State v. A. M. ( 2024 )

320 October 2, 2024 No. 695
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of A. M.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
A. M.,
Appellant.
Clackamas County Circuit Court
23CC03225; A181716
Susie L. Norby, Judge.
On respondent’s petition for reconsideration filed August 14,
2024. Opinion filed June 26, 2024. 333 Or App 453, 553 P3d
593 (2024).
Greg Rios and Robert A. Koch, Assistant Attorneys
General, for petition.
Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and Kistler, Senior Judge.
KISTLER, S. J.
Reconsideration allowed; opinion adhered to.
Cite as 335 Or App 320 (2024) 321
KISTLER, S. J.
The state has petitioned for reconsideration of our
decision in State v. A. M., 333 Or App 453, 553 P3d 593
(2024), which remanded this case for an evidentiary hear-
ing. The state reasons that the intended scope of the evi-
dentiary hearing on remand can be understood in one of
two ways and asks for clarification as to what we intended.
We allow the state’s petition for reconsideration and, for the
reasons explained below, adhere to our original opinion.
The trial court civilly committed appellant after
holding a remote rather than an in-person hearing. In doing
so, the court followed a Presiding Judge order that required
that all civil commitment hearings in Clackamas County
be held remotely, regardless of whether there was a partic-
ular need for doing so. The primary question that appel-
lant has raised on appeal is whether due process requires
an in-person civil commitment hearing in the absence of
a particularized reason for proceeding remotely.1 Under
Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed
2d 18 (1976), the answer to that question turns on three fac-
tors: the private interest at stake, the degree to which an
in-person hearing would result in a more accurate determi-
nation, and the burden on the government of providing an
in-person hearing.
In our original opinion, we explained that the
private interest affected by a civil commitment hearing—
involuntary hospitalization for up to 180 days—is substan-
tial, while the burden on the government of providing an
in-person hearing is “minimal at most.”2 See A. M., 333
Or App at 462-65. That left the second factor: the proba-
ble value that an in-person hearing would add to reaching
an accurate decision. Neither party offered any evidence on
1
As we noted in our original opinion, we do not understand appellant to be
arguing that due process always requires in-person civil commitment hearings
or that witnesses must always appear in person at those hearings. Rather, appel-
lant’s due process argument, as we understand it, turns on the Presiding Judge’s
decision to automatically require remote hearings even when there is no particu-
larized need that would justify proceeding remotely.
2
Given the Presiding Judge’s order, the state has not relied on a particu-
larized need, such as the COVID-19 pandemic, to justify holding remote civil
commitment hearings.
322 State v. A. M.
that issue at trial, and all they could do on appeal was to
advance competing arguments unsupported by any record
evidence. Not surprisingly, the state argued that the prob-
able value that an in-person hearing would add to reaching
an accurate decision was minimal while appellant argued
otherwise.
Faced with those arguments, we remanded the case
to the circuit court for an evidentiary hearing on the issues
that the second Mathews factor poses. Id. at 465-67. In its
petition for reconsideration, the state reasons that our opin-
ion can and should be read for the proposition that, in light
of the current state of videoconference technology, “remote
hearings [can] result in factfinding that is just as accurate
as in-person hearings.” And it proposes that the only factual
issue to be litigated on remand is whether the particular
videoconference technology used in Clackamas County is
“adequate.” In moving for reconsideration, the state asks us
to clarify whether we intended only a limited factual inquiry
on remand.
We read our opinion differently. We did not seek to
limit the parties’ evidence on remand, beyond requiring that
the evidence be relevant to the second Mathews factor. If
appellant agrees with the state that remote hearings using
the current videoconference technology can result in fact-
finding that is as accurate as in-person hearings, then the
parties can start from that premise and proceed to subsidi-
ary issues. If, however, appellant takes the position that, in
light of the issues typically at play in civil commitment pro-
ceedings, in-person hearings lead to more accurate determi-
nations than remote ones, nothing in our opinion precludes
appellant from offering expert testimony, learned treatises,
or other evidence that bears on that issue in the hearing on
remand.
Sometimes, courts consider familiar procedures,
such as the ability to call witnesses, in deciding whether
due process requires those procedures in specific types of
hearings. See, e.g., Wolff v. McDonnell, 418 US 539, 566, 94
S Ct 2963, 41 L Ed 2d 935 (1974) (considering whether due
process requires that prisoners be able to call witnesses in
prison disciplinary hearings). In those instances, the benefits
Cite as 335 Or App 320 (2024) 323
that the requested procedure adds to reaching an accurate
determination are well understood. Videoconferencing tech-
nology, by contrast, is relatively new, and we cannot take
judicial notice that civil commitment hearings using that
technology will or will not produce as accurate a determina-
tion as in-person hearing. Additionally, as the state notes,
there are always subsidiary issues regarding the benefits
and limits of the specific technology used.
Our original opinion contemplated that, on remand,
the parties could offer evidence on all the issues raised by
the second Mathews factor. It did not require them to address
only a subset of those issues, nor did it preclude them from
doing so. Rather, it left the parties free, consistently with
the rules of evidence and the trial court’s guidance, to offer
testimony and other evidence that, in their view, bears on
the second Mathews factor. Given that understanding of our
original opinion, we adhere to it.
Reconsideration allowed; opinion adhered to.