Lewis v. Dept. of Corrections

No. 915 October 22, 2025 355

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

SHANE ANTHONY LEWIS,

Petitioner,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

Department of Corrections

A181275

Submitted January 10, 2025.

Shane Anthony Lewis filed the briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin

Gutman, Solicitor General, and Patricia G. Rincon, Assistant

Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, Powers, Judge, and Pagán,

Judge.

POWERS, J.

OAR 291-131-0030(1)(b), OAR 291-139-0130(6), and OAR

291-139-0180(5) held valid; petition otherwise dismissed.

356 Lewis v. Dept. of Corrections

POWERS, J.

In this proceeding under ORS 183.400(1), petitioner

advances nine assignments of error to challenge the validity

of certain alleged policies and administrative rules adopted

by the Department of Corrections (DOC). As explained

below, we dismiss some of petitioner’s challenges as moot,

determine that some of the challenges are not directed at

rules within the meaning of the Oregon Administrative

Procedures Act (APA), and hold the remaining rules valid.

In his first through sixth assignments of error,

petitioner argues that various alleged policies and practices

by Snake River Correctional Institution (SRCI) and DOC

relating to Adult in Custody (AIC) grievances and mailing

are rules under the APA that were adopted without compli-

ance with applicable rulemaking procedures and are, there-

fore, invalid. In his seventh through ninth assignments of

error, petitioner argues that three Oregon Administrative

Rules relating to AIC legal mail violate constitutional pro-

visions. DOC argues that petitioner’s challenges to some

of the policies are moot because the policies are no longer

in effect, that other policies identified by petitioner are not

rules under the APA, and that petitioner failed to ade-

quately develop his arguments regarding the challenged

administrative rules or, alternatively, that his arguments

fail on the merits.

ORS 183.400 empowers us to determine the valid-

ity of state agency rules.1 We may declare a rule invalid only

1

ORS 183.400 provides, in part,

“(1) The validity of any rule may be determined upon a petition by any

person to the Court of Appeals in the manner provided for review of orders

in contested cases. The court shall have jurisdiction to review the validity of

the rule whether or not the petitioner has first requested the agency to pass

upon the validity of the rule in question, but not when the petitioner is a

party to an order or a contested case in which the validity of the rule may be

determined by a court.

“* * * * *

“(3) Judicial review of a rule shall be limited to an examination of:

“(a) The rule under review;

“(b) The statutory provisions authorizing the rule; and

“(c) Copies of all documents necessary to demonstrate compliance with

applicable rulemaking procedures.

Cite as 344 Or App 355 (2025) 357

if the rule “violates constitutional provisions, exceeds the

agency’s statutory authority, or was adopted without com-

pliance with applicable rulemaking procedures.” Smith v.

TRCI, 259 Or App 11, 13, 312 P3d 568 (2013) (citing ORS

183.400(4)). Generally, the first step in an ORS 183.400

challenge is to “first determine whether the challenged pol-

icy is, in fact, a rule.” Smith v. Dept. of Corrections, 301 Or

App 299, 300, 456 P3d 310 (2019). If it is not a rule, then

we have no authority under ORS 183.400 to review it. Id.

Whether a purported rule qualifies as a rule under the APA

presents a legal question. See Smith, 259 Or App at 16 (so

reviewing). The party invoking our jurisdiction under ORS

183.400 bears the burden of demonstrating that the pur-

ported rule qualifies as a rule. Justice Resource Center v.

Board of Parole, 338 Or App 509, 513, 566 P3d 1162, rev den,

374 Or ___ (2025). An administrative “rule” is defined as

“any agency directive, standard, regulation or statement

of general applicability that implements, interprets or pre-

scribes law or policy, or describes the procedure or practice

requirements of any agency.” ORS 183.310(9).

Under ORS 183.400, our review “is limited in scope

to the face of the rule and the law pertinent to it.” Smith,

259 Or App at 13 (internal quotation marks omitted); see

also ORS 183.400(3) (explaining that in a facial rule chal-

lenge, we may examine only the rule, statutory provisions

authorizing the rule, and documents bearing on compliance

with rulemaking procedures). As we have explained, “[t]he

province of a rule challenge * * * is to invalidate rules that,

on their face, * * * violate the law.” Criminal Justice Reform

Clinic v. Board of Parole, 313 Or App 592, 597, 496 P3d 688

(2021).

We begin with assignments of error two, three,

and four, which challenge three provisions in a 2022 “SRCI

Security AIC Handbook” used by SRCI that petitioner

contends are rules adopted without following the proper

“(4) The court shall declare the rule invalid only if it finds that the rule:

“(a) Violates constitutional provisions;

“(b) Exceeds the statutory authority of the agency; or

“(c) Was adopted without compliance with applicable rulemaking

procedures.”

358 Lewis v. Dept. of Corrections

rulemaking procedures.2 That handbook, however, is no

longer in effect. As we understand it, the 2024 handbook

is currently in effect, and it does not contain the provisions

that petitioner challenges. Thus, even assuming without

deciding that the handbook provisions identified by peti-

tioner qualify as rules under the APA, the issue is moot.

Accordingly, we reject the challenges advanced in assign-

ments of error two, three, and four as moot. See Mooney v.

Oregon Health Authority, 314 Or App 809, 811, 500 P3d 79

(2021) (explaining that we have repeatedly “held that the

repeal or replacement of an administrative rule means an

ORS 183.400 challenge seeking to invalidate the displaced

rule is moot”); see also Brumnett v. PSRB, 315 Or 402, 406,

848 P2d 1194 (1993) (noting that cases “in which a court’s

decision no longer will have a practical effect on or concern-

ing the rights of the parties, will be dismissed as moot”).

Turning to the first assignment of error, petitioner

argues that SRCI has adopted a policy, which he argues is

a rule, that impermissibly limits what issues an AIC may

raise in a grievance, which in his view contradicts OAR 291-

109-0210(3). According to petitioner, SRCI’s practice of lim-

iting permissible grievance issues is an “interpretive ampli-

fication or refinement of an existing rule,” which requires

compliance with the APA’s rulemaking procedures. See

Smith, 259 Or App at 25 (explaining that “the interpretive

amplification or refinement of an existing rule is a new exer-

cise of agency discretion and must be promulgated as a rule

under the APA to be valid” (internal quotation marks omit-

ted)). DOC remonstrates that petitioner has not sufficiently

identified the “rule” that he challenges and, regardless, any

policy that petitioner has identified is not a rule within the

APA because it is not generally applicable.

A “rule” under the APA must be generally applica-

ble, meaning not directed to a particular person or entity.

Stop B2H Coalition v. Dept. of Energy, 370 Or 792, 810, 525

P3d 864 (2023) (observing that an “agency action directed to

2

Specifically, petitioner challenges provisions that prohibit filing a griev-

ance against more than one employee on a single grievance form, filing a griev-

ance regarding use of force by staff, and filing a grievance regarding an AIC

property issue.

Cite as 344 Or App 355 (2025) 359

a specific person or entity is not a generally applicable rule”

(internal quotation marks omitted)).

OAR 291-109-0210 provides a nonexclusive list of

what issues an AIC may include in a grievance. OAR 291-

109-0210(3) provides that:

“An [AIC] may file a single grievance concerning any

incident or issue regarding institutional life that directly

and personally affects that [AIC], including but not limited

to:

“(a) Misapplication of departmental policies, rules, or

other directives;

“(b) Unprofessional actions of employees, volunteers,

or contractors of the Department of Corrections or Oregon

Corrections Enterprises;

“(c) Inadequate medical or mental health treatment;

and

“(d) Excessive use of force by department employees.”3

In his challenge before us, petitioner points to a written

denial of a grievance that he submitted as the “rule” that he

challenges. That denial provides:

“Your grievance has not demonstrated how it qualifies

under [OAR] 291-109-0210. You have not demonstrated

misapplication of departmental policies, rules, or other

directives, unprofessional actions of department employ-

ees, volunteers, or contractors, inadequate medical or men-

tal health treatment, sexual abuse or sexual harassment or

excessive use of force by department employees.”

Petitioner argues that the denial of his grievance demon-

strates that SRCI has a policy of limiting grievances to the

categories included in OAR 291-109-0210(3), but the “includ-

ing but not limited to” language in OAR 291-109-0210(3)

means that the examples are not exclusive. We agree with

petitioner’s argument that the explicit terms of OAR 291-

109-0210(3) do not limit the type of issues an AIC may file

a grievance about; that is, the enumerated examples con-

tained in the rule are nonexclusive. However, even accepting

3

OAR 291-109-0210 has been amended since the parties submitted their

briefs; however, because those amendments do not affect our analysis, we refer to

the current version of the rule in this opinion.

360 Lewis v. Dept. of Corrections

petitioner’s argument about the non-exclusivity of the rule,

petitioner still has not identified a generally applicable rule

for us to review. In short, we conclude that his challenge is

premised on a response directed to him addressing a spe-

cific grievance that he submitted. Under the circumstances,

petitioner has failed to challenge a rule, and we accordingly

reject his first assignment of error.

In his fifth assignment of error, petitioner argues

that an SRCI policy requiring AICs to bring an envelope

with them to an appointment with a notary is a rule that

was adopted without proper rulemaking procedures because

it expands the requirements for accessing notary services

set out in existing administrative rules. As evidence of the

policy, petitioner quotes a sign posted in the legal library

that provides: “When scheduled for notary. Please be sure

to have an envelope at your appointment, in order to receive

a notary. Effective 1/19/23 all notaries need to be mailed

from Law Library.” DOC argues that petitioner has not suf-

ficiently identified the alleged rule and, regardless, any such

policy is not a rule because it simply explains how existing

rules necessarily operate.

An agency’s explanation of “the necessary require-

ments of an existing rule” is not a rule requiring rulemak-

ing procedures. Burke v. Public Welfare Div., 31 Or App 161,

165, 570 P2d 87 (1977). That is, “an agency’s pronouncement

of how a validly promulgated rule operates in a specific con-

text need not itself be promulgated as a rule if the existing

rule necessarily requires the result set forth in that pro-

nouncement.” Id. However, “the interpretive amplification or

refinement of an existing rule is a new exercise of agency

discretion and must be promulgated as a rule under the

APA to be valid.” Smith, 259 Or App at 25 (internal quota-

tion marks omitted).

We conclude that SRCI’s policy requiring AICs to

bring an envelope with them for notary services is not a

rule under the APA; rather, it is an explanation of the nec-

essary requirements of the existing rules. Notary services

will be provided to indigent AICs at no charge “when neces-

sary,” and to obtain notary services, an AIC must show that

“a notary is required by the court or paroling authority.”

Cite as 344 Or App 355 (2025) 361

OAR 291-139-0130(7). If a notary is required by the court

or paroling authority, practically, whatever document is

notarized must be sent to the court or paroling authority.4

Outgoing mail from SRCI must be enclosed “in an approved

Department of Corrections envelope.” OAR 291-131-0020(2).

Envelopes will be provided to indigent AICs “for necessary

court filings.” OAR 291-139-0130(6). Thus, an AIC with a

notary services appointment necessarily needs the service

for a court-related or parole-related document; the notarized

document must be mailed to the court; mailing documents

to the court or paroling authority requires an approved enve-

lope; and indigent AICs may obtain envelopes for necessary

court filings at no charge. Therefore, as we understand it,

the notice requiring AICs to bring an envelope with them to

a notary appointment only explains what the existing rules

necessarily require: an AIC must have an envelope in order

to send the notarized documents. Under the rules in place,

read together, the requirement that an AIC bring an enve-

lope with them to a notary appointment is not a rule under

the APA that we can review. See Burke, 31 Or App at 165

(“[A]n agency’s pronouncement of how a validly promulgated

rule operates in a specific context need not itself be promul-

gated as a rule if the existing rule necessarily requires the

result set forth in that pronouncement.”).

In his sixth assignment of error, petitioner argues

that DOC has adopted a rule without complying with appli-

cable rulemaking procedures that prohibits indigent AICs

from mailing legal documents from the legal library with-

out a court-ordered deadline. In his opening brief, peti-

tioner asserts that SRCI requires indigent AICs to have a

“court-ordered deadline” in order to receive mailing sup-

plies to mail legal documents, but he does not provide a spe-

cific policy or language used by SRCI to that effect. In his

reply brief, petitioner identifies a provision in the Oregon

State Penitentiary’s “Adult in Custody Handbook,” which

provides: “AICs with documented legal deadlines will be

permitted priority access to the legal section of the library.

4

Petitioner does not argue that the requirement that notarized documents

be mailed to the court from the law library is a new rule that required rulemak-

ing procedures; he challenges only the requirement that AICs bring an envelope

to the appointment.

362 Lewis v. Dept. of Corrections

Please indicate your deadline information on your request

form, and then present documentation of the deadline from

the courts with your first pass.” For its part, DOC contends

that petitioner has not identified the purported rule with

sufficient particularity.

We conclude that petitioner did not sufficiently

raise or develop his argument in his opening brief, and we

will therefore not consider it.5 See Brown v. State Historic

Preservation Office, 296 Or App 886, 891 n 3, 443 P3d

1170 (2019) (declining to reach the petitioner’s argument

“[b]ecause that argument was not raised or adequately

developed in petitioner’s opening brief”). Petitioner did not

provide an identifiable policy for our review in his opening

brief, and it is unclear to us whether petitioner intends to

challenge the practice of requiring an indigent AIC to have

a court deadline to access mailing supplies or requiring an

AIC to provide proof of a deadline. Accordingly, we do not

reach assignment of error six.

In his seventh assignment of error, petitioner

argues that existing rule OAR 291-131-0030(1)(b) is uncon-

stitutional because it allows prison officials to read and pho-

tocopy AICs’ legal mail. DOC responds that petitioner has

not sufficiently developed his argument and, regardless, it is

incorrect on the merits.

Any argument that a rule is facially invalid must

be sufficiently developed to allow us to make a legal deter-

mination on that issue. Haynes v. Board of Parole, 271 Or

App 578, 579, 351 P3d 811, rev den, 358 Or 248 (2015). A

bare allegation that the rule violates constitutional rights is

insufficient.

Generally, all “incoming and outgoing mail” in a

DOC facility “is subject to inspection or examination.” OAR

291-131-0015(6). Inspection or examination of legal and offi-

cial mail is governed by OAR 291-131-0030, which provides

special processing for examination and inspection that for-

bids opening and examining the mail outside of an AIC’s

5

We understand that petitioner was transported from SRCI to the Oregon

State Penitentiary between filing his opening and reply brief, and that he did not

have access to the written handbook until that transfer. Regardless, he did not

sufficiently develop his argument.

Cite as 344 Or App 355 (2025) 363

presence, along with reading or photocopying the contents,

in most circumstances. OAR 291-131-0030(1) provides that,

to qualify for special processing, legal and official mail

must have the words “LEGAL MAIL” or “OFFICIAL MAIL”

affixed to the addressee side of the envelope or parcel. For

mail that does not have that designation, OAR 291-131-

0030(1)(b) provides that “[m]ail that otherwise qualifies as

legal and official mail but lacks the proper designation shall

be processed as ordinary mail (that is, shall be subject to

inspection; for example, opening, examination, reading or

photocopying) outside the [AIC’s] presence.”

Petitioner argues that “DOC may require the sender

to mark correspondence with the words ‘legal mail’ for AICs

to enjoy the benefit of having their legal mail opened in their

presence. But the constitution still forbids allowing DOC

staff to read and copy AICs’ legal mail at all.” (Emphasis

omitted.) Petitioner appears to argue that, even if DOC

staff may open legal mail to ensure that it does not con-

tain contraband or when it is not designated as legal mail

in the manner required, it is a constitutional violation for

staff to read or copy legal mail, regardless of whether it is

designated as such. We conclude that petitioner has not suf-

ficiently developed his constitutional argument that AICs

have a constitutional right to not have their legal mail read

or copied under any circumstances.

In his opening brief, petitioner does not identify

whether he challenges the rule under the United States

Constitution or the Oregon Constitution or both. Nor does

petitioner cite to any particular constitutional provision

that the rule allegedly violates. As DOC contends, it is not

clear whether petitioner’s challenge is grounded in a right to

counsel, the right to access to the courts, or some other pro-

vision or provisions. Although petitioner appears to argue in

his reply brief that the rule violates the First Amendment to

the United States Constitution, that comes too late. In short,

petitioner has not demonstrated that there exists a consti-

tutional right, under any provision, against having any and

all legal mail read or copied under any circumstances.

Finally, in his eighth and ninth assignments of

error, petitioner challenges two existing rules that limit

364 Lewis v. Dept. of Corrections

indigent AIC envelope access to filings with the courts,

not for general correspondence with attorneys. OAR 291-

139-0130(6) (“Envelopes will only be provided to indigent

inmates for necessary court filings.”); OAR 291-139-0180(5)

(providing that “sufficient envelopes and postage will be

provided to mail out the original legal documents for filing

with the court or paroling authority and for mailing out

any required service copies”). However, as with his seventh

assignment of error, petitioner has not sufficiently developed

his constitutional argument. In his opening brief, petitioner

does not identify whether he challenges the rules under the

state or federal constitution, nor which constitutional pro-

vision the rules allegedly violate, and his arguments do not

make that information readily discernible. In his reply brief,

he explains that his argument is “grounded in the First

Amendment” and that he challenges the rule as violating

both AIC’s and attorneys’ rights. Because that argument

was not developed in petitioner’s opening brief, we do not

consider it. See Brown, 296 Or App at 891 n 3.

OAR 291-131-0030(1)(b), OAR 291-139-0130(6), and

OAR 291-139-0180(5) held valid; petition otherwise dismissed.