71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 277
C-Engrossed
House Bill 2348
Ordered by the Senate June 11
Including House Amendments dated March 15 and Senate Amendments
dated May 17 and June 11
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Limits judicial review of final orders of State Board of Parole
and Post-Prison Supervision. Clarifies that Public Defender may
represent and be compensated by State Court Administrator for
representing clients otherwise qualified for defender's aid in
appeal of board's order to Court of Appeals. Limits persons
allowed to prosecute writs of habeas corpus.
A BILL FOR AN ACT
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
(c) A proceeding of contempt of court.
(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. + }
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