Smith v. Dept. of Corrections (A165756)

493 P.3d 573, 314 Or. App. 104

• Court: Court of Appeals of Oregon
• Decided: August 18, 2021
• Docket: A165756
• Status: Published

Opinion

Submitted May 7, petition for judicial review dismissed August 18, 2021

ARLEN PORTER SMITH and Kenneth Robert Banes, Petitioners, v. DEPARTMENT OF CORRECTIONS, Respondent. Department of Corrections A165756 493 P3d 573

Arlen Porter Smith and Kenneth Robert Banes filed the brief pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent. Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge. PER CURIAM Petition for judicial review dismissed. Cite as 314 Or App 104 (2021) 105

PER CURIAM Petitioners, one of whom is an inmate at Two Rivers Correctional Institution, invoke our authority to review the validity of a rule under ORS 183.400. They challenge three portions of the Offender Information and Sentence Computation Unit Manual that they contend should be deemed invalid as “rules” promulgated without compliance with the rulemaking procedures of the Oregon Administrative Procedures Act. They challenge Chapter 5, Section II.C (describing information in a judgment used in computing a sentence); Chapter 5, Section V (describing interpretation of a judgment); and Chapter 18, Section III.E.2 (describing the process for ensuring that the Department of Corrections complies with the law on alternative incar- ceration programs). We conclude that the challenges to the first two portions of the manual are moot because the department has subsequently adopted the challenged pro- visions through formal rulemaking. We also conclude that the third challenged portion of the manual is not a rule (see ORS 183.310(9) (defining “rule”)); that ORS 183.400 does not apply; and that we lack authority to determine the validity of the challenged provision as if it were a rule. Petition for judicial review dismissed.