December 31, 2014
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 than a challenge to the rule on its face.
We agree with DOC. This court's review " 'is limited to the face of the rule and the law pertinent to it.'" WaterWatch v. Water Resources Commission, 199 Or.App. 598, 605, 112 P.3d 443 (2005) (quoting AFSCME Local 2623 v. Dept. of [268 Or.App. 137] Corrections, 315 Or 74, 79, 843 P.2d 409 (1992)). Petitioner's assertions that the rules are invalid relate to the way DOC has applied those rules to him. That is, he claims that his due process rights were violated because of specific actions that DOC took (or failed to take) in imposing discipline. To the extent that the challenged rules relate to the administrative procedures that govern restitution orders or the withdrawal of funds from an inmate's trust account, petitioner's claims that those rules violated his due process rights are beyond the scope of our review under ORS 183.400(4)(a).
Petitioner also contends that the challenged rules are beyond the " authority" of DOC because those rules do not require, as a condition for ordering restitution or applying an inmate's funds to a debt, a " Criminal Conviction or a Judgment docketed in the circuit court concerning garnishment proceedings." He argues that ORS 137.106 " requires a criminal conviction for restitution" and that ORS 18.605 " requires a judgment docketed in the circuit court before garnishment proceedings can begin."  In petitioner's view, [268 Or.App. 138] DOC does " not have the authority to fine or restitute inmates [their] legal property via money on their inmate accounts."
To the extent that petitioner argues that OAR 291-105-0069 and OAR 291-158-0065 " [e]xceed[ ] the statutory authority of"
DOC, ORS 183.400(4)(b), we reject petitioner's argument. Petitioner does not engage with any of the statutes cited as authority for the rules in question. ORS 423.075(5)(d), for example, provides that " [t]he Director of the Department of Corrections shall * * * [p]rovide for the safety of all prisoners in the custody of the department and may adopt rules for the government and administration of the department." And ORS 421.180 explains that, as part of that administration, DOC " by rule shall adopt procedures to be utilized in disciplining persons committed to the physical and legal custody of the department." Without addressing those statutes or any other statutes related to DOC's disciplinary authority, petitioner points to ORS 137.106, which authorizes a trial court to award restitution to victims in criminal cases, and ORS 18.605, which provides that a creditor can invoke the authority of a court to pay a debt that is the result of a judgment. Because those statutes do not limit DOC's authority to discipline inmates, which is described in ORS 421.180 and other statutes, petitioner has not established that the challenged rules are outside the statutory authority given to DOC.
OAR 291-105-0069 and OAR 291-158-0065 held valid.