April 15, 2015
ARLEN PORTER SMITH, Petitioner,
PSYCHIATRIC SECURITY REVIEW BOARD, Respondent
Submitted June 6, 2014
Psychiatric Security Review Board.
Arlen Porter Smith filed the brief 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.
[270 Or.App. 387] SERCOMBE, P. J.
In a proceeding pursuant to ORS 183.400(1), petitioner challenges the validity of an administrative rule adopted by respondent Psychiatric Security Review Board (PSRB). We write to address petitioner's contention that OAR 859-050-0010, a rule that specifies certain information that PSRB must include in its prehearing written notice, is inconsistent with ORS 161.346 and ORS 183.413 and, therefore, exceeds PSRB's statutory authority. We reject petitioner's remaining assertions without discussion. As explained below, we conclude that the rule is valid.
The rule at issue, OAR 859-050-0010, relating to adult psychiatric security review board hearings, provides:
" Written notice shall contain the following:
[270 Or.App. 388] " (1) Time, place and location of the hearing.
" (2) The issues to be considered, reference to statutes and rules involved, authority and jurisdiction.
" (3) Statement of rights of the patient at the hearing, including the following:
" (a) Right to appear at all proceedings, except Board deliberations;
" (b) Right to cross-examine all witnesses appearing to testify at the hearing;
" (c) Right to subpoena witnesses and documents as provided in ORS 161.395;
" (d) Right to legal counsel and, if indigent as defined by the indigency standard set forth by the State Court Administrator's Office, to have counsel provided without cost;
" (e) Right to examine all information, documents and reports under consideration."
Pursuant to ORS 183.400(4), a petitioner may challenge the validity of a rule by asserting that it (1) violates a constitutional provision, (2) exceeds the agency's statutory authority, or (3) was adopted without compliance with applicable rulemaking procedures.
" In a challenge to a regulation under ORS 183.400(4), this court first decides whether the regulation was promulgated according to applicable rulemaking procedures. We then decide whether the promulgation of the regulation was within the jurisdictional authority of the promulgating agency and whether the substance of the regulation neither departed from the legal standard expressed or implied in the enabling statute, nor contravened any other applicable statute. Only after determining that the regulation meets those requirements do we consider the question whether the regulation violates any provision of the Oregon or United States Constitution."
Gilliam County v. Dept. of Environmental Quality, 316 Or. 99, 106, 849 P.2d 500 (1993), rev'd on other grounds sub nom [270 Or.App. 389] Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994).
" Aside from questions that might arise concerning the facts surrounding the process of adopting a rule *** judicial review under ORS 183.400 is limited to the face of the rule and the law pertinent to it. Numerous individual fact situations can arise under any rule, but judicial review of the rule as applied to each of those situations is reserved to other forums."
AFSCME Local 2623 v. Dept. of Corrections, 315 Or. 74, 79, 843 P.2d 409 (1992); see also Oregon Newspaper Publishers v. Dept. of Corrections, 329 Or. 115, 118-19, 988 P.2d 359 (1999) (" The reviewing court examines the challenged rules only to determine whether those rules on their face comply with applicable constitutional and statutory requirements. If the rules comply, then any further challenge to them must be made on an 'as applied' basis." ). Here, petitioner contends that OAR 859-050-0010 exceeds PSRB's statutory authority because it does not list all the advisements set forth in ORS 183.413(2). Specifically, petitioner points to ORS 161.346(6) and the provisions of ORS 183.413(2).
Under ORS 161.346(5), when PSRB conducts a hearing under ORS 161.315 to 161.351,
" [t]he agency exercising jurisdiction over the person shall furnish to the person about whom the hearing is being conducted, the attorney representing the person, the Attorney General, the district attorney and the court or department of the county from which the person was committed written notice of any hearing pending under this section within a reasonable time prior to the hearing. The notice shall include:
" (a) The time, place and location of the hearing.
" (b) The nature of the hearing and the specific action for which a hearing has been requested, the issues to be considered at the hearing and a reference to the particular sections of the statutes and rules involved.
" (c) A statement of the legal authority and jurisdiction under which the hearing is to be held.
[270 Or.App. 390] " (d) A statement of all rights under subsection (7) of this section."
ORS 161.346(7), in turn, provides:
" At the hearing, the person about whom the hearing is being held shall have the right:
" (a) To appear at all proceedings held pursuant to this section, except for deliberations.
" (b) To cross-examine all witnesses appearing to testify at the hearing.
" (c) To subpoena witnesses and documents as provided in ORS 161.395.
" (d) To be represented by suitable legal counsel possessing skills and experience commensurate with the nature and complexity of the case, to consult with counsel prior to the hearing and, if financially eligible, to have suitable counsel appointed at state expense.
" (e) To examine all information, documents and reports that the agency considers. If then available to the agency, the information, documents and reports shall be disclosed to the person so as to allow examination prior to the hearing."
In addition, ORS 161.346(6) references the Administrative Procedures Act (APA), providing that, " [p]rior to the commencement of
the hearing, the agency shall serve personally or by mail a written notice to each party as provided in ORS 183.413(2)." Under ORS 183.413(2), an agency must advise parties to a hearing of a large number of items, including some that are not included in OAR 859-010-0050.
[270 Or.App. 391] In view of those statutory provisions, petitioner contends that, " [a]lthough OAR 859-050-0010 complies with the provisions of ORS 161.346 subsections (5) and (7), it does not comply with the requirements of ORS 161.346(6) and ORS 183.413(2)" because " ORS 183.413(2) adds multiple requirements to the advisements which must be contained [270 Or.App. 392] in respondent's prehearing notice of rights which [OAR 859-050-0010] ignores." We reject petitioner's contention that the rule is invalid because it does not list all of the advisements set forth in ORS 183.413(2).
First, we observe that OAR 859-050-0010 implements ORS 161.346 and restates the requirements of ORS 161.346(5). Both the rule and that statutory section provide that PSRB's prehearing notice shall include (1) the time, place, and location of the hearing; (2) the issues to be considered at the hearing and reference to the statutes and rules involved; (3) the legal authority and jurisdiction for the hearing; (4) a statement of the patient's right to appear at all proceedings, except PSRB deliberations; (5) a statement
of the patient's right to cross-examine all witnesses who appear to testify at the hearing; (6) a statement of the patient's right to subpoena witnesses and documents; (7) a statement of the patient's right to be represented by legal counsel and, if indigent, to have counsel provided without cost; and (8) a statement of the patient's right to examine all information, documents, and reports under consideration. Thus, on its face, the rule is specifically directed toward the advisements that must be included in PSRB's prehearing notices. Although the rule mandates that the notice " shall contain" the items set forth above, it does not limit the content of the notice to exclude anything not listed therein. In other words, the rule does not preclude the notice from including the broader list of advisements from the APA; it merely lists the particular items that are required to be included pursuant to a different statutory section. See Webster's Third New Int'l Dictionary 491 (unabridged ed 2002) (to contain is to have within, to include); see also id. at 1143 (The term " include" indicates " enclosure or containment by a larger class or [270 Or.App. 393] whole of a smaller class or specific item or part." Include " may call more attention to the single item or smaller class by stressing the fact of its existence or the fact of its not having been overlooked." ). Thus, under the rule, the notice must have the listed items within it, but need not have only those items.
We further note that, because it implements a different statutory section, the rule does not merely contain an incomplete list of the prehearing notice requirements of ORS 183.413(2). Rather, OAR 859-050-0010 mandates advisements that are not required under the APA generally. Thus, for example, where ORS 183.413(2)(j) requires an advisement regarding " whether the parties ordinarily and customarily are represented by an attorney," ORS 161.346 and OAR 859-050-0010 require an advisement specific to the type of proceedings at issue--that a patient at the hearing has a right to counsel, and, if financially eligible, a right to counsel appointed at no cost. Similarly, advisements of a right to cross-examine and subpoena witnesses are required under ORS 161.346 and OAR 859-050-0010, but not under ORS 183.413(2).
In sum, we conclude that, in listing a more limited and specific set of advisements that must be included in PSRB's prehearing notices, OAR 859-050-0010 does not conflict with the statutes listed by petitioner. The rule does not limit the advisements that the notice may contain to the items set forth in the rule; it merely provides that those items must be included. Accordingly, OAR 859-050-0010 does not conflict with the statutes identified by petitioner and, therefore, does not exceed the agency's authority. Given that, on its face, the rule does not conflict with the requirements of the statutes, any further challenge to it, or to a particular notice from the agency, must be made on an " as applied" basis. See Oregon Newspaper Publishers, 329 Or. at 119.
OAR 859-050-0010 held valid.