S054400, Opinion — Gordon v. Board of Parole

618
Argued and submitted September 11, decision of Court of Appeals reversed;
order of Board of Parole and Post-Prison Supervision reversed,
and case remanded to Board of Parole and Post-Prison Supervision for
further proceedings December 28, 2007
DENNIS LEROY GORDON,
Petitioner on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review.
(CA A121972; SC S54400)
175 P3d 461
CJS, Pardon and Parole§ 53.
On review from the Court of Appeals.*
* Appeal from order of the Board of Parole and Post-Prison Supervision. 207
Or App 435, 142 P3d 125 (2006).

Cite as 343 Or 618 (2007) 	619
Harrison Latto, Portland, argued the cause and filed the
briefs for petitioner on review.
Carolyn Alexander, Assistant Attorney General, Salem,
argued the cause for respondent. With her on the brief were
Hardy Myers, Attorney General, and Mary H. Williams,
Solicitor General.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
DE MUNIZ, C. J.
The decision of the Court of Appeals is reversed. The order
of the 	Board 	of Parole and 	Post-Prison Supervision is
reversed, and the case is remanded to the Board of Parole
and Post-Prison Supervision for further proceedings.
Linder, J., did not participate in the consideration or decision of this case.

620 	Gordon v. Board of Parole
DEMUNIZ, C. J.
In this parole review proceeding, petitioner, a prison
inmate, seeks review of an order of the Board of Parole and
Post-Prison Supervision (the board) deferring his initial
parole release date for two years. Petitioner contends that,
under the board's 1988 rules, which he asserts are applicable
to his case, the board was required to release him on parole
on his initial parole release date in August 1999. Over the
years since the board's first administrative review of its
deferral of petitioner's anticipated release, the board has
issued multiple orders, setting out various alternative ration-
ales for deferring his release date, all of which petitioner
claims are pretextual and logically unsound. Ultimately, the
board issued a final administrative review response dated
June 2, 2003, in which it concluded that its 1984 rules, and
not its 1988 rules, applied to petitioner's case and permitted
the deferral. Petitioner sought judicial review of that order
and the Court of Appeals affirmed it without opinion. Gordon
v. Board of Parole, 207 Or App 435, 142 P3d 125 (2006). For
the reasons that follow, we reverse the decision of the Court
of Appeals and remand the case to the Board of Parole and
Post-Prison Supervision for further proceedings.
The historical and procedural facts of this case are
undisputed. In 1975, petitioner murdered a woman in front
of her two small children, after having raped the same
woman at gunpoint in her home a month earlier. In 1976,
petitioner was tried and convicted of those crimes and sen-
tenced to life in prison. The sentencing scheme in effect at the
time that petitioner committed his crimes was known as the
"discretionary" system. Under that system, each inmate
served an indeterminate sentence and the board would con-
sider periodically whether the inmate was 	suitable for
release on parole. See former ORS 144.175 (1975), repealed by
Or Laws 1977, ch 372, § 18 (providing for release on parole for
inmates who, by rules or board order, were eligible for parole,
unless board found certain enumerated reasons for deferring
or denying release); former ORS 144.180 (1975), repealed by
Or Laws 1977, ch 372, § 18 (setting out factors board could
consider in determining whether inmate should be released
on parole). The board was required to assess the status of

Cite as
each inmate within six months of incarceration and at least
once every two years after that. Former ORS 144.221 (1975),
repealed by Or Laws 1977, ch 372, § 18. If the board deter-
mined that the inmate was suitable for parole, it gave the
inmate a parole hearing date, but did not set a firm date for
release, and the hearing date could be changed at the board's
discretion. Id. Under former ORS 144.175 (1975), the board
also could have chosen to deny an inmate release entirely for
certain enumerated reasons.
In accordance with that scheme, petitioner first
appeared before the board for a hearing in 1976. The parole
analyst's report, prepared for that hearing, recommended
that petitioner be denied release on parole. The board did not
agree with that recommendation, however; instead, it sched-
uled a parole hearing date for May 2006 and scheduled an
assessment and psychiatric review for May 1978 and every
two years thereafter, until the parole hearing date.
In 1977, the legislature adopted a new sentencing
scheme that replaced the old discretionary system with a new
"matrix" system. Or Laws 1977, ch 372. Under the matrix
system, an inmate must be assigned an initial parole release
date 	within 	a 	specified 	time 	of being sentenced. 	ORS
144.120(1). 1 That initial release date is based on a matrix
that ranks, on one axis, the seriousness of the crime, and on
the other axis, 	the inmate's criminal history. See 	ORS
144.780 (directing board to adopt rules setting ranges of
duration of imprisonment). Notwithstanding the directive in
ORS 144.120(1) to the board to set an initial release date, the
board may deny parole entirely if it determines that the
inmate's offense was particularly violent or if the inmate has
been diagnosed by a psychiatrist or psychologist as having a
severe emotional disturbance such as to constitute a danger
to the health or safety of the community. ORS 144.120(4). 2
1 Since its enactment in 1977. ORS 144.120 has been amended multiple times,
in ways that do not affect our analysis in this case. For ease of reference we refer to
the present version of that statute.
2 In 1977, when the matrix system was adopted, the statutes at issue in this
case referred to a diagnosis of "severe emotional disturbance." ORS 144.120(4)
(1977); ORS 144.125(3) (1977). In 1981, the legislature amended those statutes to
refer to "severe emotional disturbance such as to constitute a danger to the health
or safety of the community." Or Laws 1981, ch 426, §§ 1. 2. ORS 144.120(4)
provides:

Gordon v. Board of Parole
Once the board has set an inmate's initial release date under
ORS 144.120, however, the board may postpone that date for
only three reasons: ifthe inmate has engaged in serious mis-
conduct while in prison, the board must postpone the release
date, ORS 144.125(2); if the inmate has a severe psychiatric
or psychological disturbance such as to constitute a danger to
the health or safoty of the community, the board may post-
pone the release date, ORS 144.125(3); and if the inmate's
parole plan is inadequate, the board may defer the release
date for not more than three months, ORS 144.125(4). In the
absence of one of those grounds for postponement, the inmate
has a legal right to release on the scheduled release date.
ORS 144.245(1) (when board has set a parole release date,
"the prisoner shall be released on that date unless the pris-
oner on that date remains subject to an unexpired minimum
term during which the prisoner is not eligible for parole, in
which case the prisoner shall not be released until the expi-
ration of the minimum term"); 3 Hamel v. Johnson, 330 Or
180, 187, 998 P2d 661 (2000) (under ORS 144.245(1), "if a
prisoner does not have an unexpired minimum term, then
the prisoner must be released on the scheduled release date")
(emphasis in original).
After the legislature adopted the matrix system, the
board adopted a policy under which it would permit inmates
like petitioner, who were serving indeterminate sentences, to
elect to be treated under the new matrix system. Over time,
as the board amended its rules pertaining to the implemen-
tation of the new system, the board applied a policy under
which it would consider each inmate's eligibility for release
according to the statute and rules in effect when the inmate
committed his or her crimes. For inmates who committed
"Notwithstanding subsection (1) of this section [requiring the board to set
an initial parole release date], in the case of a prisoner whose offense included
particularly violent or otherwise dangerous criminal conduct or whose offense
was preceded by two or more convictions for a Class A or Class B felony or
whose record includes a psychiatric or psychological diagnosis of severe emo-
tional disturbance such as to constitute a danger to the health or safety of the
community, the board may choose not to set a parole date."
:i ORS 144.245(1), making an inmate's right to release on his or her release
date explicit, was enacted in 1985. Or Law 198;), ch 53, §§ 2, 3. Neither party has
argued whether such a mandate would have applied in 1984, and we do not decide
that issue.

Cite as 343 Or 618 	623
their crimes before the adoption of the matrix system and
later elected to be treated under that system, the board
applied a policy of determining the inmate's eligibility for
parole according to the statute and rules in effect at the time
of the inmate's election into the matrix system.
In August 1984, petitioner made such an election.
The form that petitioner signed to effectuate that election
recited, "I am aware that once I choose to receive a firm
release date under the matrix, I cannot later request to be
considered under the former 'discretionary' system." The
board conducted a hearing on the day petitioner made that
election. It applied the matrix rules and, although the board
could have denied petitioner release on parole entirely,
it unanimously decided to set an initial release date of
March 15, 2000.
Petitioner sought administrative review of and ulti-
mately attempted to appeal that decision. In the course of
that appeal, the board discovered that the hearing to set peti-
tioner's initial release date had not been recorded. The board
therefore set another hearing for November 7, 1984, for the
purpose of redetermining the "facts and findings" made at
the earlier hearing. The record is unclear as to whether a
hearing actually took place on November 7. However, on
November 14, 1984, the board issued an order continuing the
matter and stating,
"Board actions of 8/10/84 and 11/7/84 are VOID. Refer to
analyst for recomputation of History/Risk score and mate-
rial to be considered by the Board is to be disclosed to the
inmate. Reschedule upon completion."
The matter was continued on two subsequent occa-
sions4 and petitioner eventually appeared before the board on
May 15, 1985. In response to petitioner's attempt to clarify
his position with regard to the August 1984 order setting his
initial release date, the presiding board member, Aronson,
asked petitioner whether he wanted to be considered under
the matrix system. Petitioner responded no, adding that he
4 In the two orders continuing the matter, dated March 14, 1985, and April 24,
1985, the board used a form that recited petitioner's criminal history and risk
scores, factors that the board considers in deciding an initial release date under the
matrix.

624 	Gordon v. Board of Parole
considered himself to remain subject to the discretionary sys-
tem, because the earlier order setting his release date was
invalid. Aronson agreed with that assessment and then
asked petitioner whether he "want(ed] to go under the discre-
tionary system." Petitioner responded in the affirmative.
Aronson then presented petitioner with a document, explain-
ing that, if petitioner signed it, "we'll leave you under the dis-
cretionary system." Petitioner signed that document, and
Aronson recapitulated, "(Y]ou will note on the record that
[petitioner] now is (sic] chosen to remain under the discre-
tionary system. You are aware that you still have the option
to go back?" Petitioner again responded in the affirmative.
On May 20, 1985, the board issued an order stating
that 	petitioner 	"signed 	[an] 	application 	for 	purpose 	of
remaining under the Discretionary System" and setting a
parole hearing date of September 2005. In that order, the
board cited the criteria listed in former ORS 144.175 (1975).
The board later amended that order to include reference to a
review hearing in October 1986. In January 1986, the board
issued another order clarifying that the reason for the
October 1986 review hearing was that "[t]his inmate is under
the Discretionary System. That dictates that he must be seen
every two (2) YEARS." The board issued several additional
orders between January 1986 and December 1987, all con-
firming that petitioner remained subject to the discretionary
system.
In August 1988, petitioner signed and submitted
another request to be considered under the matrix system.
Again, the form that petitioner signed to effectuate that elec-
tion recited, "I am aware that once I choose to receive a firm
release date under the matrix, I cannot later request to be
considered under the 	former 	'discretionary' system." In
response to petitioner's election, the board conducted a hear-
ing on January 10, 1989, to determine whether to set an ini-
tial release date. A three-member majority of the board, after
considering petitioner's criminal history, the seriousness of
his crime, and various aggravating factors, set an initial
release date of March 15, 2000, following 294 months in
prison. One board member would have required petitioner to
serve 300 months in prison, and one member would have

Cite as
denied parole release entirely because of the particularly vio-
lent nature of petitioner's crimes.
In August 1989, the board advanced petitioner's
release date by seven months. ORS 144.122(l)(a) (permitting
the board to reset release date to an earlier date if it finds
that petitioner has demonstrated "an extended course of con-
duct indicating outstanding reformation"). The board set a
new release date of August 15, 1999.
In 1998, in anticipation of petitioner's upcoming
release, the board directed petitioner to be evaluated by a
psychologist, Dr. Page. Page provided a report of his evalua-
tion to the board. In that report, after describing petitioner's
crimes and personal history, Page stated that petitioner had
"programmed well" during his 22 years of incarceration, hav-
ing completed numerous college credits and career training
programs, and having undergone regular psychological and
sex offender counseling. 	Under behavioral observations,
Page stated, among other things, that petitioner was "logical,
coherent, well oriented, and showed intactness of recent and
remote memory." In a section entitled "Mental Status Exam,"
Page wrote that petitioner's
"self report was very well organized, bespeaking average or
higher intellect. His mood was normal to positive, with con-
gruent affect. [Petitioner] contributed to rapport and famil-
iarity through various gestures and anecdotes. There was
no indication of thought disorder, and he denied suicidal/
assaultive ideation. Insight may be adequate, and judge-
ment [sic] has been satisfactory under prison conditions."
In a section entitled "Treatment Summary," Page stated that
petitioner showed no psychopathology and no need for men-
tal health intervention, but that "[h]is crime appears to have
been the outgrowth of characterological dysfunction."
In assessing petitioner's risk to the community, with
reference both to petitioner's likelihood of reoffending and his
potential for violence, Page stated that he could not confi-
dently assess either of those things, notwithstanding peti-
tioner's apparent success in prison, because of the violent
nature of petitioner's crimes. Page observed, "As [petitioner)
states, his crime was a choice and I know of no measure for
confidently assessing whether he again would make similar

626 	Gordon v. Board of Parole
choices, if released." Page ultimately diagnosed petitioner
with alcohol dependence in remission, a personality disorder
NOS [not otherwise specified], with antisocial features, and a
GAF score of 95. GAF refers to the "Global Assessment of
Functioning" used in the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders 32-34
(4th ed 1994) (DSM IV). A score of 95 is in the top range for
such scores and reflects "[s]uperior functioning in a wide
range of activities, life's problems never seem to get out of
hand, is sought out by others because of his or her many pos-
itive qualities. No symptoms." DSM IV at 32. In conclusion,
Page offered,
"[Petitioner] presents no psychopathology in terms of psy-
chosis, neurosis, or subjective stress, which would warrant
deviation from standard penal policies related to his crime
and sentencing structure. I suggest that his readiness for
promotion be based on standard penal policies, presumably
related to his programming and crime. He shows no need
for mental health intervention, other than follow up for the
sexual offender and for chemical dependency."
In February 1999, based on that report, among other infor-
mation, the board determined that petitioner suffered from a
"severe emotional disturbance" rendering him dangerous.
Accordingly, 	the board, 	citing its 	authority under ORS
144.125(3), issued an order deferring petitioner's release on
parole for two years. 5
Petitioner sought 	administrative review 	of that
order on a number of grounds, including, as relevant here,
that the board did not have authority to defer his release date
on the basis of severe emotional disturbance because Page's
report did not support such a finding. In June 1999, the board
issued an order rejecting petitioner's challenge, citing a then-
recent Court of Appeals case, Weidner u. Armenakis, 154 Or
App 12, 959 P2d 623 (1998), withdrawn by order July 13,
1998, reasoning reaffirmed and readopted in Merrill 	u.
5 In that February 1999 order, the board provided the following statement in
explanation of the applicable law governing its decision: "The board has considered
this matter under the laws in effect at the time of the commitment offense(sl."That
clearly was an erroneous statement, insofar as "the laws in effect at the time of the
commitment offense" did not provide for matrix treatment at all.

Cite as
Johnson, 155 Or App 295, 964 P2d 284, rev den, 328 Or 40
(1998). 6 In Weidner, the Court of Appeals reviewed ORS
144.125(3) (1991), 7 which provided:
"If a psychiatric or psychological diagnosis of present severe
emotional disturbance such as to constitute a danger to the
health or safety of the community has been made with
respect to the prisoner, the board may order the postpone-
ment of the scheduled parole release until a specified future
date."
The Court of Appeals in Weidner had rejected the prisoner's
argument that the foregoing provision required the psycho-
logical or psychiatric diagnosis itself to include a determina-
tion that the prisoner suffered from a "present severe emo-
tional disturbance such as to constitute a danger to the
health or safety of the community." The court held that ORS
144.125(3) (1991), when read in context, did not require that
a psychologist or psychiatrist recite the words "present
severe emotional disturbance" in his or her diagnosis in order
for the board to defer parole release on that basis. The court
concluded that, although a psychiatric or psychological diag-
nosis is a prerequisite to the board's consideration whether
the statutory criteria for deferral have been met, the phrase
"present severe emotional disturbance" is a legal conclusion
and not a medical one, and, therefore, the decision whether a
prisoner suffers from such a condition was for the board to
make after considering all of the evidence in the record.
Weidner, 154 Or App at 17-20.
Relying on that Court of Appeals decision, the board,
in its June 1999 order in this case, stated that its review of
Page's report, together with its exit interview of petitioner
and other documents presented at the hearing, led it to con-
clude that petitioner suffered from a present severe emo-
tional disturbance such as to justify deferring his parole
release date for two years.
6 In discussing Weidner and Merrill in the text of this opinion, although Merrill
is the precedential case, we refer and cite to Weidner rather than Merrill, because
that is the case in which the Court of Appeals first announced its reasoning.
7 The 1991 version of ORS 144.125(3) is identical to the version in effect in 1988
and, with one minor exception that does not affect our analysis, is also the same as
that in effect in 1984.

Gordon v. 	of Parole
Meanwhile, in April 1999, the Court of Appeals had
issued another decision pertinent to petitioner's case, Peek v.
Thompson, 160 Or App 260, 980 P2d 178, rev dismissed, 329
Or 553 (1999). Peek also addressed the board's authority to
defer a release date under ORS 144.125(3) (1991). However,
in Peek, the inmate argued that an administrative rule, OAR
255-60-006 (1988), which the court had not considered in
Weidner or Merrill, controlled the board's parole release deci-
sions during the period that that rule was in effect, and that
rule made a psychiatric or psychological diagnosis that met
the statutory requirements essential to the board's decision
to defer an inmate's parole release date. The court in Peek
therefore analyzed OAR 255-60-006 (1988), which also was in
effect when petitioner in this case elected to be considered
under the matrix system in August 1988. 8 That rule pro-
vided, in part:
"(7) 	The Board may order a psychiatric/psychological
report anytime prior to release. If the record indicates that
a psychiatric or psychological condition of severe emotional
disturbance, such as to constitute a danger to the health or
safety of the community, is present, the Board may consider
deferring parole release until a specified future date.
"(8) 	If the evaluation does not make a finding of severe
emotional disturbance such as to constitute a danger to the
health or safety of the community, the Board shall affirm
the parole release date and set parole conditions."
(Emphasis added.) The Court of Appeals held that the board
had authority to adopt the foregoing rule, applicable to
parole, and that that rule expressly required the board to
affirm the parole release date unless the "evaluation" made
the finding that ORS 144.125(3) (1991) contemplated. Peek,
160 Or App at 264. According to the court, reading the word
"evaluation" in OAR 255-60-006(8) in context, it was appar-
ent that that word could only have referred to the psychiatric
or psychological report identified in OAR 255-60-006(7). Id.
at 264 n 3. Under that rule, then, the psychologist's or
psychiatrist's report must "permit the Board to find that the
" OAR 255-60-006 (1988) was in effect from May 19, 1988, when it was prom-
ulgated, through April 5, 1990, when it was amended.

Cite as 343 Or 	629
psychologist diagnosed [the inmate] as having a severe emo-
tional disturbance that constitutes a danger to the health or
safety of the community." Id. at 266. The Court of Appeals
stated that, in light of its earlier decision in Weidner, the
board was not required to adopt a rule applying that interpre-
tation of ORS 144.125(3) (1991), but that the rule clearly was
a permissible interpretation of the statute, as demonstrated
by the fact that the Court of Appeals had decided Weidner in
a five-four en bane decision, with the dissent taking the posi-
tion that a psychiatric or psychological diagnosis was a nec-
essary prerequisite to deferral. Id. 	at 265. And, having
adopted a rule limiting its discretion to defer parole release
dates to those cases where a psychiatrist or psychologist had
diagnosed an inmate with a present severe emotional distur-
bance, the Court of Appeals held, the board was required to
follow that rule during the time that that rule was in effect.
Id.
In response to the Court of Appeals decision in Peek,
the board, on its own motion, reconsidered its June 1999
order deferring petitioner's release date. On July 25, 2000,
the board issued another order explaining,
"In its [June 1999 order], the board applied the cases of
Merrill v. Johnson and Weidner v. Armenakis. Subse-
quently, the Court of Appeals issued its decision in Peek v.
Thompson. It is the board's policy for discretionary inmates
who opt into the matrix system to apply the rules in effect at
the time the inmate opts into the matrix system. [Peti-
tioner] opted into the matrix system on 8/27/88. The Peek
decision applies to the rules in effect when [petitioner)
opted into the matrix system. The board has now reconsid-
ered this case under the Peek decision. The board consid-
ered the psychological evaluation as a whole and finds that
it constitutes a finding of a present severe emotional distur-
bance such as to constitute a danger to the community."
The board then went on to point to various statements in
Page's report that it believed supported that conclusion. Ulti-
mately, the board concluded that it had properly deferred
petitioner's parole release date for 24 months under OAR
255-60-006 (1988).
Petitioner then filed a habeas corpus petition, chal-
lenging the postponement of his parole release date. The

Gordon v. Board of Parole
state defended that action on the ground that the conclusions
Page reached in his report were sufficient to trigger the
board's authority to defer petitioner's release date under
OAR 255-60-006 (1988), as the Court of Appeals interpreted
that rule in Peek (known by that time as the "Peek rule"). The
circuit court agreed with the state and dismissed the action
in February 2001. Petitioner appealed and, again, the state
defended on the same ground as it had in the circuit court.
The parties argued the appeal in February 2003.
While the habeas corpus proceeding was pending,
petitioner's two-year postponement had neared its end, and
the board conducted another exit interview. Another psychol-
ogist, Dr. Rubin, had evaluated petitioner and issued a
report. On May 2, 2001, the board again deferred petitioner's
release on parole for two years, reaffirming that petitioner,
having opted into the matrix system in 1988, was subject to
the Peek rule, but concluding that Rubin's report diagnosed
petitioner with a severe emotional disturbance, thereby trig-
gering its authority to defer petitioner's release again.
Petitioner requested administrative review of that
order, 9 and, in response, on May 29, 2001, the board issued
another order affirming its decision to defer petitioner's
release on parole. This time, however, the board offered an
entirely new explanation: according to the board, the Peek
rule did not apply to petitioner because he had first elected to
be considered under the matrix rules in 1984, before the Peek
rule had been promulgated, and under the 1984 rules, the
board was entitled to base its decision to defer petitioner's
release on all information available to it at the time of the
hearing. In reversing its reasoning, the board informed peti-
tioner that, because petitioner first attempted to opt into the
matrix system in 1984, the board was required to apply the
1984 rules, because "[i]t would be an equal protection viola-
tion to allow discretionary system offenders to intentionally
place themselves in a more favorable position for release
when other offenders cannot."
9 Petitioner argued that, although the board stated in that order that it was
applying the Peek rule to his case and that it based its decision to defer his release
date solely on the contents of the psychological evaluation, in actuality it also
improperly considered other factors.

Cite as 343 Or 618 	631
Thereafter, in April 2003, the board issued an order
announcing that it was withdrawing its July 2000 order,
which was then under advisement in the Court of Appeals in
petitioner's habeas corpus appeal, and moved the Court of
Appeals to hold that appeal in abeyance. The Court of
Appeals granted that motion.
In June 2003, the board issued a final order affirm-
ing its decision to defer petitioner's August 15, 1999, parole
release date. 10 In that order, the board stated that, on its own
motion, it was reconsidering its July 2000 order, in which it
had reconsidered an earlier order deferring the release date
in light of the Court of Appeals decision in Peek. In the June
2003 order, the board stated:
"In [the July 2000 order], the board erroneously applied the
rules in effect the second time [petitioner] opted into the
matrix system on August 27, 1988. This was incorrect.
[Petitioner] initially opted into the matrix system on
August 10, 1984. He then reconsidered and requested that
he be returned to the discretionary system on May 20, 1985.
On August 27, 1988, [petitioner] submitted a request to
once again have his case considered under the matrix sys-
tem. It is the board's policy, when an offender opts into the
matrix system on more than one occasion, to consider the
laws in effect at the time that the offender first opts in. The
board failed to do so in [petitioner's] case. To do otherwise
would allow offenders under the discretionary system to
place themselves in a more favorable position with regard
to the board's rules than they would otherwise be by opting
in and out of the matrix system."
As noted, petitioner sought judicial review of that
order, arguing that it represented an arbitrary and ad hoc
decision designed to avoid an outcome that the board did not
desire, viz., that petitioner be released on parole on his 1999
release date. Petitioner argued, further, that if that order
were invalidated, the board order effectively deferring his
parole release date is the July 2000 order, in which the board
applied the Peek rule to his case. And that order, according to
10 After the board issued that June 2003 order, the Court of Appeals dismissed
the habeas action as moot, on the ground that the effective order postponing peti-
tioner's release date was no longer the one under review in that habeas action.
Gordon v. Hill, 189 Or App 363, 76 P3d 150 (2003), rev den, 339 Or 280 (2004).

632 	Gordon v. Board of Parole
petitioner, also cannot stand, because the board's decision to
defer depended on the factually unsupportable conclusion
that Page's report contains a diagnosis of present severe emo-
tional disturbance.
We turn first to the question of the validity of the
board's June 2003 order. Orders of the board are subject to
judicial 	review 	under 	ORS 	144.335(1).11 	Under 	ORS
144.335(3), 12 the appellate court reviews those orders using
the standard of review set out in the Administrative Proce-
dures Act (APA), ORS 183.482(8). ORS 183.482(8), in turn,
provides:
"(a) 	The court may affirm, reverse or remand the
order. If the court finds that the agency has erroneously
interpreted a provision of law and that a correct interpre-
tation compels a particular action, it shall:
"(A) 	Set aside or modify the order; or
"(B) 	Remand the case to the agency for further action
under a correct interpretation of the provision oflaw.
"(b) 	The court shall remand the order to the agency if
it finds the agency's exercise of discretion to be:
"(A) 	Outside the range of discretion delegated to the
agency by law;
"(B) 	Inconsistent with an agency rule, an officially
stated agency position, or a prior agency practice, if the
inconsistency is not explained by the agency; or
"(C) 	Otherwise in violation of a constitutional or stat-
utory provision.
11 ORS 144.335(1) provides:
"A person over whom the State Board of Parole and Post-Prison Supervi-
sion exercises its jurisdiction may seek judicial review of a final order of the
board as provided in this section if:
"(a) The person is adversely affected or aggrieved by a final order of the
board; and
"tb) The person has exhausted administrative review as provided by board
rule."
12 ORS 144.335(3) provides:
"The order of the board need not be in any special form, and the order is
sufficient for purposes of judicial review if it appears that the board acted
within the scope of the board's authority. Tbe Court of Appeals may affirm,
reverse or remand the order on the same basis as provided in ORS 183.482(8)."

Cite as
"(c) 	The court shall set aside or remand the order ifit
finds that the order is not supported by substantial evi-
dence in the record. Substantial evidence exists to support a
finding of fact when the record, viewed as a whole, would
permit a reasonable person to make that finding."
This case requires us to decide whether the board, in its June
2003 order, exercised its discretion in a manner "inconsistent
with an agency rule, an officially stated agency position, or a
prior agency practice" and did not adequately explain the
inconsistency. ORS 183.482(8)(b)(B).
The standards of review set out in ORS 183.482(8)
reflect a legislative policy, embodied in the APA, that deci-
sions by administrative agencies be rational, principled, and
fair, rather than ad hoc and arbitrary. See generally Martin
v. Board of Parole, 327 Or 147, 957 P2d 1210 (1998) (requir-
ing board adherence to principles set out in ORS 183.482(8),
including principle that orders reflect rational connection
between agency's reasoning and its conclusions); Drew v.
PSRB, 322 Or 491, 499-500, 909 P2d 1211 (1996) ("in addi-
tion to the statutory requirement that findings be supported
by substantial evidence, agencies also are required to dem-
onstrate in their opinions the reasoning that leads the agency
from the facts that it has found to the conclusions that it
draws from those facts") (emphases in original). In Green v.
Hayward, 275 Or 693, 552 P2d 815 (1976), this court further
explained the reasons for such requirements:
"If there is to be any meaningful judicial scrutiny of the
activities of an administrative agency-not for the purpose
of substituting judicial judgment for administrative judg-
ment but for the purpose of requiring the administrative
agency to demonstrate that it has applied the criteria pre-
scribed by statute and by its own regulations and has not
acted arbitrarily or on an ad hoc basis-we must require
that its order clearly and precisely state what it found to be
the facts and fully explain why those facts lead it to the
decision it makes."
Id. at 706-08, quoting The Home Plate, Inc. v. OLCC, 20 Or
App 188, 190, 530 P2d 862, 863 (1975). Although the court in
Green was referring to the requirement in ORS 183.482(8)(c)
that agency orders be supported by substantial evidence,
that reasoning applies equally to our review of agency orders

634 	Gordon v. Board of Parole
under ORS 183.482(8)(b)(B). To summarize, then, we review
the board's June 2003 order, in the context of its earlier
orders in petitioner's case, to determine if the board's find-
ings, reasoning, and conclusions demonstrate that it acted in
a rational, fair, and principled manner in deciding to defer
petitioner's parole release.
In the two orders in petitioner's case that the board
issued before May 29, 2001, the board stated, "It is the
board's policy for discretionary inmates who opt into the
matrix system to apply the rules in effect at the time the
inmate opts into the matrix system." 13 Applying that policy,
in its July 25, 2000, and May 2, 2001, orders, the board stated
that petitioner, having elected to be treated under the matrix
system in August 1988, was subject to the Peek rule. Those
orders, then, reflect the board's interpretation of its stated
policy "to apply the rules in effect at the time the inmate opts
into the matrix system" to require the application of the rules
in effect at the time of an inmate's most recent, or effective,
election. At the least, they reflect an agency practice to do so.
However, in the June 2003 order under review in this pro-
ceeding, the board announced a policy under which it would
apply to parole release decisions the rules in effect the first
time an inmate opts into the matrix system. 14 That later
order, thus, is "inconsistent with an agency rule, an officially
stated agency position, or a prior agency practice." ORS
183.482(8)(b)(B).
The fact that the June 2003 order is inconsistent
with the board's earlier policy or practice does not make it
impermissible or unlawful, however. Rather, under ORS
183.482(8)(b)(B), an inconsistent order is subject to remand
by the court only "if the inconsistency is not explained by the
rn That policy also was expressed in an official statement the board issued on
June 8, 2000, entitled "Board Policy for Offenders Sentenced under the Discretion-
ary System who decide to have their case considered under the Matrix System":
''Effective immediately, all offenders sentenced under the discretionary
system who opt to have their case considered under the matrix system will
have the matrix rules in effect at the time of their decision applied to their
case.''
14 The board also used that new policy in its May 29, 2001, order, although
without announcing an official policy to do so.

Cite as 343 Or 618 	635
agency." We therefore turn to the explanations that the board
has offered to support the change in policy.
In the two orders applying and then announcing its
"policy" to apply the rules in effect at the time of the first elec-
tion for inmates who made multiple elections, the board gave
two similar but distinct reasons for doing so. The May 29,
2001, order declared that "it would be an equal protection vio-
lation to allow discretionary system offenders to intention-
ally place themselves in a more favorable position for release
when other offenders cannot." The June 2003 order, now on
review, eliminated the reference to "equal protection" and
stated, "to do otherwise would allow offenders under the dis-
cretionary system to place themselves in a more favorable
position with regard to the board's rules than they would
otherwise be by opting in and out of the matrix system."
The board's first rationale, based on equal protection,
which we take to be a reference to the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution, does not support its position. As this court
recently explained, "[a] classification that 'neither burdens a
fundamental right nor targets a suspect class' will satisfy the
Equal Protections clause 'so long as it bears a rational rela-
tion to some legitimate end.'" State v. Orueta, 343 Or 118,
127, 164 P3d 267 (2007) (quoting Romer v. Evans, 517 US
620, 631, 116 S Ct 1620, 134 L Ed 2d 855 {1996)). Here, the
board's choice was to apply the rules in place either when
petitioner opted into the matrix system temporarily in 1984
or permanently in 1988. Applying the latter set of rules nei-
ther burdens a fundamental right nor targets a suspect class,
and the board rationally could have concluded that applying
the rules in place when petitioner permanently opted into the
matrix system in 1988 would result in the same treatment as
other inmates corning into the matrix system on that date.
The board's stated rationale that equal protection required it
to apply the 1984 rules to petitioner is simply wrong.
The board's second rationale is equally weak. The
board's stated concern is that applying the 1988 rules in peti-
tioner's case would "allow offenders under the discretionary
system to place themselves in a more favorable position" by

Gordon v. Board of Parole
opting in and out of the matrix system. That statement, how-
ever, necessarily raises the question: compared to whom
would those inmates be in a more favorable position? Per-
haps the board is comparing discretionary inmates who opt
into the matrix system to inmates who have committed
crimes after the adoption of the matrix system. In that case,
however, the discretionary inmate, whether he or she has
elected matrix treatment once or multiple times, inherently
is in a "more favorable position" than a matrix offender. The
discretionary inmate is permitted to choose the time of his or
her election, whereas the matrix offender automatically is
subject to the rules in effect when he or she committed the
crime. A board rule that requires application of one set of
rules versus another set (be they the rules in effect at the
time of the first election or the rules in effect at the time of the
most recent election) does nothing to minimize or eliminate
that inequality. 15 If, on the other hand, the board is compar-
ing inmates in petitioner's position to potential future discre-
tionary inmates who opt into the matrix system more than
once, then the board's reasoning fails for the same reason
that the board's equal protection argument fails: It is entirely
within the board's control to avoid any potential unfairness
in the future, if and when the board is confronted with a
parole release decision for another inmate who has opted into
the matrix system more than once. The board has not shown
that treating petitioner as subject to the 1988 rules rather
than the 1984 rules actually or potentially would place him in
a more favorable position with respect to any other inmate. 16
The overarching theme of the board's argument in
support of its apparent change in policy is that the change
was necessary to correct an error:
'" The board could have avoided the unequal effect of permitting discretionary
inmates to select the timing of their elections by adopting a policy that would have
subjected all discretionary offenders to the same rules no matter when they opted
into the matrix system, or by requiring all discretionary inmates to elect within a
certain period of time after the adoption of the matrix system or lose the right to
elect, but the board apparently rejected those approaches.
16 The board has argued that there may be other inmates in petitioner's posi-
tion in the future, because, in 1985, the board repealed its rule prohibiting multiple
elections. It is unclear from the record how other discretionary inmates would
know about that change, however, in light of the fact that, as late as August 1988,
when petitioner opted into the matrix system the second time, the form that such
inmates were required to sign still contained the warning that multiple elections
were not permitted.

Cite as 343 Or 618 	637
"The board, since 2001, has consistently explained why
the correct standard to apply to petitioner's case is the 1984
standard. There is no inconsistency in its explanations.
Indeed, if the board had not withdrawn the 2000 order for
reconsideration, its decision would have been inconsistent
with its 'officially stated agency position,' in contravention
of ORS 183.482(8)(b)(B). * * * Had the board applied the
law in effect in 1988, when petitioner elected to proceed
under the matrix the second time, it would have violated its
policy and put petitioner in a more favorable position than
other prisoners-and committed the very violation that he
claims it has. Therefore, the board was entitled to rectify its
error on reconsideration."
In essence, the board is arguing that, because its second pol-
icy was inconsistent with its first, the board would violate the
APA unless it vitiated the earlier orders applying the first
policy. That is bootstrapping; it is not an adequate explana-
tion for the change in policy. It is apparent from the orders
that 	the 	board issued with respect to petitioner before
May 29, 2001, in which it applied the rules in effect when
petitioner made his 1988 election into the matrix system,
that there was no "error" until the board announced the new,
first-election-counts policy, in 2001. That new policy created
rather than corrected any arguable error in the earlier
orders.
We hold that the June 2003 order, reflecting the
board's "policy" to use the rules in effect at the time of an
inmate's first election, is inconsistent with a prior board prac-
tice and that the board has not offered a rational, fair, or prin-
cipled explanation for the inconsistency. In that order, then,
the board abused its discretion under ORS 183.482(8)(b)(B).
The Court of Appeals erred in affirming the board's order.
ORS 183.428(8)(b)(B) provides that, when an agency has
failed 	to adequately explain its change in position, the
reviewing "court shall remand the order to the agency." Pur-
suant to that statutory directive, we remand this case to the
board to permit it to provide, if it can, a rational, fair, and
principled explanation for departing from its practice ofrely-
ing on petitioner's 1988 election.
The decision of the Court of Appeals is reversed. The
order of the Board of Parole and Post-Prison Supervision is

638 	Gordon v. Board of Parole
reversed, and the case is remanded to the Board of Parole
and Post-Prison Supervision for further proceedings.