Houston v. Brown

190 P.3d 427, 221 Or. App. 208, 2008 Ore. App. LEXIS 1096

• Court: Court of Appeals of Oregon
• Decided: July 23, 2008
• Docket: 05CV2681CC; A129815
• Status: Published

Opinions

EDMONDS, P. J.

Plaintiff appeals from a judgment dismissing his petition for a writ of habeas corpus pursuant to ORS 34.310 to 34.730. We dismiss plaintiff’s appeal as moot.

Plaintiff alleges that “[t]he imprisonment and restraint of plaintiff are illegal because plaintiff has already been incarcerated for 990 days as sanctions for violations of post-prison supervision on the convictions resulting from Douglas County Circuit Court cases [.]” Plaintiff further alleges that the incarcerations that result from sanctions imposed by his post-prison supervision officer for failure to comply with his conditions of supervision exceed those authorized by law. The trial court ruled that habeas corpus relief was not available to plaintiff on jurisdictional grounds and, in the alternative, that the limitation of 180 days of incarceration provided for in the administrative rule adopted pursuant to ORS 144.108 applies only to post-prison supervision revocation proceedings and not to administrative sanctions imposed under ORS 144.106.¹

While the appeal was pending, defendants moved to dismiss it as moot on the ground that the particular administrative sanction that prompted plaintiffs petition has now been served and he is no longer in custody pursuant to that sanction. The Chief Judge of this court denied the motion on the ground that “[i]t appears that the issue in this case goes beyond a challenge to a particular sanction.” After it was argued on the merits, the case was taken under advisement. As part of our consideration, we again address the issue of mootness because that issue is jurisdictional in nature. See Hood River County v. Stevenson, 177 Or App 78, 81, 33 P3d 325 (2001) (jurisdictional issues need not be raised by the parties, as the court has the obligation to consider them sua sponte).

In general, “ [d] etermining mootness is one part of the broader question of whether a justiciable controversy exists.” Brumnett v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993). One requirement for the existence of a justiciable controversy is that the court’s decision in the matter will have some practical effect on the rights of the parties to the controversy. Thus, for example, in Barnes v. Thompson, 159 Or App 383, 977 P2d 431, rev den, 329 Or 447 (1999), we dismissed an appeal as moot where the plaintiff petitioned for habeas corpus relief alleging that the extension of his parole release date was unlawful after he was released from parole during the pendency of the appeal. We reasoned that, because the plaintiff was no longer incarcerated, no justiciable controversy existed and dismissal of his appeal was required. Id. at 386-87.

There is an exception to the general rule. If collateral consequences from a trial court’s judgment or an administrative tribunal’s order continue to adversely affect a party at the time of appeal, a justiciable controversy may still exist. Brumnett, 315 Or at 405. An implicit predicate, however, to the application of the “collateral consequences” exception is that the gravamen of the underlying action that results in the judgment or order on appeal must be the source of the collateral consequences.

In this case, as in Barnes, the 90-day jail sanction that is the basis for plaintiffs habeas corpus action expired during the pendency of this appeal, and, as far as the record shows, plaintiff is no longer incarcerated. Nonetheless, plaintiff reasons that collateral consequences exist because he challenges in his habeas petition the state’s authority to continue to sanction him for violations in light of his continued refusal to comply with the conditions of his post-prison supervision.² In plaintiffs view, he has already served the maximum sanctions that could be legally imposed, and, therefore, his claim in habeas is available to prevent any future sanctions. The flaw in plaintiffs argument is that any potential jail sanction in the future is not a collateral consequence of his past jail sanctions.³ Rather, it would be a result of his ongoing failure to abide by the terms of his post-prison supervision. Habeas corpus is not a remedy that is available to relieve a plaintiff from the terms of his post-prison supervision.

In general, “[e]very person imprisoned or otherwise restrained of liberty, within this state, except in the cases specified in ORS 34.330, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom.” ORS 34.310.⁴ The statute further provides that every other form “of habeas corpus is abolished.”⁵ ORS 34.590 provides that “[i]f no legal cause is shown for the imprisonment or restraint, or for the continuation thereof, the court or judge shall discharge such party from the custody or restraint under which the person is held.” Thus, under ORS 34.310 to 34.730, when a plaintiff challenges the basis of his incarceration, no other relief is available to a plaintiff who prevails on a habeas corpus claim other than to be released from custody.

It follows from the above understanding that any relief that the trial court could grant under ORS 34.590 would have no practical effect. That is because the habeas statutes do not grant authority to courts to order the Board of Parole and Post-Prison Supervision to desist in the future from imposing sanctions against persons subject to the rules of post-prison supervision. The dissent disagrees, arguing that “there is substantially more than a ‘mere possibility’ that petitioner will again be confined for violating the same condition of post-prison supervision * * *.” 221 Or App at 214. The flaw in the dissent’s reasoning is that it would afford relief under the habeas statutes that is beyond the scope of the relief authorized by the legislature in those statutes. It necessarily follows that plaintiffs appeal must be dismissed because this court’s decision could have no practical effect on any potential sanctions imposed by the board in the future.⁶

Appeal dismissed.

1 See OAR 213-11-0004(3).

2 One of petitioner’s conditions of post-prison supervision is that he undergo sex offender treatment. A predicate to that treatment is that petitioner must admit that he is a sex offender. In the past, petitioner has consistently refused to make that admission for purposes of treatment, thus resulting in the imposition of multiple sanctions.

3 The dissent’s analysis suffers from the same flaw.

4 ORS 34.330(4) provides that a person may not prosecute a writ of habeas corpus if 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.” The record in this case does not indicate whether the board ever issued an order relating to petitioner’s sanctions within the meaning of ORS 34.330(4).

5 Habeas corpus relief is also available to challenge the legality of additional measures of imprisonment or restraint beyond the fact of the prisoner’s custodial status. Penrod/Brown v. Cupp, 283 Or 21, 28, 581 P2d 934 (1978). An example of such a measure would be the custodian’s failure to furnish reasonable medical care to a prisoner. Plaintiff does not make a “conditions of imprisonment” claim in this case. His only claim is that defendants cannot lawfully continue to sanction him with 90-day periods of imprisonment for his refusal to comply with the conditions of his post-prison supervision.

6 If plaintiffs argument is correct, that the board lacks the authority to continue to sanction him with periods of imprisonment, his remedy may be under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160 (providing authority to trial courts to declare the legal rights, status, or relationships of persons and enter declaratory judgments and injunctions in conformance therewith).