over three years after the board imposed the challenged condition in that

case.

Cite as 365 Or 607 (2019) 625

The board’s authority to impose conditions of post-

prison supervision on a person who will be under its super-

visory authority is set out in ORS 144.102. Certain general

conditions that “may” be imposed on any such person are set

out in subsection (2), and conditions that “shall” be imposed

on groups of supervised persons required to report as sex

offenders or convicted of certain crimes are set out, respec-

tively, in subsection (3) and paragraphs (4)(b), (c), and (d).

Paragraph (4)(a), the relevant provision in this case, pro-

vides the board with authority to impose “special” conditions

based on the supervised person’s individual circumstances:

“The board * * * may establish special conditions that

the board * * * considers necessary because of the individual

circumstances of the person on post-prison supervision.”

(Emphasis added.)

While acknowledging that paragraph (4)(a) invests

the board with authority to impose special conditions, peti-

tioner notes that the board’s authority is limited by the

requirement that the conditions be ones that the board “con-

siders necessary” because of the supervised person’s indi-

vidual circumstances. What is more, petitioner adds, the

“necessity” that limits the board’s authority must be deter-

mined by reference to two goals—the promotion of public

safety and assisting in the reformation of the supervised

person—that are identified in another post-prison supervi-

sion statute, ORS 144.096(3).7 See Weems/Roberts v. Board

of Parole, 347 Or 586, 598, 227 P3d 671 (2010) (board may

approve special conditions “based on what may be necessary

‘to promote public safety’ and ‘to assist the reformation of

the inmate’ ”); Martin, 327 Or at 159 (for purposes of ORS

7

ORS 144.096(3) provides that a post-prison release plan, prepared by

the Department of Corrections in consultation with the board and ultimately

approved by the board, must include:

“(b) The recommended conditions of post-prison supervision;

“* * * * *

“(d) Any other conditions and requirements as may be necessary to promote

public safety;

“* * * * *

“(f) Any conditions necessary to assist the reformation of the inmate.”

(Emphases added.)

626 Penn v. Board of Parole

144.102(4)(a), “the ‘necessity’ of special conditions must be

determined in reference to the statutory objectives * * *,

namely, the protection of public safety and the reformation

of the offender”).

Thus far, petitioner’s explanation of the board’s

authority under ORS 144.102(4)(a) to impose special condi-

tions does not differ substantially from the explanations in

this court’s own cases. However, petitioner argues that the

term “necessary” has additional significance, not evident in

those cases: He contends that, by using the term, the leg-

islature limited the board’s authority to impose only those

conditions that the board reasonably could consider “logi-

cally necessary, essential, or indispensable” to the goals of

reforming the offender and protecting public safety.

As a result, petitioner argues, the board erred in

two respects when it refused to remove SC 10 from his order

of post-prison supervision. First, he argues that the board

misinterpreted the term “necessary” to mean something

akin to having any “logical nexus” between a special con-

dition and the statutorily recognized goals of reformation

and public safety, rather than logical necessity. He points

out that, in its final order rejecting petitioner’s challenge to

SC 10, the board stated only that the condition was “in the

interest” of the statutory goals of public safety and offender

reformation. He concludes that the board went beyond the

bounds of its authority to impose special conditions under

ORS 144.102(4)(a).

Second, petitioner argues that the board could not

reasonably have considered SC 10 indispensable or essen-

tial to the statute’s public safety and reformation goals.

Petitioner suggests that the term “necessary” requires a

special condition to be narrowly tailored or proportional to

the specific risk that it seeks to address. In regard to the

risk that he supposedly presents, petitioner assumes that

the board concluded that petitioner might commit acts sim-

ilar to those that resulted in his convictions in the context

of some future intimate relationships or encounters. But, in

his view, completely regulating all his “intimate” affairs, as

SC 10 does, goes beyond what would be adequate to mitigate

that risk.

Cite as 365 Or 607 (2019) 627

Both of petitioner’s arguments ultimately assume

that the term “necessary” in ORS 144.102(4)(a) has the

meaning that he assigns to it—logically required, essential,

or indispensable—but which the board disputes. The par-

ties also are at odds over a precursory issue: this court’s

authority to determine the term’s meaning. While petitioner

asserts that, in this context, “necessary” is an inexact stat-

utory term, the meaning of which is a determination for the

courts, the board contends that, when read in the context

of the phrase “the board * * * considers necessary,” the term

reflects a delegation of policymaking authority to the board,

leaving the courts with only one task: to determine whether

the board’s actions fall within the general scope of the legis-

lature’s delegation.

A. Inexact or Delegative Terms

In arguing over the nature of this court’s review of

the board’s order, the parties allude to the framework, first

announced in Springfield Education Assn. v. Springfield

School Dist. No. 19, 290 Or 217, 621 P2d 547 (1980), for

determining the role that a court plays in reviewing an

administrative agency’s actions under a statute that the

agency is required to administer. In Springfield, this court

identified three categories of terms that might appear in

such statutes, each of which requires a different approach

to the agency’s understanding and application of the stat-

ute. Two are at issue in this case. “Inexact” terms embody a

complete expression of the legislature’s intentions, but those

intentions are not evident, and it is for the courts to inter-

pret them and the legislative policy they convey, and then

to decide whether the agency action conforms to that policy.

Id. at 224-28. “Delegative” terms “express non-completed

legislation which the agency is given delegated authority to

complete.” Id. at 228-29. The only role of appellate courts

with respect to such delegative terms is to ensure that the

agency exercises the authority delegated to it “within the

range of discretion allowed by the more general policy of the

statute.” Id. at 229.8

8

The third category, “exact” terms, are terms that unambiguously con-

vey a complete policy choice by the legislature. They require no interpretation,

and courts will only review the agency’s application of the statute to determine

628 Penn v. Board of Parole

Petitioner contends that the term “necessary” in

ORS 144.102(4)(a) is inexact and was intended by the legis-

lature as a limitation on the kind of special condition that

the board may impose. The board contends that the term

is delegative. According to the board, by authorizing it to

impose special conditions that it “considers necessary,” the

legislature was delegating to the board the task of deter-

mining how best to use special conditions to further public

safety and offender reformation. In light of that delegation,

the board argues, this court must defer to the standard that

the board has chosen to apply in choosing special conditions,

which is that such conditions need only be rationally related

to the noted objectives.

The question whether the term “necessary” is inex-

act or delegative in this context is one of legislative intent,

and we address it as we would any other question of stat-

utory construction. OR-OSHA v. CBI Services Inc., 356 Or

577, 588, 341 P3d 701 (2014). In OR-OSHA, we identified

a number of considerations that are helpful in determin-

ing whether a given statutory term expresses an incom-

plete legislative meaning and, thus, is delegative, including

(1) whether the court has concluded that the term, or one like

it, is delegative in another context; (2) whether the term is

defined by statute or, on the other hand, susceptible to many

different interpretations; (3) whether the term is one that

invites a value or policy judgment; and (4) whether other,

related provisions suggest a legislative intent that the term

be considered a delegation. Id. at 590.

With respect to the first consideration, both par-

ties identify cases in which this court has placed the term

“necessary” in the category they believe to be the correct

one. The board points to Diack v. City of Portland, 306 Or

287, 299, 759 P2d 1070 (1988), in which this court concluded

that the statutory requirement, applicable to the Water

Resources Commission, that the free-flowing character of

certain waters “be maintained in sufficient quantities nec-

essary for recreation, fish and wildlife uses” delegated to the

commission the authority to determine the level of stream

whether it is within the unambiguously stated policy. Springfield, 290 Or at 223-

24. Neither party contends that the term at issue here is an exact term.

Cite as 365 Or 607 (2019) 629

flow needed for those purposes, “which may themselves dif-

fer from time to time.” Petitioner relies on J.R. Simplot Co. v.

Dept. of Agriculture, 340 Or 188, 197-98, 131 P3d 162 (2006),

in which this court rejected the Department of Agriculture’s

claim that a provision that directed it to collect fees for its

product inspection services that are “reasonably necessary

to cover the cost of inspection and [program] administra-

tion” delegated policymaking authority to the board and

held, instead, that the phrase was an “inexact” term that

expressed a complete legislative policy.

The differing outcomes in Diack and Simplot sug-

gest that it is important to look, not just at whether a word

has been deemed in other cases to be inexact or delegative

in other contexts, but at the underlying analysis. If we apply

that suggestion to Diack, all we can say is that the case is

relatively devoid of explanation as to why the “necessary for

* * * uses” phrase was deemed delegative. See Diack, 306 Or

at 299. Simplot, on the other hand, persuasively explains

why “reasonably necessary to cover [costs]” expresses an

inexact but complete policy choice. Specifically, the court in

Simplot explained that the statute at issue set out a com-

plete policy objective (that the agency’s inspection program

be self-funding) and used the phrase “reasonably necessary

to cover [costs]” to specify the relationship that must exist

between that complete legislative policy and the vehicle

identified by the legislature for pursuing the policy, i.e., fees.

340 Or at 197-98.

That explanation from Simplot seems to be relevant to

the context in which “necessary” is used in ORS 144.102(4)(a),

namely, the phrase “the board * * * considers necessary.” As

noted above, 365 Or at 625-26, ORS 144.102(4)(a) has been

deemed to convey two goals of post-prison supervision to be

achieved by the imposition of special conditions of super-

vision. The term “necessary” describes the required rela-

tionship between the goals (which themselves represent a

complete legislative policy) and the conditions of supervision

that are the vehicles for pursuing those goals. At least under

the analytical construct used in Simplot, the phrase “consid-

ers necessary because of the individual circumstances of the

person on post-prison supervision” is part of a more or less

defined instruction as to how the board is to carry out the

630 Penn v. Board of Parole

complete policy choice expressed in the goals that are asso-

ciated with ORS 144.102(4)(a)—not a general delegation of

authority to the board to refine and complete an incomplete

policy.

Turning to the second consideration enumerated in

OR-OHSA, regarding the specificity of the term’s defini-

tion, we note that the term “necessary” is not defined for

purposes of ORS 144.102(4)(a). And though the term may

be “susceptible” to many interpretations depending on the

circumstances, as the board suggests, it is not a term that in

itself has a broad range of meanings in ordinary parlance.9

As to the third consideration set out in OR-OSHA,

the word “necessary” does not call for a value judgment or

policy judgment in this context. The only policy judgment

that is relevant has already been made—completely—by the

legislature, as expressed in the goals of promoting public

safety and assisting in reformation and in the identification

of special conditions as a vehicle for achieving those goals.

And though the board contends that the word “considers”

turns the phrase “considers necessary” into one calling for

a value judgment, we are not persuaded: ORS 144.102(4)(a)

does not ask for the board’s considered opinion as to whether

a condition is fair, reasonable, or desirable—the kind of con-

siderations that would involve value judgments, OR-OSHA,

356 Or at 590—but instead whether it is “necessary” for

specific objectives.

Finally, with respect to the fourth consideration

from OR-OSHA (whether related provisions suggest that

the legislature intended a delegation), the board offers the

whole of ORS 144.102 as evidence of a legislative intent to

delegate authority to the board to devise any special condi-

tion it believed would be helpful. Boiled down to its essence,

the board’s argument is that, given the list of specific con-

ditions that may or shall be imposed, subsection (4)(a) must

be understood as a “backstop in the statutory framework to

ensure that the board may impose conditions [that account]

for a particular offender’s circumstances.” Yet it does not

follow that the legislature placed no limitations on that

9

See below, 365 Or at 632 (definition of “necessary”).

Cite as 365 Or 607 (2019) 631

“backstop” authority. Instead, there are recognized stat-

utory objectives for which, in the board’s consideration, a

condition must be necessary. We see nothing in the other

paragraphs of ORS 144.102, or any other related provision,

that indicates a legislative intent that ORS 144.102(4)(a) be

understood as a delegation of policy-making authority.

Based on our examination of the four considerations

identified in OR-OSHA, we conclude that, in the context of

ORS 144.102(4)(a), the word “necessary” is not a delega-

tive term that grants authority to the board to complete an

incomplete legislative policy. Rather, it is an inexact term,

the intended meaning of which is for this court to determine.

B. What the Legislature Intended by the Phrase “considers

necessary”

The board argues that the term “necessary,” even

if it is an inexact rather than a delegative term, still has

a broad range of meanings and, in the phrase “considers

necessary,” simply means “useful” or “convenient.” Thus, the

board contends that any condition that it considers useful

to, or as having a rational nexus to, the statutory objec-

tives of public safety and reformation of criminal offenders

is permissible. Petitioner maintains that ORS 144.102(4)(a)

authorizes only special conditions that, in light of the super-

vised person’s individual circumstances, a reasonable board

would consider indispensable or essential to the statutory

objectives. In his view, that means that any restriction in a

special condition must be proportionate to the specific risk

of harm that the offender purportedly poses. Although we

agree with petitioner that the board proffers an understand-

ing of the statute that is contrary to the ordinary meaning

of the term “necessary,” we also reject petitioner’s construc-

tion of the statute.

The term “necessary” is undefined in the statute,

and there is no reason to think that the legislature had any-

thing other than the ordinary meaning of that word in mind.

See PGE v. Bureau of Labor and Industries, 317 Or 606, 611,

859 P2d 1143 (1993) (in construing a statute, court assumes

that the legislature generally uses words in their “plain,

natural, and ordinary” senses). The definition of “necessary”

632 Penn v. Board of Parole

that appears in Webster’s Third New Int’l Dictionary 1510

(unabridged ed 2002)10 does not comport with the board’s

interpretation, because all the senses of “necessary” that

appear in the definition convey some sense of requirement

or obligation. Despite the variation in the ordinary meaning

of the word, the possibilities do not extend to a point where

“necessary” can mean merely “useful” or “having a rational

nexus to.”

The board’s suggestion to the contrary is based on

the definition of “necessary” in Black’s Law Dictionary 1029

(6th ed 1990):

“The word [(necessary)] must be considered in the connec-

tion in which it is used, as it is a word susceptible to var-

ious meanings. It may import absolute physical necessity

or inevitability, or it may import that which is only conve-

nient, useful, appropriate, suitable, proper, or conducive to

the end sought.”

That definition quotes a passage from an early Oklahoma

case, Kay County Excise Board v. Atchison, 185 Ok 327, 91

P2d 1087 (1939), and relies on the importance of context

rather than what “necessary,” by itself, means in ordinary

parlance. If the board hopes to show that the term, as used

in the statute, is so stripped of its ordinary meaning that

“having a rational nexus to” is an adequate substitute, then

it must identify specific contextual cues that point in that

direction.

In that respect, the board makes three context-based

arguments. First, the board returns to its previous argu-

ment that, considering the context of ORS 144.102 as a

whole, paragraph (4)(a) functions as a backstop to allow the

board to account for an individual offender’s circumstances

10

Webster’s Third New Int’l Dictionary 1510 (unabridged ed 2002) defines

“necessary” as follows:

“1 a : that must be by reason of the nature of things : that cannot be otherwise

by reason of inherent qualities : that is or exists or comes to be by reason of

the nature of being and that cannot be or exist or come to be in any other way

: that is determined and fixed and inevitable * * * b : of, relating to, or having

the character of something that is logically required or logically inevitable or

that cannot be denied without involving contradiction * * * 2 : that cannot be

done without : that must be done or had : absolutely required : ESSENTIAL,

INDISPENSABLE.”

Cite as 365 Or 607 (2019) 633

and must be read to give the board the broadest possible

discretion. However, as we already have stated, there is no

necessary incompatibility between the board’s authority to

impose special conditions, “backstop” or not, and limiting the

board to special conditions that have something more than a

rational nexus to the goals that the statute references.

Second, the board notes that the statute looks to

whether the board “considers” the special condition to be

“necessary.” In its view, the fact that the board considers

whether conditions are necessary implies a mere “rational

nexus” review.

And third, the board relies on two of this court’s

cases to support its construction of ORS 144.102(4)(a). From

Weems/Roberts, the board quotes the court’s explanation,

in upholding the board’s imposition of certain special con-

ditions, that the conditions were “a logical way for the board

to further the safety of the public, as well as the offender’s

reformation and ‘reintegration into the community.’ ” 347

Or at 600. And in Martin, the board observes, this court ‘s

explanation for upholding the special condition at issue (a

bar on entering a large portion of the state where there was

a chance, albeit a low one, that the offender might encoun-

ter his victim) seemed to look at whether the condition was

a reasonable response to the risk of an accidental meeting,

which appeared to be the board’s primary concern. 327 Or

at 159-60.

We agree with the board that the word “considers”

plays an important role in understanding what the legis-

lature intended through ORS 144.102(4)(a). The statute

authorizes conditions that “the board * * * considers neces-

sary.” As relevant to the present usage, “consider” means

“to think of : come to view, judge, or classify.” Webster’s at

483. Thus, using the ordinary meanings of “necessary” and

“considers,” a court would not review whether the condition

in fact is logically required or essential to promote one or

both of the statutory objectives (“to promote public safety”

and “to assist the reformation of the inmate,” ORS 144.096

(3)(d), (f)); rather, ORS 144.102(4)(a) is premised on the board

viewing the condition that way. The board does not contend

that we should review SC 10 solely for whether the board in

634 Penn v. Board of Parole

fact applied the standard and considered the condition to

be necessary, nor do we consider the statute to imply such

a minimal standard of review. That presents the question

of the extent to which the legislature intended a reviewing

court to defer to the board’s view.

For several reasons, we decline to read the statute

as the board does, that is, as a grant of discretion to impose

special conditions that is so broad that it calls for a court to

review an imposed condition for what amounts to review for

any rational basis. First, the legislature did not expressly

describe the board’s authority as a broad grant of discretion,

as it did in ORS 144.101(3) (providing that, upon request of

person who challenges a local supervisory authority’s impo-

sition of conditions of supervision or sanctions for violating

those conditions, the board “shall review the request and

may, at its discretion, review the conditions and sanctions,

under rules adopted by the board”). Second, the legislature

used “necessary”—not “advisable,” “useful,” “helpful,” “suit-

able,” or similar imprecise standards suggesting a broader

range of choices—for the board’s imposition of a special

condition. Considering the ordinary meanings of the word

“necessary”—such as “logically required,” “essential,” and

“indispensable,” we doubt that the legislature intended a

court to review the imposition of a condition for a rational

nexus or basis. Instead, the plain meaning of the text sug-

gests that a court should review whether the board met the

statutory standard in imposing a special condition by con-

sidering whether the board did and reasonably could view

it as essential to promote public safety or assist in offender

reformation.

At the same time, we reject the stringent, identified-

risk standard that petitioner advocates. First, petitioner’s

proposed standard implies that the board must make spe-

cific findings and must expressly state the risk of harm to

be addressed by the condition in its order, but this court in

Martin rejected that position, which the supervised person

also had argued. See 327 Or at 158-60. Second, petitioner’s

proposed standard appears to limit the scope of consider-

ations that the board can take into account, reducing the

board’s discretion to a single, narrow target: the mitigation

Cite as 365 Or 607 (2019) 635

of a specific risk of harm that the board identifies. But the

board can and must consider advancing one or both of the

dual goals of public safety and offender reformation in the

light of the supervised person’s specific circumstances,

including the supervised person’s current and prior convic-

tions, history and background, record of conduct, and the

risk of future harm that that conduct suggests. See Weems/

Roberts, 347 Or at 595 (noting that individual circumstances

“focuses, specifically, on the offender, not the offense”);

id. at 596-98 (discussing information the board may con-

sider before imposing special conditions).

We conclude that ORS 144.102(4)(a) authorizes the

board to impose any condition that, in light of the super-

vised person’s individual circumstances, the board reason-

ably could view as essential to or required for one or both of

its broad objectives of “promoting” public safety and “assist-

ing” in an offender’s reformation. The standard that we

adopt both follows closely from the text of ORS 144.102(4)(a)

and the objectives stated in ORS 144.096(3)(d) and (f) and

is consistent with the outcomes in the Weems/Roberts and

Martin cases. As noted, the board may consider and impose

special conditions that promote or assist the statutory objec-

tives, which is different from accomplishing the objectives.

This court in Weems/Roberts alluded to that point, empha-

sizing the words “to promote” and “to assist” in the descrip-

tion of the statutory objectives when it rejected a petitioner’s

proposal that special conditions must be tailored to address

only “certain or immediate risks to public safety or offender

reformation,” as reflected in evidence of “recent, significant

conduct.” 347 Or at 598. And this court concluded in Martin

that, once the board had “weighed the different interests

of the parties,” the board could impose special conditions

of post-prison supervision to address any substantial dan-

ger with regard to promoting public safety and assisting the

supervised person’s reformation. See Martin, 327 Or at 159-

60 (explaining that the board had expressly weighed inter-

ests of parties and was not required to impose conditions so

narrowly that “they would permit a substantial danger” that

the supervised person would encounter the victim, which

“would be a psychological disaster” for the victim). That

conclusion in Martin, which permits the board to address

636 Penn v. Board of Parole

substantial dangers with respect to either of the dual stat-

utory objectives, is consistent with our holding that permits

the board to impose special conditions when it reasonably

concludes that, in light of the supervised person’s individual

circumstances, the conditions are essential to or required to

promote public safety or to assist in the offender’s reforma-

tion. Thus, we reject the board’s argument based on Weems/

Roberts and Martin.

C. Application to Petitioner’s Statutory Challenge

Having articulated the board’s undertaking when

it considers the imposition of special conditions under ORS

144.102(4)(a), we turn to petitioner’s statutory challenge to

the board’s imposition of SC 10. In view of our holding, we

consider whether the board did and reasonably could view

imposition of SC 10—a condition that requires petitioner to

obtain his supervising officer’s permission before entering

into any “intimate” relationship or encounter—to be essen-

tial in petitioner’s case to advance or promote one or both of

the goals of public safety and offender reformation.

The board contends that, in the context of SC 10,

“intimate” means only “sexual” and, assuming that limited

meaning, that the condition imposes a necessary restric-

tion. With respect to the public safety objective, the board

explains that, because petitioner had established a pattern,

in the context of a sexual relationship, of using physical

abuse and threats to force the other person in the relation-

ship to perform sexual acts, it reasonably was concerned

that petitioner would repeat the same behavior in another

sexual relationship or encounter. By requiring petitioner

to obtain permission from his supervising officer before

entering into a sexual relationship or encounter, the board

believed that the supervising officer could evaluate and

monitor those contacts and ensure that petitioner was not

harming other sexual partners. With respect to the objec-

tive of offender reformation, the board similarly points to

the abusive pattern that petitioner had formed within the

context of a sexual relationship and then explains that, by

requiring petitioner to obtain his supervising officer’s per-

mission before entering into the sexual “environment” in

which the impulse to act abusively might recur, the board

Cite as 365 Or 607 (2019) 637

hoped to spark reflection in petitioner about such impulses

as well as dialogue between petitioner and his supervising

officer about his conduct that might guide him along a path

toward reformation.

Though it might be reasonable for the board to con-

sider a restriction on petitioner’s sexual relationships and

encounters as essential to advance the board’s public safety

and reformatory goals, the word “intimate” in SC 10 is not

limited to that meaning. The central feature of SC 10 as writ-

ten is the breadth of the restriction it places on petitioner.

The ordinary meaning of “intimate” is broad—essentially,

to be “marked by a very close physical, mental or social asso-

ciation, connection, or contact.” Webster’s at 1184. As that

definition reflects, a relationship that is “intimate” could

just as easily be describing a familial one, such as between

a parent and child; a close friendship; or a sexual relation-

ship.11 In short, the category of human contact that SC 10

purports to regulate reasonably could be interpreted to

include any ongoing or short-lived contact with a person

with whom petitioner shares a close emotional, social, or

physical connection.

Although petitioner raised the breadth of the phrase

“intimate relationships or intimate encounters” in his ini-

tial administrative challenge to SC 10, the board declined

to modify the phrase in response to that concern and only

now maintains that it pertains exclusively to sexual rela-

tionships and encounters. In the absence of additional word-

ing or context that establishes unambiguously that the

11

The definition of “intimate” is further explicated with 10 different sub-

senses, four of which seem to pertain to relationships with other people:

“e : showing or fostering close personal interests and relations rather than

those colder and more distant, formal, or routine : suggesting or further-

ing easy unreserved personal expression, feeling, or relationships through

smallness, exclusiveness, limitation, or privacy * * *”

“f : marked by or appropriate to very close personal relationships : marked

by or befitting a relationship of love, warm or ardent liking, deep friendship,

or mutual cherishing <always ~ relations between a mother and her young

child –Edward Westermarck> * * *”

“g : of, relating to, or befitting deeply personal (as emotional, familial, or

sexual) matters or matters usu. kept private or discreet * * *”

“h : engaged in or marked by sexual relations : sexual, marital * * * [.]”

Webster’s at 1184.

638 Penn v. Board of Parole

narrower meaning—“sexual”—is intended, a person of ordi-

nary intelligence will not know, with any degree of certainty,

whether the condition extends to close social and mental

relationships and other close physical relationships as well

as sexual ones.12

On review, the board has not argued that petitioner

should be precluded in advance from living with or engag-

ing in a close relationship with his children, other relatives,

and friends, and it has not asserted that a broad condition,

as we and petitioner read SC 10, legitimately advances the

board’s statutory goals. Indeed, we can think of no reason

why requiring a supervising officer’s permission before peti-

tioner engages in all such contacts or relationships would be

essential to advancing the board’s goals of assisting in peti-

tioner’s reformation or promoting public safety.

Accordingly, we conclude that the board could not

reasonably consider the imposition of SC 10 as a condition

of petitioner’s post-prison supervision to be essential to its

broad objectives of public safety and offender reformation as

they apply to petitioner’s particular circumstances. It fol-

lows that, in imposing SC 10 on petitioner, the board acted

beyond the statutory authority it has with respect to impos-

ing special conditions of post-prison supervision.

IV. CONCLUSION

We conclude that, although the board enjoys sig-

nificant authority under ORS 144.102(4)(a) to impose spe-

cial conditions of post-prison supervision, it acted outside of

that statutory authority by including SC 10 in its order of

post-prison supervision with respect to petitioner. Thus, the

board erred in denying petitioner’s request for relief from

SC 10, and the Court of Appeals erred in affirming that

denial. In light of our holding, we do not reach petitioner’s

arguments that SC 10 is unconstitutionally overbroad and

vague.

12

We also note that the term is inherently subjective: Different individuals

may have vastly different ideas of what would mark a relationship or encounter

as “close” or “intimate.” The result is that a supervised person who is subject to

the condition could have little certainty as to whether a contemplated relation-

ship or encounter is one that must be authorized in advance by the supervising

officer, while a supervising officer charged with enforcing the condition could

apply it arbitrarily or in a way that was not intended.

Cite as 365 Or 607 (2019) 639

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.