Hamel v. Johnson

EDMONDS, J.,

dissenting.

I join with Judge Armstrong’s cogent discussion of how the Board’s own administrative rules circumscribe the legality of its decisions. I write separately to discuss my understanding as to how those rules operate within the framework of the applicable statutes and to furnish perspective to their application to this case.

Petitioner argues that “the trial court erred when it found sufficient evidence in the record to support the Board of Parole’s finding of present, severe emotional disturbance constituting a danger to the community.” ORS 144.125 (1987) is *460 the substantive statute that governs petitioner’s entitlement to release. It requires release on parole unless the Board makes valid findings regarding one of the exceptions in the statute. One of those exceptions is when a prisoner suffers from a present, severe emotional disturbance. As we held in Hamel v. Johnson, 169 Or App 216 , 9 P3d 719 (2000), there is not substantial evidence here to support a finding that petitioner presently suffers from a “severe” emotional disturbance. Petitioner has completed treatment programs for sex offenders and, in the opinion of the examining psychologist, has benefitted from those programs. The examining psychologist recommended petitioner’s release on parole, noting

“ ‘* * * He was slow to acknowledge his responsibility for the crime. Over time, however, it is this examiner’s impression that [petitioner] has begun to take responsibility for his crime and participate in sex offender day treatment. He is cognizant of the negative effects of his behavior on his victims, even though he does not entirely recognize his potential for reoffense. He is unhappy and anxious.

“ ‘Even though [petitioner’s] basic personality structure does not appear to have changed since a previous examination, it is notable that he does acknowledge that he has harmed his victims. He has taken the initiative to develop potential referral sources in Florida, if he were to be paroled.

“ ‘In sum, it is this examiner’s impression that [petitioner’s] acknowledgment of his harm to his victims mitigates significantly the short sightedness associated with his personality disorder. Since he has been in prison no other victims have been discovered. He has cooperated with and benefited from his treatment opportunities. Although there certainly is some risk for reoffense, it is this examiner’s impression that [petitioner’s] parole plan and current benefit from treatment combine to minimize the risk to the community, if he is to be paroled.’ ’’Hamel, 169 Or App at 220 .

On reconsideration, the majority focuses on the preface of the examiner’s statement that there is “potential for reoffense,” 173 Or App at 458, and places its reliance on the diagnosis of a personality disorder and its general characteristics without taking into account the psychologist’s finding *461 that “[Petitioner’s] acknowledgment of his harm to his victims mitigates significantly the short sightedness associated with his personality disorder.” Hamel, 169 Or App at 220 . It also fails to mention that petitioner is presently “cognizant of the negative efforts of his behavior on his victims.” Id. On this basis, the majority concludes that there is “some evidence,” 173 Or App at 459, to support the Board’s finding that petitioner continues to suffer from a “present severe emotional disturbance such as to constitute a danger to the health or safety of the community.”

The issue, of course, is the standard by which we review the Board’s ultimate finding. The majority says that “[defendant is correct that the case of Superintendent v. Hill, [ 472 US 445 , 105 S Ct 2768 , 86 L Ed 2d 356 (1985),] answers that question.” 173 Or App at 455. But, as Judge Armstrong correctly points out, Hill is a federal due process case and imposes only a minimum standard on the Board. Rather, we must look elsewhere to discern the legislature’s intent about how the Board’s decisions are to be reviewed by courts.

Our analysis must begin with the statutes that circumscribe the Board’s authority as well as the administrative rules enacted by the Board to carry out the legislature’s intent. Our task is to discern the intent of the legislature, even if it did not contemplate this particular problem. That inquiry returns us to the language of ORS 34.310, the statute under which petitioner seeks relief. It authorizes a court “to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom.” The key word in that statute is the word “illegal.” It means “contrary or violating a law or rule[.]” Websters Third New Int’l Dictionary, 1126 (unabridged ed 1993). By definition, relief under ORS 34.310 is not confined to inquiries of a constitutional nature, and the majority’s implicit conclusion to the contrary is error. An inquiry into the ‘legality” of the Board’s action necessarily entails inquiry into the statutes or rules that regulate the Board’s exercise of its authority. ORS 144.050 says as much. 1 *462 The Board’s authority to grant parole is expressly subject to statutes like ORS 144.125, which require it to release a prisoner on parole unless the statute’s criteria for denial are met.

It follows that the legislature has delegated to the Board the authority to determine by rule what evidentiary standards it will apply in exercising its authority under ORS 144.125. The Board makes its parole release decisions under the statute pursuant to OAR chapter 255, division 60. Significant to the majoritys position, the Board has not said in Division 60 that it will render its decisions about release on parole based on “some evidence.” That leaves two possibilities. Either the Board has not said by rule what evidentiary standards it will use to make its release decisions, or it intends that OAR 255-030-0032(3)’s standard of “[rjeliable, probative and substantial evidence” be applicable to its parole release decisions. Beyond the evidentiary standard that the Board fails to impose or does impose on itself is the question of our standard of review as to the sufficiency of the evidence to support its conclusion of a present, severe emotional disturbance.

I am persuaded by Judge Armstrong’s analysis that the only logical answer can be that the Board intended OAR 255-030-0032(3) to apply to its release decisions and that we should hold the Board answerable to that standard as part of our own review. But even if he is incorrect, it is error to impose a “some evidence” or “modicum of evidence” standard as our standard of review in light of the statutes at work in this case. At best, the majority’s argument leaves this case in a position where the Board has not promulgated an eviden-tiary standard for itself in the making of parole release decisions. However, that does not alter our need to employ a standard of review. ORS 34.310 entitles a petitioner who loses a ORS 144.125(3) release decision before the Board to test the legality of the Board’s decision, which in turn requires us to establish standards of review. Under ORS 34.310, we review the Board’s decision denying release under the exceptions to ORS 144.125(3) for errors of law. One of the ways in which *463 the legality of administrative decisions are subjected to judicial review for errors of law is to test the sufficiency of the evidence on which the decisions are based. If Judge Armstrong’s analysis is incorrect, then, nevertheless, petitioner’s challenge to the sufficiency of the evidence in this case requires us to establish a standard of review in order to assess the legality of the Board’s decision.

As framed by the opinions in this case, we could adopt either a “substantial evidence” or a “modicum of evidence” standard. But, as Judge Armstrong points out, the typical standard of judicial review of the sufficiency of the evidence in an administrative law case is for substantial evidence, the same standard that the Board applies to itself in other decisions authorized by OAR chapter 255. Given the universal use of that standard in Oregon administrative law, it is reasonably inferrable that when the legislature enacted ORS 144.125(3) to be implemented by the Board, it contemplated that a typical standard of review, as distinguished from a constitutional standard, would be exercised by the appellate courts on judicial review of parole release decisions. On the other hand, the majority’s adoption of the “modicum of evidence” standard announced in Hill has no precedent in the review of the administrative decisions in this state and leads to an incongruous result.

The “modicum of evidence” standard was imposed by the United States Supreme Court in the specific context of a Fourteenth Amendment challenge to a Massachusetts statute regarding “good time” credits that reduced the term of imprisonment. In contrast, the scope of ORS 34.310, under which petitioner’s claim is brought, is much broader than that of the Massachusetts statute. It permits the bringing of more claims than just those that challenge a term of imprisonment. Under the statute, a petitioner may test the legality of the imprisonment, whether his freedom is in issue or not. As our Supreme Court said in Penrod/Brown v. Cupp, 283 Or 21, 28-29 , 581 P2d 934 (1978), the statute is not confined to the case of further imprisonment or restraint of the prisoner’s person that would be unlawful, if not justified to the court. Rather, the statute also provides a remedy when a petition alleges further restraints beyond the judgment of conviction *464 or other like deprivations of a prisoner’s legal rights of a kind that, if true, would require immediate judicial scrutiny. 2

I presume that the majority would agree that, whatever our standard of review has been under ORS 34.310, that standard ought to continue to be uniform and to coincide with the legislature’s intent as to the various classifications of the claims of illegal restraint brought under it. But that will not be the result under the majority’s decision. By applying only a “modicum of evidence” standard of review to the determination of this kind of case, the majority creates a piecemeal standard of review and opens the door to the Board’s use of evidence that lacks reliability and probative value evidence that a reasonable person would not rely on. Given the mandatory release on parole provisions of ORS 144.125(3), it is hard to imagine that the legislature contemplated that kind of result. The majority’s result also forecloses review for legal error of those nonconstitutional cases that the legislature intended to be otherwise cognizable under ORS 34.310. The “substantial evidence” standard offers none of these problems. If the question of the proper standard of review is not dictated by the Board’s own rules, then we should choose to employ a standard of “substantial evidence,” whether the Board uses that standard in its parole release decisions or not, to afford substantial justice to all the parties.

With these additional comments, I join in Judge Armstrong’s dissent.

ORS 144.050 provides:

“Subject to applicable laws, the State Board of Parole and Post-Prison Supervision may authorize any inmate, who is committed to the legal and physical custody of the Department of Corrections for an offense committed prior to November 1, 1989, to go upon parole subject to being arrested and *462 detained under written order of the board or as provided in ORS 144.350. The state board may establish rules applicable to parole.”

Penrod’s petition alleged that he had been unlawfully placed in segregation, denied reading material, denied medical care, and had been beaten and threatened by prison personnel. Brown’s petition alleged that prison personnel had confiscated a number of his books.