Rinne v. Psychiatric Sec. Review Bd.
| Docket Number | A174602 |
| Decision Date | 06 July 2023 |
| Citation | 326 Or.App. 777 |
| Parties | NICHOLAS JUDSON RINNE, Petitioner, v. PSYCHIATRIC SECURITY REVIEW BOARD, Respondent. |
| Court | Oregon Court of Appeals |
Submitted December 5, 2022
Psychiatric Security Review Board 991597
Harris S. Matarazzo filed the briefs for petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.
Petitioner seeks judicial review from three orders of the Psychiatric Security Review Board, each of which denied his discharge from PSRB's jurisdiction and continued his commitment to the Oregon State Hospital. Petitioner raises four assignments of error. Because the issue is dispositive, we write to address the fourth assignment, in which he argues that PSRB's decisions were not supported by substantial evidence and substantial reason. We reverse and remand.
Petitioner has been under PSRB's jurisdiction since 1999, when he was found guilty except for insanity of several crimes involving child sex abuse and committed to the Oregon State Hospital for up to 60 years. See ORS 161.327(1) (authorizing commitment to state hospital of a person found guilty except for insanity of a felony, if the person "is affected by a qualifying mental disorder and presents a substantial danger to others"). He has been a patient at the hospital ever since, except for five years between 2008, when he was granted a conditional release, and 2013, when it was revoked after he violated its terms by visiting a community pool without permission. This is not the first time that his commitment has been reviewed by this court; several years ago, we reversed and remanded two PSRB orders continuing its jurisdiction. Rinne v. PSRB, 297 Or.App. 549, 443 P.3d 731 (2019) (Rinne II); Rinne v PSRB, 299 Or.App. 275, 448 P.3d 654 (2019) (Rinne I). On remand, after a consolidated proceeding, PSRB again decided that jurisdiction was warranted, and those are the orders now before us.
Some context is necessary to understand the unusual posture of this case. For a person to be subject to PSRB's jurisdiction, they must have a "qualifying mental disorder"[1] which causes them to present a "substantial danger to others." See ORS 161.351(1)[2] ("Any person placed under the jurisdiction of the Psychiatric Security Review Board under ORS 161.315 to 161.351 shall be discharged at such time as the board, upon a hearing, finds by a preponderance of the evidence that the person is no longer affected by a qualifying mental disorder or, if so affected, no longer presents a substantial danger to others that requires regular medical care, medication, supervision or treatment."); OAR 859-010-0005(8) .
Personality disorders, which include sexual conduct disorders like pedophilia, are not "qualifying mental disorders." See ORS 161.295(2)[3] ("[T]he term 'qualifying mental disorder' does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor does the term include any abnormality constituting solely a personality disorder."); Beiswenger v. PSRB, 192 Or.App. 38, 54, 84 P.3d 180, rev dismissed as improvidently allowed, 337 Or. 669 (2004) ().
As a result, for PSRB to retain jurisdiction, the record must contain substantial evidence that petitioner was affected by a mental health condition other than a personality disorder (such as pedophilia) that caused him to present a substantial danger to others. The issue in this case is whether petitioner's dangerousness was "because of a qualifying disorder.
Petitioner's diagnoses have varied considerably over time. When he was first admitted to the hospital in 1999, he was diagnosed with autism spectrum disorder, schizophrenia, pedophilia, and another personality disorder. A few years later, the schizophrenia diagnosis was ruled out after petitioner admitted to having malingered symptoms of psychosis in order to be hospitalized rather than incarcerated. Rinne II, 297 Or.App. at 554-55. He was later diagnosed with major depressive disorder, which has since been in sustained remission. The autism spectrum diagnosis was ruled out in 2014, after petitioner's treatment team determined that it could not be supported. Different treatment providers have at times also diagnosed petitioner with various anxiety disorders.
As of 2015, petitioner's diagnoses were pedophilia, obsessive-compulsive personality disorder, major depressive disorder in sustained remission, and two anxiety disorders-other specified anxiety disorder and illness anxiety disorder.[4] Petitioner's treatment team concluded that those anxiety disorders-the only remaining active qualifying diagnoses[5]-did not cause his potential dangerousness. The team presented its reasoning to the hospital's risk review panel, which is comprised of mental health professionals who are not members of the patient's treatment team and is tasked with determining the hospital's official opinion about jurisdictional issues. Rinne II, 297 Or.App. at 564. The panel concurred with the treatment team, and accordingly requested that PSRB discharge petitioner.
After a hearing, PSRB denied the requested discharge and continued petitioner's commitment. Petitioner appealed, and while the appeal was pending, petitioner requested another hearing, at which the hospital again supported discharge. That hearing took place in 2017 and resulted in another denial, which petitioner again appealed. As noted, we reversed and remanded both denials for lack of substantial evidence and reason. Rinne II, 297 Or.App. at 566 (); Rinne I, 299 Or.App. at 276 (). On remand, PSRB consolidated the matters into a single proceeding and again denied discharge. PSRB issued three orders, one based on the record as of 2015, the second based on the record as of 2017, and the third based on the record as of 2020, when the hearing on remand took place. The parties agree that all three orders must be valid for PSRB to retain jurisdiction.
We review agency orders for errors of law, substantial evidence, and substantial reason. Dorn v. Teacher Standards and Practices Comm., 316 Or.App. 241, 243, 504 P.3d 44 (2021). "Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c). Substantial reason exists where the agency has articulated a rational connection between the facts and the legal conclusion that the agency draws from them. Dorn, 316 Or.App. at 243.
The statutes governing PSRB jurisdiction require that PSRB discharge a person who "no longer presents a substantial danger to others," and, conversely, prohibit the discharge of a person who "is a substantial danger to others." ORS 161.351(1); ORS 161.346(1). In implementing those statutes, PSRB adopted rules defining "substantial danger" as a demonstration of "behavior which places others at risk of physical injury because of the person's qualifying mental disorder." OAR 859-010-0005(8).
The parties agree that petitioner meets both components of that definition of "substantial danger." First, they agree that petitioner has the "qualifying mental disorders" of other specified anxiety disorder and illness anxiety disorder. Second, the parties also agree that petitioner is likely to engage in behavior which places children at risk of sexual abuse. The parties disagree, however, as to the existence of a causal nexus-whether that danger is "because of a qualifying mental disorder. Petitioner argues that his dan-gerousness is "because of his non-qualifying mental disorder of pedophilia. PSRB, on the other hand, contends that petitioner's dangerousness is "because of his qualifying anxiety disorders in that, "when combined with" pedophilia, they reduce the likelihood that petitioner will take measures to mitigate his pedophilia such as alert his doctor or seek treatment. Put another way, PSRB contends that petitioner's qualifying mental disorders exacerbate the dangerousness caused by his pedophilia, and thus the dangerousness is "because of those qualifying mental disorders. The parties' arguments require us to determine the meaning of "because of in OAR 859-010-0005(8).
When we construe an administrative rule, "we begin with the text and context, just as we would for interpreting a statute." OR-OSHA v. hoy Clark Pipeline, Co., 320 Or.App. 205, 211, 514 P.3d 544, rev den, 370 Or. 471 (2022). Just as when interpreting a statute, we may also look to the rule's adoption history. Id. Additionally, when an agency interpretation of a rule "is plausible, given the rule's text and context and any other applicable sources of law, then we defer to that interpretation." Nacey v. Board of Massage Therapists, 287 Or.App. 228, 233, 401 P.3d 275 (2017).
As noted, the text of the rule defines "substantial danger" as a demonstration of "behavior which places others at risk of physical injury because of the person's qualifying mental disorder." OAR 859-010-0005(8) (emphasis added). The word "because" is not defined, meaning that we look to its "plain, natural, and ordinary...
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