Downs v. Board of Parole

610 December 10, 2025 No. 1073

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

ELIZABETH DIANE DOWNS,

Petitioner,

v.

BOARD OF PAROLE

AND POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A183460

Submitted November 10, 2025.

Elizabeth Diane Downs filed the briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Philip Thoennes, Assistant Attorney

General, filed the brief for respondent.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

PER CURIAM

Affirmed.

Nonprecedential Memo Op: 345 Or App 610 (2025) 611

PER CURIAM

Petitioner seeks judicial review of an order of the

Board of Parole and Post-Prison Supervision (the board),

which denied her request for a parole consideration hear-

ing pursuant to ORS 144.228(1)(c).1 Petitioner raises three

assignments of error. First, she contends that the board

“failed to conduct parole consideration hearings every two

years as mandated by ORS 144.228.” Second, she contends

that the board “failed to conduct a parole consideration hear-

ing after Petitioner provided reasonable cause to believe she

is suffering from no severe personality disorder.” And, third,

she contends that the board “failed to address Petitioner’s

claim her Court Ordered Sentence expires on 5-9-2024.”

Reviewing for “legal error and substantial evi-

dence[ ] (including substantial reason),” Morrison v. Board

of Parole, 277 Or App 861, 863, 374 P3d 948, rev den, 360 Or

465 (2016), we affirm.2

Petitioner first contends that she is entitled to a

parole hearing every two years under “the 1984 version of

ORS 144.228,” because that is the version of ORS 144.228

that was in effect when petitioner was sentenced. We under-

stand petitioner to argue that the board erred in applying

1

ORS 144.228(1)(c) provides:

“Nothing in this section precludes a prisoner from submitting a request

for a parole consideration hearing prior to the earliest time the prisoner is

eligible for parole. If the board grants a prisoner a review hearing that is

more than two years from the date of the previous hearing, the prisoner may

submit a request for an interim review hearing not earlier than the date that

is two years from the date of the previous hearing and at intervals of not

less than two years thereafter. Should the board find, based upon a request

described in this paragraph, that there is a reasonable cause to believe that

the prisoner is no longer dangerous or that necessary supervision and treat-

ment are available based upon the information provided in the request, it

shall conduct a review as soon as is reasonably convenient.”

2

We note that, on appeal, the board filed both a “redacted answering brief,”

in which certain information was redacted, and a “confidential answering brief,”

which did not contain redactions. From petitioner’s reply brief, which asserted

that “this court should at least require respondent to unredact their brief so peti-

tioner can reply to their answer,” we understood petitioner, who is pro se and

incarcerated, to have not received a copy of the board’s confidential answering

brief. On its own motion, this court forwarded a copy of the confidential answer-

ing brief to petitioner and allowed petitioner 60 days to file an amended reply

brief. No amended reply brief was filed by petitioner and this case was scheduled

for submission.

612 Downs v. Board of Parole

the present version of ORS 144.228, because applying the

present version of ORS 144.228 violates the ex post facto

clauses of Article I, section 21, of the Oregon Constitution,

and Article I, section 10, of the United States Constitution.3

That argument is foreclosed by our decision in Morrison, 277

Or App at 865, which rejected the petitioner’s “ex post facto

challenge to the board’s application of the 2009 version of

ORS 144.228 to set his next parole consideration hearing at

a date six years from the date of the last one.”

Petitioner next contends that “respondent failed to

conduct a parole consideration hearing after Petitioner pro-

vided reasonable cause to believe she is suffering from no

severe personality disorder,” which we understand to be an

assertion that the board’s order was not supported by sub-

stantial evidence and substantial reason. Petitioner asserts

that she “provided evidence in the form of psychiatric reports

that prove she never did suffer from a severe personality

disorder, therefore she couldn’t possibly still be suffering

from a disorder that never existed in the first place.” Having

reviewed the board’s order and petitioner’s submission to the

board, we conclude the board did not err when it determined

that petitioner “did not meet [her] burden of proof.” See OAR

255-062-0021 (“The inmate bears the burden of producing

evidence sufficient to convince the Board that an interim

hearing is warranted.”); OAR 255-005-0005(58) (defining

“reasonable cause” to mean “[t]he quantum of information

that would cause a reasonably prudent person to believe

that a condition or circumstance exists”).

Finally, petitioner contends that she should be “dis-

charged from custody” because her “court ordered sentence

has expired.” Petitioner’s argument starts from an incorrect

premise. As the board explained, the “court imposed [on

petitioner] a sentence of life for the murder of one child and

thirty years and twenty years for the attempted murder of

[petitioner’s] two surviving children.”

Petitioner was sentenced as a dangerous offender

prior to 1989. Petitioner cannot be released on parole by the

3

ORS 144.228—which was last amended in 2009—allows “the board to

schedule parole consideration hearings up to 10 years apart.” Morrison, 277 Or

App at 864.

Nonprecedential Memo Op: 345 Or App 610 (2025) 613

board unless and until the board finds that petitioner is no

longer dangerous or that petitioner remains dangerous but

can be adequately controlled with supervision and mental

health treatment. See OAR 255-036-0005(2) (providing that

a “person sentenced as a dangerous offender for felonies

committed prior to November 1, 1989 is eligible for parole”

release “[a]fter having served the Board ordered prison term”

and either (1) the board “finds the inmate no longer danger-

ous” or (2) the board finds “the inmate remains dangerous

but can be adequately controlled with supervision and men-

tal health treatment and that the necessary resources for

supervision and treatment are available to the inmate”).

Affirmed.