Chapter 661 Oregon Laws 2001

AN ACT

HB 2348

Relating to judicial review of final orders of State Board of Parole and Post-Prison Supervision; creating new provisions; amending ORS 34.330, 144.335, 151.250 and 151.450; and appropriating money.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 144.335 is amended to read:

144.335. (1) [When a person over whom the State Board of Parole and Post-Prison Supervision exercises its jurisdiction is adversely affected or aggrieved by a final order of the board related to the granting, revoking or discharging of parole, the revoking of post-prison supervision or the imposition of conditions of parole or of post-prison supervision and after exhaustion of administrative review as provided by board rule, such person is entitled to judicial review of the final order.] 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.

(2) A person requesting administrative review shall provide the person’s current mailing address in the request. The board shall mail its order disposing of the request for administrative review to the person at that address, unless the person has otherwise notified the board in writing of a change of address.

[(2) Notwithstanding subsection (1) of this section, the board’s order is final and is not subject to judicial review when the board sustains a minimum term imposed under ORS 144.110 and the prisoner does not contest the crime severity rating or the history risk score established by the board under its rules.]

[(3) Notwithstanding subsection (1) of this section, the board’s order is final and is not subject to judicial review when the board makes any decision relating to a release date or a parole consideration hearing date, including:]

[(a) Setting an initial release date under ORS 144.120, except that the setting of an initial release date under ORS 144.120 remains subject to judicial review if the prisoner contests the crime severity rating, the history risk score or aggravation factors found by the board under the rules of the board.]

[(b) Setting a date for a parole consideration hearing under ORS 144.228.]

[(c) Setting a release date, or declining to set a release date, after a parole consideration hearing under ORS 144.228.]

[(d) Denying, granting or granting in part a prisoner’s request under ORS 144.122 for advancement of the initial release date.]

[(e) Referring a prisoner for psychological evaluation under ORS 144.223.]

[(f) Postponing a prisoner’s release date because of serious misconduct during confinement under ORS 144.125 (2).]

[(g) Postponing a prisoner’s release date because of a board finding under ORS 144.125 (3).]

[(h) Postponing a prisoner’s release date because of a prisoner’s refusal to submit to a psychological evaluation.]

[(i) Denying a prisoner’s request under ORS 144.228 (1) for an early parole consideration hearing.]

[(4) The final order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 60 days of the final order for which review is sought. The board shall submit to the court the record of the proceeding, or, if the inmate agrees, a shortened record. A copy of the record transmitted shall be delivered to the inmate by the board.]

[(5)] (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] 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.

(4) If a person described in subsection (1) of this section seeks judicial review of a final order of the board, the person shall file a petition for judicial review with the Court of Appeals within 60 days after the date the board mails the order disposing of the person’s request for administrative review. The person shall serve a copy of the petition for judicial review on the board.

(5) Within 30 days after being served with a copy of the petition for judicial review, or such further time as the court may allow, the board shall:

(a) Submit to the court the record of the proceeding or, if the petitioner agrees, a shortened record; and

(b) Deliver a copy of the record to the petitioner or the petitioner’s attorney, if the petitioner is represented by an attorney.

(6) Within 60 days after being served with a copy of the record, or such further time as the court may allow, the petitioner shall file a motion for leave to proceed with judicial review based on a showing in the motion that a substantial question of law is presented for review.

(7) Notwithstanding ORS 2.570, the Chief Judge, or other judge of the Court of Appeals designated by the Chief Judge, may, on behalf of the Court of Appeals, determine whether a motion for leave to proceed with judicial review under subsection (6) of this section presents a substantial question of law and may dismiss the judicial review if the motion does not present a substantial question of law. A dismissal under this subsection constitutes a decision on the merits of the petitioner’s issues on judicial review.

(8) If the Chief Judge, or other judge of the Court of Appeals designated by the Chief Judge, determines under subsection (7) of this section that the motion presents a substantial question of law, the court shall order the judicial review to proceed.

(9) At any time after submission of the petitioner’s brief, the court, on its own motion or on motion of the board, without submission of the board’s brief and without oral argument, may summarily affirm the board’s order if the court determines that the judicial review does not present a substantial question of law. The court may deny or, if the petitioner does not oppose the motion, grant the board’s motion for summary affirmance. A summary affirmance under this subsection constitutes a decision on the merits of the petitioner’s issues on judicial review.

(10) During the pendency of judicial review of an order, if the board withdraws the order for the purpose of reconsideration and thereafter issues an order on reconsideration, and the petitioner wishes to proceed with the judicial review, the petitioner need not seek administrative review of the order on reconsideration and need not file a new petition for judicial review. The petitioner shall file, within a time established by the court, a notice of intent to proceed with judicial review.

[(6)] (11) In the case of disputed allegations of irregularities in procedure before the board not shown in the record [which] that, if proved, would warrant reversal or remand, the Court of Appeals may refer the allegations to a master appointed by the court to take evidence and make findings of fact upon them.

(12) If the court determines that the motion filed under subsection (6) of this section, when liberally construed, fails to state a colorable claim for review of the board’s order, the court may order the petitioner to pay, in addition to the board’s recoverable costs, attorney fees incurred by the board not to exceed $100. If the petitioner moves to dismiss the petition before expiration of the time provided in subsection (6) of this section, the court may not award costs or attorney fees to the board.

(13) Upon request by the board, the Department of Corrections may draw from or charge to the petitioner’s trust account and pay to the board the amount of any costs or attorney fees awarded to the board by the court in any judicial review under this section.

SECTION 2. ORS 34.330 is amended to read:

34.330. [The following persons shall not be allowed to] A person may not prosecute [the] a writ of habeas corpus if:

(1) [Persons] The person is imprisoned or restrained by virtue of process issued by a court of the United States, or a judge, commissioner or other officer thereof, in cases where such courts, or judges or officers thereof, have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of actions, suits or other proceedings in such court, or before such commissioner or other officer.

(2) [Persons] The person is imprisoned or restrained by virtue of the judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment or decree.

(3) Except as provided in ORS 138.530, [persons] the person is eligible to obtain post-conviction relief pursuant to ORS 138.510 to 138.680.

(4) The person is eligible to seek judicial review of a final order of the State Board of Parole and Post-Prison Supervision under ORS 144.335 but the person fails to seek judicial review of the order in a timely manner.

(5) The person seeks judicial review of a final order of the board under ORS 144.335 but the Court of Appeals:

(a) Dismisses the judicial review on the grounds that the motion for leave to proceed with judicial review described in ORS 144.335 does not present a substantial question of law;

(b) Summarily affirms the order of the board on the grounds that the motion for leave to proceed with judicial review described in ORS 144.335 does not present a substantial question of law;

(c) Otherwise disposes of the judicial review on the merits of the petitioner’s issues on judicial review; or

(d) Dismisses the judicial review because of a procedural defect.

SECTION 3. ORS 151.250 is amended to read:

151.250. (1) In accordance with subsections (2) to (4) of this section and the determinations of the Public Defender Committee under ORS 151.280 (2) or (7), the Public Defender may act as attorney at any stage of a proceeding before any court, including the Supreme Court, for an individual who is committed to the legal and physical custody of the Department of Corrections pursuant to ORS 137.124, and the proceeding is other than:

(a) A habeas corpus proceeding;

(b) A proceeding for which counsel is appointed under ORS 135.045, 135.050, 419B.195, 419B.205, 419C.200, 426.100; or

(2) The defender may act only at the request of the individual described in subsection (1) of this section, or, if no such request is made, at the request of the court or magistrate.

(3) The individual on whose behalf the defender is requested to act shall submit to the defender, in the form prescribed by the committee, an affidavit of the financial circumstances of the individual unless the trial court in the case already determined the individual to be indigent for purposes of the specific case or the individual appeared in the case through court appointed counsel. If so, the request or individual need only so indicate and provide the defender information necessary to substantiate. However, if the request relies on the trial court’s previous determination that the individual is indigent, the trial court, in its discretion, may require the individual to submit a new statement of assets, liabilities and income. When the trial court so requires, the individual shall submit the affidavit in the form required by this subsection.

(4) At the request of the defender or an individual who seeks the defender’s aid, the court or magistrate before whom a proceeding is pending or to whom an application for relief has been made, including the Court of Appeals in a case brought by the defender under ORS 144.337, shall finally determine whether the individual is eligible under this section for the defender’s aid.

SECTION 4. ORS 151.450 is amended to read:

151.450. The State Court Administrator shall:

(1) Pay the compensation for counsel, other than the Public Defender established by ORS 151.280, appointed to represent indigents in the state courts, including in cases seeking judicial review under ORS 144.335 when the Public Defender cannot provide representation due to a conflict of interest, and other costs and expenses of that representation that are required to be paid by the state under ORS 33.015 to 33.155, 34.355, 135.055, 138.490, 138.500, 138.590, 161.327, 161.365, 161.385, 419A.200, 419B.195, 419B.201, 419B.205, 419B.518, 419C.200, 419C.206, 426.100, 426.135, 426.275, 426.307, 427.265, 427.295, 436.265 or 436.315 or any other provisions of law that expressly provide for payment of such compensation costs or expenses by the State Court Administrator.

(2) Develop a system for conducting financial and performance audits of indigent defense contracts.

SECTION 5. The amendments to ORS 34.330, 144.335, 151.250 and 151.450 by sections 1 to 4 of this 2001 Act apply only to final orders of the State Board of Parole and Post-Prison Supervision mailed on or after the effective date of this 2001 Act.

SECTION 6. Notwithstanding any other law, the appropriation made from the General Fund for the biennium beginning July 1, 2001, for the Department of Corrections for Central Support/Operations and Administration, is decreased by $358,887.

SECTION 7. Notwithstanding any other law, the appropriation made from the General Fund for the biennium beginning July 1, 2001, for the Judicial Department, in section 2, chapter 130, Oregon Laws 2001 (Enrolled House Bill 5020), is decreased by $106,725.

SECTION 8. In addition to and not in lieu of any other appropriation, there is appropriated to the State Board of Parole and Post-Prison Supervision, for the biennium beginning July 1, 2001, out of the General Fund, the amount of $286,609, which may be expended for the duties imposed by the amendments to ORS 34.330, 144.335, 151.250 and 151.450 by sections 1 to 4 of this 2001 Act.

SECTION 9. In addition to and not in lieu of any other appropriation, there is appropriated to the Public Defender, for the biennium beginning July 1, 2001, out of the General Fund, the amount of $174,088, which may be expended for the duties imposed by the amendments to ORS 34.330, 144.335, 151.250 and 151.450 by sections 1 to 4 of this 2001 Act.

Approved by the Governor June 28, 2001

Filed in the office of Secretary of State June 28, 2001

Effective date January 1, 2002

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