State v. S. J. F.

DUNCAN, J.

This is a civil commitment case in which the trial court entered a judgment committing appellant to the Oregon Health Authority on the ground that appellant was mentally ill and unable to provide for her basic personal needs. ORS 426.130(l)(b)(C); ORS 426.005(l)(e)(B). Appellant seeks reversal of the judgment, asserting: (1) the trial court violated ORS 426.100(1),¹ which requires trial courts to provide allegedly mentally ill persons with certain information before civil commitment hearings; (2) the violation constitutes plain error, see ORAP 5.45(1); and (3) we should exercise our discretion to review the error. On de novo review, ORS 19.415 (2007),² we agree and, therefore, reverse.³

The relevant facts are few. Appellant, who has a history of mental illness, was involuntarily hospitalized on a physician’s hold. ORS 426.232. After a mental health investigator determined that there was probable cause to believe that appellant was subject to civil commitment, the trial court held a civil commitment hearing. ORS 426.070. Appellant was not present for the hearing. At the beginning of the hearing, the trial court and appellant’s counsel engaged in the following colloquy .regarding appellant’s absence:

“THE COURT: * * * [T]his is Case No. 5772. And [appellant] is represented at this hearing by her attorney * * * who was appointed to represent her. She is not present. And according to [appellant’s counsel], that is at her own — with her consent. Is that correct * * *?

“[APPELLANT’S COUNSEL]: That’s correct, Your Honor. Basically, we were left with two choices — either continue it, or proceed without her because of her currently being restrained. And after discussing the options with her, and the impacts of both, she decided that we ‘might as well have it today,’ in her words.

“THE COURT: Alright. So, that obviously means we can dispense with the explanation to her of her procedural and due process rights. And so, we’ll go straight to the State’s case. [State’s counsel], you can call your first witness.”

Because appellant was not present, the trial court did not provide her with the information required by ORS 426.100(1). Nor did the court determine whether appellant had waived her right to be advised of that information.

As we have held, to comply with ORS 426.100(1), “a trial court in a civil commitment proceeding must either advise the allegedly mentally ill person directly regarding those rights or conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made.” State v. Ritzman, 192 Or App 296, 298, 84 P3d 1129 (2004) (citing State v. May, 131 Or App 570, 571, 888 P2d 14 (1994)). A trial court’s failure to advise a person as required or to determine whether the person has waived his or her right to be so advised, “is not only error, but it is plain error that we exercise our discretion to consider despite an appellant’s failure to raise and preserve the issue at the hearing.” Ritzman, 192 Or App at 298 (citing State v. Tardanico, 132 Or App 230, 231, 888 P2d 15 (1994)). Accordingly, we have exercised our discretion to review trial court violations of ORS 426.100(1) as plain error in numerous cases.⁴ See, e.g., State v. M. T., 244 Or App 299, 304, 258 P2d 1288 (2011); State v. Murphy, 146 Or App 772, 773, 934 P2d 210 (1997); Tardanico, 132 Or App at 231; State v. Allison, 129 Or App 47, 50, 877 P2d 660 (1994).

In Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991), the Supreme Court stated that, “in deciding whether to exercise its discretion to consider an error of law apparent on the face of the record,” a court may consider, among other factors,

“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.”

Considering those factors, plain error review of violations of ORS 426.100(1) 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. As we have observed, a civil commitment has serious consequences. See, e.g., State v. D. R., 239 Or App 576, 582, 244 P3d 916 (2010) (a “serious deprivation of liberty and social stigma * * * are attendant to a civil commitment”); State v. G. L., 238 Or App 546, 558, 243 P3d 469 (2010) (civil commitment “deprives a person of his or her constitutionally protected liberty interest, and carries deleterious collateral effects, including a social stigma which affects the person’s reputation and earning potential” (internal citations and quotation marks omitted)). The purpose of ORS 426.100(1) is to ensure that, before an allegedly mentally ill person suffers those consequences, he or she receives “the benefit of a full and fair hearing.” Allison, 129 Or App at 50. If a court does not provide a person with all of the information required by ORS 426.100(1), the person does “not receive that benefit.” State v. Grellert, 144 Or App 201, 203, 925 P2d 161 (1996). Thus, as we have held, failure to provide a person with that information constitutes an “egregious” error that justifies plain error review. Tardanico, 132 Or App at 231.

In this case, the state concedes that the trial court violated ORS 426.100(1) and acknowledges that we have held that a violation of ORS 426.100(1) “is not only error, but it is plain error that we exercise our discretion to consider[.]” Ritzman, 192 Or App at 298. Nevertheless, the state argues that we should not exercise our discretion to review the error in this case because, according to the state, appellant’s counsel advised appellant of the information required by ORS 426.100(1). The state asserts, “It is clear that [appellant] was advised of [her procedural and due process rights] by her attorney.” As we understand it, the state’s argument is that, because appellant’s counsel actually advised appellant of the information required by ORS 426.100(1), the trial court’s violation of ORS 426.100(1) was harmless.

The state’s argument is not supported by the record. The state bases its assertion that appellant’s counsel advised appellant of the information required by ORS 426.100(1) on the above-quoted colloquy between the trial court and appellant’s counsel. In that colloquy, appellant’s counsel referred to “two choices” that he discussed with appellant: “either to continue [the hearing], or proceed without her because of her currently being restrained.” He reported that, “after discussing the options with her, and the impacts of both, she decided that we ‘might as well have it today[.]’ ” Thus, the record establishes that appellant’s counsel’s discussion with appellant regarding her “choices” and “options” related to whether to continue the hearing to another day or proceed with the hearing in her absence; that discussion provides no basis for finding that appellant’s counsel provided appellant with all of the information required by ORS 426.100(1). There is, for example, no basis for finding that appellant’s counsel advised appellant of her right to subpoena witnesses. ORS 426.100(l)(d). Given the lack of detail in the record regarding appellant’s counsel’s discussion with appellant, we cannot accept the state’s assertion that appellant’s counsel actually advised appellant of all of the information required by ORS 426.100(1).

That is important because, when determining whether a trial court’s failure to provide an allegedly mentally ill person with the information required by ORS 426.100(1) is harmless, we focus on whether the appellant received all of the information from another source. Two cases illustrate our analytical approach: Ritzman, 192 Or App at 296, and State v. Scharf, 201 Or App 71, 116 P3d 949 (2005).

In Ritzman, we held that the trial court’s failure to advise the appellant of the information required by ORS 426.100(1) was harmless because the appellant had received a written notice that contained all of the required information, the notice had been read to her, and she had signed and dated it. 192 Or App at 301-02. In contrast, in Scharf, we held that the trial court’s failure to advise the appellant of the information required by ORS 426.100(1) was not harmless because, although the appellant had been given a written citation that contained information similar to the required information, he had not signed or dated the citation. 201 Or App at 74. We explained that, “without an acknowledgement from appellant that he actually read the citation, we cannot conclude that he was adequately advised of his rights as we did in Ritzman.” Scharf, 201 Or App at 74.

As discussed, the record in this case provides no basis for finding that appellant received — from her counsel or any other source — the information required by ORS 426.100(1). Therefore, as in Scharf, “we cannot conclude that [appellant] was adequately advised of [her] rights,” 201 Or App at 74, and the state’s argument that the trial court’s violation of ORS 426.100(1) was harmless is unavailing.⁵

Reversed.

1 ORS 426.100 provides, in part:

“(1) At the time the allegedly mentally ill person is brought before the court, the court shall advise the person of the following:

“(a) The reason for being brought before the court;

“(b) The nature of the proceedings;

“(c) The possible results of the proceedings;

“(d) The right to subpoena witnesses; and

“(e) The person’s rights regarding representation by or appointment of counsel.”

2 ORS 19.415 was amended by Senate Bill 262 (2009). Or Laws 2009, ch 231, §§ 2-3. The amendments apply to appeals in which the notice of appeal was filed on or after June 4,2009. Because the notice of appeal in this case was filed before that date, the amendments do not apply.

3 In addition to asserting that the trial court erred by violating ORS 426.100(1), appellant asserts that the trial court erred in concluding that the state had presented sufficient evidence that she was unable to provide for her basic personal needs. Because we accept appellant’s argument regarding the trial court’s violation of ORS 426.100(1), we do not address her argument regarding the sufficiency of the evidence.

4 Indeed, we have reviewed a violation of ORS 426.100 as plain error even when the appellant did not assign error to the violation but the state acknowledged it. State v. Russ, 161 Or App 660, 661, 987 P2d 529 (1999).

We have also held that failure to object to a trial court’s violation of ORS 426.100(1) does not constitute a waiver that would preclude reversal. See, e.g., May, 131 Or App at 571. In May, the appellant challenged the trial court’s failure to provide the information required by ORS 426.100(1); the state conceded that the trial court’s failure was plain error, but argued that any error was waived by the appellant’s trial counsel. We rejected that argument, explaining:

“We hold that a lawyer’s failure to object, standing alone, does not constitute a waiver of the right to be advised of the rights pertaining to the conduct of a civil mental commitment hearing. Those are mandatory advisements specifically designed to ensure that the alleged mentally ill person receives the benefits of a full and fair hearing. The court must either advise the alleged mentally ill person directly regarding those rights or conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made. Here, the court neither advised appellant nor conducted any such examination.”

Id. at 571; see also State v. Burge, 167 Or App 312, 316, 1 P3d 490 (2000) (counsel’s ostensible waiver of allegedly mentally ill person’s right to be advised of the information required by ORS 426.100(1) did not relieve the trial court of its obligation to either provide the required information or conduct an examination on the record to determine whether the waiver was knowing and voluntary).

5 The dissent contends that the trial court’s violation of ORS 426.100(1) was harmless because “appellant received some of the advice required by ORS 426.100(1).” 247 Or App at 330 (Wollheim, J., dissenting). The dissent’s test for harmlessness is inconsistent with Scharf, in which we held that, although the appellant had received some of the information required by ORS 426.100(1), the trial court’s violation of ORS 426.100(1) was not harmless.

The dissent also suggests that we should not review the trial court’s violation of ORS 426.100(1) as plain error because counsel “encouraged” the error. 247 Or App at 331 (Wollheim, J., dissenting). The dissent’s view is not supported by the record. Appellant’s counsel did not encourage the trial court to violate ORS 426.100(1); he did not urge or even suggest that the trial court violate the statute. He simply failed to object when the trial court announced its intended course of conduct, and a failure to object is a predicate to — not a bar to — plain error review.

The dissent erroneously equates appellant’s counsel’s failure to object with encouraging or inviting error. That equation is incompatible with our authority to review plain errors. If, as the dissent suggests, failing to object constitutes encouraging or inviting an error, then we could decline to review all plain errors on the ground that, by remaining silent in the face of the error, the appellant invited or encouraged the error. That is incorrect. Indeed, we have reviewed a trial court’s violation of ORS 426.100(1) when, in the trial court, the appellant was represented by counsel who said nothing when the trial court proceeded without advising the appellant of the required information or determining whether the appellant waived his right to be so advised. Allison, 129 Or App at 50; see also Burge, 167 Or App at 312; May, 131 Or App at 571.