Byers v. Dept. of Corrections (A174403)

Submitted March 4; OAR chapter 291, division 105 (June 7, 2018) held valid April 13, 2022

ROBERT JEROME BYERS, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent. Department of Corrections A174403 508 P3d 597

Robert Jerome Byers filed the brief pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge. PER CURIAM OAR chapter 291, division 105 (June 7, 2018) held valid.

88 Byers v. Dept. of Corrections (A174403)

PER CURIAM Pursuant to ORS 183.400, petitioner challenges the validity of OAR chapter 291, division 105 (June 7, 2018), which encompasses the Oregon Department of Corrections (DOC) rules on “Prohibited Inmate Conduct and Processing Disciplinary Actions.”1 We do not reach the merits of peti- tioner’s arguments because we agree with DOC that peti- tioner’s petition for judicial review is untimely. Under ORS 183.400(6), “The court shall not declare a rule invalid solely because it was adopted without compliance with applicable rulemaking procedures after a period of two years after the date the rule was filed in the office of the Secretary of State, if the agency attempted to comply with those proce- dures and its failure to do so did not substantially prejudice the interests of the parties.” Petitioner did not file his petition until more than two years after the effective date of the challenged rules, and we con- clude that the record indicates that DOC attempted to com- ply with rulemaking procedures and that if it failed to do so, it did not do so in a way that substantially prejudiced petitioner’s interests. Accordingly, ORS 183.400(6) bars peti- tioner’s challenge. OAR chapter 291, division 105 (June 7, 2018) held valid.

1 The challenged rules have since been amended again, effective December 15, 2020. This challenge is to the 2018 version of the rules.