Chochrek v. Cupp

541 P.2d 495, 23 Or. App. 1, 1975 Ore. App. LEXIS 882

• Court: Court of Appeals of Oregon
• Decided: October 13, 1975
• Docket: 86609
• Status: Published

Opinions

SCHWAB, C. J.

Petitioner, an inmate at the Oregon State Penitentiary, instituted this habeas corpus proceeding contending violation of constitutional rights in three particulars: (1) denial of access to the courts; (2) denial of the right to vote while an inmate; and (3) an inadequate hearing preceding termination of his participation in a school-release program. The trial court ruled against him in all particulars.

The petition for a writ alleged that the petitioner was denied access to the courts by being denied sufficiently frequent access to the prison law library. The petition did not allege that other adequate means of legal assistance were unavailable. The demurrer to the cause of action was properly sustained because access to a prison law library is not constitutionally required if other adequate forms of legal assistance are made available at the prison. See, Gaglie v. Ulibarri, 507 F2d 721 (9th Cir 1974); Battle v. Anderson, 376 F Supp 402 (ED Okla 1974); Hooks v. Wainwright, 352 F Supp 163 (MD Fla 1972); Gilmore v. Lynch, 319 F Supp 105 (ND Cal 1970), aff’d per curiam sub nom Younger v. Gilmore, 404 US 15, 92 S Ct 250, 30 L Ed 2d 142 (1971).

Petitioner was properly denied the right to vote while an inmate in the Oregon State Penitentiary as a result of a felony conviction. ORS 137.240 mandated such a denial.

① In Boatwright v. SIAC, 244 Or 140, 416 P2d 328 (1966), the Oregon Supreme Court held ORS 137.240 constitutional. The United States Supreme Court in Richardson v. Ramirez, 418 US 24, 94 S Ct 2655, 41 L Ed 2d 551 (1974), upheld the constitutionality of a comparable California law.

In March 1974 petitioner was participating in a school-release program. As a part of the program he was living in a house in Eugene under close supervision by staff members. Upon being charged with violating certain house rules he was given a hearing before a Corrections Division hearing officer, was found to have violated the rules and returned to prison. Petitioner contends that the hearing was defective in that it did not meet the requirements prescribed by Morrissey v. Brewer, 408 US 471, 92 S Ct 2593, 33 (1972). The trial judge found that the Morrissey standards were met.

We do not reach the question of whether the Morrissey standards were met or required. OES 421.-195 provides in pertinent part:

“If an order * * * institutionally transfers him [an inmate] for disciplinary reasons * * * the order and the proceedings underlying the order are subject to review by the Court of Appeals # * * J?

The language “institutionally transfers [an inmate] for disciplinary reasons” is not defined in the statutes, and has not been interpreted in the cases. It might mean a transfer between the different institutions under the control of the Corrections Division, or it might mean a transfer between the Oregon Corrections Division and another state, local or federal prison as apparently contended by the concurring opinion.

We have previously interpreted OES 421.180 to 421.190 as creating statutory rights that are equal to constitutional rights. Bonney v. OSP, 16 Or App 509, 519 P2d 383, aff'd, 270 Or 79, 526 P2d 1020 (1974). Constitutional rights include the right to a hearing when there is “a major change in the conditions of [an inmate’s] confinement * * * imposed only when it is claimed and proved that there has been a major act of misconduct.” Wolff v. McDonnell, 418 US 539, 94 S Ct 2963, 41 L Ed 2d 935, 960 n 19 (1974).

Interpreting the phrase, “institutionally transfers for disciplinary reasons,” in OES 421.195 against this background, we hold that appeal lies to this court from any transfer order that constitutionally had to be based on a due process hearing. A disciplinary transfer from a school-release house to the Oregon State Penitentiary obviously being a “major change in the conditions of confinement,” a hearing was required, and appeal could and should have been to this court. Thus it follows that the trial court did not have jurisdiction to determine the adequacy of the proceedings before the hearing officer.

Affirmed.

Upon the effective date of Oregon Laws 1975, ch 781, ORS 137.240 is repealed and replaced in part by Oregon Laws 1975, ch 781, § 2(1) (d) which provides: “During the term or duration of any imprisonment a person convicted of a felony may not: * * * exercise the right to vote.”