MICHAEL W. JENKINS, Respondent on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Petitioner on Review.
CA A144545; SC S061812
IN THE SUPREME COURT OF THE STATE OF OREGON
September 18, 2014
356 Or 186 (2014)
BREWER, J.
En Banc. On review from the Court of Appeals. Argued and submitted June 24, 2014.
Lindsey K. Detweiler, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was Peter Gartlan, Chief Defender.
BREWER, J.
The decision of the Court of Appeals is reversed. The final order of the Board of Parole and Post-Prison Supervision is affirmed.*
The decision of the Court of Appeals is reversed. The final order of the Board of Parole and Post-Prison Supervision is affirmed.
This case involves the interpretation and application of two statutes,
I. THE FACTS
The relevаnt facts are procedural. In July 1980, petitioner was convicted of two counts of first-degree rape, and one count each of first-degree kidnapping and first-degree sodomy; he was sentenced to 20 years’ imprisonment on each count, consecutive to each other and to previous sentences for attempted murder and first-degree robbery. On the same day, petitioner was convicted of third-degree robbery and sentenced to three years’ imprisonment, consecutive to the other sentences. In 1990, petitioner was convicted of supplying contraband while he was incarcerated, and he was sentenced to 15 months in prison for that offense, consecutive to his previous sentences.
In September 2008, the board conducted an exit-interview hearing to determine whether petitioner was suitable for parole on his projected release date—March 2009—or whether his circumstances warranted a two-year postponement of that date. Before the hearing, the board obtained a psychological evaluation from Dr. Frank Colistro. In that evaluation, Dr. Colistro diagnosed petitioner as having а “severe” “Antisocial Personality Disorder” with a “very high degree of psychopathy.” In Colistro‘s opinion, petitioner‘s personality disorder continued “to predispose [petitioner] to the commission of crimes to a degree rendering him an ongoing threat to the health and safety [of] the community.” No other psychological evaluation was submitted to the board.
After the exit-interview hearing, the board issued a Board Action Form (BAF) that postponed petitioner‘s release
Petitioner sought administrative review of that decision; in response to that request, the board issued a more detailed administrative review response (ARR) that provided, in part:
“On September 24, 2008, the board conducted an exit interview with yоu. After considering all of the evidence presented at this hearing, including a psychological evaluation prepared by [Dr. Calistro], and applying the substantive standard in effect at the time you committed your crime as well as the applicable procedural rules, the board found that you were suffering from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community.
“*****
“To the extent that you are alleging that the board lacks authority to defer your parole release date past the termination of your original prison term set, the board is unpersuaded by your arguments. The board acted under
ORS 144.125(3) (1977) and OAR 254-50-015(3) (7/19/1978), postponing your projected release date on the basis of your severe emotional disturbance and dangerousness.”
Ultimately, the board denied reconsideration in the ARR, and it advised petitioner at the conclusion of the ARR:
“YOU HAVE EXHAUSTED YOUR ADMINISTRATIVE REMEDIES. PURSUANT TO
ORS 144.335 , YOU MAY PETITION THE COURT OF APPEALS FOR JUDICIAL4
REVIEW OF THIS ORDER, WITHIN 60 DAYS OF THE MAILING DATE OF THIS ORDER.”
Petitioner sought judicial review in the Court of Appeals, asserting that the board‘s order did not provide substantial reason because the board failed to “explain its findings or the reasoning supporting its conclusion” in the order. The board responded that the order was legally sufficient for two reasons. First, the board argued that
The Court of Appeals reversed. The court held that, notwithstanding the 1999 amendment to
II. ANALYSIS
A. ORS 144.335(3)
The first issue presented on review is whether the 1999 amendment to
We begin with the text of the statute.
“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.”
As noted, the 1999 amendment did not alter any of that text. Instead, it added the italicized first sentence below:
”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 ordеr, but the board may do so, or the court may order a stay upon application on such terms as it deems proper.”
Or Laws 1999, ch 618, § 1 (emphasis added). That provision, now compiled as
As amended, the first clause of the first sentence of the statute provides that board orders “need not be in any special form.” By its own terms, that clause applies only to the “form” of an order. Taken at face value, the clause indicates that board orders need not adhere to strict requirements of form, including those that may apply to the final orders of other agencies. Rather, it suggests, for instance, that the board may use standard order forms to efficiently manage its workload. However, the reasoning underlying and explanations for the board‘s decisions are not merely requirements of form. Cf. Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 21, 569 P2d 1063 (1977) (findings and reasoning requirements are “not simply imposing legalistic notions of proper form“). Accordingly, the addition of that clause does not necessarily suggest that the legislature meant to eliminate the substantial reason requirement.
The second clause of the first sentence of the statute provides that an order will be sufficient for “purposes of judicial review” if “it aрpears that the board acted within the scope of the board‘s authority.” The parties have divergent views as to the meaning of that requirement. According to the board, it will “appear” that it “acted within the scope of [its] authority” when an order reflects that the board made a release-related determination that falls within the range of decisions that the board is statutorily entrusted to make. See
“That is a different, and much less demanding, standard than substantial reason. The first sentence in
ORS 144.335(3) is a compelling textual indication that the board is exempt
from the substantial-reason requirement that is implicit in the APA‘s judicial-review provisions of
ORS 183.482(8) .”
By contrast, petitioner opines that it “appears that the board acted within the scope of the board‘s authority” when the face of a board order shows that the board complied with the applicable statutes and rules governing the board action. It follows, petitioner posits, that, “to show that the board acted within the scope of its authority, the board must explain its decision by identifying the rules and statutes that the board applied and the specific evidence in the record thаt led the board to its conclusions.”
Because the legislature has not expressly defined the words in the disputed phrase, dictionary definitions of the words “appears” and “authority” can be useful. See State v. Murray, 340 Or 599, 604, 136 P3d 10 (2006) (when interpreting the words of a statute, this court will “resort to dictionary definitions” if there are no applicable statutory definitions). “Appears” is defined in part as “to come forth, be visible” and “to be obvious or evident.” Webster‘s Third New Int‘l Dictionary 103 (unabridged ed 2002). The pertinent definition of “authority” is “delegated power over others.” Webster‘s at 146. Thus, an order will be sufficient for purposes of judicial review if it is evident that the board action is within the powers delegated to it by the legislature. The generality inherent in that requirement tends to support the board‘s interpretation that it refers to the statutory and regulatory authority that empowers the board to make a particular kind of decision. However, that interpretation would not necessarily relieve the board‘s orders from the substantial reason requirement. In fact, the context and legislative history of
“(a) The cоurt may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, the court shall:
“(A) Set aside or modify the order; or
“(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.
“(b) The court shall remand the order to the agency if the court finds the agency‘s exercise of discretion to be:
“(A) Outside the range of discretion delegated to the agency by law;
“(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or
“(C) Otherwise in violation of a constitutional or statutory provision.
“(c) The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”
Under the APA, agency orders generally must “be accompanied by findings of fact and conclusions of law.”
In City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 271-72, 639 P2d 90 (1981), this court stated that a substantial reason requirement also is embedded within the substantial evidence standard оf review under
“On judicial review, the court will not substitute its judgment for that of the agency in drawing an inference, but the court must be satisfied that agency judgment has actually been exercised. Sometimes a rational nexus between an evidenced fact and an inference drawn from it is obvious from common experience (e.g., we may infer from the fact of a wet street that it recently rained). In other cases, however, and particularly in cases involving expertise, the reasoning is not obvious (e.g., we may infer from present meteorological conditions that it will snow tomorrow). In such an inference, we will not assume the existence of a rationale. Rather, we look to the order to state the rational basis of the agency‘s inference. The explanation need not be complex, but it should be sufficient to demonstrate the existence of a rational basis and to allow for judicial review.”
(Footnote and citations omitted.)
If the board were subject to
In that case, the board had acted under its statutory authority in
“‘The board remains convinced that the state‘s interest in protecting the victim of your sodomy and sex abuse convictions outweighs your interest in carrying on your personal affairs in the prohibited areas.‘”
Id. at 151 (capitalization omitted).
On review, the petitioner argued that the board‘s order, including the ARR, lacked substantial reason to support the challenged condition. The Court of Appeals agreed, and reversed. Before this court, the board argued that its exemption from the APA findings and conclusions requirement necessarily meant that it also was exempt from the substantial reason requirement. This court rejected that argument, holding, instead, that
In reaching that conclusion, the court relied on Drew v. PSRB, 322 Or 491, 499-501 (1996), which involved another agency—the Psychiatric Security Review Board (PSRB)—that is exempt from the APA‘s requirement of factual findings and legal conclusions. In Drew, this court nonetheless held that PSRB orders were subject to the substantial reason requirement. 322 Or at 499-501. In Martin, the board argued for a different interpretation of Drew:
“The Board argues in the alternative that when, as here, an agency is exempt from the requirements of
ORS 183.470 , the agency should not be required to set out the rationale for its order in the order itself but, instead, should be allowed to advance its supporting rationale in its brief on appeal. ‘That appears to be what the court actually did in Drew
***,’ the Board asserts, ‘although the language of Drew is to the contrary.‘”
Martin, 327 Or at 158. This court disagreed:
“The Board misunderstands what happened in Drew. The challenge there was to the sufficiency of the evidence. The court on its own was able to determine that there was evidence in the record that would permit, although it did not require, the action that the PSRB had chosen to take. Drew, 322 Or at 499. The problem, however, lies in the fact that the PSRB never had referred to that particular evidence, even obliquely, and the additional fact that certain of the evidence favoring the result reached by the agency would not have constituted substantial evidence. The court could not be sure which evidence had played the decisive role in the PSRB‘s decision. Without that knowledge, which a written explanation could have provided, the court could not affirm the agency‘s decision.”
Id. (emphasis added).
The court in Martin nevertheless concluded that the evidence in that case satisfied the substantial reason standard of review. The court agreed with the petitioner that “the ‘necessity’ of special conditions must be determined in reference to the statutory objectives that are repeated throughout the statutes, namely, the protection of public safety and the reformation of the offender.” Id. at 159. However, the petitioner argued for more:
“‘Nothing in [the board‘s] statement[s] indicates anything about findings (indeed, no one knows what the Board believes respondent did to the victim, or what the victim would experience from an accidental meeting with the respondent); nothing is said about the state‘s or the victim‘s interests; there is no indication of the harm to the state or the victim of modifying special condition 10; and there is no attempt to weigh the supposed risk to the victim against the loss the condition imposes on the respondent. In sum, there is nothing upon which this Court can properly base its judicial review.‘”
Id. at 159 (quoting the petitioner‘s brief on review). This court dispatched that challenge with little fanfare:
“None of those propositions is well taken. The facts that the Board necessarily found are reflected in the recitations
included within the evaluative portion of the Board‘s order. Moreover, we believe that, respondent‘s hyperbole to one side, no one reasonably could doubt that any encounter between respondent and his victim would be a psychological disaster for the victim. All the information available to the Board indicated that. The Board could not eliminate the possibility of an encounter entirely; the vagaries of human experience are not so easily controlled. But the Board was not required to set conditions so narrowly that they would permit a substantial danger that the two would meet. The Board‘s order specifically indicates that it weighed the different interests of the parties. Once it did so, we hold that its choice in this case lies well within the permissible range of choices that it could make.”
Id. at 159-60 (footnote omitted).
Two significant aspects of this court‘s holding in Martin are pertinent here. First, the “evaluative” part of the board‘s decision to which the court referred was an ARR, not the original board action form; that is, the court adopted a broad understanding of the scope and contents of the board‘s final order for purposes of judicial review. Second, although the court referred to facts that the board “necessarily found,” the board did not make specific findings of fact or conclusions of law in that case. Indeed, the court was satisfied with the board‘s explanation—without more detail—that it had “weighed the different interests of the parties” in imposing the challenged condition. In so concluding, the court did not apply the meaning of substantial reason for which рetitioner advocates in this case and which, as discussed, would require the board to “identify the specific evidence in the record” that led to the board‘s determinations with respect to each of the criteria—factual and legal—that it was required to address in reaching a decision. To the contrary, this court has never imposed such a requirement in the absence of an agency duty to set out specific findings of fact and conclusions of law. Cf.
Instead, this court‘s decisions have taken into account the circumstance that board orders under
As noted, the board‘s interpretation of
Second, as noted, the substantial reason requirement is part of the substantial evidence standard of review. If the first sentence of
The legislative history of the 1999 amendment to
The Oregon Judicial Department (OJD) opposed the bill, taking the position in an initial hearing before a Senate committee that even agencies that are exempt from specific factfinding and legal conclusion requirements should not be “totally exempt from providing some kind of reasoned explanation in their orders when the order comes before a court for judicial review.” Testimony, Senate Committee on Judiciary, SB 401, Feb 4, 1999, Ex C (statement of James W. Nass, Appellate Legal Counsel for the Oregon Judicial Department). A DOJ representative rejoined that the sheer volume of the board‘s workload, coupled with limitations in its resources, precluded the preparation of such orders in all release decision cases.
The disagreement continued as the bill moved to the House of Representatives. At a work session before the House Judiciary Committee, Mr. Nass testified in favor of an amendment to SB 401 that would have provided for a “second look” at board orders where an inmate had petitioned for judicial review. Under that approach, the board would not have been required to demonstrate substantial reason in its orders unless a petitioner sought administrative review, whereupon the board would be required—in an amended order—to comply with the substantial reason requirement. Tape Recording, House Judiciary Committee on Civil Law, SB 401, Mar 17, 1999, Tape 68 side B (statement of James W. Nass). In response, a DOJ representative objected that the proposed amendment would lead to a “two-tier” review system, where board orders subject to petitions for judicial review would be written differently than those in proceedings that are not likely to be the subject of judicial review. Id. (statement of Solicitor General Michael Reynolds). Representative Uherbelau then expressed concern about SB 401 in its initial form, because, as she put it, there had to be “some accountability” on the part of the board, and a “bare order” would not adequately explain the board‘s reasoning
Board Chair Diane Rea responded to Representative Uherbelau‘s concern, stating that “we have what you‘re describing in place right now through our Administrative Review Responses.” Id. According to Chair Rea, ARRs were intended to “give the factual and legal analysis for th[e] decision,” for purposes of “defending ourselves” before the Court of Appeals. Rea told the committee that the board‘s orders “don‘t go to the Court of Appeals on a bare order, they go to the Court of Appeals with an order and Administrative Review Response which contains the board‘s thought process.” Id. (statement of Board Chair Diane Rea).
When asked to respond to Rea‘s comments, Nass said that, in his opinion, some ARRs were thorough, but others were not and, in any event, the board had elected to use ARRs because of this court‘s decisions in Martin and Drew, and, if those decisions were superseded, it could decide to stop doing so. Id. (statement of James W. Nass). Representative Williams then asked Rea how Martin had affected the workload of the board; Rea replied that the board had been including detailed ARRs in its orders “in compliance with case law,” and that, given the board‘s workload, SB 401 was primarily motivated by the board‘s desire not to be subjected to the APA‘s findings of fact and conclusions of law requirements. Id. (statement of Board Chair Diane Rea). Solicitor General Reynolds also told the committee how DOJ had interpreted Martin in initiating SB 401. According to Reynolds, the key to understanding Martin was that, although the court had found the board to be subject to a “findings of fact and conclusions of law” requirement, it had nonetheless affirmed the board‘s order in that case. Id. Reynolds urged that, because the board had continued to issue ARRs like the one in Martin, the legislature should permit the board to continue that practice and not subject it to any additional requirements. Id. (statement of Solicitor General Michael Reynolds).
When the final version of the bill was before the House, Representative Bowman asked “whether or not this bill would limit the information that inmates would receive as they are talking to the parole board about what they need to do to be released.” Tape Recording, House Floor, SB 401, June 11, 1999, Tape 113, Side B (statement of Rep Jo Ann Bowman). Representative Shetterly responded: “No, it does not limit the information that inmates are to receive. This bill deals only with the form of orders that would be transmitted from the case to the Court of Appeals for the purpose of judicial review.” Tape Recording, House Floor, SB 401, June 11, 1999, Tape 113, Side B (statement of Rep Lane Shetterly).
The foregoing legislative history is not conclusive; in particular it fails to account for off-the-record discussions that led to the finally enacted version of the bill. However, despite that uncertainty, the discussions that transpired in the March 17 House Judiciary Committee hearing are illuminating. It is apparent from those discussions that DOJ and the board believed that (1) in practical effect, this court in Martin had judicially reinstated a findings and conclusions requirement for board release decision orders; (2) the
Viewed accordingly, the version of SB 401 that ultimately was enacted assumes a somewhat different shape than either party urges. On the one hand, the bill did not elevate the substantial reason standard to the level of a virtual findings requirement in the way that petitioner asserts. Rather, the amendment confirmed that the board is not required to make specific findings of fact or conclusions of law in its release postponement orders or to use any particular form of order, and that an order is sufficient for purposes of review—that is, it is reviewable—if it shows that the board made a decision of a kind that it was authorized to make. Thus, we agree with the board‘s proposed interpretation of the second clause of the first sentence of
1. The Scope of the Final Order
Before we apply that standard to the board‘s order here, it is necessary to determine what documents constitute
“(1) A Board order is final and effective the date it is signed, however it is not final for purposes of the time period within which to appeal to the Court of Appeals until the inmate/offender exhausts his or her administrative review remedies.
“(2) An inmate/offender has exhausted his or her administrаtive remedies after complying with OAR 255-080-0005, and after the Board denies review, or grants review and either denies or grants relief. The Board shall notify the inmate/offender that exhaustion has occurred and the time for judicial appeal of appealable orders shall run from the mailing date of the notice.”
OAR 255-080-0001. Another rule, OAR 255-080-0005, specifies how, and when, requests for administrative review are to be filed. When, as here, the board grants a request for review, OAR 255-080-0012(5) requires the board to “send the inmate/offender written notice of the board decision and findings.” As noted, above, in response to such a request, the board typically issues an ARR that often contains a more detailed explanation of the original decision that the board made. In the board‘s practice, the ARR, coupled with the initial order, constitute the final order for purposes of judicial review. That practice is consistent with the governing statutory scheme as explained in this court‘s prior decisions.
In Dawson/Fletcher v. Board of Parole, 346 Or 643, 649, 217 P3d 1055 (2009), this court observed that ”
In short, petitioner was required to seek administrative review in order to exhaust his administrative remedies, and that review process culminated in an order—including the ARR—that was “final for purposes of judicial review.” Mastriano, 342 Or at 696. Accordingly, we conclude that the ARR in this case is part of the final order for purpose of determining whether the board‘s decision is supported by substantial reason.
2. Application
The ARR in this case addressed each of petitioner‘s challenges to the board‘s initial BAF. In particular, the ARR stated that the board had “consider[ed] all of the evidence presented at [the exit interview hearing] including [the] psychological evaluation prepared by Dr. Frank P. Colistro on June 30, 2008,” and that the board had “acted under
Petitioner nevertheless asserts that, even considered together, the explanations of the board‘s decision sеt out in the BAF and ARR are too general to permit our review for substantial reason. That argument misconceives the nature of the substantial reason requirement. Instead, as discussed, that standard requires that a final board order under
Finally, petitioner points out that the board‘s decision to postpone his release was a discretionary one. See
B. ORS 144.135
Because petitioner challenges a board order postponing his release date following a psychological examination conducted by the board pursuant to
The term “detailed bases” is not legislatively defined, but, when it pertains to the grounds for a decision, a “basis” is a legal term which refers to “[t]hе reason or point that something (as a legal claim or argument) relies on for validity.” Black‘s Law Dictionary 772 (9th ed 2009); see Datt v. Hill, 347 Or 672, 676, 227 P3d 714 (2010) (describing legal meaning of “ground” as synonymous with “basis“). A “detail” is “a small and subordinate part.” Webster‘s at 616. On the surface of things, that term could require—as petitioner suggests—the board‘s orders to describe particular evidence on which it relied in reaching a decision. However, once again, such a view is difficult to square with the board‘s exemption from the APA‘s findings of fact and conclusions of law requirement.
This court construed
“(1) In any felony case, the court may impose a minimum term of imprisonment of up to one-half of the sentence it imposes.
“(2) Notwithstanding the provisions of
ORS 144.120 and144.178 :“(a) The board shall not release a prisoner on parole who has been sentenced under subsection (1) of this section until the minimum term has been served, except upon affirmative vote of at least four members of the board.”
The board‘s order, memorialized in a BAF, recited that three members had voted to override the 60-month sentence and two had voted to sustain it. Id. at 624.
On review, the petitioner asserted that the board had failed to comply with
The court began its analysis by construing
“We interpret the rule to require the Board to state the facts and reasons for its actions only when four members of the Board find applicable one or more of the three categories listed under subsection (1). *** [T]he administrative procedure for minimum sentence review works like this: The Board takes a vote to override the minimum sentencе.
If four votes are not garnered to override, the basis for the decision simply results from the lack of four affirmative votes on that issue. The vote and who made it constitute the basis for the decision not to override. The Board, or the subset voting not to override, need not ‘come to a point’ where they have agreed upon some set of findings of fact and conclusions of law; the absence of four affirmative votes alone determines the Board‘s decision regardless whether there is any agreement as to why the Board has refused to override. In such a case, the prisoner‘s parole date is set at the expiration of the mandatory minimum sentence and the criteria, justification or ‘detailed bases’ for such Board action are simply that there are not enough votes to override.
“*****
“As demonstrated by this case, there was no consensus by the Board members. After evaluating the entire record, two members elected not to override the minimum and three would have. We perceive no purpose to be served by requiring the Board members to state their individual reasons for not voting to override the minimum sentence imposed. Neither the stаtute nor the Board rules require such statements. In sum, the Board complied with
ORS 144.135 by setting forth in writing the bases for its decision underORS 144.110 to144.125 .”
Id. at 625-26 (emphasis added).
Consistently with the approach that it took in Anderson, in Hemmerich v. Board of Parole, 303 Or 683, 685, 740 P2d 779 (1987), this court rejected the petitioner‘s argument that the board failed to comply with
The board‘s final order in this case satisfied the statute. The ARR set out in writing (1) the statute and rule under which the board made its decision; (2) the criteria that the board was required to address under the statute and rule; and (3) the board‘s decision based on those criteria, including a reference to facts—the information in Colistro‘s evaluation of petitioner—on which the board relied. Nothing more was required to set out the detailed bases for the board‘s decision. Accordingly, the board‘s final order satisfied
III. CONCLUSION
To summarize: We conclude that the board‘s order postponing petitioner‘s scheduled release date under
Finally, we conclude that the final order set out detailed bases for the board‘s decision in accordance with
The decision of the Court of Appeals is reversed. The final order of the Board of Parole and Post-Prison Supervision is affirmed.
Notes
“(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.
“*****
“(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
“The board shall state in writing the detailed bases of its decisions under
“If a psychiatric or psychological diagnosis of present severe emotional disturbance has been made with respect to the prisoner, the board may order the postponement of the scheduled parole release until a specified future date.”
That rule, OAR 254-50-015(3) (7/19/1978), provided:
“If a psychiatric or psychological diagnosis of present severe emotional disturbance has been made with respect to the offender, a panel may order a postpоnement of the scheduled release until a specified later date or until the prisoner or institution presents evidence that the emotional disturbance is over or in remission.”
That rule provided:
“(1) The Board shall not release a prisoner before a judicially imposed minimum prison term sentence has been served except when at least four members of the Board find that:
“(a) The court applied the guideline rules incorrectly; or
“(b) The Board has information not available to the court at the time of sentencing; or
“(c) The cоurt‘s findings, though technically correct, lead to an inequitable result.
“(2) The Board shall state the facts and reasons for its actions and it shall then inform the sentencing court of its decisions and reasons. The Board shall then set an initial parole release date in accordance with rule 255-35-013.”
The order also satisfied the board‘s rules that implement
“After review of the psychiatric/psychological reports, and all other information or documents presented during the hearing the Board may defer parole release until a specified future date upon finding: The inmate has a present severe emotional disturbance, such as to constitute a danger to the health or safety of the community.”
See also OAR 255-060-0013(1) (providing that an order postponing parole release shall set forth the facts and specific reasons for the decision).