A Baker City man whose prison sentence was reduced by six months in a commutation from Oregon Gov. Kate Brown in 2021 contends that Brown’s successor, Tina Kotek, violated his constitutional rights by revoking the commutation in March 2024, resulting in his arrest and return to prison.

Michael Scott Tugman, 36, argues that Kotek’s decision led to a longer total sentence, including prison and probation, than his original sentence stemming from his conviction in 2020 for violating his probation.

Tugman was on probation after pleading guilty in September 2019 in Baker County to failing to report as a sex offender.

Tugman, who is represented by Malori Maloney, an attorney with the Oregon Justice Resource Center in Portland, is an inmate at Powder River Correctional Facility in Baker City.

His earliest release date is Oct. 8, 2024, according to the Oregon Department of Corrections.

Maloney initially filed a petition for a writ of habeas corpus — seeking Tugman’s immediate release from prison — with the Oregon Supreme Court on Aug. 16.

Benjamin Gutman, solicitor general with the Oregon Department of Justice, filed a response with the Supreme Court on Sept. 4 in which he argued that Kotek’s decision to revoke Tugman’s commutation did not violate his constitutional rights, in part because he had committed another crime, and so had violated terms of his commutation.

On Sept. 13 the state Supreme Court declined to consider Tugman’s case.

The denial was “without prejudice,” however, meaning Tugman could file a new habeas corpus petition in Baker County Circuit Court.

Maloney filed that petition on Sept. 17.

Judge Matt Shirtcliff gave the state until Sept. 24 to file a response.

Natalie Fisher, an assistant attorney general, filed a memo on Sept. 24.

A hearing on the matter is set for Oct. 1 at 9 a.m. in Baker County Circuit Court.

Maloney declined to comment on the pending case.

Although the state Supreme Court declined to consider Tugman’s case, two justices, Stephen K. Bushong and Roger J. DeHoog, dissented with that opinion.

In the dissent, written by Bushong, he argues that the Supreme Court should have ruled on Tugman’s petition in part because the legal issues could affect other current inmates who, like Tugman, had their sentences first commuted by Brown, then revoked by Kotek.

“The court also has a role, in my view, in determining whether the governor exceeded any legal limitations on her authority to determine the consequences of revoking a commutation, if, in fact, that is the effect of her action,” Bushong wrote in his dissent.

“Accordingly, determining whether any of the procedural safeguards required by due process apply to the governor’s revocation, and whether the law limits the consequences that may be imposed upon revocation, could potentially affect many other cases,” Bushong wrote.

Bushong noted that although a circuit court judge can also rule on a petition such as Tugman’s, that ruling “would not be binding on other circuit courts, thereby leading to the possibility of inconsistent decisions.”

Circuit court decisions can also be appealed, Bushong pointed out in his dissent.

Because appeals can take many months to be resolved, it’s possible that other inmates could be denied the “swift relief” that a habeas corpus writ can provide, Bushong argued.

Tugman’s sentence, commutation and revocation

Maloney wrote in the petition she filed Sept. 17 in Baker County Circuit Court that Tugman, when he was convicted in 2020 for probation violation, was sentenced to 16 months in prison and 24 months of probation, a total sentence of 40 months.

On March 29, 2021, then-Gov. Kate Brown commuted the rest of Tugman’s prison sentence, which was about six months (177 days), to probation. Tugman was released from Powder River Correctional Facility on April 1, 2021.

The commutation order Brown signed on March 29, 2021, one of several she signed during the pandemic, included 13 inmates and didn’t mention Tugman by name, according to Maloney’s Sept. 17 petition.

Maloney wrote that Tugman was never given a copy of Brown’s commutation order, nor was he told that the commutation was both “conditional and revocable.”

Tugman remained out of prison for almost three years after his release in April 2021.

On Jan. 19, 2024, Tugman was arrested in Baker City for failing to report as a sex offender. According to Maloney’s memo in support of Tugman’s habeas corpus petition, Tugman failed to report within 10 days of changing his address, as state law requires for registered sex offenders.

He pleaded guilty to the charge on Feb. 5, 2024, and was sentenced to 30 days in jail and 36 months probation.

Tugman was released from the Baker County Jail in late February.

According to Maloney’s memo, after Tugman was released from jail, his probation officer, Rebecca Monahan, told Tugman that Kotek might revoke his commutation.

Monahan gave Maloney a copy of an email she received on April 5, 2024, from Dylan Arthur, executive director of the Oregon Board of Parole & Post-Prison Supervision, in which Arthur wrote that Kotek had revoked Tugman’s commutation effective March 12. Arthur wrote that the parole board would issue an arrest warrant for Tugman.

According to Maloney’s memo, on April 15 Tugman went to the Baker County Parole and Probation office for a scheduled check-in with Monahan.

Monahan let Tugman meet with his cousin and with his partner, who is pregnant with Tugman’s child.

Monahan then took Tugman to the Baker County Jail. He was in that jail for about 10 days, then was transferred to the Multnomah County Jail and then to the Coffee Creek Correctional Facility in Hillsboro. Tugman was later transferred to Powder River in Baker City, where he remains as he serves the 177 days that were left on his prison term and were changed to probation under Brown’s commutation.

Prison term vs. probationary period

Maloney argues that Kotek’s revocation of Tugman’s commutation “violates the separation of powers provision of the Oregon Constitution” because it results in a longer total sentence, combining prison and probation, than his original 2020 sentence.

If a court doesn’t grant Tugman’s habeas corpus petition, his total sentence will be more than 67 months, Maloney wrote — 16 months in prison and more than 51 months of probation. The sentence includes 24 months of probation after Tugman is released from prison, likely on Oct. 8, 2024.

Gutman, the solicitor general representing the state in the case, argued in his response to the state Supreme Court that Tugman will not serve “a single day longer in prison” than the 16 months in his 2020 sentence. A total of 177 days of that sentence remained after Kotek revoked Tugman’s commutation. That 177-day term ends Oct. 8.

The dispute, Gutman wrote, is about the length of Tugman’s probation after he is released from prison.

Gutman wrote that Tugman is not entitled to be released from prison now because he hasn’t served the original 16-month term.

Gutman also argued in his response that a person whose sentence is commuted, as Tugman’s was, has the potential to ultimately receive a longer sentence, specifically a longer probation period, if that person violates the conditions of the commutation.

Tugman did so, Gutman contends, when he failed to report as a sex offender, the offense Tugman pleaded guilty to in February of this year and which led Kotek to revoke his commutation.

Fisher, the assistant attorney general who filed a memo in response to Tugman’s Sept. 17 habeas petition, reiterated the point that Tugman, with his scheduled release date of Oct. 8, will serve the precise prison term from his 2020 conviction, not a longer term.

As a result, Fisher contends, the judge should dismiss Tugman’s habeas petition.

Fisher argues that a habeas petition can’t be used to address claims regarding the length of a probation term (as separate from the prison term).

Fisher also contends that Tugman’s habeas petition is not appropriate because he has another legal remedy to contest the length of the probation, which is to petition a court challenging the state parole board’s decision on the duration of Tugman’s probation term after he is released from prison.

Kotek’s other revocations

Kotek, who was elected in 2022 and took office in January 2023, has revoked about 125 of the commutations that Brown, her predecessor, granted during the pandemic.

In most cases, as with Tugman’s, Kotek’s revoked commutations for people who had committed a crime after their sentence was commuted.

Tugman isn’t the only inmate to file habeas corpus petitions challenging Kotek’s decision to revoke their commutation.

In a May 8, 2024, decision, the Oregon Supreme Court ordered that Terri Lee Brown be immediately released from prison because her imprisonment was “unlawful.”

As with Tugman, then-Gov. Brown commuted Terri Brown’s remaining prison sentence, on a guilty plea for mail theft, to probation.

The state Supreme Court concluded that Kotek did not have authority to revoke that commutation because Terri Brown had finished her original sentence, including probation, in February 2023, about 10 months before Kotek revoked her commutation.

Maloney argues that Tugman’s situation in that sense is identical, that he, like Terri Brown, had served the sanction imposed by the state parole board when Kotek revoked his commutation.

By revoking Tugman’s commutation, resulting in his return to prison, Kotek in effect cause Tugman to be punished twice for the same offense — violating his probation — even though he had already served the jail term that started in February 2024, Maloney contends.

After the court ordered Terri Brown’s release, Kotek rescinded more than a dozen of her previous revocations.