186 September 18, 2014 No. 62
IN THE SUPREME COURT OF THE
STATE OF OREGON
MICHAEL W. JENKINS,
Respondent on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Petitioner on Review.
(CA A144545; SC S061812)
En Banc
On review from the Court of Appeals.*
Argued and submitted June 24, 2014.
Doug M. Petrina, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on
review. With him on the briefs were Anna M. Joyce, Solicitor
General, and Ellen F. Rosenblum, Attorney General.
Lindsey K. Detweiler, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief was Peter Gartlan, Chief Defender.
BREWER, J.
The decision of the Court of Appeals is reversed. The final
order of the Board of Parole and Post-Prison Supervision is
affirmed.
______________
* On judicial review of a Final Order of the Board of Parole and Post-Prison
Supervision dated November 24, 2009. 258 Or App 430, 309 P3d 1115 (2013).
Cite as 356 Or 186 (2014) 187
Petitioner sought judicial review of an order of the Board of Parole and Post-
Prison Supervision (Board) that postponed his release from incarceration because
the Board concluded that he suffered from a present severe emotional distur-
bance that made him a danger to the community. Petitioner asserted that that
order was not supported by substantial reason, as required by ORS 144.335(3),
and that it also failed to recite the “detailed bases” for the Board’s decision as
required by ORS 144.135. The Board replied that the order was not subject to
the “substantial reason” requirement because the Legislature had eliminated
that requirement for board orders when it amended ORS 144.335(3) in 1999 in
response to this court’s decision in Martin v. Board of Parole, 327 Or 147, 957 P2d
1210 (1998). In the alternative, the Board asserted that its order satisfied the
substantial reason requirement of ORS 144.335(3) as well as the “detailed basis”
requirement of ORS 144.135. Held: ORS 144.335(3) (1999) did not eliminate the
substantial reason requirement that inheres in the substantial evidence stan-
dard of review to which the board’s orders are subject. However, the board’s final
order in this case satisfied that requirement because it provided an explanation
connecting the facts of the case and the result reached. The order also satisfied
ORS 144.135 because it set out the statute and rule under which the board made
its decision; the criteria that the board was required to address under the statute
and rule; and the board’s decision based on those criteria, including a reference
to facts on which the board relied.
The decision of the Court of Appeals is reversed. The final order of the Board
of Parole and Post-Prison Supervision is affirmed.
188 Jenkins v. Board of Parole
BREWER, J.
This case involves the interpretation and application
of two statutes, ORS 144.335(3)1 and ORS 144.135,2 to a final
order of the Board of Parole and Post-Prison Supervision (the
board) that postponed petitioner’s release date from prison.
The threshold question on review is whether, by amending
ORS 144.335(3) in 1999,3 the legislature intended to exempt
the board from the “substantial reason” standard that this
court had identified and applied in Martin v. Board of Parole,
327 Or 147, 957 P2d 1210 (1998). Under that standard, the
board’s orders must provide “some kind of an explanation
connecting the facts of the case (which would include the
facts found, if any) and the result reached.” Id. at 157. If the
legislature did not intend to exempt the board from the “sub-
stantial reason” standard, the second question is whether
the board’s order in this case satisfied the substantial rea-
son standard. The third question is whether the board’s
order complied with ORS 144.135, which requires the board
to “state in writing the detailed bases of its decisions.”
1
ORS 144.335 provides, in part:
“(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.
“* * * * *
“(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(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.”
2
ORS 144.135 provides:
“The board shall state in writing the detailed bases of its decisions under
ORS 144.110 to 144.125.”
3
As explained in detail below, the 1999 amendment added the first sentence
to the provision but did not otherwise alter its text. At the time of the amend-
ment, the provision was numbered as ORS 144.335(5). Or Laws 1999, ch 618, § 1.
It has since been renumbered as ORS 144.335(3). For the sake of simplicity, we
follow the Court of Appeals’ lead and characterize the amendment as one to ORS
144.335(3).
Cite as 356 Or 186 (2014) 189
As explained below, we conclude that ORS 144.335(3)
(1999) did not eliminate the substantial reason requirement
that inheres in the substantial evidence standard of review
to which the board’s orders are subject. However, we further
conclude that the board’s final order in this case satisfied
that requirement and satisfied ORS 144.135. Because the
Court of Appeals reached a contrary conclusion with respect
to the second and third questions, we reverse the decision
of that court and affirm the board’s final order postponing
petitioner’s release date.
I. THE FACTS
The relevant facts are procedural. In July 1980,
petitioner was convicted of two counts of first-degree rape,
and one count each of first-degree kidnapping and first-
degree sodomy; he was sentenced to 20 years’ imprisonment
on each count, consecutive to each other and to previous sen-
tences for attempted murder and first-degree robbery. On
the same day, petitioner was convicted of third-degree rob-
bery and sentenced to three years’ imprisonment, consecu-
tive to the other sentences. In 1990, petitioner was convicted
of supplying contraband while he was incarcerated, and he
was sentenced to 15 months in prison for that offense, con-
secutive to his previous sentences.
In September 2008, the board conducted an exit-
interview hearing to determine whether petitioner was
suitable for parole on his projected release date—March
2009—or whether his circumstances warranted a two-year
postponement of that date. Before the hearing, the board
obtained a psychological evaluation from Dr. Frank Colistro.
In that evaluation, Dr. Colistro diagnosed petitioner as
having a “severe” “Antisocial Personality Disorder” with
a “very high degree of psychopathy.” In Colistro’s opinion,
petitioner’s personality disorder continued “to predispose
[petitioner] to the commission of crimes to a degree render-
ing him an ongoing threat to the health and safety [of] the
community.” No other psychological evaluation was submit-
ted to the board.
After the exit-interview hearing, the board issued a
Board Action Form (BAF) that postponed petitioner’s release
190 Jenkins v. Board of Parole
date for 24 months pursuant to ORS 144.125(3) (1977),4
which authorized the board to postpone parole release dates
for inmates who suffer from a present severe emotional dis-
turbance (PSED). The BAF explained that, “[b]ased on the
doctor’s report and diagnosis, coupled with all the informa-
tion that the board is considering, the board concludes that
the inmate suffers from a present severe emotional distur-
bance that constitutes a danger to the health or safety of the
community.”
Petitioner sought administrative review of that
decision; in response to that request, the board issued a
more detailed administrative review response (ARR) that
provided, in part:
“On September 24, 2008, the board conducted an exit
interview with you. After considering all of the evidence
presented at this hearing, including a psychological eval-
uation prepared by [Dr. Calistro], and applying the sub-
stantive standard in effect at the time you committed your
crime as well as the applicable procedural rules, the board
found that you were suffering from a present severe emo-
tional disturbance such as to constitute a danger to the
health or safety of the community.
“* * * * *
“To the extent that you are alleging that the board
lacks authority to defer your parole release date past the
termination of your original prison term set, the board is
unpersuaded by your arguments. The board acted under
ORS 144.125(3) (1977) and OAR 254-50-015(3) (7/19/1978),
postponing your projected release date on the basis of your
severe emotional disturbance and dangerousness.”
Ultimately, the board denied reconsideration in the ARR,
and it advised petitioner at the conclusion of the ARR:
“YOU HAVE EXHAUSTED YOUR ADMINISTRATIVE
REMEDIES. PURSUANT TO ORS 144.335, YOU MAY
PETITION THE COURT OF APPEALS FOR JUDICIAL
4
ORS 144.125(3) (1977)—which was the version of the statute in effect when
petitioner committed his crimes—provided:
“If a psychiatric or psychological diagnosis of present severe emotional
disturbance has been made with respect to the prisoner, the board may order
the postponement of the scheduled parole release until a specified future
date.”
Cite as 356 Or 186 (2014) 191
REVIEW OF THIS ORDER, WITHIN 60 DAYS OF THE
MAILING DATE OF THIS ORDER.”
Petitioner sought judicial review in the Court of
Appeals, asserting that the board’s order did not provide
“substantial reason” because the board failed to “explain its
findings or the reasoning supporting its conclusion” in the
order. The board responded that the order was legally suf-
ficient for two reasons. First, the board argued that ORS
144.335(3) exempted the board’s order from the substantial-
reason requirement. Second, and alternatively, the board
argued that the final order, including the board’s adminis-
trative review response, contained substantial reason and
was otherwise sufficient, because it “provided petitioner
with a legal basis for deferring his parole release, as well as
a factual foundation for its legal conclusion,” by referring to
and relying on Colistro’s evaluation.
The Court of Appeals reversed. The court held that,
notwithstanding the 1999 amendment to ORS 144.335(3),
the “substantial reason” requirement continued to apply to
the board’s parole release postponement orders. Jenkins v.
Board of Parole, 258 Or App 430, 443, 309 P3d 1115 (2013).
The court further held that the board’s order in this case
lacked substantial reason, because it “offer[ed] a mere con-
clusion” and did not permit a reviewing court “ ‘to determine
if the board’s findings, reasoning, and conclusions demon-
strate that it acted in a rational, fair, and principled man-
ner in deciding to defer petitioner’s parole release.’ Id. at
”
444 (quoting Gordon v. Board of Parole, 343 Or 618, 634,
175 P3d 461 (2007)). The dissent would have affirmed. Id.
at 444-52 (Armstrong, P. ., dissenting). After examining
J
the statutory text, context, and legislature history of the
1999 amendment, the dissent concluded that “the legisla-
ture intended to relieve the board of the substantial-reason
requirement otherwise implicit in the judicial-review provi-
sions of ORS 183.482(8).” Id. at 452.
II. ANALYSIS
A. ORS 144.335(3)
The first issue presented on review is whether the
1999 amendment to ORS 144.335(3) exempted the board
192 Jenkins v. Board of Parole
from the substantial-reason requirement that this court
identified in Martin. That issue presents a question of leg-
islative intent to be resolved by applying this court’s meth-
odology for construing statutes. See State v. Gaines, 346 Or
160, 206 P3d 1042 (2009). According to the board, the stat-
utory text, context, and legislative history demonstrate that
ORS 144.335(3) (1999) was intended to relieve the board
from the substantial-reason requirement and that, instead,
that provision merely requires that it appear from an order
that the board acted within the scope of its authority.
Petitioner disagrees; he asserts that, after the 1999 amend-
ment, board orders need not adhere to strict requirements of
form; but, to allow for meaningful judicial review, an order
must demonstrate on its face that the board acted within
the scope of its authority by identifying the statutes and
rules that it applied and “the specific evidence in the record
that the board relied on to reach its conclusions.” By “conclu-
sions,” petitioner appears to refer to the board’s determina-
tions with respect to each of the criteria—both factual and
legal—that it is required to address in reaching a decision.5
The board rejoins that, if its orders remain subject to the
substantial-reason requirement, the order in this case sat-
isfied that requirement because it identified the evidence on
which the board relied, and that evidence supported its deci-
sion to postpone petitioner’s parole release.
We begin with the text of the statute. ORS 144.335(5)
(1997) provided:
“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 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.”
As noted, the 1999 amendment did not alter any of that text.
Instead, it added the italicized first sentence below:
“The order of the board need not be in any special form,
and the order is sufficient for purposes of judicial review if it
5
Thus, petitioner asserts that the board’s order here is deficient because it
“fails to identify the specific evidence in the record that the board relied on to sup-
port its conclusions that the petitioner suffered from a present severe emotional
disturbance (PSED) and that his PSED renders him a danger to the community.”
Cite as 356 Or 186 (2014) 193
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
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.”
Or Laws 1999, ch 618, § 1 (emphasis added). That provi-
sion, now compiled as ORS 144.335(3), remains unchanged
to this date.
As amended, the first clause of the first sentence of
the statute provides that board orders “need not be in any
special form.” By its own terms, that clause applies only to the
“form” of an order. Taken at face value, the clause indicates
that board orders need not adhere to strict requirements of
form, including those that may apply to the final orders of
other agencies. Rather, it suggests, for instance, that the
board may use standard order forms to efficiently manage its
workload. However, the reasoning underlying and explana-
tions for the board’s decisions are not merely requirements of
form. Cf. Sunnyside Neighborhood v. Clackamas Co. Comm,
280 Or 3, 21, 569 P2d 1063 (1977) (findings and reasoning
requirements are “not simply imposing legalistic notions of
proper form”). Accordingly, the addition of that clause does
not necessarily suggest that the legislature meant to elimi-
nate the substantial reason requirement.
The second clause of the first sentence of the statute
provides that an order will be sufficient for “purposes of judi-
cial review” if “it appears that the board acted within the
scope of the board’s authority.” The parties have divergent
views as to the meaning of that requirement. According to
the board, it will “appear” that it “acted within the scope of
[its] authority” when an order reflects that the board made
a release-related determination that falls within the range
of decisions that the board is statutorily entrusted to make.
See ORS 144.110 et seq. (delineating board’s authority to
make release-related decisions). As the board sees things:
“That is a different, and much less demanding, standard than
substantial reason. The first sentence in ORS 144.335(3)
is a compelling textual indication that the board is exempt
194 Jenkins v. Board of Parole
from the substantial-reason requirement that is implicit in
the APA’s judicial-review provisions of ORS 183.482(8).”
By contrast, petitioner opines that it “appears that
the board acted within the scope of the board’s authority”
when the face of a board order shows that the board com-
plied with the applicable statutes and rules governing the
board action. It follows, petitioner posits, that, “to show that
the board acted within the scope of its authority, the board
must explain its decision by identifying the rules and stat-
utes that the board applied and the specific evidence in the
record that led the board to its conclusions.”
Because the legislature has not expressly defined
the words in the disputed phrase, dictionary definitions
of the words “appears” and “authority” can be useful. See
State v. Murray, 340 Or 599, 604, 136 P3d 10 (2006) (when
interpreting the words of a statute, this court will “resort
to dictionary definitions” if there are no applicable statu-
tory definitions). “Appears” is defined in part as “to come
forth, be visible” and “to be obvious or evident.” Webster’s
Third New Int’l Dictionary 103 (unabridged ed 2002). The
pertinent definition of “authority” is “delegated power over
others.” Webster’s at 146. Thus, an order will be sufficient
for purposes of judicial review if it is evident that the board
action is within the powers delegated to it by the legisla-
ture. The generality inherent in that requirement tends to
support the board’s interpretation that it refers to the stat-
utory and regulatory authority that empowers the board to
make a particular kind of decision. However, that interpre-
tation would not necessarily relieve the board’s orders from
the substantial reason requirement. In fact, the context and
legislative history of ORS 144.335(3) (1999) lead to a differ-
ent conclusion.
ORS 183.482(8)—a provision of the Oregon Admini-
strative Procedures Act (APA) that is referred to in the sec-
ond sentence of ORS 144.335(3)—states:
“(a) The court may affirm, reverse or remand the
order. If the court finds that the agency has erroneously
interpreted a provision of law and that a correct interpre-
tation compels a particular action, the court shall:
Cite as 356 Or 186 (2014) 195
“(A) Set aside or modify the order; or
“(B) Remand the case to the agency for further action
under a correct interpretation of the provision of law.
“(b) The court shall remand the order to the agency if
the court finds the agency’s exercise of discretion to be:
“(A) Outside the range of discretion delegated to the
agency by law;
“(B) Inconsistent with an agency rule, an officially
stated agency position, or a prior agency practice, if the
inconsistency is not explained by the agency; or
“(C) Otherwise in violation of a constitutional or stat-
utory provision.
“(c) The court shall set aside or remand the order if the
court finds that the order is not supported by substantial
evidence in the record. Substantial evidence exists to sup-
port a finding of fact when the record, viewed as a whole,
would permit a reasonable person to make that finding.”
Under the APA, agency orders generally must “be
accompanied by findings of fact and conclusions of law.” ORS
183.470(2). The findings of fact “shall consist of a concise
statement of the underlying facts supporting the findings as
to each contested issue of fact and as to each ultimate fact
required to support the agency’s order.” Id. This court has
interpreted that provision to include an implied requirement
that an agency’s findings and conclusions be supported by
“substantial reason.” Springfield Education Assn. v. School
Dist., 290 Or 217, 226-28, 621 P2d 547 (1980). That is, the
agency must articulate a “rational connection between the
facts and the legal conclusions it draws from them.” Ross v.
Springfield School Dist. No. 19, 294 Or 357, 370, 657 P2d 188
(1982). The substantial reason requirement exists “both for
purposes of meaningful judicial review and to ensure that
the agency gives responsible attention to its application of
the statute.” Id. If an agency order that is subject to ORS
183.470(2) does not contain such reasoning, then the appel-
late court will reverse and remand the order for the agency
to correct the deficiency. Id. at 370. In other words, to the
extent that the substantial reason requirement inheres in
an agency’s duty to make findings of fact and conclusions
196 Jenkins v. Board of Parole
of law, the substantial reason requirement concerns the
reviewability of the agency’s orders.
In City of Roseburg v. Roseburg City Firefighters, 292
Or 266, 271-72, 639 P2d 90 (1981), this court stated that a
substantial reason requirement also is embedded within the
substantial evidence standard of review under 183.482(8)(c):
“On judicial review, the court will not substitute its judg-
ment for that of the agency in drawing an inference, but
the court must be satisfied that agency judgment has actu-
ally been exercised. Sometimes a rational nexus between
an evidenced fact and an inference drawn from it is obvi-
ous from common experience (e.g., we may infer from the
fact of a wet street that it recently rained). In other cases,
however, and particularly in cases involving expertise, the
reasoning is not obvious (e.g., we may infer from present
meteorological conditions that it will snow tomorrow). In
such an inference, we will not assume the existence of a
rationale. Rather, we look to the order to state the rational
basis of the agency’s inference. The explanation need not be
complex, but it should be sufficient to demonstrate the exis-
tence of a rational basis and to allow for judicial review.”
(Footnote and citations omitted.)
If the board were subject to ORS 183.470(2), the
resolution of this case might be less complicated. However,
unlike most agencies, the board is exempt from the statutory
requirement that orders contain factual findings and legal
conclusions. ORS 183.315(1). Therefore, one of the rationales
for the substantial reason requirements does not apply to
the board’s orders. But the substantial evidence standard
of review under ORS 183.482(8)(c) (to which this court in
Roseburg City Firefighters also related the substantial rea-
son requirement) does apply to the board. ORS 144.335(3).
Which brings us to Martin.
In that case, the board had acted under its statu-
tory authority in ORS 144.102(3) to establish “such special
conditions as it shall determine are necessary” because of
the individual circumstances of the petitioner, a convicted
sex offender. Martin, 327 Or at 150. The board imposed a
condition that prohibited the petitioner from entering the
county where the victim of his crime resided. The petitioner
Cite as 356 Or 186 (2014) 197
sought administrative review, arguing that the condition
was unreasonable. Id. In response, the board issued an ARR
that slightly relaxed the prohibition, but concluded that:
“
‘The board remains convinced that the state’s interest in
protecting the victim of your sodomy and sex abuse convic-
tions outweighs your interest in carrying on your personal
affairs in the prohibited areas.’ ”
Id. at 151-52 (capitalization omitted).
On review, the petitioner argued that the board’s
order, including the ARR, lacked substantial reason to sup-
port the challenged condition. The Court of Appeals agreed,
and reversed. Before this court, the board argued that its
exemption from the APA findings and conclusions require-
ment necessarily meant that it also was exempt from the sub-
stantial-reason requirement. This court rejected that argu-
ment, holding, instead, that ORS 183.482(8)(c) implicitly
requires “substantial reason” to be evidenced in the board’s
orders to satisfy the requirement that the board’s orders be
based on substantial evidence in the record. According to
the court, substantial reason requires an agency to provide
“some kind of an explanation connecting the facts of the
case (which would include the facts found, if any) and the
result reached.” 327 Or at 157. That, the court said, was “the
appropriate standard of judicial review to be used.” Id. at
158 (emphasis added).
In reaching that conclusion, the court relied on
Drew v. PSRB, 322 Or 491, 909 P2d 1211 (1996), which
involved another agency—the Psychiatric Security Review
Board (PSRB)—that is exempt from the APA’s requirement
of factual findings and legal conclusions. In Drew, this court
nonetheless held that PSRB orders were subject to the sub-
stantial reason requirement. 322 Or at 499-501. In Martin,
the board argued for a different interpretation of Drew:
“The Board argues in the alternative that when, as here,
an agency is exempt from the requirements of ORS 183.470,
the agency should not be required to set out the rationale for
its order in the order itself but, instead, should be allowed
to advance its supporting rationale in its brief on appeal.
‘That appears to be what the court actually did in Drew
198 Jenkins v. Board of Parole
* *,’ the Board asserts, ‘although the language of Drew is
*
to the contrary.’ ”
Martin, 327 Or at 158. This court disagreed:
“The Board misunderstands what happened in Drew. The
challenge there was to the sufficiency of the evidence. The
court on its own was able to determine that there was evi-
dence in the record that would permit, although it did not
require, the action that the PSRB had chosen to take. Drew,
322 Or at 499. The problem, however, lies in the fact that
the PSRB never had referred to that particular evidence,
even obliquely, and the additional fact that certain of the
evidence favoring the result reached by the agency would not
have constituted substantial evidence. The court could not
be sure which evidence had played the decisive role in the
PSRB’s decision. Without that knowledge, which a written
explanation could have provided, the court could not affirm
the agency’s decision.”
Id. (emphasis added).
The court in Martin nevertheless concluded that the
evidence in that case satisfied the substantial reason stan-
dard of review. The court agreed with the petitioner that “the
‘necessity’ of special conditions must be determined in refer-
ence to the statutory objectives that are repeated through-
out the statutes, namely, the protection of public safety and
the reformation of the offender.” Id. at 159. However, the
petitioner argued for more:
“ ‘Nothing in [the board’s] statement[s] indicates anything
about findings (indeed, no one knows what the Board
believes respondent did to the victim, or what the victim
would experience from an accidental meeting with the
respondent); nothing is said about the state’s or the victim’s
interests; there is no indication of the harm to the state or
the victim of modifying special condition 10; and there is
no attempt to weigh the supposed risk to the victim against
the loss the condition imposes on the respondent. In sum,
there is nothing upon which this Court can properly base
its judicial review.’ ”
Id. at 159 (quoting the petitioner’s brief on review). This
court dispatched that challenge with little fanfare:
“None of those propositions is well taken. The facts that
the Board necessarily found are reflected in the recitations
Cite as 356 Or 186 (2014) 199
included within the evaluative portion of the Board’s order.
Moreover, we believe that, respondent’s hyperbole to one
side, no one reasonably could doubt that any encounter
between respondent and his victim would be a psychological
disaster for the victim. All the information available to the
Board indicated that. The Board could not eliminate the
possibility of an encounter entirely; the vagaries of human
experience are not so easily controlled. But the Board was
not required to set conditions so narrowly that they would
permit a substantial danger that the two would meet. The
Board’s order specifically indicates that it weighed the dif-
ferent interests of the parties. Once it did so, we hold that
its choice in this case lies well within the permissible range
of choices that it could make.”
Id. at 159-60.
Two significant aspects of this court’s holding in
Martin are pertinent here. First, the “evaluative” part of the
board’s decision to which the court referred was an ARR, not
the original board action form; that is, the court adopted a
broad understanding of the scope and contents of the board’s
final order for purposes of judicial review. Second, although
the court referred to facts that the board “necessarily found,”
the board did not make specific findings of fact or conclu-
sions of law in that case. Indeed, the court was satisfied with
the board’s explanation—without more detail—that it had
“weighed the different interests of the parties” in imposing
the challenged condition. In so concluding, the court did not
apply the meaning of “substantial reason” for which peti-
tioner advocates in this case and which, as discussed, would
require the board to “identify the specific evidence in the
record” that led to the board’s determinations with respect to
each of the criteria—factual and legal—that it was required
to address in reaching a decision. To the contrary, this court
has never imposed such a requirement in the absence of an
agency duty to set out specific findings of fact and conclu-
sions of law. Cf. ORS 183.470(2) (findings of fact “shall con-
sist of a concise statement of the underlying facts supporting
the findings as to each contested issue of fact and as to each
ultimate fact required to support the agency’s order”).
Instead, this court’s decisions have taken into
account the circumstance that board orders under ORS
144.125 are not subject to the findings and conclusions
200 Jenkins v. Board of Parole
requirement of ORS 183.470(1). Thus, a final board order
under that statute satisfies the substantial reason require-
ment if it provides “some kind of an explanation connecting
the facts of the case (which would include the facts found, if
any) and the result reached.” Martin, 327 Or at 157 (empha-
sis added); see also Weems v. Board of Parole, 347 Or 586,
599-600, 227 P3d 671 (2010) (holding that substantial rea-
son supported board’s imposition of sex offender special con-
ditions of post-prison supervision where board applied stat-
utory criteria to facts of the case).6
As noted, the board’s interpretation of ORS
144.335(3) (1999), by contrast, would discard the substan-
tial reason requirement for orders under ORS 144.125,
and replace it with a less stringent requirement that the
order merely be of a kind that the board had the author-
ity to make. The board’s position is unpersuasive for several
reasons. First, the legislature in 1999 did not amend the
second sentence of ORS 144.335(3) to eliminate or modify
the reference to the requirements of ORS 183.482(8), from
which this court in Martin had derived the substantial rea-
son requirement for board orders. To expressly exclude sub-
stantial reason from the substantial evidence requirement
of ORS 183.482(8)(c) would have been an obviously prefera-
ble solution if that had been the legislature’s intention. And,
in fact, the original version of the bill took such a frontal
approach.7 In view of that fact, one would expect greater
6
This court’s decision in Gordon v. Board of Parole, 343 Or 618, 175 P3d 461
(2007) is not to the contrary. In that case, the court reviewed a board order under
ORS 183.482(8)(b)(B) to determine whether the board had exercised its discre-
tion in a manner “inconsistent with an agency rule, an official agency position,
or a prior agency practice,” and did not adequately explain the inconsistency.
In concluding that the board had not adequately done so, the court stated that
“[t]he standards of review set out in ORS 183.482(8) reflect a legislative policy,
embodied in the APA, that decisions by administrative agencies be rational, prin-
cipled, and fair, rather than ad hoc and arbitrary,” and that it would review a
final board order “to determine if the board’s findings, reasoning, and conclusions
demonstrate that it acted in a rational, fair, and principled manner in deciding to
defer petitioner’s parole release.” Id. at 633-34. Nothing in Gordon suggests that,
for purposes of substantial reason review under ORS 183.482(8)(c), the court
believed that the board was required to identify specific evidence in the record
that supported its ultimate determinations of fact and law.
7
As discussed below, the original version of the bill would have exempted all
agencies, not only the board, from the requirement to “explain how the agency’s
order is supported by the facts and evidence in the record.”
Cite as 356 Or 186 (2014) 201
clarity of expression in the enacted version of the bill if the
board’s view were correct.
Second, as noted, the substantial reason require-
ment is part of the substantial evidence standard of review.
If the first sentence of ORS 14.335(3) were meant to pre-
scribe the only requirement that must be satisfied to uphold
an order on review, it is difficult to fathom why other stan-
dards of review set out in ORS 183.482(8) would continue
to apply to board release decisions. That is, if no more than
a statement of the board’s authority for taking the type of
action that it took were required to uphold the board’s orders,
why would the board’s orders be subject to any standard of
review under ORS 183.482(8), including the requirements
that they be based on substantial evidence (subsection (8)(c))
and the proper exercise of discretion (subsection (8)(b))?
That possibility makes little sense in light of the express
wording of the second sentence of the statute. Instead, the
second clause of the first sentence logically refers to what is
required to issue an order that is reviewable under one or
more standards of review. See Don’t Waste Oregon Committee
v. Energy Facility, 320 Or 132, 135 n 1, 881 P2d 119 (1994)
(describing alleged agency errors as “reviewable pursuant to
the standards of review for administrative actions set forth
in [ORS 183.482]”).8
The legislative history of the 1999 amendment to
ORS 144.335(3) supports that view. In direct response to
Martin, the Department of Justice (DOJ) initiated the intro-
duction of a bill in the 1999 legislative session, SB 401, that
would have amended ORS 183.482(8) to further exempt all
agencies that are exempt from providing specific findings
8
Although we separately discuss the parties’ arguments concerning ORS
144.135 later in this opinion, we briefly mention it in our analysis of the context
of ORS 144.335(3). ORS 144.135 was enacted in 1977 and has not been amended
since then. That statute applies to three types of board orders, including orders
entered pursuant to ORS 144.125, such as the order we review here. ORS 144.135
was never mentioned in the 1999 legislative hearings leading to the amendment
of ORS 144.335, which, unlike ORS 144.135, applies to all final board orders. The
requirements in both statutes facilitate judicial review and enhance the account-
ability of board decisions, but they differ somewhat in focus. As discussed below,
ORS 144.135 requires the board to set out the detailed bases for particular types
of decisions, whereas ORS 144.335 is more expressly concerned with judicial
review of all categories of final board orders, including the reviewability of such
orders and the standards for conducting review.
202 Jenkins v. Board of Parole
of fact and conclusions of law from having to “explain how
the agency’s order is supported by the facts and evidence in
the record.” In other words, under that proposal, the orders
of several agencies—including the board—would no longer
have been subject to the substantial reason requirement.
The Oregon Judicial Department (OJD) opposed the
bill, taking the position in an initial hearing before a Senate
committee that even agencies that are exempt from specific
factfinding and legal conclusion requirements should not
be “totally exempt from providing some kind of reasoned
explanation in their orders when the order comes before a
court for judicial review.” Testimony, Senate Committee on
Judiciary, SB 401, Feb 4, 1999, Ex C (statement of James
W. Nass, Appellate Legal Counsel for the Oregon Judicial
Department). A DOJ representative rejoined that the sheer
volume of the board’s workload, coupled with limitations in
its resources, precluded the preparation of such orders in all
release decision cases.
The disagreement continued as the bill moved to
the House of Representatives. At a work session before the
House Judiciary Committee, Mr. Nass testified in favor of an
amendment to SB 401 that would have provided for a “sec-
ond look” at board orders where an inmate had petitioned
for judicial review. Under that approach, the board would
not have been required to demonstrate substantial reason in
its orders unless a petitioner sought administrative review,
whereupon the board would be required—in an amended
order—to comply with the substantial reason requirement.
Tape Recording, House Judiciary Committee on Civil Law,
SB 401, March 17, 1999, Tape 68 side B (statement of James
W. Nass). In response, a DOJ representative objected that
the proposed amendment would lead to a “two-tier” review
system, where board orders subject to petitions for judicial
review would be written differently than those in proceed-
ings that are not likely to be the subject of judicial review.
Id. (statement of Solicitor General Michael Reynolds).
Representative Uherblau then expressed concern about SB
401 in its initial form, because, as she put it, there had to be
“some accountability” on the part of the board, and a “bare
order” would not adequately explain the board’s reasoning
Cite as 356 Or 186 (2014) 203
for the benefit of both the inmate and a reviewing court.
Representative Uherblau said that she preferred to require
an explanation that “doesn’t have to be complicated,” as long
as it “put [the board’s] thought process down on paper.” Id.
(statement of Representative Uherblau).
Board Chair Diane Rea responded to Representative
Uherblau’s concern, stating that “we have what you’re
describing in place right now through our Administrative
Review Responses.” Id. According to Chair Rea, ARR’s were
intended to “give the factual and legal analysis for th[e]
decision,” for purposes of “defending ourselves” before the
Court of Appeals. Rea told the committee that the board’s
orders “don’t go to the Court of Appeals on a bare order, they
go to the Court of Appeals with an order and Administrative
Review Response which contains the board’s thought pro-
cess.” Id. (statement of Board Chair Diane Rea).
When asked to respond to Rea’s comments, Nass
said that, in his opinion, some ARR’s were thorough, but
others were not and, in any event, the board had elected
to use ARR’s because of this court’s decisions in Martin
and Drew, and, if those decisions were superseded, it could
decide to stop doing so. Id. (statement of James W. Nass).
Representative Williams then asked Rea how Martin had
affected the workload of the board; Rea replied that the
board had been including detailed ARR’s in its orders “in
compliance with case law,” and that, given the board’s work
load, SB 401 was primarily motivated by the Board’s desire
not to be subjected to the APA’s findings of fact and con-
clusions of law requirements. Id. (statement of Board Chair
Diane Rea). Solicitor General Reynolds also told the commit-
tee how DOJ had interpreted Martin in initiating SB 401.
According to Reynolds, the key to understanding Martin was
that, although the court had found the board to be subject
to a “findings of fact and conclusions of law” requirement, it
had nonetheless affirmed the Board’s order in that case. Id.
Reynolds urged that, because the board had continued to
issue ARR’s like the one in Martin, the legislature should
permit the board to continue that practice and not subject
it to any additional requirements. Id. (statement of Solicitor
General Michael Reynolds).
204 Jenkins v. Board of Parole
During the next two months, the bill was further
revised so that, as enacted, it added only what is now the
first sentence of ORS 144.335(3). Unfortunately, little of the
legislative history addresses the intended effect of that final
version. At a hearing before the Subcommittee on Civil Law,
a DOJ representative explained the impetus for the com-
promise—that is, the disagreement between DOJ and OJD
about “the wisdom of the original proposal” in SB 401—but
failed to shed light on the meaning of the added text. The
DOJ representative explained to the subcommittee that, to
resolve the disagreement, Oregon’s Attorney General, the
Chief Justice of the Supreme Court, and Justice Gillette, the
author of Martin, had “worked out” the “alternative language”
and that “everyone is satisfied with this now, although now
it only applies to the parole board—not to the PSRB or any-
one else that would have been covered by the first bill.” Tape
Recording, House Committee on Judiciary, Subcommittee on
Civil Law, SB 401, June 1, 1999, Tape 185, Side A (statement
of Assistant Attorney General Christine Chute).
When the final version of the bill was before the
House, Representative Bowman asked “whether or not this
bill would limit the information that inmates would receive
as they are talking to the parole board about what they need
to do to be released.” Tape Recording, House Floor, SB 401,
June 11, 1999, Tape 113, Side B (statement of Representative
Jo Ann Bowman). Representative Shetterly responded: “No,
it does not limit the information that inmates are to receive.
This bill deals only with the form of orders that would be
transmitted from the case to the Court of Appeals for the
purpose of judicial review.” Tape Recording, House Floor,
SB 401, June 11, 1999, Tape 113, Side B (statement of
Representative Lane Shetterly).
The foregoing legislative history is not conclusive;
in particular it fails to account for off-the-record discussions
that led to the finally enacted version of the bill. However,
despite that uncertainty, the discussions that transpired in
the March 17 House Judiciary Committee hearing are illu-
minating. It is apparent from those discussions that DOJ
and the board believed that (1) in practical effect, this court
in Martin had judicially reinstated a findings and conclu-
sions requirement for board release decision orders; (2) the
Cite as 356 Or 186 (2014) 205
board was attempting to provide adequate explanations for
its decisions in ARR’s in keeping with the actual application
of the substantial reason requirement in Martin; and (3) as
long as it was clear that no specific findings or conclusions
were required, the board did not object to continuing with
the practice of providing an explanation of its decisions in
ARR’s that would be adequate for judicial review. As artic-
ulated by Representative Uherblau, that practice “doesn’t
have to be complicated,” so long as it “puts [the Board’s]
thought process down on paper.” And, finally, as stated by
Representative Shetterly, the final version of the bill was
concerned with the “form of orders,” and not meant to “limit
the information that inmates are to receive.”
Viewed accordingly, the version of SB 401 that ulti-
mately was enacted assumes a somewhat different shape
than either party urges. On the one hand, the bill did not
elevate the substantial reason standard to the level of a
virtual findings requirement in the way that petitioner
asserts. Rather, the amendment confirmed that the board
is not required to make specific findings of fact or conclu-
sions of law in its release postponement orders or to use any
particular form of order, and that an order is sufficient for
purposes of review—that is, it is reviewable—if it shows that
the board made a decision of a kind that it was authorized
to make. Thus, we agree with the board’s proposed inter-
pretation of the second clause of the first sentence of ORS
144.335(3) (1999). However, the legislature’s failure to alter
the remainder of ORS 144.335(3), together with the over-
all legislative history set out above, suggests that the leg-
islature ultimately did not intend to modify the standard
of review, that is, substantial reason—a standard that is
implicit in ORS 183.482(8)(c), as that standard actually was
applied in Martin. See Martin, 327 Or at 158 (stating that
substantial reason “is the appropriate standard of review.”).
Accordingly, we conclude that the substantial reason stan-
dard continues to apply to the board’s decisions to postpone
a prisoner’s scheduled release date under ORS 144.125.
1. The Scope of the Final Order
Before we apply that standard to the board’s order
here, it is necessary to determine what documents constitute
206 Jenkins v. Board of Parole
the board’s final order and, in particular, whether the ARR
on which the board in part relies is included. The board’s
original decision denying petitioner’s release was a BAF.
OAR 255-005-0005(6) defines “BAF” as “a Board order after
a decision called a ‘Board Action Form.’ However, where
”
administrative review is sought and granted, a BAF is not
the exclusive embodiment of the board’s final release post-
ponement decision under ORS 144.125.
ORS 144.335(1) provides that a person may seek
review of a board order if that order is a “final order,” if the
person is “adversely affected or aggrieved” by the final order,
and if “the person has exhausted administrative review as
provided by board rule.” ORS 144.335(1)(a), (b). The board’s
administrative rule implementing ORS 144.335 provides:
“(1) A Board order is final and effective the date it
is signed, however it is not final for purposes of the time
period within which to appeal to the Court of Appeals until
the inmate/offender exhausts his or her administrative
review remedies.
“(2) An 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. The Board shall
notify the inmate/offender that exhaustion has occurred
and the time for judicial appeal of appealable orders shall
run from the mailing date of the notice.”
OAR 255-080-0001. Another rule, OAR 255-080-0005, spec-
ifies how, and when, requests for administrative review are
to be filed. When, as here, the board grants a request for
review, OAR 255-080-0012(5) requires the board to “send
the inmate/offender written notice of the board decision and
findings.” As noted, above, in response to such a request, the
board typically issues an ARR that often contains a more
detailed explanation of the original decision that the board
made. In the board’s practice, the ARR, coupled with the
initial order, constitute the final order for purposes of judi-
cial review. That practice is consistent with the governing
statutory scheme as explained in this court’s prior decisions.
In Dawson v. Board of Parole, 346 Or 643, 649, 217
P3d 1055 (2009), this court observed that “ORS 144.335
Cite as 356 Or 186 (2014) 207
does not explain what a ‘final order’ is for purposes of judi-
cial review of a board decision.” However, the court cited
Mastriano v. Board of Parole, 342 Or 684, 696, 159 P3d 1151
(2007), for the proposition that, “when the board ‘reexam-
ines a prior order, even if it reaffirms the order in full,’ that
action results in an order that is ‘final for purposes of judi-
cial review.’ ” Dawson, 346 Or at 654. The court in Dawson
adhered to its earlier holding in Esperum v. Board of Parole,
296 Or 789, 798, 681 P2d 1128 (1984), that, “when reconsid-
eration of an earlier order is requested and granted, and the
administrative action denies parole release date relief, such
a denial of relief is subject to judicial review in the Court
of Appeals,” thus, in effect, holding that such an action is
a “final order” under ORS 144.335(1). See Dawson, 346 Or
at 655. That conclusion is consistent with this court’s treat-
ment of ARR’s in other cases. See Weems, 347 Or at 600 (dis-
cussion of factors supporting board’s decision contained in
ARR); Martin, 327 Or at 151-52 (reasons meeting substan-
tial reason requirement set out in ARR).
In short, petitioner was required to seek administrative
review in order to exhaust his administrative remedies, and that
review process culminated in an order—including the ARR—
that was “final for purposes of judicial review.” Mastriano, 342
Or at 696. Accordingly, we conclude that the ARR in this case
is part of the final order for purpose of determining whether the
board’s decision is supported by substantial reason.
2. Application
The ARR in this case addressed each of petitioner’s
challenges to the board’s initial BAF. In particular, the ARR
stated that the board had “consider[ed] all of the evidence
presented at [the exit interview hearing] including [the]
psychological evaluation prepared by Dr. Frank P. Colistro
on June 30, 2008,” and that the board had “acted under ORS
144.125(3) (1977) and OAR 254-50-015(3),[9] postponing
9
That rule, OAR 254-50-015(3) (7/19/1978), provided:
“If a psychiatric or psychological diagnosis of present severe emotional
disturbance has been made with respect to the offender, a panel may order
a postponement of the scheduled release until a specified later date or until
the prisoner or institution presents evidence that the emotional disturbance
is over or in remission.”
208 Jenkins v. Board of Parole
your projected parole release date on the basis of your
severe emotional distress and dangerousness.” In the eval-
uative report that the board expressly identified as a basis
for its decision, Colistro specifically opined—after setting
out detailed clinical support for his conclusions10 —that peti-
tioner had an antisocial personality disorder with a “very
high degree of psychopathy” and that “the condition is a
severe one which continues to predispose [petitioner] to the
commission of crimes to a degree rendering him an ongoing
threat to the health and safety of the community, an indi-
vidual not yet amenable to community-based treatment.” In
short, the board’s statements in the ARR leave little doubt
as to the facts on which it relied or the existence of a rational
connection between those facts and its decision pursuant to
the statute and rule under which it acted.11
Petitioner nevertheless asserts that, even consid-
ered together, the explanations of the board’s decision set out
in the BAF and ARR are too general to permit our review for
substantial reason. That argument misconceives the nature
of the substantial reason requirement. Instead, as discussed,
that standard requires that a final board order under ORS
144.125 provide an explanation connecting the facts of the
case and the result reached, and that there be no indication
that, in making its decision, the board relied on evidence
that did not qualify as substantial evidence. Martin, 327 Or
at 157-58. Here, the board expressly anchored its decision
to pertinent facts in the record, in particular, to Colistro’s
report. Moreover, unlike the circumstance with the agency
order in Drew, nothing in the BAF or the ARR in this case
indicates that the board relied on tainted or insufficient evi-
dence; to the contrary, the evidence that the board specifi-
cally identified—Colistro’s report—was substantial evidence
supporting the board’s decision, and petitioner does not con-
tend otherwise. The fact that the board also indicated in the
ARR that it had “consider[ed] all of the evidence” presented
10
Because petitioner does not assert that the contents of Colistro’s clinical
analysis do not constitute substantial evidence that is sufficient to support the
board’s decision, we do not recount the details of that analysis here.
11
By setting out the statute and rule governing its decision, the board’s final
order also complied with the requirement of the first sentence of ORS 144.335(3)
(1999) that “it appear that the board acted within the scope of the board’s
authority.”
Cite as 356 Or 186 (2014) 209
in the exit interview hearing record does not undercut that
point.
Finally, petitioner points out that the board’s deci-
sion to postpone his release was a discretionary one. See
ORS 144.125 (stating that board may postpone release after
determining that inmate suffers from PSED that makes him
or her dangerous to the health or safety of the community).
Therefore, petitioner asserts, to demonstrate substantial
reason the order had to explain why the board decided to
exercise its discretion to postpone release after making those
determinations. The straightforward answer is that the
board did adequately explain that aspect of its decision: It
stated that it was postponing petitioner’s release because his
PSED rendered him dangerous if he were to be released into
the community, and it further stated, in particular, that the
board relied on Dr. Colistro’s report in making that decision.
Among other observations, Colistro opined that petitioner
presented a high risk of reoffending because he had engaged
in poor institutional conduct, his “level of psychopathy [is]
notoriously change-resistant and recidivism-prone,” and he
was “not yet amenable to community-based treatment or
supervision.” No more was required to explain the board’s
discretionary call. In short, we conclude that the board’s
final order in this case was supported by substantial reason.
B. ORS 144.135
Because petitioner challenges a board order post-
poning his release date following a psychological examina-
tion conducted by the board pursuant to ORS 144.125, in
addition to the requirements of ORS 144.335(3), the order
was subject to the requirement in ORS 144.135 that the
board “state in writing the detailed bases of its decisions.”12
The parties disagree as to what constitutes “the detailed
bases” that ORS 144.135 requires. The board argues that
ORS 144.135 “requires only that the board identify the par-
ticular ground for a decision” and that the statute’s require-
ment is met if “the order reflects the specific determination
12
Neither Martin nor Drew implicated or discussed ORS 144.135 because,
in Martin, the challenged release conditions were not imposed pursuant to ORS
144.110 to 144.125, and, in Drew, the petitioner challenged an order of the PSRB,
a body not subject to ORS 144.135.
210 Jenkins v. Board of Parole
that the board made.” Petitioner replies that ORS 144.135 is
not so easily satisfied and that an order postponing release
must “state the particular reasons why the board concluded
that a statutory bases for postponement existed and, when
postponement is discretionary, state why the board decided
to postpone release in a case.” By “particular reasons,” peti-
tioner means that the board must describe “the particular
evidence on which [it] relied” in arriving at its decision.
The term “detailed bases” is not legislatively defined,
but, when it pertains to the grounds for a decision, a “basis”
is a legal term which refers to “[t]he reason or point that
something (as a legal claim or argument) relies on for valid-
ity.” Black’s Law Dictionary 772 (9th ed 2009); see Datt v.
Hill, 347 Or 672, 676, 227 P3d 714 (2010) (describing legal
meaning of “ground” as synonymous with “basis”). A “detail”
is “a small and subordinate part.” Webster’s at 616. On the
surface of things, that term could require—as petitioner
suggests—the board’s orders to describe particular evidence
on which it relied in reaching a decision. However, once
again, such a view is difficult to square with the board’s
exemption from the APA’s findings of fact and conclusions
of law requirement. ORS 183.315(1).13 Alternatively, the dis-
puted term could be understood to require the board to give
specific reasons for its decisions stated in terms of the appli-
cable criteria. In its previous decisions, this court has given
a functional meaning to the term that is consistent with the
latter view.
This court construed ORS 144.135 in Anderson v.
Board of Parole, 303 Or 618, 740 P2d 760 (1987). In that
case, the board had voted not to override a 60-month term of
imprisonment that the sentencing court imposed on the peti-
tioner. That board decision was governed by ORS 144.110,
which provided:
“(1) In any felony case, the court may impose a min-
imum term of imprisonment of up to one-half of the sen-
tence it imposes.
13
The board’s exemption from the requirements of ORS 183.470(2) dates
back to 1971, when ORS 183.315(1) was first enacted. Or Laws 1971, ch 734,
§ 19. Significantly, that exemption was neither repealed nor modified when ORS
144.135 was enacted in 1977.
Cite as 356 Or 186 (2014) 211
“(2) Notwithstanding the provisions of ORS 144.120
and 144.178:
“(a) The board shall not release a prisoner on parole
who has been sentenced under subsection (1) of this sec-
tion until the minimum term has been served, except upon
affirmative vote of at least four members of the board.”
The board’s order, memorialized in a BAF, recited that three
members had voted to override the 60-month sentence and
two had voted to sustain it. Id. at 624.
On review, the petitioner asserted that the board
had failed to comply with ORS 144.135 because the BAF
had not set out in writing the “detailed bases” for the board’s
decision. This court noted that, although “ORS 144.110(2)(a)
does not specifically require that each [board] member state
his or her reasons for making the decision to override or not
to override a minimum sentence[,] * * ORS 144.135 does
*
include reference to ORS 144.110.” Accordingly, the question
before the court was “what statement of detailed bases must
be made as to the minimum sentence decision?” Id.
The court began its analysis by construing ORS
144.110 and the board’s rule implementing that statute,
OAR 255-35-023.14 The court stated:
“We interpret the rule to require the Board to state the
facts and reasons for its actions only when four members of
the Board find applicable one or more of the three catego-
ries listed under subsection (1). * * [T]he administrative
*
procedure for minimum sentence review works like this:
The Board takes a vote to override the minimum sentence.
14
That rule provided:
“(1) The Board shall not release a prisoner before a judicially imposed
minimum prison term sentence has been served except when at least four
members of the Board find that:
“(a) The court applied the guideline rules incorrectly; or
“(b) The Board has information not available to the court at the time of
sentencing; or
“(c) The court’s findings, though technically correct, lead to an inequita-
ble result.
“(2) The Board shall state the facts and reasons for its actions and it
shall then inform the sentencing court of its decisions and reasons. The
Board shall then set an initial parole release date in accordance with rule
255-35-013.”
212 Jenkins v. Board of Parole
If four votes are not garnered to override, the basis for the
decision simply results from the lack of four affirmative
votes on that issue. The vote and who made it constitute
the basis for the decision not to override. The Board, or
the subset voting not to override, need not ‘come to a point’
where they have agreed upon some set of findings of fact
and conclusions of law; the absence of four affirmative votes
alone determines the Board’s decision regardless whether
there is any agreement as to why the Board has refused to
override. In such a case, the prisoner’s parole date is set
at the expiration of the mandatory minimum sentence and
the criteria, justification or ‘detailed bases’ for such Board
action are simply that there are not enough votes to override.
“* * * * *
“As demonstrated by this case, there was no consensus
by the Board members. After evaluating the entire record,
two members elected not to override the minimum and
three would have. We perceive no purpose to be served
by requiring the Board members to state their individual
reasons for not voting to override the minimum sentence
imposed. Neither the statute nor the Board rules require
such statements. In sum, the Board complied with ORS
144.135 by setting forth in writing the bases for its decision
under ORS 144.110 to 144.125.”
Id. at 625-26 (emphasis added).
Consistently with the approach that it took in
Anderson, in Hemmerich v. Board of Parole, 303 Or 683,
685, 740 P2d 779 (1987), this court rejected the petitioner’s
argument that the board failed to comply with ORS 144.135,
explaining that, “[a]s in Anderson[,] * * * the Board fully
complied with ORS 144.135 by setting forth ‘in writing the
detailed bases for its decision,’ which included four aggra-
vation factors as justifying its decision to exceed the matrix
range by five months.” Similarly, in Baker v. Board of Parole,
303 Or 656, 740 P2d 772 (1987), this court held that the
board had complied with ORS 144.135 when it explained,
in a BAF sustaining the petitioner’s 30-months minimum
sentence, that it was doing so “because of the nature of the
offense.” Relying on Anderson, this court held that “the
board is not required to state further details for its deci-
sion.” Id.
Cite as 356 Or 186 (2014) 213
In sum, this court’s previous decisions confirm that
ORS 144.135 requires the board to set out the specific rea-
sons for its decision stated in terms of the criteria that it
is required by statute or rule to address. In a release post-
ponement order under ORS 144.125, those criteria are that
the prisoner must (1) have a present severe emotional dis-
turbance (2) such as to constitute a danger to the health
or safety of the community. However, ORS 144.135 does not
further require the board to identify particular evidence sup-
porting its decision with respect to each of those criteria.15
The board’s final order in this case satisfied the stat-
ute. The ARR set out in writing (1) the statute and rule under
which the board made its decision; (2) the criteria that the
board was required to address under the statute and rule;
and (3) the board’s decision based on those criteria, includ-
ing a reference to facts—the information in Colistro’s evalu-
ation of petitioner—on which the board relied. Nothing more
was required to set out the detailed bases for the board’s
decision. Accordingly, the board’s final order satisfied ORS
144.135.16
III. CONCLUSION
To summarize: We conclude that the board’s order
postponing petitioner’s scheduled release date under ORS
144.125 was required, despite the 1999 amendment to ORS
144.335(3), to satisfy the substantial reason requirement
15
The legislative history of ORS 144.135 does not meaningfully inform our
interpretation of the disputed term. The statute was enacted in 1977, along
with ORS 144.110, ORS 144.120, and ORS 144.125, as part of HB 2013 (1977),
which overhauled the parole system in Oregon. The legislative history of HB
2013 includes only one reference to section 9 of the bill, which, as enacted, would
become ORS 144.135. Legal counsel for the House Judiciary Committee, in sum-
marizing the bill during a work session, explained that “section [9] is simply an
accountability section.” Minutes, House Committee on Judiciary, April 19, 1977,
16 (statement of Dennis Bromka).
16
The order also satisfied the board’s rules that implement ORS 144.125. In
particular, OAR 255-060-0012(3) provides:
“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.”
See also OAR 255-060-0013(1) (providing that an order postponing parole release
shall set forth the facts and specific reasons for the decision).
214 Jenkins v. Board of Parole
that this court has held is implied in the substantial evi-
dence standard of review to which the board’s orders are
subject under ORS 183.482(8)(c). However, we also conclude
that the board’s final order in this case, which included its
ARR, satisfied that requirement because it provided an
explanation connecting the facts of the case and the result
reached, and there is no indication that, in making its deci-
sion, the board relied on evidence that did not qualify as
substantial evidence. Martin¸ 327 Or at 157-58.
Finally, we conclude that the final order set out
detailed bases for the board’s decision in accordance with
ORS 144.135, in that it set out the statute and rule under
which the board made its decision; the criteria that the
board was required to address under the statute and rule;
and the board’s decision based on those criteria, including a
reference to facts on which the board relied. It follows that
the Court of Appeals erred in reversing the board’s order.
The decision of the Court of Appeals is reversed.
The final order of the Board of Parole and Post-Prison
Supervision is affirmed.