Murphy v. Board of Parole & Post-Prison Supervision

EDMONDS, J.

The Board of Parole and Post-Prison Supervision has petitioned for reconsideration of our previous opinion. Murphy v. Board of Parole, 140 Or App 642, 915 P2d 489 (1996) (per curiam). We allow reconsideration to clarify our opinion and adhere to it as modified.

Petitioner sought judicial review of an order of the Board that rescinded his parole release date without a hearing on December 17, 1993. He asked us to reverse the order and to remand with specific instructions that the Board release him. In our prior opinion, we stated,

“We agree with petitioner that the Board violated an applicable rule by failing to hold a hearing prior to issuing its order. We decline, however, to grant petitioner the relief that he seeks. The only relief to which petitioner is entitled is a hearing to determine if he should be released, and the Board held such a hearing after the order on review. Because petitioner has been accorded a full hearing, no further relief remains to be granted.” 140 Or App at 643.

In its petition for reconsideration, the Board asks us to clarify our statement that it had “violated an applicable rule by failing to hold a hearing prior to issuing its order.” The Board’s petition states:

“The court’s broad language is troubling for two reasons: First, because it could be construed to apply to all instances in which the board suspends a parole release date pending a new hearing and, second, because it does not specify which rule the board ostensibly violated.”

According to the Board, “rescission” of a parole release date amounts to a temporary suspension of the release date, not a final determination to postpone the release date. Here, the Board rescinded petitioner’s release date of December 24, 1994, to consider new information, a psychological evaluation and to schedule a new exit interview. Finally, the Board points out that none of the rules cited in petitioner’s brief applies to its order and maintains that none of the rules cited in its brief was violated.

On reconsideration, we withdraw the portion of our opinion that holds that the Board violated “an applicable rule *608 by failing to hold a hearing prior to issuing its order.” Although we believed at the time of our opinion that the Board’s action violated OAR 255-80-012, we are not prepared to adhere to that holding in the absence of briefing and argument by the parties about that rule. Because petitioner was afforded a later hearing on the Board’s decision to extend his parole release date, there is no need for us to determine whether the Board violated an applicable rule. We therefore vacate that portion of our opinion and adhere to our opinion as modified.

Reconsideration allowed; opinion modified and adhered to as modified.