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 corpus. 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 consequently his continued confinement, is not legal, and that dismissal of the writ
was erroneous. Held: Because plaintiff challenged 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.
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 continuing 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 consequently 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 superintendent of OSH, alleging that he no longer had a jurisdictional
diagnosis. On both occasions, PSRB found by a preponderance 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, pedophilia is a personality disorder and that a personality disorder does not qualify as “mental disease or defect.” Rinne II,
297 Or App at 553 (sexual conduct disorders are personality 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 mental 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 “examined [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 supplemental hearing, PSRB issued a third order continuing plaintiff’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 disease 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 superintendent’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, necessarily 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, consequently, 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 practicable remedy.”
Plaintiff responded to the motion to dismiss alleging 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 constitutional 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 requirement 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 remedy 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 established 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 constitutional 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 tribunal 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 superintendent’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 jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction 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 execution 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 petitioner’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 alternative 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 superintendent, 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 distinction 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 plaintiff 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 judicial 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 mental 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, omission 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.”
