Smith v. Dept. of Corrections ( 2019 )

299
Submitted June 1, 2018, petition for judicial review dismissed
December 11, 2019
ARLEN PORTER SMITH,
Petitioner,
v.
DEPARTMENT OF CORRECTIONS,
Respondent.
Department of Corrections
A163599
456 P3d 310
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 P3d 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.
Arlen Porter Smith filed the briefs pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Mooney, Judge.
MOONEY, J.
Petition for judicial review dismissed.
300 Smith v. Dept. of Corrections
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 pol-
icy 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 pre-
pared 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 valid-
ity 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 provi-
sions, 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 chal-
lenged 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 P3d 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 pre-
scribes law or policy, or describes the procedure or practice
requirements of any agency.”
ORS 183.310(9) specifically excludes certain agency state-
ments from the definition of “rule” including, as pertinent
here, “[r]ules of conduct” for DOC inmates,
Cite as 301 Or App 299 (2019) 301
“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 ORS
421.180.”
ORS 183.310(9)(f). If, as DOC argues, the challenged pol-
icy consists of rules of conduct that do not result in disci-
pline, then it is not a “rule” subject to challenge under ORS
183.400.
Petitioner is obligated to “allege such facts as are
necessary to establish that the court has jurisdiction to act.”
State ex rel Sweere v. Crookham, 289 Or 3, 7, 609 P2d 361(1980). He is required to, “at a minimum, put forth a non-
conclusory explanation or argument as to why the writing
in question qualifies as a rule as defined in ORS 183.310(9).”
Smith v. Dept. of Corrections, 300 Or App 309, 311, 454 P3d
12 (2019).
Where, as here, a petitioner argues that an entire
policy is invalid under ORS 183.400, “we will not search that
writing to identify which, if any, of the provisions are review-
able rules.” Id. (citing Smith v. TRCI, 259 Or App 11, 20,
312 P3d 568 (2013) (internal quotation marks and brackets
omitted)). Additionally, we will not review rule challenges
when the petitioner simply recites “multiple provisions
addressing multiple topics * * * offer[ing] nothing other than
a highly generalized and conclusory argument” that the
challenged provisions are improper rules. Id. at 312.
Here, petitioner challenges the entire DOC “Com-
missary Operations” policy. We reject his challenge because
it presents only a conclusory argument that the entire policy
is invalid. See id. at 311. And, although petitioner acknowl-
edges that not all provisions within the policy “crossover
into rulemaking,” he does not clarify which provisions he is
challenging beyond additional vague references to “multi-
ple provisions addressing multiple topics,” which do not, “on
their face, fall clearly within the definition of a rule[.]” Id.
at 312. He presents a nonspecific and conclusory argument
302 Smith v. Dept. of Corrections
that the policy “operate[s] in combination” with other policies
(which he does not challenge here) to “both fill[ ] in gaps left
by other ill[-]conceived and poorly written rules and creates
conflicts and gray areas.” Petitioner’s conclusory challenge
does not allow us to determine what is being challenged as a
“rule”; it does not provide the agency with a fair opportunity
to defend its policy, and we decline to develop petitioner’s
argument for him.1
Petition for judicial review dismissed.
1
See Smith, 300 Or App at 312 (rejecting a similarly unclear rule challenge);
Smith, 259 Or App at 19 (“[A] petitioner in a proceeding under ORS 183.400(1)
challenging rules * * * must identify with particularity the challenged ‘rules’ so
that the respondent can meaningfully respond and so that we may ascertain
whether the challenged provisions fall within the general definition of rules[.]”
(Internal quotation marks omitted.)).