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This is a nonprecedential memorandum opinion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 present

severe emotional disturbance (PSED) that constitutes a dan-

ger 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 substantial 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, rev dismissed, 329 Or 553 (1999) (explaining

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 argument

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

case, the petitioner argued that his PSED constituted a dis-

ability 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, “permits 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, 478 P3d 608 (2020) (CA

A169884)[.] (Emphasis in original; internal quotation marks

omitted.) That emotional disorder—in the petitioner’s view,

a disability under the ADA and RA—was the reason for peti-

tioner’s deferred release. Id. We disagreed, observing that the

petitioner’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

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

784 Hessel v. Board of Parole

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 dangerous-

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

with the board’s reasoning “indicating that its deferral of

petitioner’s parole consideration date was based on his dan-

gerousness, not on his condition or disorder” (internal quota-

tion 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 basing its deci-

sion 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 revisiting of statutory

construction precedent, while necessarily quite rare, usually

occurs * * * when we are presented with a qualitatively new,

potentially dispositive contention not previously raised and

Nonprecedential Memo Op: 345 Or App 781 (2025) 785

addressed.”). Petitioner’s remaining due process argument is

undeveloped, and we decline to address it here.

Affirmed.