Oregon Parole Board Orders Must Explain Decisions, but Orders Defined to Include Administrative Review Responses

by Mark Wilson

On September 18, 2014, the en banc Oregon Supreme Court held that a 1999 law change does not exempt the state parole board from having to issue “final orders” explaining its decisions. However, the Court expanded the historic definition of the board’s final orders to include Administrative Review Responses, which means there will be few if any changes.

Most Oregon administrative agency decisions must be supported by factual findings and conclusions of law. This includes a “substantial reason requirement,” to articulate a rational connection between the facts found and the legal conclusions drawn therefrom.

The Oregon Board of Parole and Post-Prison Supervision (Board) is exempt from those statutory requirements. Accordingly, the Board has long argued that it is not required to explain its decisions beyond the boilerplate language used in its “Board Action Forms” (BAFs).

As previously reported in PLN, in 1997 the Oregon Court of Appeals first held that despite being exempt from making express factual findings and conclusions of law, the judicial review statute implicitly requires “substantial reason” to be evidenced in the Board’s orders. See: Martin v. Board of Parole, 147 Ore. App. 37, 934 P.2d 626 (Or. Ct. App. 1997). The state Supreme Court agreed in 1998. See: Martin v. Board of Parole, 327 Ore. 147, 957 P.2d 1210 (Or. 1998). [PLN, July 2014, p.18].

In direct response to Martin, the Oregon Department of Justice (DOJ) asked the state legislature to excuse all agencies that are exempt from making findings and conclusions from the “substantial reason requirement.” Due to “vociferous” opposition, lawmakers ultimately adopted a much narrower law change than the DOJ had requested.

The Board’s judicial review statute was ultimately amended to add a single sentence, declaring that orders by 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.” ORS § 144.335(3).

The Board continued to use the same boilerplate language in its final orders that it had used before Martin. In 2007, the Oregon Supreme Court reminded the Board that it must explain its decisions and that its orders failed to do so. See: Gordon v. Board of Parole, 343 Ore. 618, 175 P.3d 461 (Or. 2007).

The Board again ignored the state Supreme Court and continued to use the boilerplate language, arguing that the 1999 statutory amendment exempted the agency from explaining its parole decisions. The Oregon Court of Appeals held to the contrary in Castro v. Board of Parole, 232 Ore. App. 75, 220 P.3d 772 (Or. Ct. App. 2009), and again in 2013 when it found that an order by the Board postponing the release date of prisoner Michael W. Jenkins was legally insufficient. See: Jenkins v. Board of Parole, 258 Ore. App. 430, 309 P.3d 1115 (Or. Ct. App. 2013).

Upon review in Jenkins, the Oregon Supreme Court agreed that the 1999 statutory amendment did not exempt the Board from the substantial reason requirement. Contrary to longstanding Board and judicial interpretations, however, the Court held for the first time that the Board’s “final order” is not merely the BAF which expresses a parole decision in boilerplate language. Rather, the Court concluded that when a prisoner seeks administrative review of a BAF – which is a prerequisite to judicial review – the Board’s Administrative Review Response (ARR) “is part of the final order for purposes of determining whether the board’s decision is supported by substantial reason.”

Based on this newly-adopted definition, the state Supreme Court found that “the board’s statements in the ARR leave little doubt as to the facts on which it relied” to postpone Jenkins’ release date, “or the existence of a rational connection between those facts and its decision pursuant to the statute and rule under which it acted.” Therefore, the Court concluded that the Board’s “final order ... was supported by substantial reason.”

The Supreme Court also rejected Jenkins’ argument that a statutory requirement that the Board “state in writing the detailed bases of its decisions” required the Board to describe “the particular evidence on which [it] relied.” Rather, “ORS 144.135 requires the board to set out the specific reasons for its decision stated in terms of the criteria that it is required by statute or rule to address,” the Court held. It “does not further require the board to identify particular evidence supporting its decision with respect to each of those criteria.” The Court concluded that the Board’s final order in Jenkins’ case satisfied the statutory requirement.

Consequently, after 17 years of state court rulings, the Oregon Board of Parole and Post-Prison Supervision still is not required to provide a “substantial reason” for its decisions and can continue to use boilerplate language in its BAFs when issuing parole denials. While the Oregon Supreme Court has spoken on this issue, the legislature could have the final word by changing the statutory requirements for the Board’s decisions. See: Jenkins v. Board of Parole, 356 Ore. 186, 335 P.3d 828 (Or. 2014)(en banc), reconsideration denied.

 

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