Hale v. OREGON STATE PENITENTIARY, ETC.

577 P.2d 531, 33 Or. App. 529, 1978 Ore. App. LEXIS 3368

• Court: Court of Appeals of Oregon
• Decided: April 17, 1978
• Docket: 05-77-099, CA 8799
• Status: Published

Opinions

SCHWAB, C. J.

In this disciplinary proceeding the order of the Superintendent of the Oregon State Penitentiary was not timely entered and this error requires reversal.

After hearing a charge of misconduct by petitioner, the Disciplinary Committee entered an order on May 16, 1977, finding petitioner guilty of the charge and recommending a sanction consisting of six months’ segregation and forfeiture of 180 days of good time. The superintendent entered an order on June 17,1977, affirming the finding of guilt, but modifying the sanction to require only the forfeiture of good time and no time in segregation.

ORS 421.180 authorizes the Corrections Division to adopt rules of procedure to be utilized in disciplining inmates in penal institutions under its control. OAR 291-40-115(6)(e)(f) reads as follows:

"(6) Conduct of the Hearing. The hearing shall be conducted as follows:

«:$? if? if? if? ;}?

"(e) Within 14 days from the disciplinary committee decision and notice to the inmate, the disciplinary committee chairman or his designee shall prepare and submit to the institution Superintendent a 'Finding of Fact, Conclusion and Recommendation’ of the disciplinary committee.

"(f) Within 5 days of the receipt of the 'Finding of Fact, Conclusion, and Recommendation’ of the disciplinary committee, the institution Superintendent or his designee shall review the disciplinary committee’s action and enter his 'Order.’ ”

Under these rules the superintendent had a duty to enter an order no more than 19 days after May 16, 1977. As noted above the order was not entered for several days after the rules required that it be entered. Petitioner was kept in segregation until the superintendent entered his order.

ORS 421.195 provides that the Court of Appeals shall review orders in disciplinary cases, with certain exceptions, and that the court may affirm, reverse or remand on the basis provided in paragraphs (a) to (d) of subsection (8) of ORS 183.482. That statute states in pertinent part:

"(8) * * * The court shall reverse or remand the order only if it finds:

"(a) The order to be unlawful in substance or procedure, but error in procedure shall not be cause for reversal or remand unless the court shall find that substantial rights of the petitioner were prejudiced thereby * *

There are essentially three kinds of error: (1) error which is not prejudicial; (2) error which is prejudicial but which can be corrected by rehearing or by some other means; and (3) error which is prejudicial and for which there is no remedy. The prejudice in this case falls in the third category. As a result of the failure of the superintendent to issue a timely order the petitioner has spent time in segregation that the superintendent’s order says he should not have served.¹ ORS 183.482 contemplates reversal in appropriate instances. This is such an instance. Having made the rules, the Corrections Division is bound by them.

Reversed.

1 We are not here dealing with an order reducing time in segregation to time served.