FILED: June 2, 1999

RODNEY HOWEY,

Respondent,

v.

DAN JOHNSON, Superintendent,

Snake River Correctional

Institution,

Appellant.

Appeal from Circuit Court, Malheur County.

Burdette Pratt, Judge.

Argued and submitted April 5, 1999.

Christine Chute, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Bob Pangburn argued the cause and filed the brief for respondent.

Before Landau, Presiding Judge, and Wollheim and Brewer, Judges.

PER CURIAM

Affirmed. Peek v. Thompson, 160 Or App 260, ___ P2d ___ (1999).

Brewer, J., concurring.

BREWER, J., concurring.

I concur in the result in this case because it is compelled by our decision in Peek v. Thompson, 160 Or App 260, ___ P2d ___ (1999). However, I persist in the view that Peek was incorrectly decided for one or more of the reasons stated in the dissent in that case.

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