Brown v. Kotek

260 May 8, 2024 No. 13

IN THE SUPREME COURT OF THE

STATE OF OREGON

TERRI LEE BROWN,

Plaintiff,

v.

TINA KOTEK,

Governor of the State of Oregon;

Nichole Brown,

Superintendent,

Coffee Creek Correctional Facility; and

Tasha Petersen,

Administrator of Oregon Department of Corrections

Offender Information Sentence Computation Unit,

Defendants.

(SC S071034)

En Banc

Original proceeding in habeas corpus.

Argued and submitted May 2, 2024.

Steven T. Wax, Oregon Justice Resource Center,

Portland, argued the cause for plaintiff. Julia Yoshimoto,

Oregon Justice Resource Center, Portland, filed the petition,

the memorandum in support of the petition, and the reply

for plaintiff. Also on those filings was Malori Maloney.

Kirsten Naito, Assistant Attorney General, Salem,

argued the cause for defendants. Paul L. Smith, Deputy

Solicitor General, Salem, filed the memorandum in opposi-

tion. Also on the memorandum were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

GARRETT, J.

It is hereby ordered that plaintiff immediately be dis-

charged from her illegal imprisonment. Pursuant to ORAP

1.20(5) and notwithstanding ORAP 9.25 and ORAP 14.05

(3)(b), the State Court Administrator shall issue the appel-

late judgment immediately.

Cite as 372 Or 260 (2024) 261

262 Brown v. Kotek

GARRETT, J.

Plaintiff has petitioned for a writ of habeas corpus,

requesting that this court exercise its original jurisdiction

and order her immediate release from prison. Or Const,

Art VII (Amended), § 2 (“[T]he supreme court may, in its own

discretion, take original jurisdiction in * * * habeas corpus

proceedings.”).1 Plaintiff is incarcerated as the result of an

order of Governor Tina Kotek that revoked an earlier condi-

tional commutation of one of plaintiff’s sentences.2 Plaintiff

had received that earlier commutation in December 2020

from then-Governor Kate Brown and finished serving all

of her sentences in February 2023. Governor Kotek’s order

of revocation issued in December 2023. For the reasons

explained in this opinion, we conclude that, because plaintiff

had finished serving all of her sentences when the Governor

revoked the conditional commutation, the Governor lacked

authority, under the terms of the commutation, to issue the

revocation. We also reject the state’s argument that plaintiff

waived her right to challenge her present imprisonment.

Plaintiff’s imprisonment is unlawful. Accordingly,

we order that she immediately be discharged from custody.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are procedural and uncontested.3

Plaintiff pleaded guilty to two counts of mail theft or receipt

of stolen mail. ORS 164.162. On Count 1, she was sentenced

to 30 months of incarceration and 24 months of post-prison

supervision (PPS). On Count 2, she was sentenced to 30

months of incarceration, consecutive to Count 1, and no

1

See also ORS 34.310 (providing that every person who is “imprisoned or

otherwise restrained of liberty,” with exceptions, “may prosecute a writ of habeas

corpus to inquire into the cause of such imprisonment or restraint, and if illegal,

to be delivered therefrom”).

2

Defendants are Governor Kotek, the Superintendent of Coffee Creek

Correctional Facility (where plaintiff is currently in custody), and the

Administrator of the Oregon Department of Corrections Offender Information

Sentence Computation Unit. Throughout this opinion, individual defendants are

referred to by name, and defendants collectively are referred to as “the state.”

3

Throughout this opinion, we refer to various dates and time periods regard-

ing plaintiff’s convictions and sentences. Those dates and time periods were

likely determined based on a variety of considerations. In all events, because

those dates and periods are undisputed, we need not—and do not—explain how

they were determined.

Cite as 372 Or 260 (2024) 263

PPS. As of December 2020, plaintiff’s term of incarcera-

tion was set to be completed in August 2021. That is, she

had approximately eight months of incarceration remaining

before being released to serve 24 months of PPS.

In December 2020, Governor Brown issued com-

mutations of sentences in connection with the COVID-19

pandemic. In plaintiff’s case, Governor Brown ordered a

“Conditional and Revocable Commutation of Sentence.” The

commutation order stated that, as to Count 2, plaintiff was

“scheduled to complete her term of incarceration on August

22, 2021.” The Governor then commuted the remaining term

of incarceration “from incarceration to post-prison supervi-

sion.” The commutation was subject to a variety of condi-

tions, including that (1) “[f]rom the effective date of [the]

order through the end of her [PPS] calculated to August 22,

2021, [plaintiff] shall not violate any state or federal law”; (2)

the commutation order “[did] not relieve [plaintiff] of [PPS]”;

(3) plaintiff shall “agree to, and abide by, the terms speci-

fied in the Agreement Accepting Conditional and Revocable

Commutation” (hereinafter, the acceptance agreement);

and (4) if the Governor, in her judgment, should determine

that plaintiff “has violated any of the conditions of this

conditional and revocable commutation,” or that plaintiff’s

“continued release in the community no longer serves the

interests of the State of Oregon,” the “commutation may be

revoked, at which time [plaintiff] shall be returned to prison

to serve out her sentence that was remaining at the time

this commutation was granted according to the terms of the

Judgment of Conviction.”

The acceptance agreement stated that “the Governor

[was] willing to grant a commutation to [plaintiff] only

as provided in this agreement[.]” Among other things, the

agreement provided that (1) “[f]rom the effective date of the

[commutation order] through August 22, 2021, [plaintiff]

shall not violate any state or federal law”; and (2) plain-

tiff “shall abide by the terms and conditions of any post-

prison supervision that is imposed in connection with the

conditional and revocable commutation and her Judgment

of Conviction.” The agreement included a waiver provi-

sion, stating that plaintiff waived any legal challenges to

264 Brown v. Kotek

future revocation of the commutation and to being returned

to prison, including through a petition for a writ of habeas

corpus:

“If the Governor of the State of Oregon should determine

in his or her sole judgment that [plaintiff] has violated any

of the conditions of this conditional and revocable commu-

tation, the Governor may revoke such commutation and

require that [plaintiff] return to prison to serve out her

sentence that was remaining at the time her commutation

was granted according to the terms of the Judgment of

Conviction. [Plaintiff] hereby waives any potential objection

or challenge to having the commutation revoked and being

returned to prison under such a determination, including an

application for a writ of habeas corpus.”

(Emphasis added.) Plaintiff signed the acceptance agree-

ment, which included an acknowledgement that she had

“carefully reviewed” both the agreement and the commuta-

tion order and that she “hereby agree[d] to its terms.”

The Governor’s conditional commutation became

effective on December 23, 2020. Plaintiff was released from

prison and placed under the authority of the Board of Parole

and Post-Prison Supervision (BOPPS) to serve her PPS.

In May 2021—approximately four months after her

release from prison—plaintiff pleaded no contest to violat-

ing a general condition of her PPS (i.e., that she “[o]bey all

laws, municipal, county, state, and federal”). A hearings

officer found her in violation of her PPS, and a 30-day jail

sanction was imposed. The parties do not dispute that plain-

tiff’s conduct constituted a violation of the conditions of her

commutation. Other than the imposition of the sanction, we

are unaware of any other actions being taken at that point.

Almost two years later, in February 2023, BOPPS

issued a “Certificate of Supervision Expiration,” stating that

plaintiff had “completed the period of post-prison supervision

imposed, and * * * is expired from supervision.” In other words,

plaintiff had fulfilled her PPS obligations and was no longer

subject to any sentence. The state does not dispute that point.

In February 2024, approximately one year after

BOPPS issued its certificate of supervision expiration,

Cite as 372 Or 260 (2024) 265

plaintiff was arrested and sent to Coffee Creek Correctional

Facility. According to plaintiff, several days after her arrest,

she learned that her commutation had been revoked. The

record reflects that Governor Kotek had issued an order in

December 2023, stating that she had “determined in [her]

sole judgment that [plaintiff had] violated conditions of [the]

Conditional and Revocable Commutation of Sentence.” A

warrant was issued for plaintiff’s arrest, leading to her

present imprisonment.

Thereafter, plaintiff filed a petition for a writ of

habeas corpus in this court, contending that she is unlaw-

fully incarcerated. Her petition was accompanied by a sup-

porting memorandum in which she argues that Governor

Kotek’s revocation of her earlier conditional commutation

violates a variety of state and federal constitutional princi-

ples, including that the Governor lacks authority to revoke a

commutation after the expiration of a sentence. In response

to our order requiring the state to show cause why a writ of

habeas corpus should not issue, the state filed memoranda

contending that (1) the Governor had authority to revoke

plaintiff’s commutation after her sentence had expired;

(2) plaintiff, in accepting Governor Brown’s conditional

commutation, had waived her right to seek habeas relief or

otherwise challenge the revocation; and (3) plaintiff’s con-

stitutional challenges are meritless. Plaintiff counters that

the purported waiver in the acceptance agreement that she

signed is invalid or otherwise unenforceable.

After considering those filings, the court allowed

plaintiff’s petition and issued a writ of habeas corpus, and

then heard oral argument on May 2. Having now considered

the parties’ filings and their oral arguments, we conclude

that, when the Governor revoked plaintiff’s conditional com-

mutation, she lacked the authority to do so under the terms

of the commutation.

ANALYSIS

The Governor has the constitutional authority

to grant clemency, including commutations. Specifically,

Article V, section 14, of the Oregon Constitution provides, in

part:

266 Brown v. Kotek

“[The Governor] shall have power to grant reprieves, com-

mutations, and pardons, after conviction, for all offences

[sic] except treason, subject to such regulations as may be

provided by law. Upon conviction for treason [the Governor]

shall have power to suspend the execution of the sentence

until the case shall be reported to the Legislative Assembly,

at its next meeting, when the Legislative Assembly shall

either grant a pardon, commute the sentence, direct the

execution of the sentence, or grant a farther [sic] reprieve.”

The Governor is the “sole repository” of this consti-

tutional authority. Eacret et ux v. Holmes, 215 Or 121, 126,

333 P2d 741 (1958). In exercising her authority, however, “the

Governor is responsible for determining the constitutional-

ity of [her] actions in the first instance, and, to the extent

that this court may review those actions, the court does

so with that consideration in mind.” Haugen v. Kitzhaber,

353 Or 715, 720, 306 P3d 592 (2013), cert den, 571 US 1167

(2014) (citing Lipscomb v. State Bd. of Higher Ed., 305 Or

472, 478-79, 753 P2d 939 (1988)); see Lipscomb, 305 Or at

478-79 (“Governors, legislators, and other public officials are

responsible in the first instance for determining their con-

stitutional duties[.]”). However, as we explained in Haugen,

that principle “does not exempt the Governor’s actions from

judicial review.” 353 Or at 720. In so explaining, we relied

on Lipscomb, in which the court had declined to adopt an

argument that the court should defer to a Governor’s under-

standing of her constitutional powers if arguably correct. Id.

Thus, although this court does not have a role in reviewing a

governor’s exercise of discretion either to grant or to revoke

a conditional commutation, we can review whether the revo-

cation of plaintiff’s commutation exceeded the Governor’s

authority under these circumstances—when plaintiff was

no longer subject to any sentence at all. For reasons that

we will explain, even assuming (without deciding) that the

state and federal constitutions permit a Governor to revoke

a commutation after a commutee’s sentence has expired,

we conclude that the terms of the conditional commutation

in this case—which represents an agreement between the

Governor and plaintiff—preclude that result.

The Governor’s plenary power includes the power

to grant unconditional forms of clemency that require no

Cite as 372 Or 260 (2024) 267

assent by the commutee. Haugen, 353 Or at 739, 743 (con-

cluding that an unconditional reprieve was “valid and

effective, regardless of [the recipient’s] acceptance of that

reprieve”). Here, however, Governor Brown exercised her

plenary power through the issuance of a conditional com-

mutation order. In exchange for plaintiff having her remain-

ing term of incarceration commuted to post-prison supervi-

sion, the Governor required plaintiff to agree to be bound

by the acceptance agreement. In other words, the Governor

structured the exercise of her clemency power as something

akin to a contractual arrangement that required plaintiff’s

acceptance.4

As pertinent here, the acceptance agreement

required that plaintiff “abide by the terms and conditions

of any post-prison supervision that is imposed in connection

with the conditional and revocable commutation and her

Judgment of Conviction.” The text of the agreement thus

reflects that the Governor chose to incorporate the statu-

tory and regulatory PPS framework. The state acknowl-

edges as much in this court, stating that, when plaintiff was

released, “[s]he was placed on community supervision under

the authority of [BOPPS].” See OAR 213-005-0003 (“When

a term of post-prison supervision is imposed as part of a

sentence, the offender shall serve the term of supervision

in the community under the supervision of the Department

of Corrections or a corrections agency designated by the

Department.”). And the record reflects that, when plain-

tiff was alleged to have violated the conditions of her PPS

during the term of her supervision, a hearings process was

quickly initiated, plaintiff pleaded no contest and was found

in violation by a hearings officer, and she received a 30-day

jail sanction. See OAR ch 255, div 75 (describing procedures

for addressing alleged violations of PPS).

The acceptance agreement also included a provi-

sion, similar to the one in Governor Brown’s conditional

commutation, which provided that the Governor “may”

revoke the commutation if the Governor determined, in her

4

Given the circumstances of this case, where Governor Brown chose to

require plaintiff’s acceptance of the conditions in the commutation, we need

not—and do not—decide whether the Governor’s plenary power includes the

authority to impose conditions without a commutee’s consent.

268 Brown v. Kotek

discretion, that plaintiff had violated one of its conditions,

which would lead to plaintiff being required to “return to

prison to serve out her sentence that was remaining at the

time her commutation was granted according to the terms

of the Judgment of Conviction.” Before this court, the state

takes the broad and categorical position that, even though

plaintiff’s sentence had expired before her commutation was

revoked, the revocation provision allows any Governor—at

any time during plaintiff’s natural life—to revoke the com-

mutation and return her to prison upon a determination

that she violated the terms of the commutation while she

had been under supervision. As the state acknowledged at

oral argument, under its interpretation, revocation could

occur 50 years after plaintiff’s sentence had expired, result-

ing in her arrest and imprisonment at that time.

However, the state’s argument is inconsistent with

the Governor’s express incorporation of PPS—which is cir-

cumscribed by a statutory and regulatory framework—into

the terms of the commutation order and plaintiff’s accep-

tance agreement. PPS is a “term of community supervi-

sion.” OAR 213-005-0002(1) (emphasis added). That term

is determinate. See ORS 144.103 (providing for duration

of PPS); OAR 213-005-0002(2)(a) (same). Offenders5 are

required to “serve the term of supervision.” OAR 213-005-

0003 (emphasis added). If an offender is alleged to have

violated a condition of PPS, then, during the term of super-

vision, the offender may be arrested and a hearing is initi-

ated to determine if the offender violated the condition. See

ORS 144.350(1)(a)(A) (providing that a supervisory author-

ity “may order the arrest and detention of any person then

under the supervision, custody or control” of the supervisory

authority if there are “reasonable grounds to believe” that

the person has “[v]iolated the conditions of * * * post-prison

supervision” (emphasis added)). The initiation of a hear-

ing means that a “person under supervision is presented a

Notice of Rights.” OAR 255-075-0001(3) (emphasis added);

see also OAR 255-075-0005(3) (providing that, generally,

5

See OAR 255-005-0005(39) (defining “offender” as “[a]ny person under the

supervision of the Department of Corrections or a local supervisory authority

who is not presently in the custody of a correctional facility, including persons on

* * * post-prison supervision”).

Cite as 372 Or 260 (2024) 269

“the Sanction Authority shall impose administrative sanc-

tions or shall initiate a hearing within fifteen (15) days of

arrest or detention for the violation of parole or post-prison

supervision conditions”). Once initiated, jurisdiction over

the offender is retained until the proceedings are resolved.

See OAR 255-094-0020(1) (“During the pendency of vio-

lation proceedings, * * * the Releasing Authority retains

jurisdiction over the offender until the proceedings are

resolved.”). If an offender is found to have violated the con-

ditions of PPS after the hearing, or if the offender waives

the right to a hearing, administrative sanctions may be

imposed or PPS may be revoked. See OAR 255-075-0067

(describing authority to impose administrative sanctions or

revoke supervision). Ultimately, a term of PPS ends and the

sentence expires. See OAR 255-094-0020(3) (“After expira-

tion of the sentence of an offender on * * * post-prison super-

vision, the Releasing Authority shall send written notice of

the expiration to the offender and the supervisory author-

ity.”); see also ORS 144.085(6) (“The board shall send writ-

ten notification to the supervised offender of the expiration

of the sentence.”).

Thus, the PPS framework imposes a temporal limit

on the authority to sanction or revoke an offender’s post-

prison supervision for a violation of a condition: As a general

proposition, violation proceedings must be initiated while

the offender is under supervision (i.e., before the offender’s

sentence has expired) and not after the term of supervi-

sion has ended and the offender is no longer subject to any

sentence. See ORS 144.350(1)(a)(A) (providing that, if there

are “reasonable grounds to believe” that the person has

“[v]iolated the conditions of * * * post-prison supervision,” a

supervisory authority “may order the arrest and detention

of any person then under the supervision, custody or control”

of the supervisory authority (emphasis added)); OAR 255-

075-0001(3) (providing that a hearing is initiated when a

“person under supervision is presented a Notice of Rights”

(emphasis added)).

By specifying that plaintiff was obligated to serve

PPS, which is governed by a statutory and regulatory scheme,

her conditional commutation—together with the acceptance

270 Brown v. Kotek

agreement to which she was bound—incorporated the gen-

eral principle that the authority to sanction an offender for

a PPS violation, or to revoke the offender’s PPS altogether,

is time-limited and must be initiated before the offender’s

PPS term ends and while the offender remains subject to a

sentence. In this case, although the commutation and the

agreement clearly stated that the Governor, in her sole dis-

cretion, could revoke the commutation for a violation of its

conditions, there is no indication that the authority to revoke

would survive the expiration of plaintiff’s sentence. Nor is

there any indication that, contrary to the ordinary applica-

tion of the statutes and rules governing PPS, plaintiff would

face the prospect of revocation and future imprisonment

for the remainder of her life. Thus, by requiring plaintiff

to serve PPS, and without clearly expressing an intent to

depart from the temporal limitations that otherwise apply

to PPS, the Governor limited her own ability, and the ability

of any future holder of that office, to revoke the commutation

to the period of time before plaintiff’s PPS had ended and

her sentence had expired.

Here, it is undisputed that, in February 2023,

BOPPS issued its certificate stating that plaintiff had “com-

pleted the period of post-prison supervision imposed” and

that she was “expired from supervision.” At that point, plain-

tiff was no longer subject to any sentence. Accordingly, when

the Governor revoked plaintiff’s commutation in December

2023, she lacked the authority to do so under the terms of

the December 2020 order of conditional commutation.6

We emphasize that the foregoing conclusion is a

function of the way in which we understand Governor Brown

to have structured plaintiff’s conditional commutation. The

parties’ dispute before this court has focused on whether

the state and federal constitutions permit the Governor to

revoke a commutation following the expiration of a sentence.

That is a difficult question of first impression in Oregon,

and one on which other state courts have reached competing

6

Because it is undisputed in this case that plaintiff was not subject to any

sentence when the Governor revoked her conditional commutation, we need not—

and do not—decide the precise point at which the Governor’s authority to revoke

plaintiff’s conditional commutation of sentence ended.

Cite as 372 Or 260 (2024) 271

conclusions.7 But we need not resolve that question today,

because, even assuming that such authority exists, we

conclude that the December 2020 commutation order and

the acceptance agreement are self-limiting. By specifying

that plaintiff was obligated to serve PPS, without expressly

reserving the right of the Governor to revoke the commuta-

tion even after plaintiff’s sentence had expired, the commu-

tation and acceptance agreement preclude that authority.

That conclusion does not fully resolve this matter.

The state alternatively contends that plaintiff waived her

right to seek habeas relief and to challenge both Governor

Kotek’s revocation and her current imprisonment.

It is true that the acceptance agreement includes a

broadly worded waiver of plaintiff’s rights. Plaintiff contests

the validity of that waiver, asserting, among other things,

that the process resulting in her acceptance of the commu-

tation was “rushed” and that the implications of the waiver

were never explained to her; thus, she did not knowingly

and voluntarily agree to waive her right to challenge the

Governor’s revocation, or her current imprisonment, or her

right to seek habeas corpus under the circumstances.

In this case, however, we conclude that it is unnec-

essary to address those points. That is because, even if we

assume that plaintiff effected a valid waiver of some kind, we

decline to read the text of this waiver as broadly as the state’s

argument requires. The waiver provision can be interpreted

in a manner consistent with the ordinary understanding

of the PPS framework described above—i.e., that plaintiff

was waiving the right to challenge a revocation that was

initiated before the expiration of her sentence. By taking

the position that plaintiff forfeited the ability to challenge a

revocation that was ordered even after the completion of her

sentence, the state would have us conclude that plaintiff, in

7

Compare Rowell v. Dutton, 688 SW2d 474, 477 (Tenn Crim App 1985)

(“Thus we hold that the Governor’s authority to revoke exists only so long as

the commutee’s sentence has not expired. Any other result would mean that the

Governor and his successors in office would retain the power to revoke a commu-

tation throughout the balance of a commutee’s life, regardless of the offense, and

could lead to absurd results.”), with Beal v. Mayo, 70 So 2d 367, 368 (Fla 1954)

(“[R]ecommitment for breach of condition is proper notwithstanding the fact

that the period of original sentence has expired when the conditional pardon is

revoked.”).

272 Brown v. Kotek

exchange for being released from prison eight months early,

chose not only to accept the risk of future imprisonment for

a violation of the conditions of the commutation—without

process or the right of judicial review—but to run that risk

for the remainder of her life. Even assuming that a choice of

such gravity by a commutee could be enforceable—a ques-

tion we do not decide—we would require it to be expressed

with the utmost clarity. The acceptance agreement in this

case does not meet that standard. See State v. Meyrick, 313

Or 125, 131, 831 P2d 666 (1992) (observing that courts “are

reluctant to find that fundamental constitutional rights

have been waived”).

Accordingly, under the circumstances of this case,

we conclude that Governor Kotek lacked authority to revoke

plaintiff’s conditional commutation and that, as a result,

plaintiff’s present imprisonment is unlawful. We order

defendants to discharge plaintiff from custody immediately.

See ORS 34.700(1) (“If it appears that the party detained

is imprisoned or restrained illegally, judgment shall be

given that the party be discharged forthwith[.]”). We further

waive otherwise applicable appellate rules relating to recon-

sideration and the issuance of the appellate judgment, and

we direct the State Court Administrator to issue the appel-

late judgment immediately. See ORAP 1.20(5) (permitting

the court, for good cause and on its own motion, to waive

any rule of appellate procedure); ORAP 9.25 (providing for

reconsideration); ORAP 14.05(3)(b) (providing for the timing

of the issuance of the appellate judgment).8

It is hereby ordered that plaintiff immediately be

discharged from her illegal imprisonment. Pursuant to

ORAP 1.20(5) and notwithstanding ORAP 9.25 and ORAP

14.05(3)(b), the State Court Administrator shall issue the

appellate judgment immediately.

8

ORS 34.700(2) provides that a court “shall include in the judgment an order

that the defendant pay the attorney fees incurred by the petition, not to exceed

$100,” if “[t]he court enters a judgment requiring that the plaintiff be discharged”

and “[t]he court finds that the allegations or defenses in the return were frivo-

lous.” Under the circumstances, we do not find that the state’s position was frivo-

lous. For that reason, plaintiff is not entitled to attorney fees under the statute.