Justice Resource Center v. Board of Parole

A ‘rule’ is “any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency.” ORS 183.310(9)...“Testimony about law, standing alone, does not function in a self-executing way as law itself.”

The Oregon Board of Parole and Post-Prison Supervision presented testimony from a Chairman for pending legislation on Senate Bill 1027, stating it would not require “actual rehabilitation,” but only a lower threshold of “capable of rehabilitation.” Petitioners contend that the standard for parole release at the time of the hearing was “present severe emotional disturbance such as to constitute a danger to the health or safety of the community,” not in fact “actual rehabilitation.” The petitioners, OJRC, argue that the testimony at the Senate Committee on Judiciary qualifies as an administrative rule under OAR and is subject to review. The Court of Appeals held that legislative testimony is not an administrative rule, and therefore lacked jurisdiction to judicially review petitioners' challenge to the alleged rule. A ‘rule’ is “any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency.” ORS 183.310(9)...“Testimony about law, standing alone, does not function in a self-executing way as law itself.”

The Court reasoned this expression did not constitute an administrative rule under ORS 183.400 because the Chairman was not implementing new law, but rather explaining the current law in different layman's terms. The legislative history of the statute reflects the drafter’s intention to define “rule” more specifically, to avoid encompassing all opinions and statements made by state agencies. Lastly, the Court found that the testimony falls under an explicit exception under ORS 183.310(9)(b). The Court reasoned that this exception applies to actions by agencies directed to other governmental agencies that do not substantially affect the interests of the public. The Court held that the Chairman’s testimony about the proposed law was directed at the legislature and did not infringe on a public interest. The Court concluded that the testimony alone was not a “rule” and could not be subjected to judicial review. The petition for judicial review was dismissed.