Submitted June 7, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Arlen Porter Smith filed the briefs pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Lysne, Assistant Attorney General, filed the brief for respondent.
Before ARMSTRONG, Presiding Judge, and NAKAMOTO and EGAN, Judge.
[259 Or.App. 13] In this proceeding pursuant to ORS 183.400(1), petitioner challenges the validity of what he contends are administrative rules adopted by respondent Two Rivers Correctional Institution (TRCI). We dismiss some of petitioner's challenges and hold some of the challenged material invalid.
Our review under ORS 183.400 is limited in scope to " the face of the rule and the law pertinent to it." AFSCME Local 2623 v. Dept. of Corrections, 315 Or. 74, 79, 843 P.2d 409 (1992); see also ORS 183.400(3) (in facial rule challenge, court may examine only the rule, statutory provisions authorizing the rule, and documents bearing on compliance with rulemaking procedures). We may declare a rule invalid only if we conclude that the rule violates constitutional provisions, exceeds the agency's statutory authority, or was adopted without compliance with applicable rulemaking procedures. ORS 183.400(4); Estes v. Dept. of Corrections, 210 Or.App. 399, 401, 150 P.3d 1088, rev. den., 342 Or. 523, 156 P.3d 69 (2007). Here, petitioner asserts as the basis for his challenge only the last ground, viz., failure to comply with applicable rulemaking procedures.
Petitioner initially filed a petition for judicial review challenging the " Two Rivers Correctional Institution Medium Housing Unit Regulations" (TRCI housing unit regulations). We assigned that proceeding case number A147284. Petitioner then expanded his challenge to include an excerpt from an Oregon Department of Corrections newsletter (ODOC newsletter) that discussed an upcoming change to the " Rule on Mail (Inmate)" related to " clippings and copies displaying nude subjects."
In August 2012, TRCI replaced the TRCI housing unit regulations with " housing unit guidelines" (TRCI housing unit guidelines). TRCI then moved to dismiss the proceeding in case number A147284 on the ground that it had withdrawn the TRCI housing unit regulations and, therefore, the proceeding was moot. The Appellate Commissioner granted TRCI's motion to dismiss petitioner's challenge to the TRCI housing unit regulations. However, the Appellate [259 Or.App. 14] Commissioner noted that the ODOC newsletter appeared to cover a topic— possession of images of nude subjects— not covered by the TRCI housing unit regulations. Accordingly, the Appellate Commissioner concluded that the withdrawal of the TRCI housing unit regulations did not render moot petitioner's challenge to the ODOC newsletter and denied TRCI's motion to dismiss as to that challenge. The Chief Judge granted reconsideration of the Appellate Commissioner's ruling on TRCI's motion to dismiss as to petitioner's challenge to the ODOC newsletter but deferred its disposition to this department, as the department considering the proceeding on its merits.
Petitioner filed a second petition for judicial review challenging the TRCI housing unit guidelines. We initially treated that second petition as a separate case, assigning that proceeding case number A152303, but later consolidated it with the first proceeding.
Petitioner's initial petition has been dismissed as moot as to his challenge to the TRCI housing unit regulations, and we do not consider that challenge further. We now dismiss petitioner's initial petition as to the challenge to the ODOC newsletter. As to
petitioner's second petition for judicial review— challenging the TRCI Housing unit guidelines— we conclude that some of the challenged guidelines are rules and, because they were adopted without formal Oregon Administrative Procedure Act (APA) rulemaking procedures, hold them invalid. Some of the challenged guidelines, on the other hand, are not rules and, accordingly, we dismiss petitioner's challenges to those guidelines.
We first address petitioner's challenge to the ODOC newsletter. The challenged part of the newsletter was issued sometime before September 30, 2010, and states, in its entirety:
" Clippings and Copies via the Mail:
" Recently there has been a marked increase in the number of magazine clippings and copies printed from the internet being sent to inmates. The bulk of these items display [259 Or.App. 15] subjects who are nude and posed in a sexually provocative manner. Further, there is considerable evidence that these pictures are being exchanged, bartered, or sold in violation of the Rule on Property (Inmate).
" The Rule on Mail (Inmate) is to be modified. Changes to the Rule on Mail (Inmate) will be Temporarily Adopted. Effective September 03 [ sic ], 2010, Clippings and copies displaying nude subjects will not be allowed. Clippings and copies displaying nude subjects currently in your possession must be sent home or disposed of by September 30, 2010. As of October 01, 2010, clippings and copies displaying nude subjects will become contraband and confiscated if discovered.
" Other provisions of the Rule on Mail (Inmate) will not be changed at this time. The sections of the Rule on Mail (Inmate) governing personal photographs and publications will be unaffected by these changes.
" Please contact Randy Greer at Central Office if you have concerns or questions about this."
As amended, OAR 291-131-0025(11)(b) includes the following provision:
" (D) Freestanding Nude or Partially Nude Images: Newspaper and magazine clippings, photocopies, printed web pages, drawings, photographs, and other media with nude or partially nude subjects, whether human or anime (i.e., cartoon), that depict or display male or female genitalia, pubic area or anus, or expose the female areola, may not be attached to or enclosed in correspondence to inmates."
Petitioner does not, at this time, challenge the prohibition on inmates receiving nude images in the mail. Instead, petitioner challenges that part of the ODOC newsletter that is not addressed directly in OAR 291-131-0025(11), that is, this sentence: " As of October 01, 2010, clippings and copies displaying nude subjects will become contraband and confiscated if discovered" (the " possession sentence" ). In petitioner's view, that sentence goes beyond OAR 291-131-0025(11) by prohibiting possession of nude images that were received before the rule amendment went into effect. In petitioner's view, the possession sentence of the ODOC newsletter is a rule that was adopted without compliance with APA rulemaking procedures.
[259 Or.App. 16] We lack jurisdiction to consider petitioner's challenge to the possession sentence of the ODOC newsletter because it is not a rule. Under ORS 183.400(1), the Court of Appeals may, upon petition, determine the " validity of any rule." The legislature has defined what is— and what is not— a rule as follows:
" ‘ Rule’ means any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency. The term includes the amendment or repeal of a prior rule, but does not include:
" * * * * *
" (f) Rules of conduct for persons committed to the physical and legal custody of the Department of Corrections, the violation of which will not result in:
" (A) Placement in segregation or isolation status in excess of seven days.
" (B) Institutional transfer or other transfer to secure confinement status for disciplinary reasons.
" (C) Disciplinary procedures adopted pursuant to ...