State v. Linde

• Decision Date: 20 February 2002
• Citation: 41 P.3d 440,179 Or. App. 553
• Parties: In the Matter of Elton A. Linde, Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. Elton A. LINDE, Appellant.
• Court: Oregon Court of Appeals

41 P.3d 440

179 Or. App. 553

In the Matter of Elton A. Linde, Alleged to be a Mentally Ill Person.

STATE of Oregon, Respondent, v. Elton A. LINDE, Appellant.

00M0037; A112195

Court of Appeals of Oregon.

Argued and Submitted December 4, 2001.

Decided February 20, 2002.

James A. Palmer, Eugene, argued the cause and filed the brief for appellant.

Kathryn T. Garrett, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

HASELTON, P.J.

Appellant seeks reversal of an order continuing his civil commitment pursuant to ORS 426.307. He asserts that the state failed to prove, by clear and convincing evidence, that, because of a mental disorder, he continued to be either a danger to himself or unable to provide for his basic personal needs. See ORS 426.307(6). On de novo review, State v. O'Neill, 274 Or. 59, 61, 545 P.2d 97 (1976), we conclude that the state failed to prove that appellant's commitment must be continued. Accordingly, we reverse.

Before addressing the merits, we first consider the question of possible mootness, which we raised sua sponte during oral argument in this case. More than 180 days has passed since the October 26, 2000 order continuing appellant's commitment, which is the object of this appeal. Consequently, because appellant is no longer confined by reason of the challenged order,¹ the case is moot unless other consequences of that order forestall mootness.

In State v. Van Tassel, 5 Or.App. 376, 385, 484 P.2d 1117 (1971), we held that the stigma resulting from an initial order of commitment was a sufficiently material consequence to preclude mootness notwithstanding the expiration of the period of commitment:

"[T]he fact that defendant had been involuntarily committed as a mentally ill person would not be a secret, irrespective of other material contained in the court record.

"Whether a society should view mental illness as carrying with it more stigma than any other form of illness, it, in fact, does. A legal commitment for mental illness may have deleterious collateral effects in addition to stigma."²

The question here is whether any additional stigma arising from prolonging the duration of appellant's commitment in this case was sufficiently material to render this case justiciable notwithstanding that appellant is no longer confined pursuant to the challenged order.

We conclude that this case is not moot. Although continuation of commitment obviously differs from an initial commitment in certain respects, the stigma that arises from commitment is a function not only of the fact of commitment but, also, of its duration. Bluntly, the longer someone is committed for a mental illness—six months versus one year; one year versus three years—the greater the attendant stigma. Like Chief Judge Schwab in Van Tassel, we decry the ignorance that generates such attitudes among many in our society. But they are undeniable. Consequently, this case is not moot.

We return to the material facts. Appellant was initially involuntarily committed by the Jackson County Circuit Court in May 2000. The reasons for that commitment are not disclosed in the record of the October 26, 2000, further commitment proceeding, which underlies this appeal.³ On October 11, 2000, appellant was served with a certificate for continuation of commitment pursuant to ORS 426.301. That certificate was signed by Dr. Andrew Axer, Director of the Hugo Hills treatment facility in Josephine County.⁴ On the same day, appellant protested continuation of his commitment and requested a hearing. See ORS 426.301(5); ORS 426.303.

At the time of the further commitment hearing, appellant was 22 years old, had a history of substance abuse, and was diagnosed as having chronic paranoid schizophrenia. In his report, which accompanied the certificate and was submitted to the trial court, Axer described two "barriers to discharg[ing]" appellant:

"1. [Appellant's] symptoms of schizophrenia include severe disorganization of thought process and persistent auditory hallucinations. He is irritable especially when his voices are louder and more disturbing. [Appellant] doesn't acknowledge having psychotic symptoms. He believes that he was hospitalized just because he didn't have any other place to stay. He doesn't understand the need for his further pharmacological treatment.

"2. [Appellant] has a history of serious substance abuse problems. He had [a] few episodes of secretly inhaling glue at Hugo Hills until the staff realized what was going on. [Appellant] is unaware of the risks associated with street drugs. He also states a desire to drink beer when released from Hugo Hills[.]"

At the hearing, Axer and Dr. Wes Garwood, the treating psychiatrist at Hugo Hills, testified consistently with the concerns described in Axer's report. More particularly, Axer and Garwood advanced three related reasons why appellant's commitment should be continued. First, they reiterated their concerns about appellant's interest in drinking beer and using illegal drugs—they specifically pointed to staff reports of a "few" glue-sniffing incidents—and expressed their belief that appellant did not appreciate the risks associated with such abuse. Axer testified:

"He indicated to me that he would not take street drugs if he is discharged, but he would drink beer, and that he doesn't really see the—any reason why medication and alcohol could be a poisonous mixture."

Second, Axer and Garwood testified that appellant did not view himself as being mentally ill and that he had been "grudgingly" compliant in taking his medication. Third, and most globally, both doctors were concerned that, outside the structured environment of the hospital, appellant would be generally unable to appreciate and deal with the risks he would encounter because of mental illness. In that regard, Garwood testified that, although appellant hoped to be able to live on his parents' property upon discharge, appellant's parents had been "very clear" that "that is not a viable option."

Appellant testified that he receives $512 a month in Social Security benefits and also receives income from a trust, which pays certain living expenses. Upon discharge, and with his father's assistance, appellant would use those funds to rent an apartment and complete his college education. Appellant acknowledged that he had sniffed glue while at Hugo Hills, but that had happened only once, and he testified that he would "never do it again" because "it smelled bad" and he "didn't like" it. Appellant testified that the staff at Hugo Hills subsequently had spoken with him about the dangers of glue sniffing⁵ and that he now knew that it could permanently injure him. Finally, appellant stated that, although he still did not feel he needed to take his medication, he would take them "[i]f it was a condition of my release."

At the conclusion of the hearing, the trial court recommitted appellant for a period up to 180 days and stated:

"[I]t's very clear that you still need the assistance of the folks here at Hugo Hills. You do have a mental illness. You do need the medications. You need to understand at some point what they're for and how they assist you or what modification they make in your daily routine."

On appeal, appellant argues that there is insufficient evidence to find that he is dangerous to himself and/or unable to provide for his basic needs.⁶ ORS 426.005(1)(d)(A), (B).⁷ We agree.

On appeal, the state contends, alternatively, that appellant is a danger to himself or unable to provide for his basic needs for two related reasons. First, the state contends that it is probable that, upon discharge, appellant would discontinue his medications which, given the uncertainty of appellant's plans, "could lead to his demise in an unstructured environment." Second, the state contends that it is also likely that, upon discharge, defendant will use illegal drugs, which will exacerbate his disorder—and would, in all events, be harmful.

In assessing the state's contentions, we emphasize once again the properly limited function of involuntary civil commitment: "Unless a mental disorder has impaired autonomous choice, civil commitment cannot be a vehicle for `saving people from themselves.' " State v. Gjerde, 147 Or.App. 187, 196, 935 P.2d 1224 (1997). Consistently with that principle, the state's burden in "basic needs" commitment cases is rigorous, as we explained in State v. Baxter, 138 Or.App. 94, 906 P.2d 849 (1995):

"The state must show, that due to a mental disorder, appellant is `unable to obtain some commodity (e.g., food and water) or service (e.g., life-saving medical care) without which he cannot sustain life.' The state must also show that the threat to appellant's survival is in the near future." 138 Or.App. at 97, 906 P.2d 849, quoting State v. Bunting, 112 Or.App. 143, 145, 826 P.2d 1060 (1992)

(internal citations omitted).

The state must make the requisite showing by "clear and convincing" evidence—that is, evidence of "extraordinary persuasiveness." State v. Johnson, 131 Or.App. 561, 564, 886 P.2d 42 (1994). See also State v. Jayne, 174 Or.App. 74, 77-78, 23 P.3d 990,

rev. den. 332 Or. 316, 28 P.3d 1176 (2001) (describing "clear and convincing evidence" as establishing that the "truth of the facts asserted is highly probable").

Although we are loath to fact-match, given the idiosyncracies of civil commitment cases, this case is so closely analogous to Baxter as to be controlled by our analysis and disposition there. In Baxter, an initial commitment case, the appellant, like the appellant here, was schizophrenic but denied his condition. Baxter "apparently lived on the streets most of the time" and took street drugs, including methamphetamine. 138 Or.App. at 96, 906 P.2d 849. He received Social Security disability benefits because of his...