Hessel v. Board of Parole

No. 1097 December 17, 2025 781

This is a nonprecedential memorandum opinion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

BRIAN DOUGLAS HESSEL,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A184331

Argued and submitted November 19, 2025.

Jedediah Peterson argued the cause for petitioner. Also

on the reply brief was Weber & Associates, LLC. On the

opening brief were Ryan T. O’Connor, Lindsey Burrows, and

O’Connor Weber, LLC.

Carson L. Whitehead, Assistant Attorney General,

argued the cause for respondent. Also on the brief were

Dan Rayfield, Attorney General, and Benjamin Gutman,

Solicitor General.

Benjamin Haile argued the cause for amici curiae Oregon

Justice Resource Center and Disability Rights Oregon. Also

on the briefs was Dave Boyer.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

PER CURIAM

Affirmed.

782 Hessel v. Board of Parole

PER CURIAM

Petitioner seeks judicial review of a final order

of the Board of Parole and Post-Prison Supervision (the

board) deferring petitioner’s projected parole release date

for 48 months; it found that petitioner suffers from a pres-

ent severe emotional disturbance (PSED) that constitutes

a danger to the health or safety of the community, so as to

permit the deferral of petitioner’s parole release date under

ORS 144.125(3) (1989), amended by Or Laws 1993, ch 334,

§ 1; Or Laws 1999, ch 141, § 1; Or Laws 2009, ch 660, § 3.

Reviewing that finding for substantial evidence and sub-

stantial reason, ORS 144.335(3); ORS 183.482(8), we affirm.

The record provides substantial evidence for the

board’s finding that petitioner’s emotional disturbance was

severe and constituted a danger to the community. Under

the governing law at the time of petitioner’s conviction, “the

board may order the postponement of [a] scheduled parole

release” if “a psychiatric or psychological diagnosis of [PSED]

such as to constitute a danger to the health or safety of the

community has been made with respect to” petitioner. ORS

144.125(3) (1989). The board was required to limit its consid-

eration of whether petitioner has a PSED that would consti-

tute a danger to the community to the material contained

in the psychological evaluation prepared for petitioner’s exit

hearing. See Peek v. Thompson, 160 Or App 260, 266, 980

P2d 178 (1999), rev dismissed, 329 Or 553 (1999) (explain-

ing requirement). That evaluation diagnosed petitioner with

narcissistic personality disorder and opined that petitioner’s

disorder was “currently not fully controlled and has resulted

in increased risk factors, and therefore contributes to his

risk for violence in the community.” The evaluation further

noted petitioner’s deficits in insight, increased hostility to

women, elevated risk for sexual recidivism, and that peti-

tioner’s pathology had resulted in “functional impairment.”

The board’s order, which relied on those facts, explained its

decision and provided a rational connection between the

facts it found and the result it reached from them. Although

petitioner points to other sections of the report that indicate

his personality disorder was less severe or less dangerous,

our standard of review requires us to “defer to the board’s

Nonprecedential Memo Op: 345 Or App 781 (2025) 783

reasonable inferences without reweighing the evidence in

the record.” Mendacino v. Board of Parole, 287 Or App 822,

834, 404 P3d 1048 (2017), rev den, 362 Or 508 (2018).

Next, petitioner contends that ORS 144.125(3)

(1989) violates Title II of the Americans with Disabilities

Act (ADA), the Rehabilitation Act of 1973 (RA), and the Due

Process Clause of the Fourteenth Amendment by imper-

missibly discriminating against people with disabilities. He

acknowledges that this court has already upheld ADA and

RA challenges to ORS 144.125 in Green v. Board of Parole,

308 Or App 159, 160, 478 P3d 608 (2020), rev den, 368 Or 138

(2021), Grimm v. Board of Parole, 258 Or App 595, 598, 310

P3d 736 (2013), rev den, 354 Or 699 (2014), and McCline v.

Board of Parole, 205 Or App 144, 148, 133 P3d 349, rev den,

342 Or 46 (2006), but argues that those cases either did not

address the same issue or, if they did, are plainly wrong. We

disagree.

Petitioner raises a functionally equivalent argu-

ment to one we considered in Green, 308 Or App at 160. In

that case, the petitioner argued that his PSED constituted

a disability and when the board deferred his release date

under ORS 144.125(3) due to his disability, it violated the

ADA and the RA. The petitioner’s argument in Green rested

on the fact that the statutory scheme, under his view, “per-

mits the board to delay the release only of dangerous inmates

who have an emotional disorder. The emotional disorder is

a prerequisite to the board’s consideration of whether the

statutory criteria * * * have been met.” Petitioner’s Opening

Brief at 22, Green v. Board of Parole, 308 Or App 159, 160,

478 P3d 608 (2020), rev den, 368 Or 138 (2021) (CA A169884)

(emphasis in original; internal quotation marks omitted).

That emotional disorder—in the petitioner’s view, a disabil-

ity under the ADA and RA—was the reason for petitioner’s

deferred release. Id. We disagreed, observing that the peti-

tioner’s arguments “ran contrary” to our prior decisions in

Grimm and McCline, and that petitioner had not satisfied

the burden to show that those cases were “plainly wrong.”

Green, 308 Or App at 160. More recently, we twice rejected

similar ADA and RA challenges to ORS 144.125, noting that

the petitioner “provide[d] no basis for this court to overrule

784 Hessel v. Board of Parole

Green.” Schroeder v. Board of Parole, 337 Or App 166 (2024),

rev den, 373 Or 736 (2025) (nonprecedential memorandum

opinion); Schroeder v. Board of Parole, 308 Or App 659, 479

P3d 628, rev den, 368 Or 511 (2021).

Moreover, as we explained in Grimm, nothing in the

ADA “suggest[s] that the board is obliged to release a dan-

gerous inmate into the community simply because the dan-

gerousness is related to, or the result of, a disability.” 258 Or

App at 598. In other words, while a disability cannot be the

basis to defer release, dangerousness—even dangerousness

that results from a disability—can. See id. (agreeing with

the board’s reasoning “indicating that its deferral of peti-

tioner’s parole consideration date was based on his danger-

ousness, not on his condition or disorder” (internal quotation

marks and brackets omitted). Similarly, in McCline, we held

that the language of ORS 144.125(3), which granted the

board discretion to defer release based on dangerousness as

a result of a PSED, did not violate a prohibition on deferring

release on the basis of PSED, because the board considered

“all relevant facts” in assessing dangerousness:

“If after consideration of all relevant facts, including a psy-

chiatric or psychological report, the Board determines that

the prisoner will be a danger to the health or safety of the

community, it may postpone or deny parole. But the Board

may not deny release on parole solely because of a prison-

er’s severe emotional disturbance.”

205 Or App at 148 (internal quotation marks omitted).

Although petitioner here argues that only individuals

with disabilities are considered at that stage of the board’s

analysis, nothing has changed in the intervening years

since Green or McCline to demonstrate that the board is bas-

ing its decision on disability, as opposed to dangerousness.

And given that we recently affirmed Green and McCline,

petitioner has not overcome “the prudential principles that

undergird stare decisis, as well as practical institutional

considerations” to convince us that those cases are “plainly

wrong” and should be overruled. State v. Civil, 283 Or App

395, 415-16, 388 P3d 1185 (2017); see also id. (“Such revis-

iting of statutory construction precedent, while necessarily

quite rare, usually occurs * * * when we are presented with a

Nonprecedential Memo Op: 345 Or App 781 (2025) 785

qualitatively new, potentially dispositive contention not pre-

viously raised and addressed.”). Petitioner’s remaining due

process argument is undeveloped, and we decline to address

it here.

Affirmed.