Opinion
A175196 (Control), A175334
04-19-2023
Jacob Burley CROMBIE, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
Sarah De La Cruz, Deputy Public Defender, argued the cause for petitioner. On the briefs were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services, and Anna Belais, Deputy Public Defender. Denise G. Fjordbeck, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Nicholas C. Greenfield, Assistant Attorney General.
Sarah De La Cruz, Deputy Public Defender, argued the cause for petitioner. On the briefs were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services, and Anna Belais, Deputy Public Defender.
Denise G. Fjordbeck, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Nicholas C. Greenfield, Assistant Attorney General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and Armstrong, Senior Judge.
AOYAGI, P. J. On review of a final order of the Board of Parole and Post-Prison Supervision, petitioner challenges a special condition of post-prison supervision (PPS) requiring that he have
"[n]o access to computing devices (including, but not limited to personal computers, Smartphones, tablets, Smart TVs, etc.), digital storage devices, other computer-related devices, peripheral computer equipment, websites, or applications that may be used in a way that is similar or related to [his] past or current wrongful conduct, without the prior written approval of the supervising officer and, where applicable, the sex-offender treatment provider, and only under conditions set by them."
We agree with petitioner that the board exceeded its statutory authority in imposing that condition. Accordingly, we reverse.
FACTS
Petitioner was convicted of two counts of first-degree attempted sexual abuse, ORS 161.405(2)(c), and one count of second-degree attempted sodomy, ORS 161.405(2)(c), based on a "romantic and sexual relationship" that he had with L over an eight-month period when petitioner was 19 years old and L was 13- to 14-years old. L was in foster care in the home of petitioner's best friend, where petitioner also lived for a time. Petitioner and L's relationship included "lots of talking and texting late into the night," as well as social activities and various sexual acts short of intercourse. Petitioner also sent text messages to L's 14-year-old sister M, regarding sex and pornography, while M was visiting L. Upon his conviction, petitioner was sentenced to 60 months of imprisonment and 24 months of PPS.
Regarding petitioner's PPS term, the board issued an order of supervision conditions, including both general and special conditions. Petitioner was subject to an extensive group of special conditions identified as "Sex Offender Package A," which comprises the special conditions required by ORS 144.102(4)(b) when a person is on PPS following conviction of a sex crime as defined in ORS 163A.005. Among other things, those conditions prohibited petitioner from "contacting" any person under 18 years old without prior written approval; from being present more than once without prior written approval in any place where minors "regularly congregate"; from being present at a school or any other place intended for use primarily by minors (including being on the property or on adjacent property) without prior written approval; from having any direct or indirect contact with the victim without approval; and from viewing or possessing pornography "relevant to [his] deviant behavior." In addition to and separate from the mandatory sex-offender conditions, the board imposed a special condition that petitioner have "[n]o access to a computer, the Internet, digital storage devices or other computer-related devices and peripheral computer equipment without the prior written approval of the supervising officer and, where applicable, the sex-offender treatment provider, and only under conditions set by them."
Petitioner sought administrative review, challenging only the computer condition. While administrative review was pending, we decided Schmult v. Board of Parole , 306 Or App 350, 474 P.3d 920 (2020), in which we held that the board exceeded its statutory authority by imposing the same computer condition on a different petitioner. Thereafter, the board granted petitioner partial relief. The board explained that it had "recently re-tooled" the computer condition to address some of the concerns raised in petitioner's review request and "to comport with the functioning of the modern world." The board then amended petitioner's supervision conditions by replacing the existing computer condition with the "re-tooled" version. The amended supervision condition regarding computers provides:
"No access to computing devices (including, but not limited to personal computers, Smartphones, tablets, Smart TVs, etc.), digital storage devices, other computer-related devices, peripheral computer equipment, websites, or applications that may be used in a way that is similar or related to the individual's past or current wrongful conduct, without the prior written approval of the supervising officer and, where applicable, the sex-offender treatment provider, and only under conditions set by them. Conditions shall include
random or unannounced examinations by the supervising
officer or designee of any and all computing devices, digital storage devices, other computer-related devices, peripheral computer equipment, websites, or applications to which the offender has access; additionally, conditions may include the installation or use of software capable of determining whether or not the individual is using permitted computing devices, digital storage devices, other computer-related devices, peripheral computer equipment, websites, or applications in a way that is similar or related to the individual's past or current wrongful conduct."
As far as why it was imposing that special condition on petitioner, the board explained that its practice is to impose the "Enhanced Computer Condition"—which appears to be the board's internal nomenclature for the challenged condition—whenever "a computer or similar electronic device was used in the commission of the crime, and concerns for community safety justify the addition of such a condition." Pointing to petitioner's use of "a cellular telephone in order to groom and communicate with a 13-year-old minor female whom [he] ultimately repeatedly sexually abused," the board concluded that "an electronic device played a role in [petitioner's] misconduct (was used in the commission of [his] crime)" and that it was therefore "appropriate for public safety and for [petitioner's] own reformation" to impose the condition. Finally, the board noted that the condition "should not be read as an absolute prohibition on use and access," because petitioner's supervising officer had authority to allow petitioner to use electronic devices if the supervising officer and the sex-offender treatment provider found it to be in the best interests of public safety and petitioner's reformation that he do so.
Petitioner challenged the modified condition on similar grounds as he had the original version, including that it exceeded the board's statutory authority. He argued that his crimes did not "support a general restriction of access to the Internet and use of computers." The board denied relief. It reaffirmed its prior explanation for imposing the condition. As for petitioner's contention that his supervising officer was interpreting the condition in a manner that effectively precluded him from using any electronic devices, the board stated that it is "not the purview of the Board to monitor and judge" how the computer condition is applied, but rather "the purview of the Community Corrections agency charged with [petitioner's] supervision," and that it
"is not the Board's practice to supersede the judgment of [the] supervising officer in these situations, because the Board believes that [the] supervising officer is in the best position to recognize any risk posed, and can then work with a sex offender treatment provider, when appropriate, to determine if that risk can be minimized to the point where [a] request would be allowed."
The Board suggested that petitioner "create a plan" with his supervising officer and his sex-offender treatment provider "to determine how [petitioner] can achieve [his] goal of using the approved devices and technologies found in [the special condition]."
Petitioner seeks judicial review. In his sole assignment of error, he challenges the modified computer condition, arguing that the board exceeded its statutory authority and that the condition is unconstitutionally vague and overbroad.
In his opening brief, petitioner identifies both the original order of supervision conditions (dated August 7, 2020) and the order modifying the supervision conditions (dated November 12, 2020) as subjects of review. However, consistent with how the parties have briefed the case, we understand the second order to have superseded the first order with respect to the computer condition. We therefore limit our discussion to the computer condition in the second order.
MOTION TO DISMISS AS MOOT
As a preliminary matter, we address a pending motion. This appeal was argued in late July 2022. In September 2022, petitioner completed his PPS term. The board then moved to dismiss the appeal as moot. Petitioner opposes dismissal. He acknowledges that our decision will no longer affect him personally, but he argues that we should reach the merits based on ORS 14.175, as an issue that is capable of repetition yet evading review:
"In any action in which a party alleges that an act, policy or practice of a public body, as defined in ORS 174.109, or of any officer, employee or agent of a public body, as defined in ORS 174.109, is unconstitutional or is otherwise contrary to law, the party may continue to prosecute the action
and the court may issue a judgment on the validity of the challenged act, policy or practice even though the specific act, policy or practice giving rise to the action no longer has a practical effect on the party if the court determines that:
"(1) The party has standing to commence the action;
"(2) The act challenged by the party is capable of repetition, or the policy or practice challenged by the party continues in effect; and
"(3) The challenged policy or practice, or similar acts, are likely to evade judicial review in the future."
It is undisputed that petitioner is alleging that an act, policy, or practice of the board (a public body) is unconstitutional or otherwise contrary to law, and that he had standing to commence the action. The challenged act is also capable of repetition. As the board has acknowledged, the board considers imposing this condition on anyone who used a computer or electronic device in the commission of a crime. Thus, although the condition is no longer affecting petitioner personally, it is "reasonably susceptible to repetition as to someone." Penn v. Board of Parole , 365 Or. 607, 622, 451 P.3d 589 (2019) (construing the meaning of "capable of repetition" in ORS 14.175, and concluding that the petitioner's challenge to a special condition of PPS raised an issue "capable of repetition," where the board acknowledged imposing that condition in other domestic-violence cases and arguably had a policy of applying that condition to "domestic violence convictions, assaults or any other case where they feel it is necessary for public safety").
The real question is whether the issue is likely to evade judicial review. We conclude that it is. It need only be "likely" that an issue will evade judicial review—not certain that it will do so in every possible future case. Couey v. Atkins , 357 Or. 460, 479, 482, 355 P.3d 866 (2015) (stating that "[c]ertainty is not required" and, separately, that "[t]he fact that there is a possibility that a particular case could obtain expedited consideration is beside the point[,]" because " ORS 14.175 applies to types or categories of cases in which it is ‘likely’ that such challenges will avoid judicial review"). In Penn , 365 Or. 607, 451 P.3d 589, the petitioner challenged a PPS special condition regarding intimate relationships. After filing his opening brief in the Supreme Court, the petitioner completed his 36-month PPS term, and the board moved to dismiss as moot. Id . at 609, 451 P.3d 589. The court held that it could and should reach the merits under ORS 14.175. Id . As to the issue being likely to evade review, the court recognized "that terms of post-prison supervision generally range from one to three years, see generally Oregon Felony Sentencing Guidelines Grid , OAR ch 213, App 1," and concluded that, given the typical length of the appellate process, the issue was "likely" to evade review in the future within the meaning of ORS 14.175. Id . at 623, 451 P.3d 589. The same reasoning applies here.
Having concluded that petitioner's challenge to the computer condition meets the requirements in ORS 14.175, it is a matter of discretion whether we will proceed with review or dismiss the case as moot. Id . at 624, 451 P.3d 589. For similar reasons as those articulated in Penn , we exercise our discretion to proceed with review. Like the court in Penn , "we are persuaded that a decision will have broader relevance" than the specific facts of this case. Id. (rejecting the argument that the court should not exercise its discretion given the case-specific nature of the board's imposition of a special condition, and concluding that it was proper to exercise discretion under ORS 14.175, where the petitioner had raised "a serious challenge to the statutory authority of the board and the constitutionality of the board's imposition of" the condition, and the issues had "great importance to many people, including many present and future supervised persons and persons who wish to have or continue intimate relations with them").
We deny the motion to dismiss as moot and proceed to the merits.
ANALYSIS
We address petitioner's statutory challenge first and, because it is dispositive, do not reach his constitutional arguments. Stelts v. State of Oregon , 299 Or. 252, 257, 701 P.2d 1047 (1985) (generally providing for consideration of state statutory arguments, then state constitutional arguments, then federal constitutional arguments).
Under ORS 144.102(4)(a), the board has authority to impose a special condition of post-prison supervision that it "considers necessary because of the individual circumstances of the person on post-prison supervision." That grant of discretion to the board "has meaning only in the context of the statutory objectives that the [b]oard is to pursue." Martin v. Board of Parole , 327 Or. 147, 159, 957 P.2d 1210 (1998) (internal quotation marks omitted). That is, "the ‘necessity’ of special conditions must be determined in reference to the statutory objectives that are repeated throughout the statutes, namely, the protection of public safety and the reformation of the offender." Id. (internal quotation marks and ellipses omitted).
For example, regarding the board's release plan for an adult in custody, ORS 144.096(3)(d) requires the board to include "[a]ny other conditions and requirements as may be necessary to promote public safety," and ORS 144.096(3)(f) requires the board to include "any conditions necessary to assist the reformation of the adult in custody."
In Penn , the Supreme Court declined to construe ORS 144.102(4)(a) as giving the board delegative authority as to what is "necessary." 365 Or. at 631, 451 P.3d 589. The court instead construed it as an inexact term, and it rejected the view that "necessity" means only that there is a "rational" basis for a special condition. Id. at 634, 451 P.3d 589. Instead, the court held that, properly construed, ORS 144.102(4)(a) allows the board to "impose any condition that, in light of the supervised person's individual circumstances, the board reasonably could view as essential to or required for one or both of its broad objectives of ‘promoting’ public safety and ‘assisting’ in an offender's reformation." Id. at 635, 451 P.3d 589 (quoting ORS 144.102(4)(a) (emphasis added)). Importantly, those objectives focus on the person, not the offense. Weems/Roberts v. Board of Parole , 347 Or. 586, 595-96, 227 P.3d 671 (2010) ( ORS 144.102 requires the board to assess a condition's necessity in light "of the individual circumstances of the person on post-prison supervision," with a focus "on the offender, not the offense," which means that the board may consider "more than just the narrow circumstances of an offender's current crimes of conviction"). One aspect of necessity is that the risk at issue must pose a "substantial danger" to public safety or offender reformation. Id. at 598, 227 P.3d 671. The board need not tailor special conditions so narrowly as to "address only certain or immediate risks to public safety or offender reformation." Id . At the same time, the board must proportion special conditions to the risk. "Ultimately, the board must weigh the different interests of the parties—i.e. , such as weighing the benefit of a particular condition to the public safety and the offender's reformation against the burden that it would impose on the offender—and impose conditions that fall within the range of legally permissible outcomes." Schmult , 306 Or App at 353-54, 474 P.3d 920. "More restrictive supervision conditions generally require greater justification." Id . at 354, 474 P.3d 920 ; cf. State v. Bell , 276 Or App 21, 25, 366 P.3d 756 (2016) ("A court has wide discretion to impose probation conditions, but a probation condition that is more restrictive than necessary to achieve the goals of probation is invalid." (Internal quotation marks omitted.)).
Petitioner's arguments in this case are similar to those made by the petitioner in Schmult . Essentially, petitioner argues that the computer condition imposed on him as a special condition of PPS is too restrictive to be "necessary" for public safety or his own reformation, such that it exceeds the board's statutory authority. He argues that the board's "re-tooled" condition remains functionally the same as the condition imposed in Schmult (and initially imposed on petitioner in this case). In petitioner's view, his incidental use of a cell phone to maintain a relationship with the victim is not enough to make it "necessary" to impose such a broad prohibition on access to computers and electronic devices, particularly when he is already prohibited from contacting any minor by any means without his supervising officer's approval. Petitioner also emphasizes that it is the board's responsibility to set the conditions of supervision and argues that the board cannot just defer to the supervisory officer, particularly when the supervisory officer's decisions are not subject to judicial review (or even board review).
In response, the board argues that it did not exceed its statutory authority in imposing the challenged condition on petitioner, because there is a substantial danger that petitioner will use an electronic device to contact minors for sexual activity, as evidenced by his use of a cell phone to contact L and her sister M. The board contends that its post- Schmult revisions to the computer condition are meaningful, because the condition is now limited to devices, equipment, websites, and applications "that may be used in a way that is similar or related to the individual's past or current wrongful conduct." The board argues that allowing the supervising officer to decide whether petitioner will be allowed to use any such devices, equipment, websites, and applications promotes their discussing petitioner's criminal impulses in a way that will improve his chances for reformation. Finally, the board asserts that the sex-offender conditions (including no contact with minors) are not always enough to ensure public safety and that the computer condition is one more way to ensure that petitioner does not contact minors.
With those principles and arguments in mind, we address the merits. As an initial matter, the board is correct that the challenged condition is narrower than the one imposed previously, in that the challenged condition contains the limiting phrase "that may be used in a way that is similar or related to the individual's past or current wrongful conduct." The exact meaning of "past or current wrongful conduct" is unclear. However, that is an issue for another day because, in this case, the parties appear to agree, and we accept, that the effect of the limiting phrase is to prohibit petitioner from having access to any type of computer or computer-based electronic device that is capable of being used to communicate with other people without written preapproval. The challenged condition is thus narrower than the original computer condition imposed on petitioner (and addressed in Schmult ), which prohibited petitioner from having access to any type of computer or computer-related device or equipment at all without written preapproval.
The question before us comes down to whether the board could reasonably view it as essential to public safety or petitioner's reformation that petitioner have no access to any electronic device capable of being used to communicate with other people. Penn , 365 Or. at 635, 451 P.3d 589. Answering that question requires taking into account petitioner's individual circumstances, including that petitioner is already expressly prohibited from contacting any person under 18 years old by any means whatsoever (absent written preapproval) and from having any direct or indirect contact with the victim (absent written preapproval).
The answer to the question is no. Petitioner had a criminal sexual relationship with an underage girl. He maintained that relationship in part by talking on the phone with her and sending her text messages. We do not see, however, how that fact alone makes it essential for public safety or petitioner's reformation to prohibit petitioner from having access to any and all electronic devices that could be used to communicate with any other person. That is particularly so when petitioner is already expressly prohibited from having any contact whatsoever with minors. Even recognizing the somewhat unique nature of electronic devices, it is nearly analogous to prohibiting someone from talking to people because they talked to the victim, or from driving anywhere because they drove to meet the victim.
The challenged condition has a rational nexus to petitioner's crime, and it might be "useful" in the abstract as an extra precaution to reduce the risk of petitioner having contact with minors. Indeed, the board described the condition at oral argument as a "double insurance policy." But a rational nexus and abstract usefulness are not enough. Penn , 365 Or. at 632, 451 P.3d 589. The condition must be "necessary," including being proportional to the burden that it creates. When there is already a condition prohibiting the conduct that the board seeks to prevent (e.g. , contact with minors), care must be taken in also prohibiting particular means of engaging in that conduct (e.g. , electronic communications) that may also be used to engage in a wide array of lawful conduct.
Given petitioner's crime and individual circumstances, it is necessary for the board to impose PPS conditions that address the risk of his contacting minors. The conditions imposed as part of "Sex Offender Package A" go a long way to minimizing that risk, including prohibiting any contact whatsoever with minors. To the extent that the board believes that additional conditions are necessary, the board must weigh the public-safety and reformative benefits of additional conditions against the burden that they would impose on petitioner. Schmult , 306 Or App at 354, 474 P.3d 920. In the modern world, prohibiting a person from using any electronic device to communicate with any other person—let alone prohibiting "access" to any device with communications capability—is quite burdensome. Such a burdensome condition cannot be imposed in a rote manner.
Part of the difficulty with the challenged condition ties to the board's apparent practice of imposing the same exact condition whenever, in the board's words, "a computer or similar electronic device was used in the commission of the crime, and concerns for community safety justify the addition of such a condition." Although using a broadly written form condition is administratively convenient in various ways, it is not particularly well suited to an individualized approach to PPS conditions. See Penn , 365 Or. at 635, 451 P.3d 589 (requiring consideration of the offender's individual circumstances, including "current and prior convictions, history and background, record of conduct, and the risk of future harm that that conduct suggests"). Moreover, using a broad condition that is not tailored to the offender's individual circumstances—except for the somewhat enigmatic limiting phrase "that may be used in a way that is similar or related to the individual's past or current wrongful conduct"—necessarily risks disproportionality as applied to some offenders. The board must balance administrative convenience against the requirement to impose conditions that are appropriate and proportional to each offender's individual circumstances.
Finally, we are unpersuaded that the challenged condition is less problematic because it is not a complete ban on the use of electronic devices with communications capability, in that the supervising officer has authority to give petitioner prior written approval to use an electronic device, if the supervising officer and the sex-offender treatment provider find it to be in the best interests of public safety and petitioner's reformation. Approval from the supervising officer is entirely discretionary, unmonitored by the board (by its own description), and not subject to judicial review. Given those realities, we cannot assume that the written-preapproval option significantly reduces the burden of the challenged condition, as relevant to proportionality.
In sum, the board exceeded its statutory authority by imposing a special condition that cannot reasonably be viewed as necessary—that is, essential—to public safety or petitioner's reformation. Cf. Penn , 365 Or. at 638, 451 P.3d 589 (concluding that the board "could not reasonably consider the imposition of" a particular PPS special condition "to be essential to its broad objectives of public safety and offender reformation as they apply to petitioner's particular circumstances" and that, consequently, "the board acted beyond the statutory authority it has with respect to imposing special conditions of post-prison supervision"). We would normally reverse and remand to the board at this point, but because petitioner is no longer on supervision, we simply reverse.
Our analysis is focused on the board's statutory authority, but we note that a number of courts around the country have addressed constitutional challenges to supervisory conditions prohibiting use of the internet or electronic devices. See, e.g. , Waters v. State , 65 N.E.3d 613 (Ind App 2016) (holding that a probation condition that prohibited use of an electronic device to access the internet and online services, absent the probation officer's approval, was impermissibly broad, where it was possible to limit and monitor use in a way "more in line" with the conviction); Mutter v. Ross , 240 W Va 336, 811 S.E.2d 866 (2018) (holding that a parole condition completely banning internet use violated the First Amendment and explaining that, when the Parole Board has a legitimate interest in restricting a person's internet access, the restriction must be narrowly tailored); State v. R.K. , 463 NJ Super 386, 232 A.3d 487 (2020) (holding that a parole condition banning access to social media was unconstitutional on its face and was not saved by an "escape valve" allowing the supervising officer to lift the ban for a legitimate reason); Commonwealth v. Jennings , 613 S.W.3d 14 (Ky 2020) (recognizing that the internet is not a luxury but a "practical necessity for many aspects of life," and stating that supervisory conditions restricting internet access should be "limited, focused, and rationally-related" in all but extraordinary cases); Dalton v. State , 477 P.3d 650 (Alaska Ct App 2020) (recognizing the "growing necessity of internet access for full participation in modern society, and for the rehabilitation of offenders," and holding that a complete ban subject only to the unconstrained discretion of the probation officer was unconstitutional, even where there was a factual nexus justifying some restriction).
Reversed; motion to dismiss as moot denied.