Kennedy v. Board of Parole

Filed: October 29, 2003

IN THE COURT OF APPEALS OF THE STATE OF OREGON

KIMBER K. KENNEDY,

Petitioner,

v.

BOARD OF PAROLE AND POST- PRISON SUPERVISION,

Respondent.

A121713

Judicial Review from Board of Parole and Post-Prison Supervision.

On respondent's motion to dismiss filed July 8, 2003, and petitioner's response to motion to dismiss filed July 18, 2003.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kathleen Cegla, Assistant Attorney General, for motion.

Walter J. Ledesma, Deputy Public Defender, contra.

Before Brewer, Presiding Judge, and Linder and Wollheim, Judges.

PER CURIAM

Motion to dismiss denied.

PER CURIAM

The Board of Parole and Post-Prison Supervision moves to dismiss this petition for judicial review proceeding, arguing that petitioner will not be able to present a substantial question of law on judicial review. We deny the board's motion to dismiss.

Under ORS 144.335(6), a person wishing to challenge an order of the board must file a "motion for leave to proceed with judicial review based on a showing in the motion that a substantial question of law is presented for review." In this case, petitioner has not yet filed her request for leave to proceed under ORS 144.335(6).

While lack of subject matter jurisdiction can be raised at any time under ORAP 7.05(1)(c), (1) the board argues only that petitioner will not be able to present a substantial question of law. (2) In this setting, the motion practice contemplated is a motion for leave to proceed. A motion to dismiss on this ground at this stage of the proceeding does not appear to be contemplated by ORS 144.335(6). This case should proceed under ORS 144.335(6).

Motion to dismiss denied.

1. ORAP 7.05(1)(c) provides that "[a] party may raise an issue of the jurisdiction of the appellate court by motion at any time during the appellate process."

2. At this point, petitioner has filed her petition for judicial review with this court as required by ORS 144.335(4). Within 30 days of being served with petitioner's petitioner for judicial review, the board must serve petitioner with a copy of the record. ORS 144.335(5). Petitioner will have 60 days from the date that she is served with a copy of the record to file her motion for leave to proceed. ORS 144.335(6).