Harris v. Board of Parole

SCHWAB, C. J.,

dissenting.

The Supreme Court’s opinion in Harris v. Board of Parole, 288 Or 495 , 605 P2d 1181 (1980), is particularity troublesome. I have always thought that a higher tribunal reviews the result reached in a lower tribunal, not the lower tribunal’s reasoning. Stated differently, there are numerous appellate decisions that disapprove of a lower tribunal’s reasoning, but affirm its result on a different basis. The Supreme Court apparently did not share this theory of the review function in Harris .

*302 Instead, in Harris the Supreme Court disapproved of the reasoning of the Court of Appeals, but expressed no view on the result reached by the Court of Appeals. Rather, the Supreme Court remanded this case to us to determine whether the Parole Board order petitioner has appealed from is "a final order of the board relating to the granting * * * of parole.” I would hold that it is not.

We should first clearly identify the nature of the Parole Board’s order. Its effect is to state to petitioner: We do not presently intend to consider you for parole for ninety six months. There is, however, nothing in the statutory scheme governing parole that forecloses the board from, at any time, changing the tentative release date set by the order here under review. Indeed, as the majority states in footnote 2,47 Or App at 291-92, the Parole Board has set a new and different release date for petitioner here. Moreover, the statutes expressly contemplate that a tentative release date set by an order like that here under review might not prove to be an inmate’s actual release date. ORS 144.125, 144.185.

This is not a "final order” as that term is now defined in the Administrative Procedures Act. ORS 183.310(4)(b) provides:

" 'Final order’ means final agency action expressed in writing. 'Final order’ does not include any tentative or preliminary agency declaration or statement that:

"(A) Precedes final agency action; or

"(B) Does not preclude further agency consideration of the subject matter of the statement or declaration.”

The Parole Board order here in question obviously precedes final agency action in the parole-granting process. It is a tentative or preliminary declaration that does not preclude further Parole Board consideration — the ultimate proof being that the order has actually been superseded by a subsequent order.

*303 Although the Parole Board is exempt from some parts of the Administrative Procedures Act, ORS 183.315(1), it has not been exempted from ORS 183.310(4)(b), which contains the definition of a "final order” quoted above.

The majority notes the existence of this statutory definition of "final order” but fails to explain why it should not be applied in this case. This produces a bizarre situation — "final order” means one thing for all other state agencies, but something different for the Parole Board. The majority perhaps feels compelled to ignore ORS 183.310(4)(b) because of the Supreme Court’s assurance in Harris v. Board of Parole, supra, that there can be "a final order of the board relating to the granting * * * of parole” other than the actual grant of parole, and because it is difficult, if not impossible, to reconcile the Supreme Court’s assurance with ORS 183.310(4)(b).

With all due respect, I would not go to such extremes to try to decipher Harris . Accepting, as we must, the Supreme Court’s holding that there can be final orders of the Parole Board relating to the granting of parole other than the actual grant of parole, I would simply hold: (1) We cannot now imagine what those final orders might be; and (2) under ORS 183.310(4)(b), this is not one of them.

I would dismiss on the ground that this appeal is not from a final order. Therefore, I respectfully dissent.

Thornton, Buttler and Roberts, Judges, join in this dissent.