DocketNumber: MC 97-21; CA A99281
Citation Numbers: 998 P.2d 805, 166 Or. App. 672, 2000 Ore. App. LEXIS 636
Judges: Deits, Chief Judge, and Edmonds, De Muniz, Landau, Haselton, Armstrong, Wollheim, and Brewer, Judges
Filed Date: 4/19/2000
Status: Precedential
Modified Date: 11/13/2024
dissenting.
The récord in this involuntary mental commitment case does not show what opportunity if any, Zabransky had to confer with his appointed counsel before the hearing. At the beginning of the hearing, the trial court told Zabransky, in relevant part:
“I need to advise you of your rights with regard to where we are at today and what we’re doing and where we’re going. The reason that you were brought to court today is because a petition has been filed alleging that you are mentally ill and in need of treatment. These proceedings are to make a determination with regards to that.”
Then, the court told him that a member of the Public Defender’s office “will be representing your interests in today’s hearing” and that she was sitting with him at counsel table. The public defender next informed the trial court that she had not had an opportunity to review Zabransky’s medical records before the hearing and that she had seen only the report of the mental health investigator. The trial court permitted her to open the sealed medical records and make notes. After that, counsel indicated that she had no objection to the admission into evidence of the medical records, and the hearing proceeded with the state calling witnesses. Zabransky never testified, and no witnesses were called to testify on his behalf. The court ruled without hearing closing arguments by counsel or inquiring of Zabransky if he had anything to say.
The role of the statutorily mandated advice is all the more critical when dealing with an allegedly mentally ill person, whose ability to comprehend may be impaired. It cannot be said on this record that Zabransky had the full and fair hearing that ORS 426.100 is intended to facilitate in the absence of any evidence that demonstrates that he was informed of the nature of the statutory criteria in issue at the outset of the hearing. Because the trial court did not tell him that the state had to prove that he was dangerous to himself or to others, and the record does not reveal an express or implicit waiver of the mandated advice or that he was informed of those requirements, the result is that he was deprived of his liberty in violation of the statutory scheme in ORS chapter 426 and the state and federal constitutions.
In fact, Zabransky tried to make a statement early in the hearing, and the court told him, “We’ll let you speak through your attorney, all right?” The