Hamel v. Johnson

ARMSTRONG, J.,

dissenting.

I dissent from the majority’s conclusion that we applied an improper standard of review in our prior opinion in this case, Hamel v. Johnson, 169 Or App 216 , 9 P3d 719 (2000) {Hamel II). In Hamel II, we conducted a review for substantial evidence to determine whether there was legally sufficient evidence to support the Parole Board’s finding under ORS 144.125(3) that plaintiff suffered from a severe emotional disturbance that warranted postponement of his *465 release from prison. Defendant seeks reconsideration of our decision, arguing that the review conducted by a habeas corpus court of a Board decision to postpone an inmate’s release is limited to a review to determine whether the decision is supported by any evidence. The majority mistakenly accepts the Board’s argument on that point.

The majority reaches its erroneous conclusion by attempting to distinguish between a review for legally sufficient evidence, which, it contends, is the proper standard of review, and a review for substantial evidence. What the majority fails to recognize is that the two standards of review are the same in this case.

Several statutes provide the analytical framework for this case. First, the habeas corpus statute provides that

“[e]very person imprisoned or otherwise restrained of liberty, within this state, except in the cases specified in ORS 34.330, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom.”

ORS 34.310. The habeas corpus statute thus establishes that an inmate’s entitlement to relief under it depends on the laws that govern the legality of his imprisonment.

The second statute that governs our analysis is ORS 144.125, which is the statute that governs the legality of plaintiffs imprisonment. 1 That statute permits the Board to postpone an inmate’s scheduled release on parole under specified circumstances. The Supreme Court construed that statute in Hamel v. Johnson, 330 Or 180 , 998 P2d 661 (2000) (Hamel I), and held that a postponement under it must be based on a valid finding that the inmate meets one of the *466 statute’s postponement criteria. Among the findings that meet those criteria is the finding that the Board made here: that the inmate suffers from a severe emotional disturbance that constitutes a danger to the health or safety of the community. ORS 144.125(3); see Hamel I, 330 Or at 187 . Thus, Hamel I establishes that the Board lacks the power to postpone an inmate’s release if it is unable to make the finding required by ORS 144.125.

The third and final statute that provides the framework for our analysis is ORS 144.050, which authorizes the Board to grant parole “[s]ubject to the applicable laws” and to “establish rules applicable to parole.”

As noted above, the Board entered an order that made the required finding under ORS 144.125(3) and postponed plaintiffs release on parole. The question on appeal, therefore, is whether we can uphold that finding under the applicable standard of review or whether the finding is defective and .plaintiffs confinement illegal. The lead opinion cites Meadows v. Schiedler, 143 Or App 213 , 220-21 & n 6, 924 P2d 314 (1996), for the proposition that we already have rejected review for substantial evidence as the applicable standard of review. 173 Or App at 453-54. The lead opinion is wrong. Neither Meadows nor any other case has determined that issue.

Meadows is a habeas corpus case in which the plaintiff challenged a Parole Board decision under ORS 144.125(3) to postpone his release on parole. Among other things, the plaintiff alleged that the Board had based its postponement decision on a version of ORS 144.125(3) that had been enacted after he had committed the crimes for which he had been convicted and that that version of the statute could not be applied to him without violating state and federal constitutional guarantees against the enactment of ex post facto laws. The trial court dismissed the habeas corpus petition sua sponte, and the plaintiff appealed.

On appeal, we held that a postponement decision under ORS 144.125(3) could be challenged through a writ of habeas corpus and that the Board violated the Oregon Constitution’s ex post facto clause if it applied the later-enacted version of ORS 144.125(3) to the plaintiff. We then addressed *467 an issue that we believed would arise on remand, which concerned the relief to be granted if the plaintiff proved that the Board had based its postponement decision on the later-enacted version of the statute. In his petition, the plaintiff had

“alleged that the ‘Board’s decision is not supported by substantial evidence. The evidence presented clearly supported release.’ ”

Meadows, 143 Or App at 220 . We interpreted that allegation to seek from the trial court a factual determination about whether the plaintiff should be released.

We gave the allegation that interpretation because of the hybrid nature of habeas corpus review of a Parole Board postponement decision. Normally, when a court determines that an administrative agency has based its decision on an incorrect understanding of the law, the court remands the decision to the agency to reconsider its decision, including its factual findings, in light of the correct law. Although the court’s role in a habeas corpus proceeding is not the same as its role in conducting a judicial review of an agency decision under the Oregon Administrative Procedures Act (APA), we treated the reconsideration principle applicable to judicial review under the APA as applicable to habeas corpus proceedings. Consequently, we held that the decision

“[wjhether the facts support a postponement under the former version of ORS 144.125(3) is a determination for the Board, not the habeas corpus court.”

Id. at 221 (footnote omitted). However, we viewed the plaintiffs allegation about substantial evidence as an allegation that asked the court to order the plaintiffs release without remanding the matter to the Board for its decision. Consequently, we viewed the allegation as one that asked the habeas corpus court to supplant the Board as the factfinder, because that would be the role that a court would play in a judicial review proceeding if it ordered an administrative agency to act without giving the agency the opportunity to reconsider its decision and to find the relevant facts in light of a corrected understanding of the applicable law.

*468 Frankly, it is impossible for me to conceive how Meadows can be understood to have done what the lead opinion claims that it did. The plaintiff had alleged in Meadows that the Board had not made a decision under the correct version of ORS 144.125(3). If the plaintiff proved that allegation on remand, it would follow that the Board had not made the finding that it had to make under the statute in order to postpone the plaintiffs release. Consequently, the effect of proving that allegation would be that there would be no Board order to review on any basis, whether for any evidence, substantial evidence, or any other evidentiary standard.

In that light, we interpreted the plaintiffs allegation that included a reference to substantial evidence as an allegation that “in essence” sought to require the court to perform the factfinding role assigned by the relevant statutes to the Board. In other words, we treated the allegation as one that did not seek a review for substantial evidence. 2 A review for substantial evidence is the review undertaken under appropriate circumstances to determine the legal sufficiency of evidence to support an administrative finding. Given the posture of the case on remand, no review of any kind could take place. The point of the Meadows discussion that the lead opinion quotes completely out of context was simply to make clear that the proper course for the trial court on remand was to remand the case to the Board for it to perform its factfind-ing role ¿/"the plaintiff proved that the Board had applied the wrong version of the statute. Meadows, 143 Or App at 220-21 . In that event, there would be no assurance that the Board would, or could, make the necessary finding. Only if it did and the plaintiff again sought habeas corpus review of that decision would the standard for legally sufficient evidence have to be determined. Had we actually addressed that issue *469 in Meadows , as the majority claims that we did, our statement would have been the baldest of dicta on a hypothetical issue that might never arise in the case. We did not do that.

In summary, we treated the plaintiffs allegations in Meadows about the adequacy of the evidence to support a postponement decision as seeking to impose a factfinding role on the court about whether, in light of the record before the Board, the plaintiff should be released. We rejected that role for the court. We did not decide, as the lead opinion contends, to reject substantial evidence as the standard for what constitutes evidence that is legally sufficient for the Board to act.

That we rejected the former and not the latter is confirmed by what we said in footnote 6 in Meadows . Footnote 6 appears at the end of the sentence in which we explained that it is the Board that must decide, as a factual matter, whether the facts in the record support postponement of the plaintiffs release under the correct version of ORS 144.125(3). We said in the footnote:

“In so stating, we do not mean to imply that habeas corpus is not available to challenge a release decision by the Board that rests on legally insufficient evidence. Rather, it is not the habeas corpus court’s function to engage in either an initial or subsequent weighing of evidence.”

Meadows, 143 Or App at 221 n 6 (emphasis in original). The footnote makes clear that the discussion in the text is intended to reject a factfinding role for the habeas corpus court about whether the Board record supports the plaintiffs release. We said that the habeas corpus court can be required to determine the legal sufficiency of the evidence in the record that supports a postponement decision, but it cannot weigh that evidence. Our case law makes it abundantly clear that a review for substantial evidence is a review for the legal sufficiency of the evidence to support an agency decision; it does not involve the weighing of evidence. 3 Our rejection in *470 footnote 6 of a role for the court in weighing the evidence is not a rejection of substantial evidence review. In fact, the whole point of footnote 6 was to preserve for another day the issue of what constitutes legally sufficient evidence in a habeas corpus review of a Board postponement decision, not, as the lead opinion sees it, to confirm that we had decided the issue.

If the lead opinion were correct that Meadows had rejected review for substantial evidence as the proper standard to use to determine the legal sufficiency of evidence to support a Board postponement decision under ORS 144.125(3) and that we should adhere to that decision, then I would agree that the standard for legally sufficient evidence for a Board decision under ORS 144.125(3) would be the one imposed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which is that there must be some evidence in the Board record to support its decision. That is the standard that a state agency must meet when making a decision such as the postponement decision at issue here if there is no more rigorous standard imposed on the agency by its rules, by the relevant state statutes, by the state constitution, or by federal statutes. 4 The other cases cited by the lead opinion all involved situations in which the Fourteenth Amendment was the sole source of any limitation on the relevant governmental action, so they add nothing to our case because, as I will explain, the Board’s postponement decision is governed by Board rules that *471 impose a more rigorous evidentiary standard than that required by the Fourteenth Amendment. That discussion will also establish that we should overrule Meadows if it established the principle that the lead opinion contends that it did.

It is axiomatic that administrative agencies must follow their own rules. See, e.g., Albertson’s, Inc. v. Bureau of Labor and Industries, 128 Or App 97, 101 , 874 P2d 1352 (1994). Here, the Board has adopted a rule that requires its findings to be based on substantial evidence in the whole record. That rule is OAR 255-030-0032(3), which provides that

“[r]eliable, probative and substantial evidence shall support Board orders. Substantial evidence is found when the record, viewed as a whole, would permit a reasonable person to make a particular finding.”

OAR 255-030-0032(3). 5 The majority disputes that the rule applies to Board decisions under ORS 144.125(3) to postpone the release of prisoners on parole. I will explain why the majority is wrong.

OAR 255-030-032(3) appears in Division 30 of the Board’s rules, which is a division entitled “Prison Term Hearing Procedure.” A “Prison Term Hearing” is defined in the Board’s rules as

“[t]he hearing at which the Board establishes an inmate’s prison term and initial parole release date.”

OAR 255-005-0005(42). A decision under ORS 144.125(3) to postpone an inmate’s release on parole beyond the inmate’s initial parole release date is not a decision that is made in a prison term hearing, so, at first blush, and according to the *472 majority, OAR 255-030-032(3) does not apply to the postponement decision at issue here. If that were true, then OAR 255-030-0032(3) would not establish an evidentiary standard that the Board had to meet to postpone plaintiffs release on parole. However, a review of the Board’s rules as a whole, particularly in light of their evolution, establishes that OAR 255-030-0032(3) does apply to a Board decision under ORS 144.125(3) to postpone an inmate’s release on parole.

Postponement decisions under ORS 144.125(3) are made in exit interviews, which generally are governed by Division 60 of the Board’s rules. OAR 255-060-0006(2) of that division provides that

“[t]he procedures for records, disclosure and notice outlined in Division 15 and 30 shall govern exit interviews.”

Consequently, although a postponement decision under ORS 144.125(3) is not made in a prison term hearing, which is governed by Division 30 of the Board’s rules, the rules in Division 30 that deal with records, disclosure and notice do apply to exit interviews, which are the proceedings by which the Board postpones an inmate’s release on parole under ORS 144.125(3).

OAR 255-030-0032 is a rule in Division 30 that applies to the record in hearings that are governed by it, which, by operation of OAR 255-060-0006(2), includes exit interviews. It is entitled “Evidence,” and it provides:

“(1) The presiding chairperson at a Board hearing shall explain the issues for decision, which, in the case of a prison term hearing, are those issues set forth in OAR 255-035-0013.

“(2) Evidence of a type that reasonably prudent persons would commonly rely upon in the conduct of their serious affairs shall be admissible in Board hearings, including:

“(a) The information set forth in OAR 255-030-0035;

“(b) Other relevant evidence concerning the inmate if reasonably available.

“(3) Reliable, probative and substantial evidence shall support Board orders. Substantial evidence is found when *473 the record, viewed as a whole, would permit a reasonable person to make a particular finding.

“(4) The Board may exclude evidence if it is:

“(a) Unduly repetitious;

“(b) Not of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs;

“(c) Provided by a person, other than a justice system official, without firsthand knowledge of the circumstances of the crime;

“(d) Provided by a person, other than a justice system official, without firsthand knowledge of the character of the inmate;

“(e) Addressing only guilt or innocence; or

“(f) Irrelevant or immaterial to the findings being made at that particular hearing.

“(5) The Board may receive evidence to which the inmate objects. If the presiding chairperson does not make rulings on its admissibility or exclusion during the hearing, the Board shall make findings on the record at the time a final order is issued.

“(6) Erroneous rulings on evidence shall not preclude Board action on the record unless shown to have substantially prejudiced the right of the inmate.”

Subsection (3) of that rule establishes the eviden-tiary standard that the record must meet to permit the Board to make a particular finding in a proceeding governed by the rule. A Board proceeding under ORS 144.125(3) to postpone an inmate’s release is such a proceeding, so subsection (3) applies to it.

A number of factors bolster that conclusion. First, subsection (1) of the rule requires the presiding officer at a Board hearing to “explain the issues for decision, which, in the case of a prison term hearing, are those issues set forth in OAR 255-035-0013.” OAR 255-030-0032(1). If OAR 255-030-0032 applied only to prison term hearings, it would serve no purpose to include a clause in subsection (1) of that rule to distinguish prison term hearings from other hearings. The clause necessarily establishes that the rule applies to prison *474 term hearings and to hearings other than prison term hearings.

Second, a review of the Board’s rules establishes that the proceedings to which OAR 255-030-0032 applies other than prison term hearings are personal review proceedings under Division 40 of the Board’s rules, proceedings under Division 50 to postpone parole for serious misconduct, and exit review proceedings under Division 60.1 can identify no other proceedings that could be governed by OAR 255-030-0032 other than the proceedings governed by those divisions and prison term hearings.

I base my conclusion that proceedings under Divisions 40, 50, and 60 are governed by OAR 255-030-0032 on cross-references in those divisions that make some of the provisions of Division 30 applicable to each of them. The phrasing of the cross-references differ somewhat, but the differences do not affect the applicability of OAR 255-030-0032 to proceedings governed by those divisions.

The Division 40 cross-reference rule provides:

“The notice, disclosure, and record making provisions of Division 30 shall apply to all hearings, and reviews granted under this Division.”

OAR 255-040-0035. The Division 50 cross-reference rule provides:

“When the Board conducts a parole postponement hearing, the following procedure shall apply:

“(a) The Board shall give the inmate notice of the hearing and its purpose; the provisions of Division 30 as to appearance, disclosure, and record shall apply except:

“(b) An inmate may not waive his/her right to appear;

“(c) An inmate may not relitigate facts which the institution hearings officer has found at the disciplinary hearing.”

OAR 255-050-0010(1). Finally, the Division 60 cross-reference rule provides:

“The procedures for records, disclosure and notice outlined in Division 15 and 30 shall govern exit interviews.”

*475 OAR 255-060-0006(2).

The Division 40 cross-reference rule makes the “record making provisions of Division 30” applicable to personal review proceedings. As noted above, OAR 255-030-0032 in Division 30 is entitled “Evidence,” which would appear to bear on record making in a Division 40 proceeding. In addition, subsection (1) of OAR 255-030-0032 requires the presiding officer to identify the issues to be decided in the proceeding, while subsections (2), (4), and (5) address the admissibility and admi ssion of evidence, subsection (3) identifies the evidentiary standard that must be met in the proceeding to permit the Board to act, and subsection (6) provides that erroneous evidentiary rulings “shall not preclude Board action on the record unless shown to have substantially prejudiced the rights of the inmate.” All of the identified subsections appear to relate to “record making,” so they too support the proposition that OAR 255-030-0032 as a whole applies to Division 40 proceedings.

The Division 50 cross-reference rule makes the “provisions of Division 30 as to * * * record” applicable to proceedings to postpone parole for serious misconduct. OAR 255-050-0010(1). Although “record” and “record making” are different terms, the above discussion of OAR 255-030-0032 is equally applicable to either term, which means that the rule also applies to Division 50 proceedings.

The Division 60 cross-reference rule makes the “procedures for records * * * outlined in Division 15 and Division 30” applicable to exit interviews, which include proceedings to postpone parole under ORS 144.125(3). OAR 255-060-0006(2). The term “records” is different from “record” and “record making,” but, here again, there is no reason to think that the difference in phrasing makes OAR 255-030-0032 any less applicable to exit interviews under Division 60 than it is to proceedings under Division 40 and 50.

A review of the evolution of the rules supports that conclusion in two, distinct ways. The Board adopted the basic rules that are at issue here in 1979. At that time, there were two ways that postponement of parole for serious misconduct or a present severe emotional condition could be presented to *476 the Board. One was through a recommendation by the Corrections Division to reset an inmate’s release date for serious misconduct. The Board could take such an action if, after a hearing, it found that the inmate had engaged in such conduct. See former OAR 254-150-010 (1979). Alternatively, if it found in the course of that proceeding that the inmate suffered from a present severe emotional disturbance, it could defer the inmate’s release to a specified future date. Id.

The second way that the issue could arise was through what was then termed a parole release interview, which the Board conducted for each inmate before the inmate’s release. 6 If such an interview indicated that the inmate had a present severe emotional disturbance or had engaged in serious institutional misconduct, the Board could conduct a hearing to determine whether to defer the inmate’s release on parole. Former OAR 254-160-010(1).

Because the postponement issues could arise in two different ways, they were governed by two different divisions of the Board’s rules, the predecessors to current Divisions 50 and 60. As now, the predecessors used cross-references to the predecessor to Division 30 to identify the rules by which the postponement hearings were to be conducted. See former OAR 254-150-010(1) (1979); former OAR 254-160-010(1) (1979). Significantly, however, the cross-references for the two divisions were phrased differently. The cross-reference rule for the predecessor to Division 50 was phrased the same way as is the current version of that rule except for the use of a different number to identify the predecessor to Division 30: “[T]he provisions of Division [30] as to appearance, disclosure and record shall apply.” Former OAR 254-150-010(l)(a) (1979). In contrast, the cross-reference rule for the predecessor to Division 60 provided that, for postponement hearings under that division, “[t]he procedure for hearings in Division [30] shall apply.” Former OAR 254-160-010(1) (1979).

There is no reason to think that hearings conducted by the Board to resolve identical issues would be meaningfully different depending on whether the Corrections Division or the Board began the process that led to them. Consequently, there is no reason to think that those involved in *477 drafting the rules intended to make a meaningful distinction when they used different phrases to identify the rules in Division 30 that were applicable to Division 50 and 60 parole postponement hearings. The rules have since been amended so that parole postponement for serious misconduct is now governed exclusively by Division 50 and postponement due to a present severe emotional disturbance is governed by Division 60, and the cross-reference rule for Division 60 has also been revised. Nevertheless, the way in which the rules initially combined the treatment of the two types of postponement bears on whether the differences in phrasing in the former and current cross-reference rules were intended to produce significant differences in the fundamental way in which the hearings are conducted. 7

I turn to the second way in which the evolution of the rules bears on their interpretation. All of the cross-reference rules other than the one in Division 60 were adopted at the same time. As noted above, the original cross-reference rule for Division 60 made the “procedure for hearings in Division [30]” applicable to parole postponement hearings. Former *478 OAR 254-160-010(1) (1979). That phrasing appears to be broader in its reach than the phrasing used in the cross-reference rules for the other two divisions, in that it could make all of the hearing rules in Division 30 applicable to parole postponement proceedings under Division 60, rather than just the provisions governing record, disclosure, and appearance or notice, which apply to Division 40 and 50 proceedings under the applicable cross-reference rules. Compare id. with OAR 255-040-0035 and OAR 255-050-0010(1).

The Board subsequently adopted the current Division 60 cross-reference rule, which now parallels the phrasing used in the Division 40 and 50 cross-reference rules except for the addition of the reference to Division 15 in the Division 60 rule. OAR 255-060-0006(2). Whatever the purpose for the change, there is no reason to think that it was intended to make the Division 30 rules less applicable to Division 60 proceedings than they are to Division 40 and 50 proceedings.

On that point, the addition of the cross-reference to Division 15 is interesting. The addition of that cross-reference appears to serve no purpose, because Division 15 consists of a general body of rules on Board records and their disclosure that applies to everything that the Board does. It is equivalent to a public record law for the Board. See OAR ch 255, div 15. Consequently, its provisions would bear on access to Board records for use in a Division 60 proceeding and on the subsequent disclosure of the records of such a proceeding without regard to whether Division 60 contained a cross-reference to it. Of course, that means that Division 40 and 50 proceedings are equally affected by Division 15 even though they have no cross-reference to it.

However, the drafter’s decision to include a cross-reference to Division 15 in Division 60 may explain why the Division 60 cross-reference rule differs as it does from its Division 40 and 50 counterparts. Division 15 principally concerns Board records, that is, documents, while Division 30 concerns, among other things, what goes into the hearing record in the Board proceedings that are governed by it. “Record making” and “record,” which are the terms used respectively in the Division 40 and 50 cross-reference rules, are singular *479 concepts. Any equivalent reference to the records covered by Division 15 would have to be plural. Although the solution is awkward, the drafter of the Division 60 rule appears to have used the plural “records” to cover both kinds of records, that is, the Board records that are subject to Division 15 and the hearing records that are subject to Division 30.

Similarly, the reference to the singular “procedure” for hearings in the prior version of the Division 60 cross-reference rule had to become, as it now is, a plural “procedures” for records, disclosure and notice, because rules on records, disclosure, and notice differ between Divisions 15 and 30, so a singular reference to “procedure” would not work. Compare former OAR 254-160-010(1) (1979) with OAR 255-060-0006(2). Finally, while adopting the basic tripartite structure of the Division 40 and 50 cross-reference rules, with their references to record, disclosure, and appearance or notice, the drafter of the revised Division 60 rule apparently chose to keep and make plural the term “procedures” that was used in the prior version of the Division 60 rule rather than replace it with the comparable term used in the Division 40 and 50 rules, “provisions.” Compare OAR 255-060-0006(2) with former OAR 254-160-010(1) (1979) and OAR 255-040-0035 and OAR 255-050-0010(1). Again, nothing about those drafting decisions suggests an intention to create a meaningful difference among the divisions regarding the applicability of a rule as fundamental as OAR 255-030-0032 is to the conduct of hearings conducted under them.

In summary, the current version of the Division 60 cross-reference rule is an inelegant pastiche of comparable preexisting rules with the addition of an unnecessary cross-reference to Division 15. There simply is no reason to believe that the rule is intended to make the provisions of Division 30 any less applicable to Division 60 proceedings than they are to Division 40 and 50 proceedings. That is particularly true in light of the nature of the proceedings covered by the different provisions. Division 40 proceedings deal with the reduction of prison terms; Division 50 proceedings deal with the postponement of parole for serious misconduct; and Division 60 proceedings deal with release on parole and postponement of parole under ORS 144.125(3) due to “a present severe emotional disturbance” that constitutes “a danger to the health or *480 safety of the community,” OAR 255-060-0012(3). All of the proceedings present a common, overarching issue: the timing of an inmate’s release on parole. 8 Further, they all involve an examination of the inmate’s conduct or condition to determine that issue. It would be anomalous for fundamentally different procedures to be used to conduct any one of the three types of proceedings. The provisions of OAR 255-030-0032 on the admission and use of evidence are basic to such proceedings, so it would be expected that that rule would apply to each type of proceeding if it applied to any of them. Even if there were some doubt about the application of the rule to Division 60 proceedings, which I dispute, the equivalent nature of Division 40, 50, and 60 proceedings would dispel it, because there is no doubt that the rule applies to Division 40 and 50 proceedings. It follows, therefore, that OAR 255-030-0032(3) applied to the Board’s decision to postpone plaintiffs release on parole and that it required there to be substantial evidence in the whole record sufficient to permit a reasonable factfinder to make the finding under ORS 144.125(3) that the Board made. 9

*481 There is no dispute that the habeas corpus statute requires the trial court to inquire into the lawfulness of plaintiffs continued incarceration. Hamel I makes that clear, as do ORS 34.580 and ORS 34.590. 10 In particular, Hamel I established that plaintiff is entitled to be released on parole if the record of plaintiffs 1997 exit interview did not provide a lawful basis for the Board to make the finding that it had to make under ORS 144.125(3) to postpone plaintiffs release. Hamel I, 330 Or at 187-88 . That means, of course, that the required inquiry into the lawfulness of plaintiffs continued incarceration extends beyond the existence of the postponement order to an examination of whether the Board acted lawfully in entering it.

To perform that task, the habeas corpus court must determine the legal constraints that apply to the Board’s postponement decision and whether the Board has complied with them. Defendant and the majority agree that that task at least requires us to determine if there is some evidence in the record to support the finding that the Board made under ORS 144.125(3) about the existence of a present severe emotional disturbance. They also seem to agree that the reason that the court is required to do that is because the Due Process Clause of the Fourteenth Amendment 11 imposes a substantive limit on the Board’s authority to act. It requires that there be some evidence in the record to support the required finding under ORS 144.125(3) in order to permit the Board to make it. See 173 Or App at 452, 454, 456. Consequently, in *482 order to determine whether the Board acted lawfully by complying with the Fourteenth Amendment, the court must review the record to determine if it contains the quantum of evidence required by the Fourteenth Amendment.

Although defendant and the majority fail to recognize it, the same reasoning that applies to the Fourteenth Amendment applies to OAR 255-030-0032(3). The rule requires there to be substantial evidence in the whole record to support a finding in order for the Board to make it. That requirement is simply a higher legal or evidentiary requirement than that imposed by the Fourteenth Amendment, which requires only that there be some evidence to support the Board’s finding. As noted earlier, however, state agencies such as the Board are required to follow their own rules. Consequently, if the record does not contain evidence sufficient to meet the higher evidentiary standard set by OAR 255-030-0032(3), then the Board has acted unlawfully.

The only difference between the analysis that I have just described and the one that defendant and the majority concede is appropriate is the source of the applicable legal requirement. But both the Fourteenth Amendment and OAR 255-030-0032(3) apply to and constrain the Board’s authority to act. Further, there is no dispute that a state agency such as the Board is free to impose greater limits on its authority to act than are imposed on it by the federal constitution, unless the statutes under which it operates preclude it from doing so, and nothing suggests that the Board violated any statute by adopting OAR 255-030-0032(3) to limit its own authority to make the finding required by ORS 144.125(3).

Consequently, for the Board lawfully to postpone plaintiffs release on parole, the evidentiary standards imposed by the Fourteenth Amendment and by OAR 255-030-0032(3) must be met. Of course, the Fourteenth Amendment standard that requires that there be some evidence in the record to support the required finding will be met if there is substantial evidence in the record to support it, so, for purposes of habeas corpus, the issue reduces to whether the standard imposed by OAR 255-030-0032(3) has been met. That means that the habeas corpus court must review the *483 record for substantial evidence, as we correctly held in our last opinion in this case. 12

I recognize, as does the majority, that the legislature ehminated APA review by us of parole release decisions by the Board, which means that we no longer conduct direct judicial review of those decisions. However, whether the legislature recognized it or not, the effect of the habeas corpus statute, when coupled with the Board’s rules on postponement decisions, is to shift review of Board decisions for substantial evidence from us under the APA to the trial courts under habeas corpus.

The analysis presented above establishes the truth of that conclusion, but a review of the APA itself provides support for the conclusion as well. There are two sources in the APA for the requirement that administrative decisions in contested cases be supported by substantial evidence. 13 One is the requirement in ORS 183.450(5), which provides that

“[n]o sanction shall be imposed or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party, and as supported by, and in accordance with, reliable, probative and substantial evidence.”

*484 The other is the requirement in ORS 183.482(8)(c), which provides that a court on judicial review of an agency’s contested case order

“shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the whole record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”

If the legislature repealed ORS 183.450(5), agencies that formerly were subject to that provision would continue to be subject to the legal requirement embodied in it, notwithstanding the repeal, if the agencies’ contested case orders were still subject to judicial review by us under the APA. That is because the review function assigned to us by ORS 183.482(8)(e) would require us to continue to test the agencies’ orders for substantial evidence, which would require them, in turn, to continue to meet that standard themselves, notwithstanding the repeal of ORS 183.450(5), the statute that directly imposes that requirement on them.

The converse would also be true if the legislature kept ORS 183.450(5) but amended ORS 183.482(8)(c) to provide that we are to review agency contested case orders to determine if they are lawful. Under the amended statute, we would have to review agency orders for substantial evidence, because ORS 183.450(5) requires there to be substantial evidence in the whole record in support of a finding for the agency to make the finding, and an agency would violate that statute, and thereby act unlawfully, if it made a finding in the absence of the required evidence.

Of course, the APA does not direct us to review contested case orders to determine if agencies acted lawfully. Instead, the judicial review statute, ORS 183.482, distinguishes among four different types of legal requirements— procedural requirements, the substantive requirements of correctly interpreted law, the limitations imposed on the exercise of agency discretion, and the existence of substantial evidence to support agency findings — and specifies different *485 treatment for each type. See ORS 183.482(7), (8). Nevertheless, my hypothetical exercise is instructive, because it illustrates that court review of agency findings for substantial evidence does not depend on a statute that explicitly imposes that requirement on a court, any more than an agency requirement of substantial evidence to support its findings depends on a statute or rule that directly imposes that requirement on the agency. Both courts and agencies may be required to review records for substantial evidence as a consequence of the substantive law applicable to each, which is exactly what the Board rule on substantial evidence in OAR 255-030-0032(3) does to a habeas corpus court that is required to determine if the Board acted lawfully by making the finding required by ORS 144.125(3) to support its decision to postpone an inmate’s release on parole. 14

As the foregoing discussion should make clear, Meadows did not reject substantial evidence as the standard for what constitutes legally sufficient evidence to support a Board decision under ORS 144.125(3) to postpone an inmate’s release on parole, and, if it did, we clearly erred in doing that and should correct our error by overruling Meadows . The lead opinion errs in concluding otherwise. The consequence of that error is that plaintiff will have to return to the Supreme Court to correct our latest error in order *486 finally to obtain the release from prison to which we already have determined he is entitled under the correct legal standard. It should not be so hard for us to get the statutory scheme right. 15

Edmonds, J., joins in this dissent.

For purposes of this case, the relevant version of ORS 144.125 is the one that existed in 1987. It provided, in relevant part:

“(2) The board shall postpone a prisoner’s scheduled release date if it finds, after a hearing, that the prisoner engaged in serious misconduct during confinement. * * *

“(3) If a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner, the board may order the postponement of the scheduled parole release until a specified future date.”

All references to that statute in this opinion are to the 1987 version of it.

In another context, the allegation in the plaintiffs petition could be understood to seek review of the Board’s decision for substantial evidence. However, in the context of Meadows , it could not have that effect, because there was no Board decision to review for substantial evidence. Consequently, we interpreted the allegation to seek something other than a review of the Board’s decision for substantial evidence. Rather, we interpreted it to require the habeas corpus court to supplant the Board as a factfinder, which is the role that we rejected for that court in Meadows .

See, e.g., Tigard Sand and Gravel, Inc. v. Clackamas County, 151 Or App 16, 18 , 949 P2d 1225 (1997), rev den 327 Or 83 (1998) (noting that “LUBA does not review local findings de novo, nor is it permitted to weigh the evidence independently in conducting its substantial evidence review”) (citations and internal quotation marks omitted); Berwick v. AFSD, 74 Or App 460, 464 , 703 P2d 994 , rev den 300 Or 332 (1985) (“Although we review agency factual determinations only to decide whether there is substantial evidence to support them, the agency in *470 making its decision weighs all the evidence in the record * * *.”) (citations omitted); Gresham Tchrs. v. Gresham Gr. Sch., 52 Or App 881, 893 , 630 P2d 1304 (1981) (“Our function on review is not to weigh the evidence but only to determine whether the agency’s conclusion is supported by substantial evidence.”) (citations omitted); Dach v. Employment Division, 32 Or App 433, 436 , 574 P2d 684 (1978) (“We only review for errors of law and substantial evidence. In that capacity it is sufficient to say that we do not weigh the evidence.”); Christian Retreat Center v. Comm. for Wash. Co., 28 Or App 673, 679 , 560 P2d 1100 , rev den 278 Or 553 (1977) (“Where * * * it is alleged that the findings of the lower tribunal are not supported by substantial evidence, the inquiry * * * is the limited one of whether the record contains evidence which a reasonable mind might accept as adequate to support the findings challenged. Where the record includes conflicting believable evidence, that conflict is to be resolved not by this court but by the lower tribunal!,] which may choose to weigh the evidence as it sees fit.”) (citations omitted).

In other words, the Fourteenth Amendment establishes the minimum evi-dentiary standard that state agencies must meet to take the kind of action that is at issue in this case.

The rule is equivalent to ORS 183.450(5) of the APA, which provides:

“No sanction shall be imposed or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party, and as supported by, and in accordance with, reliable, probative and substantial evidence.”

The Board is exempt from most provisions of the APA. See ORS 183.315. The effect of the rule is to require the Board to meet the evidentiary standard embodied in the rule notwithstanding the exemption that ORS 183.315 gives the Board from the APA version of that standard. ORS 144.050 gave the Board the authority to adopt the rule. For convenience, unless otherwise noted, I quote the current version of the administrative rules, except when there is a significant difference between the 1997 version, which was in effect when the Board issued its decision to postpone plaintiffs release, and the current version.

Parole release interviews are now called exit interviews.

It should be noted that the prior Division 60 rules included a rule that made the serious misconduct rules in Division 50 applicable to serious misconduct decisions under Division 60. Former OAR 254-160-010(3) (1979). The fortuitous effect of that cross-reference is that serious misconduct proceedings under Division 60 would be conducted in accordance with the provisions of both Division 50 and Division 60, so the difference in the phrasing of the cross-reference rules regarding Division 30 in those divisions would not matter in such proceedings. The effect of the cross-reference in Division 60 to Division 50 is properly characterized as fortuitous for several reasons.

First, if the effect were intended, there would be a comparable cross-reference in Division 50 so that the Division 60 formulation of the cross-reference to Division 30 would apply to Division 50 as well. Second, the same principle would be extended to postponement decisions under ORS 144.125(3) for a present severe emotional disturbance, but it is not. Finally, the phrasing of the prior Division 60 cross-reference to Division 50 indicates that it was intended to make the substantive provisions of Division 50 on serious misconduct applicable to Division 60 decisions on that issue. There are a number of those provisions in Division 50, so a cross-reference in Division 60 to those provisions was necessary to make them applicable. Otherwise, they would have had to have been restated in their entirety in Division 60. The cross-reference forestalled that. However, the inclusion of the cross-reference to Division 50 in Division 60 had the effect of incorporating the cross-reference rule in Division 50 to the applicable provisions of Division 30. Nothing suggests that the drafters gave any thought to the presence of that double cross-reference. In summary, the fortuitous effect of the cross-reference in Division 60 to the serious misconduct provisions in Division 50 does not undercut in any way the analysis presented in the text above.

Of course, that is the same issue presented by prison term hearings, see OAR 255-005-0005(42), which are also governed by the Board’s Division 30 rules.

The rules are not a model of draftsmanship. Nevertheless, their structure is fairly clear. The Board has used one division, Division 30, to state the generally applicable rules for the conduct of Board hearings and then has used cross-references to incorporate those rules into the rules for the other divisions. It did that to avoid the need to repeat the generally applicable hearing rules in all of the other divisions under which comparable hearings are held.

Division 50 proceedings are proceedings to postpone release on parole for serious misconduct. Division 60 proceedings include proceedings to postpone parole because of the presence of a severe emotional disturbance. There is no conceivable reason why the Board would establish a basic rule on evidence applicable to the former but not the latter. The lead opinion believes that it did that, however, apparently because the cross-reference rule in Division 50 uses the singular term “record” to incorporate the relevant Division 30 rules and the Division 60 rule uses the term “records.” The difference in those terms does not bear the weight needed to justify an interpretation that is so at variance with any sensible understanding of the Board’s rules in light of their structure and purpose. I hope that my very detailed discussion of the rules in my dissent has not obscured that basic point.

In summary, I cannot believe that a rule-bound agency such as the Board would not have a rule that governs the admissibility and admission of evidence in its Division 60 hearings but would leave it to the Fourteenth Amendment to supply the relevant guidance on that issue, particularly when the procedures required by the Due Process Clause of the Fourteenth Amendment are as imprecise and uncertain as they are.

ORS 34.580 provides:

“The court or judge before whom the party is brought on the writ shall, immediately after the return thereof, proceed to examine into the facts contained in the return, and into the cause of the imprisonment or restraint of such party.

ORS 34.590 provides, in turn:

“If no legal cause is shown for the imprisonment or restraint, or for the continuation thereof, the court or judge shall discharge such party from the custody or restraint under which the person is held.”

The Fourteenth Amendment provides, in relevant part:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The foregoing analysis demonstrates why courts are not free to choose the review standards to apply under the habeas corpus statute to determine the legality of a challenged governmental decision to keep a person such as plaintiff in custody. The standards that courts apply are determined by the substantive law that constrains the authority of the relevant agency to act. When we have identified the relevant law that imposes those limits, that law will identify the standards that we must apply to determine the lawfulness of the agency’s actions, absent some limit imposed by the habeas corpus statutes themselves on our review authority. Cf., e.g., ORS 34.600(3) (requires remand to custody of any person in-custody for contempt without regard to the legality of the finding of contempt if the committing authority had jurisdiction to issue contempt order).

The Parole Board is exempt from many of the provisions of the APA, including most of the provisions that directly govern the conduct of contested cases by agencies, see ORS 183.315(1), (5)(a), but the discussion in the text nevertheless provides useful insight into the relationship between two distinct statutory sources for the requirement that most agency contested case decisions be supported by substantial evidence: one that imposes that requirement directly on the agencies and one that does so as a consequence of judicial review. The legislature could change one or the other without necessarily eliminating or altering the substantive requirement.

The majority refers repeatedly in its opinion to the fact that the Board decision whether to postpone an inmate’s release on parole is a discretionary decision under ORS 144.125(3). That is true, but it has no bearing on the scope of our review. The Board exercises its discretion after it has made the required finding under the statute. See ORS 144.125(3). We review that finding for whether it is lawful in light of the applicable law, which, as explained at length above, includes OAR 255-030-0032(3). Although in many settings the grant of authority to make discretionary decisions may imply a deferential standard of review, that general principle has no bearing here.

The situation in this case is similar to that of an agency such as the OLCC that is governed by the APA and has discretion whether to revoke a liquor license or to take similar action. If the revocation decision depends on the existence of predicate facts, the agency’s findings on those facts will be reviewed for substantial evidence while its discretionary decision to revoke will be reviewed under a different legal standard. Compare ORS 183.482(8)(c) with ORS 183.482(8)(b). In other words, there are not generic principles that apply to court review of discretionary agency decisions that operate irrespective of the rules, statutes, and constitutional provisions that bear on the work of the affected agency.

To avoid any misunderstanding, it is important to note that the majority has determined the standard of review that applies to habeas corpus review of parole postponement decisions under ORS 144.125(3), including the applicability of OAR 255-030-0032(3) to those decisions, and has applied that standard to this case. See 173 Or App at 453-58; 173 Or App at 459 (Brewer, J., concurring). Consequently, our decision in this case will control our review of all future habeas corpus cases involving parole postponement decisions under ORS 144.125(3). It also is important to note that the trial court dismissed the writ is this case on defendant’s motion under ORS 34.680(1), based on the evidence submitted by defendant in support of his motion. Such a dismissal is equivalent to a dismissal based on the grant of a motion for summary judgment. See, e.g., McClintock v. Schiedler, 123 Or App 334 , 336 & n 2, 859 P2d 580 (1993). Consequently, any deficiency in the habeas corpus record on which to determine whether defendant was entitled to judgment in his favor under the applicable standard of review presents a problem for defendant, not plaintiff. Furthermore, defendant has not argued in his motion for reconsideration that there is any deficiency in the record that prevented us from conducting a review of the record for substantial evidence. His sole argument on the merits was that the standard for legally sufficient evidence was the existence of some evidence in the record to support the Board’s findings, rather than the substantial evidence standard that we had applied.