EDMONDS, J.
Petitioners appeal a judgment upholding orders of the Mental Health Division (Division) that determined that they are able to pay for the cost of their care and maintenance at Oregon State Hospital (OSH) and fixed the extent of their liability.
Former
ORS 179.650.
We affirm.
Petitioners are under the jurisdiction of the Psychiatric Security Review Board (PSRB) because of adjudications under ORS 161.319 that they were guilty of criminal charges, except for insanity. They are patients in the Forensic Psychiatric Program, at OSH, which treats two groups of patients. The first group, like petitioners, is under the jurisdiction of PSRB. Division billed those patients for the cost of their care pursuant to ORS 179.620
(since amended by
Or Laws 1989, ch 348, § 2).
The second group is persons who have been administratively transferred from a correctional facility, ORS 179.475, or civilly committed to the program, ORS 179.477, after having been convicted of a crime and placed under the jurisdiction of the Department of Corrections (DOC). Division did not bill the second group for the cost of their care.
Division issued a “Reimbursement Order for Cost of Care” to each petitioner. Each requested a hearing to contest the order. The referee upheld the reimbursement orders. Petitioners appealed to the circuit court under
former
ORS 179.650. The court sustained the orders. Petitioners contend that the court erred in holding that the orders do not violate Article I, section 20, of the Oregon Constitution, the Equal Protection Clause of the Fourteenth Amendment and their federal statutory rights. They seek to be relieved of the obligation to pay for their care.
For the purposes of ORS 179.620, ORS 179.610(2)
(since amended by
Or Laws 1989, ch 348, § 1) defined “person at a state institution” as
“(a) A patient at a state institution for the mentally ill.
“(b) A resident at a state institution for the mentally ill.
“(c) A patient at a state tuberculosis hospital.
“(d) A patient at the Columbia Park Hospital and Training Center.”
In 1981, the attorney general issued an opinion, saying:
“When a prisoner who has been convicted of a crime is transferred to the Mental Health Division for treatment, the division cannot charge for the cost of care as long as the prisoner remains within the custody of the Department of Corrections.” 41 Op Atty Gen 365, 367 (1981). (Citation omitted.)
He reasoned that administrative transferees and civilly committed prisoners are not “patient[s] at a state institution for the mentally ill,” ORS 179.610(2)(a), and thus are not “person[s] at a state institution,” ORS 179.610(2), because they are still under the authority of DOC while in a state mental facility. 41 Op Atty Gen at 367.
Petitioners do not argue that ORS 179.620 is unconstitutional. Instead, they assert that Division’s “practice” of charging them for their cost of care, but not charging DOC transferees, violates Article I, section 20. Even if their assertion is correct, they are not entitled to the remedy that they seek. Under their argument, the charges made against them pursuant to ORS 179.620 are constitutional. It is the state’s action of not charging others that is purportedly unconstitutional. Inequality in the administration of a law can be a
constitutional violation.
State v. Clark,
291 Or 231, 630 P2d 810,
cert den
454 US 1084 (1981). However, inequality under these circumstances does not immunize petitioners from
their
lawful obligations. At issue here is the propriety of the orders requiring
them
to pay for the cost of
their
care. Ensuring that Division treat them equally with DOC transferees by requiring the transferees to pay for the cost of care is not what petitioners request. Accordingly, the trial court did not err in sustaining Division’s orders. For the same reasons, we also reject their arguments under the Equal Protection Clause.
See State v. Clark, supra,
291 Or at 244.
Petitioners also assign error to the trial court’s holding that Division did not violate 42 USC § 407(a)
when it considered their Social Security benefits in calculating ability to pay. They refer us to
Swan and Swan,
301 Or 167, 720 P2d 747 (1986), where the court held that, in a dissolution judgment, Social Security benefits may not be included in the value of marital property to be divided and in determining how much property to award each spouse. The court said:
“The effect of including the value of either spouse’s [S]ocial [Security benefits in the property to be divided is to allow the trial court to divide that value between the spouses. This conflicts with 42 USC §§ 407, 659 and 662(c).” 301 Or at 176.
Swan
is inapposite. The effect of Division’s consideration of petitioners’ Social Security benefits in determining ability to pay is described in ORS 179.653, which provides, in part:
“(1) If any person or authorized representative refuses to pay for the cost of care as ordered by the division under ORS 179.640, the amount unpaid plus interest shall be a lien in favor of the State of Oregon. The lien shall arise as each payment is due under the order and shall continue until the liability with interest is satisfied. * * * «
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EDMONDS, J.
Petitioners appeal a judgment upholding orders of the Mental Health Division (Division) that determined that they are able to pay for the cost of their care and maintenance at Oregon State Hospital (OSH) and fixed the extent of their liability.
Former
ORS 179.650.
We affirm.
Petitioners are under the jurisdiction of the Psychiatric Security Review Board (PSRB) because of adjudications under ORS 161.319 that they were guilty of criminal charges, except for insanity. They are patients in the Forensic Psychiatric Program, at OSH, which treats two groups of patients. The first group, like petitioners, is under the jurisdiction of PSRB. Division billed those patients for the cost of their care pursuant to ORS 179.620
(since amended by
Or Laws 1989, ch 348, § 2).
The second group is persons who have been administratively transferred from a correctional facility, ORS 179.475, or civilly committed to the program, ORS 179.477, after having been convicted of a crime and placed under the jurisdiction of the Department of Corrections (DOC). Division did not bill the second group for the cost of their care.
Division issued a “Reimbursement Order for Cost of Care” to each petitioner. Each requested a hearing to contest the order. The referee upheld the reimbursement orders. Petitioners appealed to the circuit court under
former
ORS 179.650. The court sustained the orders. Petitioners contend that the court erred in holding that the orders do not violate Article I, section 20, of the Oregon Constitution, the Equal Protection Clause of the Fourteenth Amendment and their federal statutory rights. They seek to be relieved of the obligation to pay for their care.
For the purposes of ORS 179.620, ORS 179.610(2)
(since amended by
Or Laws 1989, ch 348, § 1) defined “person at a state institution” as
“(a) A patient at a state institution for the mentally ill.
“(b) A resident at a state institution for the mentally ill.
“(c) A patient at a state tuberculosis hospital.
“(d) A patient at the Columbia Park Hospital and Training Center.”
In 1981, the attorney general issued an opinion, saying:
“When a prisoner who has been convicted of a crime is transferred to the Mental Health Division for treatment, the division cannot charge for the cost of care as long as the prisoner remains within the custody of the Department of Corrections.” 41 Op Atty Gen 365, 367 (1981). (Citation omitted.)
He reasoned that administrative transferees and civilly committed prisoners are not “patient[s] at a state institution for the mentally ill,” ORS 179.610(2)(a), and thus are not “person[s] at a state institution,” ORS 179.610(2), because they are still under the authority of DOC while in a state mental facility. 41 Op Atty Gen at 367.
Petitioners do not argue that ORS 179.620 is unconstitutional. Instead, they assert that Division’s “practice” of charging them for their cost of care, but not charging DOC transferees, violates Article I, section 20. Even if their assertion is correct, they are not entitled to the remedy that they seek. Under their argument, the charges made against them pursuant to ORS 179.620 are constitutional. It is the state’s action of not charging others that is purportedly unconstitutional. Inequality in the administration of a law can be a
constitutional violation.
State v. Clark,
291 Or 231, 630 P2d 810,
cert den
454 US 1084 (1981). However, inequality under these circumstances does not immunize petitioners from
their
lawful obligations. At issue here is the propriety of the orders requiring
them
to pay for the cost of
their
care. Ensuring that Division treat them equally with DOC transferees by requiring the transferees to pay for the cost of care is not what petitioners request. Accordingly, the trial court did not err in sustaining Division’s orders. For the same reasons, we also reject their arguments under the Equal Protection Clause.
See State v. Clark, supra,
291 Or at 244.
Petitioners also assign error to the trial court’s holding that Division did not violate 42 USC § 407(a)
when it considered their Social Security benefits in calculating ability to pay. They refer us to
Swan and Swan,
301 Or 167, 720 P2d 747 (1986), where the court held that, in a dissolution judgment, Social Security benefits may not be included in the value of marital property to be divided and in determining how much property to award each spouse. The court said:
“The effect of including the value of either spouse’s [S]ocial [Security benefits in the property to be divided is to allow the trial court to divide that value between the spouses. This conflicts with 42 USC §§ 407, 659 and 662(c).” 301 Or at 176.
Swan
is inapposite. The effect of Division’s consideration of petitioners’ Social Security benefits in determining ability to pay is described in ORS 179.653, which provides, in part:
“(1) If any person or authorized representative refuses to pay for the cost of care as ordered by the division under ORS 179.640, the amount unpaid plus interest shall be a lien in favor of the State of Oregon. The lien shall arise as each payment is due under the order and shall continue until the liability with interest is satisfied. * * * «
“(2) [T]he lien shall only be valid against:
<<* * * * *
“(c) Assets
subject to lien
held by any person or entity having actual knowledge of the ability-to-pay order or the lien.” (Emphasis supplied.)
Division may enforce the lien by issuing a distraint warrant. ORS 179.655. Because Social Security benefits are exempt from “execution, levy, attachment, garnishment, or other legal process” under 42 USC § 407(a), they cannot be the subject of a lien under ORS 179.653. It follows that the consideration of petitioners’ Social Security benefits in determining their liability for the cost of their care cannot have the effect of transferring or assigning the benefits to Division. We agree with the trial court that 42 USC § 407(a) was not violated by Division’s action.
See also State Central Collection Unit v. Stewart,
292 Md 255, 438 A2d 1311 (1981).
Affirmed.