State v. T. C. , 327 Or. App. 558 ( 2023 )

558
Submitted September 21, 2022, resubmitted en banc March 3, reversed
August 23, 2023, petition for review denied January 12, 2024 (371 Or 825)
In the Matter of T. C.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
T. C.,
Appellant.
Marion County Circuit Court
21CC05628; A177184
536 P3d 591
In this civil commitment case, the state did not personally serve appellant
with the prehearing citation as required by ORS 426.090. Appellant did not pre-
serve the error. The state argues that the error was harmless. Held: Under Court
of Appeals case law, the trial court committed reversible error when it committed
appellant when she had not been personally served with the citation as required
by ORS 426.090. State v. M. D. M. G., 311 Or App 240, 486 P3d 863 (2021). The
court declined to depart from the approach taken in its case law. Hellman, J.,
wrote a concurring opinion, joined by Mooney and Jacquot, JJ. Powers, J., wrote
a dissenting opinion, joined by Kamins and Pagán, JJ. Pagán, J., wrote a dissent-
ing opinion, joined by Kamins, J.
Reversed.
En Banc
Matthew L. Tracey, Judge pro tempore.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed 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.
Reversed.
Cite as 327 Or App 558 (2023) 559
Lagesen, C. J., filed the opinion of the court in which
Ortega, Egan, Tookey, Shorr, Aoyagi, Mooney, Joyce,
Hellman, and Jacquot, JJ., joined.
Hellman, J., concurred and filed an opinion in which
Mooney and Jacquot, JJ., joined.
Powers, J., dissented and filed an opinion in which
Kamins and Pagán, JJ., joined.
Pagán, J., dissented and filed an opinion in which
Kamins, J., joined.
560 State v. T. C.
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 appel-
lant with the prehearing citation required by ORS 426.090.
We took this case into full court to consider the state’s argu-
ment that, contrary to our longstanding practice of view-
ing the state’s violations of a civil committee’s procedural
rights as grounds for reversal of a civil commitment deci-
sion, 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 attor-
ney, 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 appel-
lant’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 hear-
ing, appellant’s appointed attorney filed a motion seeking to
exclude appellant’s statements in the precommitment inves-
tigation report on the ground that counsel had not been pres-
ent 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
1
It appears that the court may have issued the order initiating civil commit-
ment proceedings on the request of the district attorney. The district attorney’s
name and mailing address is imprinted in the margin of the order. The record
is silent as to how and why what started as an aid-and-assist evaluation and
recommendation for restorative treatment transformed into a civil commitment
proceeding.
Cite as 327 Or App 558 (2023) 561
commitment. Appellant indicated directly to the court that
she wanted to call witnesses. After the court allowed appel-
lant 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 appel-
lant, finding that she was a danger to others. The court’s
order directed “that the Marion County Sheriff’s 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 hear-
ing 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 partici-
pate 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, includ-
ing their right to use a subpoena, so that they can mean-
ingfully prepare a defense.”
In response, the state concedes that the trial court
erred by proceeding with the hearing where, as here, appel-
lant 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 com-
mitment 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 pre-
hearing personal notice of the civil commitment proceeding,
as required by ORS 426.090.
562 State v. T. C.
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 US 1,
33-34, 87 S Ct 1428, 18 L Ed 2d 527 (1967); see Addington v.
Texas, 441 US 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 prehear-
ing, 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 informa-
tion 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 coun-
sel, 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.
Cite as 327 Or App 558 (2023) 563
Because of the central role ORS 426.090 plays
in ensuring due process where, as here, the state has civ-
illy committed someone without complying with it, we rou-
tinely have reversed. State v. M. D. M. G., 311 Or App 240,
486 P3d 863 (2021); State v. J. M.-G., 311 Or App 238, 487
P3d 876 (2021); State v. J. A. N., 311 Or App 226, 486 P3d
65 (2021); State v. C. T., 310 Or App 863, 485 P3d 312 (2021);
State v. J. R. W., 307 Or App 372, 475 P3d 138 (2020); State v.
R. E. J., 306 Or App 647, 474 P3d 461 (2020); State v. R. E. F.,
299 Or App 199, 447 P3d 56 (2019). We have done so even
where, as here, no objection was raised to the failure to com-
ply with ORS 426.090. This accords with our longstanding
recognition that the state’s failure to comply with an “inte-
gral 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 P2d 660 (1994); State v. D. B., 167 Or App 312,
316, 1 P3d 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 P2d 279,
rev den, 331 Or 429 (2000), cert den sub nom Waters v. Oregon,
532 US 1040, 121 S Ct 2003, 149 L Ed 2d 1005 (2001) (differ-
entiating 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 P3d 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 US
480, 491, 100 S Ct 1254, 63 L Ed 2d 552 (1980). In Oregon,
the legislature has developed the involuntary commitment
procedures contained in ORS chapter 426. Those manda-
tory procedures are designed to ensure that all allegedly
mentally ill persons get the benefit of a full and fair hear-
ing before that person is committed.”
564 State v. T. C.
129 Or App at 49-50. The Oregon Supreme Court has held
that strict adherence to those procedures is what ensures
that Oregon’s civil commitment scheme, as a whole, com-
ports with the federal constitution. State v. O’Neill, 274 Or
59, 65-66, 545 P2d 97 (1976) (“The state, when acting strictly
as provided in ORS Chapter 426, may legitimately intrude
on the privacy of an unfortunate individual if he is a ‘men-
tally ill person’ as defined in ORS 426.005.”). Although an
individual may waive the mandatory procedural protections
afforded by ORS chapter 426, we generally have required
the record to reflect that any waiver was knowing and vol-
untary. D. B., 167 Or App at 315-16; Allison, 129 Or App
at 50 (citing State v. Meyrick, 313 Or 125, 134, 831 P2d 666(1992), for the proposition that the record must reflect a
knowing and voluntary waiver of the mandatory procedural
protections in ORS chapter 426, specifically in that case, the
advice of rights required by ORS 426.100(1)). In State v. May,
131 Or App 570, 571, 888 P2d 14 (1994), for example, we held
that the lack of an objection to the trial court’s failure to
provide the advice of rights mandated by ORS 426.100(1)
did not waive the appellant’s statutory right to receive that
advice, where the record did not demonstrate a waiver on
the record and, further, that the omission required reversal.
Here, as in May, the record does not evidence a
waiver of appellant’s right to personal prehearing notice.
In fact, on this record, there is the distinct possibility that
appellant was not made aware, ahead of the hearing, that
the hearing was a civil commitment hearing, and not a
hearing connected to her criminal case. Although the state
speculates that appellant’s civil commitment lawyer rep-
resented her in the criminal case, the aid-and-assist eval-
uation identifies a different lawyer as representing appel-
lant in the criminal case. The record contains no indication
that appellant met with her civil-commitment attorney in
advance of the hearing; the transcript of the hearing tends
to suggest that appellant’s first encounter with her attorney
was at the hearing itself. Had the court attempted to secure
a waiver of appellant’s right to prehearing notice to address
its violation of ORS 426.090, then the record might permit
the conclusion that the deprivation of appellant’s right to
personal prehearing notice was one that was harmless by
Cite as 327 Or App 558 (2023) 565
showing that appellant was apprised of the nature of the
proceeding, had an opportunity to confer with her lawyer
ahead of the hearing, and otherwise had a fair opportunity
to prepare for it. But the court did not do so.
Arguing for a different result, the state points to
Ritzman, 192 Or App at 300-01, in which we held that a trial
court’s failure to provide the advice of rights required by ORS
426.100(1) was harmless where the record demonstrated
that the appellant had signed and dated a written copy of
the same advice. The state argues that Ritzman stands for
the proposition that not all procedural errors require rever-
sal. The state points out—correctly—that appellant received
the advice of rights required by ORS 426.100(1) at the start
of the hearing, that appellant’s lawyer acknowledged receiv-
ing the investigator’s report detailing the reasons for the
proposed commitment, and that appellant’s lawyer actively
litigated the case. Those facts, in the state’s view, demon-
strate that appellant had a full and fair hearing such that
the failure to provide the prehearing notice required by ORS
426.090 should be deemed harmless.
The dissenting opinions would choose the route pro-
posed by the state. We are not persuaded that we should
proceed down that path.
First, it would depart from a now long line of cases
deeming the failure to provide the prehearing notice, in
the form of the citation required by ORS 426.090, revers-
ible error, regardless of whether the error was preserved.2
Although we agree with Judge Pagán that “[a] review for
plain error should be the exception, not the rule,” we have
effectively treated civil commitment cases in which the state
has failed to comply with mandatory procedural safeguards
as an exception to the rule for a very long time now. 327 Or
App at 583 (Pagán, J., dissenting). Also, unlike in Ritzman,
2
Judge Pagán’s dissenting opinion points out that some of these cases
involved concessions of error, suggesting that they were the product of the agree-
ment of the parties and cautioning against letting them “become the driving force
behind the arc of our jurisprudence.” 327 Or App at 581 (Pagán, J., dissenting).
Our cases in which we accept a concession, however, reflect our own judgment on
whether a concession is legally correct. State v. R. L. W., 267 Or App 725, 728, 341
P3d 845 (2014) (“We are not bound by concessions of error; we have an obligation
to make an independent determination of the appropriate disposition of a case.”).
The parties’ agreement does not determine the outcome; our judgment does.
566 State v. T. C.
where the appellant had received the required advice in
writing, notwithstanding the court’s failure to deliver it in
the manner required by statute, there is no evidence in this
record that appellant herself was provided with any prehear-
ing notice that would meet the requirements of ORS 426.090
or due process. Under ORS 426.090, appellant had a right to
personal notice that the court was considering civilly com-
mitting her. Instead, as noted, the citation was issued to
appellant “c/o” her appointed lawyer, a process that does not
accord with ORS 426.090.3 The lack of personal notice is a
deprivation of a substantial right in and of itself. As noted,
the lack of personal notice in a case like this one, in which
the potential civil committee is incarcerated on pending
charges, is particularly consequential because, without it,
the person will have little reason to know that the civil com-
mitment hearing is something different from the person’s
criminal case.
Second, apart from straying from our consistent
approach in cases in which an appellant’s rights under ORS
426.090 were not honored, it would stray from our general
approach in cases in which the other mandatory procedural
rights have not been honored. Our historical approach is
anchored in our understanding of the profound deprivation
of individual liberty—both physical and reputational—that
the state imposes when it civilly commits an individual. In
the words of the United States Supreme Court:
“We have recognized that for the ordinary citizen, com-
mitment to a mental hospital produces a massive curtail-
ment of liberty, and in consequence requires due process
protection. The loss of liberty produced by an involuntary
commitment is more than a loss of freedom from confine-
ment. It is indisputable that commitment to a mental hos-
pital can engender adverse social consequences to the indi-
vidual and that whether we label this phenomena ‘stigma’
or choose to call it something else . . . we recognize that it
3
Judge Pagán’s dissenting opinion asserts that appellant “received a func-
tionally equivalent protection in a different form.” 327 Or App at 579 (Pagán, J.,
dissenting). But the protections to which the dissenting opinion refers appear to
be additional procedural protections to which appellant was entitled as of right.
We are not persuaded that those protections are the functional equivalent of
the prehearing citation to which appellant was entitled, in view of the fact that
the legislature required those procedural safeguards in addition to the notice
required under ORS 426.090.
Cite as 327 Or App 558 (2023) 567
can occur and that it can have a very significant impact on
the individual.”
Vitek, 445 US at 491-92 (internal citations and quotation
marks omitted; ellipses in original). To safeguard the erro-
neous imposition of that profound deprivation of liberty,
our court, as explained, has required either that an appel-
lant’s mandatory procedural rights be strictly honored or, in
the event that they are not, that a knowing and voluntary
waiver of those rights be made by the individual themselves,
not the individual’s lawyer. D. B., 167 Or App at 315-16.
D. B. is illustrative. There, we reversed an order of
civil commitment where the appellant’s lawyer purported
to waive the reading of rights required by ORS 426.100 on
the appellant’s behalf. Id. at 316. We did so because the trial
court had not examined the appellant on the record to ascer-
tain whether that waiver was knowing and voluntary. Id.
The approach proposed by the state and the dissenting opin-
ions, which would allow for affirmance where the state has
not honored a critical procedural right and the record does
not reflect a knowing and voluntary waiver, would heighten
the risk of an erroneous deprivation of liberty. That is
because it would permit the state to, in effect, strip away
a mandatory core procedural safeguard without requiring
it to contemporaneously demonstrate that, notwithstanding
the elimination of the safeguard, the proceeding could none-
theless proceed in a full and fair way.
That is especially so in the circumstances present
here, where the disregarded procedural safeguard is the
precommitment notice provided by the ORS 426.090 cita-
tion. Contrary to the state’s argument, and the dissenting
opinions’ conclusion, an examination of the hearing that
occurred is a poor measure of the harm that may flow from
the failure to provide adequate prehearing notice. As the
United States Supreme Court explained in Gault, notice is
what allows a person time to prepare for a proposed depri-
vation of liberty; that is why it must be given a reasonable
time before the hearing. See, e.g., Gault, 387 US at 33-34.
Were we to accept the premise of the state and the dissent-
ing opinions that a hearing that, on its face, appears full
and fair, means any lack of prehearing notice was harmless,
568 State v. T. C.
even in the absence of an affirmative waiver, we would risk
undermining the core value of the protection afforded by the
notice requirement.
Taking a slightly different approach, Judge Powers’s
dissenting opinion suggests that appellant has not ade-
quately demonstrated harm because appellant’s explana-
tion of the value of prehearing notice is phrased in gener-
alities about the value of prehearing notice. 327 Or App 574(Powers, J., dissenting). As we understand Judge Powers’s
approach, he would require a civil committee deprived of
prehearing notice to create a record demonstrating how in
particular the violation of the person’s rights affected their
ability to prepare for a hearing, should the person wish to
seek reversal on the basis of that violation. That approach,
in our view, would risk severely undermining the right to
prehearing notice. It would risk transforming the state’s
mandatory statutory and constitutional obligations to pro-
vide prehearing notice into an obligation, on the part of a
civil committee, to demonstrate that notice could have made
a difference in every situation in which the state breaches
those obligations. An approach like the one our court has
taken historically—requiring the state to obtain a waiver or
otherwise demonstrate affirmatively that it afforded com-
parable procedural protection in a different way—keeps the
burden of compliance where the constitution and the legisla-
ture have placed it: on the state. Contrary to Judge Powers’s
suggestion, our approach is not akin to structural error. 327
Or App at 574 (Powers, J., dissenting). Under our historic
approach, if the state obtains a waiver of a procedural right
or demonstrates that it afforded a procedural protection
that is functionally equivalent to an omitted one, then the
state may well be able to demonstrate that, notwithstanding
the state’s failure to honor a particular right, that omission
is not one that requires reversal.
Purdy v. Deere and Company, 355 Or 204, 324 P3d
455 (2014), on which Judge Powers’s dissenting opinion
relies, does not point a different direction. See 327 Or App
at 573 (Powers, J., dissenting). At issue in Purdy was the
standard for determining whether an instructional or evi-
dentiary error in the context of a civil jury trial affected
Cite as 327 Or App 558 (2023) 569
a party’s rights sufficiently to require reversal. 355 Or at
226-27. This case, in contrast, does not involve a question of
evidentiary or instructional error. Rather, this is a case in
which a proceeding went forward notwithstanding a viola-
tion of appellant’s right to prehearing, in-person notice com-
pliant with ORS 426.090—a right that in and of itself is a
substantial one.
We long have recognized this principle in other con-
texts, too. Our decision in Villanueva v. Board of Psychologist
Examiners, 179 Or App 134, 138, 39 P3d 238 (2002), explains
clearly why the deprivation of adequate prehearing notice is
a harm in and of itself:
“Beyond that, we do not agree that the failure to give
petitioner adequate notice of the charges he faced was not
prejudicial. Rather, the absence of adequate notice is prej-
udicial in and of itself. That proposition finds recognition
in both the criminal and civil law. The state may not try
a criminal defendant for a crime for which he or she has
not been charged. State v. Wimber, 315 Or 103, 113-15, 843
P2d 424 (1992) (amending indictment); State v. Alben, 139
Or App 236, 241, 911 P2d 1239, rev den, 323 Or 153 (1996).
That is true without regard to whether the criminal defen-
dant could have put on a defense to the uncharged crime.
Id. Similarly, in a civil action, the parties are limited to the
issues that are raised by the pleadings, unless they explic-
itly or impliedly consent to try additional issues. See ORCP
23 B; Northwest Marketing Corp. v. Fore-Ward Investments,
173 Or App 508, 512-13, 22 P3d 1230 (2001); Cheryl Wilcox
Property Management v. Appel, 110 Or App 90, 93-94, 821
P2d 428 (1991). We see no reason why similar principles
should not apply when an agency charges a licensee with
violating his or her profession’s ethical rules. Indeed, as
we explained in our initial opinion, the context of ORS
183.415(2) supports our conclusion that the failure to give
adequate notice is itself prejudicial.”
Id. (internal footnotes omitted).
Again, absent a waiver on the record, it is difficult
to gauge from the face of a hearing the degree to which addi-
tional preparation time could have affected the outcome.4
4
In State v. K. R. B., 309 Or App 455, 482 P3d 134 (2021), we assumed with-
out deciding that service of an otherwise-compliant citation immediately before
the hearing would violate ORS 426.090. Id. at 457-58. We deemed that potential
570 State v. T. C.
Beyond that, we do not view it as our role to speculate, on
behalf of the state, that appellant’s case would not have been
any different if the state had honored her procedural rights.
Although sometimes we might guess about that correctly,
sometimes we will guess incorrectly and, in our view, the
approach we take should be the one that offers the individual
the highest level of protection against the risk of the errone-
ous deprivation of liberty that can occur when the state fails
to comply with mandatory procedural safeguards.
Returning to Judge Pagán’s dissenting opinion, it
suggests that this approach is impractical. See 327 Or App
at 580 (Pagán, J., dissenting). We disagree. The procedural
safeguards to which the state must adhere to civilly com-
mit an individual are neither onerous nor complex. The lib-
erty interest they protect is of the highest order. And, in
the event that the state fails to comply with one or more
of those safeguards, the state or the court can seek a
waiver on the record from the subject of the civil commit-
ment. Accordingly, we are not persuaded to depart from our
well-traveled course of reversing in civil commitment cases
where, as here, the mandatory procedural safeguards were
not adhered to in full, where the omitted safeguard was not
waived on the record, and where the committed person did
not receive the same safeguard (in this instance, prehearing
notice with the information required by ORS 426.090) in a
different form.
One other point bears mentioning. As mentioned,
the court initiated this civil commitment proceeding after
an evaluator determined that appellant was unable to aid
and assist in her criminal case and was in need of restor-
ative services. Under those circumstances, it might be easy
to think that the state’s omission of personal prehearing
notice should be forgiven; after all, how could that notice
make any difference to a person who lacks the capacity to
aid and assist in a criminal case? And, as a factual matter,
error in timing harmless where the record did not indicate that delay “caused
appellant or counsel not to be informed of the bases for the commitment or not to
have adequate time or information to prepare for the hearing.” Id. at 458. Here,
by contrast, the citation was never served on appellant although she had a right
to service in person. Under those circumstances, in view of Gault’s explanation of
the role prehearing notice plays in ensuring due process, we are not prepared to
say the complete deprivation of that critical right was harmless.
Cite as 327 Or App 558 (2023) 571
it might not. But the rule of law requires the state to act as
if it can make a difference, so as to safeguard against the
erroneous deprivation of liberty, one of the gravest injuries
the state can inflict.
For all those reasons, we conclude that the court
erred when it committed appellant when she had not been
served with the citation required by ORS 426.090. Although
the error was not preserved, under our case law, it is plain.
We therefore exercise our discretion to correct it for all of the
same reasons we have done so in our prior cases: “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.” State v. S. J. F., 247 Or App 321,
325, 269 P3d 83 (2011). As discussed, civil commitment pro-
ceedings deprive an individual of physical and reputational
liberty. The violation—deprivation of in-person prehearing
notice—was grave, and appellant did not waive that right.
In our view, the ends of justice warrant its correction.
Reversed.
HELLMAN, J., concurring.
I concur in the majority’s opinion. I write separately
because footnote four and the majority’s treatment of State
v. K. R. B., 309 Or App 455, 482 P3d 134 (2021) raise an
important issue that is beyond the scope of our decision
today, but that may need to be addressed in a future case.
In my view, the importance of prehearing service in
commitment cases is best understood not as a ministerial
issue of timing, but as an issue of opportunity. That includes
the opportunity for the person to learn why the state wants
to deprive them of liberty, to consult with counsel and pre-
pare for the hearing, and to choose or decline offered mental
health treatment. A notice that is served immediately prior
to or during the hearing does not allow the opportunity for
those kinds of things to happen. Moreover, at that point,
obtaining the constitutionally guaranteed opportunity
becomes conditioned on the trial court’s discretion to allow a
continuance of the hearing, which inappropriately elevates
other considerations over the basic due process rights that
a person has in these situations. Thus, in my view, service
572 State v. T. C.
immediately before or during the hearing suffers from the
same constitutional problems as lack of service altogether.
This case does not engage with or resolve that ques-
tion, and properly so. We were not presented with an explicit
argument to overrule K. R. B. And resolution of this case, in
which the appellant received no notice at all, does not require
us to determine whether there is a materially and legally
significant difference between notice that was not served
and notice that was served minutes before the hearing. But
under the majority’s legally correct understanding of the
importance and scope of the prehearing notice requirements
to satisfy due process, I question the continuing viability of
K. R. B. With those observations, I concur.
Mooney, J., and Jacquot, J., join in this concurrence.
POWERS, J., dissenting.
In my view, because ORS 19.415(2) applies to the
failure to personally serve appellant with the citation as
required by ORS 426.090, appellant must demonstrate that
that error had a detrimental influence on her rights. I would
conclude that appellant has not done so under the circum-
stances of this case. Accordingly, I respectfully dissent.
ORS 19.415(2) provides: “No judgment shall be
reversed or modified except for error substantially affect-
ing the rights of a party.” Thus, consistent with that leg-
islative command, an appellate court must affirm a judg-
ment despite a trial court error in a similar manner to the
analysis that Article VII (Amended), section 3, of the Oregon
Constitution requires.1 State v. Davis, 336 Or 19, 29 n 7, 77
P3d 1111 (2003); see also id. at 32 (explaining that “Oregon’s
constitutional test for affirmance despite error consists of a
single inquiry: Is there little likelihood that the particular
1
Article VII (Amended), section 3, provides, in part:
“If the [reviewing court] shall be of [the] opinion, after consideration of all
the matters thus submitted, that the judgment of the court appealed from
was such as should have been rendered in the case, such judgment shall be
affirmed, notwithstanding any error committed during the trial; or if, in any
respect, the judgment appealed from should be changed, and the [reviewing]
court shall be of [the] opinion that it can determine what judgment should
have been entered in the court below, it shall direct such judgment to be
entered in the same manner and with like effect as decrees are now entered
in equity cases on appeal to [a reviewing] court.”
Cite as 327 Or App 558 (2023) 573
error affected the verdict?”). The standard required by
ORS 19.415(2) is a high one: the “error must—in an import-
ant or essential manner—have materially or detrimentally
influenced a party’s rights; it is insufficient to speculate
that the error might have changed the outcome in the case.”
Purdy v. Deere and Company, 355 Or 204, 225, 324 P3d 455
(2014). As the Supreme Court has explained:
“[A]n error ‘affecting’ a party’s rights is an error that
can be said to ‘produce a material influence’ or ‘to have a
detrimental influence’ on those rights, and not merely one
that ‘might’ have changed the outcome of the case. The use
of the adverb ‘substantially’ further limits the type of error
that can result in reversal of a judgment. ‘Substantially’
means ‘in a substantial manner,’ and the relevant defi-
nition of ‘substantial’ is ‘being of moment: IMPORTANT,
ESSENTIAL.’ ”
Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 173, 61 P3d 928
(2003) (capitalization and internal quotation marks in orig-
inal; citation and emphasis omitted).
Importantly, ORS 19.415(2) requires the party
asserting the error to demonstrate that the error had the
required prejudicial effect. Purdy, 355 Or at 225; see also
id. at 234 n 11 (Balmer, C. J., concurring) (explaining that
“the appellate court will conduct its review as to whether
the error ‘substantially affect[ed]’ the appellant’s rights
based on the record before it—and if the record includes
nothing that would permit the appellate court to reach that
conclusion, the result will be affirmance” (internal quota-
tion marks and bracketed text in original)). Both Purdy and
Shoup articulate that the standard adopted by the legisla-
ture in ORS 19.415(2) applies “in every case” and that an
appellate court may reverse or modify a judgment only if
it can be determined “from the record” that the error sub-
stantially affected a party’s right. See Purdy, 355 Or at 228;
Shoup 335 Or at 173-74.
In my view, because it is undisputed that
ORS 19.415(2) applies to the failure to provide appellant
with the prehearing citation required by ORS 426.090,
appellant must demonstrate that the error—viz., providing
her attorney with the citation rather than her personally—
had the required prejudicial effect under the circumstances
574 State v. T. C.
presented in the case. In her opening brief, appellant’s
only contention that the error was not harmless relied on
generalities:
“For a person to be prepared to meaningfully partici-
pate 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, includ-
ing their right to use a subpoena, so that they can mean-
ingfully prepare a defense.”
That argument, in my view, is insufficient to carry the bur-
den mandated by ORS 19.415(2). See Shoup, 335 Or at 173(observing that ORS 19.415(2) “protects the trial court judg-
ment from reversal or modification ‘except for’ error sub-
stantially affecting a party’s rights, indicating that rever-
sal of a judgment is the exception, not the rule” (internal
quotation marks in original)). That is especially so under
the circumstances of this case where appellant’s attorney
filed a pretrial motion, objected to the state’s request for
a continuance, and reviewed documents prior to the hear-
ing despite appellant not personally receiving the statuto-
rily required prehearing citation. Further, the trial court
engaged with appellant by explaining the required advice of
rights mandated by ORS 426.100 and neither appellant, nor
appellant’s attorney, drew the court’s attention to the lack of
personal service of the citation required by ORS 426.090.2
The majority opinion, in my view, conflates the violation of
ORS 426.090 itself with appellant’s burden to demonstrate
that the violation of ORS 426.090 had the required prejudi-
cial effect. I understand those to be separate inquiries. See
Ryan v. Palmateer, 338 Or 278, 295-97, 108 P3d 1127, cert
den, 546 US 874 (2005) (discussing why “structural error”
is not a useful analytical tool and adhering to the harmless
error standard articulated in Davis); State v. Barone, 329
Or 210, 226, 986 P2d 5 (1999), cert den, 528 US 1086 (2000)
2
Indeed, the majority opinion’s interpretation of the statutory requirement
for personal prehearing notice as an unwaivable right that cannot be remedied
by, for example, an appellant requesting additional time to prepare for the hear-
ing is inconsistent with how we have treated the similar notice requirement in
criminal proceedings. See, e.g., State v. Antoine, 269 Or App 66, 84, 344 P3d 69,
rev den, 357 Or 324 (2015) (explaining that, “although defendant lacked adequate
notice of the charges against him, his lack of notice was something that he should
have attempted to cure by moving to require the state to make its election before
trial”).
Cite as 327 Or App 558 (2023) 575
(explaining that the court “has not adopted the doctrine
of ‘structural’ or ‘systemic’ error in analyzing questions of
Oregon law”).
Finally, it is worth noting that, like the observa-
tions in the majority opinion, I agree that ORS 426.090
confers an important prehearing right to receive in-person
written notice. Whether deprivation of that right, however,
reaches the threshold set in ORS 19.415(2) of “substantially
affecting” appellant’s rights will depend on the circum-
stances of each case. In cases where the citation required
by ORS 426.090 was not provided at all, demonstrating that
the error was prejudicial could arise from, for example, the
lack of notice preventing the person from hiring an attorney
or having legal counsel immediately appointed, preparing a
specific response to the reasons for the hearing or advocat-
ing for a particular outcome, or misapprehending the right
to subpoena witnesses. In this case, however, where that
written notice was given to appellant’s attorney—instead
of personally to appellant—the burden of demonstrating
that appellant not personally receiving the citation detri-
mentally influenced her rights is more nuanced, especially
where appellant’s counsel filed a pretrial motion, objected
to the state’s request for a continuance, and reviewed docu-
ments prior to the hearing.
In short, after evaluating the arguments made by
appellant in her opening brief to demonstrate reversible
error under ORS 19.415(2) and the circumstances of this
case, I would conclude that she has not demonstrated the
required prejudicial effect.
Accordingly, I respectfully dissent.
Kamins, J., and Pagán, J., join in this dissent.
PAGÁN, J., dissenting.
Appellant was in jail at the time of her civil com-
mitment hearing. When the precommitment investigator
interviewed appellant, she “was naked, lying on her cell
floor, with a blanket on her legs. Her cell was flooded and
the blanket appeared wet.” Appellant yelled profanities
at the investigator during the entire interview. Appellant
576 State v. T. C.
needed help and treatment, which was not likely to occur
in the maximum-security unit at the Marion County Jail.
See Addington v. Texas, 441 US 418, 428, 99 S Ct 1804, 60
L Ed 2d 323 (1979) (“In a civil commitment state power is
not exercised in a punitive sense.”).
Relying on the investigator’s report, the trial
court issued a citation for a civil commitment hearing and
appointed an attorney to represent appellant.1 On the same
day, focusing on appellant’s right to due process, appellant’s
attorney filed a motion requesting notice of interviews with
appellant and objecting to the use of unadvised statements
made to any precommitment investigator. Appellant’s attor-
ney also objected to the state’s motion for a continuance of
the civil commitment hearing.
Now, on appeal, based on the same due process
considerations, the majority opinion reverses appellant’s
judgment of civil commitment because there is no indica-
tion in the record that the citation was personally served
on appellant as required by the penultimate sentence of
ORS 426.090. The majority opinion requires strict compli-
ance with that requirement, even though appellant was in
custody at the time, did not preserve the error below, and
the error caused no discernible harm. In deciding whether to
exercise our discretion to reverse, I would adopt an approach
that is consistent with how we typically assess the impact of
unpreserved errors in civil and criminal cases.
In determining whether appellant had a “reason-
able opportunity to prepare” for the hearing, In re Gault,
387 US 1, 33, 87 S Ct 1428, 18 L Ed 2d 527 (1967), we
should consider appellant’s circumstances and condition
at the time her civil commitment proceeding began. In
September 2021, appellant was arrested and charged with
harassment. The arrest occurred after police responded
to a call from appellant’s adult son who stated that appel-
lant was naked and attempting to break into his bed-
room. After a brief struggle with police officers, appellant
1
The state suggests that the appointed attorney in the civil commitment
proceeding also represented appellant in her criminal case. The record does not
support that claim. Instead, the record shows that two different attorneys were
involved.
Cite as 327 Or App 558 (2023) 577
was detained and lodged at Marion County Jail. At her
arraignment, appellant exhibited strange behavior, such
as claiming that she was standing behind herself, “inter-
mittently refusing to speak, stating that she is God, and
shouting at the Judge when her charging document was
read aloud.” Appellant’s defense attorney referred appel-
lant for an evaluation due to the attorney’s concerns about
appellant’s ability to aid and assist in her defense. When
interviewed by a psychologist, appellant did not appear to
understand that she was in jail.
The precommitment investigator, who conducted
her first interview of appellant shortly before the citation
was issued, described appellant’s behavior as “[i]rritable,
intrusive, impulsive, distractible, with poor eye contact,
and largely uncooperative. [Appellant’s speech] was hyper-
verbal, increased rate, loud volume and profane. She had
disorganized speech and illogical thinking. She presented
as delusional and psychotic.” According to the investigator,
appellant “remained lying on the floor the entire interview
and yelled and screamed for the duration of the interview
yelling profanities at this investigator.” Under those cir-
cumstances, it is not clear that personally serving the cita-
tion on appellant would have accomplished much towards
providing her with a fair process. Nevertheless, appellant’s
court-appointed attorney prepared for the hearing, includ-
ing by objecting to the state’s request for a continuance, by
filing a pretrial motion regarding precommitment investiga-
tions, and by reviewing documents. Thus, even without per-
sonal service of the citation, appellant’s due process rights
were protected, and she was afforded—through the work of
her attorney—a reasonable opportunity to prepare for the
hearing.
Relying on a policy of “strict adherence” to the invol-
untary commitment procedures contained in ORS chapter
426, the majority opinion reverses the judgment of civil com-
mitment. 327 Or App at 564. Certainly, trial courts must
strictly comply with those procedures, including the require-
ment of personal service of the citation. See State v. O’Neill,
274 Or 59, 61, 545 P2d 97 (1976) (reviewing de novo whether
the appellant should have been involuntarily committed).
578 State v. T. C.
However, it is less clear that we should automatically reverse
whenever there is a failure to strictly comply with those pro-
cedures, especially when the error was not preserved.
In State v. Waters, 165 Or App 645, 650, 997 P2d
279, rev den, 331 Or 429 (2000), cert den sub nom Waters v.
Oregon, 532 US 1040, 121 S Ct 2003, 149 L Ed 2d 1005 (2001),
we declined to exercise our discretion to reverse for failure
to comply with ORS 426.120(1)(c), which requires examin-
er’s reports to be written under oath. As we explained,
“One of the primary purposes of the preservation
requirement is to permit lower courts the opportunity to
correct their own errors. Had appellant brought this error
to the trial court’s attention, the error could easily have
been avoided. As to the gravity of the error, appellant does
not contend that the error was anything other than a tech-
nical one; he does not call into question the substance of the
examiners’ reports, and he does not assert that the error
affected the outcome of the case in any way. Under the cir-
cumstances, we do not exercise our discretion to correct the
trial court’s error in receiving the examiner’s signed but
unsworn reports.”
Id. at 650; see also State v. Maxwell, 164 Or App 171, 172,
988 P2d 939 (1999), rev den, 330 Or 71 (2000) (declining to
reverse a civil commitment order because the error was not
preserved).
A similar analysis should apply here. If appellant
or her attorney were concerned about the failure to effect
personal service of the citation, then they could have raised
that concern at the beginning of the hearing, and the error
could have been corrected. But they did not do so. Instead, at
the beginning of the hearing, appellant’s attorney pointed
out that she was missing some pages from the reports asso-
ciated with appellant’s arrest. Shortly thereafter, when
advising appellant of her rights, the trial court stated that
the courtroom could be cleared if there was anything appel-
lant wanted to discuss with her attorney. During those
preliminary stages of the hearing, neither appellant nor
her attorney objected to the failure to personally serve the
citation. Their lack of concern weighs against exercising
our discretion to reverse based on that error. See State v.
Cite as 327 Or App 558 (2023) 579
Inman, 275 Or App 920, 935, 366 P3d 721 (2015), rev den,
359 Or 525 (2016) (“[T]he ease with which any error could
have been avoided or corrected should be a significant factor
in an appellate court’s decision whether to exercise its dis-
cretion to correct a plain, but unpreserved, error.”). Indeed,
it could be argued that our adherence to a strict compliance
approach for such technical failures creates an incentive for
litigants to avoid alerting the trial court to any such errors,
lest they be easily corrected.
In State v. K. R. B., 309 Or App 455, 458, 482 P3d
134 (2021), a case in which the citation was not served until
the beginning of the hearing, we did not exercise our dis-
cretion to correct the error, if any, because there was no
indication that “the delay in service of the citation caused
appellant or counsel not to be informed of the bases for the
commitment or not to have adequate time or information to
prepare for the hearing.” Id. Furthermore, there was noth-
ing in the record to suggest that “service of the citation at
the commencement of the hearing caused appellant not to
receive the benefits of a full and fair hearing.” Id.Here, unlike in K. R. B., there is no evidence
that the citation was ever personally served on appellant.
Nevertheless, if the purpose of doing so is to make sure
that the appellant has a reasonable opportunity to pre-
pare for the hearing, then it is not clear why personal ser-
vice of the citation at the beginning of the hearing makes
a difference. Obviously, it does not allow a person time to
prepare for the hearing, nor does it strictly comply with
ORS 426.090, which requires personal service “prior to the
hearing.” Indeed, here, appellant may have been better pre-
pared for her hearing than the person alleged to be mentally
ill in K. R. B., because appellant’s attorney was actively tak-
ing steps before the hearing to protect appellant’s due pro-
cess rights, including by objecting to a request for a contin-
uance, by reviewing documents, by taking note of what she
was missing, and by filing a prehearing motion regarding
precommitment investigations.
Put another way, even though there was no per-
sonal service of the citation, appellant “received a function-
ally equivalent protection in a different form.” 327 Or App
580 State v. T. C.
at 563. The steps taken by her attorney before the hearing
show that the attorney was acting to protect appellant’s due
process rights. Furthermore, at the beginning of the hear-
ing, which appellant attended by videoconference, the trial
court explained the nature of the proceeding, advised appel-
lant of her rights, and explained the possible results of the
hearing as required by ORS 426.100(1). Thus, even though
she did not personally receive the citation, appellant was
“otherwise adequately aware” of her rights. State v. Ritzman,
192 Or App 296, 299, 84 P3d 1129 (2004).
Regarding appellant’s right to subpoena witnesses,
at one point during the hearing, appellant mentioned the
names of several sheriff’s deputies or law enforcement offi-
cers. Once appellant mentioned their names, the trial court
immediately went off the record to provide appellant’s
appointed attorney the opportunity to discuss the issue of
witnesses with her. After a recess, the attorney indicated
that more time with appellant would not assist her. When
the hearing continued, appellant did not call witnesses,
but she did provide her own testimony. On that record, we
have no basis from which to reasonably infer that appellant
would have subpoenaed witnesses if she had been person-
ally served with the citation prior to the hearing. Cf. State v.
M. L. R., 256 Or App 566, 571-72, 303 P3d 954 (2013) (deter-
mining that the failure to advise the appellant of her right
to subpoena witnesses was not harmless because we could
not conclude that she received the information from another
source, and the error may have impacted the outcome of the
hearing because the testimony of the appellant’s husband
was not helpful, and her children did not testify).
I do not mean to devalue or undermine the impor-
tance of the procedural safeguards that the legislature has
put in place to protect persons alleged to be mentally ill. The
trial court’s failure to effect personal service of the citation,
as required by ORS 426.080 and ORS 426.090, was error,
but, at the same time, we must decide whether to exercise
our discretion to consider and correct an unpreserved error.
Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d
956 (1991). In doing so, we should not ignore the practical
effect of the error. Other than pointing to the seriousness of
Cite as 327 Or App 558 (2023) 581
civil commitment hearings, appellant identifies no discern-
ible harm that she suffered as a result of the failure to serve
the citation.2 At her civil commitment hearing, appellant’s
son testified that “she is not in the right state of mind at all.
Like her mind is completely broken right now. She was tear-
ing apart my apartment last time she was here.” By enter-
ing a judgment committing appellant to the Oregon Health
Authority for a period not to exceed 180 days, appellant was
certainly more like to receive the care and treatment she
needed than in the Marion County Jail.
The majority points to the “long line of cases deem-
ing the failure to provide the prehearing notice, in the form
of the citation required by ORS 426.090, reversible error.”
327 Or App at 565. However, in many of those cases, the
state conceded that the judgment of civil commitment
should be reversed. See State v. M. D. M. G., 311 Or App
240, 241, 486 P3d 863 (2021) (“The state concedes that the
error constitutes plain error and that this court should
reverse.”); State v. J. M.-G., 311 Or App 238, 239, 487 P3d
876 (2021) (same); State v. J. A. N., 311 Or App 226, 227, 486
P3d 65 (2021) (same); State v. R. E. F., 299 Or App 199, 200,
447 P3d 56 (2019) (same). In others, no citation was issued.
See J. A. N., 311 Or App at 227 (“In this case, the error is
even more glaring, given that the citation never issued at
all.”); State v. C. T., 310 Or App 863, 864, 485 P3d 312 (2021)
(“As the state concedes, we have found reversible plain error
in situations where no citation was issued.”). While a court
should respect when the parties before it agree on a par-
ticular disposition, we should be cautious about allowing
those instances to become the driving force behind the arc
of our jurisprudence. If the driving force is, rather, the call
to ensure that litigants receive due process, we should be
encouraging the parties and the trial courts to inquire
about the practical effects of any procedural shortcomings
2
Generally, appellants are not permitted to file reply briefs in civil commit-
ment cases, but appellant could have sought permission to file a reply brief to
respond to the state’s harmless error argument. ORAP 5.70(3)(a)(iii). As Judge
Powers observes, ORS 19.415(2) requires that an error affect the proceeding, a
component that is also fundamental to our plain-error review. 327 Or App at 572-
73 (Powers, J., dissenting). See, e.g., State v. Horton, 327 Or App 256, 264, 535 P3d
338 (2023) (In determining whether to exercise discretion, “[t]he likelihood that
the error affected the outcome goes to its ‘gravity’ and to ‘the ends of justice.’ ”).
582 State v. T. C.
before proceeding. The majority’s approach does not encour-
age such an inquiry.
Here, the citation was issued, and the state does not
concede that we should exercise our discretion to reverse. In
that circumstance, it behooves us to review the record and
reflect upon the practical effect of the unpreserved error. A
focus on strict compliance with the personal service require-
ment risks short-circuiting that analysis. As we explained
in State v. S. R.-N., 318 Or App 154, 161, 506 P3d 492 (2022),
when discussing the similar, although not identical, proce-
dural safeguards set forth in ORS chapter 427, although the
procedures “aim to ensure due process, it is not necessarily
true that the failure to satisfy those procedures denies due
process; that is, a constitutionally significant deprivation of
due process requires an assessment of the risk that a pro-
cedural failure resulted in the commitment.” (Emphases in
original.)
Although the concerns underlying proper service
speak to procedural due process, the manifestation of due
process is, ultimately, a proceeding that can be said to repre-
sent the parties’ best attempts at presenting their evidence
and arguments to the adjudicator. In this case, there is no
indication that the decision to commit the appellant to the
Oregon Health Authority for a period of time was affected
by the failure to personally serve the citation. Instead, after
considering the evidence, which included testimony from a
licensed psychologist, a certified mental health investigator,
and an appointed examiner, as well as hearing testimony
from appellant and her son, and after considering the argu-
ments of counsel, the trial court concluded that appellant
met the statutory criteria for a mental illness and that she
was in need of treatment. ORS 426.130(1)(a)(C).
Indeed, the trial court came close to deciding that
the state failed to meet its burden of showing that a civil
commitment was necessary. The trial court did not find,
by clear and convincing evidence, that appellant posed a
danger to herself or that she was unable to meet her basic
needs. ORS 426.005(1)(f). However, the trial court did find,
by clear and convincing evidence, that appellant suffered
from schizophrenia and that she posed a danger to others.
Cite as 327 Or App 558 (2023) 583
Id. Based on this record, there is no reason to believe that
appellant was denied the opportunity to fully prepare for
her civil commitment hearing as a result of the failure to
effect personal service of the citation on her while she was
in custody in the Marion County Jail.
A review for plain error should be the exception, not
the rule. State v. Taylor, 295 Or App 32, 36, 433 P3d 486
(2018). Here, focusing on appellant’s circumstances, condi-
tion, and the prehearing steps taken by her attorney to pro-
tect her due process rights, and because the failure to per-
sonally serve the citation was an unpreserved error that did
not result in any discernible harm to appellant, we should
not exercise our discretion to reverse the judgment of civil
commitment.
I respectfully dissent.
Kamins, J., joins in this dissent.