Appeal from order of board to Court of Appeals
- appointment of master
- costs
Source:
Section 144.335 — Appeal from order of board to Court of Appeals; appointment of master; costs, https://www.oregonlegislature.gov/bills_laws/ors/ors144.html.
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 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 (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 (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
Requirement that person seeking judicial review must have exhausted administrative review as provided by board rule incorporates general exhaustion doctrine of administrative law. Tuckenberry v. Bd. of Parole and Post-Prison Supervision, 365 Or 640, 451 P3d 227 (2019)
Law Review Citations
54 OLR 416 (1975)
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