DeArmitt v. Dept. of Corrections

The limited scope of review under ORS 183.400 does not allow the Court to review such rule challenges to determine whether the rules find adequate evidentiary support in the rulemaking record therefore both of the Oregon Department of Corrections rules, OAR 291-131-0035(1)(a)(D) and OAR 291-131-0025(11)(b)(D), are held valid.

DeArmitt challenges two Oregon Department of Corrections rules, OAR 291-131-0035(1)(a)(D) and OAR 291-131-0025(11)(b)(D), claiming that they violate the First Amendment of the United States Constitution. These rules prohibited inmates from receiving via mail any magazine clippings, tear-outs, photocopies, printed web pages, drawings, photographs, and other media depicting nude or partially-nude subjects. DeArmitt argued that the rules were not related to any real or perceived threat to institutional security, discipline, or order because the aim of the rules was to curb bartering of the images among inmates. In addition, DeArmitt argued that there are less-restrictive means to achieve this aim. The Court held that because DeArmitt brought the challenge to the rules under ORS 183.400 the Court’s scope of review is limited to the face of the rule and the law pertinent to it. The statute does not allow the Court to review such rule challenges to determine whether the rules find adequate evidentiary support in the rulemaking record, therefore, both of the challenged rules were held valid.