Smith v. Dep't of Corr.

• Decision Date: 09 March 2016
• Docket Number: A155103.
• Parties: Arlen Porter SMITH, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Oregon Court of Appeals

276 Or.App. 862

369 P.3d 1213

Arlen Porter SMITH, Petitioner,

v.DEPARTMENT OF CORRECTIONS, Respondent.

A155103.

Court of Appeals of Oregon.

Argued and Submitted Sept. 1, 2015.

Decided March 9, 2016.

Tonia L. Moro argued the cause and filed the reply brief for petitioner. Arlen Porter Smith filed the opening brief pro se.

Judy C. Lucas, Assistant Attorney General, argued the cause and filed the brief for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before SERCOMBE, Presiding Judge, and ORTEGA, Judge, and TOOKEY, Judge.

TOOKEY

, J.

Petitioner challenges the validity of a rule adopted by the Department of Corrections (DOC), OAR 291–124–0016(2)

, requiring the clinical director of DOC's Health Services to appoint the chief medical officer for each DOC institution. Petitioner also challenges the validity of DOC's "Health Policy and Procedure # P–A–02.1" (health policy), which purports to explain levels of health care services provided to inmates, as defined in OAR 291–124–0041. According to petitioner, the rule is invalid because it exceeds DOC's statutory authority, and the health policy is invalid because it constitutes a "rule," for which DOC failed to comply with rulemaking procedures. We agree on both points and, therefore, conclude that OAR 291–124–0016(2) and the health policy are invalid.

Our review of both the rule and the health policy 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). The legal basis of a rule challenge, though, is limited. "In reviewing a rule 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. ORS 183.400(4)." Id. Petitioner's challenges to the rule and the health policy fit within the limited parameters of our review. Petitioner contends that: (1) the provisions of OAR 291–124–0016(2) directly conflict with the provisions of a statute, and therefore, the rule exceeds the statutory authority of DOC; and (2) the health policy, although purportedly written to explain the provisions of an existing rule, amplifies and refines that rule, and therefore constitutes a "rule" that was not adopted in compliance with rulemaking procedures. We consider each challenge separately.

OAR 291–124–0016

pertains to healthcare services provided to DOC inmates. It provides that the "Health Services administrator" directs healthcare services, OAR 291–124–0016(1), and that the "Health Services clinical director" directs "professional oversight of clinical healthcare providers," OAR 291–124–0016(2). Subsection (2)

provides, in full:

"The Health Services clinical director is responsible for professional oversight of clinical healthcare providers. The clinical director has authority for all decisions requiring medical judgment and directly affecting outcomes of clinical practice. The clinical director shall appoint a chief medical officer to provide oversight for professional clinical services to inmates for each DOC institution. "

(Emphasis added.)

Petitioner argues that subsection (2) is in direct contravention of ORS 179.360(1)(f)

. ORS 179.360(1)(f) is part of a series of statutes pertaining to the superintendents of institutions administered by the Oregon Health Authority (OHA) and DOC. It provides:

"(1) Each superintendent shall:

" * * * * *

"(f) Designate a physician licensed by the Oregon Medical Board to serve as chief medical officer, who will be directly responsible to the superintendent for administration of the medical treatment programs at the institution and assume such other responsibilities as are assigned by the superintendent."

Petitioner contends that OAR 291–124–0016(2)

"attempts to alter the statutory structure of responsibility for prisoner health care at state prison facilities." He asserts that DOC cannot require the clinical director of its centrally organized Health Services to appoint and oversee a DOC institution's chief medical officer, where the legislature has required the superintendent of each respective institution to appoint and oversee the institution's chief medical officer. DOC responds that there is no conflict between the rule and the statute.

"It is elementary that, when an administrative rule cannot be reconciled with a statute, it is the statute that controls." State v. Newell, 238 Or.App. 385, 392, 242 P.3d 709 (2010)

. Furthermore, for purposes of ORS 183.400(4)(b), a rule is deemed to exceed its statutory authority not only if it exceeds the express or implied authority of the statutes that the rule purports to implement, but also if the rule "contravene [s] some other applicable statute." Planned Parenthood Assn. v. Dept. of Human Res., 297 Or. 562, 565, 687 P.2d 785 (1984)

; see State ex rel. Engweiler v. Felton, 350 Or. 592, 627, 260 P.3d 448 (2011) (finding that rules pertaining to parole consideration for juveniles convicted of aggravated murder, which required such juveniles to undergo an intermediate hearing process before they could become eligible for parole, were invalid because they conflicted with statutes that required all inmates to receive a parole hearing and an initial release date).

There is no significant disagreement between the parties about the meaning of OAR 291–124–0016(2)

. Under its provisions, the Health Services clinical director has authority over "all decisions requiring medical judgment" and appoints the chief medical officer for a DOC institution. The parties, however, disagree about the meaning of ORS 179.360(1)(f) and whether it mandates that the superintendent of a DOC institution appoint and supervise the institution's chief medical officer. In determining the legislature's intent in a statute, we apply the statutory interpretation analysis of PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), and State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009), examining the text of the statute in context—including related statutes—and examining any relevant legislative history. Gaines, 346 Or. at 171–72, 206 P.3d 1042 ; PGE, 317 Or. at 610–11, 859 P.2d 1143.

As already noted, ORS 179.360(1)(f)

is part of a series of statutes—ORS 179.310 to 179.370 —pertaining to the superintendents of certain state institutions. "Superintendents" are defined in ORS 179.310 as "the executive heads" of the institutions operated by the OHA and those operated by DOC. See also ORS 179.321. Consequently, a "superintendent" under ORS 179.360(1)(f) includes DOC superintendents. Therefore, we agree with petitioner that, on its face, ORS 179.360(1)(f) applies to DOC and mandates that DOC superintendents appoint and supervise the chief medical officer for their respective institutions.

DOC argues that, regardless of the language of ORS 179.360(1)(f)

, the provisions of OAR 291–124–0016 relating to the appointment of an institution's chief medical officer are authorized by ORS 423.075.¹ That statute provides, in pertinent part:

"(1) The Department of Corrections shall be under the supervision and control of a director who is responsible for providing for programs for the delivery to the public of the services assigned to the department, and for undertaking long-range planning necessary for the effective and efficient delivery of these services.

" * * * * *

"(5) The Director of the Department of Corrections shall:

"(a) For purposes of administration and control, and with the approval of the Governor, organize and reorganize the department in whatever manner the director deems necessary to conduct the work of the department.

"(b) Appoint all subordinate superintendents, officers and employees, whether classified or unclassified, of the department, prescribe their duties and fix their compensation, subject to applicable provisions of the State Personnel Relations Law.

"(c) Delegate to departmental employees such responsibilities and authority as the director determines to be necessary[.]"

DOC argues that, because ORS 423.075

gives the DOC director authority to delegate "responsibilities and authority * * * as [it] determines to be necessary," DOC was within its statutory authority to delegate to its clinical director the responsibility to appoint a chief medical officer for each institution. We disagree. Although ORS 423.075 grants the DOC director authority to delegate responsibilities and authority, ORS 179.360(1)(f) specifically requires the superintendent to appoint the chief medical officer for the superintendent's institution. Thus, the broad delegative authority of the director is inapposite. In ORS 179.360(1)(f), the legislature carved out a particular exception to the general authority granted to the director in ORS 423.075

, and it is the particular intent in ORS 179.360(1)(f) that controls. See ORS 174.020(2) ("When a general and particular provision are inconsistent, * * * a particular intent controls a general intent that is inconsistent with the particular intent."); Powers v. Quigley, 345 Or. 432, 438, 198 P.3d 919 (2008) ("[I]f two statutes are inconsistent, the more specific statute will control over the more general one.").² Because OAR 291–124–0016(2) contravenes ORS 179.360(1)(f), it is invalid.

Petitioner also challenges the validity of the health policy that "establishes the method and guidelines used to determine whether treatment will or will not be provided [to inmates] by DOC." Health Policy and Procedure # P–A–02.1. Petitioner argues that the health policy constitutes a rule that was not adopted under proper rulemaking authority and is, therefore, invalid. ORS 183.400(4)

. DOC contends that the health policy merely explains the provisions of an existing rule, OAR 291–124–0041(1), and, therefore, the health policy was...