Anderson v. Board of Parole

*632 GILLETTE, J.,

concurring in part and dissenting in part.

The majority has, with exemplary care and precision, explained the intricacies of the BAF. 303 Or at 620-24.1join in that portion of the opinion and in all or so much of the other opinions in this series of cases that deal with that issue. I regret that I cannot join in the balance of the opinion, i.e., the portion that deals with ORS 144.135 and its requirement that the Board announce the “detailed bases” of its decision not to override a minimum sentence, or in similar portions of six other opinions.

To restate the issue: In any felony case, a sentencing judge may impose a minimum term of imprisonment of up to one-half of the total sentence the judge imposes. ORS 144.110(1). A prisoner must serve at least the minimum before he can be released on parole. However, this minimum sentence may be negated by the “affirmative vote of at least four members of the [BJoard.” ORS 144.110(2) (a). A person under the Board’s jurisdiction is entitled to judicial review of the Board’s action under ORS 144.335(1) and (2). In rendering its decisions under, inter alia, ORS 144.110(2)(a), the Board is required to “state in writing the detailed bases of its decisions.” ORS 144.135. The bone of contention in this case concerns what, at minimum, the Board must say in its order declining to overrule a minimum sentence imposed under ORS 144.110(2) (a), in order to satisfy the mandatory requirement of a statement of “detailed bases” under ORS 144.135.

The majority says,

“The ‘decision’ to be made is when to set the parole release date; it will be set at the expiration of the mandatory minimum sentence unless the mandatory minimum is overridden.” 303 Or at 624.

If the majority is correct in its determination that the only “decision” under ORS 144.110(2) (a) is that setting the parole release date, the discussion should be over. As the majority opinion amply demonstrates, 303 Or 620 -24, the parole release date set is explained in great detail.

Unfortunately, this simplistic view of the statute only works until the statute is read. In full, ORS 144.110 provides:

*633 “(1) In any felony case, the court may impose a minimum term of imprisonment of up to one-half of the sentence it imposes.

“(2) Notwithstanding the provisions of ORS 144.120 and 144.178:

“(a) The board shall not release a prisoner on parole who has been sentenced under subsection (1) of this section until the minimum term has been served, except upon affirmative vote of at least four members of the board.

“(b) *****”

The setting of the parole release date, which the majority claims is the “decision” in ORS 144.110(2) (a) to which the cross reference in ORS 144.135 refers, is not even mentioned in ORS 144.110. That date is set under ORS 144.120. The majority’s major premise is just plain wrong. The “decision” under ORS 144.110(2)(a) is to override, or not to override, the mandatory minimum sentence. Either action is a “decision.” Either action calls, by the express language of ORS 144.135, for a statement in writing of “the detailed bases” of the decision.

The majority also discusses, perhaps as an alternative explanation of its holding, OAR 255-35-023, which I reproduce here for convenience:

“(1) The Board shall not release a prisoner before a judicially imposed minimum prison term sentence has been served except when at least four members of the Board find that:

“(a) The court applied the guideline rules incorrectly; 1 or

“(b) The Board has information not available to the court at the time of sentencing; or

“(c) The court’s findings, though technically correct, lead to an inequitable result.

“(2) The Board shall state the facts and reasons for its actions and it shall then inform the sentencing court of its decisions and reasons. The Board shall then set an initial parole release date in accordance with rule 255-35-013.”

The majority says, concerning this rule:

“We interpret this rule to mean that the Board may not *634 override a minimum sentence unless four of its members make findings concerning one or more of three specific categories and that, if the Board decides to override a minimum sentence, it is obliged to inform the sentencing court of its decisions and reasons. The rule, although somewhat ambiguous, does not suggest that the Board state the facts and reasons for its actions in not overriding the minimum term. Implicit in that vote is a determination by at least four members of the Board that paragraphs (a), (b) and (c) of subsection (1) of the rule were not applicable. We interpret that rule to require the Board to state the facts and reasons for its actions only when four members of the Board find applicable one or more of the three categories listed under subsection (1). * * *.” 303. Or at 625.

The reason for including the foregoing discussion of OAR 255-35-023 is unclear, if the majority stands by its earlier statement that the setting of the parole release date is the pertinent “decision” here. It is implicit from this last quoted statement, however, that the majority acknowledges that, at the least, a decision to override the minimum is also a “decision” under ORS 144.135. There is no other justification for this extensive discussion.

And, if the decision to override is a “decision,” why is the decision not to override not a decision? The majority never explains; I do not believe an explanation is possible. Both are decisions. Both are governed by the language of ORS 144.135. Either way, the Board must comply with ORS 144.135.

The majority ultimately appears to come to the same conclusion, viz., that both overriding and refusing to override are, decisions, because it argues:

“Therefore, the administrative procedure for minimum sentence review works like this: The Board takes a vote to override the minimum sentence. If four votes are not garnered to override, the basis for the decision simply results from the lack of four affirmative votes on that issue. The vote and who made it constitute the basis for the decision not to override. The Board, or the subset voting not to override, need not ‘come to a point’ where they have agreed upon some set of findings of fact and conclusions of law; the absence of four affirmative votes alone determines the Board’s decision regardless whether there is any agreement as to why the Board has refused to override. In such a case, the prisoner’s parole *635 date is set at the expiration of the mandatory minimum sentence and the criteria, justification or ‘detailed bases’ for such Board action are simply that there are not enough votes to override.” 303 Or at 625-26.

In this passage, the majority is determined to crush any suggestion that those voting not to override a minimum sentence (or, for that matter, those who do vote to override, if there are at least four of them) must have a common reason for their vote. Of course, if the vote is not a decision at all — as the majority appears to have said previously — this entire discussion is academic. If, on the other hand — as the majority appears to have acknowledged elsewhere and as I think is ineluctable — the vote is a “decision,” the majority’s point is unpersuasive because it offers no reason for its repeated conclusions. The statement apparently intended as explanation, viz., “the absence of four affirmative votes alone determines the Board’s decision,” is merely descriptive of an event; it does not explain or justify the majority’s conclusion.

As I have indicated, the majority’s linguistic impreci-sions really result from a failure to keep two questions separated: (1) Is the ORS 144.110(2) (a) vote by the Board, no matter which way it goes, a “decision”? and (2) if it is, what “detailed bases” are required to explain that decision? As I have indicated also, the answer to the first question is “yes.” The majority should simply say so and move on.

The second issue is tougher. No legislative history explains what the legislature thought the combination of ORS 144.110(2) (a) and 144.135 would produce in the way of “detailed bases.” We only have the statutory language that declares that there shall be some. We are left to flesh out the requirement, guided only by the words themselves.

I have no difficulty in saying that “bases,” in ORS 144.135, means the reasons or justifications for decisions. The requirement that the bases be “detailed” means that the actual, specific reasons for a decision, rather than mere rote recitation of a conclusion, must be announced. Thus, mere announcement of the outcome of the vote is no “detailed” statement. Some statement as to the reasons for the votes that led to that mathematical outcome is required.

There are two possible ways in which this requirement that I perceive in the statutory scheme might be met. *636 First, the prevailing side (the four or more Board members who vote to override the minimum, or the two or more who vote not to do so) could be required to agree upon a common rationale. This interpretation could be justified by general administrative law principles — the Board is an agency and the decision with respect to the mandatory minimum is a Board decision.

On the other hand, the statute might be satisfied if each individual Board member on the prevailing side were to state his or her own reasons. The majority says, “We perceive no puxpose to be served by requiring the Board members to state their individual reasons for not voting to override the minimum sentence imposed.” 303 Or at 626. With respect, I do see a reason — requiring the statement of each member’s individual reasons may encourage consensus or expose analytical error, leading to a different conclusion. It ensures, for example, that no legally-impermissible rationale, such as the race or ethnic background of the prisoner, is used by a member. Such a requirement is completely consistent with the legislative policy embodied in the Administrative Procedure Act (and throughout the statutes) that decisions by administrative agencies shall be principled and fair, rather than ad hoc and unstructured.

While I believe the statutory language justifies either rule, I believe the one requiring statements of individual reasons best comports with the nature and scope of the Board’s burdensome caseload. 2 The Board may even be able to devise a form like the BAF to facilitate the process by listing all of the commonly-used reasons for overriding (or refusing to override) a mandatory minimum sentence. But something of the sort must be done, or the legislative demand in ORS 144.135 for an explanation of the Board’s actions will, at least with respect to ORS 144.110(2)(a), go totally unanswered. 3 Or, to *637 put it another way, the Board’s action in this case might as well read: “ ‘No,’ they explained.”

I respectfully dissent.

Linde, J., joins in this concurring and dissenting opinion.

The rule does not explain its reference to “the guideline rules.’

The majority’s argument that the Board hasn’t time to do this is defeated by the record in this case — the three members who wanted to override the minimum made a record.

Two recent United States Supreme Court decisions demonstrate the importance of the rights involved here. In Board of Pardons v. Allen, _US _, 107 S Ct 2415 , 96 L Ed 2d 303 (1987), the Court held that a Montana statute that required parole release unless certain designated findings were made created a liberty interest in parole release protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Miller v. Florida ,_US _, 107 S Ct 2446 , 96 *637 L Ed 2d 351 (1987), the Court held that the application of Florida’s revised sentencing guidelines law to the petitioner, whose crimes occurred before the revised guidelines became effective, violated the Ex Post Facto Clause of the United States Constitution.