Opinion
No. A132629.
September 21, 2011.
On respondent Board of Parole Post-Prison Supervision's petition for reconsideration filed July 12, 2011, and petitioner Arlen Porter Smith's response to petition for reconsideration filed June 28, 2011. Opinion filed May 25, 2011. 243 or. App. 45, ___ P.3d ___ (2011).
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Erin C. Lagesen, Assistant Attorney General, for petition.
Arlen Porter Smith pro se for response.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Senior Judge.
PER CURIAM
Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; OAR 255-060-0011 and OAR 255-060-0016 held valid; OAR 291-062-0110, OAR 291-062-0140, OAR 291-082-0105(15), and OAR 291-082-0110 held invalid.
The Board of Parole and Post-Prison Supervision (board) seeks reconsideration of our decision in Smith v. Dept. of Corrections, 243 or. App. 45, ___ P.3d ___ (2011). In that decision, petitioners challenged six administrative rules that referenced an actuarial risk assessment instrument called the STATIC-99. Two of those rules — OAR 255-060-0011 and OAR 255-060-0016 — were promulgated by the board, while four of the rules — OAR 291-062-0110, OAR 291-062-0140, OAR 291-082-0105(15), and OAR 291-082-0110 — were promulgated by the Department of Corrections (DOC). We invalidated all six rules because we believed that the board and DOC did not promulgate the rules properly by filing the necessary exhibits that describe the STATIC-99 with the Secretary of State as required by OAR 166-500-0040. In its petition, the board informs us that we were mistaken in our belief regarding the board's two rules and that the board did in fact file the correct exhibits with the Secretary of State. We acknowledge our mistake and, therefore, find the board's rules properly promulgated and valid.
In their original petition, petitioners argued that the board's rules were unconstitutionally vague. We did not address that argument in the previous opinion; we now reject that argument without discussion.
The DOC does not join the board's petition for reconsideration and, therefore, the DOC's rules remain invalid as stated in our prior opinion.
Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; OAR 255-060-0011 and OAR 255-060-0016 held valid; OAR 291-062-0110, OAR 291-062-0140, OAR 291-082-0105(15), and OAR 291-082-0110 held invalid.