Kellas v. Department of Corrections

• Decision Date: 12 October 2006
• Docket Number: CA A118362.,SC S51378.
• Citation: 341 Or. 471,145 P.3d 139
• Parties: Scott Thomas KELLAS, Respondent on Review, v. DEPARTMENT OF CORRECTIONS and Criminal Justice Commission, Petitioners on Review.
• Court: Oregon Supreme Court

145 P.3d 139

341 Or. 471

Scott Thomas KELLAS, Respondent on Review, v. DEPARTMENT OF CORRECTIONS and Criminal Justice Commission, Petitioners on Review.

CA A118362.

SC S51378.

Supreme Court of Oregon.

Argued and Submitted October 20, 2004.

Decided October 12, 2006.

On petition for review filed April 28, 2004.^*

Erika L. Hadlock, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioners on review. With her on the briefs were Hardy Myers, Attorney General Mary H. Williams, Solicitor General, and Denise Fjordbeck, Assistant Attorney General.

Donald S. Upham, Portland, attorney for respondent on review.

Before CARSON,^** Chief Justice, and GILLETTE, DURHAM, RIGGS,^*** DE MUNIZ,^**** BALMER, and KISTLER, Justices.^*****

DURHAM, J.

This is a case of judicial review of administrative rules. Petitioner below (respondent on review) Kellas¹ challenges the lawfulness of two administrative rules under ORS 183.400, which provides, in part, that "[t]he validity of any rule may be determined upon a petition by any person to the Court of Appeals[.]" (Emphasis added.) The Court of Appeals declined to reach the merits of petitioner's arguments because it concluded that petitioner lacked standing to challenge the rules in question. The Court of Appeals dismissed the petition. We reverse.

We take the pertinent facts from the record and the opinion of the Court of Appeals. Petitioner is the father of an adult son, Brian Kellas. Police arrested and charged Brian with robbery and burglary, among other charges. Subsequently, Brian executed and the court approved a security release agreement in which Brian agreed that he would be on "house arrest" during the pendency of his case. That term of the agreement compelled Brian to remain at his parents' home; it permitted him to leave the home only if a parent accompanied him or if he left to attend to his job, his classes, or to visit his health club. Brian's house arrest lasted for 311 days.

Brian pleaded guilty to robbery and burglary charges. The court sentenced him, among other conditions, to prison for 36 months on each offense, with 12 months of the burglary sentence to run concurrently with the robbery sentence and the remaining 24 months to run consecutively to the robbery sentence, for a total of 60 months. The court committed Brian to the custody of the Department of Corrections (DOC). The DOC calculated Brian's prison term, but did not give Brian credit against his prison term for the 311 days that he spent on house arrest in compliance with his pretrial security release agreement.

In refusing to grant time served credit to Brian for the time he spent on house arrest, DOC relied on its interpretation of two administrative rules: OAR 213-005-0012(2)(d) and OAR 291-100-0080. The first is a rule that the Criminal Justice Commission (CJC) has promulgated. In a series of administrative rules, the CJC has specified the length of a term of incarceration that will result from a sentence imposed in a judgment of conviction. In general, the CJC rules distinguish between a sentence of imprisonment and a probationary sentence. The rules also specify the number of "sanction units" that a person sentenced to a term of incarceration must serve. A day spent in various kinds of custodial supervision, incarceration, treatment or release programs may qualify as a "sanction unit." The CJC rules authorize sentencing judges, under specific conditions, to impose sanction units as a part of a probationary sentence. OAR 213-005-0011(3). OAR 213-005-0012(2)(d) provides that, if a court imposes sanction units as part of a probationary sentence, then the offender must receive credit for each day of satisfactory compliance with house arrest. OAR 213-005-0012(2) provides, in part:

"When sanction units are imposed as part of a probationary sentence, the offender shall receive credit for having served those sanction units as follows:

"* * * * *

(d) HOUSE ARREST: Each day of satisfactory compliance with the requirements of house arrest equals one (1) sanction unit if the offender satisfactorily completes the house arrest."

However, the DOC asserted that OAR 213-005-0012(2)(d) was inapplicable to the sentence in Brian's case because the court sentenced Brian to imprisonment, not a probationary sentence, and, according to DOC, that rule applies only to probation.

The second rule is one of several rules that DOC has adopted to aid that agency in determining the length of time that it should incarcerate an inmate sentenced to its custody. OAR 291-100-0080 provides, in part, that the DOC must grant credit to an inmate for time spent in custody before sentencing, such as in a county jail. However, OAR 291-100-0080(7) provides: "An inmate will not receive time served credit for time spent on house arrest or electronic monitoring." DOC declined to grant time served credit to Brian under that rule.

Petitioner filed this challenge under ORS 183.400 to assert that the refusal of DOC to grant time served credit to Brian for the period of his pretrial house arrest, pursuant to the administrative rules discussed above, was unlawful under ORS 137.370(2). That statute provides, in part:

"Except as provided in subsections (3) and (4) of this section, when a person is sentenced to imprisonment in the custody of the Department of Corrections, for the purpose of computing the amount of sentence served the term of confinement includes only:

"(a) The time that the person is confined by any authority after the arrest for the crime for which sentence is imposed[.]"

Petitioner argued that the trial court had confined Brian to his parents' home prior to trial for 311 days and that ORS 137.370(2)(a) required DOC to grant time served credit for that period of confinement. Petitioner contended that OAR 213-005-0012(2)(d) and OAR 291-100-0080(7) were not valid because, among other grounds, they conflicted with ORS 137.370(2)(a) and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In connection with the equal protection claim, petitioner asserted that he had a fundamental liberty interest in associating with his son and that the DOC infringed on that interest by maintaining its custody over Brian for 311 days longer than the law would permit.

DOC and CJC (collectively, the state) took no position on whether petitioner had standing to challenge the two administrative rules. Instead, the state confined its dispute with petitioner's rule challenge to the merits. The Court of Appeals raised the issue of petitioner's standing sua sponte. That court acknowledged that ORS 183.400 is broadly phrased and appears to confer standing "without regard to whether a petitioner has a personal stake in the validity of a particular administrative rule." Kellas v. Dept. of Corrections, 190 Or.App. 331, 334, 78 P.3d 1250 (2003). The court concluded, however, that, notwithstanding the broad wording of ORS 183.400, petitioner had to demonstrate a personal stake in the outcome of the rule challenge to "meet constitutional justiciability requirements." Id. The Court of Appeals stated that

"a petitioner seeking to challenge a rule under ORS 183.400 must demonstrate that he or she has a legally recognized interest at stake and that the relief sought — validation or invalidation of an administrative rule — would have a practical effect on that interest."

Id. The court concluded that petitioner had failed to demonstrate that invalidation of the challenged rules would have a practical effect on petitioner or on his interest in associating with his son. Id. at 336, 78 P.3d 1250. Consequently, the court held that petitioner had no standing to challenge the administrative rules in question. Id. at 337, 78 P.3d 1250.

The Court of Appeals reached that conclusion by relying on its opinion in Utsey v. Coos County, 176 Or.App. 524, 539-40, 32 P.3d 933 (2001), in which the Court of Appeals elaborated on an identical holding in a similar context.²

The state now petitions this court for review of the Court of Appeals decision. The state argues that the legislature lawfully may authorize any person to seek judicial review to challenge the validity of a governmental action, such as an administrative rule, without a showing that the governmental action or the court's decision will have a practical effect on that person's individual rights or interests. We granted review and, for the reasons expressed below, conclude that, at least within the context of the present controversy, the state's argument is correct.

"Standing" is a legal term that identifies whether a party to a legal proceeding possesses a status or qualification necessary for the assertion, enforcement, or adjudication of legal rights or duties.³ See Eckles v. State of Oregon, 306 Or. 380, 383, 760 P2d 846 (1988) (discussing principle). A party who seeks judicial review of a governmental action must establish that that party has standing to invoke judicial review. The source of law that determines that question is the statute that confers standing in the particular proceeding that the party has initiated, "because standing is not a matter of common law but is, instead, conferred by the legislature." Local No. 290 v. Dept. of Environ. Quality, 323 Or. 559, 566, 919 P.2d 1168 (1996).

As noted, ORS 183.400(1) provides that "[t]he validity of any rule may be determined upon a petition by any person to the Court of Appeals[.]" (Emphasis added.) The statute imposes no additional qualification for standing in this context.

The legislature's policy choice regarding standing in ORS 183.400(1) is unambiguous. The legislature intends by the statute to authorize any person to invoke the judicial power of the court to test the validity of every administrative rule under existing statutory and constitutional law and, thus, to advance the objective that all agency rulemaking shall remain within applicable procedural and substantive legal...