Smith v. Mills

Court of Appeals of Oregon

Smith v. Mills

342 P.3d 1034, 268 Or. App. 454, 2015 Ore. App. LEXIS 60

CourtCourt of Appeals of Oregon

DecidedJanuary 22, 2015

Docket09C19095; A145677

StatusPublished

Cited by2 cases

This text of 342 P.3d 1034 (Smith v. Mills) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Mills, 342 P.3d 1034, 268 Or. App. 454, 2015 Ore. App. LEXIS 60 (Or. Ct. App. 2015).

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Opinion

HASELTON, C. J.

This appeal pertains to one of two matters in which plaintiff sought to compel the attendance of two witnesses at his parole consideration hearing. ORS 144.228. The first appeal arose from an order of the Board of Parole and Post-Prison Supervision (board) quashing subpoenas duces tecum that had been issued to the witnesses by plaintiffs attorney. Smith v. Board of Parole, 268 Or App 457, 343 P3d 245 (2015). This appeal arose thereafter, when plaintiff initiated a contempt proceeding, filing a motion for issuance of an order to show cause, seeking to compel the putative witnesses to comply with the same subpoenas duces tecum. The trial court dismissed the matter on a variety of alternative grounds, including a determination that plaintiff was not legally entitled to subpoena witnesses to the parole consideration hearing.¹ We affirm.

The predicate facts are, for the most part, recounted in our opinion in the companion Smith case decided this date. The circumstances most essential to our consideration here are as follows:

Prior to plaintiffs July 8, 2009, parole consideration hearing, plaintiffs attorney issued subpoenas duces tecum to defendant Dr. Templeman, plaintiffs examining psychologist, and to defendant Donald Mills, the superintendent of Two Rivers Correctional Institution. Neither defendant appeared at plaintiffs parole consideration hearing, and the board ordered the subpoenas quashed. Following a hearing on August 12, 2009, the board deferred petitioner’s parole consideration date to September 5, 2011.

Sometime after the board’s August 12, 2009, hearing, plaintiff filed his “Motion for Issuance of Order to Show Cause” in Marion County Circuit Court. Plaintiff argued, as he did to the board in Smith, 268 Or App at 461, that he had the right to subpoena witnesses under the provisions of ORS 183.445, ORS 144.315, and ORS 183.413, and as a matter of “due process” under Article I, section 10, of the Oregon Constitution and the Fourteenth Amendment to the [456]*456United States Constitution.² Defendants moved to dismiss, arguing, inter alia, that plaintiff had no statutory or constitutional entitlement to subpoena witnesses for the parole consideration hearing. The trial court allowed that motion.

On appeal, plaintiff advances the same statutory' and constitutional arguments that he raised below and in his petition for judicial review of the board’s orders. Thus, plaintiffs position here is, ultimately, predicated on the identical statutory and constitutional provisions that we have now addressed, and found inapposite, in the companion Smith case. See Smith, 268 Or App at 463, 465-66, 467-68 (concluding that there is no statutory entitlement under ORS 144.315, ORS 183.413, and ORS 183.445, or constitutional entitlement under Article I, section 10, or the Due Process Clause of the Fourteenth Amendment to subpoena witnesses to a parole consideration hearing pursuant to ORS 144.228).

Affirmed.

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HASELTON, C. J.

This appeal pertains to one of two matters in which plaintiff sought to compel the attendance of two witnesses at his parole consideration hearing. ORS 144.228. The first appeal arose from an order of the Board of Parole and Post-Prison Supervision (board) quashing subpoenas duces tecum that had been issued to the witnesses by plaintiffs attorney. Smith v. Board of Parole, 268 Or App 457, 343 P3d 245 (2015). This appeal arose thereafter, when plaintiff initiated a contempt proceeding, filing a motion for issuance of an order to show cause, seeking to compel the putative witnesses to comply with the same subpoenas duces tecum. The trial court dismissed the matter on a variety of alternative grounds, including a determination that plaintiff was not legally entitled to subpoena witnesses to the parole consideration hearing.¹ We affirm.

The predicate facts are, for the most part, recounted in our opinion in the companion Smith case decided this date. The circumstances most essential to our consideration here are as follows:

Prior to plaintiffs July 8, 2009, parole consideration hearing, plaintiffs attorney issued subpoenas duces tecum to defendant Dr. Templeman, plaintiffs examining psychologist, and to defendant Donald Mills, the superintendent of Two Rivers Correctional Institution. Neither defendant appeared at plaintiffs parole consideration hearing, and the board ordered the subpoenas quashed. Following a hearing on August 12, 2009, the board deferred petitioner’s parole consideration date to September 5, 2011.

Sometime after the board’s August 12, 2009, hearing, plaintiff filed his “Motion for Issuance of Order to Show Cause” in Marion County Circuit Court. Plaintiff argued, as he did to the board in Smith, 268 Or App at 461, that he had the right to subpoena witnesses under the provisions of ORS 183.445, ORS 144.315, and ORS 183.413, and as a matter of “due process” under Article I, section 10, of the Oregon Constitution and the Fourteenth Amendment to the [456]*456United States Constitution.² Defendants moved to dismiss, arguing, inter alia, that plaintiff had no statutory or constitutional entitlement to subpoena witnesses for the parole consideration hearing. The trial court allowed that motion.

On appeal, plaintiff advances the same statutory' and constitutional arguments that he raised below and in his petition for judicial review of the board’s orders. Thus, plaintiffs position here is, ultimately, predicated on the identical statutory and constitutional provisions that we have now addressed, and found inapposite, in the companion Smith case. See Smith, 268 Or App at 463, 465-66, 467-68 (concluding that there is no statutory entitlement under ORS 144.315, ORS 183.413, and ORS 183.445, or constitutional entitlement under Article I, section 10, or the Due Process Clause of the Fourteenth Amendment to subpoena witnesses to a parole consideration hearing pursuant to ORS 144.228).

Affirmed.

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Bluebook (online)

342 P.3d 1034, 268 Or. App. 454, 2015 Ore. App. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-mills-orctapp-2015.

Opinion

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