This is a mandamus action. ORS 34.105 - 34.240. Relator committed aggravated murder in 1992, when he was 16 years old. He was convicted and sentenced to life in prison. ORS 163.095 (1991); ORS 163.105(l)(c) (1991). He petitioned the Marion County Circuit Court for a writ directing defendant, the chair of the Board of Parole and Post-Prison Supervision (board), to hold a hearing and set an initial parole release date for him pursuant to ORS 144.120(l)(a) (1991). He also challenged the board’s application to him of the board’s rules relating to juvenile aggravated murderers. The board moved to dismiss the alternative writ on the grounds that the board had no duty to afford relator a hearing under ORS 144.120 (1991) and that mandamus was not a proper remedy for relator’s rule-based claim. The trial court granted the board’s motion, and relator appeals. We affirm in part, reverse in part, and remand.
The relevant facts are undisputed. As noted, relator was 16 years of age when he committed aggravated murder in 1992. He was tried and convicted in adult court. See ORS 419.533(l)(b) (1991) (providing for waiver of juvenile court jurisdiction and remand to circuit court of juveniles aged 15 or over who commit aggravated murder). Under ORS 163.105(1) (1991) sentencing options for aggravated murder included death, life in prison without the possibility of parole, and life in prison with the possibility of parole after service of a mandatory minimum sentence of 30 years. Under ORS 161.620 (1991), however, an offender who committed his or her crime at age 15 or 16 and who was remanded from juvenile to adult court was not subject to a sentence of death, life without possibility of parole, or “any mandatory minimum sentence.” Consistently with that provision, the trial court sentenced relator on his aggravated murder conviction to life in prison. ORS 163.105(l)(c) (1991).
Relator began serving his sentence in March 1993. The board initially informed him that he would receive a hearing under ORS 144.120, which, in regard to offenders sentenced to life in prison, required the board to hold a hearing within one year of an offender’s admission to prison and to establish an initial parole release date for the offender. The
In 1999, relying on its authority under the relevant versions of ORS 144.110(2)(b) (directing the board to release offenders convicted of aggravated murder on parole only as provided in ORS 163.105); ORS 163.105(1) (establishing, in part, the sentence of life with the possibility of parole); ORS 161.620 (prohibiting the imposition of mandatory minimum sentences on juvenile offenders convicted in adult court); and ORS 144.780(1) (generally authorizing the board to adopt rules “establishing ranges of duration of imprisonment to be served for felony offenses prior to release on parole”), the board added provisions governing parole procedures for juvenile aggravated murderers to its existing rules pertaining to adult aggravated murderers. See OAR 255-032-0005 - 255-032-0040 (May 18, 1999) (the juvenile aggravated murder (JAM) rules). The JAM rules require the board to hold an initial prison term hearing for juvenile aggravated murderers and to set an aggravated murder review hearing date rather than an initial parole release date. OAR 255-032-0005(4) (May 18, 1999); see also ORS 163.105(2) - (4) (providing for aggravated murder review hearings). The rules also establish criteria for determining the “ranges” of the prison terms that juvenile aggravated murderers must serve before receiving a review hearing — and, hence, the dates of such hearings — in particular instances. OAR 255-032-0011 (May 18, 1999). As set out in the exhibits to the rules, the ranges are based on the “crime severity rating” of the offender’s offense and various “risk assessment” factors, including “Age at First Contact with Juvenile Justice System,” “History of Criminal Behavior,” “Prior Supervision Behavior,” “History of Drug or Alcohol Use,” and “History of Discipline at School.” OAR 255-032-0011, ex P-I - P-III (May 18,1999). Application of the factors to a particular offender results in a prison term of anywhere from 240 months to “life,” that is, denial of an aggravated murder review hearing date. Id. An offender whose prison term is established as “life” is entitled to request a review hearing after 480 months. OAR 255-032-0011(5) (May 18,1999); see also Engweiler v. Board of Parole,
Pursuant to its newly adopted rules, in August 1999, the board issued an order establishing a 400-month prison term for relator and setting his “murder review” date for November 2025. Based on the board’s notice to relator that he had the right to petition this court for judicial review, relator sought judicial review of the order. This court dismissed review on the ground that, under ORS 144.335 (1999), the order was not subject to judicial review. Sopher v. Board of Parole,
Relator then filed the petition for a writ of mandamus that is the subject of this appeal. In his first claim for relief, he alleged that the board had failed to perform its non-discretionary duty to conduct an initial parole release hearing and establish an initial parole release date for him under ORS 144.120(l)(a) (1991) and the board’s “parole matrix” criteria applicable generally to persons subject to parole, as set out in OAR chapter 255, division 32, Exhibits A through E. Relator alleged in part that initial parole release dates previously had been established under those provisions for other juvenile aggravated murderers and that he previously had been informed by the board that the provisions applied to him. He further alleged that the board’s failure to perform its alleged nondiscretionary duty to establish a parole release date for him deprived him of his liberty interest in parole as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and violated his rights to equal privileges and immunities under Article I, section 20, of the Oregon Constitution and to equal protection under the Equal Protection Clause of the Fourteenth Amendment.
In his second claim for relief, relator alleged that the board’s application to him of the JAM rules was unlawful in various respects, that the board had a duty to correct its errors, and that it had refused to do so. Specifically, relator alleged that the board’s application of the JAM rules violated the “parole matrix system,” the board’s parole matrix rules, and its policies and practices applying those rules, see Hamel
Finally, in his third claim for relief, relator alleged that the board failed to perform its duty to give him accurate notice of his right to seek judicial review of its order establishing his aggravated murder review hearing date.
As noted, the board moved to dismiss the writ. As to relator’s first claim, the board argued that it had no duty to provide a prison term hearing or set an initial parole release date for relator under ORS 144.120(l)(a) (1991) because that version of the statute expressly excludes offenders convicted of aggravated murder. As to relator’s second claim, the board argued that the board’s adoption of the JAM rules was a discretionary act for which mandamus relief does not lie. The board also argued that mandamus was not an available remedy for the board’s erroneous advice to relator regarding his right to judicial review, because relator had no actual right to judicial review and because he received an adequate alternative remedy, that is, administrative review by the board of its order.
The trial court concluded that the board had no duty to set a parole release date for relator as asserted in relator’s first claim for relief; that, as to his second claim, mandamus
In his first assignment of error on appeal, relator argues that the trial court erred in determining that he was not entitled to a hearing and the establishment of an initial parole release date under ORS 144.120(l)(a) (1991). In particular, relator challenges the trial court’s reliance on the 1991 version of that statute, which expressly excludes persons convicted of aggravated murder. According to relator’s understanding, the Oregon Supreme Court has determined that that amendment merely “clarified” the board’s authority as to offenders convicted of aggravated murder committed when they were adults. By contrast, relator argues, the amendment does not apply to juvenile aggravated murderers like himself. Rather, he understands the Oregon Supreme Court to have held that juvenile aggravated murderers are entitled to the same initial prison term hearings under ORS 144.120 as were afforded to offenders convicted of crimes other than murder or aggravated murder that were committed before November 1, 1989. See Engweiler IV,
The board does not dispute that, as the Oregon Supreme Court has recognized, relator is entitled to the possibility of parole and that the board is responsible for determining the actual duration of relator’s imprisonment. It argues that, notwithstanding the board’s authority generally in relation to juvenile aggravated murderers, and notwithstanding any prior policy or practice of the board, the 1991 version of ORS 144.120(l)(a) — the version that applies to relator by reason of his commission of his crime in 1992— plainly excepts from its ambit persons convicted of aggravated murder. Moreover, that amendment, by its terms, is not qualified in regard to whether such persons were convicted of aggravated murder committed when they were adults or when they were juveniles. See Engweiler v. Board of Parole,
As to relator’s constitutional arguments, the board first notes that he preserved only his claims based on the due process and equal protection clauses of the Fourteenth Amendment and on Article I, section 20. The board further
We agree with the board in all respects. Although, as the Supreme Court explained in Engweiler IV,
Moreover, it follows that the board’s refusal to afford relator a hearing under ORS 144.120(l)(a) (1991) did not violate any cognizable liberty interest in parole protected by the Due Process Clause of the Fourteenth Amendment. Also, because juvenile aggravated murderers do not constitute a true class and because the aggravated murder review hearing process set out in ORS 163.105(2) to (4) (1991) is rationally related to a legitimate governmental interest, the board’s
We turn to relator’s second assignment of error, in which he argues that the trial court erred in dismissing his claim based on the board’s alleged duty to correct its erroneous application to him of the JAM rules. As noted, the trial court dismissed that claim on the ground that relator was challenging the board’s adoption of the JAM rules and that mandamus “will not lie to challenge the Board’s exercise of discretion” to adopt rules. Relator contends that, contrary to the trial court’s understanding, he clearly was challenging, on numerous grounds, the board’s application of the rules to him. He urges us to reverse the trial court’s dismissal of his second claim and remand for consideration of those arguments.
The board concedes that the trial court erred in dismissing relator’s claim based on the board’s argument below that the board had discretion to adopt the JAM rules and that mandamus does not lie in regard to discretionary acts. The board nevertheless argues that the trial court correctly dismissed the claim and that we should affirm its dismissal. According to the board, the JAM rules are not invalid on any ground asserted by relator and — with the “possible exception” of relator’s allegation that the board’s application of the JAM rules to him without first affording him a hearing resulted, as a factual matter, in the board “prejudging” his case in violation of his due process liberty interest in parole— each of those grounds presents a purely legal issue that this court can review and decide on this record.
Relator replies that, consistently with State ex rel Osborne v. Cook,
We agree with and accept the board’s concession that the trial court erred in dismissing relator’s second claim on the ground that it constituted a challenge to the board’s adoption of the rules and that mandamus did not lie to challenge that exercise of discretion. See, e.g., State ex rel Bldg Council v. Bureau of Labor,
We agree with relator, however, that this court will not affirm the trial court’s dismissal on alternative grounds offered by the board for the first time on appeal. Osborne,
Affirmed in part; reversed in part; remanded.
Notes
Relator does not assign error on appeal to the trial court’s dismissal of his third claim, relating to the board’s provision to him of incorrect information concerning his right to judicial review.
As described, the JAM rules applicable to relator and other juvenile aggravated murderers for the purpose of establishing the dates of those offenders’ aggravated murder review hearings under ORS 163.105(2) to (4) provide for the application of individualized criteria to particular offenders and permit the board to establish prison terms for such offenders of between 240 months and “life” that must be served before the offenders receive their review hearings. In Engweiler V,