Hickey v. Oregon State Penitentiary

• Decision Date: 23 March 1993
• Citation: 127 Or.App. 727,874 P.2d 102
• Parties: Michael HICKEY, Petitioner, v. OREGON STATE PENITENTIARY, Department of Corrections, Respondent. 09-92-075; CA A77274. . On Petitioner's Petition for Reconsideration
• Court: Oregon Court of Appeals

Page 102

874 P.2d 102

127 Or.App. 727

Michael HICKEY, Petitioner, v. OREGON STATE PENITENTIARY, Department of Corrections, Respondent.

09-92-075; CA A77274.

Court of Appeals of Oregon.

On Petitioner's Petition for Reconsideration March 23, 1993.

Order Feb. 17, 1993.

Decided May 4, 1994.

Michael Hickey, pro se.

David K. Allen, Salem, filed a brief amicus curiae, for Or. Crim. Defense Lawyer's Ass'n.

Before RIGGS, P.J., De MUNIZ, J., and BUTTLER, Senior Judge.

BUTTLER, Senior Judge.

Petitioner, an inmate in the Oregon State Penitentiary, seeks judicial review of a final order entered September 28, 1992, following a disciplinary hearing, placing him in segregation for 14 days. Although he delivered his pro se petition to prison officials for mailing to this court and the Attorney General within the 30 days permitted by ORS 421.195, it was not received by the court until October 30, 1992, more than 30 days after the date of the order that he seeks to have reviewed. On November 18, 1992, we dismissed his petition on our own motion. Petitioner then moved for reconsideration. After we denied that motion, petitioner filed a petition for review, which was not timely under former ORAP 9.15(6). Respondent moved to strike that petition; we denied that motion. Hickey v. OSP, 126 Or.App. 405, 868 P.2d 791 (1994). We now grant petitioner's motion for reconsideration of our November 18, 1992, order and proceed to reconsider our order dismissing petitioner's petition for judicial review on the ground that it was not timely filed.

The underlying question presented is whether a petition for judicial review that is submitted pro se by an inmate who is confined in the penitentiary must be considered to have been filed with the court and received by the respondent when it is delivered timely to the prison authorities designated by the institution to receive such documents, even though the petition is not filed by the prison authorities within the time required by statute or ORAP. The problem is a constantly recurring one that arises only after this court dismisses the petition, as here and in Norby v. Santiam Correctional Institution, 116 Or.App. 239, 841 P.2d 1 (1992), and presents serious constitutional questions under Article I, Section 20, of the Oregon Constitution and under the Fifth and Fourteenth Amendments to the United States Constitution. It is for those reasons that we decided to reconsider our dismissal of petitioner's petition for judicial review in this case.

Under ORS 421.195, ¹ an order placing an inmate in segregation and isolation for more than seven days is subject to review by this court on petition for review filed within 30 days of the order for which review is sought. See also ORS 19.026(1). ² Filing may be accomplished by mail, in which case the date of filing is the date of mailing, provided that the petition is mailed by registered or certified mail and the filing party has proof from the post office of the mailing date; if the notice is received by the court on or before the deadline, proof of mailing is not required. ORS 19.028(1) and (3); ³ ORAP 1.35. ⁴ Filing and service of the notice or petition are jurisdictional and may not be waived or extended. ORS 19.023(2). But see ORS 421.195.

Although a right of appeal is a matter of statute, not of right, even in criminal cases, McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894); State v. Carmickle, 307 Or. 1, 762 P.2d 290 (1988), when the right exists, it must be made available to all who wish to appeal, and the terms under which appeal is allowed must represent a fair and meaningful opportunity for review. State v. Balfour, 311 Or. 434, 439-40, 814 P.2d 1069 (1991). A petition for judicial review is a form of appeal. See ORS 19.028(3). The statute and rule are reasonable enough for those who are not incarcerated or, if incarcerated, are represented by counsel; they are not, however, if they are applied literally to persons who are incarcerated and are representing themselves. Although such persons may use the mails if they have funds to do so, they have no way of acquiring the proof from the post office necessary to satisfy the statute or rule. If they are without funds, they may not even rely on the mail. In either case, they must rely on timely delivery or mailing by the prison authorities. Without attributing bad faith to the prison authorities, there are occasions, as here, when, without the fault of the inmate, the documents are mailed or delivered too late to comply with the law.

Petitioner and amicus argue that, under Article I, section 20, of the Oregon Constitution, ⁵ distinctions between groups constitute impermissible class legislation if they create an invidious classification, and that a classification is invidious if the government "has made or applied a law so as to grant or deny privileges or immunities to an individual person without legitimate reasons related to that person's individual situation" unless "the law leaves it open to anyone to bring himself or herself within the favored class on equal terms." State v. Clark, 291 Or. 231, 239-41, 630 P.2d 810 (1981). Because, they argue, there is no way in which pro se inmate litigants can bring themselves within the class of persons who are able, by their own actions, to assure compliance with the mandates of ORS 421.195, ORS 19.026, ORS 19.028 and ORAP 1.35, Article I, section 20, is violated. Because of our disposition of the case, we do not decide that question.

The United States Supreme Court has dealt with this problem on two occasions, in each case holding that the notice of appeal was timely, notwithstanding that it was not filed within the statutorily required time, although it had been delivered to the prison authorities timely. In Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), the Court held that, even though the timely filing of the notice of appeal was jurisdictional, the appellant "had done all that could reasonably be expected to get the letter to its destination within the required 10 days." 378 U.S. at 144, 84 S.Ct. at 1692. In a concurring opinion, Justice Stewart stated that he would resolve the matter by holding that, in this type of case, the jailer would be treated as the clerk.

The court reconsidered the question in Houston v. Lack 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), in which it adopted the essence of the concurring opinion in Fallen. The court noted that the circumstances of pro se inmates are "unique," stating:

"Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped 'filed' or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date that the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to trust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay." 487 U.S. at 271, 108 S.Ct. at 2382.

The Court concluded that the statutes and rules did not contemplate the unique circumstances of a pro se inmate; therefore, it would not be inappropriate to conclude that a notice of appeal is "filed" within the meaning of the statute "at the moment it is delivered to prison officials for forwarding to the clerk of the district court." Having decided the case on a subconstitutional basis, there was no constitutional question to be decided.

It is correct, as we said in Norby v. Santiam Correctional Institution, supra, that Houston v. Lack, supra, involved federal statutes and rules and, therefore, its holding is not binding on this court. However, by interpreting the statutes and rules as it did, the Court avoided discussing or deciding any constitutional questions that otherwise might have been presented. If that is possible here, we should follow suit. ORS 421.195 requires that the petition for judicial review be filed within 30 days after...