Matter of Fry ( 1978 )

JOHNSON, J.,

specially concurring.

In State v. Heintz, 26 Or App 935, 939-40, 554 P2d 556 (1976), Judge Tanzer stated in a specially concurring opinion:

"The standard of proof beyond reasonable doubt, borrowed from criminal procedure, is inappropriate in a mental hearing where the issue is the degree of probability of future possibilities rather than the existence of a past fact. Yet the legislature has directed that we apply that standard and, however difficult it may be to apply, we are bound to and will find ways to make it workable.

I concur with that statement except for the comment that we "will find ways to make it workable.” In this case, we are confronted with a person who suffers from mental illness and in all probability is a danger to himself or to others. If we applied a preponderance of the evidence test, I am certain that a majority of this court would agree with me that the trial court’s order committing this individual should be affirmed.¹ We are compelled to reverse because the legislature in its wisdom requires that the state prove a probability as to the future beyond a reasonable doubt.

1 Furthermore, if the test were a preponderance of the evidence, I am certain that this court would have affirmed orders of commitment in previous cases wherein the orders were reversed for failure of the state to meet its burden of proof beyond a reasonable doubt. Since the legislature adopted the stricter burden of proof in 1974, Oregon Laws 1973, ch 838, § 12, this court has heard, in addition to the three cases decided today, twenty-three appeals from orders of commitment under ORS chapter 426. In five of those cases, the orders were reversed for procedural errors. See State v. Carney, 29 Or App 291, 562 P2d 1248 (1977); State v. Hynes, 27 Or App 37, 554 P2d 1030 rev den (1977); State v. English, 26 Or App 957, 554 P2d 201 (1976); State v. May, 26 Or App 953, 554 P2d 201 (1976); State v. Anderson, 21 Or App 263, 534 P2d 1159 (1975). In only six cases where the issue was the sufficiency of the evidence was the order affirmed. See State v. Brooks, 35 Or App 347, 581 P2d 134 (1978); State v. Watkins, 35 Or App 87, 581 P2d 90 (1978); State v. Hart, 32 Or App 573, 574 P2d 702 (1978); State v. Daulton, 30 Or App 217, 566 P2d 555 (1977); State v. G, 26 Or App 197, 552 P2d 574 rev den (1976); State v. Nesbitt, 23 Or App 202, 541 P2d 1055 rev den (1976); State v. O'Neill, 21 Or App 710, 536 P2d 552 (1975). (This court’s opinion in O’Neill was reversed by the Supreme Court in State v. O’Neill, 274 Or 59, 545 P2d 97 (1976).) In the remaining ten cases, the orders of commitment were reversed for failure of the state to meet its burden of proof. See State v. Nelson, 35 Or App 57,580 P2d 590 (1978); State v. Conrad, 34 Or App 119, 578 P2d 1 (1978); State v. Corrigan, 32 Or App 577, 574 P2d 707 (1978); State v. Lucas, 31 Or App 947, 571 P2d 1275 (1977); State v. Paul, 28 Or App 479, 559 P2d 535 (1977); State v. Benton, 27 Or App 259, 555 P2d 468 (1976); State v. Haskell, 27 Or App 261, 555 P2d 798 (1976); State v. Alexander, 26 Or App 943, 554 P2d 524 (1976); State v. Heintz, 26 Or App 935, 554 P2d 556 (1976); State v. Stephens, 23 Or App 257, 541 P2d 1052 (1975). In at least some of these cases, it is likely that the orders of commitment would have been affirmed had the burden of proof been a preponderance of the evidence. See e.g., State v. Alexander, State v. Heintz, and State v. Corrigan, all supra.