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Oregon Court of Appeals Grants Judicial Review of Parole Decision

In this case involving the state parole board's decision to defer a
prisoner's release on parole, the Oregon Court of Appeals held that the
prisoner presented at least two substantial questions of law and could
therefore proceed on judicial review.

On November 14, 2001 the Oregon Board of Parole set the conditions for
Scott Lovelace's parole supervision. However, the Board determined that
Lovelace suffered from severe emotional problems that constituted a danger
to public safety, and deferred his release for 24 months. The Board mailed
notice of its decision to Lovelace on November 22, 2001.

Lovelace sought administrative review by presenting prison officials with
several documents on or about January 4, 2002. Prison officials mailed the
documents to the Board on January 7, 2002 and the Board received them on
January 9, 2002 -- 48 days after the Board had mailing the notice of their
decision to Lovelace. The Board then denied Lovelace's request for
administrative review because he exceeded the 45-day time limit.
Lovelace subsequently petitioned for leave to proceed on judicial review
pursuant to ORS 144.335(6). The Board opposed the motion, contending that
Lovelace failed to exhaust his administrative remedies.

Although the Court of Appeals held that the "prison mailbox" rule did not
apply and that the Board was justified in requiring that it have physical
possession of a request for administrative review within 45 days from the
time notice of the decision was mailed, the Court found that Lovelace had
presented at least two related substantial questions of law: First, that
the Board had "'conducted administrative review in other cases where the
request was without question made ... outside the time period specified in
OAR 255-080-0005," and second, that as applied in his case, the Board's
rules violated Article I, section 20 of the Oregon Constitution, which "may
be invoked by an individual who demands equality of treatment with other
individuals as well as by one who demands equal privileges or immunities
for a class to which he or she belongs."

As such, the Court granted Lovelace's motion to proceed on judicial review.
See: Lovelace v. Board of Parole, 188 Or.App. 35, 69 P.3d 1234 (Or.App. 2003).

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Related legal case

Lovelace v. Board of Parole

Lovelace v. Board of Parole, 188 Or.App. 35, 69 P.3d 1234 (Or.App. 05/29/2003)

[1] Oregon Court of Appeals

[2] A118434

[3] 69 P.3d 1234, 2003

[4] May 29, 2003

[5] SCOTT A. LOVELACE, PETITIONER,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, RESPONDENT.

[6] Judicial Review from Board of Parole and Post-Prison Supervision.

[7] Daniel M. Carroll, Deputy Public Defender, for motion.

[8] Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General, contra.

[9] Before Brewer, Presiding Judge, and Wollheim and Kistler, Judges.

[10] The opinion of the court was delivered by: Brewer, P. J.

[11] On petitioner's motion for leave to proceed on judicial review pursuant to ORS 144.355 6 filed December 26, 2002, respondent's response to motion for leave to proceed filed January 8, 2003, and petitioner's reply to response to motion for leave to proceed filed February 5, 2003.

[12] Motion for leave to proceed on judicial review granted.

[13] Petitioner is an inmate in the custody of the Department of Corrections. He seeks to assert on judicial review that the Board of Parole and Post-Prison Supervision violated rights afforded to him by administrative rule, statute, and the United States and Oregon constitutions by denying as untimely his request for administrative review of a board order postponing his release on parole. Petitioner has moved for leave to proceed with judicial review pursuant to ORS 144.335(6)*fn1 on the ground that his petition presents one or more substantial questions of law. We grant the motion for leave to proceed.

[14] In an order dated November 14, 2001, the board set the conditions of petitioner's parole supervision but it deferred his parole release for 24 months, finding that petitioner "suffers from a present severe emotional disturbance that constitutes a danger to the health or safety of the community." The board opposes petitioner's motion for leave to proceed on the ground that petitioner has failed to exhaust his administrative remedies and that this court, therefore, does not have jurisdiction to consider his petition for judicial review.

[15] ORS 144.335(1) provides:

[16] "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:

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

[18] "(b) The person has exhausted administrative review as provided by board rule."

[19] Pursuant to ORS 144.335(1), the board has promulgated rules regarding exhaustion that apply to this case. OAR 255-080-0001(2) provides that "[a]n inmate/offender has exhausted his or her administrative remedies after complying with OAR 255-080-0005, and after the Board denies review, or grants review and either denies or grants relief." OAR 255-080-0005(2), in turn, provides that "[t]he Board must receive requests for administrative review within forty-five (45) days after the mailing date on the Board's final action on the reviewed issue." In short, under the board's rules, for a petitioner to exhaust his or her administrative remedies, the board must have received an administrative review request within 45 days after the date that the board mailed its order to the petitioner.

[20] In this case, although the order postponing petitioner's release date was dated November 14, 2001, it was mailed to petitioner on November 22, 2001. Petitioner sought administrative review by delivering several documents to a prison official on or about January 4, 2002. The documents were mailed by prison officials to the board on January 7, 2002. The board received the documents on January 9, 2002, 48 days after the order was mailed to petitioner. The board then denied petitioner's request for administrative review of the order on the ground that it did not receive the request within 45 days after the mailing of the order.

[21] The question before us is whether petitioner has shown a substantial question of law for our review. We conclude that petitioner has presented at least two related substantial questions of law.