ROGER D. HALL, Petitioner,
DEPARTMENT OF CORRECTIONS, Respondent
Submitted April 4, 2014.
Department of Corrections.
Roger D. Hall filed the briefs, Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Judy C. Lucas, Senior Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[268 Or.App. 135] SERCOMBE, P. J.
Petitioner seeks judicial review of two administrative rules of the Department of Corrections (DOC) pursuant to ORS 183.400. Petitioner argues that OAR 291-105-0069 and OAR 291-158-0065, which together allow the DOC to impose restitution as a sanction for breaching DOC rules and to withdraw money from an inmate's trust account to pay that restitution, violate various constitutional provisions and extend beyond DOC's statutory authority. As explained below, we hold that the rules are valid.
DOC imposes disciplinary sanctions for various types of misconduct, including " major violations" and " minor violations." OAR 291-105-0066(5) (referencing two " inmate disciplinary grids" that outline available sanctions for violations). Several other rules describe various requirements for imposing inmate discipline, including the inmate's right to a hearing. OAR 291-105-0056; see generally OAR 291-105-0021 - 291-105-0100. The first challenged rule, OAR 291-105-0069, authorizes a hearing officer to impose " restitution" as an " additional sanction[ ]" for a " major violation[ ]" of DOC rules. The second challenged rule, OAR 291-158-0065, authorizes DOC to apply a percentage of funds in an inmate's trust account to the inmate's indebtedness, which includes the obligation to pay restitution.
[268 Or.App. 136] We start with petitioner's argument that the rules " [v]iolate[ ] constitutional provisions." ORS 183.400(4)(a). Petitioner's principal claim is that the challenged rules violate " Oregon Constitution Article I Section 10 Due Process of Law."  Petitioner argues that the rules unconstitutionally permitted DOC to " garnish" funds from his inmate trust account to make restitution payments
resulting from his violation of DOC rules. He points to criminal statutes related to court-ordered restitution and garnishment proceedings, and states that the DOC ordered him to pay restitution and withdrew money from his trust account even though he was not criminally convicted or subject to garnishment proceedings in court. He asserts that
" [t]he challenged rules specify the hearing officer can question witnesses, (Finding of Facts shows I had 50 witnesses who were never questioned.)[,] [and] he can review video evidence (Mine was erased before we ever had a hearing. Complex 1 had a camera in the Bubble.)[.] Administrative hearing officer never considered or tried to find out if this was a unilateral assault."
Referencing the specific amounts DOC has " garnished" from his trust account, petitioner also suggests that he was not provided the right " to be heard" before that " garnishment." DOC responds that petitioner's arguments are improper under ORS 183.400(4)(a) because he makes an " as applied" challenge, rather ...