2017 ORS 144.335¹
Appeal from order of board to Court of Appeals
  • appointment of master
  • costs

(1) A person over whom the State Board of Parole and Post-Prison Supervision exercises its jurisdiction may seek judicial review of a final order of the board as provided in this section if:

(a) The person is adversely affected or aggrieved by a final order of the board; and

(b) The person has exhausted administrative review as provided by board rule.

(2) A person requesting administrative review shall provide the person’s current mailing address in the request. The board shall mail its order disposing of the request for administrative review to the person at that address, unless the person has otherwise notified the board in writing of a change of address.

(3) 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 (Jurisdiction for review of contested cases) (8). The filing of the petition shall not stay the board’s order, but the board may do so, or the court may order a stay upon application on such terms as it deems proper.

(4) If a person described in subsection (1) of this section seeks judicial review of a final order of the board, the person shall file a petition for judicial review with the Court of Appeals within 60 days after the date the board mails the order disposing of the person’s request for administrative review. The person shall serve a copy of the petition for judicial review on the board.

(5) Within 30 days after being served with a copy of the petition for judicial review, or such further time as the court may allow, the board shall:

(a) Submit to the court the record of the proceeding or, if the petitioner agrees, a shortened record; and

(b) Deliver a copy of the record to the petitioner or the petitioner’s attorney, if the petitioner is represented by an attorney.

(6) At any time after submission of the petitioner’s brief, the court, on its own motion or on motion of the board, without submission of the board’s brief and without oral argument, may summarily affirm the board’s order if the court determines that the judicial review does not present a substantial question of law. Notwithstanding ORS 2.570 (Departments of court), the Chief Judge, or other judge of the Court of Appeals designated by the Chief Judge, may, on behalf of the Court of Appeals, deny or, if the petitioner does not oppose the motion, grant the board’s motion for summary affirmance. A summary affirmance under this subsection constitutes a decision on the merits of the petitioner’s issues on judicial review.

(7) During the pendency of judicial review of an order, if the board withdraws the order for the purpose of reconsideration and thereafter issues an order on reconsideration, and the petitioner wishes to proceed with the judicial review, the petitioner need not seek administrative review of the order on reconsideration and need not file a new petition for judicial review. The petitioner shall file, within a time established by the court, a notice of intent to proceed with judicial review.

(8) In the case of disputed allegations of irregularities in procedure before the board not shown in the record that, if proved, would warrant reversal or remand, the Court of Appeals may refer the allegations to a master appointed by the court to take evidence and make findings of fact upon them.

(9) If the court determines that a brief filed by the petitioner, when liberally construed, fails to state a colorable claim for review, the court may order the petitioner to pay, in addition to the board’s recoverable costs, attorney fees incurred by the board not to exceed $100. If the petitioner moves to dismiss the petition prior to a summary affirmance described in subsection (6) of this section, the court may not award costs or attorney fees to the board.

(10) Upon request by the board, the Department of Corrections may draw from or charge to the petitioner’s trust account and pay to the board the amount of any costs or attorney fees awarded to the board by the court in any judicial review under this section.

(11) If the petitioner prevails on judicial review and is represented by an attorney funded by the Public Defense Services Commission, any recoverable costs shall be paid to the commission. [1973 c.694 §24; 1983 c.740 §18; 1989 c.790 §41; 1993 c.402 §1; 1995 c.108 §3; 1999 c.141 §3; 1999 c.618 §1; 2001 c.661 §1; 2003 c.352 §1; 2007 c.411 §1]

Notes of Decisions

The pro­ce­dure set out in this sec­tion is constitu­tional without being duplicative. Waltz v. Bd. of Parole, 18 Or App 652, 526 P2d 586 (1974)

Challenge to refusal of Board of Parole to set release date should have been brought under this sec­tion rather than through declaratory judg­ment pro­vi­sions of ORS chapter 28. Sterling v. Blalock, 47 Or App 275, 614 P2d 610 (1980)

Court of Appeals had jurisdic­tion to review final orders by Board of Parole relating to granting of parole. Harris v. Board of Parole, 288 Or 495, 605 P2d 1181 (1980)

Failure of Parole Board to reduce time for peti­tioner’s release to the time he felt was proper, even though the Board did in fact reduce the release time from its original determina­tion, caused peti­tioner to be “adversely affected or aggrieved by a final order” within meaning of this sec­tion. Hein v. Board of Parole, 56 Or App 293, 641 P2d 642 (1982)

Parole Board order setting release date is not final order while administrative review is pending. Palaia v. Board of Parole, 57 Or App 781, 646 P2d 654 (1982)

This sec­tion does not create duty for the Parole Board to notify inmates of right to judicial review of its orders and, therefore, peti­tioner is not excused from his failure to seek that review. Billings v. Maass, 86 Or App 66, 738 P2d 222 (1987)

Board of Parole order setting parole considera­tion hearing date is final order related to granting of parole and is subject to review. Meriweather v. Board of Parole, 307 Or 509, 770 P2d 593 (1989)

Order from Board of Parole that only denied reconsidera­tion of its original order setting peti­tioner’s parole release date is not final order subject to review. Perez v. Board of Parole, 102 Or App 117, 792 P2d 1246 (1990), Sup Ct review denied; Mastriano v. Board of Parole and Post-Prison Supervision, 342 Or 684, 159 P3d 1151 (2007)

Board of Parole’s decision not to change original parole considera­tion hearing date did not change min­i­mum dura­tion of peti­tioner’s im­pris­on­­ment and therefore was not final order within meaning of this sec­tion. Willaby v. Board of Parole, 103 Or App 83, 797 P2d 1050 (1990), Sup Ct review denied; Scott v. Board of Parole, 117 Or App 170, 843 P2d 959 (1992), Sup Ct review denied; Sager v. Board of Parole, 121 Or App 607, 856 P2d 329 (1993), Sup Ct review denied

Exhaus­tion require­ment of this sec­tion referred to exhaus­tion of administrative review process that was already provided by Board rule when statutory amend­ment took effect. Jenkins v. Board of Parole, 313 Or 234, 833 P2d 1268 (1992)

Where State Board of Parole and Post-Prison Supervision issues revised order on reconsidera­tion while judicial review is pending, peti­tioner must first request administrative review of revised order then file amended peti­tion for judicial review within 60 days following order issued upon administrative review. Roof v. Board of Parole, 159 Or App 408, 977 P2d 429 (1999)

“Substantial ques­tion of law” requires more than colorable claim of error but less than substantial certainty peti­tioner will prevail on judicial review. Rodriguez v. Board of Parole and Post-Prison Supervision, 187 Or App 282, 67 P3d 970 (2003)

“Substantial ques­tion of law” is not presented if: 1) ruling raising ques­tion is not reviewable; 2) ques­tion is contrary to constitu­tional statute; 3) ques­tion is contrary to state appellate decisions and does not raise new argu­ment or cite new authority; or 4) disposi­tion of ques­tion is controlled by unambiguous language of valid administrative rule. Rodriguez v. Board of Parole and Post-Prison Supervision, 187 Or App 282, 67 P3d 970 (2003)

Mo­tion for leave to proceed with judicial review stands or falls on ques­tions of law argued in mo­tion, notwithstanding whether other unarticulated ques­tions of law are present in case. Rodriguez v. Board of Parole and Post-Prison Supervision, 187 Or App 282, 67 P3d 970 (2003)

If peti­tioner identifies at least one substantial ques­tion of law, mo­tion for leave to proceed with judicial review will be granted even if peti­tioner has asserted other ques­tions of law that are not substantial. Rodriguez v. Board of Parole and Post-Prison Supervision, 187 Or App 282, 67 P3d 970 (2003)

In absence of other appropriate pro­ce­dure for filing request for review, inmate’s deposit of request into institu­tion’s mail system on or before due date satisfies exhaus­tion of remedies require­ment. Ayres v. Board of Parole and Post-Prison Supervision, 194 Or App 429, 97 P3d 1 (2004)

Lack of statutory time limit demonstrates legislative inten­tion not to burden State Board of Parole and Post-Prison Supervision with time constraint for issuance of administrative review response. Taylor v. Board of Parole and Post-Prison Supervision, 200 Or App 514, 115 P3d 256 (2005), Sup Ct review denied

Require­ment that per­son seeking judicial review be “adversely affected or aggrieved” by ac­tion of State Board of Parole and Post-Prison Supervision means that per­son must have standing to obtain review, not that per­son must have meritorius claim. Richards v. Board of Parole and Post-Prison Supervision, 339 Or 176, 118 P3d 261 (2005)

“Substantial ques­tion of law” means soundly based, firmly supported ques­tion, capable of adjudica­tion as to what law is, that is presented by facts of particular case at bar. Atkinson v. Board of Parole and Post-Prison Supervision, 341 Or 382, 143 P3d 538 (2006)

Authority of Court of Appeals to award attorney fees to Board of Parole and Post-Prison Supervision for mo­tions that fail to state colorable claim does not preclude, by negative inference, court from awarding pay­ment of other costs pursuant to express statutory authority. Blacknall v. Board of Parole, 223 Or App 294, 196 P3d 20 (2008), aff’d 348 Or 131, 229 P3d 595 (2010)

Final order that advises per­son that Board of Parole and Post-Prison Supervision intends to impose certain condi­tions in sub­se­quent order is not subject to judicial review. Wyatt v. Board of Parole and Post-Prison Supervision, 230 Or App 581, 216 P3d 926 (2009), Sup Ct review denied

Where Board of Parole and Post-Prison Supervision constructively opens earlier order, that order constitutes final order and is subject to judicial review. Dawson/ Fletcher v. Board of Parole and Post-Prison Supervision, 346 Or 643, 217 P3d 1055 (2009)

Where peti­tioner sought review of Board of Parole and Post-Prison Supervision decision that relied on psychological evalua­tion to postpone peti­tioner’s release under ORS 144.125 (Review of parole plan, psychological reports and conduct prior to release) and board issued detailed administrative review response that upheld decision, board’s response was reviewable final order made within scope of board’s authority. Jenkins v. Board of Parole and Post-Prison Supervision, 356 Or 186, 335 P3d 828 (2014)

Orders by Board of Parole and Post-Prison Supervision are not subject to ORS 183.470 (Orders in contested cases) (2) that require agency final orders to be accompanied by findings of fact and conclusions of law, but are subject to substantial reason standard of review in ORS 183.482 (Jurisdiction for review of contested cases) (8)(c), and board’s final order that cites psychological evalua­tion as basis for decision to postpone peti­tioner’s release meets substantial reason standard. Jenkins v. Board of Parole and Post-Prison Supervision, 356 Or 186, 335 P3d 828 (2014)

This sec­tion ex­plic­itly imposes 60-day dead­line for filing peti­tion for judicial review with Court of Appeals, and dead­line applies only to peti­tion but not to service of peti­tion on State Board of Parole and Post-Prison Supervision. Rivas-Valles v. Board of Parole and Post-Prison Supervision, 275 Or App 761, 365 P3d 674 (2015), Sup Ct review denied

Law Review Cita­tions

54 OLR 416 (1975)

Chapter 144

Notes of Decisions

Under rules of State Board of Parole, board could not in determining history/risk score, consider juvenile adjudica­tions that had been expunged pursuant to [former] ORS 419.800 to 419.839, even if prisoner admits to board that they occurred. West v. Board of Parole, 86 Or App 616, 739 P2d 1096 (1987)

Law Review Cita­tions

53 OLR 32, 67-79 (1973)

1 Legislative Counsel Committee, CHAPTER 144—Prison Supervision; Work Release; Executive Clemency; Standards for Prison Terms and Parole; Presentence Reports, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors144.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 144, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano144.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.