State v. T. C. (In re T.C.)

• Docket Number: A177184
• Decision Date: 23 August 2023
• Citation: 327 Or.App. 558
• Parties: In the Matter of T. C., a Person Alleged to have Mental Illness. v. T. C., Appellant. STATE OF OREGON, Respondent,
• Court: Oregon Court of Appeals

1

327 Or.App. 558

In the Matter of T. C., a Person Alleged to have Mental Illness.

STATE OF OREGON, Respondent, v. T. C., Appellant.

A177184

Court of Appeals of Oregon

August 23, 2023

Submitted September 21, 2022; resubmitted en banc March 3 2023.

Marion County Circuit Court 21CC05628; En Banc Matthew L. Tracey Judge pro tempore.

Joseph R. DeBin and Multnomah Defenders, Inc. fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, fled the brief for respondent.

Before Lagesen, Chief Judge, and Ortega, Egan, Tookey, Shorr, Aoyagi, Powers, Mooney, Kamins, Pagán, Joyce, Hellman, and Jacquot, Judges.

Lagesen, C. J., fled the opinion of the court in which Ortega, Egan, Tookey, Shorr, Aoyagi, Mooney, Joyce, Hellman, and Jacquot, JJ., joined.

Hellman, J., concurred and fled an opinion in which Mooney and Jacquot, JJ., joined.

Powers, J., dissented and fled an opinion in which Kamins and Pagán, JJ., joined.

Reversed.

LAGESEN, C. J.

This is a civil commitment case in which the state did not follow the statutory procedures that govern civil commitments. Specifically, the state did not provide appellant with the prehearing citation required by ORS 426.090. We took this case into full court to consider the state's argument that, contrary to our longstanding practice of viewing the state's violations of a civil committee's procedural rights as grounds for reversal of a civil commitment decision, we should view that omission as harmless. See ORS 19.415(2) (stating that "[n]o judgment shall be reversed or modified except for error substantially affecting the rights of a party"). We reject it.

The facts are few. Appellant was in jail on pending charges when an evaluator determined that she was unable to aid and assist in her defense and recommended that "she should receive restoration services at a hospital level of care[.]" The court, instead, initiated this civil commitment proceeding.^[1] It appointed counsel to represent appellant and then issued a citation to appellant "c/o" her appointed attorney, although ORS 426.090 requires that "[t]he citation shall be served upon the person by delivering a duly certified copy of the original thereof to the person in person prior to the hearing." The record contains no evidence that the citation was provided to appellant before the hearing or that appellant's appointed counsel met with appellant in advance of the hearing.

After granting a continuance at the state's request, the court held the hearing on the citation. Before the hearing, appellant's appointed attorney filed a motion seeking to exclude appellant's statements in the precommitment investigation report on the ground that counsel had not been present for the investigation. The court denied the motion. At the hearing, appellant's attorney cross-examined the state's witnesses and argued that the evidence did not support commitment. Appellant indicated directly to the court that she wanted to call witnesses. After the court allowed appellant to confer with counsel off the record, counsel indicated upon resuming the hearing that she did not think additional time for consultation would assist appellant, and appellant did not call witnesses. The court ultimately committed appellant, finding that she was a danger to others. The court's order directed "that the Marion County Sheriffs Office will transport [appellant] to the Oregon State Hospital after any preexisting holds have cleared."

Appellant appealed. On appeal, she assigns error to the trial court's decision to conduct a civil commitment hearing in the absence of a citation that was issued in accordance with ORS 426.080 and ORS 426.090. She acknowledges that the error is not preserved but argues that it is plain and that we should exercise our discretion to correct it, something we routinely have done in similar cases. Appellant notes that prehearing notice is a core component of her due process rights, pointing out that

"For a person to be prepared to meaningfully participate in their hearing, they must be served a citation with notice of the allegations against which they are expected to defend themselves, as well as notice of their rights, including their right to use a subpoena, so that they can meaningfully prepare a defense."

In response, the state concedes that the trial court erred by proceeding with the hearing where, as here, appellant was not personally served with the citation. The state nevertheless argues that we should not reverse because, in the state's view, "there was no violation of appellant's due process rights or any other harm to appellant." The state argues that "[a]ppellant was represented by counsel who had been apparently representing her for both the civil commitment and related criminal charges," and notes that the attorney had filed a motion to exclude appellant's statements in the investigation report, cross-examined witnesses at the hearing, and otherwise advocated for appellant during the hearing. That, in the state's view, precludes the conclusion that appellant suffered any harm from not being given prehearing personal notice of the civil commitment proceeding, as required by ORS 426.090. We reject the state's argument. It undervalues the critical role prehearing personal notice plays in ensuring that a potential civil committee is prepared for a proceeding that can result in a severe deprivation of liberty. Our case law has long recognized the harm that inheres when people are not provided with fair notice of how and why their liberty may be taken away, and we decline to depart from that case law now.

Where the state seeks to civilly commit a person for any purpose, prehearing notice is a core component of the due process protections afforded by the Fourteenth Amendment to the United States Constitution: "Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded," and must also advise "of the specific issues that [the person] must meet." In re Gault, 387 U.S. 1, 33-34, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); see Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ("This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." (Citing Gault, among other cases.)). In Oregon, the legislature has codified that due process protection in ORS 426.090. That statute confers upon a "person alleged to have a mental illness" a right to prehearing, in-person, written notice of a proposed civil commitment proceeding, including the "specific reasons" for it:

"The judge shall issue a citation to the person alleged to have a mental illness stating the nature of the information filed concerning the person and the specific reasons the person is believed to be a person with mental illness. The citation shall further contain a notice of the time and place of the commitment hearing, the right to legal counsel, the right to have legal counsel appointed if the person is unable to afford 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. The citation shall be served upon the person by delivering a duly certified copy of the original thereof to the person in person prior to the hearing. The person shall have an opportunity to consult with legal counsel prior to being brought before the court."

ORS 426.090.

Because of the central role ORS 426.090 plays in ensuring due process where, as here, the state has civilly committed someone without complying with it, we routinely have reversed. State v. M. D. M. G., 311 Or.App. 240, 486 P.3d 863 (2021); State v. J. M.G., 311 Or.App. 238, 487 P.3d 876 (2021); State v. J. A. N., 311 Or.App. 226, 486 P.3d 65 (2021); State v. C. T., 310 Or.App. 863, 485 P.3d 312 (2021); State v. J. R. W., 307 Or.App. 372, 475 P.3d 138 (2020); State v. R. E. J., 306 Or.App. 647, 474 P.3d 461 (2020); State v. R. E. F., 299 Or.App. 199, 447 P.3d 56 (2019). We have done so even where, as here, no objection was raised to the failure to comply with ORS 426.090. This accords with our longstanding recognition that the state's failure to comply with an "integral part of [the] procedure" governing civil commitments is reversible error unless the record allows for the affirmative inference that the appellant waived the procedural protection at issue or, alternatively, received a functionally equivalent protection in a different form. State v. Allison, 129 Or.App. 47, 49-50, 877 P.2d 660 (1994); State v. D. B., 167 Or.App. 312, 316, 1 P.3d 490 (2000) (trial court's failure either to conduct an examination on the record or to inform the appellant of his rights pursuant to ORS 426.100(1) was reversible error); see also State v. Waters, 165 Or.App. 645, 649-51, 997 P.2d 279, rev den, 331 Or. 429 (2000), cert den sub nom Waters v. Oregon, 532 U.S. 1040, 121 S.Ct. 2003, 149 L.Ed.2d 1005 (2001) (differentiating between errors that involve failure to comply with mandatory statutory procedures from other types of errors); State v. Ritzman, 192 Or.App. 296, 300-01, 84 P.3d 1129 (2004) (trial court's failure to provide advice of rights required by ORS 426.100(1) was harmless error where record showed the appellant had received the required advice in writing).

As we explained in Allison,

"[i]nvoluntary commitment proceedings involve the possibility of a 'massive curtailment of liberty' and, thus, implicate due process protections. Vitek v Jones, 445 U.S. 480, 491, 100

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