State v. Collman

• Decision Date: 09 June 1972
• Citation: 497 P.2d 1233,9 Or.App. 476,94 Adv.Sh. 1780
• Parties: In the Matter of Patrick Collman, alleged to be a mentally ill person. STATE of Oregon, Respondent, v. Patrick COLLMAN, alleged to be a mentally ill person, Appellant.
• Court: Oregon Court of Appeals

Page 1233

497 P.2d 1233

9 Or.App. 476

In the Matter of Patrick Collman, alleged to be a mentally ill person STATE of Oregon, Respondent, v. Patrick COLLMAN, alleged to be a mentally ill person, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted April 21, 1972.

Decided June 9, 1972.

Laird C. Kirkpatrick, Legal Aid Service, Portland, argued the cause for appellant. With him on the briefs were Richard Oliver, Associated Counsel from Foreign Jurisdiction, and Jay Folberg, Director, Legal Aid Service, Portland.

John H. Clough, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

This is an appeal, according to the amended notice of appeal, from an 'Order of mental commitment entered on September 14, 1971 * * * and from the Order denying appellant's motion to set aside the Order of mental commitment * * *.' The motion to set aside also sought to expunge the record.

The record shows that Patrick Collman, the defendant (we use the term 'defendant' for convenience and because it is used in the briefs; ORS ch. 426 describes such a person as an 'allegedly mentally ill person'), was taken into custody by a police officer at approximately 2 p.m. on September 13, 1971, because, as the officer wrote in the Notice of Mental Illness:

'He is unable to understand what is happening around him. His answers are unrelated to the questions asked.'

Shortly thereafter, the officer removed defendant to Multnomah County Hospital crisis unit.

A citation ¹ was served upon defendant the following morning informing him that a hearing would be held at 10 a.m. that day. The mental commitment hearing was held before the probate department of the Multnomah County Circuit Court. Two psychiatrists appointed to examine defendant made their written reports to the court. Each recommended commitment, one diagnosing 'acute psychosis--probably drug induced,' and the other 'schizophrenic reaction--possibly drug induced.' The court signed an order ² finding defendant mentally ill and committing him to Dammasch State Hospital. Other than the order, no record was made of the proceedings at that time. Defendant was received at Dammasch State Hospital on September 14, 1971, and he was given final discharge on September 30, 1971. ³

On October 1, 1971, represented by legal aid counsel, defendant filed with the circuit court the motion to set aside the commitment order and expunge the record. And on October 14, 1971, he filed his notice of appeal from the order of commitment.

The circuit court held a hearing on defendant's motion on October 14. The testimony (which was reported) at this hearing disclosed the following in addition to that set out above. Defendant was given three injections of a drug called Inapsine at the hospital crisis unit prior to the commitment hearing. The doctor in charge at the clinic diagnosed defendant as a paranoid schizophrenic and his condition was described as 'agitated.' The last injection of Inapsine was at 2:30 a.m. Defendant contends the drug was administered without his consent and affected his ability to respond to questions at the hearing. When the commitment hearing started defendant was still physically obstreperous, causing the judge to conduct the hearing in a holding room of the courthouse to which defendant had been brought, rather than having the hearing in the courtroom. The two psychiatrists accompanied the judge. The evidence was that the court and one of the doctors informed defendant of his right to counsel, which advice defendant ignored. The only coherent thing witnesses remembered him saying was, 'I want a doctor. I want help.'

The assignments of error are: (1) the failure of the court to have the commitment hearing reported violated due process of law; (2) the court failed to record a 'full account' of the commitment hearing as required by ORS 426.160; (3) defendant should have been advised of his constitutional right to a court-appointed counsel; (4) the court should have appointed counsel to represent defendant; (5) defendant was not provided an opportunity to cross-examine the psychiatrists; (6) the court erred in committing defendant without a finding that he was mentally ill beyond a reasonable doubt; (7) the hearing should have been in open court; and (8) the order to set aside the order and expunge the record should have been allowed.

The Right to Counsel

ORS 426.100 provides:

'(1) At the time of the hearing before the court, prescribed by ORS 426.070 to 426.150, the court shall inform the allegedly mentally ill person that he has the right to legal counsel during the proceedings and that, at his request, or the request of his legal guardian, relative or friend, the court may postpone the hearing up to 72 hours in order to allow the allegedly mentally ill person an opportunity to obtain counsel, and subpena witnesses in his behalf to the hearing.

'(2) If no request for legal counsel is made, the court may, at its discretion, appoint legal counsel.

'(3) If the person is indigent, the court may provide by order for payment of a reasonable attorney fee by the county of residence of the allegedly mentally ill person. In all cases such legal counsel shall be present at the hearing and examination and may examine all witnesses offering testimony, and otherwise represent such person.

'(4) Where legal counsel is requested or provided, the court may continue the hearing for up to 72 hours after counsel has been obtained by appointment or otherwise and may make such orders for the care and custody of the person during that period as it deems necessary.' (Emphasis supplied.)

This section appears to leave to the court's discretion whether legal counsel should be appointed for an allegedly mentally ill person. Defendant argues that the Due Process Clause of the Fourteenth Amendment requires appointment of counsel.

The constitutional right to counsel in civil proceedings which may result in involuntary incarceration or deprivation of liberty was established in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Relying on the reasoning of Gault, which involved a juvenile delinquency proceeding, the Tenth Circuit Court of Appeals held in Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968), that due process entitled an allegedly mentally deficient person to representation by counsel in a civil mental commitment proceeding.

'* * * It matters not whether the proceedings be labeled 'civil' or 'criminal' or whether the subject matter be mental instability or juvenile delinquency. It is the likelihood of involuntary incarceration--whether for punishment as an adult for a crime, rehabilitation as a juvenile for delinquency, or treatment and training as a feeble-minded or mental incompetent--which commands observance of the constitutional safeguards of due process * * * and this necessarily includes the duty to see that a subject of an involuntary commitment proceedings is afforded the opportunity to the guiding hand of legal counsel at every step of the proceedings, unless effectively waived by one authorized to act in his behalf. * * * Nor is it sufficient that the Wyoming statute permissively provides that the proposed patient 'may be represented by counsel' * * *.' 396 F.2d at 396.

Accord: Dixon v. Attorney General of Commonwealth of Pa., 325 F.Supp. 966 (M.D.Pa.1971); People v. Potter, 85 Ill.App.2d 151, 228 N.E.2d 238 (1967); People ex rel. Rogers v. Stanley, 17 N.Y.2d 256, 270 N.Y.S.2d 573, 217 N.E.2d 636 (1966); Denton v. Commonwealth, 383 S.W.2d 681 (Ky.1964); Dooling v. Overholser, 243 F.2d 825 (D.C.Cir. 1957). See A Draft Act Governing Hospitalization of the Mentally Ill, Public Health Service Publication No. 51, § 9 (1952). See also State v. Turner, 253 Or. 235, 238, 453 P.2d 910 (1969).

Inasmuch as an order of commitment under ORS 426.070--426.390 results in the deprivation of liberty for an indeterminate period of time, we hold that Fourteenth Amendment due process entitles and allegedly mentally ill person to representation by counsel; that he, or one acting in his behalf, must be fully advised of his right to counsel; and that this right be accorded unless intelligently and understandingly waived. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).

Defendant was not advised of his right to Court-appointed counsel and thus could not make an effective waiver. Carnley v. Cochran, supra; Schram v. Cupp, 436 F.2d 692, 695 (9th Cir. 1970); State v. Jamison, 251 Or. 114, 444 P.2d 15, 444 P.2d 1005 (1968). Moreover, defendant's mental condition as described at the October 14 hearing precluded the possibility of an effective waiver even if he had been properly advised of his rights. ⁴ Therefore, we reverse the order of commitment.

Reporting of the Commitment Proceeding

Defendant argues in respect to the record in the case at bar (1) that the trial court erred in failing to record a 'full account' of the proceedings as required by statute, and (2) that due process requires that commitment proceedings be reported to insure an effective appeal. We first consider defendant's statutory argument.

ORS 426.160 provides:

'The judge shall cause to be recorded in the court records a full account of proceedings had at the hearing and examination, together with the judgment and order of the court and a copy of the orders issued. The account of the proceedings and transcripts of testimony if taken thereat shall be delivered to the county clerk who shall cause it to be sealed and neither the account of the proceedings nor the transcript of testimony if taken shall be disclosed to any person except:

'(1) As provided in ORS 426.170;

'(2) Upon request of the person subject to the proceedings, his legal representatives, or his attorney; or

'(3) Pursuant to court order,' (Emphasis supplied.)

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