260 May 8, 2024 No. 13

IN THE SUPREME COURT OF THE 

STATE OF OREGON

TERRI LEE BROWN,

Plaintiff,

v.

TINA KOTEK,

Governor of the State of Oregon; 

Nichole Brown, 

Superintendent, 

Coffee Creek Correctional Facility; and 

Tasha Petersen, 

Administrator of Oregon Department of Corrections 

Offender Information Sentence Computation Unit,

Defendants.

(SC S071034)

En Banc

Original proceeding in habeas corpus.

Argued and submitted May 2, 2024.

Steven T. Wax, Oregon Justice Resource Center, 

Portland, argued the cause for plaintiff. Julia Yoshimoto, 

Oregon Justice Resource Center, Portland, filed the petition, 

the memorandum in support of the petition, and the reply 

for plaintiff. Also on those filings was Malori Maloney.

Kirsten Naito, Assistant Attorney General, Salem, argued

the cause for defendants. Paul L. Smith, Deputy Solicitor 

General, Salem, filed the memorandum in opposition. Also 

on the memorandum were Ellen F. Rosenblum, Attorney 

General, and Benjamin Gutman, Solicitor General.

GARRETT, J.

It is hereby ordered that plaintiff immediately be discharged from her illegal imprisonment. Pursuant to ORAP 

1.20(5) and notwithstanding ORAP 9.25 and ORAP 14.05

(3)(b), the State Court Administrator shall issue the appellate judgment immediately.
Cite as 372 Or 260 (2024) 261
262 Brown v. Kotek

GARRETT, J.

Plaintiff has petitioned for a writ of habeas corpus, 

requesting that this court exercise its original jurisdiction 

and order her immediate release from prison. Or Const,

Art VII (Amended), § 2 (“[T]he supreme court may, in its own 

discretion, take original jurisdiction in * ** habeas corpus 

proceedings.”).1 Plaintiff is incarcerated as the result of an 

order of Governor Tina Kotek that revoked an earlier conditional commutation of one of plaintiff’s sentences.2

 Plaintiff 

had received that earlier commutation in December 2020 

from then-Governor Kate Brown and finished serving all 

of her sentences in February 2023. Governor Kotek’s order 

of revocation issued in December 2023. For the reasons 

explained in this opinion, we conclude that, because plaintiff 

had finished serving all of her sentences when the Governor 

revoked the conditional commutation, the Governor lacked 

authority, under the terms of the commutation, to issue the 

revocation. We also reject the state’s argument that plaintiff 

waived her right to challenge her present imprisonment.

Plaintiff’s imprisonment is unlawful. Accordingly, 

we order that she immediately be discharged from custody.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are procedural and uncontested.3

Plaintiff pleaded guilty to two counts of mail theft or receipt 

of stolen mail. ORS 164.162. On Count 1, she was sentenced 

to 30 months of incarceration and 24 months of post-prison 

supervision (PPS). On Count 2, she was sentenced to 30 

months of incarceration, consecutive to Count 1, and no 

1 See also ORS 34.310 (providing that every person who is “imprisoned or 

otherwise restrained of liberty,” with exceptions, “may prosecute a writ of habeas 

corpus to inquire into the cause of such imprisonment or restraint, and if illegal, 

to be delivered therefrom”).

2 Defendants are Governor Kotek, the Superintendent of Coffee Creek 

Correctional Facility (where plaintiff is currently in custody), and the 

Administrator of the Oregon Department of Corrections Offender Information 

Sentence Computation Unit. Throughout this opinion, individual defendants are 

referred to by name, and defendants collectively are referred to as “the state.”

3 Throughout this opinion, we refer to various dates and time periods regarding plaintiff’s convictions and sentences. Those dates and time periods were 

likely determined based on a variety of considerations. In all events, because 

those dates and periods are undisputed, we need not—and do not—explain how 

they were determined.
Cite as 372 Or 260 (2024) 263

PPS. As of December 2020, plaintiff’s term of incarceration was set to be completed in August 2021. That is, she 

had approximately eight months of incarceration remaining 

before being released to serve 24 months of PPS.

In December 2020, Governor Brown issued commutations of sentences in connection with the COVID-19 

pandemic. In plaintiff’s case, Governor Brown ordered a 

“Conditional and Revocable Commutation of Sentence.” The 

commutation order stated that, as to Count 2, plaintiff was 

“scheduled to complete her term of incarceration on August 22,

2021.” The Governor then commuted the remaining term 

of incarceration “from incarceration to post-prison supervision.” The commutation was subject to a variety of conditions, including that (1) “[f]rom the effective date of [the] 

order through the end of her [PPS] calculated to August 22, 

2021, [plaintiff] shall not violate any state or federal law”;

(2) the commutation order “[did] not relieve [plaintiff] 

of [PPS]”; (3) plaintiff shall “agree to, and abide by, the 

terms specified in the Agreement Accepting Conditional 

and Revocable Commutation” (hereinafter, the acceptance 

agreement); and (4) if the Governor, in her judgment, should 

determine that plaintiff “has violated any of the conditions of 

this conditional and revocable commutation,” or that plaintiff’s “continued release in the community no longer serves 

the interests of the State of Oregon,” the “commutation may 

be revoked, at which time [plaintiff] shall be returned to 

prison to serve out her sentence that was remaining at the 

time this commutation was granted according to the terms 

of the Judgment of Conviction.”

The acceptance agreement stated that “the Governor

[was] willing to grant a commutation to [plaintiff] only 

as provided in this agreement[.]” Among other things, the 

agreement provided that (1) “[f]rom the effective date of the 

[commutation order] through August 22, 2021, [plaintiff] 

shall not violate any state or federal law”; and (2) plaintiff “shall abide by the terms and conditions of any postprison supervision that is imposed in connection with the 

conditional and revocable commutation and her Judgment 

of Conviction.” The agreement included a waiver provision, stating that plaintiff waived any legal challenges to 
264 Brown v. Kotek

future revocation of the commutation and to being returned 

to prison, including through a petition for a writ of habeas 

corpus:

“If the Governor of the State of Oregon should determine 

in his or her sole judgment that [plaintiff] has violated any 

of the conditions of this conditional and revocable commutation, the Governor may revoke such commutation and 

require that [plaintiff] return to prison to serve out her 

sentence that was remaining at the time her commutation 

was granted according to the terms of the Judgment of 

Conviction. [Plaintiff] hereby waives any potential objection 

or challenge to having the commutation revoked and being 

returned to prison under such a determination, including an 

application for a writ of habeas corpus.”

(Emphasis added.) Plaintiff signed the acceptance agreement, which included an acknowledgement that she had 

“carefully reviewed” both the agreement and the commutation order and that she “hereby agree[d] to its terms.”

The Governor’s conditional commutation became 

effective on December 23, 2020. Plaintiff was released from 

prison and placed under the authority of the Board of Parole 

and Post-Prison Supervision (BOPPS) to serve her PPS.

In May 2021—approximately four months after her 

release from prison—plaintiff pleaded no contest to violating a general condition of her PPS (i.e., that she “[o]bey all 

laws, municipal, county, state, and federal”). A hearings 

officer found her in violation of her PPS, and a 30-day jail 

sanction was imposed. The parties do not dispute that plaintiff’s conduct constituted a violation of the conditions of her 

commutation. Other than the imposition of the sanction, we 

are unaware of any other actions being taken at that point.

Almost two years later, in February 2023, BOPPS 

issued a “Certificate of Supervision Expiration,” stating that 

plaintiff had “completed the period of post-prison supervision 

imposed, and ** * is expired from supervision.” In other words, 

plaintiff had fulfilled her PPS obligations and was no longer 

subject to any sentence. The state does not dispute that point.

In February 2024, approximately one year after 

BOPPS issued its certificate of supervision expiration, 
Cite as 372 Or 260 (2024) 265

plaintiff was arrested and sent to Coffee Creek Correctional 

Facility. According to plaintiff, several days after her arrest, 

she learned that her commutation had been revoked. The 

record reflects that Governor Kotek had issued an order in 

December 2023, stating that she had “determined in [her] 

sole judgment that [plaintiff had] violated conditions of [the]

Conditional and Revocable Commutation of Sentence.” A 

warrant was issued for plaintiff’s arrest, leading to her 

present imprisonment.

Thereafter, plaintiff filed a petition for a writ of 

habeas corpus in this court, contending that she is unlawfully incarcerated. Her petition was accompanied by a supporting memorandum in which she argues that Governor 

Kotek’s revocation of her earlier conditional commutation 

violates a variety of state and federal constitutional principles, including that the Governor lacks authority to revoke a 

commutation after the expiration of a sentence. In response 

to our order requiring the state to show cause why a writ of 

habeas corpus should not issue, the state filed memoranda 

contending that (1) the Governor had authority to revoke 

plaintiff’s commutation after her sentence had expired;

(2) plaintiff, in accepting Governor Brown’s conditional 

commutation, had waived her right to seek habeas relief or 

otherwise challenge the revocation; and (3) plaintiff’s constitutional challenges are meritless. Plaintiff counters that 

the purported waiver in the acceptance agreement that she 

signed is invalid or otherwise unenforceable.

After considering those filings, the court allowed 

plaintiff’s petition and issued a writ of habeas corpus, and 

then heard oral argument on May 2. Having now considered 

the parties’ filings and their oral arguments, we conclude 

that, when the Governor revoked plaintiff’s conditional commutation, she lacked the authority to do so under the terms 

of the commutation.

ANALYSIS

The Governor has the constitutional authority 

to grant clemency, including commutations. Specifically, 

Article V, section 14, of the Oregon Constitution provides, in 

part:
266 Brown v. Kotek

“[The Governor] shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences 

[sic] except treason, subject to such regulations as may be 

provided by law. Upon conviction for treason [the Governor] 

shall have power to suspend the execution of the sentence 

until the case shall be reported to the Legislative Assembly, 

at its next meeting, when the Legislative Assembly shall 

either grant a pardon, commute the sentence, direct the 

execution of the sentence, or grant a farther [sic] reprieve.”

The Governor is the “sole repository” of this constitutional authority. Eacret et ux v. Holmes, 215 Or 121, 126, 

333 P2d 741 (1958). In exercising her authority, however, “the 

Governor is responsible for determining the constitutionality of [her] actions in the first instance, and, to the extent 

that this court may review those actions, the court does 

so with that consideration in mind.” Haugen v. Kitzhaber, 

353 Or 715, 720, 306 P3d 592 (2013), cert den, 571 US 1167 

(2014) (citing Lipscomb v. State Bd. of Higher Ed., 305 Or 

472, 478-79, 753 P2d 939 (1988)); see Lipscomb, 305 Or at 

478-79 (“Governors, legislators, and other public officials are 

responsible in the first instance for determining their constitutional duties[.]”). However, as we explained in Haugen, 

that principle “does not exempt the Governor’s actions from 

judicial review.” 353 Or at 720. In so explaining, we relied 

on Lipscomb, in which the court had declined to adopt an 

argument that the court should defer to a Governor’s understanding of her constitutional powers if arguably correct. Id.

Thus, although this court does not have a role in reviewing a 

governor’s exercise of discretion either to grant or to revoke 

a conditional commutation, we can review whether the revocation of plaintiff’s commutation exceeded the Governor’s 

authority under these circumstances—when plaintiff was 

no longer subject to any sentence at all. For reasons that 

we will explain, even assuming (without deciding) that the 

state and federal constitutions permit a Governor to revoke 

a commutation after a commutee’s sentence has expired, 

we conclude that the terms of the conditional commutation 

in this case—which represents an agreement between the 

Governor and plaintiff—preclude that result.

The Governor’s plenary power includes the power 

to grant unconditional forms of clemency that require no 
Cite as 372 Or 260 (2024) 267

assent by the commutee. Haugen, 353 Or at 739, 743 (concluding that an unconditional reprieve was “valid and 

effective, regardless of [the recipient’s] acceptance of that 

reprieve”). Here, however, Governor Brown exercised her 

plenary power through the issuance of a conditional commutation order. In exchange for plaintiff having her remaining term of incarceration commuted to post-prison supervision, the Governor required plaintiff to agree to be bound 

by the acceptance agreement. In other words, the Governor 

structured the exercise of her clemency power as something 

akin to a contractual arrangement that required plaintiff’s 

acceptance.4

As pertinent here, the acceptance agreement 

required that plaintiff “abide by the terms and conditions 

of any post-prison supervision that is imposed in connection 

with the conditional and revocable commutation and her 

Judgment of Conviction.” The text of the agreement thus 

reflects that the Governor chose to incorporate the statutory and regulatory PPS framework. The state acknowledges as much in this court, stating that, when plaintiff was 

released, “[s]he was placed on community supervision under 

the authority of [BOPPS].” See OAR 213-005-0003 (“When 

a term of post-prison supervision is imposed as part of a 

sentence, the offender shall serve the term of supervision 

in the community under the supervision of the Department 

of Corrections or a corrections agency designated by the 

Department.”). And the record reflects that, when plaintiff was alleged to have violated the conditions of her PPS 

during the term of her supervision, a hearings process was 

quickly initiated, plaintiff pleaded no contest and was found 

in violation by a hearings officer, and she received a 30-day 

jail sanction. See OAR ch 255, div 75 (describing procedures 

for addressing alleged violations of PPS).

The acceptance agreement also included a provision, similar to the one in Governor Brown’s conditional 

commutation, which provided that the Governor “may” 

revoke the commutation if the Governor determined, in her 

4 Given the circumstances of this case, where Governor Brown chose to 

require plaintiff’s acceptance of the conditions in the commutation, we need 

not—and do not—decide whether the Governor’s plenary power includes the 

authority to impose conditions without a commutee’s consent.
268 Brown v. Kotek

discretion, that plaintiff had violated one of its conditions, 

which would lead to plaintiff being required to “return to 

prison to serve out her sentence that was remaining at the 

time her commutation was granted according to the terms 

of the Judgment of Conviction.” Before this court, the state 

takes the broad and categorical position that, even though 

plaintiff’s sentence had expired before her commutation was 

revoked, the revocation provision allows any Governor—at 

any time during plaintiff’s natural life—to revoke the commutation and return her to prison upon a determination 

that she violated the terms of the commutation while she 

had been under supervision. As the state acknowledged at 

oral argument, under its interpretation, revocation could 

occur 50 years after plaintiff’s sentence had expired, resulting in her arrest and imprisonment at that time.

However, the state’s argument is inconsistent with 

the Governor’s express incorporation of PPS—which is circumscribed by a statutory and regulatory framework—into 

the terms of the commutation order and plaintiff’s acceptance agreement. PPS is a “term of community supervision.” OAR 213-005-0002(1) (emphasis added). That term

is determinate. See ORS 144.103 (providing for duration 

of PPS); OAR 213-005-0002(2)(a) (same). Offenders5 are 

required to “serve the term of supervision.” OAR 213-005-

0003 (emphasis added). If an offender is alleged to have 

violated a condition of PPS, then, during the term of supervision, the offender may be arrested and a hearing is initiated to determine if the offender violated the condition. See 

ORS 144.350(1)(a)(A) (providing that a supervisory authority “may order the arrest and detention of any person then 

under the supervision, custody or control” of the supervisory 

authority if there are “reasonable grounds to believe” that 

the person has “[v]iolated the conditions of * ** post-prison 

supervision” (emphasis added)). The initiation of a hearing means that a “person under supervision is presented a 

Notice of Rights.” OAR 255-075-0001(3) (emphasis added); 

see also OAR 255-075-0005(3) (providing that, generally, 

5 See OAR 255-005-0005(39) (defining “offender” as “[a]ny person under the 

supervision of the Department of Corrections or a local supervisory authority 

who is not presently in the custody of a correctional facility, including persons on 

*** post-prison supervision”).
Cite as 372 Or 260 (2024) 269

“the Sanction Authority shall impose administrative sanctions or shall initiate a hearing within fifteen (15) days of 

arrest or detention for the violation of parole or post-prison 

supervision conditions”). Once initiated, jurisdiction over 

the offender is retained until the proceedings are resolved. 

See OAR 255-094-0020(1) (“During the pendency of violation proceedings, *** the Releasing Authority retains 

jurisdiction over the offender until the proceedings are 

resolved.”). If an offender is found to have violated the conditions of PPS after the hearing, or if the offender waives 

the right to a hearing, administrative sanctions may be 

imposed or PPS may be revoked. See OAR 255-075-0067 

(describing authority to impose administrative sanctions or 

revoke supervision). Ultimately, a term of PPS ends and the 

sentence expires. See OAR 255-094-0020(3) (“After expiration of the sentence of an offender on *** post-prison supervision, the Releasing Authority shall send written notice of 

the expiration to the offender and the supervisory authority.”); see also ORS 144.085(6) (“The board shall send written notification to the supervised offender of the expiration 

of the sentence.”).

Thus, the PPS framework imposes a temporal limit 

on the authority to sanction or revoke an offender’s postprison supervision for a violation of a condition: As a general 

proposition, violation proceedings must be initiated while 

the offender is under supervision (i.e., before the offender’s 

sentence has expired) and not after the term of supervision has ended and the offender is no longer subject to any 

sentence. See ORS 144.350(1)(a)(A) (providing that, if there 

are “reasonable grounds to believe” that the person has 

“[v]iolated the conditions of * ** post-prison supervision,” a 

supervisory authority “may order the arrest and detention 

of any person then under the supervision, custody or control”

of the supervisory authority (emphasis added)); OAR 255-

075-0001(3) (providing that a hearing is initiated when a 

“person under supervision is presented a Notice of Rights” 

(emphasis added)).

By specifying that plaintiff was obligated to serve 

PPS, which is governed by a statutory and regulatory scheme,

her conditional commutation—together with the acceptance 
270 Brown v. Kotek

agreement to which she was bound—incorporated the general principle that the authority to sanction an offender for 

a PPS violation, or to revoke the offender’s PPS altogether, 

is time-limited and must be initiated before the offender’s 

PPS term ends and while the offender remains subject to a 

sentence. In this case, although the commutation and the 

agreement clearly stated that the Governor, in her sole discretion, could revoke the commutation for a violation of its 

conditions, there is no indication that the authority to revoke 

would survive the expiration of plaintiff’s sentence. Nor is 

there any indication that, contrary to the ordinary application of the statutes and rules governing PPS, plaintiff would 

face the prospect of revocation and future imprisonment 

for the remainder of her life. Thus, by requiring plaintiff 

to serve PPS, and without clearly expressing an intent to 

depart from the temporal limitations that otherwise apply 

to PPS, the Governor limited her own ability, and the ability 

of any future holder of that office, to revoke the commutation 

to the period of time before plaintiff’s PPS had ended and 

her sentence had expired.

Here, it is undisputed that, in February 2023, 

BOPPS issued its certificate stating that plaintiff had “completed the period of post-prison supervision imposed” and 

that she was “expired from supervision.” At that point, plaintiff was no longer subject to any sentence. Accordingly, when 

the Governor revoked plaintiff’s commutation in December 

2023, she lacked the authority to do so under the terms of 

the December 2020 order of conditional commutation.6

We emphasize that the foregoing conclusion is a 

function of the way in which we understand Governor Brown 

to have structured plaintiff’s conditional commutation. The 

parties’ dispute before this court has focused on whether 

the state and federal constitutions permit the Governor to 

revoke a commutation following the expiration of a sentence. 

That is a difficult question of first impression in Oregon, 

and one on which other state courts have reached competing 

6 Because it is undisputed in this case that plaintiff was not subject to any 

sentence when the Governor revoked her conditional commutation, we need not—

and do not—decide the precise point at which the Governor’s authority to revoke 

plaintiff’s conditional commutation of sentence ended.
Cite as 372 Or 260 (2024) 271

conclusions.7 But we need not resolve that question today, 

because, even assuming that such authority exists, we 

conclude that the December 2020 commutation order and 

the acceptance agreement are self-limiting. By specifying 

that plaintiff was obligated to serve PPS, without expressly 

reserving the right of the Governor to revoke the commutation even after plaintiff’s sentence had expired, the commutation and acceptance agreement preclude that authority.

That conclusion does not fully resolve this matter. 

The state alternatively contends that plaintiff waived her 

right to seek habeas relief and to challenge both Governor 

Kotek’s revocation and her current imprisonment.

It is true that the acceptance agreement includes a 

broadly worded waiver of plaintiff’s rights. Plaintiff contests 

the validity of that waiver, asserting, among other things, 

that the process resulting in her acceptance of the commutation was “rushed” and that the implications of the waiver 

were never explained to her; thus, she did not knowingly 

and voluntarily agree to waive her right to challenge the 

Governor’s revocation, or her current imprisonment, or her 

right to seek habeas corpus under the circumstances.

In this case, however, we conclude that it is unnecessary to address those points. That is because, even if we 

assume that plaintiff effected a valid waiver of some kind, we 

decline to read the text of this waiver as broadly as the state’s 

argument requires. The waiver provision can be interpreted 

in a manner consistent with the ordinary understanding 

of the PPS framework described above—i.e., that plaintiff 

was waiving the right to challenge a revocation that was 

initiated before the expiration of her sentence. By taking 

the position that plaintiff forfeited the ability to challenge a 

revocation that was ordered even after the completion of her 

sentence, the state would have us conclude that plaintiff, in 

7 Compare Rowell v. Dutton, 688 SW2d 474, 477 (Tenn Crim App 1985) 

(“Thus we hold that the Governor’s authority to revoke exists only so long as 

the commutee’s sentence has not expired. Any other result would mean that the 

Governor and his successors in office would retain the power to revoke a commutation throughout the balance of a commutee’s life, regardless of the offense, and 

could lead to absurd results.”), with Beal v. Mayo, 70 So 2d 367, 368 (Fla 1954)

(“[R]ecommitment for breach of condition is proper notwithstanding the fact 

that the period of original sentence has expired when the conditional pardon is 

revoked.”).
272 Brown v. Kotek

exchange for being released from prison eight months early, 

chose not only to accept the risk of future imprisonment for 

a violation of the conditions of the commutation—without 

process or the right of judicial review—but to run that risk 

for the remainder of her life. Even assuming that a choice of 

such gravity by a commutee could be enforceable—a question we do not decide—we would require it to be expressed 

with the utmost clarity. The acceptance agreement in this 

case does not meet that standard. See State v. Meyrick, 313 

Or 125, 131, 831 P2d 666 (1992) (observing that courts “are 

reluctant to find that fundamental constitutional rights 

have been waived”).

Accordingly, under the circumstances of this case, 

we conclude that Governor Kotek lacked authority to revoke 

plaintiff’s conditional commutation and that, as a result, 

plaintiff’s present imprisonment is unlawful. We order 

defendants to discharge plaintiff from custody immediately. 

See ORS 34.700(1) (“If it appears that the party detained 

is imprisoned or restrained illegally, judgment shall be 

given that the party be discharged forthwith[.]”). We further 

waive otherwise applicable appellate rules relating to reconsideration and the issuance of the appellate judgment, and 

we direct the State Court Administrator to issue the appellate judgment immediately. See ORAP 1.20(5) (permitting 

the court, for good cause and on its own motion, to waive 

any rule of appellate procedure); ORAP 9.25 (providing for 

reconsideration); ORAP 14.05(3)(b) (providing for the timing 

of the issuance of the appellate judgment).8

It is hereby ordered that plaintiff immediately be 

discharged from her illegal imprisonment. Pursuant to 

ORAP 1.20(5) and notwithstanding ORAP 9.25 and ORAP 

14.05(3)(b), the State Court Administrator shall issue the 

appellate judgment immediately.

8 ORS 34.700(2) provides that a court “shall include in the judgment an order 

that the defendant pay the attorney fees incurred by the petition, not to exceed 

$100,” if “[t]he court enters a judgment requiring that the plaintiff be discharged” 

and “[t]he court finds that the allegations or defenses in the return were frivolous.” Under the circumstances, we do not find that the state’s position was frivolous. For that reason, plaintiff is not entitled to attorney fees under the statute.