State v. Cach

• Citation: 172 Or. App. 745,19 P.3d 992
• Parties: In the Matter of Jeffrey Cach, Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. Jeffrey CACH, Appellant.
• Decision Date: 28 February 2001
• Court: Court of Appeals of Oregon

19 P.3d 992

172 Or. App. 745

In the Matter of Jeffrey Cach, Alleged to be a Mentally Ill Person.

STATE of Oregon, Respondent, v. Jeffrey CACH, Appellant.

(9903-61470; CA A105887)

Court of Appeals of Oregon.

Argued and Submitted January 7, 2000.

Decided February 28, 2001.

Thomas A. Coleman, Portland, submitted the brief for appellant.

Michael C. Livingston, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

KISTLER, J.

The trial court committed appellant to the custody of the Oregon Mental Health and Developmental Disability Services Division because it found that, as a result of a mental illness, he was a danger to others and unable to provide for his basic needs. Appellant argues that the court's judgment should be reversed because the court failed to advise him of his rights under ORS 426.100. We affirm. On March 11, 1999, the trial court appointed counsel to represent appellant.¹ The next day, appellant received a citation that, among other things, set out written advice about the nature of the hearing and some of appellant's rights at the hearing. The citation stated: "You have a right to representation by legal counsel at the hearing. If you are unable to afford legal counsel, you have the right to have legal counsel appointed for you." The hearing began approximately an hour and a half after appellant received the citation.

At the beginning of the hearing, the trial judge introduced himself to appellant and told him:

"A report has been made to the Court that you may have a mental disorder and because of that be dangerous to yourself and dangerous to others, or unable to take care of your basic needs. And I'm going to clarify which of those might apply in just a minute. I'm going to hold a hearing this morning to decide what to do about that report.

"I've appointed Mr. Varnes, who's sitting on your left, as your lawyer. You have the right to be represented by a lawyer. That's what he'll be doing.

"You can subpoena witnesses[—y]ou have that right[—]to court, meaning require witnesses to come here and testify. You can also, through your lawyer, cross-examine witnesses, meaning ask questions of them.

"The gentleman sitting across the table from me is with the District Attorney's office. He is here to represent the State's interest. The State's required to prove the case against you."

The court went on to explain about the process of questioning witnesses, described the role that the examiners would play, and explained the possible consequences of the hearing to appellant. After hearing the evidence, the court ruled that appellant should be committed to the custody of the mental health division for no more than 180 days.

Appellant argues that the court's judgment should be reversed because it did not adequately advise him of one of the rights set out in ORS 426.100.

Subsection (1) of that statute provides:

"At the time the allegedly mentally ill person is brought before the court, the court shall advise the person of the following:

"(a) The reason for being brought before the court;

"(b) The nature of the proceedings;

"(c) The possible results of the proceedings;

"(d) The right to subpoena witnesses; and

"(e) The person's rights regarding representation by or appointment of counsel."

ORS 426.100(1). Appellant does not dispute that the trial court adequately advised him of the first four rights. Rather, he argues that the court erred in advising him of his "rights regarding representation by or appointment of counsel." Specifically, he argues that "[t]he trial court did not tell [him] of his right to private counsel or his right to represent himself."

Appellant's argument presents two statutory construction issues. First, he argues that the court should have told him that he had a right to retain private counsel. The trial court, however, had appointed counsel for appellant before it advised him of his rights—an act that, by statute, reflects the court's determination that appellant "d[id] not have funds with which to retain legal counsel[.]" See ORS 426.100(3)(b).² Appellant's argument accordingly reduces to the proposition that ORS 426.100(1)(e) required the trial court to advise him of the right to retain private counsel even though the trial court had already determined that he lacked the resources to do so.

Neither the text nor the context of ORS 426.100(1)(e) suggests that the statute imposes that obligation on trial courts. ORS 426.100(1)(e) directs trial courts to tell an allegedly mentally ill person about the right to be represented by retained counsel or the right to be represented by appointed counsel. The statute is phrased in the disjunctive, and a related statutory provision makes clear that the two rights are mutually exclusive. ORS 426.100(3)(b) provides that a person has a statutory right to appointed counsel in mental commitment hearings if he or she "does not have funds with which to retain legal counsel." Conversely, a person who has the resources to retain private counsel has no right to appointed counsel. See ORS 426.100(3)(b); see also ORS 426.100(3)(e) (when a person is being involuntarily detained, he or she has a right either to contact an attorney or have an attorney appointed as soon as reasonably possible). If a court has already determined that an allegedly mentally ill person does (or does not) have the funds to retain private counsel, the word "or" in ORS 426.100(1)(e) implies that a court may limit its advice to whichever of the two rights applies.

We recently explained that ORS 426.100(1) is intended to "provide an allegedly mentally ill layperson with sufficient productively usable information to enable the person to take the actions necessary to protect his or her interests." State v. Buffum, 166 Or.App. 552, 556, 999 P.2d 541, rev. allowed 331 Or. 361 (2000).³ ORS 426.100(1)(e) similarly leaves trial courts sufficient latitude to tailor their advice to the needs of the case. See id. In this instance, the investigator's report disclosed that appellant had virtually no resources, and the trial court had appointed counsel for him before the hearing. When the court later told appellant about his rights regarding representation, it appropriately limited its advice to a discussion of appellant's right to be represented by the counsel whom the court had appointed and focused on the role that that counsel would play. ORS 426.100(1)(e) did not require the court to tell appellant about his right to retain counsel—an option that, for all practical purposes, appellant had no ability to pursue.⁴

Appellant advances a second argument. He argues that the court should have told him that he had a right to represent himself. ORS 426.100(1)(e) directs courts to advise allegedly mentally ill persons of their "rights regarding representation by or appointment of counsel." Textually, the "rights" to which the subsection refers are the right to be represented by a retained counsel or the right to be represented by an appointed counsel. ORS 426.100(1)(e) says nothing about the right of self-representation, and we may not add what the legislature has omitted. See State v. Rogers, 330 Or. 282, 290, 4 P.3d 1261 (2000). The text of ORS 426.100(1)(e) does not advance appellant's claim that the court was required to advise him that he had a right to represent himself.

The context points in the same direction. ORS 426.100(3) sets minimum standards for counsel, identifies the condition for appointing counsel, authorizes other persons to request counsel on behalf of the allegedly mentally ill person, and specifies when the right to retained or appointed counsel may be exercised. Two paragraphs of subsection (3) potentially shed some light on the meaning of ORS 426.100(1)(e). ORS 426.100(3)(e) provides:

"If the person is being involuntarily detained before a hearing on the issue of commitment, the right under paragraph (a) of this subsection to contact an attorney or under paragraph (b) of this subsection to have an attorney appointed may be exercised as soon as reasonably possible."

Subsection (3)(e) identifies only two rights—the right to contact retained counsel and the right to appointed counsel—as a person's statutory rights of representation. That limited identification of rights reinforces the proposition that, when the legislature directed trial courts, in ORS 426.100(1)(e), to advise allegedly mentally ill persons of their "rights regarding representation by or appointment of counsel," it did not intend to require advice about a third right-the right of self-representation.

ORS 426.100(3)(d) also bears on the interpretation of ORS 426.100(1)(e). It provides: "If no request for legal counsel is made, the court shall appoint suitable legal counsel unless counsel is expressly, knowingly and intelligently refused by the person."

It is possible to read subsection (3)(d) as describing a right not to be represented by counsel and say that it is one of the "rights regarding representation by * * * counsel" about which the court should have advised appellant. That reading does not fit easily with the text of the subsection, however. Subsection (3)(d) describes the level of knowledge that an allegedly mentally ill person must possess before he or she can refuse appointed counsel. Courts should be hesitant to convert the terms on which a right to appointed counsel may be refused into a separate aspect of the rights the statute describes.

If the legislature had wanted trial courts to advise allegedly mentally ill persons about their right to retain counsel, their right to appointed counsel, and their right to represent themselves, it could have said so. It directed trial courts, however, to tell allegedly mentally ill persons only about the first two rights and phrased the directive in the alternative. The...