Opinion
SC S071321
09-13-2024
MICHAEL SCOTT TUGMAN, Plaintiff, v. Tina KOTEK, Governor of the State of Oregon; and Tom McLay, Superintendent,Powder River Correctional Facility, Defendants.
Malori Maloney, Oregon Justice Resource Center, Portland, fled the petition for a writ of habeas corpus and the reply. Benjamin Gutman, Solicitor General, Salem, fled the memorandum opposing the petition for a writ of habeas corpus. Also on the memorandum was Ellen F. Rosenblum, Attorney General.
On petition for review fled August 16, 2024.
Original proceeding in habeas corpus.
Malori Maloney, Oregon Justice Resource Center, Portland, fled the petition for a writ of habeas corpus and the reply.
Benjamin Gutman, Solicitor General, Salem, fled the memorandum opposing the petition for a writ of habeas corpus. Also on the memorandum was Ellen F. Rosenblum, Attorney General.
The petition for a writ of habeas corpus is denied without prejudice to plaintiff seeking a writ of habeas corpus in the appropriate circuit or county court.
Bushong, J., dissented and fled an opinion, in which DeHoog, J., joined.
PER CURIAM
The court is not persuaded that it should exercise its discretion to take original jurisdiction of this petition for a writ of habeas corpus. Or Const, Art VII (Amended), § 2; ORAP 11.20(1). The petition for a writ of habeas corpus is denied without prejudice to plaintiff seeking a writ of habeas corpus in the appropriate circuit or county court. ORS 34.320.
BUSHONG, J., dissenting.
This court has declined to exercise its original habeas corpus jurisdiction to consider whether plaintiff is incarcerated unlawfully. I disagree with that decision and respectfully dissent.
Plaintiff was released from prison in April 2021, during the COVID-19 pandemic, after then-Governor Kate Brown commuted the remaining six months of his prison sentence to post-prison supervision (PPS). That six months' PPS was added to the 24 months' PPS that plaintiff was already required to serve. Before plaintiff completed the resulting PPS term, plaintiff pleaded guilty to a new offense, served a jail sentence and a PPS sanction for that offense, and was released from custody. Governor Tina Kotek then summarily revoked the 2021 commutation and recommitted plaintiff to prison. At the time plaintiff was returned to custody, he had about two months' PPS remaining on his sentence.
Plaintiff asserts that his imprisonment is unlawful on two grounds. First, plaintiff contends that the revocation is invalid because the Governor revoked the commutation and recommitted him to prison without notice or any process whatsoever, in violation of his rights under the Due Process Clause of the United States Constitution. Second, plaintiff contends that he has now fully served the sentence imposed by the court. According to plaintiff, his term of incarceration following revocation cannot exceed the two months that he had remaining on his sentence at the time of revocation. Plaintiff has been reincarcerated beyond that two-month period.
In response, the state acknowledges that plaintiff was incarcerated upon revocation of the commutation without notice or any type of a hearing, but the state contends that it is "questionable" whether due process even applies in this context, and that, in any event, plaintiff waived any right to due process by accepting the conditional commutation. The state also does not dispute that, as a factual matter, the total time defendant has already served in prison and on PPS to date exceeds the total duration of the sentence that had been imposed by the sentencing court. But the state contends that plaintiffs time on PPS after the commutation was granted, and before it was revoked, does not count towards his sentence and that continued imprisonment is a lawful consequence of the revocation of his conditional commutation under Article V, section 14, of the Oregon Constitution.
Article V, section 14, provides that the Governor "shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law."
Regardless of how those issues are ultimately decided, I think that this court should exercise discretion to take original jurisdiction and decide them now. The issues in dispute are legal, not factual. The issues have been fully briefed by the parties, and they are appropriate for consideration in a habeas proceeding. See Barrett v. Belleque, 344 Or. 91, 102, 176 P.3d 1272 (2008) (recognizing that a claim that a petitioner was imprisoned in violation of their federal due process rights "is the kind of claim that traditionally has been cognizable in habeas"). The "central characteristic" of a habeas proceeding "is the speed with which it triggers judicial scrutiny." Bedell v. Schiedler, 307 Or. 562, 566, 770 P.2d 909 (1989). "Few other legal remedies provide such swift relief." Barrett, 344 Or at 103.
Although habeas petitions "ordinarily are filed in the circuit court," this court has exercised discretion to consider habeas challenges where incarcerated persons "raised substantial legal issues regarding their incarceration." Rico-Villalobos v. Giusto, 339 Or. 197, 202, 118 P.3d 246 (2005); see also Collins v. Foster, 299 Or. 90, 698 P.2d 953 (1985) (considering denial of pretrial release on writ of habeas corpus); Haynes v. Burks, 290 Or. 75, 77 n 1, 619 P.2d 632 (1980) (same). This court can and should decide the "substantial legal issues" raised regarding plaintiffs continued incarceration.
Although this court "has repeatedly concluded that it is not within judicial competency to control, interfere with, or even to advise the Governor when exercising her power to grant reprieves, commutations, and pardons[,]" Thompson v. Fhuere, 372 Or. 81, 93-94, 545 P.3d 1233 (2024) (internal quotation marks omitted), the judicial branch, in my view, does have a role in determining whether the Governor's revocation complied with any applicable constitutional requirements, see Pope v. Chew, 521 F.2d 400, 405 (4th Cir 1975) (recognizing the need for notice and opportunity to be heard prior to clemency revocation); In re Bush, 164 Wash.2d 697, 705, 193 P.3d 103, 108 (2008) (same).
The court also has a role, in my view, in determining whether the Governor exceeded any legal limitations on her authority to determine the consequences of revoking a commutation, if, in fact, that is the effect of her action. Those limitations may stem from the original sentence imposed by the court and the statutory system of determinate sentencing established by the legislature; constitutional separation of powers principles; or the nature and scope of a governor's clemency power under Article V, section 14. See Haugen v. Kitzhaber, 353 Or. 715, 742-43, 306 P.3d 592 (2013) (noting that "limits exist on the Governor's [clemency] power," including "the legislature's authority to establish regulations regarding the Governor's power"). Because this case presents only disputed legal issues, it gives this court an opportunity to decide whether any procedural safeguards apply when a commutation is revoked, and the limitations, if any, on a Governor's determination of the consequences of revoking a commutation issued under Article V, section 14.
This court should decide those issues now, for several reasons. We have recognized that a habeas writ "is available for 'two kinds of cases'-those challenging a prisoner's 'further' restraint and those alleging other deprivations of a prisoner's legal rights, such as overcrowding, the quality of prison food, and 'similar conditions of imprisonment.'" Barrett, 344 Or at 101 (quoting Penrod/Brown v. Cupp, 283 Or. 21, 27-28, 581 P.2d 934 (1978)). Cases that challenge the conditions of imprisonment often turn on a court's factual assessment of the challenged conditions. In my view, those cases are most appropriate for resolution in the circuit court, which has both jurisdiction and the ability to make an appropriate factual record. See Or Const, Art VII (Amended), § 2 (this court "may, in its own discretion, take original jurisdiction in *** habeas corpus proceedings"); ORS 34.320 (circuit court "shall have concurrent jurisdiction of proceedings by habeas corpus"). This case, however, presents purely legal issues regarding the procedural limitations, if any, that apply to the revocation of a conditional commutation and the lawfulness of plaintiffs continued incarceration after serving the duration of the sentence that had been imposed by the court. This court can and should decide those issues promptly.
In addition, the legal issues that plaintiff raises are likely to affect numerous other adults in custody, which supports exercising our original jurisdiction in this case. Plaintiff was one of many adults in custody receiving a commutation of their prison sentences during the COVID-19 pandemic, and the revocation of plaintiffs commutation was one of many subsequent commutation revocations by Governor Kotek. Accordingly, determining whether any of the procedural safeguards required by due process apply to the Governor's revocation, and whether the law limits the consequences that may be imposed upon revocation, could potentially affect many other cases. And it is important for this court to make that determination, thereby establishing the guidelines that will apply to the current batch of commutation revocations and any future ones. A circuit court could make that determination in the first instance, but that determination would not be binding on other circuit courts, thereby leading to the possibility of inconsistent decisions. Moreover, a circuit court determination could be appealed, and cases could become moot before the appeal is finally resolved in this court, potentially denying many petitioners the "swift relief that habeas offers.
According to the declaration submitted by plaintiffs counsel, the Governor's response to a public records request revealed that Governor Kotek has revoked 122 commutations.
Plaintiff contends that he was imprisoned upon revocation without any procedural safeguards in violation of his constitutional due process rights, and that his continued incarceration is now unlawful not because of the conditions of his imprisonment, but because he has already served the entire sentence imposed by the court. Those issues may arise whenever government exercises the power of the state to take away a person's liberty by imprisoning them upon revocation of a commutation. Every day that plaintiff remains in prison is a significant, and possibly unlawful, deprivation of his liberty. And others currently imprisoned upon revocation of a commutation, or who will be incarcerated under similar circumstances in the future, may face similar significant, and possibly unlawful, deprivations of their liberty before this court finally decides the important legal issues presented in this case. "The wrongful deprivation of liberty by the state, which petitioner alleges here, is a serious claim that justifies immediate judicial attention." Barrett, 344 Or at 102.
I would give plaintiffs claim the "immediate judicial attention" that it deserves and decide the disputed legal issues now. Accordingly, I respectfully dissent from the court's decision declining to take original jurisdiction in this case.
DeHoog, J., joins in this dissenting opinion.