State v. Johansen
| Decision Date | 22 December 1993 |
| Parties | Page 470 866 P.2d 470 125 Or.App. 365 In the Matter of Sonja A. Johansen, a Mentally Ill Person. STATE of Oregon, Respondent, v. Sonja A. JOHANSEN, Appellant. M8 |
| Court | Oregon Court of Appeals |
Thomas A. Coleman, Portland, argued the cause and filed the brief for appellant.
Janet A. Metcalf, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Before ROSSMAN, P.J., and De MUNIZ and LEESON, * JJ.
Appellant, a patient at Dammasch State Hospital, was involuntarily committed for 180 days in May, 1983. ORS 426.130(3). 1 Since then, she has been recommitted under ORS 426.301 to successive 180-day terms. On March 20, 1991, the trial court again ordered her committed for an additional 180-day period. Appellant seeks review of that order, contending that the recommitment procedure of ORS 426.301 to ORS 426.307 is unconstitutional on its face under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and under Article III, Section 1, and Article VII (Amended), Section 1, of the Oregon Constitution. We affirm.
We first address appellant's contention that Oregon's civil recommitment procedure fails to afford an allegedly mentally ill person (AMIP) the procedural safeguards required by the Due Process Clause. 2 She asserts that for the recommitment scheme to be constitutionally adequate, it must require that an adversarial hearing be provided to every individual against whom a certification for continued commitment is filed, and must require that the decision as to whether continued confinement is warranted be made by a neutral decisionmaker. The state counters that our holding in Dietrich v. Brooks, 27 Or.App. 821, 558 P.2d 357 (1976), is controlling and compels the conclusion that the recommitment procedure comports with the minimum requirements of due process.
Dietrich involved a procedural due process challenge to former ORS 426.290, 3 which permitted revocation of a patient's trial visitation privileges if two individuals filed a sworn complaint and the acts complained of indicated to an examining physician that the patient should no longer be allowed to remain on trial visit. In upholding the constitutionality of the statute, we said:
Dietrich v. Brooks, supra, 27 Or.App. at 827, 558 P.2d 357. (Emphasis supplied.)
We held that:
Dietrich v. Brooks, supra, 27 Or.App. at 827-28, 558 P.2d 357.
Our holding in Dietrich that the involuntary commitment procedure, as a whole, withstands scrutiny under the Due Process Clause, is persuasive authority for the proposition that the recommitment procedure established in ORS 426.301 to ORS 426.307 provides all the "process" that is constitutionally "due." However, the constitutionality of the recommitment procedure was not at issue there, and, consequently, our holding in that case is not dispositive of the issues presented in this appeal. Nonetheless, Dietrich does provide important guidance with regard to the manner in which we should review the constitutionality of the recommitment procedure. Because recommitment to a mental institution is not "an isolated event," but "is one of a sequence of events within a course of confinement and treatment," 27 Or.App. at 827, 558 P.2d 357, here, as in Dietrich, we must look to the entire statutory scheme of involuntary commitment in deciding whether the recommitment process meets minimum constitutional requirements.
An initial involuntary commitment can be initiated by any person or persons who give the notice required by ORS 426.070(2) 4 to the community mental health and development disabilities program director or a designee of the director in the county where the allegedly mentally ill person resides. The director or its designee then informs the circuit court of the notification and initiates an investigation to determine whether there is probable cause to believe that the AMIP is mentally ill. ORS 426.070(3)(a), (c). Upon completion of the investigation, a report recommending whether the AMIP should be committed to a mental hospital is prepared and submitted to the court. ORS 426.070(4). If the court concludes that there is probable cause to believe that the AMIP is mentally ill, the AMIP is issued the citation described in ORS 426.090 and then brought before the court for a hearing to determine whether the AMIP is mentally ill. ORS 426.070(5)(a). A certified copy of the citation must be personally served on the AMIP prior to the hearing. ORS 426.090. The citation states the nature of the information contained in the notification and the specific reasons the person is believed to be mentally ill. It also must contain
"a notice of the time and place of the commitment hearing, the right to legal counsel, and, if requested, to have legal counsel immediately appointed, the right to subpoena witnesses in behalf of the person to the hearing and other information as the court may direct." ORS 426.090.
ORS 426.090 also provides that the AMIP "shall have an opportunity to consult with legal counsel prior to being brought before the court." 5
When the AMIP appears before the court, she must again be informed of the reason she has been summoned, the nature and possible results of the proceedings, her rights regarding representation by or appointment of counsel and her right to subpoena witnesses at the hearing. ORS 426.100(1). At the hearing, the AMIP and the person representing the state may cross-examine all witnesses, examining physicians, 6 other qualified medical examiners and the persons responsible for preparing the investigation report. ORS 426.095. 7 If, after hearing all the evidence and reviewing the findings of the examiners, the court is persuaded by clear and convincing evidence that the person is mentally ill, 8 then it may order the person committed to a mental hospital for a period of time to be established by the court. ORS 426.130(1)(b)(C).
ORS 426.301 to ORS 426.307 describes the procedures by which the period of initial commitment may be extended. ORS 426.301 provides that a patient is to be released from the custody of the Mental Health and Developmental Disabilities Services Division at the end of the patient's term of commitment
"unless the [D]ivision certifies to the court in the county where the treating facility is located that the [patient] is still mentally ill and in need of further treatment." ORS 426.301(1).
The Division may delegate to the hospital director the responsibility for making the "certification." That director must consult with "the community mental health and developmental disabilities program director of the county of residence prior to making the certification." ORS 426.301(1). If the certification is made, the patient is not released. Either the hospital director or a designee serves the certification upon the patient. The hospital director then informs the circuit court in writing of the fact and date of service. ORS 426.301(2). ORS 426.301(3) requires that the certification advise the patient:
The certification must also apprise the patient that a protest may be made either orally or in writing by signing the form accompanying the certification and that the patient is entitled to have a physician or other qualified person 9 examine her and report the results to the court. ORS 426.301(3)(e). 10
The person who serves the certification on the patient must read and deliver it to the patient and ask whether she protests the further period of commitment. If the patient does not protest within 14 days of service of the certification,
"the [D]ivision or facility shall so notify the court and the court shall, without further hearing, order the commitment of the [patient] for an additional indefinite period of time up to 180 days." ORS 426.301(5).
If the patient does protest within the 14-day period, she is brought before the court and again advised that continuation of commitment has been requested and that if sh...
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...particular situation demands.’ Morrissey v. Brewer , 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)." State v. Johansen , 125 Or. App. 365, 373, 866 P.2d 470 (1993), rev. den. , 319 Or. 572, 879 P.2d 1286 (1994). Among the factors provided by the United States Supreme Court in M......
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