dissenting.
I agree completely with the points that Judge Edmonds makes in his dissent. I write separately to expand on one of them and to add another that confirms that the policy that the Board of Parole and Post-Prison Supervision has adopted concerning the use of the Department of Corrections’ sex offender risk assessment scale violates ORS 181.585.
ORS 181.585 provides:
“(1) For purposes of ORS 181.585 to 181.587, a person is a predatory sex offender if the person exhibits characteristics showing a tendency to victimize or injure others and has been convicted of a sex crime listed in ORS 181.594(2)(a) to (d), has been convicted of attempting to commit one of those crimes or has been found guilty except for insanity of one of those crimes.
“(2) In determining whether a person is a predatory sex offender, an agency shall use a sex offender risk assessment scale approved by the Department of Corrections, or a community corrections agency.”
The department has adopted a risk assessment scale that the board uses in deciding whether to designate someone as a predatory sex offender. The scale is made up of a list of positive and negative factors, based on criminal history and current characteristics. The factors have different point values, and those that are relevant to the particular offender are marked and totaled to give a risk assessment score. When the person is assigned one of three specific “override” factors on the scale,1 or the person is assigned three or more “starred” items on the scale, the board has determined that it will designate the person as a predatory sex offender. When the person is not assigned an override factor or three starred factors, but the person’s score is minus 50 or below, the board may *647designate the person as a predatory sex offender if it determines that the designation is necessary to protect the public or to adequately supervise the person in the community.2
The flaw in the board’s approach is its decision to rely exclusively on the department’s risk assessment scale in deciding whether to designate as a predatory sex offender a person who has an override factor or three or more starred factors on the scale. Its decision to do that means that it will designate a person as a predatory sex offender without making an individualized determination that the conduct that gave rise to the override or starred factors is conduct that establishes, at the time of the designation, that the “person exhibits characteristics showing a tendency to victimize or injure others.” In other words, the board’s approach means that it will make the designation based on past conduct without regard to the amount of time that has elapsed since the person engaged in the conduct and without regard to the actions taken by the person to address the conduct.
The effect of the board’s approach is to focus on subsection (2) of ORS 181.585 to the exclusion of subsection (1) of the statute. Subsection (2) requires the board to use a sex offender risk assessment scale, such as the one created by the department, in designating people as predatory sex offenders. However, the way that the board uses the scale must be consistent with the task that subsection (1) requires the board to perform.
The task assigned to the board by subsection (1) is to determine whether a person “exhibits” that is, now has “characteristics showing a tendency to victimize or injure others.” If subsection (1) were written in the past tense, so that the determination that the board had to make was whether a person “has exhibited characteristics showing a tendency to victimize or injure others,” then it would be *648proper for the board to use the override and starred factors to determine conclusively that a person is a predatory sex offender, because those factors would unquestionably establish that the person has exhibited the requisite characteristics. However, because subsection (1) is written in the present tense, the board must determine what a person’s present •characteristics show regarding the person’s tendency to victimize or injure others, not the person’s past characteristics. The board’s approach to the override and starred factors equates a person’s past conduct with the person’s present condition, but they are not the same. The board therefore violates subsection (1) by designating people such as petitioner as predatory sex offenders solely on the ground that they have an override or three starred factors on the department’s sex offender risk assessment scale.
I believe that the board’s approach to the override and starred factors also conflicts with the Supreme Court’s application of ORS 181.585 in Noble v. Board of Parole, 327 Or 485, 964 P2d 990 (1998). The court held in Noble that the Due Process Clause required the board to give notice and a hearing to anyone whom it sought to designate under ORS 181.585 as a predatory sex offender.3 Id. at 498. It based its holding on its conclusion that “the ultimate question [under the statute], whether petitioner ‘exhibits characteristics showing a tendency to injure others,’ inherently is subjective.” Id. at 497-98. The court could not resolve what the Due Process Clause required without first resolving what factual issues the statute required the board to decide. Consequently, the court’s conclusion that the statute requires the board to make an inherently subjective determination about whether a petitioner exhibits the requisite characteristics is necessarily based on an interpretation of the statute. That interpretation is directly contrary to the interpretation that the board has given the statute.
Under the board’s approach to the override and starred factors in the risk assessment scale, the presence of an override or three starred factors conclusively establishes *649that a person will be designated as a predatory sex offender. Those factors are purely objective factors that address past conduct. They are applied by the board without making any subjective evaluation about whether the past conduct that gave rise to those factors is conduct that indicates that the person now has characteristics showing a tendency to injure others.
In summary, the board’s use of the override and starred factors conflicts with the language of ORS 181.585 and with the Supreme Court’s application of that language in Noble. Under a correct interpretation of the statute, the board erred by relying conclusively on the presence of three starred factors on the risk assessment scale to designate petitioner as a predatory sex offender under ORS 181.585. The majority errs in concluding otherwise.
The current override factors are forcible rape, use of a weapon during the commission of the offense, and men who molest boys.
At the time relevant to petitioner’s designation, the board had not yet adopted permanent administrative rules implementing its practice. Rather, it established a permanent policy that it applied to all offenders for whom it issued a supervision order on or after January 1,1999. The board first adopted its administrative rule implementing the policy, OAR 255-060-0011, on February 15, 2000. Petitioner’s designation is governed by the board’s policy rather than its rule, but there is no substantive difference between the two standards as they related to the issues in this case.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”