State v. O'Neill

• Decision Date: 22 January 1976
• Citation: 274 Or. 59,545 P.2d 97
• Parties: In the Matter of Michael O'Neill, alleged to be a mentally ill person. STATE of Oregon, Respondent, v. Michael O'NEILL, Petitioner.
• Court: Oregon Supreme Court

Page 97

545 P.2d 97

274 Or. 59

In the Matter of Michael O'Neill, alleged to be a mentally ill person.

STATE of Oregon, Respondent, v. Michael O'NEILL, Petitioner.

Supreme Court of Oregon.

Argued and Submitted Oct. 10, 1975.

Decided Jan. 22, 1976.

Leslie M. Roberts, Portland, argued the cause for petitioner. With her on the briefs were Kell, Alterman, Runstein & Thomas, Portland.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the briefs were Lee Johnson, Atty. Gen., and Timothy Wood, Asst. Atty. Gen., Salem.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, TONGUE, HOWELL and BRYSON, JJ.

BRYSON, Justice.

The appellant (petitioner) was adjudicated a mentally ill person ¹ and involuntarily committed to the State Mental Health Division for treatment. The Court of Appeals affirmed ² and we granted the petition to review.

We review de novo. ³ Appellant was 28 years of age and prior to commitment lived in an apartment with a woman companion. At about 2 p.m. on October 27, 1974, an officer of the Portland Police Bureau was summoned to the home of Mrs. O'Neill, appellant's mother, because appellant 'was acting up' and his mother was 'afraid of him.' Based on his observations, the officer transported appellant to the University of Oregon Medical School where he was admitted to the crisis unit. ⁴ The trial record shows that the police officer filed a 'person report' with the circuit court for Multnomah County on October 28, 1974. On the same date a 'Notice of Mental Illness' form was filed in the circuit court stating:

'* * *.

'The undersigned, each being first duly sworn, says that: (Michael O'Neill) * * * is a mentally ill person * * * and is in need of treatment, care or custody.

X /s/ S. Paulson, M.D.

X /s/ Michael P. Resnick, M.D.

'WEDNESDAY, OCTOBER 30, 1974

'Subscribed and sworn to before me this 27 day of October, 1974.

'* * *.'

Again, on October 28, 1974, the court issued an 'Order to Investigate' directing the Community Mental Health Director, or his designee, to determine whether there was probable cause to believe that appellant is in fact a mentally ill person.

An 'Investigation Report and Recommendation' was also filed by Dr. Paulson as designee of the Community Mental Health Director, which stated in part:

'* * *.

'2. Pursuant to an order of the Court, on October 27 (28), 1974, I conducted an investigation to determine if there is probable cause to believe that the above-named person is, in fact, a mentally ill person.

'3. In my opinion there is probable cause to believe the person investigated is a mentally ill person. * * * Pt was brought in by Police because of threats of violence to his mother. * * *

'Pt is incoherent, agitated, and potentially violent.

'* * *.

/s/ S. Paulson, M.D.

'(Oath omitted).'

Appellant objected to the above investigation report being received in evidence and the court sustained the objection. ORS 426.095 provides:

'The allegedly mentally ill person shall have the right to cross-examine all witnesses, the person conducting the investigation, the examining physicians or other qualified persons recommended by the division who have examined the persons. Neither the investigation report nor any part thereof shall be introduced in evidence without the express consent of the allegedly mentally ill person.' (Emphasis added.)

A warrant of detention was issued pursuant to ORS 426.070(5), and the court issued an 'Order for Citation' which stated he 'concluded that there is probable cause to believe that MICHAEL O'NEILL is a mentally ill person.'

On October 30, 1974, the court conducted a hearing in chambers. The testimony shows that appellant was fully advised of his rights pursuant to ORS 426.100, including his right to counsel and his right to postponement. Appellant was represented at the hearing by attorney Blank from the Metropolitan Public Defender.

The appellant was questioned and observed by two court appointed examiners, A. Ben King, M.D., and Charles Fosterling, MSW (social worker with Master degree), who filed their respective verified reports ⁵ with the court. Both examiners recommended commitment. At the conclusion of the brief hearing, appellant's attorney stated:

'Loose thought association. Moves from

'* * * I think the record does reflect that there would be evidence of mental disorder in this case but I do not believe there is any evidence that Mr. O' Neill is dangerous to himself or another, or is not receiving his basic needs. Statutorily, under the new law, I don't believe he can be committed.'

The court concluded:

'THE COURT: * * * We are going to have to get some care and treatment for you (Mr. O'Neill).

'* * *.

'THE COURT: So you will be committed to the State Division of Mental Health.'

A threshold question is appellant's contention that the Oregon commitment statutes, and particularly ORS 426.005, are unconstitutional under the Ninth and Fourteenth Amendments to the United States Constitution and the recent case of O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), which was decided after the Court of Appeals handed down its opinion in this case. ⁶

On this issue the Court of Appeals based its opinion on State v. Gardner, 16 Or.App. 464, 518 P.2d 1341, S.Ct. review denied, Cert. denied 419 U.S. 998, 95 S.Ct. 313, 42 L.Ed.2d 272 (1974), and declined appellant's contention in this respect because the constitutional question was not raised in the trial court. In The Alpha Corp. v. Multnomah Co., 182 Or. 671, 680, 189 P.2d 988, 992 (1948), the court held:

'* * * The constitutional question was not raised in the lower court, and for that reason we can give it no consideration. It is the general rule that an appellate court will not consider grounds of defense not raised in the lower court. This rule includes the question of the constitutionality of a statute (except, perhaps, in cases involving deprivation of life or liberty). * * *' (Emphasis added.)

In State by and through State Highway Comm. v. Helliwell, 225 Or. 588, 591, 358 P.2d 719 (1961), we observed:

'* * * As Mr. Justice Rossman observed in a specially concurring opinion in Senger v. Vancouver-Portland Bus Co., supra, 209 Or. at page 47, 298 P.2d (835), at page 839 (304 P.2d 448), the rule against considering a constitutional question for the first time on appeal is not inflexible, but the record from the trial court must afford some basis for a finding that a challenged act invades some constitutional right. * * *'

We believe the better rule, in cases involving an individual's liberty or freedom from involuntary confinement, should be one of flexibility. And if the trial court record is complete, as here, and sufficient to support a finding on a constitutional right, we should consider the constitutional issue in the case when raised for the first time at the appellate level. This is particularly so in mental commitment cases where the statutory scheme necessarily involves urgency in order to give medical treatment to the individual and to remove the element of danger to himself or others.

However, we conclude that the Oregon commitment statutes, and particularly ORS 426.005, when viewed restrictively, that is, 'Dangerous to himself or others; or (u)nable to provide for his basic personal needs and is not receiving such care as is necessary for his health or safety,' does not infringe on the constitutional rights of an individual. The state has an interest and duty to protect the lives of its citizens when in danger and, as stated in O'Connor v. Donaldson, supra, '* * * the State has a proper interest in providing care and assistance to the unfortunate * * *.' 422 U.S. at 575, 95 S.Ct. at 2493 45 L.Ed.2d at 407. O'Connor generally supports the purpose evidenced in the Oregon statutes of involuntarily committing an individual who is dangerous or not capable of surviving safely in freedom by himself or without help of other willing persons. Id. 422 U.S. 576, 95 S.Ct. 2494, 45 L.Ed.2d 407.

The mental commitment statutes of other states have recently been held unconstitutionally vague where the statutes merely require a certification by two physicians that the individual is in need of observation and treatment or that the subject's illness renders him 'in need of care.' See Kendall v. True, 391 F.Supp. 413, 418 (W.D.Ky.1975); Commonwealth ex rel Finken v. Roop, Pa.Super., 339 A.2d 764, 778--79 (1975). However, our reading of those cases would indicate that the statutes there involved were similar to the Oregon statutory requirements prior to the amendments adopted in 1973. ⁷

We conclude that the Oregon commitment statutes, and particularly ORS 426.005, when strictly construed as herein set forth, are not unconstitutional on the ground of vagueness or as an invasion of privacy as protected by the Ninth and Fourteenth Amendments to the United States Constitution. The state, when acting strictly as provided in ORS Chapter 426, may legitimately intrude on the privacy of an unfortunate individual if he is a 'mentally ill person' as defined in ORS 426.005.

Appellant's principal assignment of error is that both the trial court and the Court of Appeals erred in finding there was sufficient evidence that appellant was a mentally ill person beyond a reasonable doubt (ORS 426.130) and subject to involuntary commitment. O'Connor holds:

'A finding of 'mental illness' alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that the term can be given a reasonably precise content and that the 'mentally ill' can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily If they are dangerous to no one and can live safely in freedom.

'May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community? That the State has a proper...