Barrett v. Bd. of Parole and Post-Prison Supervision

“In reviewing a rule challenge we may declare the rule invalid only if we conclude that it violates the constitutional provision, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures.” Assn. of Acupuncture v. Bd. of Chiropractic Examiners, 260 Or App 676 P3d 575 (2014).

Petioner challenged the validity of OAR 255-040-005(5), which restricts the possibility of parole for aggravated murder sentencing. Petitioner argued that the statute directly conflicted with the provisions of ORS 144.122, which gives the Board authority to create rules. “In reviewing a rule challenge, we may declare the rule invalid only if we conclude that it violates the constitutional provision, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures.” Assn. of Acupuncture v. Bd. of Chiropractic Examiners, 260 Or App 676 P3d 575 (2014). The Court interpretted OAR 255-040-005(5) to determine the intention of the legislature, and held that OAR 255-040-0005(5) was invalid because an inmate with an aggravated murder sentence whose sentence has been converted to life imprisonment without the possibilty of parole and whose initial parole release date has been set in compliance with ORS 144.120 is entitled to personal reviews. The Court held that OAR 255-040-0005(5) is invalid.