No Compulsory Process Advice Reverses Oregon Civil Commitments

On August 13, 2014, the Oregon Court of Appeals held that those facing involuntary commitment must be informed of their right to subpoena witnesses, in terms they will understand.

Oregon Statute (ORS) 426.100(1) requires a trial court to advise allegedly mentally ill persons facing civil commitment of: the reason they are being brought before the court; the nature and possible result of the proceedings; the right to subpoena witnesses; and the right to the appointment of counsel. The Oregon Court of Appeals has held that the failure to “provide a person with all of the information required by ORS 426.100(1) constitutes an egregious error” See: State v. M.L.R. (In re M.L.R.), 256 Ore. App. 566 (Or. Ct. App. 2013).

An alleged mentally ill person identified as V.B., appeared with counsel before a trial court for a civil commitment hearing. While the judge was advising her of the reasons for, and the possible result of, the hearing, V.B. continually interrupted him. Through her continuing interruptions, the court advised V.B. that she had the right to give testimony during the hearing. After a few more interruptions, the court said it was done advising V.B., without informing her of the right to subpoena witnesses.

After hearing evidence, the court found that V.B. suffered from a mental illness and involuntarily committed her for a period not to exceed 180 days.

The Oregon Court of Appeals reversed, concluding that the trial court committed plain error by failing to advise V.B. of her right to subpoena as required by ORS 426.100(l)(d).

The court rejected the State’s argument “that as long as a person has counsel, there is no need to advise the person of the right to subpoena witnesses,” and therefore the failure to advise V.B. was harmless error since she was represented.

“The fact that appellant was represented by counsel does not render harmless the failure to give the information required by ORS 426.100(1) if the record does not provide a basis for finding that appellant’s counsel provided her with that information,” the Court held. Finding that “there is nothing in the record to permit a finding that appellant’s counsel gave (her) the information required by ORS 426.100(1)” the Court held that the trial court’s failure to do so was not harmless.

The Court also rejected the State’s argument that V.B. invited any error because her continual interruptions “prevented the court from fully describing” her rights. Questioning whether the doctrine of invited error even applies in the civil commitment context, the Court held that “there is no indication in this record that the court was prevented, despite appellant’s interruptions, from fully describing the information required in ORS 426.100(1).” See: State v. V.B. (In re V.B.), 264 Ore. App. 621 (Or. Ct. App. 2014).

In a related case, a mentally ill person, identified as Z.A.B., sought reversal of a civil commitment order because although the court advised him of “the right to call (his) own witnesses,” it did not advise him of the right to subpoena witnesses under ORS 426.100(1)(d). The Court of Appeals accepted the State’s concession and reversed.

Presiding Judge Erin Lagesen issued a concurring opinion, questioning the adequacy of the trial court’s advice because it was stated in terms a mentally ill person was not likely to understand.

Although the trial court advised Z.A.B. of “the right to call (his) own witnesses,” Judge Lagesen observed that “advice that a person can ‘call’ witnesses does not convey the right to have a court order the attendance and testimony of material witnesses.” Likewise, she questioned “the extent to which the word ‘subpoena’ conveys useful information to persons without legal training.”

Citing Mental Health Law in Oregon (4th ed. 2012), published by Disability Rights Oregon, Judge Lagesen observed “that the word ‘subpoena’ may not be one that is easily understood by lay persons and thus, as a practical matter, may not provide particularly useful information to allegedly mentally ill persons regarding their rights with respect to presenting witnesses.” Rather, Judge Lagesen instructed that trial courts should explain the person’s right to subpoena witnesses in understandable terms. See: State v. Z. A. B. (In re Z. A. B.), 264 Ore. App. 779 (Or. Ct. App. 2014).

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