Peek v. Thompson

DEITS, C. J.,

dissenting.

In our decision in Weidner v. Armenakis, 154 Or App 12 , 959 P2d 623 (1998), withdrawn by order July 13, 1998, *270 reasoning reaffirmed and readopted in Merrill v. Johnson, 155 Or App 295 , 964 P2d 284 , rev den 328 Or 40 (1998), we concluded, after considering the text and context of ORS 144.125(3) (1991), that it was the intent of the legislature in adopting that statute that the decision as to whether a plaintiff suffers from a severe emotional disturbance such as to present a danger to the health and safety of the community ultimately is a legal determination to be made by the Board. Weidner, 154 Or App at 19 . We held that, based on the statutory language, it was apparent that the legislature intended the Board’s decision to be based on its own assessment of the psychiatric or psychological diagnosis, as well as other information in the record before the Board. We explained:

“It is apparent from the text and context of ORS 144.125 (1991) that the determination as to whether a prisoner suffers from a severe emotional disturbance such as to constitute a danger to the health and safety of the community is a judgment that the legislature intended the Board to make. Although a psychiatric or psychological diagnosis is a prerequisite to the Board’s consideration of whether the statutory criteria have been met, that diagnosis alone does not dictate the result. ORS 144.125(3) (1991) allows the Board to consider both a psychiatric or psychological diagnosis and other pertinent evidence in the record in exercising its judgment as to whether the prisoner’s release should be deferred.” 154 Or App at 19-20 (emphasis added).

The text and context of the statute have not changed and, presumably, the legislature’s intent has not changed. Nonetheless, the majority holds that our reading of the statute must now be changed because the Board adopted a rule that the majority believes demonstrates that, at least at one time, the Board read the statute differently than we did in Weidner . Even if the majority were right that the Board’s rule demonstrates that the Board did read the statute differently than we did, I fail to understand why that requires this court to change our legal conclusion as to the meaning of the statute. In any event, as I will explain, the Board’s rule does not reflect a different understanding of the statutory requirements on the part of Board.

The majority concludes that the Board has authority to adopt rules applicable to parole"md that, once it does so, it *271 must follow its own rules. Consequently, the majority reasons, if the Board decided that it could only defer a prisoner’s release if it had before it a psychiatric or psychological report that includes a finding that the prisoner suffers from a severe emotional disturbance such as to constitute a danger to the health and safety of the community, then this court is precluded from holding that the statute requires the Board to make this legal determination based on the diagnosis and other information available to it. I do not agree that the Board’s adoption of a rule precludes this court from interpreting the statute in a manner that the court believes is legally correct.

Further, I do not think that the above point can be answered by the argument that, in adopting the rule, the Board was simply delegating the authority that it had been given by the legislature. In my view, such a delegation would be inconsistent with the specific legislative direction to the Board to make this determination. As a general rule, “delegated power cannot be delegated.” Voth v. Fisher, 241 Or 590, 595 , 407 P2d 848 (1965).

By stating that an agency may “ ‘limit its own discretion in its regulations,’ ” the majority essentially concludes that the Board may delegate the responsibility to make parole release decisions to psychologists and psychiatrists 160 Or App at 265 (quoting Wyers v. Dressler, 42 Or App 799, 807 , 601 P2d 1268 (1979), overruled on other grounds by Mendieta v. Division of State Lands, 148 Or App 586 , 941 P2d 582 (1997), rev dismissed 328 Or 331 (1999)). However, I do not believe that it follows from Wyers , or any other case, that an agency may abdicate its authority and turn its decisionmaking functions over to others. In Hillman v. North. Wasco Co. PUD, 213 Or 264, 284 , 323 P2d 664 (1958), overruled on other grounds by Moulding v. Clackamas Co., 278 Or 359 , 563 P2d 731 (1977), the agency in question had discretion to adopt standards set forth in a national electric safety code. It did not, however, have the ability to adopt prospective future versions of the national code “without hearing or further consideration subsequent changes, modifications or alterations in such code[.]” Id. That was because the agency had a “duty to determine after due consideration whether the changes, modifications, or alterations in the [national] code * * * are *272 necessary and proper for the protection of the health and safety of the citizens of this state. The prohibition against delegation of power imposed on the legislature by the constitution applies with equal, if not greater, force to an administrative agency created by the legislature.” Id. at 285. In Hillman , the court declared void the agency order in which it attempted “abdication of [its] legislative power[.]” Id. at 285-86 . Similarly here, the Parole Board may not abdicate its duty to apply the legal standard articulated in the statute and determine whether an inmate suffers from a severe emotional disturbance such as to constitute a danger to the health or safety of the community to psychiatrists and psychologists.

Even if I am mistaken and the Board did have the authority to adopt the rule as the majority reads it, it makes no difference because, as I will discuss, the majority’s reading of the rule is wrong. The rule in question, OAR 255-60-006 (1988) provides, in part:

“(7) The Board may order a psychiatric/psychological report anytime prior to release. If the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present, the Board may consider deferring parole release until a specified future date.

“(8) If the evaluation does not make a finding of severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board shall affirm the parolé release date and set parole conditions.” (Emphasis added.)

The majority construes OAR 255-60-006(8) as meaning that the psychiatric/psychological report mentioned in OAR 255-60-006(7) must itself include “ ‘a finding of severe emotional disturbance such as to constitute a danger to the health or safety of the community.’ ” 160 Or App at 264. With all due respect, that is not what the language of the rule provides. First, the majority makes the assumption that the terms “report” and “record” in section 7 are synonymous. It seems unlikely, however, that the Board would have used two quite different terms in the same subsection to describe exactly the same thing.

*273 Further, the majority assumes, without any discussion, that the “evaluation” mentioned in section 8 of the rule is the “psychiatric/psychological report” mentioned in section (7). From that assumption, the majority concludes that the “psychiatric/psychological report” mentioned in section (7) must itself include a “finding of severe emotional disturbance such as to constitute a danger to the health and safety of the community” as mentioned in section (8).

In my opinion, the majority’s assumption that the “evaluation” referred to in section (8) is the same as the report referred to in section (7) is wrong. It is clear from the text of the rule that the “evaluation” mentioned in section (8) is not a synonym for the “psychiatric/psychological report” mentioned in the first sentence of section (7). To assume that the report referenced in section (7) is synonymous to the evaluation mentioned in section (8) renders the entire second sentence of section (7) meaningless:

“If the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present, the Board may consider deferring parole release until a specified future date.” (Emphasis added.)

Consistent with Weidner , the above sentence indicates that the determination of whether an inmate suffers from a severe emotional disturbance such as to constitute a danger to the health or safety of the community is a determination to be made by the Board, based on what is in the record. Section (8) of the rule, when viewed in the context of that sentence— which immediately precedes it — refers to the Board’s own evaluation of the record.

For the above reasons, I would hold that the rule, as does the statute, requires the Board itself to evaluate the record to determine if the inmate has a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. We should not construe the rule in a manner that renders part of it meaningless, as the majority does. Rather, in my opinion, we should interpret the rule to give effect to all parts of the rule and we should construe it in a manner consistent with ORS 144.125(3) (1991), as we interpreted it in Weidner .

*274 Finally, even assuming that the majority correctly interprets the rule and that the Board has authority to adopt a rule that abdicates its decisionmaking functions, I question the majority’s disposition based on the record in this case. The majority remands to the Board for it to make the “legal determination” as to whether “a prisoner’s emotional disorder was (a) present, (b) severe, and (c) one that made the prisoner a ‘danger to the health and safety of the community.’ ” However, under the rule, as interpreted by the majority, that is a finding that must be in the report itself. It seems to me that, under the majority’s reading of the rule, all that the Board may do on remand is determine if the report includes such a finding. If it does, the Board may defer the prisoner’s release. If it does not, the Board must release the prisoner. If, as the majority holds, the determination that an inmate suffers from a severe emotional disturbance such as to constitute a danger to the community may be delegated to a psychologist or psychiatrist, there is no legal determination remaining for the Board to undertake. For all of the above reasons, I respectfully dissent.

Edmonds, Landau, and Brewer, JJ., join in this dissent.