State v. R. E. J. ( 2020 )

647
Submitted August 7, reversed September 23, 2020
In the Matter of R. E. J.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
R. E. J.,
Appellant.
Yamhill County Circuit Court
19CC06436; A172953
474 P3d 461
Cynthia L. Easterday, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Dashiell L. Farewell, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Reversed.
648 State v. R. E. J.
PER CURIAM
Appellant appeals a judgment committing him to
the Oregon Health Authority for a period not to exceed 180
days based on a finding that he is a person with mental ill-
ness. ORS 426.130. Appellant contends, in his second assign-
ment of error, that the trial court plainly erred in conduct-
ing the commitment hearing “upon a citation or warrant of
detention that failed to comply with the procedures required
by ORS 426.080.” The state concedes that the trial court
plainly erred in that regard and that the judgment should
be reversed. We agree and accept the state’s concession.
The court must issue a citation to a person alleged
to have a mental illness, stating the reasons for that alle-
gation, the time and location of the commitment hearing,
the person’s right to an attorney or to have one appointed,
and the right to call and subpoena witnesses. ORS 426.090.
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,” and the person must have the
opportunity to consult with legal counsel before the hearing.
Id. The court may issue a warrant of detention if it finds
probable cause to believe that a failure to take a person into
custody prior to a pending commitment hearing or investi-
gation would pose serious harm or danger to the person or
others. ORS 426.070(5)(b)(A) (2017), amended by Or Laws
2019, ch 247, § 1. Under ORS 426.080, “[t]he person serv-
ing a warrant of detention or the citation provided for by
ORS 426.090 shall, immediately after service thereof, make
a return upon the original warrant or citation showing the
time, place and manner of such service and file it with the
clerk of the court.”
In this case, although the court issued a cita-
tion for the commitment hearing and a warrant of deten-
tion, there is no record of a return of service, showing the
time, place, and manner of service, of either document, as
required by ORS 426.080. Given that lack of evidence of
service on appellant, the trial court plainly erred in hold-
ing the commitment hearing. Cf. State v. R. E. F., 299 Or
App 199, 200-01, 447 P3d 56 (2019) (holding that a trial
court’s failure to issue a citation in conformance with ORS
Cite as 306 Or App 647 (2020) 649
426.090 constituted plain error). Moreover, the seriousness
of civil commitment proceedings, the gravity of the violation
(including that the record does not disclose whether appel-
lant received the information and protections provided by
ORS 426.090 before the start of the hearing), and the ends
of justice all counsel in favor of us exercising our discretion
to correct the error. Cf., e.g., State v. S. J. F., 247 Or App 321,
325-26, 269 P3d 83 (2011) (plain error review of violations
of ORS 426.100(1), requiring advice of rights, “is justified
by the nature of civil commitment proceedings, the relative
interests of the parties in those proceedings, the gravity of
the violation, and the ends of justice”; purpose of the statute
is to ensure that an alleged mentally ill person “receives the
benefit of a full and fair hearing” before suffering the seri-
ous consequences attendant to civil commitment (internal
quotation marks omitted)). We therefore reverse the judg-
ment of commitment.1
Reversed.
1
That disposition obviates the need for us to address appellant’s first assign-
ment of error (contending that the trial court plainly erred “in issuing a citation
when the pre-commitment investigator failed to comply with involuntary com-
mitment procedures”).