Norgren v. PSRB

No. 958 November 5, 2025 617

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

LINUS KORBIN NORGREN,

Petitioner,

v.

PSYCHIATRIC SECURITY REVIEW BOARD,

Respondent.

Psychiatric Security Review Board

192913;

A183359

Submitted September 9, 2025.

Harris S. Matarazzo filed the brief for petitioner.

Dan Rayfield, Attorney General, Benjamin Gutman,

Solicitor General, and Robert M. Wilsey, Assistant Attorney

General, filed the brief for respondent.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

TOOKEY, P. J.

Reversed and remanded.

618 Norgren v. PSRB

TOOKEY, P. J.

Petitioner seeks judicial review of an order of the

Psychiatric Security Review Board (PSRB), entered after

a hearing, concluding that petitioner, “being affected by

a qualifying mental disorder which, when active, renders

him a substantial danger to others, is under the jurisdiction

of the Psychiatric Security Review Board.” On appeal, we

understand petitioner to contend that the PSRB’s determi-

nation that he is dangerous to others when his qualifying

mental disorder is active is not supported by substantial evi-

dence. ORS 161.351(2)1; ORS 183.482(8)(c).

We agree with petitioner, and so we reverse and

remand.

FACTS

Petitioner was found guilty except for insanity on

three charges of second-degree assault stemming from an

assault petitioner committed in October 2013. On November 8,

2019, the trial court ordered that petitioner be placed under

the jurisdiction of the PSRB on conditional release for a max-

imum of 10 years. Petitioner was diagnosed with bipolar I dis-

order, and notably the court that adjudicated petitioner found

that petitioner was not a substantial danger to others.

In a “Psychological Evaluation and Violence Risk

Assessment Update” dated September 7, 2020, a psychol-

ogist who evaluated petitioner’s “violence risk in the com-

munity” reported that petitioner is “considered to be at low

risk of future violent acts in the community regardless of

whether he is under PSRB supervision.”

1

Specifically, as explained below, the PSRB determined that petitioner’s

“qualifying mental disorder” was in “remission,” but that, “when active,” that dis-

order renders him “a substantial danger to others.” Consistent with that determi-

nation, we understand the basis for the PSRB’s order to be ORS 161.351(2), which

provides, in relevant part:

“[A] person affected by a qualifying mental disorder in a state of remission

is considered to have a qualifying mental disorder. A person whose qualify-

ing mental disorder may, with reasonable medical probability, occasionally

become active and when it becomes active will render the person a danger to

others may not be discharged. The person shall continue under supervision

and treatment necessary to protect the person and others.”

We note that, on appeal, the PSRB points to ORS 161.351(2) in its discussion of

the applicable law.

Cite as 344 Or App 617 (2025) 619

As of September 16, 2022, the terms of petitioner’s

conditional release required him to participate in treatment

at a community-based behavioral health center; meet with

his case manager weekly; participate in individual therapy

weekly; submit to both scheduled and unannounced home

visits; abstain from alcohol, illegal drugs, and marijuana;

submit to random urinalysis tests; and participate in 80

hours of structured activity each month, as well as other

conditions. While on conditional release, petitioner worked

part time and shared an apartment with others. Petitioner

has been symptom free and has not used medication for his

bipolar disorder since 2014.

The PSRB held a hearing on September 21, 2022,

and petitioner sought “discharge” from PSRB jurisdiction.

The PSRB then ordered an independent evaluation pursu-

ant to ORS 161.346(2).2

The report prepared by the evaluator concluded

that petitioner “meets criteria for a qualifying mental disor-

der, specifically bipolar disorder, most recent episode manic,

severe, with mood-congruent psychotic features, in full

remission.” Further, the report noted that petitioner’s “bipo-

lar symptoms are not currently active” but that if petition-

er’s “qualifying mental disorder does become active, it may

cause him to become a danger to others, as it would increase

his risk for future violence.” The report also concluded that

petitioner “presents a low risk of violence in the community,”

but that his “continued psychiatric and behavioral stabil-

ity and positive progress will largely depend on continued

abstinence [from drug use], monitoring for signs of psychi-

atric decompensation, and his ability to utilize support and

resources when needed.” Further, the report noted that if

“factors that contributed to violence in the past return, his

risk would increase.”

2

ORS 161.346(2) provides:

“To assist the board in making the determination described in subsection (1)

of this section, the board may, at any time, appoint a psychiatrist or licensed

psychologist to examine the person and to submit a report to the board.

The report must include an opinion as to the mental condition of the per-

son, whether the person presents a substantial danger to others and whether

the person could be adequately controlled with treatment as a condition of

release.”

620 Norgren v. PSRB

The PSRB continued the hearing on May 10, 2023,

and subsequently entered the order that is before us on judi-

cial review. In that order, the PSRB, relying largely on the

report prepared by the evaluator, concluded that petitioner,

“being affected by a qualifying mental disorder which, when

active, renders him a substantial danger to others, is under

the jurisdiction of the Psychiatric Security Review Board.”

Specifically, in the order, regarding whether peti-

tioner continues to have a “qualifying mental disorder,” the

PSRB framed the issue before it as whether petitioner’s qual-

ifying mental disorder was “in remission or has resolved.”

Relying on the evaluator’s report, for three principal rea-

sons, the PSRB found that petitioner’s mental disorder was

merely “in remission.”

First, in its order, the PRSB noted that the evalua-

tor explained that, although “it is possible that [petitioner]

falls within the population of individuals with bipolar I dis-

order who show good outcome[s] and thus ha[ve] not exhib-

ited another mood episode in a prolonged period of time,”

the “mere absence of a mood episode within the past nine

years does not necessarily equate [to] the absence of manic

or depressive episodes in the future or of the disorder in

general.” As the evaluator observed, the Diagnostic and

Statistical Manual of Mental Disorders (DSM) “indicated

that 90% of people go on to have a recurrent mood episode,”

but that the DSM “does not specify the timeline at which

future episodes are likely to reoccur.” The evaluator further

noted that research “has shown that subthreshold symp-

toms may account for much of the chronicity of bipolar disor-

der,” explaining that “subsyndromal manic and hypomanic

symptoms were found to be three times more common than

symptoms at the threshold for mania.”

Second, in its order, the PSRB pointed to what it

described as the evaluator’s “juxtaposition between [peti-

tioner’s] stress at the time of the instant offense and in the

recent years.” On that issue, the PSRB quoted a section of

the report explaining the “facilitating role” that “stressful

life events * * * can play in the development of mental illness

when combined with biological predisposition,” that peti-

tioner was experiencing stressful life events when he “first

Cite as 344 Or App 617 (2025) 621

exhibited mood symptoms,” and that, although “records

have consistently suggested that [petitioner] has success-

fully navigated subsequent stressful life events without the

reemergence of psychiatric symptoms, such as incarceration

and Covid-19, it is also important to note that stress is mul-

tifaceted and can manifest in different forms.” As a result,

the report explained that the evaluator could not “with cer-

tainty, discount the possibility of another mood episode in

the face of other stressors that may impact [petitioner], par-

ticularly given his young age.”

Third, in its order, the PSRB considered what it

described as the PSRB’s “ameliorating influence[ ] * * * in

[petitioner’s] psychiatric stability.” In doing so, it relied on

a section of the report that provides that petitioner’s “life

since 2013 has been carefully managed by providers in

order to reduce the likelihood of another mood episode,” and

noted that petitioner “has responded well to non-medical

treatments for bipolar,” which it called “a positive sign for

the course of his illness, should he continue to be provided

this structured treatment.”

Next, having determined that petitioner’s mental

disorder was merely in “remission” and not “resolved,” the

PSRB determined that petitioner is a substantial danger

to others when his mental disorder is active. In doing so,

the PSRB adopted the view of the evaluator that “the most

salient risk factors” rendering petitioner dangerous are “his

history of violence, major mental illness, characterological

traits, traumatic experiences, and supervision response.” It

further noted that the evaluator’s report explains that peti-

tioner’s “history of violence has occurred exclusively in the

context of mania and psychosis” and that although there was

only one such “episode of violence,” it was “an act of severe

violence where the victim was injured in a number of ways”;

that petitioner’s “past exposure to trauma, when triggered,

may affect [his] decision making abilities and reaction

towards perceived threats”—i.e., he may “believe himself

to be at greater risk of being harmed and react pre-emp-

tively to thwart a threat that is in fact not present”; and that

when petitioner experiences manic symptoms his “underly-

ing grandiosity may be magnified,” which, in turn, “could

622 Norgren v. PSRB

manifest as feelings of invincibleness or aggression when he

feels threatened, humiliated, insulted, or provoked.”

Concerning petitioner’s dangerousness, the PSRB

also pointed to a section of the evaluator’s report describing

petitioner’s “lack of emotional empathy * * * in [petitioner’s]

discussion of his offense.” In the evaluator’s view that “could

negatively impact his capacity to appreciate other people’s

experiences, which may result in some difficulties for [peti-

tioner] to navigate challenges in the community without

supervision and increase his risk for negative interactions

with others that could escalate to a violent incident.”

Thus, as noted, largely based on the evaluator’s

report, the PSRB determined that petitioner is “affected by

a qualifying mental disorder which, when active, renders

him a substantial danger to others.”

ANALYSIS

Standard of review. We review agency orders for

errors of law, substantial evidence, and substantial reason.

Walters v. PSRB, 341 Or App 41, 47-48, 574 P3d 49 (2025).

“Substantial evidence exists to support a finding of fact

when the record, viewed as a whole, would permit a reason-

able person to make that finding.” ORS 183.482(8)(c). And

we have explained that “ ‘[s]ubstantial reason exists where

the agency has articulated a rational connection between

the facts and the legal conclusion that the agency draws

from them.’ ” Walters, 341 Or App at 48 (quoting Rinne v.

PSRB, 326 Or App 777, 781, 533 P3d 802 (2023), rev den, 371

Or 825 (2024)).

The Parties’ Arguments. Petitioner argues that sub-

stantial evidence does not support the PSRB’s determina-

tion that petitioner is “affected by a qualifying mental disor-

der which, when active, renders him a substantial danger to

others.” Petitioner contends that his extended time without

any sign of his bipolar disorder reactivating shows that he is

not a danger to others. Petitioner notes that the evaluator’s

report prepared for the PSRB stated petitioner “presents a

low risk of violence in the community,” that his qualifying

mental disorder is “in full remission,” and his “bipolar symp-

toms are not currently active.” Petitioner points to language

Cite as 344 Or App 617 (2025) 623

in the report that states “if [petitioner]’s qualifying mental

disorder does become active, it may cause him to become a

danger to others, as it would increase his risk for future vio-

lence,” but notes it also states, “[petitioner] has not been on

psychotropic medication in almost ten years, during which

he has not presumably exhibited active manic or psychotic

symptoms.” Petitioner states that previous manic episodes

were exacerbated by marijuana use and substance abuse

which by themselves are not qualifying mental disorders.

Furthermore, a psychiatrist who routinely treated petitioner

during his conditional release stated that his “bipolar disor-

der is in sustained remission without medical intervention,”

and a psychologist had concluded that “petitioner is a low

risk of future violent acts regardless of whether he is under

PSRB supervision.”

The PSRB responds that “petitioner’s behavior that

led to PSRB jurisdiction while his disorder was active was

both random and violent.” The PSRB cites the evaluator’s

conclusion that “if [petitioner]’s qualifying mental disorder

does become active, it may cause him to become a danger to

others, as it would increase his risk for future violence.” The

PSRB further argues that the evaluator’s report shows that

the structure provided by the PSRB’s supervision “likely

buffered the typical stressors that an individual in the com-

munity might otherwise have through having access to and

routine check-ins with his treatment team,” without which

“it is unclear how [petitioner] may respond to the potential

increase in stressors associated with increased indepen-

dence and responsibilities in the community.” Additionally,

the PSRB notes that the evaluator’s report expressed con-

cern over petitioner’s lack of insight into his disorder and

concluded “it is unclear if [petitioner] will obtain appropri-

ate psychiatric and medical services and adhere to recom-

mended medication regimen.” The PSRB asserts that all of

this amounts to substantial evidence to support the PSRB’s

findings.

Analysis. ORS 161.351(1) provides, “Any person

placed under the jurisdiction of the Psychiatric Security

Review Board * * * shall be discharged at such time as

the board, upon hearing, finds by a preponderance of the

624 Norgren v. PSRB

evidence that the person is no longer affected by a qualify-

ing mental disorder or, if so affected, no longer presents a

substantial danger to others that requires regular medical

care, medication, supervision or treatment.” Additionally,

ORS 161.351(2) provides:

“a person affected by a qualifying mental disorder in a

state of remission is considered to have a qualifying mental

disorder. A person whose qualifying mental disorder may,

with reasonable medical probability, occasionally become

active and when it becomes active will render the person a

danger to others may not be discharged. The person shall

continue under supervision and treatment necessary to

protect the person and others.”

The “ ‘reasonable medical probability’ language

used in [ORS 161.351(2)] requires expert testimony that,

with reasonable medical probability, an individual’s con-

dition could become active and render him or her danger-

ous.” Beiswenger v. PSRB, 157 Or App 192, 197, 970 P2d 229

(1998) (internal citations omitted). A “reasonable medical

probability” is more than a “mere possibility.” Cochenour v.

PSRB, 47 Or App 1097, 1106, 615 P2d 1155 (1980).

The PSRB has adopted a rule defining “danger” and

“substantial danger” as a “risk that the person will inflict

injury or harm on others.” OAR 859-010-0005(8). Under that

rule, evidence of a danger “may include information about

historical patterns of behavior, recent behavior, or verbal

or physical threats, which have caused injury or harm or

would place a reasonable person in fear of sustaining injury

or harm.” Id. Nevertheless, as we have noted, although

“[t]he actions and statements of a person alleged to be men-

tally ill which occur prior to the hearing are, of course, pro-

bative as to the person’s present mental condition,” a “mere

recitation of past acts, in the absence of a showing that such

clearly forms the foundation for a prediction of future dan-

gerousness, cannot serve as the basis for a finding that one

is a mentally ill person.” Rolfe v. Psychiatric Security Review

Board, 53 Or App 941, 947, 633 P2d 846, rev den, 292 Or 334

(1981) (internal quotation marks omitted).

Notably, in ORS 161.351, the “legislature did not

expressly assign the burden of proving the bases for PSRB

Cite as 344 Or App 617 (2025) 625

jurisdiction to either party.” Rinne v. PSRB, 297 Or App 549,

554, 443 P3d 731 (2019) (citing ORS 161.351). The PSRB,

however, has adopted a rule, OAR 859-050-0055, “assigning

the burden of proof.” Id. Under that rule, who has the bur-

den of proof “depends on the type of hearing.” Id. The parties

do not dispute that the state, not petitioner, bore the burden

of proof before the PSRB. See OAR 859-050-0055.

Turning back to this case, we have considered the

record and the PSRB’s order in light of our standard of

review, and we conclude that the PSRB’s order was not sup-

ported by substantial evidence. The PSRB’s conclusion relies

on a speculative chain of events. That is to say, the PSRB

determined that if petitioner’s condition were to become

active again it may cause him to be a danger to others

because it would increase his risk of future violence.

The difficulty with that line of reasoning is that

there is no probative evidence in the record concerning

the likelihood that petitioner’s condition will become active

again.

First, the PSRB noted that the DSM indicates that

“90% of people” who have a mood episode “go onto have a

recurrent mood episode.” That is of no probative value with

regard to whether petitioner’s mental disorder may “become

active” because the DSM does not “specify the timeline at

which future episodes are likely to reoccur.” Put another

way, as we understand the PSRB’s position as reflected in

the order on judicial review, the section of the evaluator’s

report referencing the DSM provides evidence that, because

petitioner had a mood episode that resulted in violence nine

years prior to the evaluator’s report, petitioner has a 90 per-

cent chance of a recurrent mood episode. But that section

does not provide evidence as to the likelihood that an indi-

vidual will have another “mood episode” after having spent

nine years both symptom and medication free. See Haidar

v. PSRB, 324 Or App 129, 135, 524 P3d 986 (2023) (PSRB

order not supported by substantial evidence where “none of

the exhibits cited by PSRB address petitioner’s more recent

physical and mental condition, which significantly changed

in the years leading up to the PSRB hearing”).

626 Norgren v. PSRB

Second, with regard to “stressors,” as noted above,

the evaluator recognized that the “possibility of another mood

episode in the face of * * * stressors that may impact” petitioner

could not be “discounted,” although petitioner had not had

another mood episode when facing stressors such as “incar-

ceration and Covid-19.” But a mere “possibility” that cannot

be “discounted” is insufficient to establish “danger” based on

a mental disorder that is in remission. See Cochenour, 47 Or

App at 1106 (in analyzing a case under ORS 161.351(2), not-

ing “[t]he most that can be said from the evidence is that there

is a possibility that petitioner’s mental illness may become

active at some time in the future, and that if it does, it is pos-

sible that he may become dangerous,” but that “[w]e construe

the act to require that those conclusions be based upon a rea-

sonable medical probability not a mere possibility”).

Third, with regard to the PSRB relying on the “ame-

liorating influence [of the PSRB’s supervision] * * * in [peti-

tioner’s] psychiatric stability,” and that petitioner has been

successful while under the PSRB’s jurisdiction, that is not

evidence that his mental disorder will become active if not

under the PSRB’s jurisdiction. That is, we do not see how

that aspect of the PSRB’s rationale could provide a reason

to deny petitioner discharge from the PSRB’s supervision;

under that rationale, the PSRB would be able to keep peti-

tioner under their supervision indefinitely, merely because

he has been successful while under their supervision. That

is not a proper way for PSRB to consider whether to dis-

charge someone who has been successful while in treatment.

Moreover, in our view, the record lacks substantial

evidence that if petitioner has another mood episode, he

will be a danger to others. In reaching the conclusion that

he would, the PSRB relied heavily on a single incident of

violence by petitioner that occurred in October 2013 when

petitioner was experiencing “mania and psychosis.” But the

PSRB does not explain how that evidence is probative of the

risk that, should petitioner have another “mood episode,” it

will similarly result in “mania and psychosis” as opposed to

manifesting in some other manner.

In contrast to the speculative evidence of risk due

to petitioner’s bipolar disorder, it is not speculative that

Cite as 344 Or App 617 (2025) 627

petitioner has gone over nine years without his mental dis-

order manifesting or engaging in violence, despite that he

has not taken any medication to control his mental disor-

der during that time (and, thus, there is no danger he stops

taking medication if discharged from the PSRB’s jurisdic-

tion due to his “lack of insight”). During those nine years,

according to the evaluator retained by the PSRB, petitioner

has “successfully navigated subsequent stressful life events

without the reemergence of psychiatric symptoms, such

as incarceration and Covid-19.” Additionally, he has taken

numerous actions to care for various aspects of his health,

he is employed, and he has healthy relationships with fam-

ily members, and he has a support network.

Petitioner is presently in “in full remission,” and his

“bipolar symptoms are not currently active.” And as noted, a

psychologist opined in an evaluation prepared in 2020 that

petitioner is “considered to be at low risk of future violent

acts in the community regardless of whether he is under

PSRB supervision.” And the evaluator retained by the PSRB

noted that petitioner “presents a low risk of violence in the

community.”

We conclude that the state did not meet its burden

before the PSRB, and the PSRB erred.3

Reversed and remanded.

3

Although we have considered the board’s order in this case as being pre-

mised on ORS 161.351(2), we would reach the same conclusion had the board’s

order been relying directly on ORS 161.351(1). That is, there is not substantial

evidence in the record that petitioner presents “a substantial danger to others” as

set forth in ORS 161.351(1).