State v. L. D. W. ( 2024 )

656 August 28, 2024 No. 613
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of L. D. W.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
L. D. W.,
Appellant.
Clackamas County Circuit Court
23CC03510; A181721
Todd L. Van Rysselberghe, Judge.
Argued and submitted June 14, 2024.
Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
EGAN, J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 656 (2024) 657
EGAN, J.
Appellant challenges a judgment involuntarily com-
mitting her to the custody of the Oregon Health Authority
(OHA) for up to 180 days and prohibiting her from possessing
firearms based on the trial court’s finding that, as a result
of a mental illness, she is a danger to herself and others.
ORS 426.130(1)(c), (d); ORS 426.005(1)(f)(A). In appellant’s
sole assignment of error, she argues that (1) the trial court
plainly erred when it failed to strictly comply with the stat-
utory and administrative procedures for civil commitment,
and (2) the trial court abused its discretion when it denied
appellant’s motion to hold the hearing at the hospital and
require that witnesses testify in-person. For the reasons
that follow, we affirm.
BACKGROUND
The relevant facts are procedural. Appellant was
placed on a 14-day diversion, but on June 21, 2023, after her
symptoms did not improve, an investigator requested that
the court enter a citation for civil commitment. At 10:04 a.m.
that same day, the court ordered that a citation be issued, and
an attorney be appointed to represent appellant; the citation
ordered appellant to appear on June 22, 2023, at 8:30 a.m.
for the commitment hearing. The court also signed an order
appointing an examiner, and it appointed two examiners
sua sponte. The clerk issued the citation at 10:24 a.m., and
appellant was served with the citation at 1:40 p.m. One of the
examiners called appellant and nursing staff at the hospital
that day for an examination over the phone.
Before the commitment hearing, appellant filed a
motion requesting in-person testimony and hearing. She
argued that the hearing must be held at the hospital because
appellant “is not afforded sufficient procedural due process
protections when the court denies them the opportunity to
be in the same place as the judge, the district attorney’s rep-
resentative, the examiners, and most importantly the wit-
nesses testifying against them.” The trial court denied that
motion and, in its order, the court said, “[t]he court recog-
nizes movant’s concerns and welcomes guidance from the
appellate courts or by mandamus.”
658 State v. L. D. W.
The commitment hearing was held on June 22, and
appellant appeared by video from the hospital. Appellant
renewed her motion and raised a standing objection to
remote testimony and holding the hearing outside her
presence. The court denied the motion. The examiners and
investigator appeared by video. After the hearing, the court
found appellant to be a person with a mental disorder that
made her a danger to herself and others.
DISCUSSION
As noted, appellant presents one assignment of
error in which she argues that the trial court plainly erred
in conducting the civil commitment hearing and committing
appellant after the state failed to comply with the statutory
procedures for civil commitment, and the trial court abused
its discretion when it denied appellant’s motion to hold her
commitment hearing at the hospital. Because only the latter
argument was preserved, we address appellant’s arguments
separately.
Appellant’s Request for Plain Error Review. Appellant
contends that the trial court plainly erred in entering the
judgment of commitment, because the state failed to strictly
comply with the statutory procedures outlined in ORS chap-
ter 426, which made the proceeding fundamentally unfair
in violation of appellant’s due process rights. Specifically,
appellant points to the following procedural failings:
(1) appellant was not informed of the right to counsel and
not given counsel at the appropriate time; (2) medical staff
did not warn appellant about observation by medical staff;
and (3) the examiners’ appointment and their examination
did not comply with the statutes and administrative rules.
Appellant acknowledges that she did not preserve
the purported error, and she requests that we review for
plain error whether the trial court erred in conducting the
commitment hearing and committing appellant despite the
described procedural errors. ORAP 5.45(1) (allowing dis-
cretionary review of “plain” errors). “Generally, an issue
not preserved in the trial court will not be considered on
appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000).
An error is “plain” when it is an error of law, the legal point
Nonprecedential Memo Op: 334 Or App 656 (2024) 659
is obvious and not reasonably in dispute, and the error is
apparent on the record without having to choose among
competing inferences. State v. Vanornum, 354 Or 614, 629,
317 P3d 889 (2013).
First, appellant argues that medical professionals
at the hospital did not inform her of her right to counsel
in violation of ORS 426.234(1)(a), and that the court did
not appoint counsel at the appropriate time in violation of
ORS 426.100(3). ORS 426.234(1)(a) requires that a medical
professional at the facility inform a person of her right to
representation, but it does not require that the professional
document that information. In this case, we would have to
go outside the record to accept appellant’s argument that
she was not notified by medical staff about her right to rep-
resentation, because there was no evidence presented that
appellant was not notified of her right to counsel. Thus, this
alleged error does not qualify for plain error review.
ORS 426.100(3)(e) provides that a person’s right “to
have an attorney appointed may be exercised as soon as
reasonably possible.” Appellant argues that, by appointing
counsel the day before the commitment hearing, the trial
court plainly erred by not appointing counsel “as soon as
reasonably possible.” However, we conclude that it is not
obvious that ORS 426.100(3)(e) required the trial court to
appoint counsel earlier than it did. See State v. C. T., 333
Or App 718, 720-21, ___ P3d ___ (2024) (holding that the
trial court’s appointment of counsel on the Friday before
the Monday commitment hearing was not plain error under
ORS 426.100 because the alleged error was not obvious and
was not apparent on the record). Under the circumstances,
it is not plain that the trial court’s appointment process was
erroneous under ORS 426.100(3)(e).
Second, appellant argues that the trial court plainly
erred in holding the commitment hearing and committing
appellant when there was no evidence that appellant was
warned about observation by medical staff pursuant to ORS
426.123(1). Assuming without deciding that those warn-
ings were not given, we conclude that the trial court did not
plainly err in holding the commitment hearing and commit-
ting appellant. See State v. R. C., 298 Or App 280, 281, 443
660 State v. L. D. W.
P3d 742 (2019) (“[A] violation of ORS 426.123 is not grounds
to dismiss a commitment proceeding.”).
Third, appellant argues that the trial court plainly
erred when it conducted the commitment hearing and com-
mitted appellant despite the examiner’s noncompliance with
several statutory and administrative requirements. We have
reviewed those arguments and conclude that it is not obvious
or apparent on the face of the record that the court’s appoint-
ment of two examiners, the timing of the examiners’ appoint-
ment, the examiners’ prehearing preparation, their examina-
tion of appellant during the hearing, or their reports to the
court violated the requirements of ORS chapter 426 or the
related administrative rules. See C. T., 333 Or App at 721-23
(concluding that the same challenges to the examiner’s exam-
ination and report did not constitute plain error, because the
errors were not obvious or apparent on the record).
Preserved challenge to Trial Court’s Denial of
In-Person Testimony and Hearing. As an initial matter, we
note the limited scope of appellant’s arguments on this issue.
In her briefing, appellant argues that the trial court abused
its discretion when it “failed to make the needed determi-
nation about the location of the hearing” pursuant to ORS
426.0951 and when it failed to follow the process for ordering
remote testimony pursuant to ORS 45.400(3).2 In its answer-
ing brief, the state responds that “[a]ppellant further suggests
that the remote hearing violated the Due Process Clause of
the Fourteenth Amendment,” and that “[a]ppellant’s remote
civil commitment hearing satisfied her due process rights”
based on an application of the three factors from Mathews v.
1
ORS 426.095 provides that a commitment hearing “may be held in a hos-
pital, the person’s home or in some other place convenient to the court and the
person alleged to have a mental illness.”
2
ORS 45.400(3) provides:
“(a) Except as provided under subsection (5) of this section, the court
may allow remote location testimony under this section upon a showing of
good cause by the moving party, unless the court determines that the use of
remote location testimony would result in prejudice to the nonmoving party
and that prejudice outweighs the good cause for allowing the remote location
testimony.”
The statute also contains factors the court may consider that support good
cause for the motion and factors that would support a finding of prejudice. ORS
45.400(3)(b)-(c).
Nonprecedential Memo Op: 334 Or App 656 (2024) 661
Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976).3
However, on this preserved issue, appellant makes no con-
stitutional argument; her only arguments relate to asserted
violations of ORS 426.095(1) and ORS 45.400(3). We limit our
review to the statutory arguments that she presents. In par-
ticular, appellant argues that “appellant did not have a full
chance to argue the issues of prejudice,” even though it is one
of the factors the court must consider before ordering remote
testimony pursuant to ORS 45.400(3), and that the court
should have considered the “nature of the proceeding, with
due consideration for a person’s liberty or parental interests”
pursuant to ORS 45.400(3)(c)(D).
In addition, appellant argues, citing State v. T. C.,
327 Or App 558, 536 P3d 591 (2023), rev den, 371 Or 825(2024), that “failing to comply with the statutes protecting
liberty interests in a civil commitment hearing is reversible
error,” and that the trial court failed to strictly comply with
ORS 45.400 and ORS 426.095(1). We addressed that argu-
ment in State v. A. M., 333 Or App 453, 459-60, 465-67, 553
P3d 593 (2024), and we determined that the statutes do not
“expressly require an in-person hearing.”
As noted, appellant argues that the trial court
abused its discretion in requiring that she participate
remotely in her civil commitment hearing (ORS 426.095)
and requiring remote testimony (ORS 45.400(3)). The state
responds that the statutes upon which appellant relies were
superseded by ORS 1.002(5);4 the subsequent Chief Justice
Order 21-025 (CJO), which delegated authority to the
3
The court must consider the following three factors in deciding what pro-
cess is due:
“First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.”
Mathews, 424 US at 335.
4
ORS 1.002(5) states that “[n]otwithstanding any other statute or rule to the
contrary, * * * the Chief Justice may direct or permit any appearance before a
court or magistrate to be by telephone, other two-way electronic communica-
tion device or simultaneous electronic transmission.” ORS 1.002(5)(c)(A) (2021),
amended by Or Laws 2022, ch 68, § 8 (emphasis added).
662 State v. L. D. W.
presiding judge of each district to order remote proceedings;
and the Clackamas County Presiding Judge Order (PJO)
dated March 11, 2022, which ordered that all civil com-
mitments will “be held remotely.” In holding in A. M. that
ORS 426.095 and ORS 45.300 do not require an in-person
hearing we said: “In the absence of any argument that the
March 11, 2022, [PJO] is no longer valid, we agree with the
state that the March 11, 2022, order supersedes the statu-
tory authority on which appellant relies * * *.” 333 Or App
at 459. The same is true in this case. Appellant did not con-
tend that the presiding judge lacked authority for the March
2022 order, nor did she argue that the order is no longer in
effect. Therefore, we agree with the state that ORS 1.002
and the PJO supersede ORS 426.095 and ORS 45.400(3),
and we conclude that the trial court did not abuse its dis-
cretion by ordering a remote hearing and testimony despite
those statutes.
Affirmed.