Kennedy v. Board of Parole

78 P.3d 1253, 190 Or. App. 349, 2003 Ore. App. LEXIS 1474

• Court: Court of Appeals of Oregon
• Decided: October 29, 2003
• Docket: A121713
• Status: Published

Opinion

PER CURIAM

The Board of Parole and Post-Prison Supervision moves to dismiss this petition for judicial review proceeding, arguing that petitioner will not be able to present a substantial question of law on judicial review. We deny the board’s motion to dismiss.

Under ORS 144.335(6), a person wishing to challenge an order of the board must 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.” In this case, petitioner has not yet filed her request for leave to proceed under ORS 144.335(6).

While lack of subject matter jurisdiction can be raised at any time under ORAP T.OSUXc),¹ the board argues only that petitioner will not be able to present a substantial question of law.² In this setting, the motion practice contemplated is a motion for leave to proceed. A motion to dismiss on this ground at this stage of the proceeding does not appear to be contemplated by ORS 144.335(6). This case should proceed under ORS 144.335(6).

Motion to dismiss denied.

1 ORAP 7.05(l)(c) provides that “[a] party may raise an issue of the jurisdiction of the appellate court by motion at any time during the appellate process.”

2 At this point, petitioner has filed her petition for judicial review with this court as required by ORS 144.335(4). Within 30 days of being served with petitioner’s petition for judicial review, the board must serve petitioner with a copy of the record. ORS 144.335(5). Petitioner will have 60 days from the date that she is served with a copy of the record to file her motion for leave to proceed. ORS 144.335(6).