Rinne v. Matteucci

653

Submitted March 31, affirmed November 16, 2022, petition for review denied

March 30, 2023 (370 Or 827)

NICOLAS RINNE,

Plaintiff-Appellant,

v.

Dolores MATTEUCCI,

Superintendent, Oregon State Hospital,

Defendant-Respondent.

Marion County Circuit Court

20CV08061; A175397

521 P3d 170

Plaintiff appeals from the trial court’s dismissal of his writ of habeas cor-

pus. Plaintiff filed his petition for habeas corpus relief while a separate petition

for judicial review of a third order continuing the Psychiatric Security Review

Board’s (PSRB’s) putative jurisdiction over him was pending. He argues that

PSRB’s third order is deficient for the same reasons as its first two orders, which

we previously reversed. As a result, he contends that the third order, and conse-

quently his continued confinement, is not legal, and that dismissal of the writ

was erroneous. Held: Because plaintiff challenged only the reasoning in the cur-

rent order underlying his restraint without questioning whether that order pre-

cludes habeas corpus relief under ORS 34.330, he has failed to state a claim upon

which habeas corpus relief can be granted.

Affirmed.

Courtland Geyer, Judge.

Ryan T. O’Connor and O’Connor Weber LLC filed the

brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Rolf C. Moan, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

ORTEGA, P. J.

Affirmed.

654 Rinne v. Matteucci

ORTEGA, P. J.

Plaintiff is confined at the Oregon State Hospital

(OSH), where he was originally placed by the Psychiatric

Security Review Board (PSRB) after being found guilty

except for insanity on multiple criminal charges in 1999.

He has sought discharge from PSRB’s jurisdiction multiple

times; we previously reversed two of PSRB’s orders con-

tinuing his commitment for insufficient evidence. Rinne v.

PSRB, 299 Or App 275, 448 P3d 654 (2019) (Rinne I); Rinne

v. PSRB, 297 Or App 549, 443 P3d 731 (2019) (Rinne II).

Once plaintiff’s petition for judicial review of a third order

was pending, he sought habeas corpus relief which the trial

court ultimately dismissed. He appeals from that dismissal

arguing that, because PSRB’s third order is deficient for the

same reasons as the first two, the third order, and conse-

quently his continued confinement, is not legal. However,

Oregon’s habeas corpus laws are not meant to provide a

vehicle to challenge the merits of an order that maintains

an individual’s confinement. Accordingly, we affirm.

We begin with the history of PSRB’s jurisdiction and

plaintiff’s confinement. Plaintiff was found guilty except for

insanity of a number of criminal charges in 1999 and was

placed under the jurisdiction of the PSRB “for a maximum

period of time not to exceed 60 years.” In 2015 and 2017,

he appeared before PSRB seeking jurisdictional discharge,

based on the recommendation of defendant, the superinten-

dent of OSH, alleging that he no longer had a jurisdictional

diagnosis. On both occasions, PSRB found by a preponder-

ance of the evidence that a qualifying mental illness, “Other

Specified Anxiety Disorder,” combined with his pedophilia

to result in “a substantial danger to others,” meeting the

requirements for maintaining its jurisdiction under ORS

161.341 and ORS 161.351. Plaintiff sought judicial review of

both commitment orders.

In two separate opinions, this court reversed both

orders, concluding that the record in both instances did not

include substantial evidence to support PSRB’s findings that

“petitioner suffers from a qualifying mental disease or defect

that renders him a substantial danger to others.” Rinne II,

297 Or App at 566; Rinne I, 299 Or App at 276-77. More

Cite as 322 Or App 653 (2022) 655

specifically, we explained that, based on prior case law, pedo-

philia is a personality disorder and that a personality disor-

der does not qualify as “mental disease or defect.” Rinne II,

297 Or App at 553 (sexual conduct disorders are personal-

ity disorders for purposes of PSRB jurisdiction and “there

is no dispute that pedophilia is a sexual conduct disorder

and therefore not a qualifying mental disease or defect for

purposes of PSRB jurisdiction”). For that reason, in order

for PSRB’s orders to stand, the respective records needed to

include substantial evidence that petitioner’s qualifying men-

tal disease or defect, other anxiety disorder, caused him to be

dangerous in a manner that his pedophilic disorder did not

already cause. Id. at 553-54, 566; Rinne I, 299 Or App at 276-

77. We concluded that the records underlying each order did

not supply sufficient evidence to reach that determination. In

both cases, we remanded without further instructions.

After we issued those two decisions, PSRB “exam-

ined [its] options for redeciding a remanded matter * * *

[and] ultimately determined that the best way to proceed

was to reopen the record for a [consolidated] supplementary

hearing to take additional evidence.” After that supplemen-

tal hearing, PSRB issued a third order continuing plain-

tiff’s commitment. In that order, PSRB noted that it “is able

to retain jurisdiction of [someone whom PSRB] know[s] to

be an indisputably dangerous person, when his cluster of

symptoms are conceptualized as a qualifying mental dis-

ease or defect, but [ ] is forced to discharge him when those

same symptoms are conceptualized as a non-qualifying

mental disease or defect.” PSRB concluded that plaintiff is

affected by multiple qualifying mental disorders, including

bipolar and related disorder, illness anxiety disorder, and

generalized anxiety disorder, and that one or more of those

diagnoses “combines with his Pedophilic Disorder to make

him more dangerous than he would be without it.” Plaintiff

again sought judicial review of PSRB’s third commitment

order, arguing that PSRB “employed essentially the same

reasoning rejected by this court in Rinne I and Rinne II on

essentially the same record.” Plaintiff then separately filed

his petition for habeas corpus relief.

Plaintiff’s initial petition for habeas corpus relief

followed Rinne I and Rinne II and argued that those

656 Rinne v. Matteucci

decisions effectively ended PSRB’s jurisdiction over him and

thus ended its authority to continue his confinement. Under

that reasoning, he maintained that anything other than his

immediate discharge exceeded PSRB’s and the superinten-

dent’s authority. The superintendent responded by asserting,

among other things, that because we remanded both Rinne I

and Rinne II back to PSRB, PSRB was within its rights to

reevaluate the case without immediate discharge, and that

plaintiff remained under PSRB’s jurisdiction unless and

until a determination to the contrary was made by PSRB or

the courts.

PSRB’s supplemental hearing, described above, was

held nearly four months after plaintiff filed his initial habeas

petition, and its third order continuing his commitment was

issued an additional two months after that. Plaintiff filed

his replication after the third order was issued, necessar-

ily pivoting to address how the third order factored into his

habeas argument. He maintained that he challenged his

confinement under ORS 34.610(1) and (2),1 alleging that

OSH continues to unlawfully confine him on the basis of

an invalid and unlawful order issued by PSRB. He alleged

that “[d]espite the flaw in [PSRB’s] logic pointed out by the

Oregon Court of Appeals, [the superintendent] continues

to unlawfully confine plaintiff without the diagnosis of a

qualifying mental disease or defect that directly causes a

substantial risk to others as required under ORS 161.341

and ORS 161.351.” Said another way, plaintiff argued

that PSRB’s third order reflects the reasoning and record

already reviewed and rejected on judicial review and, conse-

quently, that that order is unlawful and thus his continued

confinement at OSH, resulting from that order, is unlawful.

He sought habeas corpus relief while his petition for judicial

1

ORS 34.610 provides, in relevant part:

“If it appears on the return that the prisoner is in custody by virtue of an

order or civil process of any court legally constituted, or issued by an officer in

the course of judicial proceedings before the officer, authorized by law, such

prisoner shall be discharged only if one of the following cases exists:

“(1) The jurisdiction of the court or officer has been exceeded, either as to

matter, place, sum or person.

“(2) The original imprisonment was lawful, yet by some act, omission or

event which has taken place afterwards, the party has become entitled to be

discharged.”

Cite as 322 Or App 653 (2022) 657

review of the third order is pending because, in his view, as

the history of his time under PSRB’s jurisdiction has shown,

direct judicial review is not a timely alternative remedy for

illegal confinement.

The superintendent moved to dismiss the habeas

corpus proceeding on two grounds. First, the superintendent

contended that “[p]laintiff cannot challenge a [PSRB] order

in habeas corpus that has been appealed to the Court of

Appeals.” Second, the superintendent argued that plaintiff

failed to “establish constitutional deprivations that resulted

in his unlawful imprisonment” which “requires immediate

judicial scrutiny for which there is no other timely practica-

ble remedy.”

Plaintiff responded to the motion to dismiss alleg-

ing that “[t]he jurisdiction of the court or officer has been

exceeded, either as to matter, place, sum or person,” and

thus this case “falls within the first category under ORS

34.610.” Plaintiff also argued that PSRB’s jurisdiction was

exceeded due to its “erroneous application of ORS 161.341

and ORS 161.351” in an effort to “stretch[ ] [PSRB’s] power

beyond that allowed by statute to ensure plaintiff is not

released.” Because plaintiff challenges the authority for

confinement, ORS 34.360,2 not the conditions of confinement

2

ORS 34.360 provides:

“If the challenge is to the authority for confinement, the petition shall

state, in substance:

“(1) That the party in whose behalf the writ is petitioned is imprisoned or

restrained of liberty, the place where, and officer or person by whom the party

is imprisoned or restrained, naming both parties if their names are known,

or describing them if not known.

“(2) That such person is not imprisoned or restrained by virtue of any

order, judgment or process specified in ORS 34.330.

“(3) The cause or pretense of the imprisonment or restraint, according to

the best knowledge or belief of the plaintiff.

“(4) If the original imprisonment or restraint is by virtue of any order,

warrant or process, a copy thereof shall be annexed to the petition, or it must

be alleged that, by reason of the removal or concealment of the party before

the application, a demand of such copy could not be made, or that the demand

was made, and the legal fees therefor tendered to the person having the party

in custody, and that a copy was refused.

“(5) That the claim has not already been adjudged upon a prior writ of

habeas corpus, to the knowledge or belief of the plaintiff.”

658 Rinne v. Matteucci

or deprivation of rights while confined, ORS 34.362,3 the

superintendent’s second argument concerning constitu-

tional deprivations, which apply to habeas petitions made

under ORS 34.362 and not ORS 34.360, is irrelevant to his

petition. Plaintiff also understood the superintendent’s first

argument to contend that habeas relief is barred because

of the availability of judicial review as a timely alternate

remedy, and that that argument invoked another require-

ment of habeas petitions that falls under ORS 34.362 but

not those that fall under ORS 34.360.

The trial court agreed with the superintendent and

stated that “the higher courts have established that Oregon

habeas law is not supposed to serve as a substitute” for a

petition for judicial review. This appeal followed.

On appeal, plaintiff challenges the superintendent’s

assertions below, primarily focusing on his understanding

of the superintendent’s first claim that the alternative rem-

edy of judicial review precludes habeas relief. Plaintiff also

claims that he should be discharged under ORS 34.610(1)

and (2), an argument which the superintendent contends is

unpreserved. In response, the superintendent abandons her

second argument concerning whether plaintiff had estab-

lished a “need for immediate judicial scrutiny,” and contends

that “[b]ecause the PSRB order that plaintiff challenged in

his habeas action is valid on its face, and because * * * PSRB

had subject matter and personal jurisdiction to issue the

order, ORS 34.330 and ORS 34.620 preclude plaintiff from

obtaining habeas relief.”

A motion to dismiss a writ of habeas corpus is “the

functional equivalent of a motion for summary judgment,”

McClintock v. Schiedler, 123 Or App 334, 336, 859 P2d 580

(1993); thus, in reviewing a judgment dismissing a writ of

3

ORS 34.362 provides:

“If * * * the person challenges the conditions of confinement or complains

of a deprivation of rights while confined, the petition shall:

“(1) Comply with requirements of ORS 34.360 (1), (3), (4) and (5); and

“(2) State facts in support of a claim that the person is deprived of a con-

stitutional right that requires immediate judicial attention and for which no

other timely remedy is practicably available to the plaintiff.”

(Emphasis added.)

Cite as 322 Or App 653 (2022) 659

habeas corpus, we will affirm if the record, viewed in the

light most favorable to the plaintiff, presents no genuine

issue of material fact and the defendant is entitled to prevail

as a matter of law. See ORCP 47 C.

The legislature explicitly limited the scope of a

habeas inquiry in ORS 34.620, which states that

“[n]o court or judge, on the return of a writ of habeas

corpus, has power to inquire into the legality or justice of

any order, judgment or process specified in ORS 34.330,[4]

nor into the justice, propriety or legality of any commitment

for a contempt made by a court, officer or body, according to

law, and charged in such commitment, as provided by law.”

Accordingly, and as relevant to this case, if plaintiff is

“restrained by virtue of the judgment of a competent tri-

bunal of civil or criminal jurisdiction, or by virtue of an

execution issued upon such judgment,” pursuant to ORS

34.330(2), the order’s “legality or justice” is not a material

fact in a habeas inquiry.

We do not understand the superintendent to argue

that the availability of judicial review of a PSRB order

precludes any challenge in habeas corpus to a custodian’s

authority to continue confinement. Instead, the superinten-

dent’s argument appears to be that a challenge to a PSRB

4

ORS 34.330 provides, in relevant part:

“A person may not prosecute a writ of habeas corpus if:

“(1) The person is imprisoned or restrained by virtue of process issued by

a court of the United States, or a judge, commissioner or other officer thereof,

in cases where such courts, or judges or officers thereof, have exclusive juris-

diction under the laws of the United States, or have acquired exclusive juris-

diction by the commencement of actions, suits or other proceedings in such

court, or before such commissioner or other officer.

“(2) The person is imprisoned or restrained by virtue of the judgment of

a competent tribunal of civil or criminal jurisdiction, or by virtue of an exe-

cution issued upon such judgment.

“* * * * *

“(5) The person seeks judicial review of a final order of the board under

ORS 144.335 but the Court of Appeals:

“(a) Summarily affirms the order of the board on the grounds that the

person failed to present a substantial question of law;

“(b) Otherwise disposes of the judicial review on the merits of the peti-

tioner’s issues on judicial review; or

“(c) Dismisses the judicial review because of a procedural defect.”

660 Rinne v. Matteucci

order is properly raised in a petition for judicial review and

that habeas corpus cannot be used as an alternative to that

judicial review. We agree. Judicial review is not an alter-

native remedy to habeas corpus; it is a remedy different

in kind. While judicial review allows a party subject to a

PSRB order to challenge that order, habeas corpus allows

a confined party to challenge the authority or conditions

under which their custodian, in this case the superinten-

dent, holds them. Compare ORS 161.348 (judicial review)

with ORS 34.310 (habeas corpus). In fact, as noted above,

the legislature has explicitly precluded courts in a habeas

corpus action from inquiring into the legality of an order,

such as evaluating its reasoning. ORS 34.620. That distinc-

tion explains why PSRB is a party to plaintiff’s petition for

judicial review, but not to this appeal.

We also agree with the superintendent that,

because we remanded both Rinne I and Rinne II to PSRB

without terminating its jurisdiction over plaintiff, PSRB

had the authority to reopen and reconsider his case. See

Allen v. Premo, 251 Or App 682, 686, 284 P3d 1199 (2012)

(“Generally speaking, when our tagline specifies, in toto,

‘Reversed and remanded,’ the ‘reversed’ part of the tagline

negates the appealed judgment or order and the ‘remanded’

part sends the case back to the lower tribunal as though the

original proceeding did not occur.”). Consequently, plaintiff

is “imprisoned or restrained by virtue of the judgment of

a competent tribunal of civil or criminal jurisdiction, or by

virtue of an execution issued upon such judgment.” ORS

34.330(2). Accordingly, given that plaintiff challenges only

the reasoning in the current order underlying his restraint

without questioning whether that order precludes habeas

corpus relief under ORS 34.330, he has failed to state a

claim upon which habeas corpus relief can be granted.

To the extent, below or on appeal, that plain-

tiff contends that he is entitled to discharge under ORS

34.610(1) and (2), he makes no valid argument in support

of that assertion. As discussed above, PSRB’s jurisdiction

has not been severed either by its own judgment or by judi-

cial review of its judgments and orders. That jurisdiction

includes authority to confine plaintiff in OSH so long as the

duration of his original sentence has not expired and the

Cite as 322 Or App 653 (2022) 661

PSRB finds that he is still “affected by a qualifying men-

tal disorder” and “presents a substantial danger to others.”

ORS 161.351.5 Plaintiff’s 60-year sentence has not elapsed

and PSRB, which still maintains jurisdiction over him,

made findings in support of continuing his confinement.

Accordingly, although those findings may be challenged in

the context of judicial review of that order, neither PSRB

nor the superintendent has exceeded their authority under

ORS 34.610(1) by continuing plaintiff’s confinement in OSH.

Also, at this stage, plaintiff has pointed to no “act, omis-

sion or event which has taken place”—either by PSRB or the

courts—since his original commitment that entitles him to

discharge under ORS 34.610(2).

Affirmed.

5

ORS 161.351 provides, in relevant part:

“(1) Any person placed under the jurisdiction of the Psychiatric Security

Review Board under ORS 161.315 to 161.351 shall be discharged at such

time as the board, upon a hearing, finds by a preponderance of the evidence

that the person is no longer affected by a qualifying mental disorder or, if

so affected, no longer presents a substantial danger to others that requires

regular medical care, medication, supervision or treatment.”