The validity of any Oregon administrative rule may be challenged in the Oregon Court of Appeals under ORS 183.400. A rule will be held invalid if it violates constitutional provisions, exceeds the adopting agency’s statutory authority or was not adopted in compliance with applicable rulemaking procedures.
A “rule” is defined as “any 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.”
On September 21, 2009, the Board issued a hearing notice packet consisting of three documents. The first was entitled “HEARING NOTICE & NOTICE OF RIGHTS PACKET,” and included several blank spaces for the Board to write in a prisoner’s name and identification number, hearing date and location, and type of hearing. The second document, titled “HEARING TYPES,” identified and defined the ten different types of Board hearings referenced in the first document.
Finally, the third document, “INMATES’ RIGHTS AND HEARING PROCEDURES,” was the NOR. It described, “in separately captioned sections covering four pages, various aspects of the practices and procedures followed in hearings before the board.” The sections included “Right to an Attorney,” “Who May Attend the Hearing,” “Information Considered at the Hearing,” “Presiding Officer,” “Notice and Waiver,” “Hearing Procedure,” “Continuances,” “Decision,” “Record,” and “Administrative Reviews and Appeals.”
Oregon prisoner Arlen Smith filed a challenge to the NOR, arguing that it was invalid because it was not adopted in accordance with the APA’s rulemaking procedures. Smith contended that the NOR was a “statement of general applicability for all persons appearing before [the Board] in contested case type proceedings,” and set forth “the procedure and practice requirements” for such hearings. The Board moved to dismiss the challenge, arguing that the court lacked jurisdiction under ORS 183.400 because the NOR “is a statement of ‘specific applicability’ and, therefore, not a rule.”
The Court of Appeals disagreed, finding that “although the first page of the hearing notice packet is addressed to a particular inmate – identifying who is to receive the notice and providing logistical information, such as the hearing date, location, and type of hearing – the content of the form itself is generalized and applicable to all inmates in a particular category or class of hearings.”
As such, the NOR “is a rule within the meaning of ORS 183.310(9),” the court concluded. “Consequently, the board was required to follow the rulemaking procedures of the APA in adopting it. The board does not dispute that it failed to do so. Accordingly, the [NOR] is invalid.” See: Smith v. Board of Parole, 250 Or.App. 345, 284 P.3d 1150 (Or.App. 2012).
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Related legal case
Smith v. Board of Parole
|Cite||250 Or.App. 345, 284 P.3d 1150 (Or.App. 2012)|
|Level||State Court of Appeals|