stating it is inappropriate for state appellate court to order inactive supervision “because that is clearly a decision ... left to the discretion of the Board, based on how the parolee has done on active supervision”
How later courts described this case
- stating it is inappropriate for state appellate court to order inactive supervision “because that is clearly a decision ... left to the discretion of the Board, based on how the parolee has done on active supervision”
- observing that “[e]ven if the main issue in a controversy has been resolved, collateral consequences may prevent the controversy from being moot under some circumstances” (emphasis omitted)
- dismissing an appeal as moot because “[t]he relief that plaintiff initially sought, release from prison, has already occurred.”
- "Even if the main issue in a controversy has been resolved, collateral consequences may prevent the controversy from being moot under some circumstances."
Written by the judges who cited it.
The opinion
ARMSTRONG, J.,
dissenting.
I disagree with the majority’s conclusion, based largely on Brumnett v. PSRB, 315 Or 402, 405 , 848 P2d 1194 (1993), that plaintiffs appeal is moot. I believe that collateral consequences do flow from the decision of the Board of Parole and Post-Prison Supervision to extend plaintiffs parole release date and that the majority is incorrect in concluding that Brumnett controls this case.
The majority cites Brumnett for the proposition that the “mere possibility” that a party will suffer a collateral consequence as a result of an erroneous decision is not enough to prevent a case involving that decision from otherwise being moot. Brumnett involved a challenge to a Psychiatric Security Review Board (PSRB) decision to deny the petitioner a release from its jurisdiction. While Supreme Court review of that decision was pending, the PSRB unconditionally released the petitioner. The state then moved to dismiss as moot the review of the decision denying release. The petitioner opposed the motion, arguing that his release had not mooted his challenge to the decision denying release because he was subject to an obligation under state law to pay the cost of his care while under PSRB jurisdiction. If the Supreme Court concluded that the PSRB had erred in its initial decision to deny release, its ruling on that issue arguably would relieve the petitioner of the obligation to pay the state for care while it wrongfully held him under PSRB jurisdiction. Hence, the PSRB decision to deny release, if allowed to stand, would have a collateral consequence to the petitioner notwithstanding his later release.
*389 The court rejected that argument and granted the state’s motion to dismiss. In doing so, it examined the process by which the state would pursue a claim for reimbursement for the cost of care and concluded, on the record before it, that it was only possible, not probable, that the state would seek to require the petitioner to pay for care for the disputed period. It held that that possible consequence of the PSRB decision to deny release was insufficient to prevent the challenge to that decision from becoming moot on the petitioner’s release.
On the record in this case, I believe that it is probable, not merely possible, that plaintiff would be shifted from active to inactive parole supervision two years earlier than he will be if it turns out that the Board erroneously extended his parole release date by two years. Consequently, in contrast with Brumnett , plaintiffs challenge to the Board’s decision to extend his release date has not become moot as a result of his later release from prison, because the extension decision will have the collateral consequence of keeping him on active parole supervision for two years longer than he otherwise would be. 1
OAR 255-094-0000(3) provides that “[u]pon completion of the specified period of active parole or post-prison supervision, the supervisory authority shall place the offender on inactive supervision status subject to the exceptions in OAR 255-094-0010.” (Emphasis added.) The exceptions in the latter rule provide that, before the expiration of the active supervision period, the supervising officer may submit a report to the Board requesting continuation of active supervision. After reviewing the report, the Board may order the offender to remain on active supervision. Those rules treat retention of an offender on active supervision beyond the specified period as the exception rather than the rule. The Board has not presented evidence to show that it *390 extends active supervision beyond the specified period for most parolees or that plaintiffs circumstances are such that it likely would do so for him. Without that showing, and in light of the relevant rules, I do not believe that the state has carried its burden to establish that the case is moot. See Brumnett, 315 Or at 407 (state’s burden on motion to dismiss as moot includes burden to establish that decision will not have collateral consequences). I therefore dissent from the decision to grant the state’s motion to dismiss plaintiffs appeal as moot.
There are meaningful distinctions between the two types of supervision. Parolees on inactive supervision are not required to pay supervision fees and are allowed to leave the state without permission and to change their employment or residence without prior permission. OAR 255-094-0010(4). Those differences are significant and represent a substantial lessening of the restraints on a parolee. Hence, it is a meaningful consequence to a parolee to be continued on active parole supervision longer than he should be.