Smith v. Dep't of Corr.

• Decision Date: 19 June 2019
• Docket Number: A156552
• Citation: 445 P.3d 329,298 Or.App. 190
• Parties: Arlen Porter SMITH, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Oregon Court of Appeals

298 Or.App. 190

445 P.3d 329

Arlen Porter SMITH, Petitioner,

v.DEPARTMENT OF CORRECTIONS, Respondent.

A156552

Court of Appeals of Oregon.

Argued and submitted December 11, 2017.

June 19, 2019

Harrison Latto, Portland, argued the cause for petitioner. On the briefs was Arlen Porter Smith pro se.

Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

Petitioner, an inmate at Two Rivers Correctional Facility, challenges the validity of certain policies and administrative rules adopted by respondent, the Department of Corrections (DOC). For the reasons explained below, we conclude that the challenged policies that govern searches of dreadlocks and Native American medicine bags are not rules subject to the formalities of rulemaking because the policies set forth how DOC’s validly adopted rules governing searches of religious and spiritual items, including hair and garments, necessarily operate in specific contexts; therefore, we lack jurisdiction to review the validity of either policy under ORS 183.400. Furthermore, we conclude that the challenged rules that reference the assignment of an "initial custody level" to inmates entering the prison system based on a Violence Predictor Score are valid.

I. STANDARD OF REVIEW

Our review of administrative rules is governed by ORS 183.400. "Under ORS 183.400(1), ‘any person’ may petition this court to determine the validity of a rule." Assn. of Acupuncture v. Bd. of Chiropractic Examiners , 260 Or. App. 676, 678, 320 P.3d 575 (2014). "In reviewing a challenge under [ ORS 183.400,] we may declare the rule invalid only if we conclude that it violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures." Id . (citing ORS 183.400(4) ).

II. SEARCHES OF DREADLOCKS AND NATIVE AMERICAN MEDICINE BAGS

Petitioner challenges the validity of two DOC policies describing guidelines and procedures for searching inmates’ dreadlocks and Native American medicine bags, DOC Policy 90.2.1 and DOC Policy 90.2.2, respectively.¹ Petitioner contends that those policies are rules that DOC adopted without complying with applicable rulemaking procedures.

A. Searches of Dreadlocks

Petitioner argues that DOC policy 90.2.1, which outlines the procedure for searching dreadlocks, is a rule that DOC adopted without complying with applicable rulemaking procedures because the "religious sincerity test" mentioned in OAR 291-041-0020 is, pursuant to DOC Policy 90.2.1, to be conducted by the prison chaplain, and "[n]o formally adopted rule requires or even suggests this delegation of responsibility." OAR 291-041-0020(9) (outlining procedures for searches of an inmate’s hair, and providing for a "religious sincerity test" to determine what further action shall be taken if the "hair creates a significant security or operational concern"); DOC Policy 90.2.1.III.B.2. (the chaplain conducts the "religious sincerity test"). We disagree with petitioner.²

First, we give a brief overview of the statutes regarding DOC’s rulemaking authority and the statutes and rules regarding DOC’s chaplains. Under ORS 179.375, DOC "shall ensure that adequate chaplaincy services, including but not limited to Protestant and Roman Catholic, are available at their * * * institutions" and, with respect to the inmates at such institutions, the chaplains must "[p]rovide for and attend to their spiritual needs," visit "them for the purpose of giving religious and moral instruction," and "[p]articipate in the rehabilitation programs affecting them." ORS 423.075(5)(b) and (c) provide, in part, that the director of DOC shall "[a]ppoint all subordinate * * * employees * * * of the department," "prescribe their duties," and "[d]elegate to departmental employees such responsibility and authority as the director determines to be necessary[.]" See Smith v. Dept. of Corrections , 276 Or. App. 862, 866-67, 369 P.3d 1213 (2016) (discussing the broad delegative authority granted to the director under ORS 423.075 when no statutory authority prohibits the director’s delegation of the particular responsibilities or authority at issue). In addition, the director may "adopt rules for the government and administration of the department," including those related to chaplains.

ORS 423.075(5)(d) ; see also ORS 179.040(1)(d) (DOC shall "[m]ake and adopt rules for the guidance of [DOC] and for the government of [its] institutions.").

A chaplain is defined as a "person employed by [DOC] to facilitate and provide religious programming and services to inmates in [DOC] facilities." OAR 291-143-0010(2) ; see also OAR 291-117-0008 (defining a staff chaplain as "[a] person employed full-time or contracted by *** [DOC] to provide religious services to inmates in [DOC] facilities").³ Because the chaplain is a person employed by DOC, and because no statutory authority prohibits the director’s delegation of the authority and responsibilities at issue to the chaplain, the director can delegate that authority and those responsibilities to the chaplain as the director deems necessary.

Next, we give an overview of DOC’s rules related to the chaplain’s authority and responsibilities. OAR 291-143-0070 provides, in part, that a "chaplain in each [DOC] facility is responsible for coordination and facilitation of inmate religious activities" and that "[c]haplains shall attend to the religious requests of each inmate, regardless of the inmate’s religious belief or affiliation." Furthermore, it is the stated policy of DOC to "establish department policy and procedures regarding inmate religious exercise and activities" and to "[p]rovide for the orderly management and supervision of inmate religious activities through the use of chaplains" that is within "the inherent limitations of resources and the need for facility security, safety, health and order." OAR 291-143-0005. See also OAR 291-143-0100 ("Items required for the conduct of a religious activity *** must be approved by the chaplain, may require security review, and are subject to search. Items not approved will be considered contraband and subject to confiscation."); OAR 291-143-0110 ("An inmate may be authorized to express his/her religious customs and beliefs in appropriate ways, consistent with facility security, safety, health and order through the use of approved religious items," and DOC "staff will treat all inmate religious property items with respect and will not destroy inmate religious property items without first consulting with the chaplain"); OAR 291-143-0120(1) ("All designated religious activity areas and religious items shall be subject to search conducted in accordance with the department’s rule on Searches (Institutions) (OAR 291-041)," and staff "shall conduct searches in a manner that reflects an awareness of and sensitivity to individual religious beliefs, practices, and respect for the objects or symbols used in the religious practice.").

The statutes and rules set forth above demonstrate that, under ORS 423.075, the director may, and has, validly delegated the responsibility to provide for the orderly supervision, management, and approval of religious activities and items for religious practices to a departmental employee, the chaplain. OAR 291-143-0005. Additionally, that delegation of authority to the chaplain helps to ensure that other DOC staff comply with the requirement that searches involving religious items, including hair, be conducted in a manner that "reflects an awareness of and sensitivity to individual religious beliefs, practices, and respect for the authorized objects, symbols, and hairstyles used in the religious practice." OAR 291-041-0016 ; OAR 291-143-0110(7) (DOC "staff *** will not destroy inmate religious property items without first consulting with the chaplain.").

As explained below, the following DOC rules, considered as a whole, and the director’s delegation of authority to the chaplain to supervise, manage, and approve religious activities and items, "necessarily require[ ]" the chaplain to administer the religious sincerity test. Smith v. TRCI , 259 Or. App. 11, 17, 312 P.3d 568 (2013). With regard to the religious sincerity test, DOC Policy 90.2.1.III.B. provides:

"B. Procedures for Conducting the Search

"1. When conducting a search of an inmate with dreadlocks, staff shall first ask the inmate if he or she is a practicing Rastafarian and if not, are dreadlocks being worn as part of the inmate’s spiritual or religious tradition. If the inmate answers in the affirmative, staff must take into consideration the religious and spiritual significance of the dreadlocks.

"2. Religious Sincerity Test:

"a. If time and circumstances permit, staff should suspend the search and request the chaplain to conduct a sincerity test with the inmate. The chaplain shall decide, in consultation with the Administrator of Religious Services, if there is a legitimate interest to be accommodated .

"b. If the chaplain determines there is no religious significance to the dreadlocks, staff may direct the inmate to take the necessary steps to make the hair easily searchable, including the cutting of the dreadlocks.

"c. If time and circumstances do not permit a sincerity test, staff shall proceed as if there is a religious significance to the wearing of the dreadlocks.

"(1) After the search, staff shall ask a chaplain to conduct the sincerity test. The chaplain shall make a decision in consultation with the Administrator of Religious Services about whether the dreadlocks need to be accommodated in the future.

"(2) The chaplain shall make a note in the inmate’s file whether or not the accommodation was approved ."

(Emphases added.) As such, in conducting the "religious sincerity test," the chaplain determines "if there is...