TERRI LEE BROWN, Plaintiff, v. TINA KOTEK, Governor of the State of Oregon; Nichole Brown, Superintendent, Coffee Creek Correctional Facility; and Tasha Petersen, Administrator of Oregon Department of Corrections Offender Information Sentence Computation Unit, Defendants.
SC S071034
IN THE SUPREME COURT OF THE STATE OF OREGON
May 8, 2024
372 Or 260
GARRETT, J.
En Banc. Original proceeding in habeas corpus. Argued and submitted May 2, 2024. No. 13.
Kirsten Naito, Assistant Attorney General, Salem, argued the cause for defendants. Paul L. Smith, Deputy Solicitor General, Salem, filed the memorandum in opposition. Also on the memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
GARRETT, J.
It is hereby ordered that plaintiff immediately be discharged from her illegal imprisonment. Pursuant to
GARRETT, J.
Plaintiff has petitioned for a writ of habeas corpus, requesting that this court exercise its original jurisdiction and order her immediate release from prison.
Plaintiff‘s imprisonment is unlawful. Accordingly, we order that she immediately be discharged from custody.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are procedural and uncontested.3 Plaintiff pleaded guilty to two counts of mail theft or receipt of stolen mail.
In December 2020, Governor Brown issued commutations of sentences in connection with the COVID-19 pandemic. In plaintiff‘s case, Governor Brown ordered a “Conditional and Revocable Commutation of Sentence.” The commutation order stated that, as to Count 2, plaintiff was “scheduled to complete her term of incarceration on August 22, 2021.” The Governor then commuted the remaining term of incarceration “from incarceration to post-prison supervision.” The commutation was subject to a variety of conditions, including that (1) “[f]rom the effective date of [the] order through the end of her [PPS] calculated to August 22, 2021, [plaintiff] shall not violate any state or federal law“; (2) the commutation order “[did] not relieve [plaintiff] of [PPS]“; (3) plaintiff shall “agree to, and abide by, the terms specified in the Agreement Accepting Conditional and Revocable
The acceptance agreement stated that “the Governor [was] willing to grant a commutation to [plaintiff] only as provided in this agreement[.]” Among other things, the agreement provided that (1) “[f]rom the effective date of the [commutation order] through August 22, 2021, [plaintiff] shall not violate any state or federal law“; and (2) plaintiff “shall abide by the terms and conditions of any post-prison supervision that is imposed in connection with the conditional and revocable commutation and her Judgment of Conviction.” The agreement included a waiver provision, stating that plaintiff waived any legal challenges to future revocation of the commutation and to being returned to prison, including through a petition for a writ of habeas corpus:
“If the Governor of the State of Oregon should determine in his or her sole judgment that [plaintiff] has violated any of the conditions of this conditional and revocable commutation, the Governor may revoke such commutation and require that [plaintiff] return to prison to serve out her sentence that was remaining at the time her commutation was granted according to the terms of the Judgment of Conviction. [Plaintiff] hereby waives any potential objection or challenge to having the commutation revoked and being returned to prison under such a determination, including an application for a writ of habeas corpus.”
(Emphasis added.) Plaintiff signed the acceptance agreement, which included an acknowledgement that she had “carefully reviewed” both the agreement and the commutation order and that she “hereby agree[d] to its terms.”
The Governor‘s conditional commutation became effective on December 23, 2020. Plaintiff was released from prison and placed under the authority of the Board of Parole and Post-Prison Supervision (BOPPS) to serve her PPS.
In May 2021—approximately four months after her release from prison—plaintiff pleaded no contest to violating a general condition of her PPS (i.e., that she “[o]bey all laws, municipal, county, state, and federal“). A hearings officer found her in violation of her PPS, and a 30-day jail sanction was imposed. The parties do not dispute that plaintiff‘s conduct constituted a violation of the conditions of her commutation. Other than the imposition of the sanction, we are unaware of any other actions being taken at that point.
Almost two years later, in February 2023, BOPPS issued a “Certificate of Supervision Expiration,” stating that plaintiff had “completed the period of post-prison supervision imposed, and * * * is expired from supervision.” In other words, plaintiff had fulfilled her PPS obligations and was no longer subject to any sentence. The state does not dispute that point.
In February 2024, approximately one year after BOPPS issued its certificate of supervision expiration, plaintiff was arrested and sent to Coffee Creek Correctional Facility. According to plaintiff, several days after her arrest, she learned that her commutation had been revoked. The record reflects that Governor Kotek had issued an order in December 2023, stating that she had “determined in [her] sole judgment that [plaintiff had] violated conditions of [the] Conditional and Revocable Commutation of Sentence.” A warrant was issued for plaintiff‘s arrest, leading to her present imprisonment.
Thereafter, plaintiff filed a petition for a writ of habeas corpus in this court, contending that she is unlawfully incarcerated. Her petition was accompanied by a supporting memorandum in which she argues that Governor Kotek‘s revocation of her earlier conditional commutation violates a variety of state and federal constitutional principles, including
After considering those filings, the court allowed plaintiff‘s petition and issued a writ of habeas corpus, and then heard oral argument on May 2. Having now considered the parties’ filings and their oral arguments, we conclude that, when the Governor revoked plaintiff‘s conditional commutation, she lacked the authority to do so under the terms of the commutation.
ANALYSIS
The Governor has the constitutional authority to grant clemency, including commutations. Specifically,
“[The Governor] shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law. Upon conviction for treason [the Governor] shall have power to suspend the execution of the sentence until the case shall be reported to the Legislative Assembly, at its next meeting, when the Legislative Assembly shall either grant a pardon, commute the sentence, direct the execution of the sentence, or grant a farther [sic] reprieve.”
The Governor is the “sole repository” of this constitutional authority. Eacret et ux v. Holmes, 215 Or 121, 126, 333 P2d 741 (1958). In exercising her authority, however, “the Governor is responsible for determining the constitutionality of [her] actions in the first instance, and, to the extent that this court may review those actions, the court does so with that consideration in mind.” Haugen v. Kitzhaber, 353 Or 715, 720, 306 P3d 592 (2013), cert den, 571 US 1167 (2014) (citing Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 478-79, 753 P2d 939 (1988)); see Lipscomb, 305 Or at 478-79 (“Governors, legislators, and other public officials are responsible in the first instance for determining their constitutional duties[.]“). However, as we explained in Haugen, that principle “does not exempt the Governor‘s actions from judicial review.” 353 Or at 720. In so explaining, we relied on Lipscomb, in which the court had declined to adopt an argument that the court should defer to a Governor‘s understanding of her constitutional powers if arguably correct. Id. Thus, although this court does not have a role in reviewing a governor‘s exercise of discretion either to grant or to revoke a conditional commutation, we can review whether the revocation of plaintiff‘s commutation exceeded the Governor‘s authority under these circumstances—when plaintiff was no longer subject to any sentence at all. For reasons that we will explain, even assuming (without deciding) that the state and federal constitutions permit a Governor to revoke a commutation after a commutee‘s sentence has expired, we conclude that the terms of the conditional commutation in this case—which represents an agreement between the Governor and plaintiff—preclude that result.
The Governor‘s plenary power includes the power to grant unconditional forms of clemency that require no assent by the commutee. Haugen, 353 Or at 739, 743 (concluding that an unconditional reprieve was “valid and effective, regardless of [the recipient‘s] acceptance of that reprieve“). Here, however, Governor Brown exercised her plenary power through the issuance of a conditional commutation order. In exchange for plaintiff having her remaining term of incarceration commuted to post-prison supervision, the Governor required plaintiff to agree to be bound by the acceptance agreement. In other words, the Governor structured the exercise of her clemency power as something akin to a contractual
As pertinent here, the acceptance agreement required that plaintiff “abide by the terms and conditions of any post-prison supervision that is imposed in connection with the conditional and revocable commutation and her Judgment of Conviction.” The text of the agreement thus reflects that the Governor chose to incorporate the statutory and regulatory PPS framework. The state acknowledges as much in this court, stating that, when plaintiff was released, “[s]he was placed on community supervision under the authority of [BOPPS].” See
The acceptance agreement also included a provision, similar to the one in Governor Brown‘s conditional commutation, which provided that the Governor “may” revoke the commutation if the Governor determined, in her discretion, that plaintiff had violated one of its conditions, which would lead to plaintiff being required to “return to prison to serve out her sentence that was remaining at the time her commutation was granted according to the terms of the Judgment of Conviction.” Before this court, the state takes the broad and categorical position that, even though plaintiff‘s sentence had expired before her commutation was revoked, the revocation provision allows any Governor—at any time during plaintiff‘s natural life—to revoke the commutation and return her to prison upon a determination that she violated the terms of the commutation while she had been under supervision. As the state acknowledged at oral argument, under its interpretation, revocation could occur 50 years after plaintiff‘s sentence had expired, resulting in her arrest and imprisonment at that time.
However, the state‘s argument is inconsistent with the Governor‘s express incorporation of PPS—which is circumscribed by a statutory and regulatory framework—into the terms of the commutation order and plaintiff‘s acceptance agreement. PPS is a “term of community supervision.”
“the Sanction Authority shall impose administrative sanctions or shall initiate a hearing within fifteen (15) days of arrest or detention for the violation of parole or post-prison supervision conditions“). Once initiated, jurisdiction over the offender is retained
Thus, the PPS framework imposes a temporal limit on the authority to sanction or revoke an offender‘s post-prison supervision for a violation of a condition: As a general proposition, violation proceedings must be initiated while the offender is under supervision (i.e., before the offender‘s sentence has expired) and not after the term of supervision has ended and the offender is no longer subject to any sentence. See
By specifying that plaintiff was obligated to serve PPS, which is governed by a statutory and regulatory scheme, her conditional commutation—together with the acceptance agreement to which she was bound—incorporated the general principle that the authority to sanction an offender for a PPS violation, or to revoke the offender‘s PPS altogether, is time-limited and must be initiated before the offender‘s PPS term ends and while the offender remains subject to a sentence. In this case, although the commutation and the agreement clearly stated that the Governor, in her sole discretion, could revoke the commutation for a violation of its conditions, there is no indication that the authority to revoke would survive the expiration of plaintiff‘s sentence. Nor is there any indication that, contrary to the ordinary application of the statutes and rules governing PPS, plaintiff would face the prospect of revocation and future imprisonment for the remainder of her life. Thus, by requiring plaintiff to serve PPS, and without clearly expressing an intent to depart from the temporal limitations that otherwise apply to PPS, the Governor limited her own ability, and the ability of any future holder of that office, to revoke the commutation to the period of time before plaintiff‘s PPS had ended and her sentence had expired.
Here, it is undisputed that, in February 2023, BOPPS issued its certificate stating that plaintiff had “completed the period of post-prison supervision imposed” and that she was “expired from supervision.” At that point, plaintiff was no longer subject to any sentence. Accordingly, when the Governor revoked plaintiff‘s commutation in December 2023, she lacked the authority to do so under the terms of the December 2020 order of conditional commutation.6
We emphasize that the foregoing conclusion is a function of the way in which we understand Governor Brown to have structured plaintiff‘s conditional commutation. The parties’ dispute before this court has focused on whether the state and federal constitutions permit the Governor to revoke a commutation following the expiration of a sentence. That is a difficult question of first impression in Oregon, and one on which other
That conclusion does not fully resolve this matter. The state alternatively contends that plaintiff waived her right to seek habeas relief and to challenge both Governor Kotek‘s revocation and her current imprisonment.
It is true that the acceptance agreement includes a broadly worded waiver of plaintiff‘s rights. Plaintiff contests the validity of that waiver, asserting, among other things, that the process resulting in her acceptance of the commutation was “rushed” and that the implications of the waiver were never explained to her; thus, she did not knowingly and voluntarily agree to waive her right to challenge the Governor‘s revocation, or her current imprisonment, or her right to seek habeas corpus under the circumstances.
In this case, however, we conclude that it is unnecessary to address those points. That is because, even if we assume that plaintiff effected a valid waiver of some kind, we decline to read the text of this waiver as broadly as the state‘s argument requires. The waiver provision can be interpreted in a manner consistent with the ordinary understanding of the PPS framework described above—i.e., that plaintiff was waiving the right to challenge a revocation that was initiated before the expiration of her sentence. By taking the position that plaintiff forfeited the ability to challenge a revocation that was ordered even after the completion of her sentence, the state would have us conclude that plaintiff, in exchange for being released from prison eight months early, chose not only to accept the risk of future imprisonment for a violation of the conditions of the commutation—without process or the right of judicial review—but to run that risk for the remainder of her life. Even assuming that a choice of such gravity by a commutee could be enforceable—a question we do not decide—we would require it to be expressed with the utmost clarity. The acceptance agreement in this case does not meet that standard. See State v. Meyrick, 313 Or 125, 131, 831 P2d 666 (1992) (observing that courts “are reluctant to find that fundamental constitutional rights have been waived“).
Accordingly, under the circumstances of this case, we conclude that Governor Kotek lacked authority to revoke plaintiff‘s conditional commutation and that, as a result, plaintiff‘s present imprisonment is unlawful. We order defendants to discharge plaintiff from custody immediately. See