Chochrek v. Oregon State Penitentiary

534 P.2d 1175, 21 Or. App. 406, 1975 Ore. App. LEXIS 1411

• Court: Court of Appeals of Oregon
• Decided: May 12, 1975
• Docket: No. 11-74-118
• Status: Published

Opinion

SCHWAB, C.J.

Petitioner, an inmate in the Oregon State Penitentiary, contends that the disciplinary committee erred in finding him guilty of disruptive behavior. At the hearing petitioner presented affidavits he had personally obtained from other inmates. The committee’s findings of fact state:

“The affidavits submitted by inmate Chochrek are viewed with distrust based on the premise that to permit inmates to be required to face an inmate and swear an affidavit which was typed by the inmate seeking the information or otherwise solicited is not permitted under the Eules of Procedure * *

The only relevant rule to which our attention has been called is Eule IV(5)(a) of the Procedures for Disciplinary Action which provides:

“An inmate has the right to speak in his own behalf. The inmate may also present letters, documents, or affidavits at the hearing.”

There may be good reason for a rule providing that the affidavits referred to in Eule TV(5) (a) must be solicited by and procured through a third party rather than by and through the inmate himself. Nevertheless, there presently is no such rule. There may have been valid factual reasons for viewing with distrust the affidavits presented by petitioner, but the fact remains that the committee’s finding was predicated on a non-existent rule.

Eeversed and remanded.