Chapter 411
AN ACT
HB 2667
Relating to judicial review; amending ORS 34.330 and 144.335.
Be It Enacted by the People of
the State of
SECTION 1.
ORS 144.335 is amended to read:
144.335. (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.
(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.
(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.
(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)] (6) 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. 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, 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)] (7) 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.
[(11)] (8) In the case of disputed allegations of
irregularities in procedure before the board not shown in the record 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)] (9) If the court determines that [the motion] a brief filed [under subsection (6) of this section] by the petitioner,
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] prior to a summary affirmance described
in subsection (6) of this section, the court may not award costs or attorney
fees to the board.
[(13)] (10) 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.
(11) If the
petitioner prevails on judicial review and is represented by an attorney funded
by the Public Defense Services Commission, any recoverable costs shall be paid
to the commission.
SECTION 2.
ORS 34.330 is amended to read:
34.330. A person may not
prosecute a writ of habeas corpus if:
(1) 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) The person is
imprisoned or restrained by virtue of the judgment of a competent tribunal of
civil or criminal jurisdiction, or by virtue of an execution issued upon such
judgment.
(3) Except as provided
in ORS 138.530, 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)] (a) 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] person
failed to present a substantial question of law;
[(c)] (b) Otherwise disposes of the judicial review on the
merits of the petitioner’s issues on judicial review; or
[(d)] (c) Dismisses the judicial review because of a
procedural defect.
Approved by the Governor June 13, 2007
Filed in the office of Secretary of State June 13, 2007
Effective date January 1, 2008
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