S058311, Opinion — State ex rel Engweiler v. Felton

592
Argued and submitted December 1, 2010, decision of the Court of Appeals in
Sopher v. Board of Parole, 233 Or App 178, 225 P3d 836 (2010) reversed; decision
of Court of Appeals in State ex rel Engweiler v. Powers, 232 Or App 214, 221 P3d
818 (2009) reversed and trial court's issuance of writ affirmed; decision of Court of
Appeals in State ex rel Sopher v. Washington, 233 Or App 228, 225 P3d 142 (2010)
affirmed in part and vacated in part September 1, 2011
STATE ex rel Conrad R. ENGWEILER,
Petitioner on Review,
v.
Aaron FELTON,
Chairperson of the Board of Parole
and Post-Prison Supervision,
Respondent on Review.
(CC 07Cl8859; CAA139059; SC S058311)
STATE ex rel Shane I. SOPHER,
Petitioner on Review,
v.
Michael WASHINGTON,
Chairperson of the Oregon Board of Parole
and Post-Prison Supervision,
Respondent on Review.
(CC 06C14844; CAA134157; SC S058373)
Shane I. SOPHER,
Petitioner on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review.
(CA A128108; SC S058327)
260P3d448
Prisoners were convicted in 1990 and 1992 of aggravated murders that they
committed when they were less than 17 years old, and they were each sentenced to
life in prison with the possibility of parole. In a rule challenge under ORS 183.400
and in two mandamus cases under ORS 34.110, prisoners challenged the applica-
tion to them of juvenile aggravated murder rules that the board promulgated in
1999, under which each was required to serve a lengthy term of incarceration and
then undergo a hearing to determine whether he is likely to be rehabilitated in
a reasonable period of time, before he would be considered for parole eligibility.
Held: (1) The board exceeded its statutory authority when it promulgated the juve-
nile aggravated murder rules, which required the prisoners to undergo an inter-
mediate review process before becoming eligible for parole; (2) the legislature pro-
vided the board with authority in ORS 144.120 (1989} and ORS 144.120 (1990) to

Cite as 350 Or 592 	593
determine initial release on parole for inmates like these who are serving indeter-
minate life sentences with the possibility of parole; (3) ORS 144.120(1) (1989)
imposed on the board a legal duty to conduct a parole hearing for Engweiler to set
an initial release date for him or explain why it chooses not to do so; and (4) ORS
144.120(1) (1990) entitles Sopher to a hearing at some point, but the board has no
present legal duty to conduct such a hearing.
The decision of the Court of Appeals in Sopher v. Board of Parole, 233 Or App
178, 225 P3d 836 (2010) is reversed. The decision of the Court of Appeals in State ex
rel Engweiler v. Powers, 232 Or App 214, 221 P3d 818 (2009) is reversed and the
trial court's issuance of the writ is affirmed. The decision of the Court of Appeals in
State ex rel Sopher v. Washington, 233 Or App 228, 225 P3d 142 (2010) is affirmed
in part and vacated in part.
On review from the Court of Appeals.*
Andy Simrin, Portland, argued the cause and filed the
brief for petitioner on review Conrad R. Engweiler. Kristina
Hellman, Federal Public Defender - District of Oregon,
Portland, argued the cause and filed the briefs for petitioner
on review Shane I. Sopher.
Jeremy C. 	Rice, 	Assistant Attorney 	General, 	Salem,
argued the cause for respondents on review Aaron Felton,
Chairperson of the Board of Parole and Post-Prison Super-
vision; Michael Washington, Chairperson of the Oregon
Board of Parole and Post-Prison Supervision; and Oregon
Board of Parole and Post-Prison Supervision. With him on
the briefs were John R. Kroger, Attorney General, and Mary
H. Williams, Solicitor General.
Before, De Muniz, Chief Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices.**
DE MUNIZ, C. J.
The decision of the Court of Appeals in Sopher v. Board of
Parole, 233 Or App 178, 225 P3d 836 (2010) is reversed. The
decision of the Court of Appeals in State ex rel Engweiler v.
* Appeal from Marion County Circuit Court, Paul J. Lipscomb, Judge. 232 Or
App 214, 221P3d818 (2009).
Appeal from Marion County Circuit Court, Don A Dickey, Judge. 233 Or
App 228, 225 P3d 142 (2010).
Judicial Review of Permanent Rules Adopted by the Oregon Board of
Parole and Post-Prison Supervision. 233 Or App 178, 225 P3d 836 (2010).
** Gillette, J., retired December 31, 2010, and did not participate in the deci-
sion of this case. Landau, J., did not participate in the consideration or decision of
this case.

594 	State ex rel Engweiler v. Felton
Powers, 232 Or App 214, 221P3d818 (2009) is reversed and
the trial court's issuance of the writ is affirmed. The decision
of the Court of Appeals in State ex rel Sopher v. Washington,
233 Or App 228, 225 P3d 142 (2010) is affirmed in part and
vacated in part.
Linder, J., 	dissented 	and 	filed 	an 	opinion in which
Kistler, J., joined.

Cite as 350 Or 592 	595
DE MUNIZ, C. J.
These three cases, which we have consolidated for
purposes of argument and opinion, involve one administra-
tive 	rule 	challenge (ORS 	183.400) and two 	mandamus
actions (ORS 34.110) brought by two prison inmates, each
convicted of aggravated murder that he committed when he
was less than 17 years of age.1
In the rule challenge brought by petitioner Sopher,
he contends that the board exceeded its statutory authority
when it promulgated administrative rules (the juvenile
aggravated murder, or JAM, rules) that provide for a parole
review hearing (rather than a parole hearing for the purpose
of setting an initial parole release date) after no fewer than
20 years of incarceration, at which time a person convicted of
juvenile aggravated murder may attempt to establish his or
her suitability for eventual parole. In Sopher's rule challenge
case, the Court of Appeals concluded that the board did not
exceed its statutory authority in promulgating those rules,
because 	ORS 	144.110(2)(b) and 	ORS 	163.105(2) to 	(4) 2
require the intermediate process established in the JAM
rules. Sopher v. Board of Parole, 233 Or App 178, 225 P3d
836 (2010) (Sopher II).
In the two mandamus cases, relators Engweiler and
Sopher each contend that the board was required under ORS
144.120(1) (1989) and ORS 144.120(1) (1991), respectively, to
conduct a parole hearing and set an initial parole release
date for each of them. In each case, the Court of Appeals held,
among 	other things, 	that 	ORS 	144.110(2)(b) 	and 	ORS
163.105(2) to (4) obviate any requirement in ORS 144.120(1)
(1989) or ORS 144.120(1) (1991) that the board conduct such
a hearing or set an initial release date for juvenile aggra-
vated murderers. State ex rel Engweiler v. Powers, 232 Or
App 214, 221 P3d 818 (2009) (Engweiler Vl);3 State ex rel
1 Throughout this opinion, we refer to inmates who committed aggravated
murder when they were less than 17 years of age, collectively, as "juvenile aggra-
vated murderers."
We set out the text of the pertinent statutes later in this opinion.
3 As we discuss in more detail below, Engweiler has appeared before the Court
of Appeals and this court multiple times since his incarceration in 1991, resulting
in, as pertinent to this case, six separate judicial opinions. For convenience and for
clarity, we set them all out here, with reference numbers based on their order of
initial publication:

596 	State ex rel Engweiler v. Felton
Sopher v. Washington, 233 Or App 228, 225 P3d 142 (2010)
(Sopher IIn.
The common denominator in the three cases is the
applicability 	to juvenile 	aggravated 	murderers 	of ORS
144.110(2)(b) and ORS 163.105(2) to (4). For the reasons set
forth below, we conclude that ORS 144.110(2)(b) and ORS
163.105(2) to (4) do not apply to juvenile aggravated murder-
ers. For that reason and others explained below, we also con-
clude that the board exceeded its statutory authority when it
promulgated rules requiring juvenile aggravated murderers
to undergo the intermediate review process described in ORS
163.105(2) to (4) before the board makes parole release deci-
sions regarding them. Finally, we conclude that the legisla-
ture provided the board with authority in ORS 144.120(1)
(1989) and ORS 144.120(1) (1991) to determine initial release
on parole for inmates like these who are serving an indeter-
minate sentence of life imprisonment with the possibility of
parole. We also conclude that ORS 144.120(1) (1989) imposed
on the board a legal duty to conduct a parole hearing for
Engweiler to set an initial release date for him or explain why
it chooses not to do so. As to Sopher, we hold that ORS
144.120(1) (1999) entitles him to a hearing at some point to
set an initial parole release date, but that the board has no
present legal duty to conduct such a hearing and, therefore,
Sopher does not have a remedy in mandamus. We therefore
reverse the Court of Appeals decision in Engweiler VI,
reverse the Court of Appeals decision in Sopher II, and affirm
~-------------···---
1. State v. Engweiler, 118 Or App 132, 846 P2d 1163, rev den, 317 Or 486
(1993) (Engweiler I).
2. Engweiler v. Board of Parole, 197 Or App 43, 103 P3d 1201 (2005)
(Engweiler II).
3. Engweiler v. Board of Parole, 340 Or 361, 133 P3d 910 (2006) (Engweiler
Ill).
4. State ex rel Engweiler v. Cook, 340 Or 373, 133 P3d 904 (2006) (Engweiler
JV).
5. Engweiler v. Board ofParole, 343 Or 536, 175 P3d 408 (2007) (Engweiler V).
6. Sta.le ex rel Engweiler v. Powers, 232 Or App 214, 221 P3d 818 (2009)
<Engweiler VI).
After Engweiler filed his petition for review of the Court of Appeals decision in
Engweiler VI, the Court of Appeals granted the board's motion to amend the case
caption to reflect that Aaron Felton is now the board's chairman.

Cite as 350 Or 592 	597
in part and vacate in part the Court of Appeals decision in
Sopher Ill. 4
I. 	BACKGROUND
We briefly summarize the factual and procedural
background of each of the petitioners' cases. Engweiler com-
mitted aggravated murder in 1990, when he was 15 years
old. He was tried as an adult, and, on his conviction, the trial
court imposed a life sentence with a 30-year mandatory min-
imum term of imprisonment under ORS 163.105(1)(c) (1989).
Engweiler appealed, arguing, among other things, that the
sentence that the trial court imposed was unlawful, because
ORS 161.620 (1989) prohibited trial courts from imposing a
mandatory minimum sentence on any person who was
remanded from the juvenile court and was under 17 years of
age at the time that he committed the crime for which he was
remanded. The Court of Appeals agreed with that argument
and vacated the sentence. State v. Engweiler, 118 Or App
132, 	136, 	846 	P2d 	1163, 	rev 	den, 	317 	Or 	486 	(1993)
(Engweiler [). In 1994, Engweiler was resentenced to life in
prison.
Sopher committed 	aggravated 	murder 	in 	1992,
when he was 16 years old. He, too, was remanded from the
juvenile court and tried as an adult. Upon his aggravated
4 In a second claim for relief in Sopher's petition for writ of mandamus, Sopher
alleged that the board's application of the JAJ.\i rules, as to him, was unlawful in
various respects and that the board had a nondiscretionary duty to correct the
errors. The trial court mischaracterized Sopher's argument as a contention that
the board did not have discretion to adopt the JAJY[ rules, and it denied relief on the
ground that mandamus «will not lie to challenge the Board's exercise of discretion."
On appeal, the board conceded that the trial court erred in dismissing Sopher's
claim on that ground, and the Court of Appeals accepted that concession. Sopher
Ill, 233 Or App at 238. The Court of Appeals therefore reversed the trial court's dis-
missal of Sopher's second claim and remanded the case in part for reconsideration
on that ground. Id. Neither Sopher nor the board addresses that issue in this court.
However, because we hold that the board has a duty to conduct a parole release
hearing on Sopher's behalf under ORS 144.120(1)(a) (1991), and that the board
exceeded its statutory authority in promulgating the JMf rules, it is unnecessary
to remand this case to the board for consideration of whether the board incorrectly
applied the JAJYf rules to Sopher. For that reason, we vacate that part of the Court
of Appeals decision reversing the trial court's dismissal of Sopher's second claim
and remanding that claim to the board for reconsideration.

598 	State ex rel Engweiler v. Felton
murder conviction, the trial court imposed a sentence of life
in prison.
In State ex rel Engweiler v. Cook, 340 Or 373, 380-81,
133 P3d 904 (2006) (Engweiler IV), this court explained that,
at the time Engweiler committed his crime, a sentence oflife
in prison was:
"an indeterminate sentence [which] state[s] only a maximum
term to be served under the jurisdiction of the Department
of Corrections. Such a sentence did not establish the length
of time that a defendant was to be incarcerated."
And, with regard to an indeterminate sentence, the legisla-
ture had granted authority to the Executive Branch to estab-
lish an inmate's actual duration of imprisonment, using a
parole matrix that the legislature directed the board to cre-
ate. Id. at 381; Or Laws 1977, ch 372, § 2.
Oregon had an indeterminate sentencing scheme
before 1989 and used a parole matrix system for establishing
the actual term of imprisonment for most felony offenders.
340 Or at 831. In 1989, the legislature replaced that scheme
with a new "guidelines" sentencing scheme, under which the
Judicial Branch (judges) are required to impose determinate
sentences-defined presumptive punishments, based on sen-
tencing guidelines that were created by the State Sentencing
Guidelines Board and later approved by the state legislature
-for most felony convictions. Under the guidelines scheme,
judges have little discretion to deviate from the guidelines
ranges and criminal defendants subject to guidelines sen-
tencing are not eligible for release on parole. Id.; Engweiler v.
Board of Parole, 343 Or 536, 540-41, 175 P3d 408 (2007)
(Engweiler V).
However, 	juvenile 	aggravated 	murderers 	like
Engweiler and Sopher continued to receive life sentences
until 1995. Engweiler IV, 340 Or at 381-82 (inmates who
committed aggravated murder after November 1, 1989, but
who were juveniles at the time of their crimes continued to
receive indeterminate sentences and the board set their
terms of incarceration); Engweiler V, 343 Or at 545 (juvenile
aggravated murderers 	are 	entitled to the 	possibility of
parole).

Cite as 350 Or 592 (2011) 	599
Although juvenile aggravated murderers were enti-
tled to the possibility of parole after 1989, the board had no
rules governing parole decisions for them. See Engweiler V,
343 Or at 548 (board rules "contained a void" with respect to
juvenile aggravated murderers). In 1999, to address that sit-
uation, the board promulgated a set of administrative rules
to be applied to determine whether and when to grant parole
release to juvenile aggravated murderers. Those rules are
known 	as 	the 	JAM 	rules. 	As 	this 	court 	explained 	in
Engweiler V,
"[T]he JAM rules require the board to hold an initial 'prison
term hearing' for juveniles convicted of murder who were
under age 17 at the time of the offense. OAR 255-032-
0005( 4) (1999). At that hearing, the hoard sets 'a review
date * * * rather than a projected parole release date.' Id.
Alternatively, the board may 'deny parole' altogether. OAR
255-032-0011(2) (1999). If the board opts to set a review
date, it does so based on a parole release matrix that it
adopted specifically for juvenile aggravated murderers who
are eligible for parole consideration. Id. (cross-referencing
Exhibit P-III). Essentially, that matrix establishes ranges
of time periods that dictate whether and when a juvenile
aggravated murderer will be reviewed for parole eligibility
and will receive a parole release date. At the low end, the
matrix can result in a review date between 240 and
300 months. Id. At the high end, it can result in a 'life' term,
which is a denial of parole. Id. The review date then triggers
a schedule for further board review of the inmate's institu-
tional conduct and rehabilitation efforts, after which the
board may establish a parole release date under the matrix
or may set another review date at which it will further
review the inmate's conduct and rehabilitation efforts. OAR
255-032-0011(6)-(7) (1999); see also State ex rel Engweiler,
340 Or at 383 (so concluding). If the board denies parole, the
inmate is not totally foreclosed from future parole consid-
eration. Rather, after 480 months, the inmate may petition
the board for further review, and then may continue to do so
periodically. OAR 255-032-0011(5), (7) (1999)."
343 Or at 549. Pursuant to the JAM rules, the board con-
ducted a prison term hearing for Engweiler in June 1999 and
set a review date for him in 2030, after 480 months (40 years)
of incarceration. The board conducted a prison term hearing
for 	Sopher in August 1999, and set a review date for

600 	State ex rel 	v. Felton
him in 2025, after 400 months (33 years and 4 months) of
incarceration.
Subsequently, 	both Engweiler and 	Sopher peti-
tioned for judicial review of the board orders setting their
review dates. In each case, the Court of Appeals held that the
board's order setting the review date was not subject to judi-
cial review. Engweiler v. Board of Parole, 197 Or App 43, 103
P3d 1201 (2005) (Engweiler I[); Sopher v. Board of Parole,
197 Or App 118, 103 P3d 683 (2005) (Sopher[).
Engweiler petitioned for review, 	and this court
affirmed the Court of Appeals decision in his case. Engweiler
v. Board of Parole, 340 Or 361, 133 P3d 910 (2006) (Engweiler
Ill).
Sopher took a different tack. In 2005, he initiated a
rule challenge in the Court of Appeals under ORS 183.400,
which permits such actions but limits judicial review to an
examination of the rule under review, the statutory provi-
sions authorizing the rule, and the documents demonstrating
compliance with applicable rulemaking procedures. 5 Sopher
argued that, by requiring juvenile aggravated murderers to
complete an intermediate review process before the board
As pertinent here, ORS 183.400 provides:
"( 1) The validity of any rule may be determined upon a petition by any per-
son to the Court of Appeals in the manner provided for review of orders in con-
tested cases. The court shall have jurisdiction to review the validity of the rule
whether or not the petitioner has first requested the agency to pass upon the
validity of the rule in question, but not when the petitioner is a party to an
order or a contested case in which the validity of the rule may be determined by
a court.
"* * * * *
"(3) Judicial review of a rule shall be limited to an examination of:
"(a) The rule under review;
"(b) The statutory provisions authorizing the rule; and
"(c) Copies of all documents necessary to demonstrate compliance with
applicable rulemaking procedures.
"( 4) The court shall declare the rule invalid only if it finds that the rule:
"(a) Violates constitutional provisions;
"(b) Exceeds the statutory authority of the agency; or
"(c) Was adopted without compliance with applicable rulemaking
procedures."

Cite as 350 Or 592 	601
considers them for parole eligibility, the JAM rules imper-
missibly deprive juvenile aggravated murderers of the imme-
diate parole release eligibility that ORS 161.620 guarantees
them. Specifically, he argued that the board relied on ORS
144.110(2)(b) (1997), ORS 163.105(1) (1997), ORS 144.780
(1997), and ORS 161.620 (1994) in promulgating the JAM
rules, but that none of those statutes authorized the board to
require that intermediate review process for juvenile aggra-
vated murderers.
While that rule challenge was pending in the Court
of Appeals, both Engweiler and Sopher also brought the
instant mandamus actions to compel the board to conduct
hearings and establish initial release dates for both of them
under ORS 144.120(1)(a) (1989) (in Engweiler's case) and
ORS 144.120(1)(a) (1991) (in Sopher's). 6
In his mandamus action, Engweiler argued that
ORS 144.120(1)(a) (1989) required that process in his case.
That statute provided:
"Within six months of the admission of a prisoner to any
Department of Corrections institution, with the exception
of those prisoners sentenced to a term of imprisonment for
life or for more than five years, the board shall conduct a
parole hearing to interview the prisoner and set the initial
date of release on parole pursuant to subsection (2) of this
section. For those prisoners sentenced to a term of impris-
onment for more than five years but less than 15 years, the
board shall conduct the parole hearing and set the initial
date of release within eight months following admission of
the prisoner to the institution. For those prisoners sen-
tenced to a term of imprisonment for life or for 15 years or
more, the board shall conduct the parole hearing, and shall
set the initial release date, within one year following admis-
sion of the prisoner to the institution. Release shall be con-
tingent upon satisfaction of the requirements of ORS
144.125."
In their petitions for writs of mandamus, Engweiler and Sopher alleged,
among other things, that the board failed to perform its nondiscretionary, statu-
tory duty to conduct an initial parole release hearing and set an initial parole
release date, that the board had established a parole release date for other juvenile
aggravated murderers, and that the board's failure to set an initial release date for
them violated their constitutional rights in various respects.

602 	State ex rel Engweiler v. Felton
(Emphasis added.) Engweiler argued that the wording in the
foregoing statute is mandatory and gave the board no discre-
tion to decline to conduct a hearing and set an initial release
date. The board replied that, in 1991, ORS 144.120(1)(a) was
amended to exclude offenders who were sentenced for mur-
der or aggravated murder,7 and that the 1991 version of the
statute applied to Engweiler because he was resentenced in
1994. Engweiler responded that application of the 1991 ver-
sion of the statute to him would violate constitutional ex post
facto prohibitions. The board countered that the amendment
was procedural rather than substantive and, therefore, that
the amended statute constitutionally could be applied in
Engweiler's case. The trial court rejected the board's argu-
ment; it concluded that the 1989 version of the statute
applied to Engweiler and that that statute required the board
to conduct a hearing and set an initial release date. Accord-
ingly, the trial court issued a writ directing the board to hold
a hearing and set an initial release date as provided in that
statute.
The board appealed that ruling to the Court of
Appeals. On appeal, the board repeated its argument that
the 1991 version of ORS 144.llO(l)(a) applied in Engweiler's
case because he had been resentenced in 1994, and that that
statute clearly excluded those sentenced for aggravated mur-
der from the hearing requirement. In addition, the board
argued that, even ifthe 1991 version did not apply, the 1989
version did not mandate a hearing in Engweiler's case,
because ORS 144.120 is qualified by another, related statute,
ORS 144.110(2)(b), which provided that ORS 144.120 (1989)
did not apply to prisoners who had been convicted of aggra-
vated murder.
The Court of Appeals reversed. That court did not
address whether the 1991 or 1989 version of ORS 144.120
applied, because it agreed with the board's second argument.
7 In 1991, the italicized sentence in ORS 144.120(1)(a) (1989), above, was
amended to read as follows:
"For those prisoners sentenced to a term of imprisonment for life or for
15 years or more, with the exception of those sentenced for aggravated murder,
the board shall conduct the parole hearing, and shall set the initial release
date, within one year following admission of the prisoner to the institution."
Or Laws 1991, ch 126, § 6 (emphasis added).

Cite as 350 Or 592 (2011) 	603
The Court of Appeals observed that "ORS 144.110(2)(b)
(1989) operated as an exception to ORS 144.120(1)(a) (1989)."
Engweiler VI, 232 Or App at 223. ORS 144.110(2)(b) (1989)8
provided:
"Notwithstanding the provisions of ORS 144.120 [relat-
ing to parole hearings and the setting of initial parole
release dates] and 144.780 [directing the board to promul-
gate rules establishing the parole matrix]:
"* * * * *
"(b) 	The board shall not release a prisoner on parole
who has been convicted of murder defined as aggravated
murder under the provisions of ORS 163.095, except as pro-
vided in ORS 163.105."
ORS 163.105 (1989) 9 provided, in turn, as follows:
"Notwithstanding the provisions of ORS chapter 144
[relating generally to parole and work release], ORS
421.165 [relating to temporary leave] and ORS 421.450 to
421.490 [relating to forest and work camps]:
"(1) 	When a defendant is convicted of aggravated mur-
der as defined by ORS 163.095, the defendant shall be sen-
tenced, pursuant to ORS 163.150, to death, life imprison-
ment without the possibility of release or parole or life
imprisonment.
"* * * * *
"(c) 	If sentenced to life imprisonment, the court shall
order that the defendant shall be confined for a minimum of
30 years without possibility of parole, release on work
release or any form of temporary leave or employment at a
forest or work camp.
"(2) 	At any time after 20 years from the date of impo-
sition of a minimum period of confinement pursuant to par-
agraph (c) of subsection (1) of this section, the State Board
of Parole and Post-Prison Supervision, upon the petition of
8 ORS 144.110 (1989) was identical in all material respects to ORS 144.110
(1991). For convenience, we refer at all times in this opinion to the 1989 version of
ORS 144.110.
9 ORS 163.105 (1989) was identical in all material respects to ORS 163.105
(1991). For convenience, we refer at all times in this opinion to the 1989 version of
ORS 163.105.

604 	State ex rel Engweiler v. Felton
a prisoner so confined, shall hold a hearing to determine if
the prisoner is likely to be rehabilitated within a reasonable
period of time. The sole issue shall be whether or not the
prisoner is likely to be rehabilitated within a reasonable
period of time. * * *.
"(3) 	If, upon hearing all of the evidence, the board,
upon a unanimous vote of all five members, finds that the
prisoner is capable of rehabilitation and that the terms of
the prisoner's confinement should be changed to life impris-
onment with the possibility of parole, or work release, it
shall enter an order to that effect and the order shall con-
vert the terms of the prisoner's confinement to life impris-
onment with the possibility of parole or work release.
Otherwise, the board shall deny the relief sought in the
petition.
"(4) 	Not less than two years after the denial of the
relief sought in a petition under this section, the prisoner
may petition again for a change in the terms of confine-
ment. Further petitions for a change may be filed at inter-
vals of not Jess than two years thereafter."
The 	Court 	of Appeals 	noted 	that, 	on 	its 	face, 	ORS
144.110(2)(b) appeared directly applicable to 	Engweiler.
Engweiler VI, 232 Or App at 223.
However, the court acknowledged, ORS 161.620
(1989), 10 which limited courts' sentencing options for juvenile
aggravated murderers, rendered parts of ORS 163.105 inap-
plicable to juvenile aggravated murderers. ORS 161.620
provided:
"Notwithstanding any other provision of law, a sentence
imposed upon any person remanded from the juvenile court
under fformerJ ORS 419.533 [(1989)) shall not include any
sentence of death or life imprisonment without the possibil-
ity of release or parole nor imposition of any mandatory
minimum sentence except that a mandatory minimum sen-
tence under ORS 163.105(1)(c) shall be imposed where the
person was 17 years of age at the time of the offense."
10 The 1989 version of ORS 161.620 is identical to the version in effect in 1991,
when Sopher commjtted his crime. For convenience, we refer at all times in this
opinion to the 1989 version of ORS 161.620.

Cite as 350 Or 592
Engweiler had argued that that statute irreconcilably con-
flicted with the application of ORS 144.110 and ORS 163.105
to juvenile aggravated murderers, because the assumption
underlying the latter two statutes-that an aggravated mur-
derer will be sentenced to no less than a 30-year mandatory
minimum term of imprisonment-does not apply to juve-
niles, and, therefore, the parole release process set out in
ORS 163.105(2) to (4) cannot apply either. The Court of
Appeals rejected that argument, concluding that it was pos-
sible to harmonize all the applicable statutes. That court rea-
soned that ORS 161.620 was a directive to the sentencing
courts limiting the types of sentences that may be imposed
for the crime of aggravated murder when committed by a
juvenile under the age of 17:
"[That statute] said nothing, however, about the authority
of the board to implement the remaining portions of the
statute concerning release decisions, as set out in ORS
163.105(2) to (4) (1989). * * * In other words, merely
because a court may not impose a particular sentence men-
tioned in ORS 163.105(1) does not necessarily require the
conclusion that the board does not remain subject to the
requirements of the balance of the statute with respect to
juvenile aggravated murderers."
Engweiler VI, 232 Or App at 227 (emphasis in original).
According to 	the 	Court of Appeals, 	the 	parts 	of ORS
163.105-subsections (2) and (3)-that provide for the con-
version by the board of a 30-year mandatory minimum sen-
tence for aggravated murderers who have shown that they
are capable of rehabilitation are not in conflict with ORS
161.620, which merely states that trial courts cannot impose
mandatory minimum sentences on juvenile aggravated mur-
derers. Id. at 227-28.
Finally, the Court of Appeals rejected Engweiler's
argument that ORS 163.105(2) to (4) are inapplicable to his
case because they provide for the "conversion" of a mandatory
minimum sentence to a sentence oflife imprisonment, and he
already is serving such a sentence. The court disagreed,
stating,
"An assumption implicit in [Engweiler's] argument is that
the existence of some measure of redundancy in one or more
statutes necessarily establishes an irreconcilable conflict

606 	State ex rel Engweiler v. Felton
between them. The assumption simply is not consistent
with relevant case law. * * * Particularly-as in this case-
when the alternative to accepting a measure of redundancy
in legislation is to hold that some portion of a statute simply
does not mean what it says, the courts routinely hold in
favor of allowing for the redundancy."
Id. at 228. The Court of Appeals concluded that the focus of
ORS 163.105(2) and (3) is on the board's obligation to deter-
mine the prisoner's rehabilitation status, and the mandate in
those subsections for the board to "convert" the terms of the
prisoner's confinement "is insufficient to nullify that purpose
and the relevant procedures." Id. at 229.
As noted, Sopher also sought a writ of mandamus to
compel the board to conduct a hearing and set an initial
release date for him. In Sopher's case, the 1991 version of the
statute clearly applied. The trial court in his case concluded
that the board had no duty under that statute to set a parole
release 	date, 	because 	the 	1991 	version 	of the 	statute
expressly excluded offenders convicted of aggravated mur-
der. Sopher appealed, and the Court of Appeals affirmed the
trial court's ruling. That court agreed that ORS 144.120(1)(a)
(1991) did not require a hearing or parole release date for any
person who had been convicted of aggravated murder, and it
noted that, in any event, in Engweiler VI, it held that juvenile
aggravated murderers were subject to the aggravated mur-
der review hearing process set out in ORS 144.110(2)(a) and
ORS 163.105, and not the initial parole hearing process set
out in ORS 144.120(1)(a). 11 Sopher III, 233 Or App at 236.
In Sopher's rule challenge, the Court of Appeals
rejected Sopher's argument that the board exceeded its stat-
utory authority in promulgating the JAM rules, for the same
reasons that it rejected Engweiler's arguments in Engweiler
11 As discussed in note 4, above, the Court of Appeals also accepted the state's
concession that the trial court erred in dismissing Sopher's second claim for relief
and reversed in part the trial court's ruling on that ground.
In addition, Sopher made certain other arguments in the Court of Appeals
revolving around a central claim that the board's refusal to give him a hearing
under ORS 144.120(1)(a) (1991) violates various of his state and federal constitu-
tional rights. The court rejected those arguments without extended discussion.
Sopher II, 233 Or App at 180. In light of our holding that Sopher is entitled t-0 a
hearing under ORS 144.120(1)(a) (1991), we need not reach those issues.

Cite as 350 Or 592 (2011) 	607
VI. That is, the court stated that it held in Engweiler VI that,
"consistently with ORS 161.620, juvenile aggravated mur-
derers are subject to the standards and procedures described
in ORS 144.110(2)(b) and ORS 163.105(2) to (4)." Sopher II,
233 Or App at 186. And, for that reason, the court held, the
JAM rules, which implemented those standards and proce-
dures, did not exceed the board's statutory authority under
ORS 161.620. Id.
II. 	DISCUSSION
At the outset, we believe it is important to keep in
mind, as we have set out above, that this court is not writing
on a clean slate. As noted, this court has addressed issues
regarding Engweiler's sentence and incarceration on three
previous occasions. Thus, with regard to Engweiler directly,
and with regard to Sopher as a matter of precedent, the fol-
lowing legal principles are already established.
First, 	in 	Engweiler 	IV, 	this 	court 	described
Engweiler's sentence as "life imprisonment with the possibil-
ity of release or parole" and observed that Engweiler was in
the same position as an inmate serving an indeterminate
sentence before the adoption of the guidelines sentencing
scheme: The board is responsible for determining the actual
duration of his imprisonment. 340 Or at 383.
Second, in Engweiler V, this court concluded that the
"[n]otwithstanding any other provision of law" clause at the
beginning of the text of ORS 161.620 (1989) means
"that the terms of ORS 161.620 (1989) prevailed over 'any
other provision oflaw.' In other words, the notwithstanding
clause 'ma[kes] it irrelevant that ORS 144.110(2)(b) (1989)
and ORS 163.105(1) (1989) each mandated a minimum sen-
tence of 30 years without the possibility of parole for any
person convicted of aggravated murder and made no excep-
tion for persons who were juveniles under the age of 17
when they committed [aggravated murder]."
343 Or at 544.
Third, in Engweiler V, the court also observed, as it
had earlier in Engweiler IV, that juvenile aggravated mur-
derers are "a small class of inmates who continued to receive

608 	State ex rel Engweiler v. Felton
indeterminate sentences," Engweiler N, 340 Or at 381, and
who are entitled to parole consideration:
"ORS 161.620 (1989) trumped [ORS 144.110(2)(b) (1989)
and ORS 163.105(1) (1989)] by precluding imposition of the
30-year mandatory minimum sentence otherwise author-
ized by ORS 163.105(1) (1989) for juveniles who were under
age 17 when they committed aggravated murder. Conse-
quently, petitioners must be entitled to the possibility of
parole."
Engweiler V, 343 Or at 545 (emphasis added).
Finally, in Engweiler V, this court observed that
when Engweiler committed his crime, "none of the board's
existing rules provided either procedural or substantive
mechanisms to determine whether and when to parole juve-
nile aggravated murderers." Id. at 546.
Based on the foregoing, to resolve the rule challenge
and the mandamus cases, this court must decide two ques-
tions with regard to each inmate: To what extent has the leg-
islature granted the board authority to make parole release
decisions in the case of juvenile aggravated murderers like
these inmates? And, if the legislature has granted the board
authority to make parole release decisions in these cases,
what release procedures and criteria did the legislature
intend for the board to apply with regard to each inmate?
To answer those questions, we first examine ORS
163.105, which grants the Executive Branch, through the
board, 	release 	authority regarding inmates convicted of
aggravated murder and sentenced to life imprisonment with
a minimum period of confinement of 30 years without the
possibility of parole. We begin with that statute because the
Court of Appeals concluded that ORS 163.105(2) to (4) apply
to juvenile aggravated murderers, and thus authorized the
board to adopt the JAM rules implementing release proce-
dures that mirror, in many respects, the statutory require-
ments set out in ORS 163.105. For convenience, we set out
the pertinent parts of ORS 163.105 again here:
"Notwithstanding the provisions of ORS chapter 144 [relat-
ing to parole and work release], ORS 421.165 [relating to

Cite as 350 Or 592
temporary leave] and ORS 421.450 to 421.490 [relating to
forest and work camps]:
"(1) 	When a defendant is convicted of aggravated mur-
der as defined by ORS 163.095, the defendant shall be sen-
tenced, pursuant to ORS 163.150, to death, life imprison-
ment without the possibility of release or parole or life
imprisonment.
''* * * * *
"(c) 	If sentenced to life imprisonment, the court shall
order that the defendant shall be confined for a minimum of
30 years without possibility of parole, release on work
release or any form of temporary leave or employment at a
forest or work camp.
"(2) 	At any time after 20 years from the date of impo-
sition of a minimum period of confinement pursuant to par-
agraph (c) of subsection (1) of this section, the State Board
of Parole and Post-Prison Supervision, upon the petition of
a prisoner so confined, shall hold a hearing to determine if
the prisoner is likely to be rehabilitated within a reasonable
period of time. The sole issue shall be whether or not the
prisoner is likely to be rehabilitated within a reasonable
period of time.***.
"(3) 	If, upon hearing all of the evidence, the board,
upon a unanimous vote of all five members, finds that the
prisoner is capable of rehabilitation and that the terms of
the prisoner's confinement should be changed to life impris-
onment with the possibility of parole, or work release, it
shall enter an order to that effect and the order shall con-
vert the terms of the prisoner's confinement to life impris-
onment with the possibility of parole or work release.
Otherwise, the board shall deny the relief sought in the
petition.
"(4) 	Not less than two years after the denial of the
relief sought in a petition under this section, the prisoner
may petition again for a change in the terms of confine-
ment. Further petitions for a change may be filed at inter-
vals of not less than two years thereafter."
Subsection (1) of ORS 163.105 is a directive to the
Judicial Branch delineating three potential sentences that a
trial court could impose for the crime of aggravated murder:
death, life imprisonment without the possibility of parole

610 	State ex rel Engweiler v. Felton
(known as "true life"), and life imprisonment. For those
defendants convicted of aggravated murder and sentenced by
the trial court to life imprisonment, ORS 163.105(1)(c) fur-
ther requires that the trial court order the defendant to serve
a mandatory minimum sentence of 30 years without the pos-
sibility of parole or work release.
As we already have discussed, at the time that
Engweiler and Sopher committed their crimes, those sen-
tencing options applied only to adult aggravated murderers.
That is so, because another statute, ORS 161.620, limited the
trial courts' sentencing options for juvenile offenders. Again,
for convenience, we set out ORS 161.620 here:
"Notwithstanding any other provision of law, a sentence
imposed upon any person remanded from the juvenile court
under [former] ORS 419.533 [(1989)] shall not include any
sentence of death or life imprisonment without the possibil-
ity of release or parole nor imposition of any mandatory
minimum sentence except that a mandatory minimum sen-
tence under ORS 163.105(1)(c) shall be imposed where the
person was 17 years of age at the time of the offense."
(Emphasis added.) Also, as explained earlier, this court has
stated that the "notwithstanding" clause in that statute
means that the terms of ORS 161.620 "prevail[] 'over any
other provision of law,' "Engweiler V, 343 Or at 544, includ-
ing, as relevant in this case, ORS 163.105. ORS 161.620 pro-
vides that no juvenile can be sentenced to death or true life.
In addition, for those juveniles who were under the age of 17
when they committed their crimes, ORS 161.620 prohibited
the trial courts from imposing any statutorily required mini-
mum sentence. See State v. Jones, 315 Or 225, 230-31, 844
P2d 	188 	(1992) 	(so 	holding). 	Those 	provisions, 	taken
together, meant that "the only sentencing option available [to
the trial court for juveniles convicted of aggravated murder]
was life imprisonment with the possibility of release or
parole." Engweiler N, 340 Or at 383.
The remaining subsections of ORS 163.105 provide a
procedure under which the board may override a 30-year
mandatory minimum sentence imposed by the trial court
under subsection (1). See Janowski I Fleming v. Board of
Parole, 349 Or 432, 446, 245 P3d 1270 (2010) (ORS 163.105

Cite as 350 Or 592
gave board authority to override 30-year mandatory mini-
mum sentence for aggravated murder and to consider releas-
ing a prisoner on parole after 20 years upon a finding that he
is likely to be rehabilitated). Specifically, subsection (2) pro-
vides that a prisoner serving a 30-year mandatory minimum
sentence for aggravated murder may seek a "hearing to
determine if [he] is likely to be rehabilitated within a reason-
able period of time," and it describes the timing for such a
hearing: "any time after 20 years from the date of imposition
of a minimum period of confinement pursuant to paragraph
(c) of subsection (1) of this section." If the board unanimously
finds that a prisoner is "capable of rehabilitation," then the
board, pursuant to subsection (3) "shall convert the terms of
the prisoner's confinement to life imprisonment with the pos-
sibility of parole." Finally, subsection (4) provides a mecha-
nism for a prisoner who was unsuccessful in persuading the
board to convert his mandatory minimum sentence to a sen-
tence of life in prison with the possibility of parole to petition
again 	after 	two 	years 	for 	"a 	change 	in 	the 	terms 	of
confinement."
As the wording of those subsections make plain, they
have no applicability to a prisoner who is not serving a man-
datory minimum sentence. First, as this court stated in
Severy/Wilson v. Board of"Parole, 349 Or 461, 475, 245 P3d
119 (2010):
"[u]nder the plain words of[ORS 163.105(2)], the trigger for
the rehabilitation hearing is the 'imposition' of [a] mini-
mum period of confinement. Only a court 'imposes' a sen-
tence in a criminal case."
Thus, for juvenile aggravated murderers, the "trigger" for the
rehabilitation hearing never occurred; ORS 161.620 prohib-
ited trial courts from imposing a minimum period of confine-
ment. Moreover, although the "sole issue" to be decided at the
hearing described in ORS 163.105(2) to (4) is "whether or not
the prisoner is likely to be rehabilitated in a reasonable
period of time," ORS 163.105(2), the only authority that the
legislature granted to the board upon its finding that the
prisoner was capable of rehabilitation was to perform an act
that is entirely unnecessary in the case of juvenile aggra-
vated murderers: to change the terms of the prisoner's con-
finement from a prohibition on eligibility for parole to the

612 	State ex rel Engweiler v. Felton
possibility of parole. See Severy I Wilson, 349 Or at 4 77 (in
requiring board to convert terms of prisoner's confinement to
life with the possibility of parole, ORS 163.105(3) required
the board to convert prohibition on eligibility for parole to
possibility of parole). Juvenile aggravated murderers need no
such change; they are "entitled to the possibility of parole"
from the time that the trial court imposed its sentence of life
in prison. See Engweiler V, 343 Or at 545 (juvenile aggra-
vated murderers are "entitled to the possibility of parole").
Finally, ORS 163.105(4) indicates that the very purpose of a
prisoner's petition for that hearing is to obtain that change
from prohibition to eligibility for parole:
"Not less than two years after the denial of the relief sought
in a petition under this section, the prisoner may petition
again for a change in the terms of confinement."
It is clear from the foregoing that the relief that the
prisoner seeks in demonstrating rehabilitation at a hearing
under ORS 163.105(2) to (4) is the conversion of the pris-
oner's mandatory minimum sentence to life with the possibil-
ity of parole. That relief is pointless in the case of a prisoner
already serving a sentence oflife imprisonment with the pos-
sibility of parole. 12 It follows that ORS 163.105(2) to (4) are
not applicable to juvenile aggravated murderers. 13
12 The board argues that that conversion of the prisoner's sentence to life with
the possibility of parole would not be pointless in the case of prisoners not serving
a mandatory minimum sentence, because, in its view, a "life sentence" does not
include the possibility of parole. Therefore, all prisoners serving "life sentences,"
including juvenile aggravated murderers, can be required to undergo a rehabilita-
tion hearing before becoming eligible for parole. Further, the board argues, while it
is true that juvenile aggravated murderers must have the eventual possibility of
parole, that does not mean that the board is precluded from requiring whatever
procedure it desires, on whatever timeline, before considering juvenile aggravated
murderers for parole.
We disagree. Prisoners with indeterminate sentences generally were eligible
for parole consideration soon after their admission to prison. See ORS 144.120
(requiring the board to conduct parole hearings and set parole release dates for
most prisoners within a year of their incarceration). And, as we observed in
Janowski i Fleming, 349 Or at 449, aggravated murderers who have demonstrated
that they are capable ofrehabilitation and who have had their sentences converted
to life with the possibility of parole are in the same position respecting parole eli-
gibility as any other offender who was sentenced to life imprisonment by the trial
court at the time of his conviction. That is, they are entitled to parole consideration
at a parole hearing. Id. at 456. Juvenile aggravated murderers also serve indeter-
minate life sentences and, as we discuss in more detail below, they, too, are eligible
for a parole hearing and parole consideration under ORS 144.120.
'" The Court of Appeals reached a contrary conclusion, determining that the
references to converting the terms of the prisoners' confinement were "redundant,"

Cite as 350 Or 592
ORS 144.110(2)(b), which provides that the board
"shall not release a prisoner on parole who has been con-
victed of* * * aggravated murder * * * except as provided in
ORS 163.105" is not inconsistent with that conclusion. We
acknowledge that that paragraph appears, superficially, to
support the notion that all aggravated murderers, including
juveniles, can be released on parole only in compliance with
ORS 163.105. However, when that paragraph is considered
in context, it is clear that that paragraph bolsters, rather
than undermines, our conclusion that ORS 163.105 is inap-
plicable to juvenile aggravated murders.
ORS 144.110 provides as follows:
"(1) 	In any felony case, the court may impose a mini-
mum term of imprisonment of up to one-half of the sentence
it imposes.
"(2) 	Notwithstanding the provisions of ORS 144.120
[dealing with release on parole according to matrix} and
144.780 	[directing 	board 	to 	adopt 	rules 	establishing
matrix}:
"(a) 	The board shall not release a prisoner on parole
who has been sentenced under subsection (1) of this section
until the minimum term has been served, except upon affir-
mative vote of at least four members of the board.
and concluding that accepting a measure ofredundancy is preferable to "hold[ing]
that some portion of a statute simply does not mean what it says." Engweiler VI,
232 Or App at 228. The Court of Appeals erred in two respects. First, redundancy
is a (perhaps unnecessary) repetition of terms; it does not refer to terms that are
inapplicable to a given situation. Thus, from the point of view of juvenile aggra-
vated murderers who are serving sentences oflife imprisonment with the possibil-
ity of parole, ORS 163.105 is not redundant when it refers to the conversion of the
terms of a prisoner's confinement from a prohibition on eligibility for parole to the
possibility of parole; rather, it is inapplicable. The Court of Appeals' second error
was in viewing the principal focus of ORS 163.105(2) to (4) as on "the board's obli-
gation to determine the offender's rehabilitation status," and the conversion of the
terms of confinement as a "superfluity." Id. at 229. As we discuss in the text, the
words of ORS 163.105(2) to (4) belie that interpretation. Although the issue to be
decided at the rehabilitation hearing is the offender's rehabilitation, the board's
obligation is to convert the terms of the prisoner's confinement. ORS 163.105(3) (if
the board finds the prisoner to be capable of rehabilitation, the board "shall enter
an order to that effect and the order shall convert the terms of the prisoner's con-
finement to life imprisonment with the possibility of parole or work release"). And,
as we also discuss in the text, the fact that subsection (4) refers to the prisoner's
right to petition again for a change in the terms of his confinement after two years
if he is unsuccessful the first time demonstrates that the conversion of the sentence
is not a superfluity; it is the purpose of the prisoner's petition.

614 	State ex rel Engweiler v. Felton
"(b) 	The board shall not release a prisoner on parole
who has been convicted of murder defined as aggravated
murder under the provisions of ORS 163.095, except as pro-
vided in ORS 163.105."
That statute "deals with restrictions on paroling persons who
have been sentenced to minimum terms." Janowski I Fleming,
349 Or at 443. As this court explained in Janowski I Fleming,
ORS 144.110 has two parts. The first part grants trial courts
discretion to impose minimum periods of imprisonment for
adults convicted of felonies other than aggravated murder.
Janowski I Fleming, 349 Or at 443. As noted, such discretion
generally is unnecessary for aggravated murderers; under
ORS 163.105, the trial court must impose a 30-year manda-
tory minimum sentence for aggravated murder (if the defen-
dant was not given the death penalty or true life). And, as
this court further explained in Janowski/ Fleming, the sec-
ond part
"set out two processes for effectively overriding those man-
datory minimum sentences. The processes were parallel, a
fact demonstrated by their use of identical wording in par-
agraphs (2)(a) and (2)(b), viz., 'The board shall not release a
prisoner on parole * * * except * * *.' Under paragraph
(2)(a), in cases in which the court had imposed mandatory
minimum sentences for felonies other than aggravated
murder, the board had the authority to override those man-
datory minimum sentences if four of the five board mem-
bers agreed. Paragraph (2)(b), which prohibited the board
from releasing on parole a prisoner who had been convicted
of aggravated murder 'except as provided in ORS 163.105,'
gave the board similar authority, albeit with more onerous
preconditions: In the case of prisoners convicted of aggra-
vated murder, the prisoner was not permitted to seek a
rehabilitation hearing that might lead to an override of the
prisoner's judicially imposed sentence until he already had
been incarcerated for 20 years, the burden was on the pris-
oner to convince the board that he was likely to be rehabil-
itated within a reasonable time, and the board was required
to agree with the prisoner unanimously rather than by a
four-of-five member vote. ORS 163.105(2), (3)."
Janowski I Fleming, 349 Or at 443-44 (footnote omitted}. In
context, and read together with ORS 163.105, it is clear that

Cite as 350 Or 592 	615
ORS 144.110(2)(b) refers to a process for overriding the man-
datory minimum sentence required to be imposed for aggra-
vated murder, parallel to the process set out in subparagraph
(2)(a) for overriding the mandatory minimum sentence that
the trial court, in its discretion, has imposed for other types of
felonies. Those parallel processes for overriding mandatory
minimum sentences have no bearing on the board's parole
release decisions respecting prisoners who are not serving
mandatory minimum sentences. And because, under ORS
161.620, trial courts were not permitted to impose minimum
sentences on juveniles, it follows that the process referred to
in ORS 144.110(2)(b) has no applicability to juvenile aggra-
vated murderers. 14
' 4 The dissent disagrees with our conclusion that ORS 144.110(2)(b) and ORS
163.105 have no applicability to juvenile aggravated murderers. In the dissent's
view, ORS 144.110(2)(b) is the "only * * * statute [that] serves as the potential
source for the board's power to parole any aggravated murderer, adult or juvenile,"
350 Or at 633 (Linder, J., dissenting), because the board's general authority to
parole inmates was limited, under ORS 144.050, to inmates who committed their
offenses prior to November 1, 1989. Id. at 635. Therefore, according to the dissent,
to the extent that we conclude that neither ORS 144.110 nor ORS 163.105 applies
to juvenile aggravated murderers, we also must conclude that the board lacks
authority to parole juvenile aggravated murderers at all. Id. at 635-36.
The dissent errs in two ways. First, ORS 144.110(2)(b)is not the only"potential
source for the board's power to parole" juvenile aggravated murderers. The dissent
reaches that erroneous conclusion because it reads in isolation, and therefore
places too much emphasis on, one phrase in ORS 144.110(2)(b): "[t}he board shall
not release a prisoner on parole * * *except" as provided in ORS 163.105. Context
establishes that the legislature did not intend that phrase as a grant of authority to
the board to release any prisoner on parole. Rather, as we discuss in the text, both
ORS 144.110(2)(a) and ORS 144.110(2)(b) are merely restrictions on paroling per-
sons who have been sentenced to minimum terms. ORS 144.110(2)(a) provides
that, when a trial court has imposed a mandatory minimum sentence for a felony
other than aggravated murder, a majority vote of the board is required to override
that mandatory minimum. In a parallel fashion, ORS 144.110(2)(b) provides that,
when the trial court has imposed a 30-year mandatory minimum sentence for
aggravated murder, the board must follow the procedures set out in ORS 163.105
to override that mandatory minimum.
Our conclusion that ORS 144.110(2)(b) is merely an override provision is bol-
stered by the fact that ORS 163.105 only addresses the conversion of a prisoner's
30-year mandatory minimum sentence to a sentence of life imprisonment with the
possibility of parole; it does not authorize or provide a mechanism for the board to
release any prisoner on parole. See Janowski/ Fleming, 349 Or at 446(ORS163.105
silent with respect to how the board was expected to determine a prisoner's actual
duration of confinement once board converted prisoner's term to life with the pos-
sibility of parole). And, as previously stated, juvenile aggravated murderers never
were sentenced to minimum terms; therefore, no override under ORS 144.110 or
conversion under ORS 163.105 is necessary.

616 	State ex rel Engweiler v. Felton
Our conclusions respecting the applicability of ORS
163.105(2) to (4) and ORS 144.110(2)(b) to juvenile aggra-
vated murderers constitute the first step in the resolution of
Sopher's petition for review of the Court of Appeals decision
in the rule challenge case. That is, because we hold that ORS
144.110 and ORS 163.105 do not apply to juvenile aggravated
murderers, it necessarily follows that neither of those stat-
utes provide authority to the board to require, under the JAM
rules, that a juvenile aggravated murderer undergo an inter-
mediate review process to demonstrate that he is capable of
rehabilitation before he is deemed eligible for parole consid-
eration. Therefore, before turning to the other issues pre-
sented in these cases, we complete our analysis in the rule
challenge. 15
---·-·-·-·-·-··-------
The fact that ORS 144.110 is not a source of the board's parole authority does
not mean, however, that the board lacks authority to parole juvenile {or adult)
aggravated murderers. It is true, as the dissent observes, that ORS 144.050 (1989)
grants the board express authority to parole only those inmates who committed
offenses prior to November 1, 1989. However, as we discuss in the text below, the
legislative note following ORS 144.110 (enacted at the same time as the amend-
ment to ORS 144.050 limiting the board's parole authority to offenders who com-
mitted crimes after November l, 1989) explicitly provides that ORS 144.110,
ORS 144.120, and several other statutes, all governing the board's authority to
release prisoners on parole, continue to apply to prisoners who have been convicted
of aggravated murder, regardless of the date of their crimes. That legislative note,
then, effectively operates as an exception to the date limitation in ORS 144.050 on
the board's parole authority, permitting it to continue to exercise that authority
over prisoners convicted of aggravated murder after November 1, 1989. In other
words, notwithstanding its apparently limiting wording, ORS 144.050 continues to
be the source of the board's parole authority over aggravated murderers.
15 As a preliminary matter, we acknowledge, as the board has pointed out, that
this court considered, in Engweiler V, whether the board had exceeded its statutory
authority in promulgating the JAl'v1 rules. In that case, Engweiler argued that the
JAl'vl rules exceed the board's authority because they ran afoul of ORS 144.780(1)
( 1997), which directed the board to "adopt rules establishing ranges of duration of
imprisonment to be served for felony offenses prior to release on parole." Engweiler
argued that that statute obligated the board to establish a "duration of imprison-
ment'' at a juvenile aggravated murderer's initial prison term hearing, but the
JAl'vl rules do not permit setting an actual parole release date at a prison term
hearing. This court held that Engweiler had misread ORS 144.780; that statute
required only that the board adopt "ranges" of duration of imprisonment, which it
did when it adopted the exhibits attached to the rules. Engweiler V, 343 Or at 550.
It did not require the board to establish a particular duration of imprisonment for
any particular prisoner. Accordingly, the court held, the JAi\I rules did not conflict
with ORS 144. 780( 1) ( 1997), and the board, therefore, did not exceed its statutory
authority in any way argued by Engweiler in that case. Id. at 551{"ORS144. 780(1)
(1997) is not offended by [the] procedural choice on the board's part [to conduct an
intermediate hearing before setting a parole release date].").

Cite as 350 Or 592
As discussed above, in a rule challenge under ORS
183.400, judicial review is
"limited to an examination of:
"(a) 	[t]he rule under review;
"(b) 	[t]he statutory provisions authorizing the rule;
and
"(c) 	[c]opies of all documents necessary to demonstrate
compliance with applicable rulemaking procedures."
ORS 183.400(3). Moreover, a court may declare a rule invalid
"only if it finds that the rule:
"(a) 	[v]iolates constitutional provisions;
"(b) 	[e]xceeds the statutory authority of the agency; or
"(c) 	[w]as adopted without compliance with applicable
rulemaking procedures."
ORS 183.400(4). Sopher has not challenged the JAM rules on
the ground that the board failed to comply with applicable
rulemaking procedures. He does, however, challenge the
rules on the grounds that they exceeded the board's statutory
authority and that they violated certain constitutional pro-
visions. Consistent with this court's preferred practice in
dealing with legal challenges to administrative rules under
ORS 183.400, we consider statutory questions before turning
to constitutional issues. Oregon Newspaper Publishers v.
Dept. of Corrections, 329 Or 115, 119, 988 P2d 359 (1999) (so
holding).
The JAM rules consist of the 1999 amendments to
OAR 255-032-0005, OAR 255-032-0010, OAR 255-032-0015,
and OAR 255-032-0020, as well as the then-newly adopted
OAR 255-032-0011 and certain exhibits setting out the
matrix ranges for juvenile aggravated murderers. OAR 255-
032-0005, OAR 255-032-0010, OAR 255-032-0015, and OAR
In Engweiler V, this court was not asked to, and did not, address the precise
issue that the court confronts today, viz., whether the board exceeded its statutory
authority in adopting the JAM rules because no statute authorizes the board to
require juvenile aggravated murderers to undergo an intermediate review process
before the board considers them for parole eligibility and other statutes require the
board to conduct parole hearings and set parole release dates for them.

618 	State ex rel Engweiler v. Felton
255-032-0020 were amended to add the word "adult" in vari-
ous places, to clarify when juveniles were excluded from the
review process outlines in those rules. In addition, OAR 255-
032-0005 was amended to include the following:
"(4) 	Inmates, who were juveniles and waived to the
adult court pursuant to ORS 419C.340 through 419C.364,
and were under the age of 17 years at the time of their
crime(s), and were convicted of Aggravated Murder, per
ORS 163.095, and whose crimes were committed after
October 31, 1989 and prior to April 1, 1995, shall receive a
prison term hearing. At the hearing, the Board shall set a
review date consistent with the terms set forth in OAR 255-
032-0011, rather than a projected parole release date."
OAR 255-032-0011 provides:
"(1) 	The Board shall conduct a hearing pursuant to
OAR 255-030-0013, 255-030-0015, 255-030-0021, 255-030-
0023 and 255-030-0025 through 255-030-0055.
"(2) 	The Board shall set a review date pursuant to
Exhibit P-III, or deny parole, pursuant to OAR 255-035-
0030.
"(3) 	The method established by sections (1) to (3) of
OAR 255-035-0021 shall not apply to inmates described in
255-032-0005(4). 	To 	determine 	the 	unified 	range 	for
inmates described in OAR 255-032-0005(4) with consecu-
tive sentences for aggravated murder, the Board shall
establish the matrix range for each crime by using the
inmate's history/risk score pursuant to Exhibit P-III. The
unified range shall be the sum of the ranges established
under this section.
"(4) 	The Board may depart from the appropriate
matrix range for inmates described in OAR 255-032-
0005( 4) only upon making a specific finding that there is
aggravation or mitigation which justifies departure from
the range pursuant to Exhibits E-1 and E-2. The Board
shall clearly state on the record the facts and specific rea-
sons for its finding. The Board may give items of aggrava-
tion and mitigation different weight and not necessarily
balance them one for one. Exhibit D does not apply to
inmates described in 255-032-0005(4). The Board cannot
apply aggravating or mitigating factors 	to adjust an

Cite as 350 Or 592 (2011) 	619
inmate's matrix range more than one level up or down. Mit-
igating factors cannot reduce an inmate's matrix range
below the lowest possible range on the matrix.
"(5) 	If the Board denies parole, the inmate may peti-
tion for review after 480 months from the adjusted incep-
tion date. If the Board determines, following a review of the
inmate's petition and institutional record, there is reason-
able grounds to believe that rehabilitation may have
occurred and that the possibility of parole should be consid-
ered, a review hearing shall be scheduled.
"(6) 	If the Board sets a review date pursuant to
Exhibit P-III, the Board shall conduct a progress review
five years prior to the established review date. The progress
review does not require a hearing with the inmate; how-
ever, the inmate may submit materials to be considered.
The purpose of the progress review is to determine the
inmate's institutional conduct and rehabilitation efforts
since the prison term hearing.
"(7) 	The Board may determine a parole release date or
future review dates any time after the established review
date. The Board may order a psychological evaluation.
Refusal to submit to an evaluation if one is ordered will be
grounds for automatic deferral of the hearing for up to five
years or a lesser time if deemed appropriate by the Board. If
parole was previously denied, that decision will remain in
effect and further petitions for review will not be considered
at less than two (2) year intervals.
"(8) 	At the review hearing, the Board will consider, but
is not limited to, the following:
"[various indicia ofrehabilitation] * * *.
"The decision for the Board shall be whether there are
significant indications of reformation and rehabilitation
such that the offender does not represent a risk to the com-
munity and that it is in the offender's and the community's
best interest that he/she be released to the community
under conditions of supervision.
"If the Board does not make the above finding, the
Board shall set a subsequent review hearing date not to
exceed five (5) years from the present review."
Exhibit P-III, referred to in the foregoing rule, sets out the
juvenile aggravated murder matrix.

620 	State ex rel Engweiler v. Felton
Again as noted, in promulgating the JAM rules, the
board 	cited 	four 	sources 	of 	statutory 	authority: 	ORS
144.110(2)(b) (1997), ORS 163.105(1) (1997), ORS 161.620
(1994), and ORS 144. 780 (1997). Sopher argues that the
board promulgated the JAM rules based on a misunder-
standing of the relevant laws and, as a consequence, it cre-
ated rules that "depart[ ] from the legal standard expressed
or implied in 	the 	enabling statute[s]," quoting Gilliam
County u. Dept. of Environmental Quality, 316 Or 99, 106,
849 P2d 500 (1993), reu'd on other grounds sub nom Oregon
Waste Sys. u. Department of Environmental Quality, 511 US
93, 114 S Ct 1345, 128 L Ed 2d 13 (1994). Specifically, Sopher
argues that neither ORS 163.105(1), which provides three
sentencing options for adult aggravated murderers (none of
which may be imposed on juvenile aggravated murderers),
nor any other part of ORS 163.105, gives the board authority
to impose the intermediate review procedure outlined in ORS
163.105 to juvenile aggravated murderers. Similarly, Sopher
argues, ORS 144.110(2)(b) provides the board with no such
authority. As already discussed at length, we agree on both
counts.
Sopher also argues that neither ORS 161.620 nor
ORS 144.780 provides a source of authority for requiring
juvenile aggravated murderers to prove rehabilitation before
becoming eligible for parole release. We agree. As discussed
above, ORS 161.620 is a limitation on the options available to
the trial court in sentencing juvenile felony offenders in gen-
eral, and specifically, juvenile aggravated murderers under
the age of 17 at the time of their offense. That statute has no
application to the authority of the board (a separate branch of
government) to make parole release decisions for juvenile
aggravated 	murderers. 	Likewise, 	ORS 	144. 780, 	which
directs the board to "adopt rules establishing ranges of dura-
tion of imprisonment to be served for felony offenses prior to
release on parole," cannot be read to authorize the board to
require juvenile aggravated murderers to undergo an inter-
mediate review process before becoming eligible for parole
release. 16
16 Of course, as noted above in note 15, this court held in Engweiler V that ORS
144. 780 also did not operate as an impediment to the promulgation of such rules.

Cite as 350 Or
At the same time, Sopher argues, ORS 144.120(1)(a)
requires the board to conduct a parole hearing and set a
parole release date, and the JAM rules, by setting review
dates rather than release dates, conflict with that statute. As
discussed above, the 1989 version of ORS 144.120(1)(a) pro-
vided as follows:
"Within six months of the admission of a prisoner to any
Department of Corrections institution, with the exception
of those prisoners sentenced to a term of imprisonment for
life or for more than five years, the board shall conduct a
parole hearing to interview the prisoner and set the initial
date of release on parole pursuant to subsection (2) of this
section. For those prisoners sentenced to a term of impris-
onment for more than five years but less than 15 years, the
board shall conduct the parole hearing and set the initial
date of release within eight months following admission of
the prisoner to the institution. For those prisoners sen-
tenced to a term of imprisonment for life or for 15 years or
more, the board shall conduct the parole hearing, and shall
set the initial release date, within one year following admis-
sion of the prisoner to the institution. Release shall be con-
tingent upon satisfaction of the requirements of ORS
144.125."
(Emphasis added.)
We conclude that that statute required the board to
conduct a parole hearing for offenders sentenced to life in
prison within one year after an offender's admission to
prison, even if the offender had been convicted of aggravated
murder. The statute uses the mandatory word "shall" and
contains no exceptions depending on the nature of the crime
committed. 17 Therefore, we conclude that the JAM rule
requirement that a juvenile aggravated murderer undergo
an intermediate hearing no less than 20 years after his
admission to prison before he is eligible for parole considera-
tion is in direct conflict with ORS 144.120(1)(a) (1989).
17 We recognize that another subsection of ORS 144.120-0RS 144.120(4)-
gives the board the authority to choose not to set a parole release date for, among
others, prisoners "whose offense included particularly violent or otherwise danger-
ous criminal conduct." We need not decide today whether the board may invoke
that subsection to choose not to set a parole release date for prisoners who commit-
ted juvenile aggravated murder, an offense that inherently "included particularly
violent or otherwise dangerous criminal conduct."

622 	State ex rel Engweiler v. Felton
However, in 1991, before Sopher committed his
crime, the legislature added a 	phrase to ORS 	144.120,
amending the wording in paragraph (l)(a) that is italicized
above to read as follows:
"For those prisoners sentenced to a term of imprisonment
for life or for 15 years or more, with the exception of those
sentenced for aggravated murder, the board shall conduct
the parole hearing, and shall set the initial release date,
within one year following admission of the prisoner to the
institution."
Or Laws 1991, ch 126, § 6 (emphasis added). As noted, the
trial court in Sopher's mandamus case, and the Court of
Appeals in Sopher III, concluded that that wording meant
that, after 1991, aggravated murderers were not entitled to a
parole hearing. 18
Sopher argues, to the contrary, that the exception for
aggravated murderers added to ORS 144.120(1)(a) in 1991
applies only to the timing of parole hearings, not to the
requirement that the board conduct such hearings at all.
That is, Sopher argues, the amendment removed the require-
ment that the board conduct parole hearings within one year
of an aggravated murderer's admission to prison, but ORS
144.120(1)(a) (1991) continued to mandate that the board
conduct such hearings for aggravated murderers at some
point. 19
18 In Engweiler Ill, this court reached a similar conclusion. There, the court
stated that,
"under that [1991] version of ORS 144.120(1)(a) * * *, the board was not
required to set an initial release date for prisoners who, like petitioner, had
been sentenced to aggravated murder. * * * [N]o * * * statute required the
board to set an initial release date for persons like petitioner."
340 Or at 368-69. Those statements inEngweiler III were dicta, because Engweiler
had argued that the version that was in effect when he committed his crime-the
1989 version--was the version that applied in his case, and the board conceded
that point for purposes of argument there. In summarizing ORS 144.120(1)(a)
( 1991) in the way that it did, this court did not analyze the context of that wording
or consider its legislative history. As we explain below, we no longer agree with the
court's statement-at least as it implicitly suggests that ORS 144.120(1)(a) (1991)
requires the board neither to conduct a parole hearing, nor to set a release date, for
any prisoner convicted of juvenile aggravated murder. And, in light of the fact that
the court's comments are dicta, we are not bound by them.
19 The board conceded Sopher's point in this regard at oral argument in this
court. That is, the board has conceded that the exclusion for aggravated murderers

Cite as 350 Or 592 (2011) 	623
In interpreting a statute, our task is to attempt to
discern the intent of the legislature. State v. Gaines, 346 Or
160, 171, 206 P3d 1042 (2009) (discerning the intent of the
legislature is the court's "paramount goal" in statutory inter-
pretation). We begin by considering the text and context of
the statute. Id. We then turn to any pertinent legislative his-
tory that the parties have offered. Id. at 172.
We agree that the text of ORS 144.120 is ambiguous
and capable of two plausible interpretations. It is not clear
from the text alone whether the legislature intended the
1991 addition of the words "with the exception of those sen-
tenced for aggravated murder" to exclude all aggravated
murderers from a parole hearing, or merely to except them
from the requirement that the hearing be held within one
year of the prisoner's admission to prison. Context, however,
suggests that the legislature intended to except aggravated
murderers from the timing requirement only.
The first contextual clue is in the legislative note
that follows ORS 144.110, which states that
"Section 28, chapter 790, Oregon Laws 1989 provides:
"Sec. 28. The provisions of ORS 144.110, 144.120,
144.122, 	144.125, 	144.130, 	144.135, 	144.185, 	144.223,
144.245,144.270 and 144.305 apply only to offenders con-
victed of a crime committed prior to November 1, 1989, and
to offenders convicted of aggravated murder or murder
regardless of the date of the crime."
That note explicitly provides that ORS 144.120 continues to
apply to prisoners who have been convicted of aggravated
murder, "regardless of the date of the crime." That means
that ORS 144.120 (1991) applied to Sopher, who committed
his crime in 1992. All parts of ORS 144.120 (1991) deal with
that the legislature added to ORS 144.120(l)(a) in 1991 means only that the board
need not conduct a parole hearing for aggravated murderers within one year of
their admission to prison; ORS 144.120(1)(a) (1991) continued to require a parole
hearing for all aggravated murderers, including juvenile aggravated murderers, at
some point. In this court, the board's only argument is that the board is required to
conduct a rehabilitation hearing for all aggravated murderers, including all juve-
nile aggravated murderers, under ORS 163.105 before conducting the parole hear-
ing required by ORS 144.120(1)(a).

624 	State ex rel Engweiler v. Felton
the prisoner's entitlement to a parole hearing and the setting
of initial release dates, 20 and the only part of ORS 144.120
20 ORS 144.120 (1991) provided:
"(l)(a) Within six months of the admission of a prisoner t-0 any Department
of Corrections institution, with the exception of those prisoners sentenced to a
term of imprisonment for life or for more than five years, the board shall con-
duct a parole hearing to interview the prisoner and set the initial date of
release on parole pursuant to subsection (2) of this section. For those prisoners
sentenced to a tenn of imprisonment for more than five years but less than 15
years, the board shall conduct the parole hearing and set the initial date of
release within eight months following admission of the prisoner to the institu-
tion. For those prisoners sentenced to a term of imprisonment for life or for 15
years or more, with the exception of those sentenced for aggravated murder,
the board shall conduct the parole hearing, and shall set the initial release
date, within one year following admission of the prisoner to the institution.
Release shall be contingent upon satisfaction of the requirements of ORS
144.125,
"(b) Those prisoners sentenced to a term of imprisonment for less than
15 years for commission of an offense designated by rule by the board as a non
person-to-person offense may waive their rights to the parole hearing. When a
prisoner waives the parole hearing, the initial date of release on parole may be
set administratively by the board pursuant to subsections (2) to (6) of this sec-
tion. If the board is not satisfied that the waiver was made knowingly or intel-
ligently or if it believes more information is necessary before making its deci-
sion, it may order a hearing.
"(2) In setting the initial parole release date for a prisoner pursuant to
subsection (1) of this section, the board shall apply the appropriate range
established pursuant to ORS 144.780. Variations from the range shall be in
accordance with ORS 144.785.
"{3) In setting the initial parole release date for a prisoner pursuant to
subsection (1) of this section, the board shall consider the presentence investi-
gation report specified in [former] ORS 144.790 or, if no such report has been
prepared, a report of similar content prepared by the Department of
Corrections.
"(4) Notwithstanding subsection (1) of this section, in the case of a pris-
oner whose offense included particularly violent or otherwise dangerous crim-
inal 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 psychologi-
cal diagnosis of severe emotional 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.
"(5) After the expiration of six months after the admission of the prisoner
to any Department of Corrections institution, the board may defer setting the
initial parole release date for the prisoner for a period not to exceed 90 addi-
tional days pending receipt of psychiatric or psychological reports, criminal
records or other information essential to formulating the release decision.
"(6) \¥hen the board has set the initial parole release date for a prisoner, it
shall inform the sentencing court of the date.
"(7) The State Board of Parole and Post-Prison Supervision must attempt
to notify the victim, if the victim requests to be notified and furnishes the board
a current address, and the district attorney of the committing county at least

Cite as 350 Or 592 (2011) 	625
(1991) that specifically addresses aggravated murderers is
the disputed provision in ORS 144.120(1)(a). An interpreta-
tion of ORS 144.120(1)(a) (1991) that entirely exempts aggra-
vated murders from the hearing requirement would directly
conflict with the legislative note. The only way to give effect
to both provisions is to read ORS 144.120(1)(a) as Sopher sug-
gests: the exception for those convicted of aggravated murder
applies only to the timing of the parole hearing; in the case of
aggravated murderers, it need not be conducted within one
year of the prisoner's admission to prison. The exception does
not mean that aggravated murderers are not entitled to a
parole hearing at all. That interpretation is consistent with
the directive in ORS 161.620, which, as this court stated in
Engweiler V, requires that juvenile aggravated murderers
"must be entitled to the possibility of parole." 343 Or at 545.
Likewise, ORS 163.105 also provides relevant con-
text. As we explained above, that statute provides that adult
aggravated murderers who have been sentenced to life in
prison with a 30-year mandatory minimum term of incarcer-
ation may have their sentences converted after 20 years to
life in prison with the possibility of parole if they demonstrate
to the board that they are capable of rehabilitation. And, as
this court recently held in Janowski I Fleming, prisoners
whose sentences are so converted are then immediately enti-
tled to parole consideration. 349 Or at 456. Ifwe were to read
the 1991 amendments to wholly eliminate aggravated mur-
der from the provisions of ORS 144.120, then there is no stat-
utory authority for the board to set an initial release date for
aggravated murderers entitled to parole consideration under
ORS 163.105. That is so, because ORS 163.105 does not
authorize the board to take any action relating to a parole
30 days before all hearings by sending written notice to the current addresses
of both. The victim, personally or by counsel, and the district attorney from the
committing jurisdiction shall have the right to appear at any hearing or, in
their discretion, to submit a written statement adequately and reasonably
expressing any views concerning the crime and the person responsible. The
victim and the district attorney shall be given access to the information that
the board or division will rely upon and shall be given adequate time to rebut
the information. Both the victim and the district attorney may present infor-
mation or evidence at any hearing, subject to such reasonable rules as may be
imposed by the officers conducting the hearing. For the purpose of this subsec-
tion, 'victim' includes the actual victim, a representative selected by the victim,
the victim's next of kin."

626 	State ex rel Engweiler v. Felton
release date; the board's sole directive in that statute is to
"convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole or work release."
ORS 163.105(3). It is highly doubtful that the legislature
intended to leave the board without statutory authority to
conduct parole hearings for aggravated murderers whose
mandatory minimum sentences have been converted to inde-
terminate sentences and who become eligible for parole pur-
suant to ORS 163.105.
Finally, we find further contextual support for our
interpretation of ORS 144.120(1)(a) (1991) in that there is no
practical reason to have a parole hearing after one year for
most aggravated murderers, who are required, under ORS
163.105, to serve at least 20 years in prison before becoming
eligible for parole. Any requirement to conduct a hearing and
set an initial release date after only one year would be
premature.
Legislative history suggests that the legislature con-
templated that practical concern when it adopted the 1991
amendment. That amendment was enacted from House Bill
2603. When the House Subcommittee on Criminal Law and
Corrections met to consider that bill, Representative Rod
Johnson asked the then-Chairman of the Board of Parole,
Vern Faatz, the purpose of the amendment. Faatz replied:
"There are three categories for aggravated murder: aggra-
vated murder with the death penalty (the Board has no
function with that); aggravated murder without parole (the
Board has no function with that); and then aggravated
murder with parole. The Board has no real up front prison
term setting responsibility. We have, at the end of20 years,
a requirement of a review and consideration of parole, if it's
determined the person can be rehabilitated at a future
date[.]"
Tape Recording, House Committee on Judiciary, Subcommittee
on Criminal Law and Corrections, HB 2603, Mar 5, 1991,
Tape 40, Side A (statement of Vern Faatz). That statement
suggests that the legislature viewed its purpose in amending
ORS 144.120(1)(a) as an acknowledgement of the fact that
there was no need to conduct a parole hearing for aggravated
murderers within one year of their admission to prison when

Cite as 350 Or 592 	627
they would not be eligible for parole consideration for at least
20 years. 21
Considering all of the foregoing together, we con-
clude that the legislature intended that ORS 144.120(1)(a)
(1991) apply to juvenile aggravated murderers and required
the board to conduct parole hearings for juvenile aggravated
murderers. That is, although it is possible to read the phrase
as excluding aggravated murderers from the parole hearing
process set out in ORS 144.120, we are persuaded by context
and legislative history that the disputed phrase-"with the
exception 	of those 	sentenced for 	aggravated 	murder"-
merely removes "those sentenced for aggravated murder"
from the requirement that a parole hearing be held within
one year of the prisoners' admission to prison, and that the
legislature did not intend to eliminate the board's authority
to conduct a parole hearing for them altogether.
To summarize, we find nothing in the statutes that
the board has cited as authority for the JAM rules that can be
read to authorize the board to require juvenile aggravated
murderers to 	undergo 	an intermediate hearing process
before they become eligible for parole consideration. ORS
144.120 (1989) and ORS 144.120 (1991) required parole hear-
ings for all prisoners who are eligible for parole considera-
tion. To the extent that JAM rules require juvenile aggra-
vated murderers to undergo an intermediate process before
they become eligible for parole consideration, they exceed the
board's rulemaking authority and are invalid, because they
conflict with the statutes requiring the board to conduct a
parole hearing and set an initial release date for them, unless
it declines to do so under ORS 144.120(4). The Court of
Appeals erred in concluding otherwise.
We turn now to the mandamus cases. A writ of man-
damus may be issued "to any inferior court, corporation,
board, officer or person, to compel the performance of an act
which the law specifically enjoins, as a duty resulting from an
21 It is notable that juvenile aggravated murderers were not mentioned in the
hearing, and the legislature apparently did not consider the possibility that ORS
163.105 did not apply to juveniles or that, under ORS 161.620, juvenile aggravated
murderers were eligible for parole consideration immediately upon admission to
prison.

628 	State ex rel Engweiler v. Felton
office, trust, or station** *."ORS34.110.Asthiscourtstated
in State ex rel Dewberry v. Kulongaski, 346 Or 260, 274, 210
P3d 884 (2009), "[a] mandamus action is a special proceeding
used to compel a government official to perform a legal duty."
The legal right to compel the performance of the legal duty
"must be plain and complete." Florey v. Coleman, 114 Or 1, 2,
234 P 286 (1925). That is, "no petitioner is entitled to the rem-
edy of mandamus unless he has a clear legal right to the per-
formance of the particular duty sought to be enforced and
unless there is a plain legal duty on the part of the defendant
to perform the act." United States of America v. Cohn, 201 Or
680, 684, 272 P2d 982 (1954).
The question remaining to be answered in these
mandamus cases is whether ORS 144.120(1)(a) (1989) or
ORS 144.120(1)(a) (1991) imposed on the board a legal duty
to conduct a parole hearing and set a parole release date for
either Engweiler, or Sopher, or both of them.
Engweiler committed his crime in 1989, although he
was resentenced in 1994. Engweiler always has contended
that the 1989 version of ORS 144.120(1)(a) applied to his
case. Below, the board contended that, on the contrary, the
version 	in effect at Engweiler's resentencing-the 	1991
version-applied to Engweiler. In this court, however, the
board has abandoned that argument, confining itself to argu-
ing that ORS 144.110 and ORS 163.105, which apply "not-
withstanding the provisions of ORS 144.120," mandate a dif-
ferent procedure for aggravated murderers. As we have
explained above, ORS 163.105 and ORS 144.110 are inappli-
cable to prisoners who are not serving mandatory minimum
sentences. That leaves ORS 144.120(l)(a) (1989). To repeat,
that statute provided, in part,
"For those prisoners sentenced to a term of imprisonment
for life* * *, the board shall conduct the parole hearing, and
shall set the initial release date, within one year following
admission of the prisoner to the institution."
By 	its 	plain 	terms, 	ORS 	144.120(1)(a) 	(1989)
imposed a clear statutory duty on the board to conduct a
parole hearing within one year of Engweiler's incarceration.
The board did not do so. The board must now conduct a parole
hearing for Engweiler under ORS 144.120.

Cite as 350 Or 592 (2011) 	629
Engweiler also argues that the board must set a
release date for him at that hearing. However, ORS 144.120
did not impose a similar legal duty on the board to set a
release date, notwithstanding the apparent directive in ORS
144.120(1)(a) to do so-the board "shall set the release date."
The board had no "plain" legal duty to set a release date,
because ORS 144.120(4) provided:
"Notwithstanding subsection (1) of this section, in the case
of a prisoner whose offense included particularly violent or
otherwise dangerous criminal conduct or whose offense was
proceeded by two or more convictions for a Class A or Class
B felony or whose record includes a 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."
Given the existence of subsection (4), we cannot say that
Engweiler has a "plain and complete" legal right to compel
the board to set a release date for him. We can say, however,
that the board has a legal duty under ORS 144.120 either to
set a parole release date for Engweiler or to explain why it
has chosen not to do so. The trial court was correct to issue a
peremptory writ of mandamus, and the Court of Appeals
erred in reversing and remanding with instructions to vacate
it.
However, 	we 	reach 	a 	different conclusion with
regard to Sopher. Sopher is entitled to a parole hearing under
ORS 144.120(1)(a) (1991). That statute provides:
"For those prisoners sentenced to a term of imprisonment
for life or for 15 years or more, with the exception of those
sentenced for aggravated murder, the board shall conduct
the parole hearing, and shall set the release date, within
one year following admission of the 	prisoner to the
institution."
As we have explained, the foregoing means that prisoners
sentenced for aggravated murder are entitled to a parole
hearing at which the board must either set a release date or
explain why it has chosen not to do so. The question in
Sopher's case is when does that legal duty on the board's part
arise? In other words, does the board presently have a clear

630 	State ex rel Engweiler v. Felton
legal duty to conduct a parole hearing in Sopher's case, such
that the extraordinary remedy of mandamus is warranted?
As we have explained, although Sopher was eligible
for parole consideration from the time he commenced serving
his sentence, the board did not have an obligation under ORS
144.120(1)(a) (1991) to conduct a parole hearing within one
year 	after 	Sopher's 	admission 	to 	prison, 	as 	it 	did 	for
Engweiler.
Because no statute or rule directs the board to con-
duct a parole hearing for Sopher at any particular time, the
timing of the hearing is within the board's discretion. Accord-
ingly, the trial court and the Court of Appeals were correct in
declining to issue a peremptory writ ofmandamus. 22
In summary, we hold that the board exceeded its
statutory authority when it promulgated the JAM rules,
requiring juvenile aggravated murderers to undergo the
intermediate review process described in ORS 163.105(2) to
(4) before the board makes parole release decisions respect-
ing them. The Court of Appeals erred in holding otherwise.
Each inmate is serving an indeterminate sentence of life
imprisonment with the possibility of parole. The legislature
provided the board with authority in ORS 144.120(1) to
determine initial release on parole for inmates serving inde-
terminate sentences. We also conclude that ORS 144.120(1)
(1989) imposed on the board a legal duty to conduct a parole
hearing immediately for Engweiler and to set an initial
release date for him or explain why it chooses not to do so. As
to Sopher, we hold only that ORS 144.201(1) (1991) entitles
him to a hearing at some point to set an initial release date.
However, as we have explained, the board has authority
under the statute to determine when to hold that hearing.
We conclude, therefore, that the Court of Appeals erred in
reversing the trial court's issuance of the writ of mandamus
22 In light of our decision, it is, however, appropriate to ask: Where does that
leave inmate Sopher? Given that Sopher has been eligible for parole consideration
from the time he began serving his sentence, his situation is more like Engweiler's
than like the adult aggravated murderers who must wait at least 20 years before
becoming eligible for parole consideration. Because almost 20 years already has
elapsed since Sopher began serving the sentence for his crime, the board should
consider conducting a parole hearing consistent with ORS 144.120(1)(a) (1991),
and either set a release date for Sopher or explain why it has chosen not to do so.

Cite as 350 Or 592 	631
in Engweiler's mandamus action; however, we affirm the
Court of Appeals decision affirming the trial court's dismissal
ofSopher's mandamus action.
The decision of the Court of Appeals in Sopher v.
Board of Parole, 233 Or App 178, 225 P3d 836 (2010) is
reversed. The decision of the Court of Appeals in State ex rel
Engweiler v. Powers, 232 Or App 214, 221 P3d 818 (2009) is
reversed and the trial court's issuance of the writ is affirmed.
The decision of the Court of Appeals in State ex rel Sopher v.
Washington, 233 Or App 228, 225 P3d 142 (2010) is affirmed
in part and vacated in part.
LINDER, J., dissenting.
The issue in this case is a narrow one. It is not
whether the State Board of Parole and Post-Prison Supervision
has general authority to adopt rules to determine whether
and when to parole juvenile aggravated murderers. Against
an earlier challenge by one of these petitioners, we have
already determined that the board has authority to do so.
Engweiler v. Board of Parole, 343 Or 536, 548, 175 P3d 408
(2007). We also determined that the board appropriately
exercised that authority by promulgating special rules for
juvenile aggravated murderers, because the rules that the
board promulgated for adult aggravated murderers did not
apply. Id. 	The challenge in these consolidated cases is
directed to only one aspect of the procedures that the board
has adopted. Specifically, that narrow issue is whether the
board was legally obligated, shortly after these juvenile
aggravated murderers were sentenced to life imprisonment,
to set an actual parole release date for them, or whether the
board has authority to choose instead to first determine if the
inmate is susceptible to rehabilitation in the foreseeable
future, and set a binding release date only if the board
decides that the answer is yes.
To resolve that issue, we should first look to the
board's powers and responsibilities, and in particular the
extent to which the legislature has delegated to the board the
responsibility to decide the policies and procedures for parol-
ing juvenile aggravated murderers. Like other executive
branch agencies, the Board of Parole is a creation of the leg-
islature. The board has no general jurisdiction or inherent

632 	State ex rel Engweiler v. Felton
authority to exercise any particular power of any kind. See
Ochoco Const. u. DLCD, 295 Or 422, 426, 667 P2d 499 (1983)
(agencies have no inherent power, but only power and
authority conferred on them by organic legislation); see gen-
erally Sunshine Dairy u. Peterson, 183 Or 305, 326-27, 193
P2d 543 (1948) (in construing statutes, agency power to act
must be expressly conferred by legislature). Instead, the
board derives its authority from the enabling legislation that
mandates the board's functions and grants the board the
powers needed to carry out those functions. See 1000 Friends
of Oregon u. LCDC, 301 Or 622, 627, 724 P2d 805 (1986)
(unless constitutional provision establishes agency's function
and authority, executive branch agency derives authority
principally from the enabling legislation that mandates par-
ticular agency's function and grants it power). Thus, like
other executive agencies, the board's powers and responsibil-
ities are limited to those that the legislature has expressly
authorized. The board can exercise implied authority only to
the extent that such authority is necessary to effectuate the
board's expressly granted powers. See Ochoco Const., 295 Or
at 433-39 (court would not imply agency authority except to
effectuate expressly granted power, regardless of policy argu-
ments in favor of such implication); Cabell u. City of Cottage
Grove, 170 Or 256, 272, 130 P2d 1013 (1943) (agency author-
ity may be implied as "reasonably and necessarily incident to
those expressly granted"); Lee, Inc. u. Pac. Tel. & Tel. Co., 154
Or 272, 279, 59 P2d 683 (1936) (same principle applies to
executive branch officials).1
Those principles are fundamental to resolving the
issue before us. As we have previously held, the power to
parole an inmate does not inhere in the courts, the governor,
or any executive branch agency. See generally Anderson
u. Alexander, 191 Or 409, 420-28, 229 P2d 633 (1951) (dis-
cussing 	parole 	power 	generally; 	citing authorities 	with
approval). Instead, it is for the legislature to decide whether
1 This court has applied essentially the same general principle-that an
agency may exercise only expressly granted authority and any powers necessarily
incident to that power-to the board. See Severy v. Board of Parole, 318 Or 172, 176
n 7, 864 P2d 368 (1993) (where relevant statutes did not confer authority on board
to take particular action, board could not confer such authority on itself through
rulemaking).

Cite as 350 Or 592
any particular group or class of inmates is eligible for parole
before the expiration of their court-imposed sentences and, if
so, which branch of government will be responsible for mak-
ing their parole decisions and on what terms. Id. Any exami-
nation of the board's authority in this case, consequently,
should begin with the enabling legislation that confers
authority 	on 	the 	board 	to 	parole 	juvenile 	aggravated
murderers.
Identifying 	that 	authority 	is 	not, 	however, 	a
straightforward exercise. As I will outline, only one statute
serves as the potential source for the board's power to parole
any aggravated murderer, adult or juvenile. That statute is
ORS 144.110(2)(b), which provides that the board may not
parole any person convicted of aggravated murder, except
pursuant to ORS 163.105. As the majority concludes, not all
of the procedural requirements of ORS 163.105 fit the cir-
cumstances of juveniles convicted of aggravated murder.
That conclusion, however, means only one thing: the board is
required by that statutory scheme to apply the procedural
requirements of the statute to the degree possible. If none
apply, then the board has the authority to adopt appropriate
procedures, and the legislature has not confined the board's
authority to do so. That conclusion does not mean, as the
majority concludes, that ORS 144.110(2)(b) and the proce-
dural requirements of ORS 163.105 are inapplicable to juve-
nile 	aggravated murderers. 	Any such conclusion would
require us to hold, as I will explain, that the board lacks
authority to parole juvenile aggravated murderers at all,
because no other statute gives the board such authority.
To provide some context for that analysis, it is help-
ful to briefly examine the board's parole authority more gen-
erally, from past to present. 2 The board's power to grant
parole, and to adopt the policies and procedures for doing so,
is of relatively recent vintage. That power did not reside in
the board until approximately 1939. Before then, although a
2 Throughout much of its history, the board was denominated the State Board
of Parole and Probation, rather than the State Board of Parole and Post-Prison
Supervision. See, e.g., ORS 144.010 (1959) (creating board of five members). Ref-
erences to the board in this opinion include the board as it has been variously
denominated over the years.

634 	State ex rel Engweiler v. Felton
state parole board existed, the power to parole persons com-
mitted to the custody of the state prison system resided only
in the governor and in the court that had sentenced an
inmate. See generally Anderson, 191 Or at 420-21 (describing
former scheme). 3 The board's role in granting parole was
investigatory and advisory-it provided information perti-
nent to the decision, and it could initiate a parole decision by
recommending that the governor parole an inmate. Id.; see
also Fehl v. Martin, 155 Or 455, 455-56, 64 P2d 631 (1937)
(quoting 	then-effective 	statutes 	providing for 	governor's
power to parole inmates on governor's motion, or on recom-
mendation of parole board). The board, however, had no
parole power of its own.
The legislature dramatically changed that structure
in 1939 when it created a statewide parole and probation sys-
tem. See generally Or Laws 1939, ch 266 (creating state
parole and probation system). With that change, the legisla-
ture vested authority in the parole board to make parole
release decisions and simultaneously divested sentencing
courts and the governor of that parole power. See generally
Anderson, 	191 	Or 	at 	420-21 	(describing the 	legislative
changes). In doing so, the legislature gave the board broad
general authority both to make parole release decisions and
to promulgate rules governing those decisions. 4 Eventually,
the board's general parole power was codified in 	ORS
144.050. For 30 years, that statute changed little, except to
alter the board's parole authority over inmates confined in
county jails. 	Compare, 	e.g., 	ORS 	144.050 (1971) (board
authorized to parole inmates confined in any county jail for
six months or more) with ORS 144.050 (1987) (no board
authority to parole county jail inmates). As to inmates com-
mitted to state penal institutions, the board's authority
3 E.g., OCLA 26-1230 (providing that all courts "shall have the power*** to
parole persons convicted" of crimes); OCLA 26-2301 (creating parole board); OCLA
26-2304 (empowering board to supervise persons placed on parole, to make inves-
tigations, and to prepare a case history record to determine if they should be
paroled).
Although the board's authority to determine parole policy and procedures
was all but plenary for those inmates eligible for parole, many inmates were cate-
gorically ineligible for parole on any terms. They included habitual offenders and
inmates serving a life sentence. See 21 Op Atty Gen 90, 92-93 (1942) (citing and dis-
cussing exclusions from board's parole authority).

Cite as 350 Or 592 (2011) 	635
remained constant during that time: Subject to other appli-
cable laws, the board had the power to parole "any" inmate
committed to the custody of the Department of Corrections
and "to establish rules applicable to parole." ORS 144.050
(1987).
In 1989, however, the board's authority again under-
went dramatic change. That year, the legislature adopted the
so-called "sentencing guidelines" system, which resulted in
determinate sentences for most offenders, with no eligibility
for parole. See generally State ex rel Engweiler v. Cook, 340
Or 373, 380-82, 133 P3d 904 (2006) (discussing former parole
matrix system and current sentencing guidelines scheme). In
accord with that change, the legislature amended ORS
144.050 to limit the board's parole release authority to per-
sons who had committed a crime before November 1, 1989:
"Subject to applicable laws, the State Board of Parole
and Post-Prison Supervision may authorize any inmate,
who is committed to the legal and physical custody of the
Department of Corrections for an offense committed prior to
November 1, 1989, to go upon parole subject to being
arrested and detained under written order of the board or
as provided in ORS 144.350. The state board may establish
rules applicable to parole."
ORS 144.050 (1989) (emphasis added). Beginning with that
amendment, and continuing to today, the board has no gen-
eral power to parole any inmate whose crime of conviction
was committed on or after November 1, 1989. For inmates
that the board may parole, however, the board retains broad
rulemaking authority to establish policies and procedures for
its parole release decisions.
If there were no other source of board authority to
release any group or class of inmates on parole, this case
would end with that statute. The conclusion would have to be
that, assuming that the legislature intended juvenile aggra-
vated murderers to be eligible for parole, and thus to not nec-
essarily serve their entire life sentence, the legislature had
not yet provided for any entity to exercise parole release
authority as to that class of offenders.
But one other relevant statute does exist: ORS
144.110(2)(b). It provides, as it has since 1977, that the board

636 	State ex rel Engweiler v. Felton
"shall not release a prisoner on parole who has been con-
victed of murder defined as aggravated murder * * * except
as provided in ORS 163.105." When the legislature enacted
that statute, it was a restriction on the broad parole author-
ity granted to the board under ORS 144.050. Now, with the
retraction of parole release authority for any crime commit-
ted after November 1, 1989, ORS 144.110(2)(b) stands as the
only statute that authorizes the board-albeit in indirect
terms-to parole anyone, adult or juvenile, convicted of
aggravated murder, regardless of the date of the offense. In
that regard, 	ORS 	144.110(2)(b) is both prohibition and
authorization. Expressly, it declares that the board "shall not
release" an inmate convicted of aggravated murder "except
as provided in ORS 163.105." Under the terms of that stat-
ute, then, a person convicted of aggravated murder can be
released on parole pursuant to ORS 163.105 or not at all. 5
The majority goes through the terms of ORS 163.105
at some length, analyzing, correctly, that many of its terms
do not, and cannot, apply to juveniles, because juveniles are
not subject to mandatory minimum sentences under ORS
161.620. 6 The majority's observations about the procedural
aspects of ORS 163.105 that do not fit the circumstances of
5 The majority expresses its disagreement with this analysis in a footnote. See
350 Or at 615-16 n 14. As part of its response, the majority asserts that ORS
144.110(2)(b) and ORS 163.105, in combination, are not a grant of authority to
parole aggravated murders, but are instead a restriction on that authority. I agree,
as I acknowledge above, that those statutes are not the most satisfying source of
authority to parole aggravated murderers, because of the indirect manner in which
that grant of authority is expressed. But if ORS 144,110(2)(b) and ORS 163.105 are
not such a grant, then there is none. The only statute that the majority points to as
filling the void is ORS 144.050, which by its terms unambiguously grants the board
authority to parole only those inmates whose crimes were committed before
November 1, 1989. The majority reasons that the date limitation does not apply to
aggravated murderers, because of a 1989 legislative "note" to ORS 144.110, which
declared that certain statutes continue to apply to aggravated murderers. The
cross-referenced statutes (which are all procedural in nature) do not include ORS
144.050. Thus, the majority's strained conclusion that the note somehow "effec-
tively operates" to create "an exception to the date limitation in ORS 144.050" (350
Or at 615-16 n 14) contradicts not only the express terms of ORS 144.050, but also
those of the very provision on which the majority relies.
6 Worth noting is that the legislature that enacted ORS 144.110(2)(b) would
have intended it to apply equally to adults and juveniles convicted of aggravated
murder. ORS 161.620, which precludes imposition of a life sentence without pos-
sibility of parole or mandatory minimum sentence on a juvenile offender tried as an
adult, was not enacted until 1985.

Cite as 350 Or 592 	637
juvenile aggravated murderers are not wrong. But the major-
ity's conclusion that ORS 144.110(2)(b) and ORS 163.105
therefore have no application to juvenile aggravated murder-
ers proves too much. If those statutes do not apply, then the
board lacks the necessary legislative grant of authority to
make parole release decisions for that class of offender. There
simply is no statute conferring authority on the board to
release juvenile aggravated murderers on any other terms,
and the board is not an entity that has inherent power of any
kind.
I do not, however, agree that the misfit between the
terms of ORS 163.105 and the circumstances of juvenile
aggravated murderers renders that statute wholly without
force or effect as to that class of offenders. Instead, on that
point, I agree with the Court of Appeals:
'We agree with relator that the fit between all the rele-
vant statutes is not a comfortable one. See Engweiler IV,
343 Or [536,] 543, 543 n 7, [175 P3d 408 (2007)] (noting
that, 'at least at first blush,' the 1989 versions of ORS
144.110(2)(b), ORS 163.105(1), and ORS 161.620 were
'potentially inconsistent'). Nevertheless, we conclude that
he too quickly seizes on apparent tensions between the stat-
utes in reaching the conclusion that they irreconcilably con-
flict, ignoring the obligation of the courts to search for a con-
struction that gives effect to all relevant provisions. See
ORS 174.010 ('where there are several provisions or partic-
ulars such construction is, if possible, to be adopted as will
give effect to all'); Liles v. Damon Corp., 345 Or 420, 424,
198 P.3d 926 (2008) (noting obligation of the courts 'to give
meaning to all parts of those statutes' in issue). Such a har-
monizing construction is possible; the key, in our view, is
discerning the difference between the authority of a court to
impose a sentence and the authority of the board to imple-
ment it.
"As we have noted, ORS 161.620 (1989) precluded the
'imposition' on juvenile aggravated murderers of a 30-year
'mandatory minimum sentence,' that is, a 30-year term of
confinement without possibility of parole as provided in
ORS 163.105(1)(c). Ordinarily, the terms 'imposition' and
'mandatory minimum sentence' refer to those aspects of a
criminal offender's sanction that are effectuated by a sen-
tencing court, as opposed to those aspects of the sanction-

638 	State ex rel Engweiler v. Felton
such as parole release-that are implemented by an admin-
istrative agency such as the board. See Engweiler IV, 343
Or at 552-53 (explaining that the phrase 'mandatory mini-
mum sentence' in ORS 161.620 (1989) 'mean[s] a minimum
period of incarceration that a trial court, by statute, is
required to impose as part of an offender's sentence' (citing
State v. Jones, 315 Or 225, 844 P2d 188 (1992))); see also
Gaynor v. Board of'Parole, 165 Or App 609, 614-15, 996 P2d
1020 (2000) (distinguishing between authority of sentenc-
ing court to impose sentence and authority of Board of
Parole and Post-Prison Supervision under ORS chapter 144
to implement sentence).
"ORS 163.105 (1989) itself expressly recognizes that
distinction by prohibiting the board and DOC from paroling
or releasing (for example, on work release or other forms of
temporary leave) an offender sentenced by a trial court to
life without possibility of parole, ORS 163.105(1)(b), and by
conferring on the board the authority to carry out proce-
dures applicable to persons sentenced to life with the pos-
sibility of parole. Indeed, in Engweiler IV, in answering a
certified question from the federal district court-whether
the 1989 versions of ORS 144.110(2)(b), ORS 163.105(1),
and ORS 161.620 'combined to create a situation in which
certain juveniles * * * convicted of aggravated murder were
not entitled to the possibility of parole,' 343 Or at 543 (foot-
note omitted)-the Supreme Court limited its analysis
entirely to the effect of ORS 161.620 (1989) on subsection
(1) of ORS 163.105 (1989) and did not so much as mention
any other subsections of the latter statute.
"Thus, when ORS 161.620 (1989) stated that 'the sen-
tence imposed' upon a juvenile convicted of aggravated
murder may not include any mandatory minimum sen-
tence, that directive precluded a sentencing court from
imposing an aspect of the sentence set out in subsection
(l)(c) of ORS 163.105 (1989). It said nothing, however,
about the authority of the board to implement the remain-
ing portions of the statute concerning release decisions, as
set out in ORS 163.105(2) to (4) (1989). Cf: State v. Walker,
192 Or App 535, 54 7, 86 P3d 690, rev den, 337 Or 327 (2004)
(where numerous statutes demonstrated that the legisla-
ture knew how to refer to a particular administrative
agency, the fact that it did not do so in the statute at issue
made it unlikely that it intended the latter statute to
encompass that agency). In other words, merely because a

Cite as 350 Or 592 	639
court may not impose a particular sentence mentioned in
ORS 163.105(1) does not necessarily require the conclusion
that the board does not remain subject to the requirements
of the balance of the statute with respect to juvenile aggra-
vated murderers."
State ex rel Engweiler v. Powers, 232 Or App 214, 225-27, 221
P3d 818 (2009) (footnote omitted) (emphasis in original).
In short, the inconsistencies that exist between the
procedures required by ORS 163.105 and the circumstances
of juvenile aggravated murderers can be reconciled, and
should be. Any other conclusion leaves the parole board pow-
erless to exercise parole release authority as to that class of
offender, because the legislature has not conferred that
authority on the board, and because ORS 144.050 and ORS
144.110(2)(b) expressly would prohibit the exercise ofrelease
authority on any other terms.
For that reason, the board not only was authorized
to promulgate the rules that petitioner challenges, it argua-
bly was obligated to do so. Under those rules, the board holds
a prison term hearing at which it determines a future date
(no fewer than 20 years of incarceration) to review the juve-
nile offender's suitability for eventual parole; the board does
not, at that initial hearing, set a binding parole release date. 7
OAR 255-032-0005(4) (1999) (provision for "prison term hear-
ing"); OAR 255-032-0011(2) (1999) (board may set review
date rather than projected release date at prison term hear-
ing, or may deny parole). At the future review, the board con-
siders the inmate's institutional conduct and rehabilitation
efforts, after which the board may establish a parole release
date or may set another review date, at which it will further
review the inmate's conduct and rehabilitation efforts. OAR
255-032-011 (6)-(7) (1999). Those rules, and the procedures
they require, are entirely consonant with those procedures of
ORS 163.105 that have application to juvenile aggravated
murderers serving life sentences. Even if the board was not
obligated to promulgate those rules to best effectuate the
7 When the board sets an actual release date, it is legally obligated to release
the inmate on that date, subject to limited exceptions. See ORS 144.245 (so provid-
ing); Hamel u. Johnson, 330 Or 180, 187, 998 P2d 661 (2000) (inmate who does not
have an unexpired minimum term must be released on the scheduled release date).

640 	State ex rel Engweiler v. Felton
terms of ORS 163.105, at the least, the board was entitled to
exercise its broad rule-making authority under ORS 144.050
to adopt those policies. Nothing in the statutory scheme pre-
cludes the board from exercising its rulemaking discretion in
thatway. 8
Because the board's only authority to parole any per-
son convicted of aggravated murder (including a juvenile)
arises under ORS 144.110(2)(b), which incorporates the pro-
cedural requirements of ORS 163.105, the board was not obli-
gated to set a release date for petitioners shortly after they
began serving their life sentences. Instead, either because
those statutes require the board to do so, or because the board
has discretion to do so in the exercise of its broad parole rule-
making authority, the board was authorized to adopt a pro-
cedure whereby it first sets a future date to review the
inmate's conduct and rehabilitation efforts, and based on
that review, sets a parole release date only after determining
that the inmate is susceptible to rehabilitation. 	Conse-
quently, in resolving the rule challenge brought by petitioner
Sopher, I would conclude that the rules are valid. For the
mandamus cases brought by relators Engweiler and Sopher,
I would affirm the decisions of the Court of Appeals vacating
the peremptory writ issued by the circuit court and remand-
ing for dismissal of the relators' petitions.
For the above reasons, I dissent.
Kistler, J., joins in this dissent.
8 The majority never grapples with this fundamental point about the statutory
scheme. Much of the majority's analysis is devoted to why ORS 144.110(2)(b) and
ORS 163.105 do not apply to juvenile aggravated murderers. I disagree with the
majority's analysis in that regard, for the reasons I have described. But the major-
ity's analysis is flawed for a second reason-it establishes only that the board is not
obligated to follow the procedural dictates of ORS 163.105 to the extent that they
can be applied to juveniles. That conclusion does not mean that the board is unable
to exercise its broad rule-making authority to the same end. Said another way,
ORS 163.105 creates a duty for the board to make parole decisions in a particular
way, one that limits the board's otherwise broad authority to make rules for parole
decisions. Removing that duty, and thus that limitation, means only that the
board's authority is unconstrained by the legislative policies that are in place for
adult aggravated murderers. It does not mean that the board lacks authority to
adopt parallel policies for juvenile aggravated murders sentenced to life
imprisonment.