Petition for Writ of Certiorari — Phillip Wade McClure, Petitioner v. Oregon Board of Parole and Post Supervision

Supreme Court briefJun 18, 2018

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IN THE

SUPREME COURT OF THE UNITED STATES

PHILIP WADE MCCLURE,

Petitioner,

OREGON BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

On Petition For Writ of Certiorari

To The Oregon Supreme Court.

PETITION FOR WRIT OF CERTIORARI

PHILIP WADE MCCLURE

Petitioner, Pro Se

SID# 5072942

Oregon State Penitentiary

2605 State Street

Salem, OR 97310-0505

QUESTIONS PRESENTED

Does ORS 144.125(3) (Or Laws 1977 c. 372, §6; Or Laws 1981 c. 426, §2) (hereafter ORS

144.125(3)) and respondent's administrative rule, OAR 255-60-005(4) (1982 Rule) lack a definition for

term "present severe emotional disturbance", making both the statute and respondent's administrative

rule vague and/or overbroad, therefore violating Due Process and Equal Protection principles under

Section 1 of the Fourteenth Amendment to the U.S. Constitution, and Article I, Sections 20 and 21, of the

Oregon Constitution?

Does respondent's use of newer rules not in effect at time of petitioner's commission of offenses create

an Ex Post Facto violation by employing criteria which are more erroneous than the older rules in

violation to Article I, § 9, cl.3 and Article I, § 10, cl.1 of the United States Constitution and Article I,

Section 21 of the Oregon Constitution.

Does respondent's failure to comply with Oregon law create a Due Process violation by failing to

address evidentiary challenges during hearings in violation of Section 1 of the Fourteenth Amendment to

the U.S. Constitution, and Article I, Sections 20 and 21, of the Oregon Constitution?

Does respondent's failure to comply with Oregon's substantial-reason requirement law as mandated

by Oregon courts violate Due Process and Equal Protection principles under Section 1 of the Fourteenth

Amendment to the U.S. Constitution, and Article I, Sections 20 and 21, of the Oregon Constitution?

LIST OF PARTIES

Philip Wade McClure, as petitioner, pro se, and Oregon Board of Parole and Post-Prison

Supervision, as respondent.

TABLE OF CONTENTS

Page

OPINIONSBELOW...................................................................................................................1

JURISDICTION.........................................................................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................... 1 -2

CONCISE STATEMENT OF THE CASE.................................................................................2-3

REASONS FOR GRANTING THE PETITION........................................................................3-36

A. Unconstitutional Definition

Oregon Statute

Legislative History of ORS 144.125(3)

Respondent's Administrative Rule

Review of Oregon Law

Due Process Requirement

Equal Protection Requirement

3 - 23

4-7

7-13

13 - 20

21 - 23

B. Ex Post Facto Violation

Controlling Federal Law

Controlling Oregon Law

23 - 29

25 - 28

28-29

C. Evidentiary Violations

29 - 30

D. Substantial Reason Requirement

Due Process Requirement

Equal Protection Requirement

30 - 36

31 - 36

CONCLUSION

........................................................................................................................... 36

INDEX TO APPENDICES

Order of Oregon Supreme Court, dated March 22, 2018

Petition For Review (Oregon Supreme Court), dated November 2017

Order of the Oregon Court of Appeals, dated November 1, 2017

Petitioner's Reply Brief (Court of Appeals), dated June 2017

Petitioner's Opening Brief and Appendices (Court of Appeals),

dated April 2017

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

TABLE OF AUTHORITIES

Page

UNITED STATES CONSTITUTION

Article I, § 9, cl.3 of the United States Constitution................................................................................2,23,26,37

Article I, § 10, cl.1 of the United States Constitution.......................................................................2,23,25,26,27,

29,37

Fourteenth Amendment to the U.S. Constitution .................................................................... 14, 19,21,30,33,

35,36

.........................................

Fifth Amendment to the U.S. Constitution ......................................

Section 1 of the Fourteenth Amendment to the U.S. Constitution...........................................1,2,4,14,16,37

FEDERAL STATUTES

28 U.S.C. § 1257(a).....................................................................................................................1

Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794..........................5,18

42 U.S.C. § 12102(3)...................................................................................................................21

OREGON CONSTITUTION

Article I, Section 20 of the Oregon Constitution.......................................................................1,2,4,14,16,18,

21,37

Article I, Section 21 of the Oregon Constitution.......................................................................1,2,14,18,21,

23,29,37

OREGON HOUSE BILLS (HB)

HB2013.................................................................................................................................................... 4

HB2328...................................................................................................................................................... 5

OREGON LAWS

OrLaws 1977c. 372, §6 .............................................................................................................1,3,4

OrLaws 1977c. 372, §6(3) ........................................................................................................1,3

OrLaws 1981 c. 426, §2 .............................................................................................................1,3,4

OrLaws 1987c.320ç53 ............................................................................................................3

OrLaws 1989 c. 790 § 68............................................................................................................3

OrLaws 1993 c.334 § 1..............................................................................................................3

OrLaws 1999c.141çl ..............................................................................................................3

OrLaws 2009 c.660 § 3.............................................................................................................3

ORS144.050...............................................................................................................................10

ORS144.125 ...............................................................................................................................2,5

0R5144.125(2)..........................................................................................................................10

ORS144.125(3)..........................................................................................................................1,3,4,5,6,7,9,

10,11, 12, 14, 15,

16,18,20,21,36

0R5144.140(2)..........................................................................................................................10

ORS144.335(3) (1991)...............................................................................................................30,33

ORS163.115(1)..........................................................................................................................

0R5161.735(4)..........................................................................................................................30

111

TABLE OF AUTHORITIES

Page

OREGON LAWS (cont.)

ORS163.115('l)(a).....................................................................................................................

ORS Chapter 183, Administrative Procedures Act (ABA) ....................................................... 8

ORS183.310(9)..........................................................................................................................10

ORS183.325— ORS 183.355.....................................................................................................10

ORS183.400(2)..........................................................................................................................9

ORS183.482(8)..........................................................................................................................33

ORS183.482(8)(c)......................................................................................................................30

ORS192.610 to 192.710 .............................................................................................................

ORS659A.104(1)........................................................................................................................21

OREGON ADMINISTRATIVE RULES

OAR255-001-0010(1) .................................................................................................................8

OAR255-30-0010 .......................................................................................................................2

OAR255-030-0032 .....................................................................................................................30

OAR255-030-0032(3).................................................................................................................30,34

OAR255-030-0032(4)(f) .............................................................................................................30

OAR255-030-0032(5)................................................................................................................................30

OAR, Chapter 255, Division 60----------------------------------------------------------------------------------------------------------------- 24

OAR, Chapter 255, Division 60, Section 0005----------------------------------------------------------------------------------------- 24

OAR, Chapter 255, Division 60, Section 0006----------------------------------------------------------------------------------------- 24

OAR, Chapter 255, Division 60, Section 0008----------------------------------------------------------------------------------------- 24,25

OAR, Chapter 255, Division 60, Section 0012----------------------------------------------------------------------------------------- 24,25

OAR, Chapter 255, Division 60, Section 0030----------------------------------------------------------------------------------------- 24,26,30

OAR255-60-005------------------------------------------------------------------------------------------------------------------------- 3

OAR255-60-005(4) (1982 Rule)------------------------------------------------------------------------------------------------- 1,3,7,12,14,15,

16, 18, 20,2 1, 36

OAR 255-60-005(4)(a) (1982 Rule)-------------------------------------------------------------------------------------------- 12

OAR 255-60-005(4)(b) (1982 Rule)-------------------------------------------------------------------------------------------- 12

OAR255-060-005----------------------------------------------------------------------------------------------------------------------- 3

OAR255-060-0006-------------------------------------------------------------------------------------------------------------------- 3

OAR255-060-0008-------------------------------------------------------------------------------------------------------------------- 3

OAR255-060-0030------------------------------------------------------------------------------------------------------------------------------------- 30

OAR, Chapter 255, Division 62, Section 16--------------------------------------------------------------------------------------------- 25,26

OAR255-062-0016--------------------------------------------------------------------------------------------------------------------- 31

OAR309-40-0305(54)-----------------------------------------------------------------------------------------------------------------8

OAR581-015-2000(4))D)------------------------------------------------------------------------------------------------------------8

HOUSE BILLS (OREGON)

HB2013--------------------------------------------------------------------------------------------------------------------.................

HB2328 .....................................................................................................................................

TABLE OF AUTHORITIES

Page

UNITED STATES SUPREME COURT CASES

American Land Co. v Zeiss,

219 U547, 55LEd 82, 3ISCt 200 (1911)..............................................................................4

Baggett V. Bullitt,

377 U.S. 360, 84 S. Ct. 1316 (1964)...........................................................................................14

Board of Pardons v Allen,

482 US 369, 96LEd2d 303, 107SCt 2415(1987) ..................................................................13,18

Bouie v. Columbia,

378 U.S. 347, 353-54, 84S. Ct. 1697,12 L. Ed.2d 894 (1964).................................................14

Brinkerhoff-Faris Trust & Sat'. Co. v Hill,

281 US 673, 74 LEd 1107, SOS Ct 451 (1930)........................................................................35

Cal. Dep't of Corr. v. Morales,

514 U.S. 499, 504,131 L. Ed. 2d 588,115 S. Ct. 1597(1995) ...............................................................26,27

City of Chicago v. Morales,

527 U.S. 41, 119 S. Ct. 1849,144 L. Ed.2d 67 (1999)..............................................................14,16

Coates v. City of Cincinnati,

402 U.S. 611,91 S. Ct. 1686, 29L. Ed.2d 214(1971)..............................................................19

Colautti v. Franklin,

439 U.S. 379, 99S Ct 675, 58 L Ed 2d 596 (1979)...................................................................21

Collins v. Youngblood,

497 U.S. 37, 52(1990) ...............................................................................................................................23,26

Concordia Fire Ins. Co. v Illinois,

292 US 535, 78LEd 1411, 54SCt 830(1934)........................................................................23

Connally v. General Constr. Co.,

269 U.S. 385,46 S. Ct, 126, 127, 70 L. Ed. 322 (1926).............................................................16

Dobbert v. Fla.,

432 U.S. 282, 294, 53 L. Ed. 2d 344, 97S. Ct. 2290 (1977)....................................................................27

Douglas v California,

372 US 353, 9 L Ed 2d 811, 83S Ct 814 (1963), reh den

373 US 905, bLEd 2d 200, 83SCt 1288 (1963)...................................................................4

Frank v Mangum,

237 US 309, 59LEd 969, 35SCt 582 (1915)..........................................................................4

Georgia Power Co. v Decatur,

281 US 505, 74 L Ed 999, 50 S Ct 369 (1930)..........................................................................22,36

Grayned v. City of Rockford,

408 U.S. 104, 92S. Ct. 2294(1972) ........................................................................................... 14,16

Greenholtz v. Nebraska Penal & Correctional Complex,

442 U.S. 1,99 S. Ct. 2100, 60L. Ed. 2D668(1979) ................................................................ 13,18

Gulf, C. & S. E R. Co. v Ellis,

165 US 150, 41 L Ed 666, 17S Ct 255 (1897)..........................................................................23

Kentucky Dep't of Corrections v. Thompson,

490 U.S. 454, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989).........................................................13

TABLE OF AUTHORITIES

Page

UNITED STATES SUPREME COURT CASES (cont

Kolender v Lawson,

461 U.S.352, 1038. Ct. 1855(1983) ..........................................................................................15,16

Lanzetta v. New Jersey,

306 U.S. 451, 59SCt 618, 83LEd 888 (1939)........................................................................17

Lynce v. Mathis,

519 U. S. 433, 439 n.12, 137L. Ed. 2d 63, 117 S. Ct. 891 (1997) ............................................................26,27

Miller v. Florida,

482 U.S. 423, 430 (1987) ..........................................................................................................................27,28

Mitchell v United States,

313 US 80, 85 L Ed 1201, 61 S Ct 873 (1941)..........................................................................21

Parker v. Levy,

417 U.S. 733, 948. Ct. 2547 (1974)...........................................................................................14

Radice v New York,

264 US 292, 68 L Ed 690, 448 Ct 325 (1924)..........................................................................23

Richardson v. Perales,

402 U.S. 389, 408, 91 S, Ct 1420, 1430 (1971).........................................................................................29

Turner v Fouch,

896 US 346, 24 L Ed 2d 567. 908 Ct 532 (1970).....................................................................21

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489,102 S. Ct. 1186, 71 L. Ed.2d 362 (1982)............................................................19

Weaver v. Graham,

450 U.S. 24, 29, 67L. Ed. 2d 17, 101 S. CL 960 (1981)..........................................................................27

Winters v. New York,

333 U.S. 507, 515, 68S. Ct. 665 (1948)....................................................................................15

Zwickler v. Koota,

389 U.S. 241, 88S. Ct. 391 (1967).............................................................................................14

FEDERAL COURT CASES

Benites p. U.S. Parole Commission,

595 F.2d 518 (9th Cir 1979)...........................................................................................................29

Brown v. Palmateer,

379 F. 3d 1089, 1094 (9th Cir. 2004)......................................................................

Burton u. Cascade School Dist. Union High School No. 5,

353 F. Supp. 245, affirmed, 512 F.2d 850, certiorari denied,

96 S. Ct. 69, 423 U.S. 839, 46 L. Ed.2d 59 (1973)..........................................

Daniels v. Cogswell,

5,6,18

1979 U.S. Dist LEXIS 15399 (D. Or September 13,1979) .............................

Flemming p. Board of Parole,

998 F.3d. 721, 724(9th Cir. 1993)

TABLE OF AUTHORITIES

Page

FEDERAL COURT CASES (cont.)

Himes p. Thompson,

336 F.3d 848, 854 (9th Cir, 2003).............................................................................................................27

Hunter v. Ayers,

336F.3d1007, 1011 (9th Cir 2002) ..........................................................................................................27

McClure V. Hill,

2003 U.S. Dist. LEXIS 25367 (D. Or. Apr. 82003) ..................................................................15

Meyrovich p. Maass,

762 F. Supp 1417(D. Or. 1991)................................................................................................................29

Murphy v. Thompson,

15 Fed. Appx. 417 (9th Cir. 2001)..............................................................................................18

Nuiph v. Faatz,

27 F.dd 451. 45556 (9th Cir, 1994)..........................................................................................................27

Planned Parenthood of GolambialWillamette, Inc. v. American

Coalition of Life Activists,

945 F. Supp. 1355 (D. Or. 1996)................................................................................................16

Plumb v. Prinslow,

847F. Supp. 1509 (D. Or. 1994)................................................................................................18

Schwartmiller p. Gardner,

752 F.2d 1341(9th Cir. 1984).....................................................................................................15

Souch v. Schaivo,

289 F.3d 616, 620, 2002 U.S. App. LEXIS 7865 (9th Cir 2002).............................................................26

U.S. v. Adams,

343 F.3d 1024 (9th Cir. 2003)....................................................................................................15

U.S. v. Harris,

185 F.3d 999 (9th Cir. 1999)......................................................................................................15

U.S. v. Rodriguez,

360 F.3d 949, (9th Cir. 2004).....................................................................................................15

U.S. v. Wunsch,

84F.3d 1110 (9th Cir. 1996)......................................................................................................14, 16

U.S. v. Wyatt,

408 F. 3d 1257 (9th Cir. 2005)....................................................................................................14

OREGON COURT CASES

Albertson's Inc. p. Bureau of Labor and Industries,

128 Ore. App. 97, 874 P.2d 1352 (1994)....................................................................................33

Anderson v. Peden,

284 Ore. 313, 587P.2d 59 (1978)..............................................................................................17

Armstrong v. Asten-Hill Co.,

90 Ore. App. 200, 206, 752 P.2d 312 (1988)..............................................................................33

Beiswenger p. PSRB,

192 Ore. App. 38, 84 P.3d 180 (2004)........................................................................................ 11

Vii

TABLE OF AUTHORITIES

Page

OREGON COURT CASES (cant.)

Bergerson v. Salem-Keizer Sch. Dist.,

341 Or 401, 144 P3d 918 (2006)................................................................................................10

Castro c'. Board of Parole,

reversed and remanded, 232 Ore. App. 75, 220 P3d 772 (2009) .............................................. 30,31,32,33

Christenson v. Thompson,

143 Or. App. 923 P.2d 1316(1996)........................................................................................................... 29

City of Portland r'. Levi,

98 Or, App. 341, 344, 779 P.2d 192 (1980), review denied,

309 Or. 645, 789 P.2d 1387 (1990) ............................................................................................ 18,22

Combs v. BOPPS,

917P.2d 74, 141 Or. App. 219(1996).......................................................................................................29

Delgado v. Sanders,

46P.3d 729, 334 Or. 122 (2002)...............................................................................................14

Drew v. PSRB,

127 Ore. App. 753, 875 P.2d 546 (1994), reversed and remanded,

322 Ore. 491; 909 P.2d 1211; 1996 Ore. LEXIS 10(1996).................

Gaffey v. Babb,

50 Or. App. 617, 624 P.2d 616, review denied, 291 Or. 117(1981)...

Garcia v. SAW,

187 Ore App 51, 66 P3d 522 (2003) .....................................................

Gordon v. Board of Parole,

207 Ore. App. 435, 142 P.3d 125 (2006), reversed and remanded,

343 Ore 618, 175 P3d 461, 467 (2007) ...............................................

Hamel v. Johnson,

25 P.3d 314,173 Or. App. 448, review denied,

39 P.3d 193, 333 Or. 162 (2001)....................................................................................

Jenkins v. Board of Parole,

reversed and remanded,258 Ore. App. 430; 309 P.3d 1115;

2013 Ore. App. LEXJS 1077(2013), rev'd 356 Ore 186, 335 P.3d 828,

30,32

2014 Ore LEKIS 688(2014)...............................................................................................

Martin v. Board of Parole,

reversed and remanded, 147 Ore. App. 37, 934 P.2d 626 (1997),

31,35

affirmed, 327 Ore. 147, 957 P2 1210 (1998) ...............................................................

McClure v. Oregon Board of Parole and Post-Prison Supervision,

GA A163095, Affirmed Wit/tout Opinion, November 1, 2017, 288 Ore App 702,

406 P.3d 241, 2017 Or App LEXIS 1309............................................................................

McClure v. Board of Parole and Post-Prison Supervision,

___________

SC 8065477, Petition for Review Denied, March 22, 2018, 2018 Ore. LEXIS

VIII

TABLE OF AUTHORITIES

Page

OREGON COURT CASES (cont.)

Merrill v. Johnson,

155 Ore. App. 295, 964 P2d 284, rev den,

328 Ore. 40, 977 P.2d 1170 (1998).............................................................................................9,20

Oregonians for Nuclear Safeguards v. Myers,

276 Ore. 167, 554 P.2d 172, 1976 Ore. LEXIS 539 (1976).......................................................32

PGE v. Bureau of Labor and Industries,

317 Or 606, 859 P2d 1143 (1993)..............................................................................................11,20

Raridon v. Board of Parole,

104 Ore. App. 307, 801 P.2d 842 (1990)....................................................................................33

Ross v. State of Oregon, 227 U.S. 150,162-63, 57 L. Ed. 458, 33 S. Ct. 220 (1913).........................26,28

Salosha, Inc. v. Lane County,

201 Or App 138, 117 P3 1047(2005)...................................................................................... 35

Springfield Edue. Assn. V. Sch. Dist.,

290 Or 217, 621 P2d 547 (1980)................................................................................................ 9

State v. Ausmus,

37 P.3d 1024, 178 Or. App. 321, 326, review allowed,

49 P.3d 797, 334 Or. 288, reversed, 85 P.3d 864, 336 Or. 496 (2001).....................................18

State v, Blair,

287 Or 519, 601 P2d 766 (1979)................................................................................................17

State v. Chaherian,

938 P.2d 756, 325 Or. 370 (1997).............................................................................................19

State v. Dinkle,

34 Or App 375, 579 P.2d 245 (1979).........................................................................................2

State v. Gaines,

346 Or 160, 206 P3d1042 (2009)..............................................................................................11

State v. Graves,

299 Or 189, 195, 700 P2d 244 (1985)........................................................................................17,18,22

State v. Hodges,

254 Or 21, 457 P2d 491 (1969)..................................................................................................16,17

State c'. llig-Renn

341 Ore. 228, 142 P.3d 62(2006)..............................................................................................19

State v, Johnson,

50 Or App 33, 36, 621 P2d 677 (1981)......................................................................................18

State v. McClure,

Lane County Circuit Court No. 78.6903)..................................................................................2

State v. McClure,

Lane County Circuit Court No. 10.82.09309)...........................................................................2

State v. Moore,

324 Or. 396, 927 P.2d 1073, 1084 (1996)..................................................................................7

State v. Ott,

297Or375, 686P2d 1001, 1012(1984)....................................................................................8

TABLE OF AUTHORITIES

Page

OREGON COURT CASES (cont.)

State v. Plowman,

314 Ore. 157, 838 P.2d 558, 1992 Ore. LEXIS 158, 61 U.S.L. W. 2149,

writ of certiorari denied by 508 U.S. 974,113 S. Ct. 2967,

125 L. Ed. 2d 666, 1993 U.S. LEXIS 4097, 61 U.S.L.W 3834 (1993).....................................22

State v. Robertson,

293 Ore 402,649 P.2d, 1982 Ore LEXJS975.......................................................................................14,17,19,22

State v. Sanderson,

33 Or App 173, 575 P2d 1025 (1978)........................................................................................19

State v. Sutherland,

329 Ore. 359, 987 P.2d 501 (1999).............................................................................................19

State v. Tucker,

28 Or App 29, 558 P2d 1244, rev den 277 Or 491 (1977).........................................................19

State v. Vasey,

80 Ore. App. 765, 723 P.2d 1068, rev den

302 Ore. 299, 728 P.2d 531 (1986).............................................................................................22

Trebesch v. Employment Div.,

68 Ore. App. 464, 468; 683 P 2d 1018; 1984 Ore. App. LEXLS 3363;

off and remanded, 300 Ore. 264, 710 P2d 136, 1985 Ore. LEKIS 1682........................................10

Weems v. Board of Parole,

221 Ore. App. 70, 190 P. 3d 381 (2008), rev allowed,

346 Ore. 115, 205 P.3d 887(2009).............................................................................................35

Weidner p. Armenakis,

154 Or App 12, 959 P2d 623, vac'd and rern'd as moot, 327 Or 317(1998),

reasoning readopted and reaff irmed in Merrill v. Johnson.....................................................9,10,11,20

Williams v, Bd. of Parole,

98 Ore. App. 716, 780 P.2d 793, 795 (Or. Ct. App. 1989)........................................................................28

Williams v. BOP,

107 Or. App. 515, 812 P.2d 443 (1991), adhered to on re reconsideration,

112 Or. App. 108, 828 P.2d 465, review dismissed 313 Or. 300, 832 P.2d 456(1992)...........................29

Younger v. City of Portland,

305 Ore. 346, 752 P.2d 262 (1988).............................................................................................35

OTHER STATE COURT CASES

People v. Shelton,

88 Misc2d 136, 385 NYS2d 708, 717(1976).............................................................................8

TABLE OF AUTHORITIES

Page

OTHER AUTHORITES

I Davis, Administrative Law Treatise, 2.10, 2.15, 7.20....................................................9

31 Am J Rev ed Lab 338.........................................................................................................34

Ballentine's Law Dictionary, 3rd Edition

(2002 Matthew Bender, Inc., a member of the LexisNexis Group).........................................34

Black's Law Dictionary, Sixth Edition (1990)...................................................................6

Black's Law Dictionary, Eighth Edition

Bryan A. Garner, editor in chief (West, 2004) ...........................................................................4,34

Campbell's Psychiatric Dictionary (2009).........................................................................6

Davis, Administrative Law of the Seventies 28, 224 (1976).............................................9

Diagnostic and Statistic Manual of Mental Disorders

tic

(Washington, DC, American Psychiatric Association)....................................

Diagnostic and Statistic Manual of Mental Disorders,

Fourth Edition (DMS-IV-TR),

9,11

(Washington, DC, American Psychiatric Association) (2000)........................

Diagnostic and Statistic Manual of Mental Disorders,

Fifth Edition (DMS-V),

3,4,9,10,20,21,

(Washington, DC, American Psychiatric Association) (2014)........................

Webster's Third New Int'l Dictionary (unabridged edition 1993)....................................4,6,11,34

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

The order of the Oregon Supreme Court to review the merits appears at Appendix A to the petition and is

reported at Philip Wade McClure v. Board of Parole and Post-Prison Supervision, SC S065477, Petition for

Review Denied, March 22, 2018, 2018 Ore. LEXIS

_____

The order of the Oregon Court of Appeals appears at Appendix C to the petition and is reported at Philip

Wade McClure v. Oregon Board of Parole and Post-Prison Supervision, CA A163095, Affirmed Without

Opinion, November 1,2017,288 Ore App 702, 406 P.3d 241, 2017 Or App LEXIS 1309.

JURISDICTION

Date which Oregon Supreme Court decided petitioner's case was March 22, 2018. A copy of the decision appears

at Appendix A.

Federal questions raised in this petition have been timely and properly raised before the respondent, the Oregon

Court of Appeals and the Oregon Supreme Court.

The jurisdiction of this court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Because it lacks a definition for term "present severe emotional disturbance" (hereafter cited PSED), ORS

144.125(3) (Or Laws 1977 c. 372, §6; Or Laws 1981 c. 426, §2) (hereafter ORS 144.125(3)) and respondent's

administrative rule, OAR 255.60.005(4) (1982 Rule), is vague and/or overbroad, and therefore violates due process

and equal protection principles under Section 1 of the Fourteenth Amendment to the U.S. Constitution, and Article I,

Sections 20 and 21, of the Oregon constitution.

Respondent's failure to use administrative rules in effect in effect at time of petitioner's offenses created

heightened expectancy of factors needed for parole consideration, employing criteria which are more erroneous than

what older rules require, in violation of ex post facto principles under Article I, § 9, cl,3 and Article I, § 10, cl.1 of

the United States Constitution and Article I, Section 21 of the Oregon Constitution.

Respondent's failure to comply with Oregon law creates a due process violation by failing to address evidentiary

challenges during hearings in violation of Section 1 of the Fourteenth Amendment to the U.S. Constitution, and

Article I, Sections 20 and 21, of the Oregon Constitution.

Respondent's failure to comply with Oregon's substantial-reason requirement law as mandated by Oregon

courts violates due process and equal protection principles under Section 1 of the Fourteenth Amendment to the

U.S. Constitution, and Article I, Sections 20 and 21, of the Oregon Constitution.

CONCISE STATEMENT OF THE CASE

Petitioner sentenced in 1979 to a twenty year sentence for conviction of an offense which occurred in 1978

(State v. McClure, Lane County Circuit Court No, 78-6903) (Sentence 01). Petitioner sentenced in 1983 to an

eighty year sentence (four consecutive twenty year sentences) with a 40 year minimum (four minimum sentences

of ten years each) for conviction of offenses which occurred in 1982 (State v. McClure, Lane County Circuit

Court No. 10-82-09309) (Sentences 02 through 05)'.

Respondent ordered an exit interview with a psychological evaluation upon petitioner pursuant to OHS 144.125

in 2016 and based upon the evaluation, postponed petitioner's release date to October 31, 2021. On appeal from

respondent orders dated April 20, 2016 and August 29, 2016, petitioner made challenges on: (1) unconstitutional

Petitioner appeared before respondent October 5, 1983 for initial prison term hearing pursuant to OAR 255.30-0010. At that time, petitioner

received an unauthorized parole denial. Petitioner received a new initial prison term hearing July 13, 1988. At that time, respondent: (a)

overrode two of petitioner's consecutive minimum sentences, finding that the minimum terms were not an appropriate penalty for the

criminal offense and the minimum terms were not necessary to protect the public (State v. Dinkte, 34 Or, App. 375, 386, 579 P.2d 245

(1979)); ) recognized 108 days of credit for time served; (c) found aggravation (prior conviction); (d) found mitigation (consecutive sentences

imposed for a single criminal episode); and (e) established a release date of October 30, 2002. Petitioner's parole release dates have

subsequently been deferred in 2002, 2004, 2006, 2008, 2010, 2012, 2014, and 2016. Sentences 01 and 02 have expired. Sentence 03 is slated to

expire in 2018.

vagueness of ORS 144.125(3) and respondent's administrative rule, OAR 255-60.005(4) (1982 Rule), (2) ex post

facto violation due to respondent's use of new rules not in effect at time of petitioner's commission of offenses, (3)

inadmissible evidence respondent relied upon, and (4) respondent's non-compliance with the substantial-reason

requirement to support finding that petitioner suffers a PSED.

REASONS FOR GRANTING THE PETITION

A. Unconstitutional Definition

Because ORS 144.125(3) 2 and OAR 255-60.005(4)

a definition for term ccpsEul the definition is

ORS 144.125(3) (Or Laws 1977 c. 372, §6; Or Laws 1981 c. 426, §2). Petitioner only addresses ORS in effect in 1982. The statute changed as

follows: 1977 c.372 § 6; 1981 c.426 § 2; 1987 c.320 § 53; 1989 c.790 § 68; 1993 034 § 1; 1999 c.141 § 1; 2009 c.660 § 3.

Petitioner only addresses administrative rules in effect in 1982. OAR 255-060-005 changes occurred as follows: 2 B 1-1979, f& ef. 2-1-79;

2PB 2-1980,1. & ef. 5.20-80; 2PB 1-1981, f. & ef. 2-15.81; 2PB 8-1981(Temp), f& ef. 11-4-81; 2PB 1-1982, 1. & ef. 5-19-82; 2PB 13-1985,1. &

ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88. It appears that while OAR 255-60-005(4) has never been repealed, the respondent started using

OAR 255-060-0006 (2PB 1-1979, f. &ef. 2-1-79; 2PB 2-1980,1. &ef. 5-20-80; 2PB 1-1981,1. 1-20-81, ef. 2-15-8I; 2PB8-1981(Femp), 1. &ef. 114-81; 2PB 1-1982, f. &ef. 5-19.82; 2PB 13-1985,1. &ef. 5-31-85; PAR 6-1988,1. & ef. 5-19-88; PAR 2-1990,1. &cert. ef. 4-5-90; Sections (3), (4),

(5) & (6) renumbered to 255-060-0008; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 5-1991, 1. & cart, ef. 10-15-91; PAR 2-1992(1'emp), I. &

cert. ef. 2-12-92; PAR 3-1992, f. &cert. ef. 4-15-92;PAR8-1992, L&cert.ef. 10-9-92; PAR 6-1997,f. 3-11-97, cert. ef. 3-14-97; PAR5-1998, f. &

cert. ef. 11-9-98) and OAR 255-060-0008 (2PB 1.1979, 1. & ef. 2.1-79; 2PB 2-1980, f. & ef. 5-20-80; 2PB 1-1981,1. 1-20-81, ef. 2-15-8I; 2PB 81981(Temp), I. & ef. 11-4-81; 2PB 1-1982,1. & at 5-19.82; 2PB 13-1985,1. & ef. 5-31-85; PAR6-1988, 1. &ef. 5-19-88; PAR 2-1990,1. &cert. ef.

4-5-90; Sections (1), (2) & (3) renumbered from 255-060-0006; PAR 3-1991(Temp), I. &cert. el. 5-1-91; PAR5-1991, 1. &cert. ef. 10-15-91; PAR

9-1992,1. &cert. ef. 12-8-92; PAR 6-1997,1.3-11-97, cart. ef. 3-14-97; PAR 7-1999, f. 9-21-99, cert. ef. 9-22-99; PAR 4-2000, f, &cert. ef. 2-1500) to extend and/or amend OAR 255-060-005. OAR 255-60-005 does not appear on Oregon's LexisNexis CD; however, it can be reviewed in

APPENDIX E, McClure v. RPPPS, CA A163095, Petitioner's Opening Brief at Appendices 9— 10).

While the term severe emotional term is addressed and defined by the 2014 edition of Diagnostic and Statistic Manual of Mental

Disorders, Fifth Edition (See APPENDIX E, McClure u. BPPPS, CA A163095, Petitioner's Opening Brief at Appendices 4-5), respondent

fails to properly rely on the criteria set by the current DSM-V. That brief reveals that petitioner does not qualify for a diagnosis of present

severe emotional disturbance (PSED) because he does not meet all four criteria as required.

-I

vague', and therefore violate due process' and equal protection principles under Article I, section 20 of the Oregon

Constitution', and Section loft/it Fourteenth Amendment to the U.S. Constitution'.

Oregon Statute

The challenged statue in this case:

"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 release date until a specific future date." ORS

144.125(3) (Or Laws 1977c. 372, §6; Or Laws 1981 c. 426, §2).

Legislative history of ORS 144.125(3)

In 1977, RB 2013 enacted ORS 144.125(3), which provided:

"If a psychiatric or psychological diagnosis of present severe emotional disturbance9 has been

made with respect to the prisoner, the board may order the postponement of the scheduled release

date until a specific future date." ORS 144,125(3) (Or Laws 1977 c. 372, §6(3)).

Vague: 'imprecise; not sharply outlined; indistinct; uncertain. Vagueness raises due process concerns if legislation does not provide fair notice

of what is required or prohibited, because enforcement may be arbitrary.' Black's Law Dictionary, Eighth Edition, Bryan A. Garner,

editor in chief; West, 2004, p. 1585. Unconstitutionally vague is defined: "(Of a penal legislative provision) so unclear and indefinite as not to

give a person of ordinary intelligence the opportunity to know what is prohibited; (of language) describing a distribution around a central

form, as opposed to a neatly bounded class; broadly indefinite." Id. "1. not clearly expressed; not having an exact or precise meaning; 2. not

clearly defined." Webster's Third New International Dictionary, p.2528.

Fourteenth Amendment does not operate to deprive states of their lawful power and of right to resort to reasonable methods inherently belonging

to power exerted; provisions of due process clause only restrain those arbitrary and unreasonable exertions of power which are not really within

lawful state power since they are so unreasonable and unjust as to impair or destroy fundamental rights. American Land Co. v Zeiss, 219 US

47, 55 LEd 82, 31 5 CL 200(1911). State can, consistently with Fourteenth Amendment provide for differences so long as result does not amount

to denial of due process or invidious discrimination. Douglas u California, 372 US 353, BLEd 2d 811, 83 SOt 814(1963), reh den 373 US 905,

lob Ed 2d 200, 835 Ci 1288(1963). Phrase 'due process of law' does not mean that operations of state government shall be conducted without

error or fault in any particular case, nor that Federal courts may substitute their judgment for that of state courts, or exercise any general review

over their proceedings, but only that fundamental rights of prisoner shall not be taken from him arbitrarily or without right to be heard according

to usual course of law in such cases. Frank u Mangum, 237 US 309, 59 L Ed 969, 35S Ct 582(1915).

'No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong

to all citizens.' Oregon Constitution, Article I, Section 20.

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. Section 1, Fourteenth Amendment of the United States Constitution.

It should be noted that the legislatures in 1977 and 1981 could not foresee that the medical society would evolve their definitions and criteria for

severe emotional disturbance. As such, because the current (2014 edition) of Diagnostic and Statistic Manual of Mental Disorders, Fifth

Edition now clearly provides both a clear definition and criteria, the Oregon legislature, as well as the respondent, should be required to amend

their laws to reflect what the medical standard reflects (especially in the light that Oregon still employs the use of psychologists to make a

prerequisite diagnosis and because Oregon fails to define the 'legal" standard relied upon).

In 1981, RB 2328 amended subsection (3) and added the phrase "such as to constitute a danger to the health or

safety of the community."

"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 release date until a specific

future date." ORS 144,125(3) (Or Laws 1981 c. 426, §2).

The 1981 legislatures were revisiting what the statute needed to achieve and the conditions under which

respondent could defer an inmate's release, to comply with a federal court decision in Daniels v. Cogswell, Civ.

No. 79-651, 1979 U.S. Dist LEXIS 15399 (D. Or September 13, 1979)'°. The 1981 Legislature was in effect reenacting subsection (3) of ORS 144.125, because the previous standard allowed respondent to defer release based on

a disability, without a finding that the inmate posed a danger to the community. Therefore, the legislative history

from 1981 provides insight into the legislature's intent in using the term PSED.

In 1981, staff counsel Felicia Gniewosz explained that the bill would amend the statute to provide that if a

prisoner's parole release date was postponed due to a severe emotional disturbance, that disturbance had to be

accompanied by a finding that the condition constituted a danger to the health and safety of the community. See

Tape recording, Senate Committee on Justice, HB 2328, July 7, 1981, Tape 271, Side B (statement of staff

counsel Felicia Gneiwosz). Gneiwosz said that the rationale was that if the respondent deferred an inmate's parole

for reasons that did not affect other people, then the inmate was being held for civil reasons, which would entitle

the inmate to the protections of the state civil commitment procedures. Id. at Tape 271, Side B. Although

Gneiwosz's statement explained the reasoning behind the additional requirement that the inmate constitute a

danger to the community, she did not provide any guidance as what PSED meant.

A short debate on the house floor followed the introduction of RB 2328. See Tape Recording, House Floor,

JIB 2328, April 29, 1981, Tape 10, Track H. Representative Mason introduced the bill and explained that the

Held: Parole denials/postponements based on 'severe emotional disturbance" violated prisoners' rights under Section aOl of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. §794.

amendment was proposed in light of the Oregon federal district court decision in Daniels v. Cogswell, Id.

(statement of Rep. Mason). Representative Priestly asked for an explanation as to why an inmate should be kept

beyond his sentence due to an emotional disturbance Id. (statement of Rep Priestly). Mason explained that an

inmate had to be let out at his good time date regardless of mental condition and that respondent did not have the

authority to extend an inmate's time due to a dangerous mental condition. Id. (statement of Rep. Mason). Mason

explained further that the only effect of the amendment was to allow the respondent to defer the parole of an

inmate who was "insane and dangerous." Id. Respondent could not extend an inmate's sentence; it just did not

have to release "insane and dangerous" people.

Mason's explanation of the 1981 amendment to ORS 144.125(3) provides some insight as to what the legislature

intended the term PSED to mean. The legislature was seeking to provide the respondent with authority to defer

the parole release dates of "insane" and "dangerous" inmates. Black's Law Dictionary defines "insanity":

"The term is a social and legal term rather that a medical one, and indicates a condition which

renders the affected person unfit to enjoy liberty of action because of the unreliability of his

behavior with concomitant danger to himself and others. The term is more or less synonymous

with mental illness or psychosis." Black's Law Dictionary 749 (6th ed. 1990).

"Insane" is commonly defined as, "of a person: exhibiting unsound or disorder of mind:

* * *

disordered in mind

to such a degree as to be unable to function safely and competently in ordinary human relations." Webster's Third

New Intl Dictionary 1167. "Insane" is further defined as, "of or pertaining to one who is of unsound mind."

Campbell's Psychiatric Dictionary 511(2009).

From those definitions, it appears that the legislature intended to provide respondent with authority to defer

the release date of inmates who are severely mentally ill, and as a result of that illness, pose a danger to the

community as a whole. Although the history illustrates the legislature's general intent in the statute, the term

PSED still lacks a clear definition that can be applied to the individual and unique circumstances of an inmate's

Unsound: not mentally sound or normal: not wholly or consistently sane. Webster's Third New Int'l Dictionary 2511.

case. It should also be distinguished that PSED was not defined or criteria set in place when the legislature

originally passed ORS 144.125(3). Now that the DSM-V clearly defines the term and sets criteria in place for

making a proper finding for PSED, there is no reason why the current legislative body to not amend the ORS to

reflect current intent of the law.

Although there is scant legislative history that provides evidence as to what the legislature intended PSED to

mean, the short discussion on the house floor in 1981 does illustrate the general policy of ORS 144.125(3).

Legislators were concerned with release of inmates who posed a danger to society because of severe mental illness.

To address this concern, the legislature provided respondent with the authority to defer an inmate's release if the

respondent concluded that, based on the severe mental illness, the inmate would pose a threat to the community if

released. Resort to this general maxim of statutory construction further illustrates that the legislature intended to

provide respondent with the authority to define PSED consistent with legislative intent.

Respondent's Administrative Rule

Respondent's corresponding regulation, which is based on ORS 144.125(3), provides:

"If the record indicates that a psychiatric or psychological condition of severe emotional disturbance

such as to constitute a danger to the health or safety of the community, is present, the Board may order

the postponement of the scheduled parole release date until a specific future date or until the prisoner or

institution presents evidence that the emotional disturbance is over or in remission." OAR 255-60-005(4)

(1982 Rule).

Review of Oregon Law

Reviewing Oregon statutes, petitioner finds only one that comes close to describing term "emotional

disturbance." In application to criminal statutes, the closest definition available is "extreme emotional distress,"

which falls under ORS 163.115('l)(a). However, its only permissible application is as a defense in criminal homicide

cases, not for any other crime. ORS 163.115(J); State v, Moore, 324 Or. 396, 927 P.2d 1073, 1084 (1996). An

explanation of the term "extreme emotional disturbance" does appear in Oregon case law as:

"That extreme emotional disturbance is the emotional state of an individual who: * * * (b) is exposed

to an extremely unusual and overwhelming stress; and (c) has an extreme emotional reaction to it, as a

result of which there is a loss of self-control and reason is overborne by intense feelings, such as passion,

anger, distress, grief, excessive agitation or other similar emotions." State v. Ott, 297 Or 375, 393, 686

P2d 1001, 1012 (1984) (citing People u. Shelton, 88 Misc2d 136, 149, 385 NYS2d 708, 717(1976)).

Further, a jury is required to receive guidance as to what constitutes an extreme emotional disturbance (for

example, jury instructions on the mitigating circumstances constituting emotional distress)".

Only two administrative rules, as used by other two other Oregon agencies, make any attempt in describing

what an emotional disturbance might consist of:

"Emotional Disturbance" means a condition exhibiting one or more of the following characteristics

over a long period of time and to a marked degree that adversely affects a child's educational

performance: (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors;

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (Q

Inappropriate types of behavior or feelings under normal circumstances; (D) A general pervasive mood of

unhappiness or depression; or (E) A tendency to develop physical symptoms or fears associated with

personal or school problems; (F) The term includes schizophrenia but does not apply to children who are

socially maladjusted, unless it is determined that they have an emotional disturbance. Oregon

Department of Education: OAR 581-015-2000(4)(d).

'Mental or Emotional Disturbances (MED" means a disorder of emotional reactions, thought

processes, or behavior that results in substantial subjective distress or impaired perceptions of reality or

impaired ability to control or appreciate the consequences of the person's behavior and constitutes a

substantial impairment of the individual's social, educational, or economic functioning. Medical

diagnosis and classification shall be consistent with. the Diagnostic and Statistical Manual of Mental

Disorders of the American Psychiatric Association (DSM-V. As used in these rules, this term is

functionally equivalent to "serious and persistent mental illness." The Oregon Health Authority, Health

Systems Division, Mental Health Services, OAR 309-040-0305(54).

It is interesting to note that Oregon's mental health authority now recognizes and employs use of the current

DSM-Vin defining what an emotional disturbance is, while respondent, who is responsible for promulgating rules"

When defense is extreme emotional disturbance, jury should be instructed on meaning of whole term rather than singling out word extreme

for amplification. It should be noted that the court also pointed out that at least five elements were to be used in making a determination. Ott,

supra. This certainly is not the standard held by respondent.

The Board shall adopt all new and resed rules in accordance with the prosisions of ORS Chapter 183, the Oregon Attorney General's Model

Rules of Procedure and ORS 192.610 to 192.710. The Board will use only those sections of the Model Rules which relate to rulemaking. OAR

255-001-0010(1).

based upon ORS 144.125(3)', simply has not bothered to adopt or amend rules that provide a current definition of

what constitutes a PSED15.

Oregon courts have determined that the term PSED is a legal, rather than medical term". Weidner v.

Armenahis, 154 Or App 12, 19, 959 P2d 623, vac'd and rem'd as moot, 327 Or 317(1998), reasoning readopted and

reaffirmed in Merrill v. Johnson, 155 Or App 295, 964 P2d 284, rev den, 328 Or 40(1998). The state appellate

court determined that, while a "psychiatric or psychological diagnosis is a prerequisite to the Board's consideration

of whether the criteria have been met

the determination as to whether a prisoner suffers from a severe

emotional disturbance as to constitute a danger to the health and safety of the community is a judgment that the

legislature intended the Board to make." Id.

Because the term PSED was not defined by the DSM-IV, it has been deemed a legal determination for the

respondent to make, the court citing the term has a "less precise meaning" that requires agency interpretation.

Springfield Educ, Assn. V. Sch. Dist., 290 Or 217, 227, 621 P2d 547 (1980). However, legislative intent meant

application of the statute to reflect current standards excepted by the psychiatric/psychological community, not just

those standards which were or were not in effect from 1977 through 2014. The 2014 edition of Diagnostic and

Statistic Manual of Mental Disorders, Fifth Edition clearly defines emotional disturbance and sets criteria to

make such a determination. Thus, while PSED was considered an inexact term back in 1998, the court should

review respondent's current interpretation of the term "to ensure that is consistent with the legislature intent" in

As pointed out in Davis on Administrative Law, the important consideration is not whether the statute delegating the power expresses

standards, but whether the procedure established for the exercise of the power furnishes adequate safeguards to those who are affected by the

administrative action. 1 Davis, Administrative Law Treatise, 2,10, 2.15, 7.20. There is no lack of suggestion that a prior specification of

grounds should he a prerequisite of due process in administrative as well as penal deprivations. See, e.g., Davis, Administrative Law of the

Seventies 28, 224 (1976).

ORS 183.400(2) mandates that the Oregon Supreme Court 'shall declare the rule invalid if it finds that it violates constitutional provisions or

exceeds the statutory authority of the agency * *

The appellate court in Weidner reasoned that the DSM.IV does not provide for a psychological diagnosis of severe emotional disturbance.

Weidner, 154 Or App at 17. Petitioner believes the Oregon court was in error in their reasoning mainly because (1) severe emotional

disturbance is a diagnosis which can only be determined by a psychiatrist or psychologist, (2) the term now has a clear definition and criteria

as provided by the Diagnostic and Statistic Manual of Mental Disorders, Fifth Edition (DSM-V), and, (3) respondent still relies upon

psychologists to make prerequisite findings before respondent can establish PSED.

content of current understanding of the term. Bergerson v. Salem-Keizer Sch. Dist., 341 Or 401, 411, 144 P3d

918 (2006). Oregon courts have failed to review current interpretation of the term, especially in the light of current

DSM-V definition of the term PSED, to ensure that is consistent with the legislature's current intent".

Oregon has vested administrative authority in respondent to grant parole. ORS 144.050. To determine

whether to release an inmate on his projected release date, or to defer that date, the respondent conducts an exit

interview. See ORS 144.125(2) and (3). In making its release decision, respondent must determine whether the

inmate suffers from a PSED such as to constitute a danger to the health or safety of the community, thereby

warranting deferral of the inmate's release date. ORS 144.125(3); Weidner, infra, 154 Or at 12. When respondent

conducts exit interviews and determines whether an inmate suffers from a PSED, it is acting in its quasi-judicial

capacity. Since respondent must first rely upon findings made by a psychologist as a prerequisite in making a

finding of PSED, it must except the fact that their psychologists are required to rely upon the current version of the

DSM, that being the 2014 edition of Diagnostic and Statistic Manual of Mental Disorders, Fifth Edition

Respondent also has the authority to promulgate rules to interpret the laws it must administer. ORS

144,140(2). See ORS 183,325 ORS 183.355 (proscribing the methods and procedures that agencies must follow

to promulgate rules). "'Rule' means any agency directive, standard, regulation or statement of general applicability

that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any

agency." ORS 183.310(9). In the context of inexact terms, agency rulemaking serves two distinct functions: (1) it

provides notice of the agency's view of a term's proper application, and (2) it serves as a mechanism "to ascertain

what construct the agency will place on [a] term in the exercise of its discretion." Trebesch v. Employment Div.,

17 A proper and updated interpretation of severe emotional disturbance can only be achieved if respondent and the Oregon Courts employ current

standard as set by Diagnostic and Statistic Manual of Mental Disorders, Fifth Edition, not the older outdated versions of that manual.

Respondent's discretion is not without controls. The standards for PSED are those which are accepted by the community as established by the

current DSM- V. When the legislative assembly delegated authority over professional standards to respondent, it intended respondent to exercise

responsibility for those current standards.

EI]

68 Ore. App. 464, 468; 688 P.2d 1018; 1984 Ore. App. LEXIS 3863; aff'd and remanded, 300 Ore. 264, 710 P.2d 136,

1985 Ore. LEXIS 1682.

As noted above, PSED was until 2014 considered an inexact term that required the court to review the

respondent's interpretation of the term as a matter of law to ensure that the interpretation is consistent with the

legislature's intent. When a question of statutory construction involves an administrative agency's construction,

the court reviews the agency's construction "in accordance with the interpretive principles described in PGE v.

Bureau of Labor and Industries, 817 Or 606, 610-12, 859 P2d 1143 (1993)" and State v, Gaines, 346 Or 160,

206 P3d 1042(2009). See also Beiswenger v. PSRB, 192 Ore. App. 38, 44, 84 P.3d 180 (2004).

Since Weidner, supra, 154 Or App at 17, explained the term PSED as not a readily definable medical term, the

actual text of the statute provides little insight into the legislature's intended meaning. "Present," as it is commonly

used, means "now existing or in progress." Webster's Third New Intl Dictionary 1798 (unabridged edition

1993). "Severe," is defined as "of great degree or an undesirable or harmful extent: marked, serious." Id. at 2081

"Emotional," as it is commonly used, means "of or relating to emotion

* * *

motivated chiefly by the emotions as

opposed to the intellect * * *: largely lacking a rational justification." Id. at 742. Lastly, "disturbance," has a plain

and ordinary meaning of "the act or process of disturbing or the state of being disturbed"; "an interruption of a state

of peace or quiet: an agitating or agitation esp. of mind or feelings." Id. at 661.

At the time petitioner committed his crimes, the Oregon Administrative Rule in effect implementing ORS

144.125(3) provided:

Severe is used as a specifier. The specifiers, Mild] Moderate, and Severe should only be used when the full criteria for the disorder are

currently met, (Emphasis added by petitioner). In deciding whether the presentation should be described as mild, moderate, or severe, the

clinician should take into account the number and intensity of the signs and symptoms of the disorder and any resulting impairment in

occupational or social functioning.

Mild. Few, if any, symptoms in excess of those required to make the diagnosis are present, and symptoms result in no more than minor

impairment in social or occupational functioning.

Moderate. Symptoms or functional impairment between "mild" and "serious" are present.

Severe. Many symptoms in excess of those required to make the diagnosis, or several symptoms that are particularly severe, are

present, or the symptoms resulting in marked impairment in social or occupational functioning.

Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 2000; p. 2.

"If the record indicates that a psychiatric or psychological condition of severe emotional

disturbance such as to constitute a danger to the health or safety of the community, is present, the

board may order the postponement of the scheduled parole release date until a specific future date

or until the prisoner or institution presents evidence that the emotional disturbance is over or in

remission. "(a) In determining if a severe emotional disturbance exists, the Board may order a

psychiatric or psychological evaluation. "'b) If ordered, the psychiatric or psychological evaluation

shall be conducted to determine if a severe emotional disturbance exists and the prisoner's

potential for rehabilitation. An evaluation shall be provided which may consist of a diagnostic

study, including a comprehensive evaluation of pertinent medical, psychiatric, psychological,

vocational, educational, cultural, social and environmental factors which bear on the individual's

handicap to employment and rehabilitation potential, and, to the degree needed, an evaluation of

the individual's personality, intelligence level, educational achievements, work experience,

vocational aptitudes, and interests, personal and social adjustment, employment opportunities, or

other pertinent data helpful in determining the nature and scope of the services needed. The

evaluation should include recommendations for treatment or medication to assist in the

rehabilitation of the prisoner or to protect the health and safety of the community. After

considering the evaluation, the panel may require that the prisoner develop a plan with provisions

with are recommended in the evaluation and specific evaluations of emotional stability." OAR

255-60-005(4) (a), (b) (1982 Rule).

Although that rule established a lengthy list of requirements for the actual psychiatric or psychological

evaluation, it did not provide a definition for "severe emotional disturbance." Rather, the rule focused on requiring

an inmate to undergo a thorough psychological evaluation before releasing him on parole. Consequently, the

administrative rule does not provide context that is helpful to determine what the legislature intended when it used

the term PSED in ORS 144.125(3). And because none of the other provisions of the statute use the term PSED,

they do not provide helpful context in ascertaining the legislature's meaning of PSED.

Petitioner argues that ORS 144.125(9) (and respondent's OAR 255-60-005(4)) unconstitutionally delegates

authority to the respondent to award or deny parole, because it does not contain guidelines or objective standards

that limit respondent's authority nor does it furnish adequate safeguards to those who are affected by the

administrative action.

Further, ORS 144.125(3) (and respondent's OAR 255-60-005(4)) fails to provide adequate safeguards to those

who are affected by the administrative action. Petitioner argues that within the context of the challenged statute

and respondent's administrative rule, the term severe emotional disturbance is unconstitutionally vague, in that it

fails to inform prisoners what conduct is expected from them to achieve parole, and the term encourages arbitrary

and discriminatory enforcement by respondent. For those reasons, it fails to furnish adequate due process

safeguards to those who are affected by the administrative action.

5. Due Process Requirement

Under the Due Process Clause, standard analysis under that provision proceeds in two steps: first is whether

there exists a liberty or property interest of which a person has been deprived, and if so then whether the

procedures followed by the State were constitutionally sufficient. Kentucky Dept of Corrections v. Thompson,

490 U.S. 454, 460, 109 S. Ct, 1904, 104 L. Ed. 2d 506 (1989). The Supreme Court has held that State parole

systems "may create liberty interests in parole release that are entitled to protection under the Due Process

Clause." Bd. of Pardons u, Alien, 482 U.S. 369, 371, 107 S. Ci. 2415, 96 L. Ed. 2d 303 1987) (citing Greenholtz v.

Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979)).

Oregon law creates a liberty interest in parole. Whatever liberty interest exists is, of course, a state interest

created by Oregon law. There is no right under the Federal Constitution to be conditionally released before the

expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. Id. 442 U.S., at 7.

When, however, a state creates a liberty interest, the Due Process Clause requires fair procedures for its

vindication—and federal courts will review the application of those constitutionally required procedures. In the

context of parole, the Supreme Court has held that the procedures required are minimal. In Greenholtz, this court

found that a prisoner received adequate process when he was allowed an opportunity to be heard and was provided

a statement of the reasons why parole was denied. 442 U.S., at 16. "The Constitution," we held, "does not require

more." Ibid. However, petitioner in this case has not received this amount of process: While he contested the

evidence being relied upon and used against him, he was not afforded substantial reasons regarding the use of

inadmissible evidence and/or why parole was deferred. More importantly, while petitioner has challenged the

constitutionality of ORS 144.125(3) (and OAR 255 - 60-005(4)), there is still a lack of a clear definition regarding

what conduct is expected in order to be or not be suffering from a "PSED."

Application of a vague statute may violate the right to fair notice guaranteed by the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.

The void for vagueness doctrine is embodied in the Due Process Clause of the Fifth and Fourteenth Amendments

of the United States Constitution (Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547 (1974); Baggett v. Bullitt, 377

U.S. 360, 84 S. Ct. 1316 (1964))20, and is a general principle of statutory law that a statute must be definite to be

valid. To pass constitutional muster, statutes challenged as vague must give a person of ordinary intelligence a

reasonable opportunity to know what is prohibited and provide explicit standards for those who apply it to avoid

arbitrary and discriminatory enforcement. City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L.

EL2d 67, 72 A.L.R. 5th 665 (1999); U.S. v. Wunsch, 84 F.3d 1110 (9th Cir. 1996). It has been recognized that a

statute is so vague as to violate the Due Process Clause of the United States Constitution where its language does

not convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding

and practices, or stated otherwise, where its language is such that people of common intelligence must necessarily

guess at its meaning. U.S. v. Wyatt, 408 F.3d 1257, 1260 (9th Cir. 2005). This is also a valid application under the

Oregon Constitution. Oregon Constitution, Art. I, §§ 20 and 21; Delgado v. Sanders, 46 P.3d 729, 744-749,

334 Or. 122, 143.152 (2002).

Vagueness doctrine is applicable to legislation which is lacking in clarity and precision. Grayned v. City of Rockford, 408 U.S. 104, 92S. Ct.

2294(1972); Zwickter p. Koota, 389 U.S. 241, 885. Ct. 391 (1967). "Vagueness' is a catchword for a number of asserted constitutional violations,

including the prohibition of ex post facto laws, Or Const, Art 1, §21; State v. Hodges, 254 Or at 27, and the prohibition against standardless and

unequal application of the laws, Or Const, Art!, §20; see State v. Robertson, 293 Ore 402, 649 P,2d, 1982 Ore I1EX1S 975. Vague statutes may

also violate the federal Due Process Clause, U.S. Const, Amend XIV.

deprive any person of life, liberty, or property without due process of law." U.S. Constitution,

The law provides: "No state shall

...

Fourteenth Amendment, §1; Route v. Columbia, 378 U.S. 347, 353-54, 845. Ct. 1697,12 L. P2.24 894(1964).

Simply put, ORS 144.125(3) (and OAR 255.60-005(4)) is unconstitutionally vague in that without a defined term

of "PSED" it lacks ascertainable guidelines or standards as to what conduct will result in deferral of parole.

Further, ORS 144125(3) is unconstitutionally vague in that without a defined term of "PSED" it fails to give fair

warning to prisoners as to how they may change and/or achieve behavior leading to parole. Winters v, New York,

333 U.S. 507, 515, 68 S. Ct. 665 (1948) ("[People] of common intelligence cannot be required to guess at the meaning

of the enactment"). Additionally, the undefined term encourages arbitrary and discriminatory enforcement by the

respondent. Such is a proscribed course of conduct by the respondent. Morales, 527 U.S. at 56.57.22

A statute is void for vagueness if its prohibitions are not clearly defined, because people of ordinary intelligence

ought to be able to know what is prohibited, and laws must provide explicit standards for those who apply them to

avoid arbitrary and discriminatory enforcement. U.S. v. Harris, 185 F.3d 999, 1004 (9th Cir. 1999).

The essential purpose of the "void for vagueness" doctrine is to warn individuals of the consequences of their

conduct. U.S. v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004). As applied by respondent, ORS 144.125(3) fails to

warn petitioner as to what is expected of him in terms of leading to or departing from conduct which would subject

him to a classification of having an "emotional disturbance."

"A statute is void for vagueness if it fails to give adequate notice to people of ordinary intelligence concerning

the conduct it proscribes, or if it invites arbitrary and discriminatory enforcement." U.S. v. Adams, 343 F.3d 1024,

1035 (9th Cir. 2003) (citing Schwartmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir. 1984)). See also: Kolender

u. Lawson, 461 U.S. 352, 357,103 S. Ct. 1855 (1983).

ORS 144.125(3) (and OAR 255.60.005(4)) is unconstitutionally vague under the vagueness standard because the

term "PSED" is undefined. Because of that fact, respondent can engage in arbitrary and discriminatory

Held in Oregon: ORS 144.125(3) sets out the legal standard for the Oregon Board of Parole and post-Prison Supervision to apply in considering

whether an inmate has a severe emotional disturbance, which is not a diagnosis for the medical or psychological community to make. McClure v.

Hill, 2003 U.S. That. LEXIS 25367 (D. Or. Apr. 82003). However, that court failed to make any analysis or finding which would indicate how it

reached such a conclusion or which would explain how respondent would reach a legal standard that is not clearly defined.

enforcement of such law towards parole candidates. This invites unequal treatment of parole candidates in

violation of law. Oregon Constitution, Art. I, § 20; U.S. Constitution, Fourteenth Amendment, §1.

In context of due process, the term "PSED," as used in ORS 144.125(3) (and OAR 255-60-005(4)) is

impermissibly vague in the sense that it contains no identifiable standards, Lawson, 461 U.S. at 358, or it employs

a standard that relies on the shifting and subjective judgments of the persons (respondent) who are charged with

enforcement of such. Morales, 527 U.S. at 62. A law or regulation fails to meet requirements of Due Process

Clause if it so vague and standardless that it leaves respondent free to decide, without any legally fixed standards,

what is prohibited and what is not, or what conduct leads to and what conduct does not lead to a finding of "PSED,"

in each particular case.

Further, ORS 144.125(3) (and OAR 255-60-005(4)) fails to provide adequate safeguards, such as any degree of

fair warning as to what is expected from prisoners in order for them to obtain parole, to those who are affected by

the administrative action, Grayned v. City of Rockford, 408 U.S. at 108, or sufficiently identify what conduct is

prohibited. U.S. v. Wunsch, 84 F.3d at 1119. See also: Planned Parenthood of ColumbialWillamette, Inc. v.

American Coalition of Life Activists, 945 F. Supp. 1355 (D. Or. 1996).

The statute and/or regulation must "be sufficiently clear so as not to cause persons 'of common intelligence

* * *

necessarily [to] guess at its meaning and [to] differ as to its application [.]" U.S. v. Wunsch, supra (quoting

Connally v. General Constr. Co., 269 U.S. 385, 391, 46S. Ct. 126, 127, 70 L. Ed. 322 (1926)).

Challenge here is directed to the phrase "PSETY' because it is not sufficiently defined in clear and explicit terms

to apprise respondent, petitioner, and others so situated, of what conduct is prohibited and/or what conduct is used

as a standard in determining criteria of what constitutes a "PSED."

"Vagueness" is a catchword for a number of possible constitutional violations. For example, in State v.

Hodges, 254 Or 21, 27, 457 P2d 491 (1969), the court explained:

"A vague statute lends itself to an unconstitutional delegation of legislative power to the judge and

jury, and, by permitting the jury to decide what the law will be, it offends the principle, if not the rule,

against ex post facto laws." A vague statute also violates Article I, section 20, of the Oregon Constitution,

in that it invites "standardless and unequal application of penal laws." State v. Graves, 299 Or at 197,'

State v. Robertson, 293 Or at 408.

In criminal cases, one concern about overly general or vague penal laws is that they not only allow a court or a

jury to define a crime but to do so after the fact, contrary to Article I, Section 21 of the Oregon Constitution. See

State V. Blair, 287 Or 519, 601 P2d 766 (1979), quoting from State v. Hodges, 254 Or 21, 457 P2d 491 (1969).

Another concern is that such laws do not give fair notice of what they proscribe in time to let a person conform to

the law, so that the imposition of punishment deprives the person of liberty or property without due process of law

under the Fourteenth Amendment. See Hodges, supra.; Lanzetta v. New Jersey, 306 U.S. 451, 59 S Ct 618, 83 L

Ed 888 (1939) ("a statute which * * * forbids * * * the doing of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due

process of law"). As a premise for a requirement of due process, the right to notice of the law has its own problems.

But in any event this principle, like that against ex post facto laws, is generally confined to penal sanctions. No one

familiar with the common law expects due process to preserve one either from indefinite standards or from their

delegation to juries or judges in civil cases, though one may stand to lose far more than under many criminal laws.

See Anderson v. Peden, 284 Ore. 313, 324, 587 P.2d 59(1978)23.

In Anderson v. Peden, supra, the court distinguished between different types of legislative vagueness. Legislation that imposes a penalty or

sanction for past conduct is unconstitutionally vague if it fails to provide notice of the conduct it prohibits and allows a prosecutor, jury or judge to

decide what conduct is prohibited. Id. at 324. In contrast, legislation that authorizes administrative decision- making " is not unconstitutional

merely because the terms of the legislative directive are general and vague." Id, at 325. Vagueness challenges to such legislation involve "issues of

the constitutional allocation of powers, not of procedural fairness to particular persons" Id. To withstand a vagueness challenge in this context,

the legislation must contain sufficient guidelines for the exercise of the administrative decision-making authority. In Anderson, the court

concluded that the purposes section of a zoning ordinance summarized the general policy of the land use regulations sufficiently to guide the board

of commissioners' exercise of their administrative discretion. Id.

A liberty interest is at issue for prisoners appearing at parole exit interview hearings Respondent abuses its

discretion when making a finding that is not clearly defined by law and by arbitrarily applying the undefined term

upon prisoners to defer parole. Parole should not be deferred or denied on basis of use of criteria which are vague

and ambiguous".

Petitioner argues that the definition of "PSED," ORS 144.125(3) (and OAR 255- 60- 005(4)), is so subjective that

it fails to provide any adequate safeguards to those who are affected by the administrative action in that it fails to

give potential parole candidates notice of its scope and allows the fact finder (respondent) to decide, after the fact

and according to its own sensibilities, whether or not an inmate is currently suffering from a severe emotional

disturbance.

In the context of vagueness, a reasonable degree of certainty is required by Oregon law to avoid unconstitutional

vagueness. Oregon Constitution, Art. I §§ 20 and 21; State v. Ausmus, 37 P.3d 1024, 178 Or. App. 321, 326,

review allowed, 49 P.3d 797, 334 Or. 288, reversed, 85 P.3d 864, 336 Or. 496 (2001); City of Portland v. Levi, 98

Or. App. 341, 344, 779 P.2d 192 (1980), review denied, 309 Or. 645, 789 P.2d 1387 (1990); State v. Graves, 700

P.2d at 247. A criminal statute is unconstitutionally vague when it is not sufficiently definite to inform those who

are subject to it what conduct on their part will render them liable to its sanctions. State v. Johnson, 50 Or App

24 Statutory entitlement to parole may, under some circumstances, create a liberty interest that is cognizable for purposes of the Due Process clause

of the Fourteenth Amendment to the United States Constitution. ORS 144.125;Hamel v. Johnson, 25 P.3d 314, 173 Or. App. 448, review denied,

39 P.3d 193, 333 Or. 162 (2001). Where a prisoner has a scheduled parole release date, the liberty interest is greater for purposes of the due

process clause than that of a prisoner merely eligible for parole. Murphy v. Thompson, 15 Fed. Appx. 417 (9th Cir. 2001); Plumb v. Prinslow,

847 F. Supp. 1509, 1522 V. Or. 1994). Statutory entitlement to parole may, under some circumstances, creates a liberty interest that is

cognizable for purposes of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Greenholtz v. Nebraska

Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct, 2100, 60 L. Ed. 2d 668 (1979). State statute created liberty interest in parole release

protected under due process clause of Fourteenth Amendment, since statute used mandatory language ["shall"] to create presumption that parole

release could be granted when designated findings were made, such presumption is created where release is mandated "if," 'when," or "subject to"

certain findings being made, "substantive predicate" of parole release under statute were similar to those in another parole statute previously

found to create liberty interest, and legislative history supported conclusion that statute placed significant limits on parole board's discretion.

Board of Pardons v Alien, 482 US 369, 96L Ed 2d 303,107 S Ct 2415(1987).

25 Respondent faced this situation in 1979. Respondent was enjoined by the federal court from enforcing and applying ORS 144.125(3) to prisoners

on the basis of alleged "severe emotional disturbance" since such an action violated rights under Section 504 of the Rehabilitation Act of 1973.

See: Daniels v. Cogswell, supra.. Oregon courts have not adequately addressed the issue of whether or not the term "severe emotional

disturbance" as used in Oregon statute and/or in the Board's administrative rule is unconstitutionally vague and ambiguous.

33, 36, 621 P2d 677 (1981); State v. Tucker, 28 Or App 29, 32, 558 P2d 1244, rev den 277 Or 491 (1977). '[A]

statute which defines criminal conduct is void for vagueness if language describing elements of the offense is so

elastic that men of common intelligence must necessarily guess at its meaning. State v. Sanderson, 39 Or App

173, 176, 5 75 P2d 1025 (19 78) 26.

Oregon has addressed facial vagueness challenges, in that to succeed on a facial claim, a party must show that a

statute or regulation is unconstitutionally "vague in all of its possible applications." State v. Chaherian, 938

P.2d 756, 325 Or. 370 (1997)

27; State v. Robertson, supra, 293 Or. at 411 n.8 (quoting Village of Hoffman

Estates v. Flipside, Hoffman Estates, inc., 455 U.S. 489, 494-95, 102 S. Ct. 1186, 1191-92, 71 L. Ed.2d 362

(1982))28. In other words, the statute must be shown to speci& "no [discernable] standard of conduct

* * *

at all."

Ibid. (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 1688, 29 L. Ed.2d 214 (1971)).

ORS 144.125(3) fails to specify what standard of conduct is necessary for making a finding that a parole candidate

is suffering from a "PSED" and it fails to provide sufficient, clear, and objective standards that will lead to a finding

that a parole candidate is not suffering from a "PSED." As such, respondent is free to make a determination in an

arbitrary and discriminatory fashion.

26 M example can be shown where an Oregon statute vesting a school respondent the power to dismiss teachers for immorality without defining

immorality is unconstitutionally vague because it fails to give warning of what conduct is prohibited and permits erratic and prejudiced exercises

of authority. Burton v. Cascade School Dist, Union High School No. 5, 353?. Sapp. 245, affirmed, 512 F.2d 850, certiorari denied, 96,5. Ct.

69, 423 U.S. 839, 46L. Ed.2d 59(1973). We have the same situation in this case, where both the statute and the administrative rule fail to define

'PSED," leaving petitioner wondering how respondent comes up with such a finding and how he can possibly achieve desired conduct that is not

defined.

As the Supreme Court explained in llhig-Renn, to say that a law is unconstitutionally 'vague" can refer to any of three different problems. First, a

statute may be so vaguely crafted as to permit arbitrary or unequal application and uncontrolled discretion, in violation of Article I, Sections 20

and 21, of the Oregon Constitution. State v. llig-Renn, 341 Ore. 228, 239, 142 P.3d 62(2006). Second, a statute may create an 'unlawful

delegation issue' under the Due Process Clause of the Fourteenth Amendment to the U. S. Constitution in that it contains no identifiable standards

or employs standards that rely on the 'shifting and subjective judgments of the persons who are charged with enforcing it." Id. at 240. Third, a

statute may be so poorly written as to fail to provide "fair warning" of the conduct that it prohibits, in violation of the Due Process Clause, Id. at

241. See also: State v. Sutherland, 329 Ore. 359, 365, 987 P.2d 501 (1999): "For a statute to be facially unconstitutional, it must be

unconstitutional in all circumstances, i.e., there can be no reasonably likely circumstances in which application of the statute would pass

constitutional muster."

28 TheOregon constitutional provisions relating to ex post facto laws and equal privileges and immunities provide protections additional to the fair

notice requirements of the Fourteenth Amendment. These provisions were applied in Gaffey v. Babb, 50 Or. App. 617, 624 P.2d 616, review

denied, 291 Or. 117(1981).

Because it lacks a definition, ORS 144.125(3) must be found to be facially unconstitutional". There can be no

reasonably likely circumstance in which the application of ORS 144.125(3) would pass constitutional muster.

Respondent only applies ORS 144.125(3) and its corresponding administrative rule (OAR 255-60-005(4)) to inmates

who are illegible for parole consideration. Each parole consideration case might be different, but one factor should

be taken into consideration. Both the legal and medical communities fail to come to a congruency where the term

"PSED" is concerned. As shown, supra, ORS 144.125(3) lacks a clear definition, and only three state agencies even

make an attempt to define the term. Respondent's corresponding administrative rule (OAR 255-60-005(4)) also

lacks a definition. In respect to the medical community, their own authoritative manual, the First through Fourth

Editions of Diagnostic and Statistic Manual of Mental Disorders (Washington, DC, American Psychiatric

Association"), lacked a definition for the term emotional disturbance, However, the current edition, the DSM•V

does clearly cite both definition and criteria needed to make a finding of PSED. Respondent, while relying on its

own administrative rules for authority to order psychological evaluations for parole candidates, nevertheless still

overrule the psychologists' findings and make findings of "PSED" on a basis which lacks a standardized definition

and criteria. Respondent believes that Oregon courts have made this act permissible by the decisions in Weidner v.

Armenakis, 154 Ore. App. 12, 959 P2d 623, vac'd and rem'd 327 Ore. 317, 966 P2d 220 (1998, dismissed by order,

July 13, 1998, reasoning readopted and reaffirmed in Merrill v. Johnson, 155 Ore. App. 295, 964 P2d 284, rev

den, 328 Ore. 40, 977 P.2d 1170 (1998), by giving them authority to make a "legal' finding instead of a "medical'

finding. Weidner v. Armenahis, 154 Or App at 16. Regardless, if Oregon subjects the statute to a "legal" finding

standard then the legal term must also be defined. Otherwise, the legal term is just as facially unconstitutional.

The court interprets statutory terms under methodology set out in PGE v. Bureau of Labor and Industries, supra. Under that methodology,

the court looks first to the text and context of the statute. If text and context yield an unambiguous meaning, the court proceeds no further. If the

answer is not clear after examining the text and context, the court then inquires into legislative history. Finally, if the legislative history coupled

with the text and context provides no unambiguous answer, the court turns to legal maxims of statutory construction. Id. at 610-12.

This changed in 2014 with the Diagnostic and Statistic Manual of Mental Disorders, Fifth Edition.

6. Equal Protection Requirement

The United States Supreme Court, in Colautti v. Franklin, 439 U.S. 379, 99 5 Ct 675, 58 L Ed 2d 596 (1979),

reiterated an often articulated standard for determining if an enactment is void for vagueness:

"It is settled that, as a matter of due process, a criminal statute that 'fails to give a person of ordinary

intelligence fair notice that his contemplated conduct is forbidden by the statute,' * * * or is so indefinite

* * *

'This

that 'it encourages arbitrary and erratic arrests and convictions,' * * * is void for vagueness.

appears to be especially true where the uncertainty induced by the statute threatens to inhibit the

exercise of constitutionally protected rights. * * *i (Citations omitted.) 439 U.S. at 390.

In this case, petitioner is a member" of a class, whose prisoners are designated as suffering from "PSED," an

undefined term used in both ORS 144.125(3) and OAR 255.60.005(4). The provision of an undefined term violates

the Equal Protection Clause of the Fourteenth Amendment because it explicitly discriminates on the basis of a

disability" that is left undefined by the Oregon Courts and/or and the respondent. The traditional test for denial of

equal protection under state law is whether challenged classification rests on grounds wholly irrelevant to

achievement of valid state objective. Turner v Fouch, 396 US 346, 24 L Ed 2d 567, 90 5 Ct 532 (1970). Since

neither ORS 144.125(3) nor OAR 255.60.005(4) possess a legal" definition or standards which one can refer to, it

can not be presumed that the law is related to the achievement of any important governmental objective by the

state of Oregon.

In addition to giving fair notice of prohibited conduct, a criminal statute must not be so vague as to allow a

judge or jury (or as applicable to this case, administrative body) unbridled discretion to decide what conduct to

punish. A law that gives such unbridled discretion to judges and juries (and administrative bodies) offends the

principle against standardless and unequal application of criminal laws embodied in Article I, Section 20, of the

Oregon Constitution, and the principle against ex post facto laws embodied in Article I, Section 21, of the Oregon

31 Petitioner is also an individual. Equal protection of laws is right of individual, not merely of group of individuals, or of body of persons according

to their number. Mitchell v United States, 313 US 80,85 LEd 1201, 61 S Ct 873 (1941).

Disability includes a mental impairment pursuant to the Americans with Disabilities Act. See 42 U.S. C. § 12102(3) and ORS 659A.104(1).

Term severe emotional disturbance is currently defined and has standard criteria. See: Diagnostic and Statistic Manual of Mental

Disorders, Fifth Edition (See APPENDIX E, McClure v. BPPPS, CA A163095, Petitioners Opening Brief at Appendices 4 5).

Constitution. State v, Plowman, 314 Ore. 157, 838 P.2d 558, 1992 Ore. LEXIS 158, 61 U.S.L.W. 2149, 22

AL .R .5th 835 (1992), writ of certiorari denied by 508 U.S. 974, 113 S. Ct. 2967, 125 L. Ed. 2d 666, 1993 U.S.

LEXIS 4097,61 U.S.L.W. 3834(1993); State v. Graves, supra, 299 Or at 195.

A reasonable degree of certainty is required by Article 1, §§ 20 and 21 of the Oregon Constitution. "[A] criminal

statute must be sufficiently explicit to inform those who are subject to it of what conduct on their part will render

them liable to its penalties." State v. Plowman, supra; State v. Graves, supra.

The term "PSED," as used in ORS 144.125(3) (and OAR 255.60.005(4)) is unconstitutionally vague since one

cannot ascertain with reasonable degree of certainty what conduct is required to safeguard them from the penalty

of the statute. Further, it grants an impermissible classification of who might be suffering from "PSED" while

failing to define the legal term itself.

In State v. Vasey, 80 Ore. App. 765, 767-68, 723 P.2d 1068, rev den 302 Ore. 299, 728 P.2d 531 (1986), the

Oregon Appellate Court discussed when a statute is unconstitutionally vague, stating:

"The flaw of a vaguely worded criminal statute is that, by imprecisely defining criminal conduct the

legislature impermissibly delegates to the police, judges and juries the power to decide whether conduct

is punishable and invites unequal application of the penal laws. Vague statutes also fail adequately to

apprise ordinary persons of what conduct is proscribed." Id. citing State v. Robertson, 293 Ore. at 40809. Nonetheless, a statute or ordinance need not define an offense so precisely that a person can

determine "the specific conduct that will fall within reach of the statute, but a reasonable degree of

certainty is required." City of Portland v. Levi, 98 Ore, App. At 344.

The burden is on Oregon to uphold statutes that expressly discriminate on the basis of disability to advance an

exceedingly persuasive justification for the challenged classification. Oregon has not bothered do this. A state may

not, by any of its agencies, disregard prohibitions of Fourteenth Amendment. Georgia Power Co. v Decatur, 281

US 505, 74 L Ed 999, 50 S Ct 369(1930).

Further, because Oregon has failed to give definition to the term "PSED," it creates a classification that is

arbitrary and unreasonable. It simply may apply the term "PSED" to each prisoner in any manner respondent

wishes, thus creating unequally treatment towards each individual. Mere fact of classification is not sufficient to

relieve statute from reach of equal protection clause of 14th Amendment, but classification must be based upon

some reasonable ground, some difference which bears just and proper relation to attempted classification, and is

not mere arbitrary selection. Gulf, C. & S. F. R. Co. v Ellis, 165 US 150, 41 L Ed 666, 17 5 Ct 255 (1897);

Radice v New York, 264 US 292, 68 L Ed 690, 44 S Ct 325 (1924). Without a clear definition or standards setting

forth what constitutes a "PSED," respondent's action becomes an arbitrary selection.

Validity of state statute under equal protection clause of Fourteenth Amendment also depends on how it is

construed and applied. Concordia Fire Ins. Co. ii Illinois, 292 US 535, 78 L Ed 1411, 54 S Ct 830 (1934).

Petitioner would ask that this court review legislative intend argument presented in this petition.

B. Ex Post Facto Violation

Respondent violated petitioner's rights under ex post facto clause by employing rules not in effect at time of

petitioner's commission of crimes in violation to Article I, § 9, cl.3 and Article I, § 10, cl.1 of the United States

Constitution, and Article I, Section 21 of the Oregon Constitution.

The Ex Post Facto Clause of both United States Constitution and Oregon Constitution prohibits laws which

"make more burdensome the punishment for a crime, after its commission." Collins v. Youngblood, 497 U.S. 37,

52 (1990). By use of newer rules, respondent has created rules more onerous, and rely upon new criteria that was

not required in 1982, creating a significant disadvantage to the petitioner and significant risk that criteria in the

newer rule will increase length of incarceration".

34 Respondent falsely cites that they have "considered this matter [the parole exit interview] under the rules and laws in effect at the time of the

commitment offense(s) and any other applicable rules or laws." See APPENDIX E, McClure v. BPPPS, CA A163095, Petitioner's Opening Brief

at Excerpt of Record, EX 2.

Prior to 2016, respondent only employed OAR, Chapter 255, Division 60 (1982 Rule) for petitioner during

parole exit interviews. However; during the 2016 parole exit interview, respondent used OAR Chapter 255, Division

060, Sections 0006'°, 000817 , 0012, and oost? (some of the rules became effected in 1979, but evolved through

Oregon Administrative Rules, Chapter 255, Division 60, Section 0005: Parole Release Interviews: Purpose; Review of Parole Plan;

Procedure if Plan is Inadequate; Maximum Deferred and Scheduling

(I) At any time prior to ninety (90) days of the scheduled release on parole of any prisoner, the Board , on its own initiative or at the

request of the Corrections Division, may conduct an exit interview to review the parole plan, the prisoner's psychiatric or psychological report, if any,

and the record of the prisoner's conduct during confinement. The Board may order, pursuant to ORS 144.125, and psychiatric or psychological

reports held by the division not endorsed by the examiner in a manner to preclude disclosure. (2) Exit interviews shall be conducted by one or more

voting members of the Board. The purpose of the interview shalt be to examine the prisoner's parole plan, his/her psychological report if any, and

the record of his/her conduct during confinement. If information available to the Board is deficient or unverified, the interviewer may continue the

interview and hold the record open for a period up to ninety (90) days. In no case shall an exit interview be continued past the scheduled release date

unless the Board takes action under sections (3), (4) or (5) of this rule to defer release in accordance with ORS 144.125, (3) The interviewer shall

examine the prisoner's plans for residence, employment, or other situation in the community to determine whether the parole plan is adequate: (a)

An acceptable plan may include employment, school, or other situation (e.g., retirement income), and verifiable residence; it may require treatment

programs and prescribed medication; (b) If any portion of the plan is deficient or unverified, the Board may order deferred release to a verified plan

approved by a panel, or to a plan by the Administrator of the Corrections Division; (c) Parole release maybe deferred up to (ninety) 90 days from the

parole release date when a plan is deficient or unverified in order to obtain verification of a satisfactory plan from the Corrections Division. A report

shall be presented to the Board after sixty (60) days by the Corrections Division, according to its letter of agreement with the Board; (d) A prisoner

requesting an out of state parole waives the ninety (90) days limitation on postponements for developing an adequate parole plan. (4) If the record

indicates that a psychiatric of psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the

community, is present, the Board may order the postponement of the scheduled parole release until a specified future date or until the prisoner or

institution presents evidence that the emotional disturbance is over or in remission: (a) In determining if a severe emotional disturbance exits, the

Board may order a psychiatric or psychological evaluation; ) If ordered, the psychiatric or psychological evaluation shall be conducted to determine

is a severe emotional disturbance exists and the prisoner's potential for rehabilitation. An evaluation shall be provided which may consist of a

diagnostic study, including a comprehensive evaluation of pertinent medical, psychiatric, psychological, vocational, educational, cultural, social and

environmental factors which bear on the individual's handicap to employment and rehabilitation potential, and to the degree needed, and evaluation

of the individual's personality, intelligence level, educational achievements, work experience, vocational aptitudes, and interests, personal and social

adjustments, employment opportunities, or other pertinent data helpful in determining the nature and scope of services needed. The evaluation

should include recommendations for treatment or medication if necessary to assist in the rehabilitation of the prisoner or to protect the health and

safety of the community. After considering the evaluation, the panel may require that the prisoner develop a plan with provisions which are

recommended in the evaluation and specific evaluations of emotional stability; (c) The Board may not deny release on parole solely because of the

prisoner's severe emotional disturbance. Should the prisoner be diagnosed as a danger to himself or others or unable to provide for the basic personal

needs necessary for his health or safety, the Board may initiate the civil commitment procedure as provided in ORS Chapter 426. (5) If the prisoner

has engaged in serious institutional misconduct, a hearing shall be conducted by the Board to consider the parole release date. The procedure for

hearings in Divisions 30 and 50 shall apply. (6) In all cases involving deferral or postponement of the parole release date, the Board shall clearly

state the facts and specific reasons for its decision. The individual votes of the Board members shall be listed.

36 Oregon Administrative Rules, Chapter 255, Division 060, Section 0006: Exit Interviews: Parole Plan; and Psychiatric Records

(1) At any time prior to an inmate's scheduled release to post-prison supervision or parole, the Board on its own initiative or at the

request of the Department of Corrections, may conduct an exit interview to review the inmate's: (a) Release plan; Ø) Victim's statements, if any; (c)

PSR or similar report; (d) Psychiatric/psychological reports, if any; (e) Conduct while in confinement; and (0 Any other information relevant to the

inmate's reintegration into the community that the inmate, the inmate's attorney, the Department of Corrections or any other person submits. (2)

The procedures for records, disclosure and notice outlined in Division 15 and 30 shall govern exit interviews, (3) A panel shall conduct the interview

and the Board shall make decisions pursuant to OAR 255.030.0015.

process of adoption and amendment and were renumbered between 1979 through 2014), and OAR, Chapter 255,

Division 062, Section 16 (a rule adopted in 2010) °.

Controlling Federal Law on Ex Post Facto Violation

The Constitution provides that "No State shall.

. .

pass any.

. .

ex post facto Law." U.S. Const. Art. 1, §10. The

Ex Post Facto Clause "is aimed at laws that retroactively alter the definition of crimes or increase the punishment

Oregon Administrative Rules, Chapter 255, Division 060, Section 0008: Release Plans

(1) At any time prior to release on parole or post- prison supervision, the Board shall examine the inmate's plans for residence,

employment, or other situation in the community to determine whether the release plan is adequate. The plan may include, but is not limited to: (a)

Employment; (b) School, or other situation (e.g., retirement income); (c) Verifiable residence; (d) A description of support services, program

opportunities and treatment programs; (e) Prescribed medication; (0 Recommended conditions of supervision for the purpose of reformation and

public safety, including a recommendation for waiver of the condition of supervision that the inmate reside for the first six months in the county

where the inmate resided at the time of the offense that resulted in imprisonment, (g) Level of supervision consistent with the prisoner's risk

assessment classification; and (h) A restitution and compensatory fine payment schedule. (2) The Board may defer parole release up to ninety (90)

days from the parole release date when a plan is deficient or unverified in order to obtain verification or a satisfactory plan from the Department of

Corrections. (3) An inmate requesting an out-of- state parole waives the ninety (90) days limitation on deferral of release. Such waiver is for the

purpose of an adequate parole plan in the accepting state. (4) Except as provided in OAR 255.060.0014, the Board shall not defer release to postprison supervision. The following procedure shall apply: (a) If the release plan the Department of Corrections or designee of Local Supervisory

Authority submits at least 60 days prior to release is deficient, the Board will return it to the submitting agency with the Board's recommended

modifications. ) The Department or designee of Local Supervisory Authority shall submit a revised plan to the Board not less than ten days prior to

the inmate's release. (c) If the Board does not accept the revised plan, the Board shall determine the provisions of the final plan prior to the

prisoner's release. (5) One Board member shall review and approve the release plan. (6) When an offender is released from the custody of the

Department of Corrections or Local Supervisory Authority, after serving a sentence of incarceration as a result of a conviction for an offense listed in

subsection (a) of this section, the Board or Local Supervisory Authority shall subject the inmate/offender to intensive supervision as defined in OAR

255.005, for the full period of the offender's parole or post- prison supervision if the inmate/offender was eighteen (18) years of age or older at the

time the inmate/offender committed the offense and the Board or Local Supervisory Authority finds that the inmate/offender is a sexually violent

dangerous offender, as defined in OAR 255•005. (a) The crimes to which section (6) of this rule apply are: (A) Rape in the First Degree and Sodomy in

the First Degree if the victim was subject to forcible compulsion or under 12 years of old or was incapable of consent by reason of mental defect,

mental incapacitation or physical helplessness; and (B) Unlawful Sexual Penetration in the First Degree; and (C) An Attempt to commit a crime

listed in this subsection. (b) When the Board or Local Supervisory Authority makes a finding that an inmate/offender is a sexually violent dangerous

offender under this section, the Board or Local Supervisory Authority shall make this finding in the Order of Supervision.

38 Oregon Administrative Rules, Chapter 255, Division 060, Section 0012: Psychological or Psychiatric Reports

Sections (1)••(6) of this rule apply to: inmates whose crimes were committed before November 1, 1989; all inmates convicted of aggravated

murder; and inmates convicted of murder committed on or after June 30, 1995.

(1) Pursuant to ORS 144.125, the Board may order any available psychiatric/psychological report(s) from the Department of Corrections.

(2) Pursuant to ORS 144.223, the Board may postpone the parole release date administratively and order a psychiatric/psychological evaluation of

any inmate anytime prior to release, except for inmates convicted of murder committed on or between November 1, 1989, and June 29, 1995, and not

designated a dangerous offender at sentencing. (3) After review of the psychiatric/psychological reports, and all other information or documents

presented during the hearing the Board may defer parole release until a specified future date upon finding: The inmate has a present severe

emotional disturbance, such as to constitute a danger to the health or safety of the community. (4) The Board shall not deny release on parole solely

because of an inmate's present severe emotional disturbance. The Board must also find the condition constitutes a danger to the health or safety of

the community. (5) The Board may defer a scheduled parole release date for no fewer than two years and no longer than ten years. A deferral of

longer than two years must comply with OAR 255 division 62 of these rules. (6) If the Board finds the inmate does not have a present severe

emotional disturbance such as to constitute a danger to the health or safety of the community, the Board shall affirm the parole release date and set

parole conditions. (7) If the Board finds the inmate has a present severe emotional disturbance, but that the disturbance is not so severe as to

constitute a danger to the health or safety of the community, the Board may affirm the parole release date and set parole conditions, (8) For purposes

of the Board finding that an inmate/offender is a sexually violent dangerous offender pursuant to OAR 255.060•0008, the Board may order a

for criminal acts." Souch v. Schaivo, 289 F.3d 616, 620, 2002 U.S. App. LEXIS 7865 (quoting Cal. Dept of Corr.

v. Morales, 514 U.S. 499, 504, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995)).

The Ex Post Facto Clause applies by its terms to 'laws." As such, the clause reaches 'every form in which the

legislative power of a state is exerted," including "a regulation or order." Ross t'. State of Oregon, 227 U.S. 150,

162-63, 57 L. Ed. 458, 335. CL 220(1913).

The Constitutions aversion to retroactive legislation finds expression in several constitutional provisions. See

Lynce v. Mathis, 519 U.S. 433, 439 n.12, 137 L. Ed. 2d 63, 117 S. Ct. 891 (1997). Separate clauses prohibit the

passage of Ex Post Facto laws by Congress, U.S. Coast. Art. 1, §9, ci. 3, and by the states, Id. Art. 1, §10, ci. 1.

The Ex Post Facto clauses forbid the passage and application of laws that 'retroactively alter the definition of

crimes or increase the punishment for criminal acts."' Calif. Dept of Corr. v. Morales, 514 U.S. 499, 504, 131 L.

Ed. 2d 588, 115 S. Ct. 1597 (1995) (quoting Collins v. Youngblood, 497 U.S 37, 41, 111 L. Ed. 2d 30, 110& CL

2715 (1990)).

psychological or psychiatric evaluation.

Oregon Administrative Rules, Chapter 255, Division 060, Section 0030: Exit Interview Packet

The exit interview Board Review Packet shall contain: (1) Institution face sheet, (2) All Board Action Forms since the prison term

hearing, if any; (3) Psychiatric and/or psychological evaluations (previous 6 months); (4) Correspondence; (5) Field parole analysis report, a pre

sentence investigation report or comparable report; (6) Court orders; (7) Misconduct reports; and (8) Release plan, (9) Inmate's Notice of Rights and

Board of Parole & Post-Prison Supervision Procedures.

40 Oregon Administrative Rules, Chapter 255, Division 62, Section 0016: Factors to be Considered in Establishing a Deferral Period

Longer Than Two Years

Following an interview and consideration of all the information presented at the hearing, the Board may find by majority vote of the

members participating in the hearing, that it is not reasonable to expect that the inmate would be granted a change in the terms of confinement or

it is not reasonable to expect that the inmate would be granted a firm release date before the end of a specified deferral period, not to exceed ten

years, based on one or more of the following non-exclusive factors: (I) A determination by the Board, based on the psychological evaluation and all

the information available at the hearing, that the inmate has a mental or emotional disturbance, deficiency, condition, or disorder predisposing

himTher to the commission of any crime to a degree rendering the inmate a danger to the health or safety of others; (2) Infractions of institutional

rules and discipline; (3) Commission of crimes subsequent to the crime of conviction; (4) Inmates failure to demonstrate understanding of the factors

that led to his/her criminal offense(s); (5) Inmates demonstrated lack of effort to address criminal risk factors of psychological or emotional problems;

(6) Inmates demonstrated lack of effort to address criminal risk factors of substance abuse problems; (7) Failure to seek and maintain appropriate

work or training; (8) Inmates failure to seek out and benefit from programming including but not limited to sex offender treatment, batterers

intervention programs, anger management, cognitive therapy, and victim impact panels where available; (9) Inmates inability to experience or

demonstrate remorse or empathy; (10) Demonstrated poor planning and foresight, (11) Demonstrated impulsivity; or (12) Demonstrated lack of

concern for others, including but not limited to any registered victims. (13) Refusal to participate in Board-ordered psychological evaluation(s) and/or

refusal to participate in Board hearing. (14) The inmate is serving a concurrent sentence over which the Board does not have release authority, and

which has a release date ten or more years from the projected parole release date on the Board sentence.

The Supreme Court has established a two- part test for assessing Ex Post Facto claims. A law violates the Ex

Post Facto Clause if it is (1) retroactive it "applies to events occurring before its enactment," Weaver v. Graham,

450 U.S. 24, 29, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981); and (2) detrimental

it "produces a sufficient risk of

increasing the measure of punishment attached to the covered crimes." Morales, 514 U.S. at 509; Himes v.

Thompson, 336 F.3d 848, 854 (9th Cir. 2003). "The inquiry looks to the challenged provision, and not to any special

circumstances that may mitigate its effect on the particular individual." Weaver, 450 U.S. at 33; Nulph v. Faatz,

27 F,3d 451, 455-56 (9th Cir. 1994). The Court has also specified that the statutory procedures should be compared

"in toto to determine if the new may be fairly characterized as more onerous." Dobbert p. Fla,, 432 U.S. 282, 294,

53 L. Ed. 2d 344, 97S. Ct. 2290 (1977).

"[T] fall within the ex post facto prohibition, two critical elements must be present: first, the law 'must be

retrospective, that is, it must apply to events occurring before its enactment'; and second, 'it must disadvantage the

offender affected by it." Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29

(1981)); see also Hunter v. Ayers, 336 F.3d 1007, 1011 (9th Cir 2002).

In Weaver, the court found that a state reducing the amount of "good time" a state prisoner could automatically

gain violated Article 1, Section 10 of the United States Constitution's prohibition on ex post facto punishment.

Similarly, the Supreme Court found an ex post facto violation in the retroactive application of a Florida statute that

canceled early release credits after their issuance had resulted in the prisoner's release from prison. The court

determined that the statute "unquestionably disadvantaged the petitioner because it prolonged his imprisonment

Lynce p. Mathis, 519 U.S. 433, 446-47(1997).

Applying Weaver, the Ninth Circuit found such a violation in the retroactive application of a statute governing

the calculation of Oregon's matrix system. Nulph p. Fatz, 27 F.3d 451 (9th Cir. 1994). The court found that the

new procedure for sentence computation was more disadvantageous to the prisoner and, therefore, invalid. Id. at

455-56.

Similarly, the court also found an expost facto violation in a case in which respondent retroactively applied an

amended parole regulation to calculate sentence reduction. In Flemming, the prior regulation 'would have

provided Flemming with the opportunity for a sentence reduction of 31.6 months or more in 1989, [whereas] the

amended rule limited this opportunity to seven months." Flemming u. Board of Parole, 998 F.3d. 721, 724(9th

Cir. 1993). Thus, because "the parole regulations at issue here 'directly and adversely affect the sentence petitioner

receives [']" the court ordered that a writ issue compelling the state to recalculate Flemming's sentence under the

former regulations. Id. at 726-27 (quoting Miller i.'. Florida, 482 U.S. at 435).

Controlling Oregon Law on Ex Post Facto

Respondent "through its rules governing release dates" affects "the amount of freedom or punishment that a

prisoner in fact receives." Williams v. Bd. of Parole, 98 Ore. App. 716, 780 P.2d 793, 795 (Or. Ct. App. 1989)

(citation omitted). So recognizing, Oregon courts have held that respondent's regulations are properly subject to ex

post facto analysis, see id., as has the federal court, see Flemming v. Bd. of Parole, 998 F.2d 721, 725-27 (9th Cir.

1993).

The Ex Post Facto Clause applies by its terms to "laws." As such, the clause reaches "every form in which the

legislative power of a state is exerted," including "a regulation or order." Ross v. State of Oregon, 227 U.S. 150,

162-63, 57 L. Ed. 458, 33 S. Ct. 220 (1913). Respondent "through its rules governing release dates" affects "the

amount of freedom or punishment that a prisoner in fact receives." Williams v. Bd. of Parole, 98 Ore. App. 716,

780 P,2d 793, 795 (Or. Ct. App. 1989) (citation omitted). Oregon courts have held that respondent's regulations are

properly subject to ex post facto analysis. Flemming v. Bd. of Parole, 998 F.2d 721, 725-27 (9th Cir. 1993);

Brown v. Palmateer, 379 F.3d 1089, 1094 (9th Cir. 2004).

Under the new version of regulations, using a broader range of requirements, respondent has created wider

discretion to postpone petitioner's parole release date.

Respondent is prohibited from using statues and/or administrative rules which became effective after the date

when petitioner's crimes occurred. "Ex Post Facto" analysis applies to respondent's rules that govern setting of

parole release date; such rules are "laws" for ex post facto purposes. U.S. Const. Art I, §10, el.1; Meyrovich v.

Maass, 762 F. Sapp 1417 (D. Or. 1991). Prisoners must be considered for parole under the guidelines in use at the

time they committed the crime for which they are now imprisoned. Benites v. U.S. Parole Commission, 595 F.2d

518 (91h Cir 1979). See U.S. Const,, Art. 1, §10, eLI; Combs v. BOPPS, 917 P.2d 74, 141 Or, App. 219 (1996)

(and cases cited); Christenson v. Thompson, 143 Or. App. 923 P.2d 1316(1996).

Respondent's application of rules which took effect after the commission of petitioner's crimes (which occurred

in 1978 and 1982) for which he was sentenced violates ex post facto prohibitions of state and federal constitutions.

Oregon Constitution, Art. 1, §21; U.S. Const., Art 1, §10, el. 1; Williams v. BOP, 107 Or. App. 515, 812 P.2d

443 (1991), adhered to on re reconsideration, 112 Or. App. 108, 828 P.2d 465, review dismissed 313 Or. 800, 832

P.2d 456(1992).

Because respondents new rules use a broader range of criteria for parole consideration requirements, they are

more onerous than those in effect in 1982, creating wider discretion to postpone petitioner's parole release date.

C. Evidentiary Violations

Since parole decisions are made largely upon basis of an inmate's files, due process requires the procedure

adequately safeguard against serious risks of error. Richardson v. Perales, 402 U.S. 389, 408, 91 S. Ct 1420,

1430 (1971). However, as demonstrated by this case, respondent uses records which either do not relate to

petitioner's current conviction or which contain erroneous information and/or irrelevant and/or inadmissible

evidence.

019

Respondent is required by law to make specific rulings on evidence challenges. ORS 144.135; OAR 255-030032; Castro v. Board of Parole, 232 Ore. App. 75, 220 P3d 772 (2009); Jenkins i.'. BPPS, 258 Or App 430, 309

P.3d 1115; 2013 Ore LEXIS 1077 (2013), reu'd 356 Ore 186, 335 P.3d 828, 2014 Ore LEXIS 688 (2014). Petitioner

made challenges on evidence, citing at least four problem areas: (1) inadmissible evidence prohibited by ORS

161.735(4) 1 ; (2) unreliable evidence prohibited by OAR 255-030-0032(3)'; (3) irrelevant evidence prohibited by OAR

255-030-0032(4)(f); and (4) psychological evaluations which were older than six months, in violation of OAR 255-060-0030(3)'.

Respondent has acted outside the authority granted it by the Oregon legislature and contrary clearly established

law by failing to make proper rulings on challenged evidence as required by OAR 255-030-0032(5). Such conduct

establishes an abuse of discretion by respondent and violates petitioner's rights to due process in violation of the

Fourteenth Amendment. Use of evidence which is inadmissible, unreliable,and irrelevant has substantially

prejudiced the rights of petitioner. Because respondent failed to make proper rulings regarding the evidence relied

upon for determining their findings (see substantial reason requirement, below), the evidence used by them and

their contracted psychologists must be excluded. Otherwise, it only acts as a catalyst for the purpose of creating

prejudice against the petitioner during parole hearings.

D. Substantial Reason Requirement

Oregon courts, pursuant to statute, are required to remand where it finds that the order of respondent is not

supported by substantial evidence. ORS 183.482(8)(c). Pursuant to ORS 144.335(3), respondent is required to

provide some explanation of the rationale for concluding that petitioner's parole date should be postponed.

Jenkins c'. BPPS, infra, 258 Or App at 431 (citing Castro ii. BPPS, infra). Petitioner raised evidentiary issues

See APPENDIX E, McClure v. BPPPS, CA A163095, Petitioner's Opening Brief, pp. 17- 21,25 - 29.

42 See APPENDIX E, McClure u. BPPPS, CA A163095, Petitioner's Opening Brief, pp. 22-24,25 - 29:

See APPENDIX E, McClure v. BPPPS, CA A163095, Petitioner's Opening Brief, pp. 24-25,25 - 29.

See APPENDIX E, McClure v. BPPPS, CA A163095, Petitioner's Opening Brief, p. 25. Tie SinteI*w Board lsSPTicetthalI contain (1)SiWthn

nFonnsttpSntsnnlSrg if ax (3) Pschiat& aStrpwhologkiil ewivofions (preSs 6months); (thntnkr (5) ?llpath

hE sl* (2) Aft

nnSwnwaitiwet (6) (hntuM (7)MLntetimt aM (8)ReSplan (9) SatsNtdEightsaMBtrddPath&

SySre4 a

P.PSnSMsinhSurea" OAR 2554)6041)30. nip}S added tlith$

that demonstrate respondent has relied upon evidence which was inadmissible, irrelevant, or immaterial as basis to

support existence of substantial evidence for the deferral of parole release. Use of that type of evidence is a

violation of due process (see evidence violation, above).

Further, as argued above (ex post facto violation), respondent relied upon new rules not in effect at the time of

the commitment offenses in support of their findings.

Respondent's order states, in pertinent part:

"The record indicates that the offender committed his/her crime(s) prior to/on or after 05/19/1988.

"The board has received a psychological evaluation on inmate dated 01/28/2016.

"Based on all the information that we are considering, including but not limited to, he doctor's

report and diagnosis, coupled with all the information that the board is considering, the board

concludes that you suffer from a present severe emotional disturbance that constitutes a danger

to the health or safety of the community. The board has considered this matter under the laws in

effect at the time of the commitment offense(s) and all other applicable rules and laws.

"The board further finds that it is not reasonable to expect that the inmate will be granted a firm

release date before 5 years from the current projected release date. Therefore the board is

deferring the projected release date and establishing a new projected release date of 10/31/2021

following a total of 468 months. A review will be scheduled in 04/2021 with a current

psychological evaluation."(Capitalization altered; Emphasis added by petitioner)

In support of their findings, respondent then relied upon factors cited in OAR 255-062-0016, a rule not in effect

at the time of the commitment offenses.

Due Process Requirement

Due process requires respondent to demonstrate substantial evidence to support a finding that petitioner suffers

from a PSED. In Oregon, to demonstrate substantial evidence, the state courts have held a substantial reason

requirement is needed. See: Drew v. PSRB, 127 Ore. App. 753, 875 P.2d 546 (1994), reversed and remanded, 322

Ore. 491; 909 P.2d 1211; 1996 Ore. LEXIS 10(1996); Martin v. Board of Parole, reversed and remanded, 147

Ore. App. 37, 934 P.2d 626(1997), affirmed, 327 Ore. 147, 957 P2d 1210 (1998); Gordon v. Board of Parole, 207

Ore. App. 435, 142 P.3d 125 (2006), reversed and remanded, 343 Ore 618, 633-634, 175 P3d 461, 467(2007); Castro

See APPENDIX E, McClure v. BPPPS, GA A163095, Petitioner's Opening Brief, Excerpt of Record 2.

v. Board of Parole, reversed and remanded, 232 Ore, App. 75, 220 P3d 772 (2009); Jenkins v. Board of Parole,

reversed and remanded, 258 Ore. App. 430; 309 P.3d 1115; 2013 Ore. App. LEXIS 1077 (2013), petition for review

granted, 354 Ore. 735; 2014 Ore. LEXIS 21(2014), reversed, 356 Ore. 186, 335 P.3d 828, 2014 Ore, LEXIS 688

(2014).

Substantial reason does not exist "when the credible evidence apparently weighs overwhelmingly in favor of one

finding and the [b]oard finds the other without giving a persuasive explanation." Castro v. BPPS, 232 Ore. App.

75, 84, 220 P.3d 772 (2009) (citing Armstrong v. Asten-Hull Co., 90 Ore. App. 200, 206, 752 P.2d 312 (1988.

Under Armstrong the respondent was required to demonstrate its reasoning by proving an explanation, not an

announcement that gives nothing for the court to judicially review. Castro, supra, 232 Ore. App. at 85-86. Further,

it was required by law to provide an explanation for its reliance upon evidence which was inadmissible, irrelevant,

or immaterial as basis to support existence of substantial evidence and its use of newer rules not in effect at the at

the time of the commitment offenses. Respondent's order fails in all aspects of these requirements.

There is no definitive statement of what is substantial evidence. Its definition is variable, but one definition is

that it includes such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Oregonians for Nuclear Safeguards v. Myers, 276 Ore. 167,554 P.2d 172, 1976 Ore. LEXIS 539 (1976). In that

light, petitioner pointed out the problems created by the respondent's reliance of evident which is inadmissible,

unreliable, and/or irrelevant

The record demonstrates that respondent relied upon a record that contains evidence which is inadmissible,

unreliable, and irrelevant46. The use of that illegal evidence adversely affects the petitioner by prejudicing him.

Further, respondent relied upon psychological evaluations older than six months old, in violation of their own

administrative rules"; and they failed to make specific evidentiary rulings as required by its rules". This evidence

For review of this argument, see this brief, at C. Evidence Violation.

47 For review of this argument, see this brief, at C. Evidence Violation.

For review of this argument, see: this brief, at C. Evidence Violation.

may not be used against petitioner without danger of creating a violation of petitioner's rights under the Due

Process Clause of the Fourteenth Amendment. Further, the record does not indicate whether or not respondent

even considered petitioner's efforts at rehabilitation and why he would be a good candidate for parole release.

Respondent needs to acknowledge petitioner's demonstration of rehabilitative efforts. Evidence in the record

indicates that petitioner has successfully engaged in workforce, educational, cognitive, and spiritual programming

to rehabilitate any thinking errors which might have led to his criminal conduct".

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." ORS 183.482(8)

50; See, e.g., Raridon v. Board of Parole, 104 Ore. App.

307, 311, 801 P.2d 842 (1990) (conducting "substantial evidence' review of Board order concerning parole release

date).

Substantial reason does not exist "when the credible evidence apparently weighs overwhelmingly in favor of one

finding and the [b]oard finds the other without giving a persuasive explanation." Castro v. BPPS, 232 Ore. App. at

84 (citing Armstrong u. Asten-Hill Co., 90 Ore. App. at 206).

The Fourteenth Amendment establishes the minimum evidentiary standard that state agencies must meet to

take the kind of action that is at issue in this case. It is axiomatic that administrative agencies must follow their

own rules. See, e.g., Albertson's Inc. v. Bureau of Labor and Industries, 128 Ore. App. 97,101, 874 P.2d 1352

(1994). Here, respondent has adopted a rule that requires its findings to be based on substantial evidence in the

49 ha1difiioirfs ivlthlitdkneffats are axt2ninrnxènfs imni

ORS 144.335(3) (1991) incorporated by reference the "substantial evidence' review provisions of ORS 183.482(8).

"The order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it

appears that the board acted within the scope of the board's authority. The Court of Appeals may affirm, reverse or

remand the order on the same basis as provided in ORS 183.482(8). The filing of the petition shall not stay the

boards order, but the board may do so, or the court may order a stay upon application on such terms as it deems

proper." ORS 144.335(3).

whole record. That rule is OAR 255.030-0032(3), which provides that "reliable",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).

Considering facts presented in petitioner's arguments at state level against the evidence relied upon by

respondent, it can be presumed that the respondent fails to use reliable, probative and substantial evidence to

support its findings. It is obvious that respondent has relied upon evidence which is inadmissible, unreliable, and

irrelevant. Further, respondent used psychological evaluations older than six months old, in violation of their

rules; and they failed to make specific evidentiary rulings as required by their rules. If respondent failed to make

proper rulings on the evidence, as they have here, then it can be properly argued that respondent also fails to

Reliable: Suitable or fit to be relied on; worthy of dependence or reliance; of proven consistency in producing

satisfactory results. Syn. Dependable, trustworthy, trust, tried; Reliable describes what can be counted on or trusted

in to do as expected or to be truthful. Webster's Third International Dictionary 1917(G. & C. Merriam Co.).

Probative: Having a tendency to prove or establish. Ballentine's Law Dictionary, 3rd Edition (2002 Matthew

Bender, Inc., a member of the LexisNexis Group). Tending to prove or disprove. Courts can exclude relevant evidence

if its probative value is substantially outweighed by danger of unfair prejudice. Bryan A. Garner, ed., Black's Law

Dictionary, Eighth Edition 1240 (2004 West). Serving to try out or test. That furnishes, establishes, or contributes

toward proof: substantiating. Webster's Third International Dictionary 1807 (G. & C. Merriam Co.). Probative

Evidence: Evidence that tends to prove or disprove a point in issue. Black's Law Dictionary, Eighth Edition 598

(2004 West).

53 Substantial Evidence: Evidence beyond a scintilla; evidence affording a substantial basis of fact from which the fact

in issue can reasonably be inferred. 31 Am J Rev ed Lab 338. Such relevant evidence as a reasonable man would

accept as adequate to support the conclusion sought to be drawn from it. Anno: 123 ALR 647; 83 L Ed 691. Such

evidence as will convince reasonable men and on which such men may not reasonably differ as to whether it

establishes a case or defense. 2. Substantial evidence means more than a mere scintilla. It is of substantial and

relevant consequence and excludes vague, uncertain, or irrelevant matter. It implies a quality of proof which induces

conviction and makes an impression on reason. It means that one weighing the evidence takes into consideration the

facts presented to him and all reasonable inferences, deductions and conclusions to be drawn therefrom and,

considering them in their entirety and relation to each other, arrives at a fixed conviction. Ballentine's Law

Dictionary, 3rd Edition (2002 Matthew Bender, Inc., a member of the LexisNexis Group). Evidence that a

reasonable mind could accept as adequate to support a conclusion; evidence beyond a scintilla. Black's Law

Dictionary, Eighth Edition 579 (2004 West). Substantial Evidence Rule: Substantial evidence means more than a

mere scintilla. It is of substantial and relevant consequence and excludes vague, uncertain, or irrelevant matter. It

implies a quality of proof which induces conviction and makes an impression on reason. It means that one weighing

the evidence takes into consideration the facts presented to him and all reasonable inferences, deductions and

conclusions to be drawn therefrom and, considering them in their entirety and relation to each other, arrives at a fixed

conviction. Ballentine's Law Dictionary, 3rd Edition (2002 Matthew Bender, Inc., a member of the LexisNexis

Group).

demonstrate proper reasoning in both their use of prohibited evidence and the subsequent conclusion which is

based on that evidence.

This is evidence which may not be used against petitioner without the danger of creating a violation of

petitioner's rights under the Due Process Clause of the Fourteenth Amendment. Further, the record does not

indicate whether or not respondent even considered petitioner's efforts at rehabilitation or why he would be a good

candidate for parole release.

Of equal importance, is the fact that respondent relied upon newer rules which create criteria for parole

consideration not in effect at the time of the commitment offenses. Committing an ex post facto violation as basis to

support substantial evidence does not actually create substantial evidence.

"Substantial evidence review, while not authorizing the state court to substitute its judgment for that of agency

decision makers, requires the court to take into account whatever evidence detracts from the weight of the evidence

that supports the agency order." Younger v. City of Portland, 805 Ore. 346, 854, 752 P.2d 262 (1988); Garcia ii,

SA4IF, 187 Ore. App. 51, 57, 66 Pad 522 (2003). ORS 183.482(8) also requires that the respondent provide "some

kind of an explanation connecting the facts of the case (which would include the facts found, if any) and the result

reached." Martin v. Board of Parole, supra, 327 Ore. at 157; Weems v, Board of Parole, 221 Ore. App. 70, 74,

190 P.3d 381 (2008), rev allowed, 346 Ore. 115, 205 P.3d 887 (2009); see also Salosha, Inc. v. Lane County, 201

Or App 138, 143, 117 P3d 1047 2005 ("Where a petitioner argues that an order is not supported by substantial

evidence, a court will also review the order for substantial reason[.]"). Unfortunately, this requirement has not

been met by the Oregon courts in present case.

Federal guaranty of due process extends to state action through its judicial, as well as through its legislative,

executive, or administrative, branch of government. Brinkerhoff-Faris Trust & Say. Co. v Hill, 281 US 673, 74

L Ed 1107, 50 S Ct 451 (1930). Considering law has been developed to provide for the due process requirements

Section 1 of the Fourteenth Amendment to the U.S. Constitution, and Article I, Sections 20 and 21, of the Oregon

Constitution.

Petitioner demonstrates respondent's failure to use administrative rules in effect in effect at time of petitioner's

offenses created heightened expectancy of factors needed for parole consideration, employing criteria which are

more erroneous than what older rules require, in violation of ex post facto principles under Article I, § 9, cl.3 and

Article I, § 10, cl.1 of the United States Constitution and Article I, Section 21 of the Oregon Constitution.

Petitioner demonstrates respondent's failure to comply with Oregon law creates a due process violation by

failing to address evidentiary challenges during hearings in violation of Section 1 of the Fourteenth Amendment to

the U.S. Constitution, and Article I, Sections 20 and 21, of the Oregon Constitution.

Petitioner also demonstrates that Oregon Courts have mandated respondent's compliance with the substantial

reason requirement, and that respondent has failed to comply with that law. For this reason, this court should find

that respondent's failure to comply with Oregon's substantial reason requirement has led to a violation of

petitioner's due process and equal protection rights under Section 1 of the Fourteenth Amendment to the U.S.

Constitution, and Article I, Sections 20 and 21, of the Oregon Constitution.

Petitioner would therefore respectfully ask this court grant writ of certiorari.

Respectfully submitted,

PHILIP W. MCCLURE

Dated: June

2018.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.