Byers v. Dept. of Corrections (A174503) ( 2022 )

28
Submitted March 4, rule held valid April 13, 2022
ROBERT JEROME BYERS,
Petitioner,
v.
DEPARTMENT OF CORRECTIONS,
Respondent.
Department of Corrections
A174503
510 P3d 286
In this rule challenge under ORS 183.400, petitioner, who is an adult in the
custody of the Oregon Department of Corrections (DOC), challenges the validity
of portions of OAR 291-131-0035, an administrative rule of the DOC relating
to inmate possession of sexually explicit material. Held: The Court of Appeals
rejected petitioner’s contentions that the administrative rule exceeded DOC’s
authority and was facially invalid.
Rule held valid.
Robert Jerome Byers filed the brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Rule held valid.
Cite as 319 Or App 28 (2022) 29
TOOKEY, P. J.
In this rule challenge under ORS 183.400,1 petitioner,
who is an adult in the custody of the Oregon Department
of Corrections (DOC), challenges the validity of portions of
OAR 291-131-0035, an administrative rule of the DOC relat-
ing to inmate possession of sexually explicit material. We
reject each of petitioner’s challenges and hold the rule valid.
As challenged here, OAR 291-131-0035 provides:
“The following materials constitute prohibited mail
that shall be confiscated or returned to the sender:
“(1) Sexually Explicit Material:
“(a) Sexually explicit material that by its nature or
content poses a threat or is detrimental to the security,
good order or discipline of the facility, inmate rehabilita-
tion, or facilitates criminal activity including but not lim-
ited to the following:
“(A) Individual photographs in which the subject is
nude or exposes male or female genitalia, the pubic area,
anus, or female areola.
“(B) Freestanding nude or partially nude images that
include clippings from newspapers and magazines, photo-
copies, electronic images, printed web pages, drawings, pho-
tographs, and other media. Such images, whether human
or anime (cartoon), may not include nude subjects, or depict
or display male or female genitalia, the pubic area, anus, or
female areola.”
The rule also provides that “[s]exually explicit material may
be admitted if it has scholarly value, or general social or lit-
erary value.” OAR 291-131-0035(1)(e).
Petitioner contends that those subparagraphs of the
rule exceed DOC’s authority under ORS 137.281, providing
that, during a term of incarceration, an adult in custody is
deprived of the right to hold public office, to hold a position
of private trust, to act as a juror, or to exercise the right to
vote, and ORS 137.285, stating that DOC has the authority
1
OAR 18.400 provides: “The validity of any rule may be determined upon a
petition by any person to the Court of Appeals * * *. The court shall have jurisdic-
tion to review the validity of the rule[.]”
30 Byers v. Dept. of Corrections (A174503)
to regulate the manner in which all rights retained by an
adult in custody may be exercised as reasonably necessary
to control the conduct and conditions of confinement.
We reject the contention. Under ORS 423.020(1)(d),
DOC has authority to “provide adequate * * * security for
persons confined” in prisons. Under, ORS 423.075(5)(d),
DOC has authority to “[p]rovide for the safety of all pris-
oners in the custody of [DOC] and may adopt rules for the
government and administration of [DOC].” We conclude that
the prohibition in OAR 291-131-0035 of sexually explicit
material that, “by its nature,” threatens the security and
health of adults in the custody of DOC facilities is consistent
with those obligations and does not conflict with either ORS
137.281 or ORS 137.285.
Petitioner contends that OAR 291-131-0035 is
facially invalid under Article I, section 8, of the Oregon
Constitution.2 We rejected that contention in Wilson v. Dept.
of Corrections, 259 Or App 554, 314 P3d 994 (2013) (holding
rule facially valid as not unconstitutional under Article I,
section 8, of the Oregon Constitution).
Petitioner also argues that the challenged sub-
paragraphs of OAR 291-131-0035 violate inmates’ “rights to
political association and * * * freedoms of and to the press”
under Article I, section 8, when DOC employees “restrict
periodicals that are deemed ‘sexually explicit’ but they have
a scholarly, or general social or literary value.” Petitioner
raises a similar argument under Article I, section 21, and
the Fourteenth Amendment, asserting that the exception in
the rule for sexually explicit materials that have scholarly,
general social, or literary value is used by DOC employ-
ees to ban “anything I don’t want you to have.” We under-
stand petitioner’s challenges to be to the rule as applied;
as such, they are not subject to review under ORS 183.400.
See AFSCME Local 2623 v. Dept. of Corrections, 315 Or 74,
79, 843 P2d 409 (1992) (explaining that “the legality of any
2
Article I, section 8, of the Oregon Constitution provides:
“No law shall be passed restraining the free expression of opinion, or restrict-
ing the right to speak, write, or print freely on any subject whatever; but
every person shall be responsible for the abuse of this right.”
Cite as 319 Or App 28 (2022) 31
particular application of the rules is premature, and not
subject to review under ORS 183.400”).
Petitioner correctly notes that the Supreme Court
has held that, to prevail on a facial vagueness challenge, a
defendant must demonstrate that the statute “is unconsti-
tutionally vague in all of its possible applications.” State v.
Chakerian, 325 Or 370, 381, 938 P2d 756 (1997). If and to
the extent that petitioner’s brief can be understood to raise
a facial vagueness challenge because the rule is unconstitu-
tionally vague in all of its possible applications, or because
it gives DOC employees’ unguided discretion to sensor sexu-
ally explicit material, the argument is not sufficiently devel-
oped, and we decline to address it.
Finally, petitioner appears to contend that the pol-
icy underlying OAR 291-131-0035 is irrational. That is not
an argument that is within the scope of an ORS 183.400
rule challenge. Smith v. Dept. of Corrections, 219 Or App
192, 197, 182 P3d 250 (2008), rev den, 345 Or 690, cert den,
557 US 923 (2009) (rejecting similar argument for the rea-
son that challenges to the necessity and rationale for OAR
291-131-0035 are not within the scope of review under ORS
183.400).
For all of the above reasons, we reject petitioner’s
challenges to OAR 291-131-0035.
Rule held valid.