Weidner v. Oregon State Penitentiary

• Decision Date: 21 July 1994
• Citation: 319 Or. 295,877 P.2d 62
• Parties: Corey Dean WEIDNER, Respondent on Review, v. OREGON STATE PENITENTIARY, Department of Corrections, Petitioner on Review. CA A79489; SC S40391.
• Court: Oregon Supreme Court

Page 62

877 P.2d 62

319 Or. 295

Corey Dean WEIDNER, Respondent on Review, v. OREGON STATE PENITENTIARY, Department of Corrections,

Petitioner on Review.

CA A79489; SC S40391.

Supreme Court of Oregon,

In Banc.

Submitted on Briefs May 9, 1994.

Decided July 21, 1994.

Michael D. Reynolds, Asst. Sol. Gen., Salem, filed the petition for petitioner on review. With him on the petition were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Corey Dean Weidner, respondent on review pro se, filed a response.

GILLETTE, Justice.

The issue in this case is whether an inmate who seeks to file a petition for judicial review of an order under ORS 421.195 (set out post ) must file that petition in the Court of Appeals within 30 days of the date on which the order was made. In an unpublished order, the Court of Appeals held that a petition filed under ORS 421.195 need only be filed within 30 days of the inmate's receipt of the order. We allowed review and now reverse the order of the Court of Appeals and remand the case to that court with instructions to dismiss the petition for judicial review as untimely filed.

On August 3, 1992, respondent, an inmate at the Oregon State Correctional Institution, allegedly assaulted a fellow inmate. Following a disciplinary hearing, a hearings officer concluded that respondent had committed Assault I, a major violation of the rules of prohibited conduct, OAR 291-105-015(2)(a). The hearings officer issued a preliminary order imposing various disciplinary sanctions on respondent, including 120 days in disciplinary segregation. ¹ The functional unit manager approved the order on November 2, 1992. Subsequently, a review of respondent's custody level was conducted. See OAR 291-105-066(9) (providing that "[i]nmates who commit a violation in category I on the [disciplinary] grid are subject to a classification review"). On review by the Classification Committee, respondent's custody level was scored as "maximum." ² As a result, following his confinement in disciplinary segregation, respondent was transferred to the Intensive Management Unit (IMU) ³ at OSP by an "administrative transfer request" approved on December 2, 1992. ⁴ See OAR 291-104-031(1) (providing that "[m]aximum custody male inmates shall be housed in the Intensive Management Unit"); OAR 291-104-010(4)(a) (same). Respondent was not provided with a hearing, other than the disciplinary hearing in connection with the assault charge, before his custody reclassification and transfer to IMU.

In April 1993, respondent filed a petition for judicial review in the Court of Appeals under ORS 421.195, seeking review of the "final order" placing him in IMU. In his petition, respondent alleged that he had never received a copy of the transfer order. At some time after that, the Department of Corrections provided respondent with a copy of the order. Respondent then filed a motion to stay enforcement of the order and also filed an amended petition "for the sole purpose of timeliness." In support of his motion to stay the order, respondent argued that there was a reasonable likelihood that he would prevail on judicial review of the order, because he had not been granted a hearing before being transferred to IMU. ⁵ OSP opposed the motion to stay, arguing that IMU transfer orders are not subject to judicial review under ORS 421.195. OSP also filed a motion to dismiss the petition as untimely.

In an unpublished order, the Court of Appeals concluded that "the time for filing a petition for judicial review begins when the order is issued to the inmate." Accordingly, the court dismissed respondent's original petition as premature and indicated that it would proceed with judicial review on respondent's amended petition. The court then granted respondent's motion to stay the order confining respondent in IMU, concluding that

"[respondent] is reasonably likely to prevail on judicial review, because if a transfer to IMU is a reviewable event under ORS 421.195, as the court held it was in Bagby v. OSP, 118 Or App 421, 847 P2d 898[, rev. den. 317 Or. 396, 857 P.2d 851 (1993) ], then an inmate placed in IMU is entitled to a hearing under ORS 421.180 to 421.190 and the administrative rules adopted pursuant to those statutes."

We allowed OSP's petition for review of the Court of Appeals' order to address whether IMU transfer orders are subject to judicial review under ORS 421.195. In State ex rel. Hall v. Riggs, 319 Or. 282, 877 P.2d 56 (1994) (decided this date), we confronted that same issue. In that case, we held that ORS 421.195 entitles an inmate who has been placed in IMU for more than seven days to judicial review of the order that places him there. That holding applies in this case, as well. That holding is not dispositive here, however, because OSP argues that, even if IMU transfer orders generally are subject to judicial review under ORS 421.195, the order in this case is not subject to review, because the petition was untimely filed. For the reasons that follow, we agree.

ORS 421.195 provides:

"If an order places an inmate in segregation or isolation status for more than seven days, institutionally transfers the inmate for disciplinary reasons or provides for nondeduction from the term of the sentence under ORS 421.120(1)(a) and (b), the order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 30 days of the order for which review is sought. The department shall transmit to the court the record of the proceeding, or, if the inmate agrees, a shortened record. A copy of the record transmitted shall be delivered to the inmate by the department. The court may affirm, reverse or remand the order on the same basis as provided in ORS 183.482. The filing of the petition shall not stay the department's order, but the department may do so, or the court may order a stay upon application on such terms as it deems proper."

(Emphasis supplied.)

Although the reasons for the delay are not documented, it appears to be uncontested (for the purposes of this case) that respondent did not receive a copy of the order placing him in IMU until after he filed his initial petition for judicial review. It also appears to be uncontested that, once a copy of the order placing him in IMU was actually delivered to him, respondent filed a second petition for judicial review within 30 days of receiving that copy. OSP argues, however, that neither petition was timely, because both were filed more than 30 days after the date of the order, which was December 2, 1992. As noted, the Court of Appeals dismissed the foregoing argument, ruling that the phrase, "filed within 30 days of the order," in ORS 421.195 required only that the petition for judicial review under that statute be filed within 30 days after the challenged order was "issued" to the inmate. "Issuance," for the Court of Appeals, meant actual receipt by the inmate.

OSP's argument on the timeliness issue is very narrow: An inmate has 30 days within which to challenge an order placing the inmate in IMU, whether or not that order is ever received by the inmate. That argument is one about the intent of the legislature in enacting ORS 421.195 and, more particularly, the legislature's intent as to the phrase "within 30 days of the order." When seeking to identify the intent of the legislature, this court follows the template set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993).

Beginning with the first level of inquiry--text and context--we cannot say that the legislature's intent is clear. There are at least three possible interpretations of the moment in time envisioned by the legislature when it referred to "within 30 days of the order." The first possible reading is that given the phrase by OSP: The reference is to the date that actually appears on the order, or which evidence otherwise establishes to be the date on which the order actually was made. A second possible reading is that the phrase refers to the date on which the order actually was transmitted, whether by mail or otherwise, to the intended recipient. A third possible reading is that given the phrase by the Court of Appeals: The reference is to the date--whether called the date the order was "issued" or by some other label--on which the order was received by the person to whom it was directed.

We note in passing that the construction adopted by the Court of Appeals does not appear to be the most likely one. The reference to "within 30 days...