Kragt v. Board of Parole

"[W]hen a party requests to file a supplemental brief, the party should clearly state the reasons for the request and what the party wants to address in the supplemental brief, including notifying the court if the party intends to raise a new assignment of error or make a distinct new argument on an existing assignment of error." Kragt v. Board of Parole, 325 Or App 688, 694 (2023). 

Petitioner was granted leave to file a supplemental brief, in support of his petition for judicial review of an order of the Board of Parole ("the Board") which provided the end dates for his PPS terms. Petitioner filed his opening brief in 2018, but this case was stayed for roughly 5 years while a direct criminal appeal was litigated. Three arguments were included in the 2018 brief, all of which became nonviable. Petitioner requested leave to amend the 2018 brief to remove the nonviable arguments and revise his prior arguments in light of the criminal appeal. The Board responded, arguing that the court should have denied leave so that Petitioner cannot add new assignments of error. The Court denied Petitioner's request, but allowed him to file a supplemental brief. In his supplemental brief, Petitioner admits that he raised a new argument. The Board argued that Petitioner's new argument was "unpreserved, procedurally improper, and fail[ed] on the merits" given it was not raised in the 2018 brief. "[W]hen a party requests to file a supplemental brief, the party should clearly state the reasons for the request and what the party wants to address in the supplemental brief, including notifying the court if the party intends to raise a new assignment of error or make a distinct new argument on an existing assignment of error." Kragt v. Board of Parole, 325 Or App 688, 694 (2023). The Court reasoned that, because Petitioner did not state that he would be raising a new argument, the Court's order could only be read as allowing Petitioner to file a supplemental brief to clarify how new case law affects his previous arguments, not that it allowed for new assignments of error to be raised. Arguments in the 2018 brief were no longer viable. AFFIRMED.