Gutierrez v. Board of Parole

In determining justiciability, the court considers whether the court’s decision in the matter will have “some practical effect on the rights of the parties.” Dept. of Human Services v. A. B., 362 Or 412 (2018). To prevent mootness, a collateral consequence must exceed “mere speculation” and “have a significant probability of actually occurring[.]” Johnson v. Premo, 302 Or App 578, 592 (2020).

Petitioner was convicted of first-degree murder and second-degree assault in 1985. In 2017, the Board of Parole and Post-Prison Supervision deferred his release to parole because he suffered from a present severe emotional disturbance (PSED), constituting a threat to public safety. In 2021, the board again–in an exit interview–found that Petitioner suffered from a PSED, deferring his parole release for two years for public safety. Petitioner sought judicial review of the decision, but the Board filed a motion to dismiss because it was moot.

Petitioner appealed, seeking judicial review from the 2017 order of the board for the denial of his request for an interim hearing. Petitioner contended that the board erred when it denied his request for an interim hearing and that it applied an incorrect standard in determining whether to grant the interim hearing. Citing Jones v. Board of Parole, 283 Or App 650, 660 (2017), Petitioner argued that the “board could not uphold petitioner’s confinement between 2017 and 2021 by merely pointing to its 2021 decision because the 2021 decision does not ‘retroactively justify the board’s denial of petitioner’s interim request.’”

On appeal, the court found that Petitioner sought an interim hearing so as to secure the possibility for an exit interview, and here, Petitioner received an exit interview prior to his scheduled release date. Accordingly, Petitioner’s argument is speculative; had he received an earlier hearing, it is unknown whether the result might have been different. Thus, the court found that Petitioner failed to identify a nonspeculative collateral consequence, rendering his case moot.

Petition for judicial review dismissed.