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Smith v. Department of Corrections

Court of Appeals of Oregon

December 11, 2019

ARLEN PORTER SMITH, Petitioner,
v.
DEPARTMENT OF CORRECTIONS, Respondent.

          Submitted June 1, 2018

         Department of Corrections

          Arlen Porter Smith fled the briefs pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge.

         Case Summary:

         Petitioner seeks judicial review under ORS 183.400 of the Oregon Department of Corrections' (DOC) Commissary Operations Policy. He argues that the policy is a disguised administrative rule and is thus invalid because the DOC adopted it without following proper rulemaking procedures. ORS 183.400(4)(c). Held: The Court of Appeals lacks jurisdiction over petitioner's challenge because petitioner failed to adequately demonstrate that the policy constitutes a rule. See Smith v. DCBS, 283 Or.App. 468, 471-72, 388 P.3d 1253, rev den, 361 Or. 350 (2017) ("When the matter in question is not a rule, we have no authority to review it under ORS 183.400."). The court dismissed petitioner's challenge.

         Petition for judicial review dismissed.

         [301 Or.App. 300]MOONEY, J.

         Petitioner, an inmate at Two Rivers Correctional Institution, invokes our jurisdiction under ORS 183.400 to challenge the validity of the Department of Corrections (DOC) "Commissary Operations" policy, DOC Policy 40.2.3. He does so on two grounds. First, he contends that the policy contains multiple provisions that amount to agency rulemaking and that the policy is not valid because the DOC did not follow the Oregon Administrative Procedure Act's (APA) rulemaking procedures when it established the policy. Second, petitioner challenges the policy under ORS 183.750, which requires administrative rules to "be prepared in a language that is as clear and simple as possible." For the reasons explained below, we reject petitioner's first challenge because he has not demonstrated that the DOC policy is subject to the APA rulemaking requirements. We do not reach the second challenge because our conclusion on the first defeats jurisdiction and requires dismissal of the petition. Accordingly, we dismiss the petition for lack of jurisdiction.

         ORS 183.400 empowers us to determine the validity of state agency rules upon petitions properly before us. In such cases, we may declare the invalidity of a challenged rule when we conclude that it violates constitutional provisions, exceeds agency statutory authority, or was adopted in violation of rulemaking procedures. ORS 183.400. As a threshold matter, we must first determine whether the challenged policy is, in fact, a rule. If it is not, then we have no authority under ORS 183.400 to review it. Smith v. DCBS, 283 Or.App. 468, 471-72, 388 P.3d 1253, rev den, 361 Or. 350 (2017).

         ORS 183.310(9) defines a "rule" as

"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."

         ORS 183.310(9) specifically excludes certain agency statements from the definition of "rule" including, as pertinent here, "[r]ules of conduct" for DOC inmates, [301 Or.App. 301] "the ...


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