Curtis v. Oregon State Correctional Institution

THORNTON, J. This is an appeal from a disciplinary order of the Superintendent of the Oregon State Correctional Institution (OSCI). The disciplinary committee, after a hearing, found that petitioner had violated Major Rule 8 (Destruction of Property). The recommendation of the committee and the order of the superintendent resulting therefrom was (1) 10 days in segregation, (2) loss of 60 days’ statutory good time and (3) assessment against petitioner of one-half the cost of repairer replacement of the tires found by the disciplinary committee to have been damaged or destroyed. He appeals. — 532 — Petitioner’s first contention challenges the sufficiency of the evidence to support the finding of willful destruction of the tires. Our review of the findings of fact is limited to the existence of substantial, reliable and probative evidence in the whole record. Bonney v. OSP, 270 Or 79, 526 P2d 1020 (1974); Fowler v. OSCI, 18 Or App 1, 525 P2d 191 (1974); ORS 183.480(7) (d). Here the evidence was clearly sufficient. There was evidence that petitioner had admitted, in the presence of another inmate, that he had punctured one of the tires, and he was identified by two other inmates, jointly charged with him, as having punctured the tires while participating in a cleanup work detail with them on the institution’s grounds. Other physical and circumstantial evidence is more than “substantial” to support the finding. There is no merit in this assignment. Petitioner’s second contention is that neither the disciplinary committee nor the superintendent had authority to require him to make restitution for “one-half of the repair or replacement cost of the tires destroyed.” We begin our consideration of this contention by reviewing the pertinent statutes and administrative regulations. The authority to impose punishment upon inmates of the Oregon State Penitentiary and the Oregon State Correctional Institution is derived from the following: ORS 179.360, which provides: “(1) Each superintendent shall: “(a) Have control of the wards of the state at the institution under his jurisdiction. — 533 — “(b) Direct the care, custody and discipline of such wards unless otherwise directed by law or by rule of the division. “(c) Adopt sanitary measures for the health and comfort of such wards. “(d) Promote the mental, moral and physical welfare and development of such wards. “(e) Enjoy the other powers and privileges and perform the other duties that are prescribed by law or by rule of the division or that naturally attach themselves to his position. ORS 421.016(2), which provides: “The Superintendent of the Oregon State Correctional Institution shall be the chief executive officer of the correctional institution.” ORS 421.016(4) (c), which provides: “(4) The superintendents: “(e) May each prescribe rules for the government of the inmates, subject to the approval of the administrator.” ORS 421.105(1), which provides: “The superintendent may enforce obedience to the rules for the government of the inmates in the institution under his supervision by appropriate punishment but neither the superintendent nor any other prison official or employe may strike or inflict physical violence except in self-defense, or inflict any cruel or unusual punishment.” In 1973 the legislature added a new procedural statute, which provided in part as follows: “The division shall adopt procedures to be utilized in disciplining persons committed to the physical and legal custody of the division. The procedures adopted shall be subject to the approval of the Governor.” ORS 421.180. — 534 — Thus, we glean from the above provisions that the superintendent has authority under ORS 421.105(1) to enforce obedience within the institution; that in doing so he must (1) prescribe rules of conduct pursuant to ORS 421.016(4) (c), which shall be approved by the administrator of the Corrections Division, and (2) follow procedures adopted by the Corrections Division pursuant to ORS 421.180. Following the enactment of the 1973 statute (ORS 421.180) the Corrections Division on November 11, 1973, adopted its “Procedures for Disciplinary Action within Correctional Institutions” and “Major Rules of Conduct.” It is with a violation of Major Rule 8 of these rules that petitioner was charged and found guilty by the disciplinary committee. The above entitled rules of procedure provide for the establishment of a disciplinary committee in each institution whose powers are limited to: “a. Determining at a hearing if any of the rules for inmate conduct have been broken by a particular inmate, and, if so, “b. Imposing remedial treatment or sanctions in accordance with this code.” Rule 11(3). It appears from the foregoing that the rules of procedure, in addition to dealing with procedural matters, also deal ivith some substantive matters such as punishment, viz., empowering disciplinary committees to impose “remedial treatment or sanctions in accordance with this code.” It is also plain from an examination of the statutes previously quoted that the superintendent of each institution has basic authority to impose “appropriate punishment” in connection with his statutory duty to “enforce obedience to the rules for the govern — 535 — ment of the inmates in the institution under his supervision * * OES 421.105(1). Petitioner argues that nowhere in the “Procedures for Disciplinary Action within Correctional Institutions” or the Oregon Eevised Statutes is there a specific provision authorizing either the disciplinary committee or the superintendent of the institution to impose a requirement of restitution; that under the principle of statutory construction inclusio unius est exdusio alterius (inclusion of one is the exclusion of others), the listing of specific enumerated sanctions in the rules of procedure (Eule V) means the exclusion of all forms of punishment not specifically enumerated. The state counters this by arguing that restitution is a type of “remedial treatment” which the disciplinary committee is authorized to impose under Eule 11(3) (b), quoted above. Petitioner’s second contention cannot be sustained for the following reasons: First, we conclude that the disciplinary committee is authorized to require petitioner to make restitution as a form of “remedial treatment.” Under the rules of procedure the disciplinary measures which may be imposed by the superintendent through the disciplinary committee are divided into two categories: (1) “remedial treatment” and (2) “sanctions.” It is only with reference to the “sanctions” that the discretion of the disciplinary committee and the superintendent is specifically circumscribed by the rules. Also in this same connection we note that judicial review by this court under OES 421.195 is provided only where certain specifically enumerated sanctions have been imposed. “Eemedial treatment” is not defined in the rules. The use of this term in the disjunctive with the — 536 — term “sanctions” would indicate that the “remedial treatment” contemplated by the Corrections Division, which drafted these rules, was something different from “sanctions.” Webster’s New International Dictionary (2d ed 1961) defines the term “remedial” as: “Affording a remedy; intended for a remedy, or for the removal or abatement of an evil; as, remedial treatment.”, and the term “treatment” as: “Act, manner, or an instance, of treating, esp. of treating a person or animal, a patient, subject, or a substance, as in processing; handling; usage; as, unkind treatment of a child; to require medical treatment.” Applying the dictionary definitions for the words “remedial” and “treatment” would lead us to conclude that remedial treatment includes any of the wide range of measures (short of impermissible, cruel and unusual punishment) tending to correct or improve the inmate’s conduct in the area involved. Second, even if the restitution portion of the disciplinary committee’s order were deemed to be beyond the powers of the disciplinary committee, the order would still be valid under the superintendent’s basic statutory disciplinary powers. As we have already indicated, we are satisfied that the superintendent has authorit3r to require restitution under his statutory power to “[djirect the care, custody and discipline * * *” “* * * of the wards of the state at the institution under his jurisdiction” (ORS 179.360), and to “enforce obedience to the rules for the government of the inmates in the institution under his supervision by appropriate punishment * * *” (ORS — 537 — 421.105(1)). Further, he is authorized under OES 179.360(1) (b) and Eule II, “Procedures for Disciplinary Action within Correctional Institutions,” to delegate to the institution’s disciplinary committee the task of hearing and determining if the charges against petitioner were true. Under this view, the restitution order of the disciplinary committee would be construed as a recommendation only to the superintendent, which was subsequently adopted by the superintendent by his order approving the punishment previously imposed by the disciplinary committee. Affirmed.